EXHIBIT 10.10
STOCKHOLDERS' AGREEMENT
dated as of October __, 1996
among
HOMEGATE HOSPITALITY, INC.
and
The Stockholders Listed on the Signature Pages Hereto
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is made and entered into as
of October __, 1996, by and among Homegate Hospitality, Inc., a Delaware
corporation ("Homegate"), and each of the Stockholders (as hereinafter defined)
listed on the signature pages hereto.
ARTICLE I
DEFINITIONS
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1.1 Defined Terms. In addition to the terms defined elsewhere herein, the
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following terms have the meanings set forth below when used in this Agreement
with initial capital letters:
Affiliate. With respect to any Person, any other Person controlling,
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controlled by or under common control with, the first Person. For purposes
of this definition and this Agreement, the term "control" (and correlative
terms) means the power, whether by contract, equity ownership or otherwise,
to direct the policies or management of a Person.
Business Day. Any day, excluding Saturday, Sunday and any day which
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is a legal holiday or a day on which banking institutions in New York City
or Dallas, Texas are authorized by law or other governmental actions to
close.
Covered Shares. Shares held by Stockholders that are subject to the
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provisions of Article II as provided in section 4.5. If any Stockholder
holds Shares that are not Covered Shares ("Uncovered Shares"), Article II
will apply on a "last-in-first-out" basis, with the result that such
Stockholder may freely Transfer (as hereafter defined) a number of Shares
equal to up to the total number of Uncovered Shares held by such
Stockholder before the provisions of Article II apply to any Transfer of
Covered Shares.
Crow Principals. Xxxxxx X. Xxxx, Xxxxxx X. Xxxxxxx, Xxxxx X.
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Xxxxxxxx, Xxxxxxx X. Xxxx, J. Xxxxxx Xxxxxxxxxxx, Xxxx xxx Xxxxxxxxxx, and
Xxxxxxx X. Xxxx.
Crow Stockholder. The stockholders, other than the JMI/Greystar
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Stockholders, listed on the signature page of this Agreement and the
Transferees of such stockholders (except a JMI/Greystar Stockholder)
authorized under this Agreement, excluding, however, a Transferee in an
Exempt Transfer or a Third-Party Sale.
Exempt Transfer. Any (i) open-market sales of Shares by a Stockholder
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pursuant to Rule 144 under the Securities Act or a shelf registration
statement filed with the Securities and Exchange Commission pursuant to the
Securities Act, (ii) Transfer of Shares by a Crow Stockholder to the direct
or indirect owners of equity interests in such Crow Stockholder, whether in
connection with the dissolution of such Crow Stockholder or otherwise, and
(iii) Transfer of Shares by JMI/Greystar to the direct or indirect owners
of equity interests in JMI/Greystar, whether in connection with the
dissolution of JMI/Greystar or otherwise.
Homegate Board. The board of directors of Homegate.
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Immediate Family. The spouse of an individual and the parents,
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children and grandchildren of the individual or his or her spouse. An
adopted child will be treated as the child of his or her adoptive parent or
parents if (but only if) he or she was adopted before he or she reached 21
years of age.
IPO. The initial public offering of Shares effected pursuant to that
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certain Registration Statement on Form S-1 (No. 333-11113) filed by
Homegate with the Securities and Exchange Commission.
JMI/Greystar. JMI/Greystar Extended Stay Partners, L.P., a Delaware
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limited partnership.
JMI/Greystar's Allocable Percentage. A fraction, expressed as a
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percentage, (i) the numerator of which is the sum of the number of Shares
owned by the JMI/Greystar Stockholders and (ii) the denominator of which is
the total number of outstanding Shares collectively owned by the
JMI/Greystar Stockholders and the Crow Stockholders.
JMI/Greystar Principals. Xxxx Xxxxxx, Xxxxxxx X. Xxxxx, and Xxxxxx X.
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Faith.
JMI/Greystar Stockholders. JMI/Greystar and the Transferees of such
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stockholder (except a Crow Stockholder) authorized under this Agreement,
excluding, however, a Transferee in an Exempt Transfer or a Third-Party
Sale.
Market Price. The closing sale price of the Shares on the date in
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question on the principal securities exchange (treating the Nasdaq National
Market as an exchange for such purpose) on which the Shares are traded.
Nomination Percentage. A fraction, expressed as a percentage, (i) the
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numerator of which is the sum of (a) the number of Shares owned by the
JMI/Greystar Stockholders, and (b) the number of Shares owned by the Crow
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Stockholders and (ii) the denominator of which is the total number of
Shares outstanding.
Permitted Transferee. (a) With respect to a Stockholder who is an
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individual, a member of the Immediate Family of the Stockholder or a trust
whose sole beneficiaries are members of the Immediate Family of the
Stockholder, (b) with respect to a Stockholder that is a corporation,
partnership or other entity (other than a trust), an equity owner of the
corporation, partnership or other legal entity, (c) with respect to a
Stockholder that is a trust, any member of the Immediate Family of the
grantor of the trust, and (d) with respect to Xxxxxxxx Xxxx, Xxxxxxxx Xxxx
and their direct descendants, a charitable trust or foundation that meets
the requirements of Section 501 (c) (3) of the Internal Revenue Code of
1986, as amended.
Person. Any individual or a legal entity.
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Securities Act. The Securities Act of 1933, as amended.
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Shares. The common stock, $.01 par value per share, of Homegate.
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Stockholder Group. The Crow Stockholders, as a group, or the
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JMI/Greystar Stockholders, as a group.
Stockholders. The Crow Stockholders and the JMI/Greystar
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Stockholders.
Third Party Sale. As defined in section 2.1(b)(i).
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Transfer. As defined in section 2.1(a)(i).
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ARTICLE II
TRANSFERS OF SHARES
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2.1 Transfers of Shares.
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(a) Restriction on Transfers.
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(i) General Rule. No Stockholder may effect any direct or indirect
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sale, transfer, pledge or other disposition, whether directly or in connection
with or as a result of any merger, consolidation or other transaction that
results in any Person not included within the categories of authorized
Transferees specified in Section 2.1(a)(ii) obtaining beneficial ownership of
Covered Shares (any such direct or indirect sale, transfer, pledge or other
disposition being a "Transfer"), except in connection with an Exempt Transfer or
otherwise in accordance with this Agreement. As to any Stockholder that is a
legal entity and does not have assets, other than Shares, valued, on a cost
basis, in excess of $1,000,000, any direct or indirect sale, transfer, pledge or
other disposition of any equity interest in such Stockholder which, in one or a
series of transactions, involves in the aggregate more than a 50% equity
interest in such Stockholder will be a "Transfer" for purposes of this Agreement
unless such direct or indirect sale, transfer, pledge or other disposition is
solely to other existing equity holders of such entity. Notwithstanding the
foregoing, any transfer that might otherwise be deemed to result from the merger
or consolidation of Homegate with or into another entity or any recapitalization
of the Shares shall not be deemed to constitute a "Transfer" for purpose of this
Agreement.
(ii) Permitted Transfers. Any Stockholder may Transfer any Shares (A)
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to any wholly-owned Affiliate of the Stockholder, (B) to any Person who is a
Permitted Transferee, (C) to Xxxxxxxx or Xxxxxxxx Xxxx or any lineal descendant
of Xxxxxxxx and Xxxxxxxx Xxxx or any trust of which not less than 75% of the
beneficial interests are held by Xxxxxxxx or Xxxxxxxx Xxxx or such lineal
descendants or any partnership, corporation or other entity of which not less
than 75% of the outstanding equity interests are owned directly or indirectly by
Xxxxxxxx or Xxxxxxxx Xxxx or such descendants (collectively, the "Crow
Interests"), (D) to Homegate, to any then-existing Crow Stockholder or
JMI/Greystar Stockholder or to any individual employed substantially full time
in Homegate's business as a senior executive officer, (E) as a pledge to secure
indebtedness, provided that the pledgee agrees that, upon any foreclosure of the
pledge, the pledgee shall immediately comply with the provisions of Section
2.1(d) below with respect to the pledged Shares and (F) to the owners of equity
interests in a Stockholder upon a partial or complete liquidation or dissolution
of such Stockholder. Each Transfer permitted by this Section 2.1(a)(ii) will
also require the execution and delivery of an instrument in form and substance
satisfactory to the Homegate Board pursuant to which the Transferee agrees to be
bound by this Agreement.
(b) Procedures for Effecting Third-Party Sales.
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(i) Right of First Offer. Prior to consummating any Transfer of
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Covered Shares to any Person, other than in connection with an Exempt Transfer
or as permitted pursuant to Section 2.1(a)(ii) (a "Third-Party Sale"), the
Stockholder proposing to effect the Third Party Sale (the "Offering
Stockholder") will deliver to each of the other Stockholders and to Homegate a
written Notice (an "Offer Notice") specifying (A) the aggregate amount of cash
consideration (the "Offer Price") for which the Offering Stockholder proposes in
good faith to sell the Shares to be offered in such Third-Party Sale (the
"Offered Shares"), (B) the identity of the purchaser in such Third-Party Sale,
and (C) all other material terms of the proposed Third-Party Sale. The
procedures set forth in this Section 2.1(b) shall be subject to the special
provisions set forth below in Sections 2.1(c) and (d) with respect to proposed
Third Party Sales in connection with an underwritten public offering and pledge
foreclosures.
(ii) Rights To Purchase Offered Shares. For purposes of this
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agreement, (A) the JMI/Greystar Stockholders (collectively and as they may
allocate among themselves as set forth below) will be the "Non-Offering
Stockholder" with respect to a proposed Third-Party Sale by any Crow
Stockholder, and (B) the Crow Stockholders (collectively and as they may
allocate among themselves as set forth below) will be the "Non-Offering
Stockholder" with respect to a proposed Third Party Sale by any JMI/Greystar
Stockholder. If a Non-Offering Stockholder delivers to the Offering Stockholder
a written Notice (an "Acceptance Notice") within 10 Business Days following
delivery of the Offer Notice (such 10 Business Day period being referred to
herein as the "ROFO Acceptance Period") stating that such Non-Offering
Stockholder is willing to purchase all of the Offered Shares for the Offer Price
and on the other terms set forth in the Offer Notice, the Offering Stockholder
will sell all (but not less than all) of the Offered Shares to such Non-Offering
Stockholder, and such Non-Offering Stockholder will purchase such Offered Shares
from the Offering Stockholder, on the proposed terms and subject to the
conditions set forth below. In such case,
(A) the JMI/Greystar Stockholders, with the Offered Shares allocated
(unless otherwise agreed by the JMI/Greystar Stockholders requesting to
purchase Offered Shares) based on the number of Shares owned by each of the
JMI/Greystar Stockholders who request to purchase Offered Shares, will be
the "Purchasing Stockholder" with respect to a proposed Third-Party Sale by
any Crow Stockholder, and
(B) the Crow Stockholders, with the Offered Shares allocated (unless
otherwise agreed by the Crow Stockholders requesting to purchase Offered
Shares) based on the number of Shares owned by each of the Crow
Stockholders who request to purchase Offered Shares, will be the
"Purchasing Stockholder" with respect to a proposed Third-Party Sale by any
JMI/Greystar Stockholder,
provided, however, that in no event will any Stockholder be required to purchase
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in excess of the number of Offered Shares requested to be purchased by such
Stockholder.
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(iii) The ROFO Closing. The consummation of any purchase of the
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Offered Shares by the Purchasing Stockholder pursuant to this Section 2.1(b)
(the "ROFO Closing") will occur no more than 10 Business Days following the
delivery of the Acceptance Notice (such 10 Business Day period being referred to
herein as the "ROFO Closing Period") at such time and place as may be agreed
upon by the Offering Stockholder and the Purchasing Stockholder or, if such
parties fail to agree to such time and place, at the principal executive offices
of Homegate at 10:00 a.m. (Central Time) on the tenth Business Day following the
delivery of the Acceptance Notice. At the ROFO Closing, (A) the Purchasing
Stockholder will deliver to the Offering Stockholder by certified or official
bank check or wire transfer to an account designated by the Offering Stockholder
an amount in immediately available funds equal to the Offer Price, (B) the
Offering Stockholder will deliver one or more certificates evidencing the
Offered Shares, together with such other duly executed instruments or documents
(executed by the Offering Stockholder) as may be reasonably requested by the
Purchasing Stockholder to acquire the Offered Shares free and clear of any and
all claims, liens, pledges, charges, encumbrances, security interests, options,
trusts, commitments and other restrictions of any kind whatsoever (collectively,
"Encumbrances"), except for Encumbrances created by this Agreement, federal or
state securities laws or the Purchasing Stockholder or as specified in the Offer
Notice, and (C) the Offering Stockholder will be deemed to represent and warrant
to the Purchasing Stockholder that, upon the ROFO Closing, the Offering
Stockholder will convey and the Purchasing Stockholder will acquire the entire
record and beneficial ownership of, and good and valid title to, the Offered
Shares, free and clear of any and all Encumbrances, except for Encumbrances
created by this Agreement, federal and state securities laws or the Purchasing
Stockholder or as described in the Offer Notice.
(iv) Right To Consummate Third-Party Sale. If no Acceptance Notice
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relating to the proposed Third-Party Sale is delivered to the Offering
Stockholder prior to the expiration of the ROFO Acceptance Period, or an
Acceptance Notice is so delivered to the Offering Stockholder but the ROFO
Closing fails to occur prior to the expiration of the ROFO Closing Period
(unless the Purchasing Stockholder was ready, willing and able prior to the
expiration of the ROFO Closing Period to consummate the transactions to be
consummated by the Purchasing Stockholder at the ROFO Closing), the Offering
Stockholder may (without affecting its rights, if any, arising out of such
failure) consummate the Third Party Sale, but only (A) during the 60 calendar
day period immediately following the expiration of the ROFO Acceptance Period
(in the event that no Acceptance Notice was timely delivered to the Offering
Stockholder) or the 60 calendar day period immediately following the expiration
of the ROFO Closing Period (in the event that an Acceptance Notice was timely
delivered to the Offering Stockholder but the ROFO Closing failed timely to
occur), (B) at a price at least equal to 95% of the Offer Price, and (C) upon
other terms not materially less favorable to the Offering Stockholder than those
set forth in the Offer Notice.
(c) Special Procedures Applicable to Proposed Underwritten Offerings. The
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procedures set forth above in Section 2.1(b) will be applicable to proposed
Third Party Sales in connection with an underwritten public offering (a "Public
Offering") except that (i) the Offer Price shall be a good faith estimate by the
Offering Stockholder of the price to the public at which the Offering
Stockholder
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would be willing to sell in the proposed Public Offering (the "Public Offering
Estimate") and (ii) if, as described in Section 2.1(b)(iv), an Acceptance Notice
is not delivered or a sale to the Non-Offering Stockholder does not occur, the
Offering Stockholder may consummate the Third-Party Sale in the proposed Public
Offering without regard to the price at which such Third-Party Sale is
completed, but only if the Public Offering is consummated during the 150
calendar day period immediately following the expiration of the ROFO Acceptance
Period.
(d) Special Procedures Applicable to Pledge Foreclosures. Within 10
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Business Days following the foreclosure of a pledge of Shares permitted under
Section 2.1(a)(ii)(E), the pledgee shall send an Offer Notice pursuant to
Section 2.1(b)(i) and the procedures set forth in Section 2.1(b) shall apply to
such Offer Notice, except that (i) the Non-Offering Stockholder shall be the
Crow Stockholders in the case of a pledge by a JMI/Greystar Stockholder and the
JMI/Greystar Stockholders shall be the Non-Offering Stockholder in the case of a
pledge by a Crow Stockholder and (ii) the Offer Price shall be the Market Price
on the Business Day immediately preceding the date of the Offer Notice.
(e) Unauthorized Transfers. Any purported Transfer of Shares in violation
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of this Agreement (an "Unauthorized Transfer") will be null and void. Homegate
will not register, recognize or give effect to any Unauthorized Transfer, and
the purported Transferee of any Shares pursuant to an Unauthorized Transfer will
not thereby acquire any rights in such Shares.
ARTICLE III
CERTAIN CORPORATE GOVERNANCE MATTERS
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3.1 Board of Directors. The Company and the Stockholders agree that the
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Homegate Board will consist of between 5 and thirteen directors, with the
precise number of directors fixed from time to time by a majority of the entire
Homegate Board then in office.
3.2 Right to Nominate Directors.
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(a) The JMI/Greystar Stockholders and the Crow Stockholders will each be
entitled to nominate a portion of the Homegate Board. With respect to each
nomination of directors (or election of directors effected by the Homegate Board
to fill vacancies on the Homegate Board), the Company hereby agrees to nominate
(or elect) as directors such designees (the "Stockholder Nominees") of the
JMI/Greystar Stockholders and the Crow Stockholders as shall be required in
order that the percentage of the entire Homegate Board thereafter represented by
the Stockholder Nominees (taking into account then sitting directors who were
nominated by the JMI/Greystar Stockholders or the Crow Stockholders and assuming
the election of the nominees then being designated) is equal to the nearest
whole number obtained by multiplying the Nomination Percentage times the number
of directors that are to serve on the Homegate Board.
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(b) With respect to the Stockholder Nominees,
(i) the JMI/Greystar Stockholders (acting with the approval of the
holders of a majority of the Shares held by the JMI/Greystar Stockholders) shall
be entitled to nominate that portion of the Stockholder Nominees that is equal
to the nearest whole number obtained by multiplying the JMI/Greystar Allocable
Percentage times the number of Stockholder Nominees. Each director nominated by
the JMI/Greystar Stockholders shall be a JMI/Greystar Principal or such other
director as is reasonably acceptable to the Crow Stockholders; and
(ii) the Crow Stockholders (acting with the approval of the holders
of a majority of the Shares held by Crow Stockholders) shall be entitled to
nominate all of the Stockholder Nominees other than those that the JMI/Greystar
Stockholders have the right to nominate. Each director nominated by the Crow
Stockholders shall be a Crow Principal or such other director as is reasonably
acceptable to the JMI/Greystar Stockholders.
3.3 Election of Stockholder Nominees.
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(a) Each Stockholder will use its best efforts to cause the Stockholder
Nominees to be elected in any and all elections of directors of Homegate held
during the term of this Agreement. Notwithstanding any other provision of this
Agreement, however, no Stockholder will be required to cause the election of any
Stockholder Nominee, or to support the continued service of any Stockholder
Nominee, if the Homegate Board determines in good faith, based as to legal
matters on the advice of outside counsel, that the election or continued service
of such Stockholder Nominee would be inconsistent with the fiduciary duty owed
by the Homegate Board to all the stockholders of Homegate; provided, however,
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that the foregoing shall not detract from the right of the Stockholder Group who
nominated such Stockholder Nominee to nominate another Stockholder Nominee for
such position.
(b) Without limiting the generality or effect of Section 3.3(a), each
Stockholder will vote or cause to be voted for the election of the Stockholder
Nominees in any and all elections of directors of Homegate held during the term
of this Agreement all Shares that such Stockholder has the power to vote or in
respect of which such Stockholder has the power to direct the vote.
3.4 Vacancies Among Stockholder Nominees. If a Stockholder Group fails at
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any time to nominate the maximum number of persons for election to the Board
that such Stockholder Group is entitled to nominate pursuant to Section 3.2,
each directorship in respect of which such Stockholder Group so failed to make a
nomination will remain vacant unless such vacancy results in there being fewer
than the minimum number of directors required by law, in which case such vacancy
or vacancies will be filled by a person or persons selected by a majority of the
directors of Homegate then in office.
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3.5 Removal of Stockholder Nominees. If at any time a Stockholder Group
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shall notify Homegate in writing of its desire to have removed from the Homegate
Board, with or without cause, any Stockholder Nominee that was nominated by such
Stockholder Group, each of the Stockholders will, if necessary, subject to all
applicable requirements of law, use its best efforts to take or cause to be
taken all such action as may be required to remove such Stockholder Nominee from
the Homegate Board. Subject to the immediately preceding sentence, no
Stockholder will vote or cause to be voted any Shares that such Stockholder has
the power to vote or in respect of which such Stockholder has the power to
direct the vote for the removal, other than for cause, of any Stockholder
Nominee nominated solely by the other Stockholder Group without the prior
written consent of such other Stockholder Group (which shall be by action of the
holders of a majority of the Shares held by such other Stockholder Group). The
foregoing provisions shall be without prejudice to the right of the stockholders
of Homegate to remove directors for cause as provided by the Delaware General
Corporation Law.
ARTICLE IV
MISCELLANEOUS
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4.1 Notices. All notices, demands, consents, approvals, requests or other
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communications which any of the parties to this Agreement may desire or be
required to give hereunder (collectively, "Notices") will be in writing and will
be given by (a) personal delivery, (b) facsimile transmission, or (c) Federal
Express or another nationally recognized overnight courier service, fees
prepaid, addressed as follows:
If to Homegate or to any JMI/Greystar Stockholder, to:
Xxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Faith
Facsimile (713) ________
If to any Crow Stockholder, to:
Xxxxx 0000
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxx
Facsimile (000) 000-0000
Any party hereto may designate another addressee (and/or change its address) for
Notices hereunder by a Notice given pursuant to this Section. A Notice sent in
compliance with the provisions of this Section will be deemed given on the date
of receipt.
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4.2 Successors and Assigns. This Agreement will be binding upon the
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parties hereto and their respective successors and assigns, and will inure to
the benefit of the parties hereto and, except as otherwise provided herein,
their respective successors and assigns, provided, however, that this Agreement
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shall not be binding upon or inure to the benefit of any Transferee in an Exempt
Transfer or a Third-Party Sale. Except in connection with any Transfers
permitted by Article II, neither this Agreement nor any right or obligation
hereunder may be assigned or delegated by any party hereto without the prior
written consent of the other parties hereto.
4.3 Extension Not a Waiver. No delay or omission in the exercise of any
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power, remedy or right herein provided or otherwise available to any party
hereto will impair or affect the right of such party thereafter to exercise the
same, except as expressly provided herein to the contrary. Any extension of
time or other indulgence granted to any party hereunder will not otherwise alter
or affect any power, remedy or right of any other party hereto, or the
obligations of the party to whom such extension or indulgence is granted.
4.4 Entire Agreement; Amendments. This Agreement sets forth the entire
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agreement between the parties relating to the subject matter hereof and all
prior agreements relative thereto which are not contained herein are terminated.
Amendments, variations, modifications or changes herein may be made effective
and binding upon the parties hereto by, and only by, a written agreement duly
executed by each of (a) Homegate, (b) the holders of at least a majority of the
Shares held by the Crow Stockholders and (c) the holders of at least a majority
of the Shares held by the JMI/Greystar Stockholders and any alleged amendment,
variation, modification, or change herein which is not so documented will not be
effective as to any party hereto.
4.5 After-Acquired Shares. The provisions of Article II of this Agreement
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restricting the Transfer of Shares will apply to and include (i) all Shares
owned by the Stockholders on the date hereof until they are Transferred in an
Exempt Transfer or Third-Party Sale and (ii) all voting securities received in
respect of Shares that remain subject to clause (i) in connection with any
merger or consolidation of Homegate with or into another entity or any
recapitalization or stock split of, or stock dividend on, such Shares, but such
provisions will not otherwise apply to Shares or other voting securities
acquired by a Stockholder after the date hereof.
4.6 Counterparts. This Agreement may be executed in counterparts, each of
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which will be an original, but all of which together will constitute but one and
the same agreement.
4.7 Expenses. Each party hereto will bear its own legal and other
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expenses incurred in connection with the preparation, execution and performance
of this Agreement.
4.8 Arbitration.
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(a) Any dispute relating to this Agreement or the performance by the
parties of their respective obligations under this Agreement, which is not
resolved after the parties' attempt at
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amicable negotiations, will be finally settled by arbitration. If such a dispute
arises, any party hereto may initiate arbitration proceedings by filing a demand
for arbitration with the other parties and the Dallas, Texas office of the
American Arbitration Association ("AAA").
(b) All the arbitration proceedings will be conducted in accordance with
the rules of the AAA and will be held in Dallas, Texas. Within a reasonable
period of time following the conclusion of such proceedings, the arbitration
panel will render a written decision. Decisions of the arbitration panel will
be made by a majority of the panel members. The decision rendered by the
arbitration panel will be final and binding and be enforceable by appropriate
action brought in any state or federal court of competent jurisdiction.
4.9 Further Assurances. Each of the parties will, at any time, upon the
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request of another party hereto, take or cause to be taken, all actions and do,
or cause to be done, all things (including, without limitation, executing,
acknowledging and delivering any additional agreements, instruments and
documents) as may be reasonably necessary, proper or advisable in order to
consummate or make effective the intentions, purposes and transactions
contemplated by this Agreement.
4.10 Legend. A legend referring to the restrictions imposed by this
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Agreement may be placed upon any certificate issued to evidence Shares.
4.11 Termination. This Agreement (a) may be terminated at any time by an
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instrument duly executed by (i) Homegate, (ii) the holders of at least a
majority of the Shares held by Crow Stockholders and (iii) the holders of at
least a majority of the Shares held by JMI/Greystar Stockholders and (b) will
terminate without further action upon the the earliest of (i) the first date on
which the JMI/Greystar Stockholders and the Crow Stockholders have beneficial
ownership (as that term is defined in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended) of less than 20%, in the aggregate, of the outstanding
Shares of Homegate, (ii) the first date on which the JMI/Greystar Principals, or
any of them, do not control the business and affairs of the JMI/Greystar
Stockholders, including the voting and disposition of Shares, unless the
foregoing occurs by reason of the death of the last of such individuals to
control such business and affairs, in which case this Agreement shall not
terminate if within 90 days thereafter a replacement satisfactory to the Crow
Stockholders is placed in control and such replacement (or a subsequent
replacement who is likewise so satisfactory) remains in control at all times
thereafter, or (iii) any distribution or other Transfer of Shares by the
JMI/Greystar Stockholders to direct or indirect owners of equity interests in
the JMI/Greystar Stockholders which results in the Shares being held by any
Person other than a JMI/Greystar Principal or a Person controlled by a
JMI/Greystar Principal.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
HOMEGATE HOSPITALITY, INC., a
Delaware corporation
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By: ______________________________
Name:_____________________________
Title:____________________________
STOCKHOLDERS:
JMI/GREYSTAR EXTENDED STAY
PARTNERS, L.P., a Delaware limited
partnership
By: Greystar Holdings, Inc., a _________
corporation, its sole general partner
By: _________________________
Name: _______________________
Title: ______________________
CROW FAMILY, INC., a __________
corporation
By:________________________________
Name:______________________________
Title:_____________________________
CRI/ESH Partners, L.P., a Texas limited
partnership
By: Crow Family, Inc., a __________
corporation
By: _________________________
Name: _______________________
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Title: _______________________
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J. Xxxxxx Xxxxxxxxxxx
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Xxxxxxx X. Xxxx
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