EXHIBIT 2.1
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EXECUTION COPY
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RECAPITALIZATION AND MERGER AGREEMENT
by and among
WYNDHAM INTERNATIONAL, INC.
WI MERGER SUB, INC.,
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.
and
XXXXXX X. XXX FOREIGN FUND IV-B, L.P.
Dated as of April 14, 2005
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TABLE OF CONTENTS
ARTICLE I THE RECAPITALIZATION
1.1 Plan of Merger........................................................2
1.2 The Closing...........................................................5
ARTICLE II REPRESENTATIONS AND WARRANTIES OF WYNDHAM
2.1 Corporate Power and Authority.........................................5
2.2 Capitalization........................................................6
2.3 No Conflicts; Consents and Approvals..................................6
2.4 Brokers...............................................................7
2.5 Opinion of Financial Advisor..........................................7
2.6 Board Approvals.......................................................7
2.7 Takeover Statutes; Shareholder Rights Plan............................8
2.8 Certain Affiliate Matters.............................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF NEWCO
3.1 Corporate Power and Authority.........................................8
3.2 Capitalization........................................................9
3.3 No Conflicts..........................................................9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
4.1 Power and Authority...................................................9
4.2 No Conflicts; Consents and Approvals.................................10
4.3 Title to Shares......................................................10
4.4 Brokers..............................................................10
ARTICLE V COVENANTS
5.1 Stockholders' Meetings...............................................10
5.2 Series B Drag-Along..................................................11
5.3 Registration Statement; Proxy Materials..............................11
5.4 Voting; Transfer.....................................................12
5.5 Limitation on Certain Share Issuances and Repurchases................12
5.6 Listing of Shares of New Common Stock................................13
5.7 Post-Recapitalization Governance.....................................13
5.8 Termination of Existing Standstill Agreements........................15
5.9 Registration Rights..................................................16
5.10 Shareholder Rights Plan..............................................16
5.11 D&O Insurance; Indemnification.......................................16
5.12 Further Assurances...................................................17
5.13 Certain Affiliate Matters............................................17
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ARTICLE VI CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation................................17
6.2 Conditions to the Wyndham's Obligation...............................18
6.3 Conditions to the Investors' Obligation..............................18
ARTICLE VII TERMINATION
7.1 Bases for Termination................................................19
7.2 Notice of Termination................................................20
7.3 Effect of Termination................................................20
ARTICLE VIII MISCELLANEOUS
8.1 Counterparts.........................................................20
8.2 Entire Agreement.....................................................20
8.3 Third Party Beneficiaries............................................20
8.4 Governing Law; Jurisdiction..........................................20
8.5 Specific Performance.................................................21
8.6 Amendment............................................................21
8.7 Notices..............................................................21
8.8 Assignment...........................................................23
8.9 Fees and Expenses....................................................23
8.10 No Public Announcement...............................................23
8.11 Special Committee....................................................23
EXHIBITS:
Exhibit A Form of Restated Certificate of Incorporation
Exhibit B Form of Amended and Restated Bylaws
Exhibit C Form of Affiliate Agreement
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INDEX OF DEFINED TERMS
AFFILIATE AGREEMENTS...........................................................8
AGREEMENT......................................................................1
AIF/THL........................................................................1
AMEX...........................................................................2
APOLLO.........................................................................1
APOLLO REAL ESTATE.............................................................1
BAY XXXXXXX ACTIONS............................................................4
BEACON.........................................................................1
BEACON APPROVAL................................................................9
CERTIFICATE OF MERGER..........................................................2
CLASS A COMMON STOCK...........................................................1
CLASS B COMMON STOCK...........................................................1
CLOSING........................................................................5
CLOSING DATE...................................................................5
CONTROLLED AFFILIATES.........................................................13
COVERED PARTIES...............................................................16
D&O INSURANCE.................................................................16
DGCL...........................................................................2
DISSENTING SHARES..............................................................5
EXCHANGE ACT...................................................................8
EXCHANGE RATIO.................................................................3
EXISTING CERTIFICATES..........................................................4
HSR ACT........................................................................7
INDEPENDENT DIRECTORS.........................................................13
INSURED PARTIES...............................................................16
INVESTOR GROUP................................................................14
MERGER.........................................................................1
MERGER APPROVAL................................................................7
MERGER EFFECTIVE TIME..........................................................2
NEW COMMON STOCK...............................................................1
NEWCO..........................................................................1
NEWCO COMMON STOCK.............................................................3
OP UNITS.......................................................................4
PREFERRED STOCK................................................................6
PUBLIC STOCKHOLDERS...........................................................13
RECAPITALIZATION...............................................................1
REQUISITE STOCKHOLDER APPROVALS................................................7
RESIGNING DIRECTORS............................................................8
SEC............................................................................7
SECURITIES PURCHASE AGREEMENT..................................................8
SERIES A PREFERRED STOCK.......................................................1
SERIES B APPROVAL..............................................................7
SERIES B MEETING..............................................................11
SERIES B PREFERRED STOCK.......................................................1
SHARES.........................................................................1
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SPECIAL COMMITTEE..............................................................1
STOCKHOLDERS' MEETING.........................................................11
SURVIVING CORPORATION..........................................................2
TAG-ALONG SALE................................................................14
THL FOREIGN....................................................................1
THL FOREIGN B..................................................................1
THL IV.........................................................................1
TOTAL PRO FORMA OUTSTANDING SHARES.............................................4
WYNDHAM........................................................................1
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RECAPITALIZATION AND MERGER AGREEMENT
This RECAPITALIZATION AND MERGER AGREEMENT (this "AGREEMENT") is made
and entered into as of this 14th day of April, 2005, by and among Wyndham
International, Inc., a Delaware corporation ("Wyndham"), WI Merger Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of Wyndham ("Newco"), Apollo
Investment Fund IV, L.P., ("APOLLO"), Apollo Real Estate Investment Fund IV,
L.P. ("APOLLO REAL ESTATE"), AIF/THL PAH LLC ("AIF/THL"), BCP Voting, Inc., a
Delaware corporation, as trustee for the Beacon Capital Partners Voting Trust
("BEACON"), Xxxxxx X. Xxx Equity Fund IV, L.P. ("THL IV"), Xxxxxx X. Xxx Foreign
Fund IV, L.P. ("THL FOREIGN") and Xxxxxx X. Xxx Foreign Fund IV-B., L.P. ("THL
FOREIGN B"). Each of Apollo, Apollo Real Estate, AIF/THL, Beacon, THL IV, THL
Foreign and THL Foreign B is herein referred to as an "Investor," and,
collectively, they are referred to as the "Investors."
WHEREAS, pursuant to this Agreement, Wyndham, Newco and the Investors
have agreed to effect a transaction pursuant to which, as provided herein, all
shares of Class A and Class B common stock and Series A and Series B preferred
stock of Wyndham (collectively, the "SHARES") will be recapitalized (the
"RECAPITALIZATION") into one class of common stock by means of a merger of Newco
with and into Wyndham, with Wyndham as the surviving corporation in such merger
(the "MERGER");
WHEREAS, pursuant to the Merger, (i) the certificate of incorporation
and bylaws of Wyndham will be amended to read in the forms attached as Exhibits
A and B hereto, respectively, to eliminate certain governance provisions and to
create a new class of common stock, par value $0.01 per share, of Wyndham ("NEW
COMMON STOCK") that will replace all existing classes of stock of Wyndham; (ii)
each share of Class A Common Stock, par value $0.01 per share ("CLASS A COMMON
STOCK"), and Class B Common Stock, par value $0.01 per share ("CLASS B COMMON
STOCK"), of Wyndham that is issued and outstanding immediately prior to the
Merger Effective Time shall be converted into one share of New Common Stock; and
(iii) each share of Series A Preferred Stock, par value $0.01 per share ("SERIES
A PREFERRED Stock"), and Series B Preferred Stock, par value $0.01 per share, of
Wyndham ("SERIES B PREFERRED Stock"), that is issued and outstanding immediately
prior to the Merger Effective Time shall be converted into the number of shares
of New Common Stock equal to the Exchange Ratio; and
WHEREAS, the Boards of Directors of Newco and, based in part on the
recommendation of the Special Committee of the Board of Directors of Wyndham
comprised of directors unaffiliated with the Investors (the "SPECIAL
COMMITTEE"), Wyndham have determined that the Merger is advisable and in the
best interests of their respective stockholders.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
THE RECAPITALIZATION
1.1 PLAN OF MERGER.
(a) THE MERGER. At the Merger Effective Time and subject to and
upon the terms and conditions of this Agreement and the General Corporation Law
of the State of Delaware (the "DGCL"), Newco shall be merged with and into
Wyndham, the separate existence of Newco shall cease and Wyndham shall continue
as the surviving corporation. Wyndham as the surviving corporation after the
Merger is hereinafter sometimes referred to as the "SURVIVING CORPORATION."
(b) MERGER EFFECTIVE TIME. On the Closing Date and subject to the
satisfaction or waiver of the conditions set forth in Article VI, Wyndham shall
cause the Merger to be consummated by filing a Certificate of Merger (the
"CERTIFICATE OF MERGER") with the Secretary of State of the State of Delaware,
in such form as required by, and executed in accordance with, the relevant
provisions of the DGCL in form and substance reasonably acceptable to the
Investors (the time of such filing, or such later effective time as may be
agreed to by the parties hereto and set forth in the Certificate of Merger the
"MERGER EFFECTIVE TIME").
(c) EFFECT OF MERGER. From and after the Merger Effective Time,
the effect of the Merger shall be as provided in the applicable provisions of
the DGCL. Without limiting the generality of the foregoing, and subject thereto,
from and after the Merger Effective Time, all the property, rights, privileges,
powers and franchises of Newco and Wyndham shall vest in the Surviving
Corporation, and all debts, liabilities and duties of Newco and Wyndham shall
become the debts, liabilities and duties of the Surviving Corporation.
(d) RESTATED CERTIFICATE OF INCORPORATION; BYLAWS. At the Merger
Effective Time, the Restated Certificate of Incorporation of Wyndham shall be
amended to read in its entirety as set forth in Exhibit A hereto, and shall,
from and after the Merger Effective Time, unless and until further amended, be
the Restated Certificate of Incorporation of the Surviving Corporation. At the
Merger Effective Time, the Amended and Restated Bylaws of Wyndham shall be
amended and restated to read in their entirety as set forth in Exhibit B hereto,
and shall, from and after the Merger Effective Time, unless and until further
amended, be the Amended and Restated Bylaws of the Surviving Corporation.
(e) DIRECTORS AND OFFICERS. The directors of the Surviving
Corporation shall be designated in writing by the Investors prior to the Merger
Effective Time, and Wyndham shall take all necessary action to cause such
designees to be appointed to the Board of Directors of the Surviving Corporation
effective at the Merger Effective Time in accordance with the relevant
provisions of the DGCL and Wyndham's then effective Restated Certificate of
Incorporation and Amended and Restated Bylaws, PROVIDED, that (i) any such
designation shall result in there being at least two directors who are
"independent" within the meaning of the rules of the American Stock Exchange
("AMEX") and (ii) the composition of the Surviving Corporation's Board of
Directors shall be in
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accordance in all respects with the rules of the Amex and any applicable law.
The officers of Wyndham shall be the officers of the Surviving Corporation from
and after the Merger Effective Time, each to hold office until their respective
successors are duly elected or appointed or until such officers' earlier death,
resignation or removal.
(f) CONVERSION OF SECURITIES. At the Merger Effective Time, by
virtue of the Merger and without any action on the part of Wyndham, Newco or the
holders of any of their securities or interests:
(i) Each share of Series A Preferred Stock issued and
outstanding immediately prior to the Merger Effective Time shall be converted
into the number of shares of New Common Stock equal to the Exchange Ratio;
(ii) Each share of Series B Preferred Stock issued and
outstanding immediately prior to the Merger Effective Time shall be converted
into the number of shares of New Common Stock equal to the Exchange Ratio;
(iii) Each share of Class A Common Stock issued and
outstanding immediately prior to the Merger Effective Time shall be converted
into one share of New Common Stock;
(iv) Each share of Class B Common Stock issued and
outstanding immediately prior to the Merger Effective Time shall be converted
into one share of New Common Stock;
(v) Each Share held in the treasury of Wyndham
immediately prior to the Merger Effective Time shall be cancelled without any
conversion or consideration paid in respect thereof, and shall cease to exist;
(vi) Each option or right to purchase shares any shares of
Class A Common Stock of Wyndham that is outstanding immediately prior to the
Merger Effective Time, whether or not then exercisable, shall be converted into
an option or right to purchase an equal number of shares of New Common Stock,
and all other terms of such option or right shall remain the same as immediately
prior to the Merger Effective Time. Each share of restricted Class A Common
Stock of Wyndham that is outstanding immediately prior to the Merger Effective
Time shall be converted into a share of restricted New Common Stock, and all
other terms (including vesting) of such restricted stock shall remain the same
as immediately prior to the Merger Effective Time;
(vii) Each share of common stock, par value $0.01 per
share, of Newco ("NEWCO COMMON STOCK") shall be cancelled without any conversion
or consideration paid in respect thereof, and shall cease to exist;
(viii) The "EXCHANGE RATIO" shall be equal to a fraction
(expressed as a decimal and rounded down to the nearest whole share after
aggregating all fractional shares that otherwise would be received by a holder)
the numerator of which is 85% of the Total Pro Forma Outstanding Shares
outstanding immediately prior to the Merger Effective Time and the denominator
of which is the sum of (A) the number of shares of
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Series A Preferred Stock outstanding immediately prior to the Merger Effective
Time and (B) the number of shares of Series B Preferred Stock outstanding
immediately prior to the Merger Effective Time. Not later than one business day
prior to the Closing Date, Wyndham shall provide the Investors with a true and
correct written calculation of the Exchange Ratio;
(ix) The "TOTAL PRO FORMA OUTSTANDING SHARES" shall be
equal to the sum of:
(A) the total number of shares of Class A Common
Stock and Class B Common Stock outstanding immediately prior to the Merger
Effective Time, including any shares of Class A Common Stock issuable upon
redemption of the partnership units in Patriot American Hospitality Partnership,
L.P. or Wyndham International Operating Partnership, L.P. (collectively, the "OP
UNITS"), but excluding shares that were subject to unexercised options or rights
that were outstanding as of April 5, 2005 and excluding shares of restricted
stock that were subject to vesting restrictions as of April 5, 2005;
(B) to the extent not included in clause (A)
above, 11,000,000 shares of Class A Common Stock or New Common Stock that may be
issued pursuant to the settlement of the actions entitled Xxxxxxx v. Patriot
American Hospitality, Inc., et al., Case No. C-99-2153, Xxxxxx v. Patriot
American Hospitality, Inc., et al., Xxxx Xx. X-00-0000, Xxxx, et al. v. Patriot
American Hospitality, Inc., et al., Case No. C-99-2770, Xxxxxxxxx, et al. v.
Patriot America Hospitality, Inc., et al., Case No. C-99-3040, Xxxxxx v. Patriot
American Hospitality, Inc., et al., and any other actions with substantially
similar allegations (collectively, the "BAY XXXXXXX ACTIONS"); and
(C) all shares of New Common Stock issuable upon
conversion of the Series A Preferred Stock and the Series B Preferred Stock
pursuant to the Merger; and
(x) All accrued and unpaid dividends on the Series A
Preferred Stock and Series B Preferred Stock shall, as of the Merger Effective
Time, be cancelled without any consideration being payable in respect thereof.
(g) SURRENDER OF SHARES; STOCK TRANSFER BOOKS. From and after the
Merger Effective Time, upon surrender by any holder to Wyndham's transfer agent
of any certificates formerly representing Shares, certificates representing the
number of shares of New Common Stock that such holder shall be entitled to
receive pursuant to Section 1.2(f) shall be issued to such holder. From and
after the Merger Effective Time, until such time as the certificates formerly
representing the Shares (the "EXISTING CERTIFICATES") are surrendered in
exchange for new certificates representing the shares of New Common Stock, the
Existing Certificates held by any holder shall be deemed to represent the shares
of New Common Stock that such holder was entitled to receive pursuant to Section
1.2(f) and the holder thereof shall have all of the rights (including voting and
dividend rights) to which such shares of New Common Stock are entitled.
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(h) CONVERSION PRICE. For purposes of the proposed settlement of
the Bay Xxxxxxx Actions, the parties agree and acknowledge that the price per
share of New Common Stock to be received by the holders of the Series B
Preferred Stock in the Merger pursuant to Section 1.1 will equal the liquidation
preference of a share of Series B Preferred Stock at the Merger Effective Time
divided by the Exchange Ratio.
(i) DISSENTING SHARES. Notwithstanding anything in this Agreement
to the contrary, any Shares that are (i) outstanding immediately prior to the
Merger Effective Time, (ii) held by a holder who has not voted in favor of the
adoption of the Merger and this Agreement or consented thereto in writing and
who has complied with Section 262 of the DGCL and (iii) entitled to appraisal
rights under Section 262 of the DGCL ("DISSENTING SHARES") shall not be
converted into shares of New Common Stock in accordance with Section 1.1(f)
unless such holder fails to perfect or properly withdraws or otherwise loses
such holder's right to appraisal. A holder of Dissenting Shares shall be
entitled to receive payment of the appraised value of such shares held by such
holder in accordance with Section 262 of the DGCL, unless, after the Merger
Effective Time, such holder fails to perfect or properly withdraws or loses such
holder's right to appraisal, in which case such Shares shall be converted into
and represent only shares of New Common Stock in accordance with Section 1.1(f).
Wyndham shall give the Investors (i) prompt notice of any written demands for
appraisal of any Shares, attempted withdrawals of such demands and any other
instruments served pursuant to the DGCL and received by Wyndham relating to
rights of appraisal and (ii) the opportunity to participate in the conduct of
all negotiations and proceedings with respect to demands for appraisal under the
DGCL. Except with the prior written consent of the Investors holding, as of the
date hereof, at least two thirds of the outstanding shares of Series B Preferred
Stock held by the Investors collectively, Wyndham shall not voluntarily make any
payment with respect to any demands for appraisal or settle or offer to settle
any such demands for appraisal.
1.2 THE CLOSING. Subject to the fulfillment or waiver of the
conditions set forth in Article VI, the closing of the transactions contemplated
by this Agreement (the "CLOSING") shall take place at the offices of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New York, New York,
commencing at 10:00 a.m. local time on the earliest practicable date (but no
later than the second business day) following satisfaction or waiver of the
conditions set forth in Article VI or (b) at such other place and/or time and/or
on such other date as Wyndham and the Investors may agree. The date on which the
Closing occurs shall be the "CLOSING DATE." The Closing will consist of the
filing with the Secretary of State of the State of Delaware of the Certificate
of Merger.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF WYNDHAM
Wyndham hereby represents and warrants to each Investor as follows:
2.1 CORPORATE POWER AND AUTHORITY. Wyndham is duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Wyndham has all requisite corporate power and authority to enter into and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated by
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this Agreement. The execution, delivery and performance of this Agreement by
Wyndham have been duly authorized by all necessary corporate action on the part
of Wyndham, subject to receipt of the Requisite Stockholder Approvals. This
Agreement has been duly executed and delivered by Wyndham and, assuming due
authorization, execution and delivery by each other party hereto, constitutes
the legal, valid and binding obligation of Wyndham enforceable against Wyndham
in accordance with its terms subject to applicable bankruptcy, insolvency,
fraudulent conveyance and other similar laws and general principles of equity,
including equitable defenses and limits as to the availability of equitable
remedies, whether such principles are considered in a proceeding at law or in
equity.
2.2 CAPITALIZATION. Prior to giving effect to the Merger,
Wyndham's authorized capital stock consists solely of 750,000,000 shares of
Class A Common Stock, 750,000,000 shares of Class B Common Stock, and
150,000,000 shares of preferred stock, par value $.0l per share ("PREFERRED
STOCK"). As of April 13, 2005, 172,838,624 shares of Class A Common Stock are
issued and outstanding (excluding for purposes of this sentence any shares of
restricted stock that are subject to vesting restrictions), no shares of Class B
Common Stock are issued and outstanding and 16,181,122 shares of Preferred Stock
are outstanding, of which 74,165 shares are designated Series A Preferred Stock
and 16,106,957 shares are designated Series B Preferred Stock. As of April 13,
2005, (i) 4,924,194 shares of restricted stock subject to vesting restrictions
are outstanding, (ii) 778,403 shares of restricted stock have vested since Xxxxx
0, 0000, (xxx) options to purchase 8,346,627 shares of Class A Common Stock are
outstanding, (iv) no options to purchase shares of Class A Common Stock have
been exercised since April 5, 2005 and (v) there are 319,854 OP Units
outstanding and 319,854 shares of Class A Common Stock are issuable upon
redemption of the OP Units. As of March 31, 2005, each share of Series A
Preferred Stock Preferred Stock and Series B Preferred Stock, on a per share
basis averaged for all such shares, (i) had a Liquidation Preference (as such
term is defined in the certificate of designation of such Preferred Stock) equal
to $106.775 and (ii) was convertible into 12.43016 shares of Class A Common
Stock or Class B Common Stock, as applicable. Except as set forth above, as of
the date hereof, there are no shares of capital stock or securities convertible
into or exchangeable for shares of capital stock of Wyndham. Upon consummation
of the Recapitalization, each of the shares of New Common Stock issued in the
Merger will be duly authorized, validly issued and fully paid and nonassessable
and will not have been issued in violation of any preemptive or similar rights.
2.3 NO CONFLICTS; CONSENTS AND APPROVALS.
(a) The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and will
not (i) violate, conflict with, or result in a breach of any provision of, or
constitute a default under, Wyndham's Restated Certificate of Incorporation, or
Amended and Restated Bylaws; (ii) violate, or conflict with, or result in a
breach of any provision of, or constitute a default (or an event which, with the
giving of notice or lapse of time or both, would become a default) under, or
entitle any party to terminate, accelerate, modify or call a default under, or
result in the creation of any lien or encumbrance upon any of the properties or
assets of Wyndham
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under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, contract, undertaking, agreement, lease or
other instrument or obligation to which Wyndham is a party; (iii) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
Wyndham; or (iv) other than the Requisite Stockholder Approvals, the filing of
the Certificate of Merger with the Secretary of State of the State of Delaware,
required filings with the Securities and Exchange Commission (the "SEC") or
pursuant to state securities or "blue sky" laws, the approval by the Amex of the
shares of New Common Stock for listing upon notice of issuance and required
filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR ACT"), require any action or consent or approval of, or review
by, or registration or filing by Wyndham with, any third party or any local,
state or federal court, arbitral tribunal, administrative agency or commission
or other governmental or regulatory body, agency, instrumentality or authority,
except, in the case of clause (ii), (iii) or (iv), as would not have a material
adverse effect on Wyndham and its subsidiaries taken as a whole or the ability
of Wyndham to perform its obligations hereunder and consummate the transactions
contemplated hereby.
(b) The approvals required by Wyndham stockholders in connection
with this Agreement and the transactions contemplated hereby (collectively, the
"REQUISITE STOCKHOLDER APPROVALS") are (i) the adoption of this Agreement and
the approval of the Merger by the holders of a majority in voting power of the
issued and outstanding shares of Class A Common Stock, Class B Common Stock and
Series B Preferred Stock (voting on an as-converted basis) entitled to vote
thereon, voting together as a single class (the "MERGER APPROVAL"), and (ii) the
adoption of this Agreement and the approval of the Merger by the holders of at
least two thirds of the issued and outstanding shares of Series B Preferred
Stock entitled to vote thereon (the "SERIES B APPROVAL"). No other vote of the
holders of any class or series of capital stock of Wyndham is required to
approve or authorize this Agreement or the consummation of the transactions
contemplated hereby.
2.4 BROKERS. Except for Xxxxxx Xxxxxxx, the fees and expenses of
which have been fully disclosed to the Investors, no agent, broker, finder,
investment banker, financial advisor or other person will be entitled to any
broker's, finder's or similar fee or commission from Wyndham or any affiliate
thereof in connection with any of the transactions contemplated by this
Agreement based on arrangements made by Wyndham or any of its affiliates (other
than the Investors) or any investment banker, financial advisor, attorney,
accountant or other person retained by or acting for or on behalf of Wyndham or
any such affiliate.
2.5 OPINION OF FINANCIAL ADVISOR. The Board of Directors of
Wyndham has received the written opinion of Xxxxxx Xxxxxxx, dated as of the date
hereof, to the effect that, as of such date and subject to the qualifications
and limitations contained therein, the consideration to be received by the
holders of the Class A Common Stock in connection with the Recapitalization was
fair, from a financial point of view, to the holders of such Shares. Wyndham has
provided a true and complete copy of such written opinion to the Investors.
2.6 BOARD APPROVALS.
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(a) The Board of Directors of Wyndham has: (i) determined that
this Agreement, the Merger and the other transactions contemplated by this
Agreement are advisable, fair to and in the best interests of the holders of the
Class A Common Stock and Series A Preferred Stock, (ii) approved this Agreement,
the Merger and the other transactions contemplated hereby and (iii) approved the
termination of the provisions of the Securities Purchase Agreement, dated as of
February 18, 1999 (the "SECURITIES PURCHASE AGREEMENT"), described in Section
5.8.
(b) On or prior to the date hereof, Wyndham has taken all such
steps as may be required to cause the transactions contemplated by this
Agreement, including any dispositions of Shares and acquisitions of New Common
Stock by each individual that is or will be subject to the reporting
requirements of Section 16(a) of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), with respect to Wyndham, to be exempt under Rule 16b-3
promulgated under the Exchange Act.
2.7 TAKEOVER STATUTES; SHAREHOLDER RIGHTS PLAN. On or prior to the
date hereof, the Board of Directors of Wyndham has taken the necessary action
(i) to make inapplicable the restrictions on "business combinations" pursuant to
Section 203 of the DGCL, any other applicable antitakeover or similar statute or
regulation to this Agreement and the transactions contemplated hereby and (ii)
to terminate the Shareholder Rights Plan, dated as of June 29, 1999, effective
immediately prior to the Merger Effective Time, without the payment of any
amounts to the holders of any Shares.
2.8 CERTAIN AFFILIATE MATTERS. At or prior to the execution
hereof, Wyndham has delivered to the Investors, to the extent in Wyndham's
possession on the date hereof, (i) the resignations of all Class A Directors and
Class C Directors of Wyndham other than Xxxx X. Xxxxxxxx (the "RESIGNING
DIRECTORS"), in each case effective immediately prior to the Merger Effective
Time,and (ii) a letter agreement in substantially the form of EXHIBIT C hereto
from each of the Resigning Directors (the "AFFILIATE AGREEMENTS").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NEWCO
Newco hereby represents and warrants to each Investor and to Wyndham as
follows:
3.1 CORPORATE POWER AND AUTHORITY. Newco is duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Newco has all requisite corporate power and authority to enter into and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement by Newco have been duly authorized by all
necessary corporate action on the part of Newco, subject to receipt of the
approval of the holders of a majority of the issued and outstanding shares of
Newco Common Stock. This Agreement has been duly executed and delivered by Newco
and, assuming due authorization, execution and delivery by each other party
hereto, constitutes the legal, valid and binding obligation of Newco enforceable
against Newco in accordance with its terms subject to applicable bankruptcy,
insolvency,
8
fraudulent conveyance and other similar laws and general principles of equity,
including equitable defenses and limits as to the availability of equitable
remedies, whether such principles are considered in a proceeding at law or in
equity.
3.2 CAPITALIZATION. Newco's authorized capital stock consists
solely of 100 shares of Newco Common Stock. As of the date of this Agreement,
100 shares of Newco Common Stock are issued and outstanding.
3.3 NO CONFLICTS. The execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement do not and
will not (i) violate, conflict with, or result in a breach of any provision of,
or constitute a default under, Newco's Certificate of Incorporation or Bylaws;
(ii) violate, or conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with the giving of notice or lapse of
time or both, would become a default) under, or entitle any party to terminate,
accelerate, modify or call a default under, or result in the creation of any
lien or encumbrance upon any of the properties or assets of Newco under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture, deed
of trust, license, contract, undertaking, agreement, lease or other instrument
or obligation to which Newco is a party; (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Newco; or (iv)
require any action or consent or approval of, or review by, or registration or
filing by Newco with, any third party or any local, state or federal court,
arbitral tribunal, administrative agency or commission or other governmental or
regulatory body, agency, instrumentality or authority, except in the case of
clause (ii), (iii) or (iv), as would not have a material adverse effect on Newco
or the ability of Newco to perform its obligations hereunder and consummate the
transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor represents and warrants, severally and not jointly, to
each of Wyndham and Newco as follows:
4.1 POWER AND AUTHORITY. Such Investor is duly organized and
validly existing under the laws of its state of formation. It has all requisite
power and authority to enter into and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated by this
Agreement, subject, in the case of Beacon, to the requisite approval of holders
of interests in Beacon pursuant to the terms of the Beacon Voting Trust
Agreement, dated as of June 8, 1999 (the "BEACON APPROVAL"). The execution,
delivery and performance of this Agreement by it has been duly authorized by all
necessary action on its part, subject, in the case of Beacon, to the Beacon
Approval. This Agreement has been duly executed and delivered by such Investor
and (assuming due authorization, execution and delivery by the other parties
hereto) constitutes the legal, valid and binding obligation of such Investor,
enforceable against it in accordance with its terms subject to (a) applicable
bankruptcy, insolvency, fraudulent conveyance and other similar laws and (b)
general principles of equity, including equitable defenses and
9
limits as to the availability of equitable remedies, whether such principles are
considered in a proceeding at law or in equity.
4.2 NO CONFLICTS; CONSENTS AND APPROVALS. Subject, in the case of
Beacon, to the Beacon Approval, the execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement do not and
will not (i) violate, conflict with, or result in a breach of any provision of
or, constitute a default under, its governing or organizational documents; (ii)
violate, or conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with the giving of notice or lapse of
time or both, would become a default) under, or entitle any party to terminate,
accelerate, modify or call a default under, or result in the creation of any
lien or encumbrance upon any of its properties or assets under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, contract, undertaking, agreement, lease or other instrument or
obligation to which it is a party; (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to it; or (iv) require any action
or consent or approval of, or review by, or registration or material filing by
it with, any third party or any local, state or federal court, arbitral
tribunal, administrative agency or commission or other governmental or
regulatory body, agency, instrumentality or authority except in the case of
clause (ii), (iii) or (iv) as would not have a material adverse effect on such
Investor or the ability of such Investor to perform its obligations hereunder
and consummate the transactions contemplated hereby.
4.3 TITLE TO SHARES. The Investors own beneficially and of record,
in the aggregate, the number of Shares equal to the number of Shares acquired by
the Investors and their affiliated fund entities pursuant to the Securities
Purchase Agreement, plus any Shares issued as dividends thereon, less any Shares
redeemed by Wyndham with the proceeds from its offering of Series A Preferred
Stock, and have the authority to vote such Shares in accordance with the
provisions of this Agreement.
4.4 BROKERS. No agent, broker, finder, investment banker,
financial advisor or other person will be entitled to any broker's, finder's or
similar fee or commission from any Investor or any affiliate thereof, or from
Wyndham based on any action of any Investor or its representative, in connection
with any of the transactions contemplated by this Agreement based on any
arrangement made by an Investor or any of its affiliates (other than Wyndham) or
any investment banker, financial advisor, attorney, accountant or other person
retained by or acting for or on behalf of such Investor or any such affiliate.
ARTICLE V
COVENANTS
5.1 STOCKHOLDERS' MEETINGS.
(a) Wyndham shall call and hold a meeting of its stockholders
entitled to vote, which meeting shall also serve as Wyndham's annual meeting for
the election of directors (it being understood that such election shall not
affect the obligation of the Resigning Directors to resign and that Wyndham will
not propose any nominees for election as Class A or Class C directors that are
not Class A or Class C Directors on the date hereof)
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(the "STOCKHOLDERS' MEETING"), as promptly as practicable for the purpose of
seeking the Merger Approval, and Wyndham shall use its reasonable best efforts
to hold the Stockholders' Meeting as soon as practicable following the filing of
a definitive proxy statement relating to such meeting. Subject to Section
5.1(d), the Board of Directors of Wyndham shall recommend the adoption and
approval of this Agreement, the Merger and the other transactions contemplated
hereby at the Stockholders' Meeting.
(b) Unless the holders of the Series B Preferred Stock shall have
previously acted by written consent with respect to the Series B Approval,
Wyndham shall call and hold a meeting of the holders of the Series B Preferred
Stock (the "SERIES B MEETING") as promptly as practicable for the purpose of
seeking the Series B Approval, and Wyndham shall use its reasonable best efforts
to hold the Series B Meeting as soon as practicable following the filing of a
definitive proxy statement relating to such meeting. Subject to Section 5.1(d),
the Board of Directors of Wyndham shall recommend the adoption and approval of
this Agreement, the Merger and the other transactions contemplated hereby at the
Series B Meeting.
(c) Wyndham shall coordinate the timing of the meetings so that
they occur on the same date and at locations that are proximate to one another.
(d) Notwithstanding anything to the contrary contained herein, the
Board of Directors of Wyndham may not withdraw, modify or amend, or propose to
withdraw, modify or amend, the recommendations made in contemplation of or
pursuant to this Agreement in any manner adverse to the Investors unless such
Board has determined in good faith, after consultation with outside legal
counsel, that failure to take such action would result in a breach of its
fiduciary obligations to the stockholders of Wyndham under applicable law.
(e) The obligation of Wyndham to call, give notice of, convene and
hold the Stockholders' Meeting and Series B Meeting and to hold a vote of
Wyndham's stockholders on this Agreement and the Merger at the Stockholders'
Meeting and the Series B Meeting shall not be limited or otherwise affected by
the withdrawal, modification or amendment of the recommendation of the Wyndham
Board of Directors that Wyndham's stockholders adopt and approve the Merger and
this Agreement.
5.2 SERIES B DRAG-ALONG. Subject, in the case of Beacon, to the
Beacon Approval, the Investors shall use their commercially reasonable efforts
to provide a "drag-along" notice to the holders of Series B Preferred Stock
other than the Investors not less than 15 days prior to the Merger Effective
Time informing them that the Investors are exercising their "drag-along" rights
under the Stockholders' Agreement among the holders of Series B Preferred Stock
and requiring them to exchange their Series B Preferred Shares for shares of New
Common Stock in the Merger.
5.3 REGISTRATION STATEMENT; PROXY MATERIALS. Wyndham shall prepare
and file with the SEC as soon as practicable a registration statement which
shall include a proxy statement with respect to each of the Requisite
Stockholder Approvals. The proxy statement shall include the recommendation of
the Board of Directors of Wyndham to the
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holders of the Class A Common Stock, the Class B Common Stock and the Series B
Preferred Stock to adopt the Merger Agreement and approve the Merger and the
other transactions contemplated hereby, subject to Section 5.1(d). Wyndham
agrees that it shall give the Investors and their counsel a reasonable
opportunity to review and provide comments on the registration statement and any
notice, consent solicitation or proxy statement distributed to stockholders in
connection with the Series B Meeting or the Stockholders' Meeting, prior to any
such distribution.
5.4 VOTING; TRANSFER. Subject, in the case of Beacon, to the
Beacon Approval, each Investor agrees to vote all Shares owned by it in favor of
the adoption of this Agreement and the approval of the Merger and the other
transactions contemplated hereby at the Series B Meeting and the Stockholders'
Meeting, as applicable. Without the prior written consent of Wyndham or as
otherwise provided in this Agreement, during the term of this Agreement, the
Investors shall not, directly or indirectly (a) grant any proxies or enter into
any voting trust or other agreement or arrangement with respect to the voting of
any Shares, other than any proxies, voting trusts or voting agreements or
arrangements that are consistent with the voting obligations of the Investors
contained in this Agreement, or (b) sell, assign, transfer, encumber or
otherwise dispose of (including by merger, consolidation or otherwise by
operation of law), or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect assignment, transfer,
encumbrance or other disposition of (including by merger, consolidation or
otherwise by operation of law), any Shares, other than to a person or entity
that agrees to be bound by the provisions of this Agreement to the same extent
as the Investors and other than transfers of the Shares by Beacon to its
beneficiaries as a result of a termination of the Beacon Voting Trust Agreement,
in which case such beneficiaries shall be automatically bound by and entitled to
the benefits under this Agreement without any further action.
5.5 LIMITATION ON CERTAIN SHARE ISSUANCES AND REPURCHASES. During
the period from the date hereof and continuing until the earlier of the
termination of this Agreement pursuant to its terms and the Merger Effective
Time, Wyndham shall not and shall not permit its subsidiaries to:
(a) issue, deliver, sell (including the sale by Wyndham of any
Shares held in treasury) or authorize or propose any of the foregoing with
respect to any shares of capital stock or any securities convertible into or
exercisable or exchangeable for shares of capital stock, or subscriptions,
rights, warrants or options to acquire any shares of such capital stock or any
securities convertible into or exercisable or exchangeable for shares of such
capital stock (including restricted stock), or enter into other agreements or
commitments of any character obligating it to issue any such shares or
convertible securities, other than the issuance, delivery or sale of Shares
pursuant to (i) the exercise of stock options, (ii) the vesting of restricted
stock, (iii) the conversion of convertible securities and (iv) the redemption of
OP Units, in each case outstanding as of the date of this Agreement;
(b) purchase, redeem or otherwise acquire, directly or indirectly,
any shares of capital stock of Wyndham or any OP Units; or
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(c) without the affirmative vote of a majority of Wyndham's Class
B Directors, modify any settlement of the Bay Xxxxxxx Actions.
5.6 LISTING OF SHARES OF NEW COMMON STOCK. Wyndham will use its
commercially reasonable efforts to cause the shares of New Common Stock to be
issued in the Recapitalization, and any shares of New Common Stock underlying
any options, rights or restricted stock or that may be issued upon redemption of
OP Units, in each case outstanding at the Merger Effective Time, to be listed
for trading on the Amex, subject to official notice of issuance, prior to the
Merger Effective Time.
5.7 POST-RECAPITALIZATION GOVERNANCE.
(a) For a period of 12 months following the Merger Effective Time,
neither the Investors nor their affiliates (as defined in Rule 12b-2 under the
Exchange Act, but excluding for this purpose any person or entity as to which
the Investors do not own at least a majority of the voting power and control
their investment and voting decisions (their "CONTROLLED AFFILIATES")), provided
that they retain collectively a majority of the outstanding New Common Stock,
nor Wyndham will initiate action which could reasonably be expected to result in
the delisting of the New Common Stock from the Amex or the deregistration of the
New Common Stock under the Exchange Act, other than by reason of an acquisition
of Wyndham not in violation of this Agreement.
(b) For so long as the securities of the Surviving Corporation are
listed on the Amex, the Investors (provided that together with their Controlled
Affiliates they retain collectively a majority of the outstanding New Common
Stock) and Wyndham shall ensure that (i) there shall be at least two members of
the Board of Directors of Wyndham who are "independent" within the meaning of
the rules of the Amex (the "INDEPENDENT DIRECTORS") and any applicable law and
(ii) the composition of the Surviving Corporation's Board of Directors shall
otherwise be in accordance in all respects with rules of the Amex and any
applicable law.
(c) For a period of 12 months following any deregistration of the
New Common Stock under the Exchange Act, the Investors, provided that together
with their Controlled Affiliates they retain collectively a majority of the
outstanding New Common Stock, and Wyndham shall ensure that Wyndham will make
publicly available (including mailing of such material to all persons holding of
record New Common Stock (such persons, other than the Investors and their
Controlled Affiliates, the "PUBLIC Stockholders")) the information that would be
required by an issuer subject to the periodic reporting obligations under the
Exchange Act.
(d) For a period of 12 months following the Merger Effective Time,
the Investors, their Controlled Affiliates and any group of persons, acting with
the knowledge and consent of the Investors, acquiring, holding, voting or
disposing of securities which would be required under Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder to file with
the Investors and their Controlled Affiliates a statement on Section 13D with
the Securities and Exchange Commission as a "person" with the meaning of Section
13(d)(3) of the Exchange Act (such group of persons, the
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"INVESTOR GROUP") shall not acquire, offer to acquire or agree to acquire the
legal or beneficial ownership of any additional shares of New Common Stock and
Wyndham shall not take any action, including stock repurchases, in either case
that would result in the Investor Group holding, in the aggregate, legal or
beneficial ownership of in excess of 90% of the outstanding New Common Stock.
The foregoing restriction will not apply to acquisitions pursuant to a
transaction in which the same price per share is offered for all shares of New
Common Stock not owned by the Investor Group and such acquisition is (a)
approved by a majority of the Independent Directors (after receipt of a fairness
opinion from a nationally recognized investment bank), or (b) if a merger,
subject to a vote of the holders of a majority of shares of New Common Stock not
held by the Investor Group, or (c) if a tender offer, subject to (i) a
non-waiveable minimum condition that at least a majority of the shares of New
Common Stock not owned by the Investor Group be tendered and (ii) if the tender
offer is consummated, an unconditional commitment to acquire the shares of New
Common Stock not acquired in the tender offer at the same price per share and
otherwise for the same consideration paid in the tender offer, as promptly as
possible, and in each case within 90 days, which time period may be extended, if
necessary, due to review by the Securities and Exchange Commission, pursuant to
a back-end merger.
(e) If, within 24 months following the Merger Effective Time, the
Investors propose to sell, or otherwise dispose of sole beneficial or legal
ownership, whether directly or indirectly in a single transaction or series of
related transactions (and regardless of the form of transaction) New Common
Stock representing more than 50% of the outstanding New Common Stock owned, in
the aggregate, by the Investors to a single party or group of related parties
(including, for purposes of calculating whether the 50% threshold has been
exceeded, any shares not so sold but subject to proxy, voting or other similar
agreements in favor of such party or group) (a "TAG-ALONG SALE"), the Investors
will only effect such Tag-Along Sale if such party or group agrees that, not
later than five business days following the completion of the Tag-Along Sale,
such party or group will make an offer to acquire at the same price per share
and otherwise for the same consideration paid to the Investors at least the same
proportion of the New Common Stock held by Public Stockholders as the Investors
sold of their position in the Tag-Along Sale; PROVIDED, HOWEVER, that in the
event that the Tag-Along Sale is consummated prior to the acquisition from the
Public Stockholders, the proceeds payable to the Public Stockholders in such
acquisition shall be placed in an escrow reasonably acceptable to the
Independent Directors at the time the Tag-Along Sale is consummated. Any third
party that proposes to purchase New Common Stock in a Tag-Along Sale will be
required to agree that the offer to the Public Stockholders shall be completed
within the minimum time period permitted by applicable law and shall not be
subject to any conditions other than the absence of an injunction (and, in which
case, shall use its commercially reasonable efforts to cause such injunction to
be lifted). In the event that the Investors are to receive securities in such
Tag-Along Sale, then the Public Stockholders shall be offered a security that is
economically equivalent to, and has all other rights and privileges as, the
security being issued to the Investors (except that the security offered to the
Public Stockholders shall not have any voting rights, except for those rights
that are required by applicable law); provided, that if the Independent
Directors determine that the securities to be offered to the Public Stockholders
are
14
economically equivalent to the security to be issued to the Investors, then such
security shall be conclusively presumed to be economically equivalent. In the
event that less than 100% of the New Common Stock held, in the aggregate, by the
Investors is not disposed of, the provisions of this Section 5.7(e) shall apply
until such time as 100% of the New Common Stock, held, in the aggregate, by the
Investors is disposed of. The foregoing Tag-Along Sale provisions shall also
apply to a transaction occurring from and after the date hereof but prior to the
Merger Effective Time in which the Investors transfer more than 50% of the
outstanding Series B Preferred Stock owned by them, in which case such party or
group will make an offer to acquire at least the same proportion of the Class A
Common Stock held by Public Stockholders as the Investors sold of their position
in the Series B Preferred Stock in such Tag-Along Sale and the "same price per
share" shall be determined by dividing the aggregate consideration to be paid in
respect of the Series B Preferred Stock so transferred by the total number of
shares of New Common Stock that would be issuable under this Agreement in
respect of the Series B Preferred Stock so transferred as of the date of such
transfer.
(f) For a period of 12 months following the Merger Effective Time,
Wyndham will not engage in any transaction with any Investor, its Controlled
Affiliates or any employee or general partner of any Investor or its affiliated
investment fund entities unless such transaction is on arms-length terms and, if
the total value of such transaction is greater than $1,000,000, prior approval
by a majority of the Independent Directors is received; PROVIDED, HOWEVER, that
the requirements set forth in this subsection (f) shall not apply to any
transaction of a type covered in any other provision of this Section 5.7 other
than a purchase of securities by any Investor, its Controlled Affiliates or any
employee or general partner of any Investor or its affiliated investment fund
entities from Wyndham.
(g) Each of the provisions of this Section 5.7 may be waived or
terminated with the approval of a majority of the Independent Directors or by a
vote of the holders of a majority of shares of New Common Stock not held by the
Investor Group.
5.8 TERMINATION OF EXISTING STANDSTILL AGREEMENTS. Effective
immediately prior to the Merger Effective Time, the provisions contained in
Sections 7.1, 7.2, 7.3, 7.5, 7.6 and 7.7 of the Securities Purchase Agreement
shall be deemed to be terminated and shall cease to have any further force or
effect. Wyndham hereby consents to, and waives any conflicting provisions of
Article VII of the Securities Purchase Agreement that may relate to, (i) the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby, including the request for resignations of the
Resigning Directors, the reconstitution of the Board of Directors effective at
the Merger Effective Time and the solicitation of proxies in connection
herewith, (ii) the execution and delivery of any voting agreements that may be
entered into between the Investors and the Class A or Class C directors pursuant
to which such directors agree to vote all Shares held by them in favor of the
adoption of this Agreement and the approval of the Merger and the other
transactions contemplated hereby and (iii) the Investors (as such term is
defined in the Securities Purchase Agreement) entering into voting agreements
with each other prior to the Merger Effective Time that become effective at the
Merger Effective Time.
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5.9 REGISTRATION RIGHTS. The Registration Rights Agreement, dated
as of June 30, 1999, is hereby amended to (i) provide that the shares of New
Common Stock to be issued to the holders of the Series B Preferred Stock in the
Recapitalization are included in the definition of "Registrable Securities"
under such agreement and (ii) delete the restriction on the number of demand
registrations that can be made by the Investors.
5.10 SHAREHOLDER RIGHTS PLAN. Effective immediately prior to the
Merger Effective Time, the Shareholder Rights Agreement, dated as of June 29,
1999, shall automatically and without any further action of any of the parties
hereto or of the Board of Directors of Wyndham, and without the payment of any
amounts to the holders of any Shares, terminate and shall cease to have any
further force or effect.
5.11 D&O INSURANCE; INDEMNIFICATION. For a period of six years
after the Merger Effective Time, Wyndham agrees that it shall maintain a
directors' and officers' liability insurance policy ("D&O INSURANCE") covering
those persons who, as of the date hereof or as of immediately prior to the
Merger Effective Time, are covered by Wyndham's D&O Insurance (the "INSURED
PARTIES") with respect to claims arising in whole or in part from facts or
events that actually or allegedly occurred at or before the Merger Effective
Time, including in connection with the approval of this Agreement and the
transactions contemplated hereby, on terms no less favorable to the Insured
Parties than those of Wyndham's present D&O Insurance; PROVIDED, HOWEVER, that
in no event shall Wyndham be required to expend annually more than 200% of the
annual premium currently paid by Wyndham for D&O Insurance (and if the cost for
such D&O Insurance is in excess of such amount, Wyndham shall be required only
to maintain such coverage as is available for such amount). In lieu of the
foregoing, Wyndham may, with the consent of the Investors, elect to obtain
prepaid policies prior to the Merger Effective Time, which policies shall
provide the Insured Parties with D&O Insurance of an equivalent amount and at
least as favorable terms as that provided by Wyndham's current D&O Insurance for
an aggregate period of at least six years with respect to claims arising in
whole or in part from facts or events that actually or allegedly occurred at or
before the Merger Effective Time, including in connection with the approval of
this Agreement and the transactions contemplated hereby; PROVIDED, HOWEVER, that
the aggregate premium for such prepaid policies shall not exceed six times 200%
of the annual premium currently paid by Wyndham for such D&O Insurance. In
addition, for a period of six years after the Merger Effective Time, Wyndham
agrees that it shall not amend or waive any provision of its Charter or By-Laws
relating to indemnification, advancement or exculpation rights in a manner which
would adversely affect those entitled to the benefits of such provisions (the
"COVERED PARTIES"). The covenants contained in this Section 5.11 are intended to
be for the benefit of, and shall be enforceable by, each of the Insured Parties
and the Covered Parties and their respective heirs and legal representatives and
shall not be deemed exclusive of any other rights to which an Insured Party or
Covered Party is entitled, whether pursuant to law, contract or otherwise. In
the event that Wyndham or any of its successors or assigns (i) consolidates with
or merges into any other person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or (ii) transfers or
conveys all or substantially all of its properties and assets to any person,
then, and in each such case, proper provision shall be made so
16
that the successors or assigns of Wyndham shall succeed to the obligations set
forth in this Section 5.11.
5.12 FURTHER ASSURANCES.
(a) Each of the parties hereto shall use all reasonable best
efforts to take, or cause to be taken, all appropriate action, do or cause to be
done all things necessary, proper or advisable under applicable law, including,
as promptly as practicable after the date hereof, make any necessary initial
filings and notifications, and thereafter make any other submissions either
required or deemed appropriate, under the HSR Act and to execute and deliver
such documents and other papers, as may be required to carry out the provisions
of this Agreement and to consummate and make effective the transactions
contemplated by this Agreement.
(b) Each of the parties hereto agrees to cooperate and use its
reasonable best efforts, and to assist and cooperate with the other parties, to
defend against, contest and resist any action, including administrative or
judicial action, and to have vacated, lifted, reversed or overturned any decree,
judgment, injunction or other order (whether temporary, preliminary or
permanent) that is in effect, that restricts, prevents or prohibits or seeks to
restrict, prevent or prohibit the consummation of any of the transactions
contemplated by this Agreement, including, without limitation, by pursuing all
reasonably available avenues of administrative and judicial appeal. In addition,
each of the parties shall assist and cooperate with the other parties with
respect to the approval and consummation of any settlement of any litigation
relating to this Agreement or the transactions contemplated hereby. Without
limiting the generality of the foregoing, in the event of any action seeking to
restrict, prevent or prohibit the consummation of any of the transaction,
neither Wyndham nor Newco settle or enter into any settlement agreement with
respect to such action without the prior approval of the Investors.
(c) Beacon will use its reasonable efforts to solicit the Beacon
Approval as promptly as practicable after the date hereof.
5.13 CERTAIN AFFILIATE MATTERS. To the extent not delivered to the
Investors at or prior to the execution of this Agreement, Wyndham shall, within
two business days after the date hereof, deliver to the Investors (i) the
resignations of each of the Resigning Directors effective immediately prior to
the Merger Effective Time and (ii) Affiliate Agreements executed by each of the
Resigning Directors.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 CONDITIONS TO EACH PARTY'S OBLIGATION. The respective
obligation of each party to effect the transactions contemplated by this
Agreement shall be subject to the satisfaction prior to the Closing of the
following conditions:
(a) REQUISITE STOCKHOLDER APPROVALS. The Requisite Stockholder
Approvals shall have been obtained.
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(b) REGISTRATION STATEMENT. The Registration Statement shall have
been declared effective by the SEC and shall be effective at the Merger
Effective Time, and no stop order suspending effectiveness shall have been
issued, no action, suit, proceeding or investigation by the SEC to suspend the
effectiveness thereof shall have been initiated and be continuing, and all
necessary approvals under state securities laws, the Securities Act of 1933, as
amended, or the Exchange Act related to the issuance or trading of the New
Common Stock shall have been received.
(c) NO INJUNCTIONS OR RESTRAINTS. No statute, rule, regulation,
executive order, decree, temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction or other
governmental entity or other legal restraint or prohibition preventing the
consummation of the Recapitalization, the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware or the Merger shall be in
effect; PROVIDED, HOWEVER, that each of the parties shall have used reasonable
efforts to prevent the entry of any such injunction or other order and to appeal
as promptly as possible any injunction or other order that may be entered.
(d) LISTING OF SHARES OF NEW COMMON STOCK. The shares of New
Common Stock to be issued in the Recapitalization shall have been approved for
listing on the Amex, subject only to official notice of issuance.
(e) HSR ACT. The waiting period under the HSR Act applicable to
the acquisition of shares of New Common Stock by the Investors in the
Recapitalization shall have expired or been terminated.
6.2 CONDITIONS TO THE WYNDHAM'S OBLIGATION. The obligation of
Wyndham to effect the Recapitalization shall be subject to the satisfaction at
or prior to the Closing Date of the following additional conditions:
(a) PERFORMANCE OF OBLIGATIONS. Each of the Investors shall have
performed in all material respects each of its agreements contained in this
Agreement required to be performed at or prior to the Closing Date.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties of each of the Investors contained in this Agreement shall be
true and correct on and as of the Closing Date as if made on and as of such date
(other than to the extent that any such representation and warranty, by its
terms, is expressly limited to a specific date, in which case such
representation and warranty shall be true and correct in all material respects
as of such date), except where the failure of such representations and
warranties to be true and correct (without giving effect to any materiality or
material adverse effect limitation) has not had and would not reasonably be
expected to have a material adverse effect on the Investors or the ability of
the Investors to perform their obligations hereunder or consummate the
transactions contemplated hereby.
6.3 CONDITIONS TO THE INVESTORS' OBLIGATION. The obligation of the
Investors to effect the Recapitalization shall be subject to the satisfaction at
or prior to the Closing Date of the following additional conditions:
18
(a) PERFORMANCE OF OBLIGATIONS. Each of Wyndham and Newco shall
have performed in all material respects each of its agreements contained in this
Agreement required to be performed at or prior to the Closing Date.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties of each of Wyndham and Newco contained in this Agreement shall be
true and correct on and as of the Closing Date as if made on and as of such date
(other than to the extent that any such representation and warranty, by its
terms, is expressly limited to a specific date, in which case such
representation and warranty shall be true and correct in all material respects
as of such date), except where the failure of such representations and
warranties to be true and correct (without giving effect to any materiality or
material adverse effect limitation) has not had and would not reasonably be
expected to have a material adverse effect on Wyndham and its subsidiaries,
taken as a whole, or the ability of Wyndham or Newco to perform their
obligations hereunder or consummate the transactions contemplated hereby.
ARTICLE VII
TERMINATION
7.1 BASES FOR TERMINATION. Anything contained herein to the
contrary notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing, whether before
or after shareholder approval hereof:
(a) by mutual written consent of Wyndham and Investors holding at
least two thirds of the outstanding shares of Series B Preferred Stock held by
the Investors collectively;
(b) by Wyndham if any of the conditions set forth in Section 6.1
or 6.2 shall have become incapable of fulfillment, and shall not have been
waived by Wyndham; provided, however, that in the case of the conditions set
forth in Section 6.2, the right to terminate under this Section 7.1(b) for any
breach of the Investors' agreements or representations and warranties shall only
apply if the breach is incapable of being cured or, if capable of being cured,
shall not have been cured within 30 days after written notice thereof shall have
been received by the Investors;
(c) by the Investors if any of the conditions set forth in Section
6.1 or 6.3 shall have become incapable of fulfillment, and shall not have been
waived by the Investors; provided, however, that in the case of the conditions
set forth in Section 6.3, the right to terminate under this Section 7.1(c) for
any breach of Wyndham's or Newco's agreements or representations and warranties
shall only apply if the breach is incapable of being cured or, if capable of
being cured, shall not have been cured within 30 days after written notice
thereof shall have been received by Wyndham;
(d) by Wyndham or the Investors if the Closing does not occur on
or prior to December 15, 2005; PROVIDED, HOWEVER, that the party seeking
termination pursuant to
19
clause (b), (c) or (d) is not in breach in any material respect of any of its
representations, warranties, covenants or agreements contained in this
Agreement; and
(e) by the Investors in the event that the Board of Directors of
Wyndham withdraws, modifies or amends in a manner adverse to the Investors the
recommendation made in contemplation of or pursuant to this Agreement.
7.2 NOTICE OF TERMINATION. In the event of termination by Wyndham
or the Investors pursuant to this Article VII, written notice thereof shall
forthwith be given to the other party or parties and the transactions
contemplated by this Agreement shall be terminated, without further action by
any party.
7.3 EFFECT OF TERMINATION. If this Agreement is terminated and the
transactions contemplated hereby are abandoned as described in this Article VII,
this Agreement shall become void and have no further force and effect; provided,
that, notwithstanding any such termination, Section 8.9 shall remain in effect
to the extent that any expenses covered thereby shall not theretofore have been
reimbursed by Wyndham. Nothing in this Article VII shall be deemed to release
any party from any liability for any breach by such party of the terms and
provisions of this Agreement or to impair the right of any party to compel
specific performance by another party of its obligations under this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, which together shall constitute one and the same Agreement. The
parties may execute more than one copy of the Agreement, each of which shall
constitute an original.
8.2 ENTIRE AGREEMENT. This Agreement (including the exhibits
attached hereto) constitutes the entire agreement among the parties and
supersedes all prior agreements, understandings, arrangements or representations
by or among the parties, written and oral, with respect to the subject matter
hereof.
8.3 THIRD PARTY BENEFICIARIES. Except as otherwise provided in
Section 5.11, nothing in this Agreement, express or implied, is intended or
shall be construed to create any third party beneficiaries.
8.4 GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by the laws of the State of Delaware, without giving effect to the conflict of
laws principles thereof. Each party irrevocably and unconditionally consents to
submit to the exclusive jurisdiction of the courts of the State of Delaware and
of the United States of America, in each case located in the State of Delaware,
for any action or proceeding arising out of or relating to this Agreement and
the transactions contemplated by this Agreement (and agrees not to commence any
action except in any such court). Each party irrevocably and unconditionally
waives any objection to the laying of venue of any action or proceeding in the
courts of the State of Delaware or of the United States of America, in each case
20
located in the State of Delaware, and further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any action or
proceeding brought in any such court has been brought in an inconvenient forum.
Each party irrevocably and unconditionally waives any right it may have to a
trial by jury in connection with any action or proceeding arising out of or
relating to this Agreement and the transactions contemplated by this Agreement.
8.5 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions and other equitable remedies to prevent breaches
of this Agreement and to enforce specifically the terms and provisions hereof,
this being in addition to any other remedy to which they are entitled at law or
in equity. Any requirements for the securing or posting of any bond with respect
to such remedy are hereby waived by each of the parties hereto.
8.6 AMENDMENT. This Agreement may not be altered, amended, waived
or supplemented except by an agreement in writing signed by each of the parties
hereto. This Agreement may be amended at any time prior to the Merger Effective
Time, whether before or after stockholder approval hereof; provided, however,
that any such amendment after stockholder approval hereof which by law requires
the further approval of stockholders shall not be made without such further
approval.
8.7 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by facsimile, by courier service or by registered or certified mail
(postage prepaid, return receipt, requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 8.7):
If to the Investors, to:
Apollo Investment Fund IV, L.P.
Apollo Real Estate Investment Fund IV, L.P.
AIF/THL PAH LLC
c/o Apollo Capital Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Press
Facsimile No.: (000) 000-0000
Beacon Capital Partners Voting Trust
c/o Beacon Capital Partners, L.P.
0 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
21
Facsimile No.: (000) 000-0000
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.
c/o Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xx., 00xx Xx.
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy, to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to Wyndham, to:
Wyndham International, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx and Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to Newco, to:
x/x Xxxxxxx Xxxxxxxxxxxxx, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
22
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx and Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
8.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
(whether by operation of law or otherwise) without the prior written consent of
the other parties; PROVIDED, HOWEVER, that, subject to Section 5.7(e), each of
the Investors shall have the right to transfer its right and interest under this
Agreement to any transferee of the Shares held by such Investor that agrees to
be bound hereunder to the same extent as the transferring Investor and such
transferring Investor shall cause such transferee to agree to be bound as if it
were an Investor. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. Any purported transfer in violation of
this Section 8.8 is null and void.
8.9 FEES AND EXPENSES. Except as otherwise provided in this
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated by this Agreement shall be the responsibility of
and shall be paid by the party incurring such fees or expenses, whether or not
the transactions contemplated by this Agreement are consummated; PROVIDED,
HOWEVER, that Wyndham shall pay any filing fees under the HSR Act; PROVIDED,
FURTHER, that reasonable out-of-pocket fees and expenses of the Investors
incurred in connection with the preparation and finalization of the registration
statement and proxy statement in connection with the Recapitalization shall be
reimbursed by Wyndham.
8.10 NO PUBLIC ANNOUNCEMENT. None of the parties hereto shall make
any press release, public announcement or filing with any governmental entity
concerning the transactions contemplated hereby, except as and to the extent
that any such party shall be obligated to make any such disclosure by this
Agreement, by law or by the Amex and then only after consultation with the other
regarding the basis of such obligation and the content of such press release,
public announcement or filing or as the parties shall mutually agree. The
parties agree that the initial press release to be issued with respect to the
transactions contemplated hereby shall be in the form heretofore agreed to by
the parties.
8.11 SPECIAL COMMITTEE. During the period from the date of this
Agreement until the Merger Effective Time or the earlier termination of this
Agreement, the approval of a majority of the members of the Special Committee
shall be required to authorize any termination of this Agreement by Wyndham, any
amendment or modification of this Agreement requiring action by Wyndham or the
Board of Directors of Wyndham, any consent of Wyndham or the Board of Directors
of Wyndham under the terms of this
23
Agreement, any extension of time for performance of any obligation or action
hereunder by the Investors and any waiver of compliance with any of the
agreements or conditions contained herein for the benefit of Wyndham, the Board
of Directors of Wyndham or any of Wyndham's stockholders.
24
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed by its officer thereunto duly authorized as of the date first
written above.
WYNDHAM INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
WI MERGER SUB, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
25
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: /s/ Xxxx Xxxxx
------------------------
Name: Xxxx Xxxxx
Title: Vice President
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: /s/ Xxx Xxxxxxx
------------------------
Name: Xxx Xxxxxxx
Title:
AIF/THL PAH LLC
By: Apollo Management IV, L.P.,
its manager
By: AIF IV Management, Inc.,
its general partner
By: /s/ Xxxx Xxxxx
------------------------
Name: Xxxx Xxxxx
Title: Vice President
26
BCP VOTING, INC., as Trustee for the Beacon
Capital Partners Voting Trust
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Managing Director and General
Counsel
27
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Advisors IV, LLC
By: /s/ Xxxxxx X. Xxx
--------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Advisors IV, LLC
By: /s/ Xxxxxx X. Xxx
--------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
XXXXXX X. XXX FOREIGN FUND IV-B., L.P.
By: THL Advisors IV, LLC
By: /s/ Xxxxxx X. Xxx
--------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
28
EXHIBIT A
RESTATED
CERTIFICATE OF INCORPORATION
OF
WYNDHAM INTERNATIONAL, INC.
I. NAME
The name of the corporation is Wyndham International, Inc.
(the "Corporation").
II. PURPOSES
The nature of business or purposes to be conducted or promoted
by the Corporation is to engage in any lawful act for which corporations may be
organized under the DGCL.
III. REGISTERED OFFICE
The address of the registered office of the Corporation in the
State of Delaware is 0000 Xxxxxx Xxxxxx, in the City of Wilmington, County of
New Castle. The name of its registered agent at such address is The Corporation
Trust Company.
IV. CAPITAL STOCK
The Corporation shall have the authority to issue a total of
3,000,000,000 shares of capital stock, consisting of 2,000,000,000 shares of
Common Stock, par value $0.01 per share (the "Common Stock"), and 1,000,000,000
shares of preferred stock, par value $0.0l per share (the "Preferred Stock").
The rights, preferences, voting powers and the qualifications, limitations and
restrictions of the authorized stock shall be as follows:
A. COMMON STOCK
1. VOTING RIGHTS. Each share of Common Stock shall be entitled to one vote
on all matters submitted to a vote at any meeting of stockholders.
2. DIVIDEND RIGHTS. Subject to the rights of holders of Preferred Stock
and subject to any other provisions of this Certificate or any
amendment hereto, holders of Common Stock shall be entitled to receive
such dividends and other distributions in cash, stock or property of
the Corporation as may be declared thereon by the Board of Directors
from time to time.
3. LIQUIDATION RIGHTS. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or other winding up of
the Corporation, after distribution in full of preferential amounts, if
any, to be distributed to the holders of shares of Preferred Stock or
any other class or series of stock having a preference as to
liquidating distributions over Common Stock,
the holders of Common Stock shall be entitled to share equally and
ratably, share for share, in all of the remaining assets of the
Corporation, of whatever kind available for distribution to
stockholders. A consolidation or merger of the Corporation with or into
any other corporation or corporations shall not be deemed to be a
liquidation, dissolution or winding-up of the Corporation as those
terms are used in this Section.
4. ACTION WITHOUT A MEETING. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at a duly
called annual or special meeting of the stockholders of the Corporation
or by the written consent of the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled
to vote thereon were presented and voted.
B. PREFERRED STOCK. The Preferred Stock may be issued from time to time in
one or more series, with such distinctive designations, rights, powers
and preferences as shall be stated and expressed herein or in the
resolution or resolutions providing for the issue of shares of a
particular series, and in such resolution or resolutions providing for
the issue of shares of such series, the Board of Directors, or any duly
authorized committee thereof, is expressly authorized to fix or
establish the basis for determining:
1. The annual or other periodic dividend rate for such series, the
dividend payment dates, the date from which dividends on all shares of
such series issued shall be cumulative, and the extent of participation
rights, if any;
2. The redemption price or prices, if any, for such series and other terms
and conditions on which such series may be retired and redeemed;
3. The obligation, if any, of the Corporation to purchase and retire or
redeem shares of such series as a sinking fund or otherwise, and the
terms and conditions of any such redemption;
4. The designation and number of shares of such series issuable;
5. The right to vote, if any, with holders of shares of any other class or
series, either generally or as a condition to specified corporate
action;
6. The amount payable upon shares in the event of involuntary liquidation;
7. The amount payable upon shares in the event of voluntary liquidation;
8. The rights, if any, of the holders of shares of such series to convert
such shares into other classes of stock of the Corporation, or to
exchange such shares for other securities or assets, and the terms and
conditions of any such conversion or exchange;
2
9. The preemptive or preferential right to purchase or subscribe to any
shares of any class or series of capital stock of the Corporation; and
10. Any other preferences and relative, participating, optional or other
special rights, and any qualifications, limitations or restrictions
thereof, of the shares of such series.
C. PREEMPTIVE RIGHTS. Other than as specifically authorized in the
certificate of designation establishing the terms of a series of
Preferred Stock or in an agreement approved by the Board of Directors,
holders of shares of any class or series of capital stock shall not be
entitled to any preemptive or preferential right to purchase or
subscribe to (i) any shares of any class or series of capital stock of
the Corporation, whether now or hereafter authorized, (ii) any
warrants, rights or options to purchase any such capital stock or (iii)
any obligations convertible into any such capital stock or into
warrants, rights or options to purchase any such capital stock.
D. AMBIGUITY. In the case of an ambiguity in the application of the
provisions of this Article IV, the Board of Directors shall have the
power to determine the application of the provisions of this Article IV
with respect to any situation based on the facts known to it.
E. SEVERABILITY. Each provision of this Article IV shall be severable and
an adverse determination as to any such provision shall in no way
affect the validity of any other provision.
V. DIRECTORS
A. GENERAL POWERS. Except as otherwise expressly provided in this
Certificate, the property, affairs and business of the Corporation
shall be managed under the direction of the Board of Directors and,
except as otherwise expressly provided by law, the Bylaws or this
Certificate, all of the powers of the Corporation shall be vested in
such Board.
B. NUMBER OF DIRECTORS. The number of members of the Board of Directors
shall be fixed from time to time by the Board of Directors.
C. VACANCIES; REMOVAL; TERM. Subject to the rights, if any, of the holders
of any class or series of stock to elect directors and to fill
vacancies in the Board of Directors relating thereto, any and all
vacancies in the Board of Directors, however occurring, including,
without limitation, by reason of an increase in the size of the Board
of Directors, or the death, resignation, disqualification or removal of
a director, shall be filled by the vote of a majority of all of the
remaining directors then in office. Any director elected in accordance
with the preceding sentence shall hold office until the next Annual
Meeting of Stockholders and until such director's successor is duly
elected and qualified or until such director's earlier death,
resignation or removal. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise
3
provided by law, may exercise the powers of the full Board of Directors
until such vacancy is filled. Each member of the Board of Directors may
be removed with or without cause. Each of the members of the Board of
Directors shall hold office for a term expiring at the next annual
meeting of stockholders of the Corporation or until or until his or her
successor is duly elected and qualified, subject to such director's
earlier death, resignation, disqualification or removal.
VI. LIMITATION OF LIABILITY
No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director or as such a member, except for liability (a) for any breach
of the director's duty of loyalty to the Corporation or its stockholders, (b)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (c) under Section 174 of the DGCL or (d) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is amended after the effective date of this Certificate to authorize
corporate action further eliminating or limiting the personal liability of
directors or the person or persons exercising or performing any of the powers or
duties otherwise conferred or imposed upon directors of the Corporation, then
the liability of the director of the Corporation or the person or persons
exercising or performing any of the powers or duties otherwise conferred or
imposed upon directors of the Corporation shall be eliminated or limited to the
fullest extent permitted by the DGCL, as so amended.
Any amendment or repeal of this Article VI by either (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL shall not
adversely affect any right or protection existing at the time of such amendment
or repeal with respect to any acts or omissions occurring before such amendment
or repeal of a person serving as a director at the time of such amendment or
repeal.
VII. INDEMNIFICATION
A. GENERAL RIGHT TO INDEMNIFICATION. The Corporation shall indemnify its
directors and officers to the fullest extent authorized or permitted by
law, as now or hereafter in effect, and such right to indemnification
shall continue as to a person who has ceased to be a director or
officer of the Corporation and shall inure to the benefit of his or her
heirs, executors and personal and legal representatives; provided,
however, that, except for proceedings to enforce rights to
indemnification, the Corporation shall not be obligated to indemnify
any director or officer (or his or her heirs, executors or personal or
legal representatives) in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part
thereof) was authorized or consented to by the Board of Directors. The
Corporation shall advance the expenses incurred by a person who is or
was a director or officer of the Corporation in defending or otherwise
participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the
advancement of expenses
4
to employees and agents of the Corporation similar to those conferred
in this Article VII to directors and officers of the Corporation. The
rights to indemnification and to the advance of expenses conferred in
this Article VII shall not be exclusive of any other right which any
person may have or hereafter acquire under this Certificate of
Incorporation, the Bylaws of the Corporation, any statute, agreement,
vote of stockholders or disinterested directors or otherwise.
B. AMENDMENT OR REPEAL. Any amendment or repeal of this Article VII by the
stockholders of the Corporation shall not adversely affect any rights
to indemnification and to the advancement of expenses of a director or
officer of the Corporation existing at the time of such amendment or
repeal with respect to any acts or omissions occurring prior to such
amendment or repeal.
VIII. AMENDMENT OF BYLAWS
A. AMENDMENT BY THE BOARD OF DIRECTORS. Except as otherwise provided by
law or this Certificate, the Bylaws of the Corporation may be amended
or repealed by the Board of Directors by the affirmative vote of a
majority of the directors then in office.
B. AMENDMENT BY THE STOCKHOLDERS. The Bylaws of the Corporation may be
amended or repealed at any annual meeting of stockholders, or special
meeting of stockholders called for such purpose, by the affirmative
vote of the majority of the shares present in person or represented by
proxy at such meeting and entitled to vote on such amendment or repeal,
voting together as a single class.
IX. AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation in
the manner now or hereafter prescribed in this Restated Certificate of
Incorporation, the Corporation's Bylaws or as otherwise provided by law, and all
rights herein conferred upon stockholders are granted subject to such
reservation.
5
EXHIBIT B
AMENDED AND RESTATED
BYLAWS
OF
WYNDHAM INTERNATIONAL, INC.
ARTICLE I
DEFINITIONS
For purposes of these Bylaws, the following words shall have the
meanings set forth below:
(a) "Certificate" shall mean the Restated Certificate of Incorporation
of the Corporation, as amended from time to time, including any Certificates of
Designation for any series of stock of the Corporation.
(b) "Corporation" shall mean Wyndham International, Inc.
(c) "DGCL" shall mean the Delaware General Corporation Law, as amended
from time to time.
(d) "Public Announcement" shall mean: (i) disclosure in a press
release reported by the Dow Xxxxx News Service, Associated Press or comparable
national news service, (ii) a report or other document filed publicly with the
Securities and Exchange Commission (including, without limitation, a Form 8-K)
or (iii) a letter or report sent to stockholders of record of the Corporation at
the time of the mailing of such letter or report.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACES OF MEETINGS. All meetings of the stockholders shall be
held at such place, either within or without the State of Delaware, as from time
to time may be fixed by the Board of Directors.
2.2 ANNUAL MEETINGS. The annual meeting of the stockholders, for
the election of directors and transaction of such other business as may come
properly before the meeting, shall be held at such date and time as shall be
determined by the Board of Directors.
2.3 SPECIAL MEETINGS. A special meeting of the stockholders for
any purpose or purposes may be called at any time only by the Chairman of the
Board, the Chief Executive Officer, a majority of the Board of Directors or by
the holders of a majority of the shares of the Corporation's common stock, par
value $0.01 per share. At a special meeting no business shall be transacted and
no corporate action shall be taken other than that stated in the notice of the
meeting.
2.4 NOTICE OF MEETINGS: ADJOURNMENTS. A written notice of each
annual meeting stating the hour, date and place of such annual meeting shall be
given by the Secretary or an Assistant Secretary of the Corporation (or other
person authorized by these Bylaws or by law) not less than 10 days nor more than
60 days before the annual meeting, to each stockholder entitled to vote thereat
and to each stockholder who, by law or under the Certificate or under these
Bylaws, is entitled to such notice, by delivering such notice to him or her or
by mailing it, postage prepaid, addressed to such stockholder at the address of
such stockholder as it appears on the stock transfer books of the Corporation.
Such notice shall be deemed to be delivered when hand delivered to such address
or deposited in the mail so addressed, with postage prepaid.
Notice of all special meetings of stockholders shall be given in the
same manner as provided for annual meetings, except that the written notice of
all special meetings shall state the purpose or purposes for which the meeting
has been called.
Notice of an annual meeting or special meeting of stockholders need not
be given to a stockholder if a written waiver of notice is signed before or
after such meeting by such stockholder or if such stockholder attends such
meeting, unless such attendance was for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any annual meeting or special meeting of stockholders need
be specified in any written waiver of notice.
The Board of Directors may postpone and reschedule any previously
scheduled annual meeting or special meeting of stockholders and any record date
with respect thereto, regardless of whether any notice or public disclosure with
respect to any such meeting has been sent or made pursuant to this Section 2.4
or otherwise. In no event shall the Public Announcement of an adjournment,
postponement or rescheduling of any previously scheduled meeting of stockholders
commence a new time period for the giving of a stockholder's notice under
Section 2.9 of these Bylaws.
When any meeting is convened, the presiding officer of the meeting may
adjourn the meeting if (a) no quorum is present for the transaction of business,
(b) the Board of Directors determines that adjournment is necessary or
appropriate to enable the stockholders to consider fully information that the
Board of Directors determines has not been made sufficiently or timely available
to stockholders or (c) the Board of Directors determines that adjournment is
otherwise in the best interests of the Corporation. When any annual meeting or
special meeting of stockholders is adjourned to another hour, date or place,
notice need not be given of the adjourned meeting, other than an announcement at
the meeting at which the adjournment is taken, of the hour, date and place to
which the meeting is adjourned; PROVIDED, HOWEVER, that if the adjournment is
for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote thereat and each stock holder who,
by law or under the Certificate or under these Bylaws, is entitled to such
notice.
2.5 QUORUM. Except as otherwise required by the Certificate, any
number of stockholders together holding at least a majority of the outstanding
shares of capital stock entitled to vote with respect to the business to be
transacted, who shall be present in person or
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represented by proxy at any meeting duly called, shall constitute a quorum for
the transaction of business. If less than a quorum shall be in attendance at the
time for which a meeting shall have been called, the meeting may be adjourned
from time to time by a majority of the stockholders present or represented by
proxy.
2.6 VOTING AND PROXIES. Unless otherwise provided in the
Certificate or by law, stockholders shall have one vote for each share of stock
entitled to vote owned by them of record according to the stock transfer books
of the Corporation. Stockholders may vote either in person or by written proxy,
but no proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. Proxies shall be filed with the
secretary of the meeting before being voted. Except as otherwise limited therein
or as otherwise provided by law, proxies shall entitle the persons authorized
thereby to vote at any adjournment of such meeting, but they shall not be valid
after final adjournment of such meeting. A proxy with respect to stock held in
the name of two or more persons shall be valid if executed by or on behalf of
any one of them unless at or prior to the exercise of the proxy the Corporation
receives a specific written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a stockholder shall be deemed
valid, and the burden of proving invalidity shall rest on the challenger.
2.7 ACTION AT MEETING. When a quorum is present, any matter before
any meeting of stockholders shall be decided by the affirmative vote of the
majority of shares present in person or represented by proxy at such meeting and
entitled to vote on such matter, except where a larger vote is required by law,
by applicable rule of any securities exchange, by the Certificate or by these
Bylaws. Any election of any director by stockholders shall be determined by a
plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of such director, except
where a larger vote is required by the Certificate or by these Bylaws. The
Corporation shall not directly or indirectly vote any shares of its own stock;
PROVIDED, HOWEVER, that the Corporation may vote shares which it holds in a
fiduciary capacity to the extent permitted by law.
2.8 STOCKHOLDER LIST. The officer or agent having charge of the
stock transfer books of the Corporation shall make, at least 10 days before
every annual meeting or special meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting or any adjournment thereof, in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
for the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least 10 days prior to the
meeting, (i) either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held or (ii) during ordinary
business hours, at the principal place of business of the Corporation.. The list
shall also be produced and kept at the hour, date and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
2.9 STOCKHOLDER PROPOSALS. No business may be transacted at an
annual meeting of stockholders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee thereof),
(b) otherwise properly brought before the annual meeting by or at
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the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual meeting by any
stockholder of the Corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 2.9 and on the record date
for the determination of stockholders entitled to vote at such annual meeting
and who is otherwise entitled to vote at the meeting and (ii) who complies with
the notice procedures set forth in this Section 2.9. In addition to any other
applicable requirements, for business to be properly brought before an annual
meeting by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation. A stockholder's
notice shall be timely if delivered to, or mailed to and received by, the
Corporation at its principal executive office not less than 75 days nor more
than 105 days prior to the anniversary date of the immediately preceding annual
meeting (the "Anniversary Date"); PROVIDED, however, that in the event the
annual meeting is scheduled to be held on a date that is not within 30 days
before or 60 days after the Anniversary Date, a stockholder's notice shall be
timely if delivered to, or mailed to and received by, the Corporation at its
principal executive office not later than the close of business on the 10th day
following the day on which Public Announcement of the date of such annual
meeting is first made by the Corporation.
A stockholder's notice to the Secretary of the Corporation shall set
forth as to each matter proposed to be brought before an annual meeting: (i) a
brief description of the business the stockholder desires to bring before such
annual meeting and the reasons for conducting such business at such annual
meeting, (ii) the name and address, as they appear on the stock transfer books
of the Corporation, of the stockholder proposing such business, (iii) the class
and number of shares of the capital stock of the Corporation beneficially owned
by the stockholder proposing such business, (iv) the names and addresses of the
beneficial owners, if any, of any capital stock of the Corporation registered in
such stockholder's name on such books, and the class and number of shares of the
capital stock of the Corporation beneficially owned by such beneficial owners,
(v) a description of all arrangements or understandings between such stockholder
and any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business, (vi) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting and (vii) any material interest of the stockholder
proposing to bring such business before such meeting (or any other stockholders
known to be supporting such proposal) in such proposal.
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 2.9 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 2.9 in any material respect, such proposal shall not be presented for
action at the annual meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the annual
meeting shall determine whether the stockholder proposal was made in accordance
with the terms of this Section 2.9. If the presiding officer determines that any
stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 2.9 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 2.9 in any material respect, such proposal shall not be presented for
action at the annual meeting in question. If the Board of Directors, a
designated committee thereof or the presiding officer determines that a
stockholder proposal was
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made in accordance with the requirements of this Section 2.9, the presiding
officer shall so declare at the annual meeting and ballots shall be provided for
use at the meeting with respect to such proposal.
Notwithstanding the foregoing provisions of this Section 2.9, a
stockholder shall also comply with all applicable requirements of the Exchange
Act, and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.9, and nothing in this Section 2.9 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
2.10 INSPECTORS OF ELECTIONS. The Corporation shall, in advance of
any meeting of stockholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Corporation may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of stockholders, the
presiding officer shall appoint one or more inspectors to act at the meeting.
Any inspector may, but need not, be an officer, employee or agent of the
Corporation. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall perform such duties as are required by the DGCL,
including the counting of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors. The presiding officer may review all
determinations made by the inspectors, and in so doing the presiding officer
shall be entitled to exercise his or her sole judgment and discretion and he or
she shall not be bound by any determinations made by the inspectors. All
determinations by the inspectors and, if applicable, the presiding officer,
shall be subject to further review by any court of competent jurisdiction.
2.11 PRESIDING OFFICER. The Chairman of the Board, if one is
elected, or if not elected or in his or her absence, the Chief Executive
Officer, shall preside at all annual meetings or special meetings of
stockholders and shall have the power, among other things, to adjourn such
meeting at any time and from time to time, subject to Sections 2.4 and 2.5 of
this Article II. The order of business and all other matters of procedure at any
meeting of the stockholders shall be determined by the presiding officer.
ARTICLE III
DIRECTORS
3.1 GENERAL POWERS. The property, affairs and business of the
Corporation shall be managed under the direction of the Board of Directors and,
except as otherwise expressly provided by law, the Certificate or these Bylaws,
all of the powers of the Corporation shall be vested in such Board.
3.2 NUMBER OF DIRECTORS. The number of directors of the
Corporation shall be fixed pursuant to the Certificate.
3.3 ELECTION AND REMOVAL OF DIRECTORS; QUORUM.
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(a) Directors shall be elected by a plurality of the votes cast at
each Annual Meeting of Stockholders and each director so elected shall hold
office until the next Annual Meeting of Stockholders and until such director's
successor is duly elected and qualified, or until such director's earlier death,
resignation or removal.
(b) Any and all vacancies in the Board of Directors, however
occurring, including, without limitation, by reason of an increase in the size
of the Board of Directors, or the death, resignation, disqualification or
removal of a director, shall be filled in the manner set forth in the
Certificate.
(c) Unless otherwise provided for by law or in the Certificate,
any director (including persons elected by directors to fill vacancies in the
Board of Directors) may be removed from office only by the affirmative vote of
the holders of at least a majority of the votes represented by the shares then
entitled to vote in the election of such director.
(d) At any meeting of the Board of Directors, a majority of the
number of directors then in office shall constitute a quorum for the transaction
of business. However, if less than a quorum is present at a meeting, a majority
of the directors present may adjourn the meeting from time to time, and the
meeting may be held as adjourned without further notice, except that when any
meeting of the Board of Directors, either regular of special, is adjourned for
30 days or more, notice of the adjourned meeting shall be give as in the case of
the original meeting.
3.4 MEETINGS OF DIRECTORS. Subject to the provisions of the
Certificate, meetings of the Board of Directors shall be held at places within
or without the State of Delaware and at times fixed by resolution of the Board
of Directors, or upon call of the Chairman of the Board or the Chief Executive
Officer and the Secretary of the Corporation or officer performing the
Secretary's duties shall give not less than 24 hours' notice by letter,
facsimile, telegraph or telephone (or in person) of all meetings of the Board of
Directors, provided that notice need not be given of the annual meeting or of
regular meetings held at times and places fixed by resolution of the Board of
Directors. Subject to the provisions of the Certificate, meetings may be held at
any time without notice if all of the directors are present, or if those not
present waive notice in writing either before or after the meeting; provided,
HOWEVER, that attendance at a meeting for the express purpose of objecting at
the beginning of a meeting to the transaction of any business because the
meeting is not lawfully convened shall not be considered a waiver of notice.
3.5 NOMINATIONS. Nominations of candidates for election as
directors of the Corporation at any annual meeting may be made by any holder of
record (both as of the time notice of such nomination is given by the
stockholder as set forth below and as of the record date for the annual meeting
in question) of any shares of the capital stock of the Corporation entitled to
vote at such annual meeting who complies with the timing, informational and
other requirements set forth in this Section 3.5.
Nominations, other than those made in the manner provided for in
Article V of the Certificate shall be made pursuant to timely notice in writing
to the Secretary of the Corporation as set forth in this Section 3.5. A
stockholder's notice shall be timely if delivered to, or mailed to
6
and received by, the Corporation at its principal executive offices of the
Corporation (a) in the case of an annual meeting, not less than 75 days nor more
than 105 days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; PROVIDED, HOWEVER, that in the event that the annual
meeting is called for a date that is not within 30 days before or 60 days after
such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the 10th day following the
day on which such notice of the date of the annual meeting was mailed or Public
Announcement of the date of the annual meeting was made, whichever first occurs;
and (b) in the case of a special meeting of stockholders called for the purpose
of electing directors, not later than the close of business on the 10th day
following the day on which such notice of the date of the special meeting was
mailed or Public Announcement of the date of the special meeting was made,
whichever first occurs.
A stockholder's notice to the Secretary of the Corporation shall set
forth as to each person whom the stockholder proposes to nominate for election
or re-election as a director: (1) the name, age, business address and residence
address of such person; (2) the principal occupation or employment of such
person; (3) the class and number of shares of the capital stock of the
Corporation which are beneficially owned by such person on the date of such
stockholder notice; and (4) any other information relating to the person that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. A stockholder's notice to the Secretary of the
Corporation shall further set forth as to the stockholder giving such notice:
(1) the name and address, as they appear on the stock transfer books of the
Corporation, of such stockholder and of the beneficial owners (if any) of the
capital stock of the Corporation registered in such stockholder's name and the
name and address of other stockholders known by such stockholder to be
supporting such nominee(s); (2) the class and number of shares of the capital
stock of the Corporation which are held of record, beneficially owned or
represented by proxy by such stockholder and by any other stockholders known by
such stockholder to be supporting such nominee(s) on the record date for the
annual meeting in question (if such date shall then have been made publicly
available) and on the date of such stockholder's notice; (3) a description of
all arrangements or understandings between such stockholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by such stockholder and (4) any
other information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a director if
elected.
If the Board of Directors or a designated committee thereof determines
that any stockholder nomination was not made in accordance with the terms of
this Section 3.5 or that the information provided in a stockholder's notice does
not satisfy the informational requirements of this Section 3.5 in any material
respect, then such nomination shall not be considered at the annual meeting in
question. If neither the Board of Directors nor such committee makes a
determination as to whether a nomination was made in accordance with the
provisions of this Section 3.5, the presiding officer of the annual meeting
shall determine whether a nomination was made in accordance with such
provisions. If the presiding officer determines that any
7
stockholder nomination was not made in accordance with the terms of this Section
3.5 or that the information provided in a stockholder's notice does not satisfy
the informational requirements of this Section 3.5 in any material respect, then
such nomination shall not be considered at the annual meeting in question. If
the Board of Directors, a designated committee thereof or the presiding officer
determines that a nomination was made in accordance with the terms of this
Section 3.5, the presiding officer shall so declare at the annual meeting and
ballots shall be provided for use at the meeting with respect to such nominee.
Notwithstanding anything to the contrary in the second paragraph of
this Section 3.5, in the event that the number of directors to be elected to the
Board of Directors is increased and there is no Public Announcement by the
Corporation naming all of the nominees for director or specifying the size of
the increased Board of Directors at least 90 days prior to the Anniversary Date,
a stockholder's notice required by this Section 3.5 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if such notice shall be delivered to, or mailed to and received by,
the Corporation at its principal executive office not later than the close of
business on the 10th day following the day on which such Public Announcement is
first made by the Corporation.
No person shall be elected by the stockholders as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 3.5. Election of directors at an annual meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such annual meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as directors at
the annual meeting in accordance with clause (a) of the first sentence of this
Section 3.5 or the procedures set forth in this Section 3.5 shall be provided
for use at the annual meeting.
3.6 VOTING.
(a) The action of the majority of the directors present at a
meeting at which a quorum is present shall be the action of the Board of
Directors, unless a larger vote is required for such action by the Certificate,
these Bylaws or by law.
(b) Any action required or permitted to be taken at any meeting of
the Board of Directors may be taken without a meeting if all members of the
Board of Directors consent thereto in writing. Such written consent shall be
filed with the records of the meetings of the Board of Directors and shall be
treated for all purposes as a vote at a meeting of the Board of Directors.
3.7 MANNER OF PARTICIPATION. Directors may participate in meetings
of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these Bylaws.
3.8 COMPENSATION. By resolution of the Board of Directors,
directors may be allowed a fee and expenses for attendance at all meetings, but
nothing herein shall preclude
8
directors from serving the Corporation in other capacities and receiving
compensation for such other services.
ARTICLE IV
COMMITTEES
In addition to such committees as may be established by the Certificate
and subject to the provisions of the Certificate, the Board of Directors may, by
resolution duly adopted, establish one or more standing or special committees of
the Board of Directors as it may deem advisable, and the members, terms and
authority of such committees shall be set forth in the resolutions establishing
the same.
ARTICLE V
OFFICERS
5.1 ELECTION OF OFFICERS; TERMS. Subject to the provisions of the
Certificate, the officers of the Corporation shall be elected by the Board of
Directors and shall include a Chief Executive Officer, a President, one or more
Vice Presidents, a Secretary and a Treasurer or a Chief Financial Officer. Other
officers, including Chairman of the Board, Executive Vice Presidents and Senior
Vice Presidents, may be elected by the Board of Directors, and assistant and
subordinate officers may from time to time be elected by the Board of Directors.
Subject to the provisions of the Certificate, all officers shall hold office
until the next annual meeting of the Board of Directors and until their
successors are duly elected and qualified or until such officers' earlier death,
resignation or removal. The Chairman of the Board shall be chosen from among the
directors. Any two officers may be combined in the same person as the Board of
Directors may determine.
5.2 REMOVAL OF OFFICERS; VACANCIES. Subject to the provisions of
the Certificate, any officer of the Corporation may be removed with or without
cause, at any time, by the Board of Directors. Vacancies shall be filled by the
Board of Directors.
5.3 DUTIES. The officers of the Corporation shall have such duties
as generally pertain to their offices, respectively, as well as such powers and
duties as are prescribed by law or are hereinafter provided or as from time to
time shall be conferred by the Board of Directors or as provided in the
Certificate. The Board of Directors may require any officer to give such bond
for the faithful performance of his or her other duties as the Board of
Directors may see fit.
5.4 DUTIES OF THE CHAIRMAN OF THE BOARD. The Chairman of the Board
of Directors, if there be one, shall preside at all meetings of the stockholders
and of the Board of Directors. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as from time to
time may be assigned to him or her by these Bylaws or by the Board of Directors.
5.5 DUTIES OF THE CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer of the Corporation shall be responsible for the execution of the
policies of the Board of Directors, shall serve as the Chairman of the Executive
Committee (if one is established) and
9
shall have direct supervision over the business of the Corporation and its
several officers, subject to the ultimate authority of the Board of Directors.
He or she shall be a director, and, except as otherwise provided in these Bylaws
or in the resolutions establishing such committees or as provided in the
Certificate, he or she shall be EX OFFICIO a member of all committees of the
Board of Directors. He or she may sign and execute in the name of the
Corporation share certificates, deeds, mortgages, bonds, contracts or other
instruments except in cases where the signing and the execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some other
officer or agent of the Corporation or shall be required by law otherwise to be
signed or executed. In addition, he or she shall perform all duties incident to
the office of the Chief Executive Officer and such other duties as from time to
time may be assigned to him or her by the Board of Directors.
5.6 DUTIES OF THE PRESIDENT. Unless the Board of Directors, by
resolution duly adopted, designates some other person to serve as the Chief
Operating Officer of the Corporation, the President shall serve as Chief
Operating Officer and shall have direct supervision over the business of the
Corporation and its several officers, subject to the authority of the Board of
Directors and the Chairman of the Board, and shall consult with and report to
the aforementioned officer. The President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts or other instruments, except
in cases where the signing and the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other officer or
agent of the Corporation or shall be required by law otherwise to be signed or
executed. In addition, he or she shall perform all duties incident to the office
of the President and such other duties as from time to time may be assigned to
him or her by the Board of Directors or the Chairman of the Board.
5.7 DUTIES OF THE VICE PRESIDENTS. Each Vice President, if any,
shall have such powers and duties as may from time to time be assigned to him or
her by the Chairman of the Board or the Board of Directors. When there shall be
more than one Vice President of the Corporation, the Board of Directors may from
time to time designate one of them to perform the duties of the President in the
absence of the President. Any Vice President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts or other instruments
authorized by the Board of Directors, except where the signing and execution of
such documents shall be expressly delegated by the Board of Directors or the
Chairman of the Board to some other officer or agent of the Corporation or shall
be required by law or otherwise to be signed or executed.
5.8 DUTIES OF THE TREASURER OR CHIEF FINANCIAL OFFICER. The
Treasurer or Chief Financial Officer shall have charge and custody of and be
responsible for all funds and securities of the Corporation, and shall cause all
such funds and securities to be deposited in such banks and depositories as
shall be designated by the Board of Directors. He or she shall be responsible
(i) for maintaining adequate financial accounts and records in accordance with
generally accepted accounting practices, (ii) for the preparation of appropriate
operating budgets and financial statements, (iii) for the preparation and filing
of all tax returns required by law and (iv) for the performance of all duties
incident to the office of Treasurer of Chief Financial Officer and such other
duties as from time to time may be assigned to him or her by the Board of
Directors, the Audit Committee or the Chairman of the Board. The Treasurer or
Chief Financial Officer may sign and execute in the name of the Corporation
share certificates,
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deeds, mortgages, bonds, contracts or other instruments, except where the
signing and execution of such documents shall be expressly delegated by the
Board of Directors or the Chairman of the Board to some other officer or agent
of the Corporation or shall be required by law or otherwise to be signed or
executed.
5.9 DUTIES OF THE SECRETARY. The Secretary shall act as secretary
of all meetings of the Board of Directors, all committees of the Board of
Directors and stockholders of the Corporation. He or she shall (i) keep and
preserve the minutes of all such meetings in permanent books, (ii) ensure that
all notices required to be given by the Corporation are duly given and served,
(iii) have custody of the seal of the Corporation and shall affix the seal or
cause it to be affixed to all share certificates of the Corporation and to all
documents the execution of which on behalf of the Corporation under its
corporate seal is duly authorized in accordance with law or the provisions of
these Bylaws, (iv) have custody of all deeds, leases, contracts and other
important corporate documents, (v) have charge of the books, records and papers
of the Corporation relating to its organization and management as a Corporation,
(vi) see that all reports, statements and other documents required by law
(except tax returns) are properly filed and (vii) in general, perform all duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him or her by the Board of Directors or the Chairman of the
Board.
ARTICLE VI
CAPITAL STOCK
6.1 CERTIFICATES. Each stockholder shall be entitled to a
certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall be
signed by the Chairman of the Board; the President or a Vice President and by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. The Corporation seal and the signatures by the Corporation's
officers, the transfer agent or the registrar may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed on such certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, the certificate
may be issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the time of its issue. Every certificate
for shares of stock which are subject to a restriction on transfer and every
certificate issued when the Corporation is authorized to issue more than one
class or series of stock shall contain such legend with respect thereto as is
required by law.
6.2 LOST, DESTROYED AND MUTILATED CERTIFICATES. Holders of the
shares of the Corporation shall immediately notify the Corporation of any loss,
destruction or mutilation of the certificate therefor, and the Board of
Directors may in its discretion cause one or more new certificates for the same
number of shares in the aggregate to be issued to such stockholder upon the
surrender of the mutilated certificate or upon satisfactory proof of such loss
or destruction, and the deposit of a bond in such form and amount and with such
surety as the Board of Directors may require.
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6.3 TRANSFER OF STOCK. The stock of the Corporation shall be
transferable or assignable only on the stock transfer books of the Corporation
by the holder in person or by attorney on surrender of the certificate for such
shares duly endorsed and, if sought to be transferred by attorney, accompanied
by a written power of attorney to have the same transferred on the stock
transfer books of the Corporation. The Corporation will recognize, however, the
exclusive right of the person registered on its stock transfer books as the
owner of shares to receive dividends and to vote as such owner.
6.4 FIXING RECORD DATE.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of the stockholders
or any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
the stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a meeting of the
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than ten (10)
days after the date upon which the resolution fixing the record date is adopted
by the Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of the
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action.
ARTICLE VII
INDEMNIFICATION
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7.1 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDING OTHER THAN
THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 7.3 of this
Article VII, the Corporation shall indemnify to the fullest extent authorized or
permitted by law, as now or hereafter in effect, any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director or officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding.
7.2 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDING BY OR IN
THE RIGHT OF THE CORPORATION. Subject to Section 7.3 of this Article VII, the
Corporation shall indemnify to the fullest extent authorized or permitted by
law, as now or hereafter in effect, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit; except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall deter mine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem proper.
7.3 AUTHORIZATION OF INDEMNIFICATION. Any indemnification under
this Article VII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Section 145 of the DGCL. Such determination shall be made (i) by a majority vote
of the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (ii) by a committee of such directors designated
by a majority vote of such directors, even though less than a quorum, or (iii)
if there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion or (iv) by the stockholders.. To the extent,
however, that a director or officer of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith, without the necessity of
authorization in the specific case.
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7.4 INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 7.3 of this Article VII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to the Court of Chancery of the State of Delaware or any other
court of competent jurisdiction in the State of Delaware for indemnification to
the extent otherwise permissible under Sections 7.1 and 7.2 of this Article VII.
The basis of such indemnification by a court shall be a determination by such
court that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standards of conduct
set forth in Section 145 of the DGCL. Neither a contrary determination in the
specific case under Section 7.3 of this Article VII nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification
pursuant to this Section 7.4 shall be given to the Corporation promptly upon the
filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
7.5 EXPENSES PAYABLE IN ADVANCE. The Corporation shall advance all
expenses incurred by a director or officer in defending or investigating a
threatened or pending action, suit or proceeding within 10 days after the
receipt by the Corporation of a written statement from such director or officer
requesting such advance or advances from time to time, whether prior to or after
final disposition of such action, suit or proceeding. Such statement or
statements shall reasonably evidence the expenses incurred by such director or
officer and shall be preceded or accompanied by an undertaking by or on behalf
of such director or officer to repay any expenses so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the Corporation as authorized in this Article VII against such
expenses.
7.6 NON-EXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by or granted
pursuant to this Article VII shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under the Certificate of Incorporation or any Bylaw, agreement,
contract, vote of stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Section 7.1 and 7.2
of this Article VII shall be made to the fullest extent permitted by law. The
provisions of this Article VII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 7.1 or 7.2 of this
Article VII but whom the Corporation has the power or obligation to indemnify
under the provisions of the DGCL, or otherwise.
7.7 INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation serving at the request of
the Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not
14
the Corporation would have the power or the obligation to indemnify such person
against such liability under the provisions of this Article VII.
7.8 CERTAIN DEFINITIONS. For purposes of this Article VII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions of this
Article VII with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VII, references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director or
officer with respect to an employee benefit plan, its participants or
beneficiaries.
7.9 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VII shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
7.10 LIMITATIONS OF INDEMNIFICATION. Notwithstanding anything
contained in this Article VII to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 7.4 hereof), the
Corporation shall not be obligated to indemnify any director or officer (or his
or her heirs, executors or personal or legal representatives) or advance
expenses in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
7.11 INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may,
to the extent authorized from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of expenses to employees and
agents of the Corporation similar to those conferred in this Article VII on
directors and officers of the Corporation.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 SEAL. The seal of the Corporation shall consist of a
flat-faced circular die, of which there may be any number of counterparts, on
which there shall be engraved the word "Seal" and the name of the Corporation.
8.2 FISCAL YEAR. The fiscal year of the Corporation shall end on
such date and shall consist of such accounting periods as may be fixed by the
Board of Directors.
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8.3 CHECKS, NOTES AND DRAFTS. Checks, notes, drafts and other
orders for the payment of money shall be signed by such persons as the Board of
Directors from time to time may authorize. When the Board of Directors so
authorizes, however, the signature of any such person may be a facsimile.
8.4 AMENDMENT OF BYLAWS.
(a) AMENDMENT BY DIRECTORS. Except as provided otherwise
by law or the Certificate, these Bylaws may be amended or repealed by the Board
of Directors by the affirmative vote of a majority of the directors then in
office.
(b) AMENDMENT BY STOCKHOLDERS. These Bylaws may be
amended or repealed at any annual meeting of stockholders, or special meeting of
stockholders called for such purpose, by the affirmative vote of a majority of
the shares present in person or represented by proxy at such meeting and
entitled to vote on such amendment or repeal, voting together as a single class.
8.5 VOTING OF STOCK HELD. Unless otherwise provided by resolution
of the Board of Directors or of the Executive Committee, if any, the Chief
Executive Officer may from time to time appoint an attorney or attorneys or
agent or agents of the corporation, in the name and on behalf of the
Corporation, to cast the vote that the Corporation may be entitled to cast as a
stockholder or otherwise in any other corporation, any of whose securities may
be held by the Corporation, at meetings of the holders of the shares or other
securities of such other corporation, or to consent in writing to any action by
any such other corporation; and the Chief Executive Officer shall instruct the
person or persons so appointed as to the manner of casting such votes or giving
such consent and may execute or cause to be executed on behalf of the
Corporation, and under its corporate seal or otherwise, such written proxies,
consents, waivers or other instruments as may be necessary or proper in the
premises. In lieu of such appointment, the Chief Executive Officer may himself
or herself attend any meetings of the holders of shares or other securities of
any such other corporation and there vote or exercise any or all power of the
Corporation as the holder of such shares or other securities of such other
corporation.
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EXHIBIT C
FORM OF AFFILIATE AGREEMENT
Wyndham International, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
The undersigned has been advised that as of the date of this
letter [s]he may be deemed to be an "affiliate" of Wyndham International, Inc.,
a Delaware corporation (the "COMPANY"), as the term "affiliate" is defined for
purposes of paragraphs (c) and (d) of Rule 145 of the rules and regulations (the
"RULES AND REGULATIONS") of the Securities and Exchange Commission (the
"COMMISSION") under the Securities Act of 1933, as amended (the "ACT"). Pursuant
to the terms of the Recapitalization and Merger Agreement (the "RECAPITALIZATION
AGREEMENT"), dated as of April 14, 2005, by and among the Company, WI Merger
Sub, Inc., a wholly-owned subsidiary of the Company ("NEWCO"), Apollo Investment
Fund IV, L.P., Apollo Real Estate Investment Fund IV, L.P., AIF/THL PAH LLC,
Beacon Capital Partners Voting Trust, Xxxxxx X. Xxx Equity Fund IV, L.P., Xxxxxx
X. Xxx Foreign Fund IV, L.P. and Xxxxxx X. Xxx Foreign Fund IV-B, L.P., Newco
will be merged with and into the Company (the "MERGER").
As a result of the Merger, the undersigned will receive shares
of common stock, par value $0.01 per share, of the Company (the "NEW COMMON
STOCK"), in exchange for all shares of capital stock of the Company owned by the
undersigned immediately prior to the effective time of the Merger.
The undersigned hereby represents and warrants to, and
covenants with, the Company that in the event that it receives any New Common
Stock as a result of the Merger:
A. The undersigned shall not make any sale, transfer or other
disposition of the New Common Stock in violation of the Act or the Rules and
Regulations.
B. The undersigned has carefully read this letter and the
Recapitalization Agreement and discussed the requirements of these documents and
other applicable limitations upon the undersigned's ability to sell, transfer or
otherwise dispose of the New Common Stock, to the extent the undersigned deemed
necessary, with his or her counsel or counsel for the Company.
C. The undersigned has been advised that any issuance of New
Common Stock to him or her pursuant to the Merger will be registered with the
Commission under the Act on a registration statement on Form S-4. However, the
undersigned has also been advised that, since at the time the Merger will be
submitted for a vote of the stockholders of the Company, (1) the undersigned may
be deemed to be an affiliate of the Company and (2) the undersigned may not
sell, transfer or otherwise dispose of any New Common Stock issued to it in the
Merger unless (a) such sale, transfer or other disposition is registered under
the Act, (b) such sale, transfer or
other disposition is made in conformity with Rule 145 (as that rule may be
hereafter amended) promulgated by the Commission under the Act, or (c) the
Company receives either an opinion of counsel reasonably acceptable to the
Company, or a "no action" letter obtained by the undersigned from the staff of
the Commission, to the effect that such sale, transfer or other disposition is
otherwise exempt from registration under the Act.
D. The undersigned also understands that the Company is under
no obligation to register the sale, transfer or other disposition of the shares
of New Common Stock by the undersigned or on his or her behalf under the Act or
to take any other action necessary in order to comply with any available
exemption from the registration requirements of the Act. The undersigned also
understands that stop transfer instructions will be given to the Company's
transfer agent with respect to the New Common Stock and that there will be
placed on the certificates for the New Common Stock issued to the undersigned,
or any substitutions therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), APPLIES, AND MAY ONLY BE
SOLD OR OTHERWISE TRANSFERRED IN COMPLIANCE WITH THE
REQUIREMENTS OF RULE 145 OR PURSUANT TO A REGISTRATION STATEMENT
UNDER THAT ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT."
F. The undersigned also understands that unless the transfer
by it of New Common Stock has been registered under the Act or is a sale made in
conformity with the provisions of Rule 145, the Company reserves the right to
place the following legend on the certificates issued to the undersigned's
transferee:
"THE SALE OF THE SHARES REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND SUCH SHARES WERE ACQUIRED FROM A PERSON WHO
RECEIVED THESE SHARES IN A TRANSACTION TO WHICH RULE 145
PROMULGATED UNDER THE ACT APPLIES. THE SHARES HAVE BEEN ACQUIRED
BY THE HOLDER NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION
WITH, ANY DISTRIBUTION THEREOF WITHIN THE MEANING OF THE ACT,
AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO A REGISTRATION STATEMENT UNDER THAT ACT OR IN
ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE ACT."
G. Execution of this letter shall not be considered an
admission on the part of the undersigned that he or she is an "affiliate" of the
Company as described in the first paragraph of this letter, nor as a waiver of
any rights the undersigned may have to object to any claim that he or she is
such an affiliation or after the date of this letter.
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It is understood and agreed that the legends set forth in
paragraphs D and E above shall be removed by delivery of substitute certificates
without any legend if either of these legends are not required for purposes of
the Act or this letter. It is understood and agreed that these legends and the
stop transfer orders referred to above will be removed if (i) evidence or
representations satisfactory to the Company that the New Common Stock
represented by the certificates are being or have been sold in a transaction
made in conformity with the provisions of Rule 145(d) (as that rule may be
hereafter amended), (ii) one year shall have elapsed from the date the
undersigned acquired the New Common Stock in the Merger and the provisions of
Rule 145(d)(2) are then available to the undersigned, (iii) two years shall have
elapsed from the date the undersigned acquired the New Common Stock in the
Merger and the provisions of Rule 145(d)(3) are then available to the
undersigned, or (iv) the Company has received either an opinion of counsel
reasonably acceptable to the Company or a "no action" letter obtained by the
undersigned from the staff of the Commission, to the effect that the
restrictions imposed by Rule 145 under the Act no longer apply to the
undersigned.
_______________________________
Name:
Accepted this ___ day of
April, 2005 by
WYNDHAM INTERNATIONAL, INC.
By: _________________________
Name:
Title:
3
