EXHIBIT 10.41
PUT AND CALL AGREEMENT
PUT AND CALL AGREEMENT
THIS AGREEMENT, dated as of May 24, 2000, is by and between RHD CAPITAL
VENTURES LLC, a Delaware limited liability company having an office at 300
Willowbrook Office Park, Fairport, New York 14450, Attention: Richard Sands,
Manager, Telefax Number (716) 218-2160 (together with its successors and
assigns, the "Warrantholder") and HUDSON HOTELS CORPORATION, a New York
corporation, with an address of 300 Bausch & Lomb Place, Rochester, New York
14604, Attention: E. Anthony Wilson, Chairman, Telefax Number: (716) 454-1865
(the "Issuer").
R E C I T A L S:
- - - - - - - -
WHEREAS, on May 2, 2000, the Issuer authorized the issuance by the
Issuer to the Warrantholder of a certain Agreement and Warrant to Purchase
5,000,000 Common Shares (the "Warrant"), exercisable by the Warrantholder on or
before May 24, 2005 at a purchase price of $1.00 per share; and
WHEREAS, as provided in the Warrant, the consideration for the grant of
the Warrant is the payment of $1,000,000 (the "Issue Price") to the Issuer by
the Warrantholder, of which $250,000 shall be paid in cash and the balance shall
be paid by the execution and delivery by the Warrantholder to the Issuer of the
Warrantholder's promissory note in the face amount of $750,000 (the "Promissory
Note"); and
WHEREAS, as a condition to purchasing the Warrant from the Issuer, the
Warrantholder requires the Issuer to enter into this Agreement with the
Warrantholder providing for (a) an option exercisable by the Issuer to purchase
the Warrant from the Warrantholder and (b) an option exercisable by the
Warrantholder to require the Issuer to purchase the Warrant from the
Warrantholder, on the terms and conditions set forth in this Agreement; and
WHEREAS, the Issuer is willing to enter into this Agreement with the
Warrantholder on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Issuer and the Warrantholder do hereby agree as follows:
1. PUT AND CALL OF WARRANT
(a) UPON PAYMENT OF ALL INDEBTEDNESS.
---------------------------------
Upon the date of payment in full (the "Payment Date") of all
indebtedness of the Issuer and Hudson Hotels Properties Corp. ("HHPC") to the
Warrantholder (excluding the indebtedness of the Issuer to the Warrantholder
under this Agreement) and for a period of thirty (30) days thereafter:
(i) The Issuer shall have the option to purchase the
Warrant for the "Warrant Purchase Price" (as
determined and calculated pursuant to Section 1(c)
hereof; and
(ii) The Warrantholder shall have the option to require
the Issuer to purchase the Warrant for the Warrant
Purchase Price.
The option of the Issuer under Section 1(a)(i) hereof and the option of the
Warrantholder under Section 1(a)(ii) hereof shall each be exercised by written
notice to the other party given within thirty (30) days after the Payment
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Date. In the event that the Issuer or the Warrantholder exercises its respective
option under this Section 1(a), the closing of the purchase of the Warrant shall
occur within ten (10) days after the date of exercise by the Issuer or the
Warrantholder of its respective option under this Section 1(a); and the Warrant
Purchase Price shall become immediately due and payable upon the earlier of (y)
the date of closing of the purchase of the Warrant or (z) the date ten days
after the date of exercise by the Issuer or the Warrantholder of its respective
option under this Section 1(a).
(b) UPON EVENT OF DEFAULT.
Upon the occurrence of any "Event of Default" (as such term is
defined in any document or instrument evidencing or securing any indebtedness of
the Issuer or HHPC to the Warrantholder), the Warrantholder shall have the
option to require the Issuer to purchase the Warrant for the Warrant Purchase
Price. The option of the Warrantholder under this Section 1(b) shall be
exercised by written notice to the Issuer given within thirty (30) days after
the date of the occurrence of any Event of Default. In the event that the
Warrantholder exercises its option under this Section 1(b), the closing of the
purchase of the Warrant shall occur within ten (10) days after the date of
exercise by the Warrantholder of its option under this Section 1(b); and the
Warrant Purchase Price shall become immediately due and payable upon the earlier
of (y) the date of closing of the purchase of the Warrant and (z) the date ten
days after the date of exercise by the Warrantholder of its option under this
Section 1(b).
(c) WARRANT PURCHASE PRICE.
(i) DEFINITIONS. For purposes of this Section
1(c), the following expressions shall have
the following meanings:
"S1" means the amount set forth on Schedule
1 attached hereto for the whole number of
months from May 24, 2000 to the Trigger
Date, for the exercise by the Issuer or the
Warrantholder of its respective option under
Section 1(a), or the exercise by the
Warrantholder of its option under Section
1(b), as applicable.
"TD" means the aggregate outstanding
indebtedness of the Issuer to the
Warrantholder (excluding the Indebtedness of
the Issuer to the Warrantholder under this
Agreement) on the Trigger Date.
"AMP" means the average market price of
shares of common stock of the Issuer for the
calendar quarter immediately preceding the
Trigger Date.
"n" is equal to the whole number of months
from May 24, 2000 to the Trigger Date.
"Trigger Date" means the date of the event
which triggers the determination and
calculation of the Warrant Purchase Price,
which date shall be (A) the Payment Date or
(B) the date of the occurrence of an Event
of Default, as the case may be.
"TSP" means the product of 2.73 and (1.01)n.
(ii) DETERMINATION OF WARRANT PURCHASE PRICE. For
purposes of this Agreement, the Warrant
Purchase Price for each share of common
stock of the Issuer, with respect to which
the Warrant shall not have been exercised as
of the date of determination, shall be
determined and calculated as follows:
(A) if AMP is less than TSP, then the
Warrant Purchase Price shall equal (.2
times (TSP minus AMP)) plus ((S1 minus
TD) divided by 5,000,000); and
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(B) if AMP is greater than or equal to TSP,
then the Warrant Purchase Price shall
equal (S1 minus TD) divided by
5,000,000.
In determining and calculating the Warrant
Purchase Price pursuant to this Section
1(c)(ii), if S1 is less than TD on the date
of determination, then (S1 minus TD) shall
be deemed to equal zero.
2. NOTICES. All notices required or permitted hereunder shall be given
in writing and shall be effective for all purposes if hand delivered or sent by
(a) hand delivery, with proof of attempted delivery, (b) certified or registered
United States mail, postage prepaid; (c) expedited prepaid delivery service,
either commercial or United States Postal Service, with proof of attempted
delivery, or (d) by telecopier (with answerback acknowledged) provided that such
telecopied notice must also be delivered by one of the means set forth in (a),
(b) or (c) above, addressed if to Warrantholder at its address set forth on the
first page hereof, and if to Issuer at its designated address set forth on the
first page hereof with a copy to Alan Lockwood, Esquire, Boylan, Brown, Code,
Vigdor & Wilson LLP, 2400 Chase Square, Rochester, New York 14604, Telecopier
Number: (716) 232-3528, or at such other address and person as shall be
designated from time to time by any party hereto, as the case may be, in a
written notice to the other parties hereto in the manner provided for in this
Section. A copy of all notices directed to Warrantholder shall be delivered
concurrently to James E. Locke, Esq., Nixon Peabody LLP, Clinton Square,
Rochester, New York 14603, Telecopier Number: (716) 263-1600. A notice shall be
deemed to have been given: (a) in the case of hand delivery, at the time of
delivery; (b) in the case of registered or certified mail, when delivered or the
first attempted delivery on a business day; (c) in the case of expedited prepaid
delivery, upon the first attempted delivery on a business day; or (d) in the
case of telecopier, upon receipt of answerback confirmation, provided that such
telecopied notice was also delivered as required in this Section. A party
receiving a notice which does not comply with the technical requirements for
notice under this Section may elect to waive any deficiencies and treat the
notice as having been properly given.
3. WAIVER OF TRIAL BY JURY. ISSUER AND WARRANTHOLDER, TO THE FULLEST
EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BROUGHT BY EITHER PARTY HERETO WITH RESPECT TO THIS AGREEMENT.
4. SEVERABILITY. If any clause or provision of this Agreement is
determined to be illegal, invalid or unenforceable under any present or future
law by the final judgment of a court of competent jurisdiction, the remainder of
this Agreement will not be affected thereby. It is the intention of the parties
that, if any such provision is held to be invalid, illegal or unenforceable,
there will be added in lieu thereof a provision as similar in terms to such
provision as is possible, and that such added provision will be legal, valid and
enforceable.
5. HEADINGS. All headings contained in this Agreement are for reference
purposes only and are not intended to affect in any way the meaning or
interpretation of this Agreement.
6. GOVERNING LAW. This Agreement shall be construed, interpreted,
enforced and governed by and in accordance with the internal laws of the State
of New York, without regard to principles of conflicts of laws.
7. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be deemed to be an original document, but all of
which will constitute a single document.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered effective as of the date and year first above written.
WARRANTHOLDER:
RHD CAPITAL VENTURES LLC,
a Delaware limited liability company
By
----------------------------------
Name: Richard Sands
Title: Manager
ISSUER:
HUDSON HOTELS CORPORATION, a New York
corporation
By
----------------------------------
Name: E. Anthony Wilson
Title: Chairman and CEO
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SCHEDULE 1
($ IN MILLIONS)
WHOLE NUMBER S1 S1
OF MONTHS FOR OPTION FOR OPTION
FROM 5/24/2000 UNDER UNDER
TO TRIGGER DATE SECTION 1(A) SECTION 1(B)
1 $26.145938 $37.700000
2 $26.226276 $37.700000
3 $26.311700 $37.700000
4 $26.402349 $37.700000
5 $26.498364 $37.700000
6 $26.599892 $37.700000
7 $26.707086 $37.700000
8 $26.820104 $37.700000
9 $26.939109 $37.700000
10 $27.064273 $37.700000
11 $27.018989 $37.700000
12 $26.977115 $37.700000
13 $26.938748 $37.700000
14 $26.903990 $37.700000
15 $26.872946 $37.700000
16 $26.845726 $37.700000
17 $26.822445 $37.700000
18 $26.803224 $37.700000
19 $26.788186 $37.700000
20 $26.777461 $37.700000
21 $26.771186 $37.700000
22 $26.769501 $37.700000
23 $26.772553 $37.700000
24 $26.878185 $37.700000
25 $26.999375 $37.700000
26 $27.136746 $37.700000
27 $27.290956 $37.700000
28 $27.462704 $37.700000
29 $27.652730 $37.700000
30 $27.861820 $37.700000
31 $28.090805 $37.700000
32 $28.340566 $37.700000
33 $28.612037 $37.700000
34 $28.906206 $37.700000
35 $29.224122 $37.991358
36 $29.566892 $38.436960
37 $29.935693 $38.916401
38 $30.331769 $39.431299
39 $30.756438 $39.983370
40 $31.211098 $40.574428
41 $31.697229 $41.206397
42 $32.216396 $41.881315
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43 $32.770263 $42.601342
44 $33.360588 $43.368765
45 $33.989237 $44.186008
46 $34.658186 $45.055642
47 $35.369532 $45.980391
48 $36.125494 $46.963142
49 $36.928427 $48.006956
50 $37.780830 $49.115080
51 $38.685351 $50.290956
52 $39.644798 $51.538238
53 $40.662153 $52.860798
54 $41.740576 $54.262749
55 $42.883425 $55.748452
56 $44.094260 $57.322538
57 $45.376864 $58.989923
58 $46.735251 $60.755827
59 $48.715050 $63.329565
60 $50.694849 $65.903303
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