Exhibit 10.49
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Stock Purchase Agreement") is made and
entered as of this 24th day of April, 1996, by and between PROMUS HOTELS, INC.
("Promus"), a Delaware corporation, and WINSTON HOTELS, INC. (the "Company"), a
North Carolina corporation.
RECITALS
WHEREAS, Promus owns, operates and franchises hotels under, among others,
the trademark and service mark "Homewood Suites."
WHEREAS, as of the date hereof, the Company and Promus executed (A)
purchase agreements ("Purchase Agreements") providing for the acquisition by
WINN Limited Partnership, a North Carolina limited partnership (the
"Partnership"), of (i) a Homewood Suites hotel located in Houston, Texas (the
"Developed Hotel") and (ii) three Homewood Suites hotels currently under
construction in Richmond, Virginia, BWI, Baltimore, Maryland, and Dallas, Texas
(the "Development Hotels"), (B) an option agreement ("Option Agreement")
requiring Promus to provide the Partnership with the option to acquire certain
other hotel properties developed from time to time hereafter by Promus (the
"Additional Hotels" and, together with the Developed Hotel and the Development
Hotels, the "Hotels"), and (C) management agreements providing for the
management of the Hotels by Promus (the Purchase, Option and Management
Agreements, collectively, as in effect on such date, including any acquisition
agreements for Additional Hotels executed subsequently pursuant to the Option
Agreement, and without regard to any subsequent amendments or modifications
thereto, the "Acquisition Documents").
WHEREAS, Promus has agreed to purchase from the Company up to $15 million
of common stock of the Company, par value $.01 per share ("Common Stock"), from
time to time as the Partnership acquires Hotels, generally to provide a source
of funds for such acquisitions, on the terms and conditions set forth in this
Stock Purchase Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledge, the parties do hereby
agree as follows:
1. Terms of Subscription - Agreement to Purchase and Sell Common Stock
(a) (i) Stock Purchases Upon Hotel Closings. Promus hereby subscribes for and
agrees to purchase from the Company, and the Company agrees to sell to Promus,
from time to time, Common Stock subject to the limitations set forth in Section
1(c) below, at the purchase price determined in accordance with Section 2 below
(the "Purchase Price"). Subject to the limitations set forth in Section 1(c)
below, Promus hereby subscribes for and agrees to consummate the acquisition of
Common Stock for
(a) Three Million Dollars ($3,000,000), at the per share Purchase
Price determined in accordance with Section 2 below, on the date on which the
Partnership acquires the Developed Hotel, and
(b) the product of Twelve Thousand Five Hundred Dollars ($12,500)
and the number of guest rooms in a Development Hotel or an Additional Hotel, at
the per share Purchase Price determined in accordance with Section 2 below, on
the date on which the Partnership acquires the Development Hotel or Additional
Hotel.
(ii) Option to Purchase Within Six Months. Notwithstanding Section
1(a)(i), Promus may elect to satisfy any or all of its obligations under this
Stock Purchase Agreement at one or more times within six months after the
Company's next public offering of Common Stock (the "Public Offering"), by
notifying the Company in writing within such period, indicating the gross dollar
amount that it is committing to invest in Common Stock. The closing of Promus'
acquisition of such Common Stock will occur within 30 days after the Company's
receipt of such notice, at a per share price determined in accordance with
Section 2 below.
(b) Ownership Limitation. Promus shall only acquire Common Stock hereunder
unless, at the time of any Common Stock purchase hereunder (each an "Incremental
Purchase"), the Company's counsel determines that Promus owns the maximum amount
of Common Stock permitted under the Amended and Restated Articles of
Incorporation of the Company (the "Limit") and that no waiver of such Limit can
be made without jeopardizing the Company's status as a real estate investment
trust. In that event, the
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appropriate officer(s) of the Company will recommend that the Board of Directors
consider in good faith waiving the Limit to the extent that a waiver can be made
without jeopardizing its status as a real estate investment trust. In such
cases, if no waiver is made, Promus shall (i) acquire units of limited
partnership interest in the Partnership in the Incremental Purchase, which,
under the Amended and Restated Agreement of Limited Partnership of the
Partnership, are redeemable at the option of the holder for shares of Common
Stock (or, at the Company's election, an equivalent value in cash), for the same
Purchase Price and on the same terms as it would acquire Common Stock and (ii)
be admitted as a limited partner of the Partnership, entitled to all of the
rights, preferences and privileges as all existing limited partners. References
in this Agreement to "Common Stock" shall be deemed to mean "Units" when the
provisions of this Section 1(b) are applicable and the context requires.
(c) Aggregate Subscription Limit. Promus' agreement herein to purchase Common
Stock shall not exceed at any time the amount (the "Aggregate Subscription
Limit") equal to the lesser of (i) Fifteen Million Dollars ($15,000,000) or (ii)
the sum of Three Million Dollars ($3,000,000) and the aggregate Closed Hotel
Amount. The "Closed Hotel Amount" shall equal the product of (A) Twelve Thousand
Five Hundred Dollars ($12,500) and (B) the number of guest rooms in each
Development Hotel or Additional Hotel purchased by the Partnership pursuant to
the Acquisition Documents or any documents executed subsequently by the parties
pursuant to the Acquisition Documents regarding the Partnership's acquisition of
Additional Hotels.
(d) Lock-Up. Promus may not sell to the public any Common Stock (i) purchased
pursuant to this Stock Purchase Agreement or (ii) received upon redemption of
Units purchased pursuant to this Stock Purchase Agreement (through the operation
of Section 1(b)), until at least one year after the Common Stock or Units,
respectively, are acquired by Promus.
2. Purchase Price. The number of shares of Common Stock received by Promus at
each closing of its purchase of Common Stock hereunder shall be equal to the
gross purchase price paid by Promus at such closing divided by, (i) with respect
to Common
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Stock acquired within six months after the Public Offering, the price per share
at which shares of Common Stock are sold in the Public Offering and, (ii) with
respect to all other Common Stock, an amount equal to the Market Price of a
share of Common Stock on the date of acquisition. For purposes of this
Agreement, "Market Price" shall mean, for any date, the average of the high and
low sales prices of the Company's Common Stock as quoted on the Nasdaq Stock
Market for the 10 consecutive business days ending on the second business day
preceding such date.
3. Purchase Closings. At each closing of the acquisition of Common Stock
hereunder,
(a) Promus shall pay to the Company, by wire transfer or by certified or
bank cashier's check, an amount determined under section 1 above, subject to the
aggregate amount not exceeding the Aggregate Subscription Limit; and
(b) The Company shall issue to Promus one or more certificates
representing the whole number of issued and outstanding shares of Common Stock
equal to the quotient of (i) the gross amount paid by Promus to the Company
under Section 3(a) above divided by (ii) the Purchase Price determined under
Section 2 above. The Company shall not be required to issue fractional shares of
Common Stock in connection with any Incremental Purchase and, in lieu thereof,
the Company shall refund to Promus the cash amount represented by the fractional
share of Common Stock based upon the Purchase Price. In addition to the legends
required by the Company's Articles of Incorporation, each certificate or
instrument representing shares of the Common Stock shall bear a legend in
substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION AND
QUALIFICATION WITHOUT AN OPINION OF COUNSEL FOR THE HOLDER THAT SUCH
REGISTRATION AND QUALIFICATION ARE NOT REQUIRED, WHICH OPINION OF COUNSEL
SHALL BE REASONABLY SATISFACTORY TO THE COMPANY.
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Such legend shall be removed by the Company upon (i) the U.S. Securities
and Exchange Commission ("SEC") declaring effective a Registration Statement (as
defined in Section 7 below) covering such Common Stock or (ii) delivery to it of
an opinion of counsel reasonably satisfactory to the Company and its counsel
that a registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), other than a Registration Statement, is at the time effective
with respect to the transfer of the legended security or that such security can
be transferred without such registration statement being in effect and without
the requirements of a legend on the certificate in the hands of the transferee.
4. Term. Promus' obligations in connection with this Stock Purchase Agreement
shall terminate upon the earliest to occur of (i) the date that Promus shall
have reached the Aggregate Subscription Limit, (ii) the day after the date on
which the Partnership acquires the last Additional Hotel under the Option
Agreement, (iii) delivery of written notice to Promus that the Company has
terminated Promus' obligations hereunder or (iv) April __, 2001.
5. Representations and Warranties of Promus. Promus hereby represents and
warrants to the Company as follows:
(a) The execution, delivery and performance of this Agreement by Promus has been
duly authorized by all necessary corporate action. This Agreement constitutes a
valid and binding obligation of Promus, enforceable in accordance with its
terms.
(b) Neither the execution, delivery and performance of this Agreement nor the
consummation of the transactions contemplated hereby by Promus Company will
conflict with or result in a breach or violation of any of the terms and
provisions of, or (with or without the giving of notice or passage of time or
both) constitute a default under, any agreement to which Promus is a party, the
certificate of incorporation or bylaws of Promus, any indenture, mortgage, deed
of trust, loan agreement, note, lease or other agreement or instrument to which
the Promus is a party or to which any of its properties or other assets is
subject, or any applicable statute, judgment, decree, rule or regulation of any
court or governmental agency or body applicable to Promus or
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its assets, or result in the creation or imposition of any lien, charge, claim
or encumbrance upon any property or asset of Promus.
(c) No consent, license, permit or filing of or with any governmental authority
or any person is required in connection with Promus' execution, delivery and
performance of this Stock Purchase Agreement except as has been obtained by
Promus.
(d) No finder, broker, agent, financial advisor or other intermediary has acted
on behalf of Promus in connection with the purchase of the Common Stock pursuant
to this Stock Purchase Agreement or the negotiation or consummation hereof.
(e) It is familiar with the business and financial condition of the Company and
the Partnership and is not relying upon any representations made to it by the
Company or any of its officers, directors, employees, partners or agents that
are not contained herein.
(f) It is aware of the risks involved in making an investment in the Common
Stock (or Units if required under Section 1(b)). It has had an opportunity to
ask questions of, and to receive answers from, the Company, or a person or
persons authorized to act on its behalf, concerning the terms and conditions of
this investment. Promus confirms that all documents, records and books
pertaining to its investment in the Company (or the Partnership, if necessary
under Section 1(c) above) that have been requested by it have been made
available or delivered to it prior to the date hereof.
(g) It understands that the Common Stock has not been registered under the
Securities Act, or any state securities acts, and is being offered and sold to
Promus in reliance on an exemption from such registration requirements. The
Common Stock for which Promus hereby subscribes is being acquired solely for its
own account, for investment, and is not being purchased with a view to, or for
resale in connection with, any distribution, subdivision or fractionalization
thereof in violation of such laws, and Promus has no present intention to enter
into any contract, undertaking, agreement or arrangement with respect to any
such resale.
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(h) It is an "accredited investor" as that term is defined in Rule 501 and
Regulation D promulgated under the Securities Act.
The foregoing representations and warranties are true and accurate as of the
date hereof and shall be true and accurate as of the date of the purchase of
Common Stock made hereunder in connection with the acquisition of the Developed
Hotel and on the date of each Incremental Purchase pursuant to the terms of this
Stock Purchase Agreement, and shall survive such dates.
6. Representations and Warranties of the Company. The Company hereby represents
and warrants to Promus as follows:
(a) The Company has full legal right, power and authority to enter into this
Stock Purchase Agreement and the Registration Rights Agreement referred to in
Section 7 hereof, and to consummate the transactions contemplated herein and
therein. This Stock Purchase Agreement has been, and the Registration Rights
Agreement referred to in Section 7 hereof will be, duly authorized by all
necessary corporate action, and each will constitute the valid and binding
obligation of the Company, enforceable in accordance with their respective
terms.
(b) The Common Stock has been validly authorized and, when issued to Promus,
will be duly and validly issued, fully paid, nonassessable and free of
preemptive or similar rights. Authorized and unissued shares of Common Stock
sufficient to satisfy the Company's obligation to issue such shares to Promus
shall at all times be reserved by the Company. Units, if issued to Promus in
lieu of Common Stock in accordance with Section 1(b) above, will upon issuance
to Promus be validly issued, fully paid and nonassessable, shall not obligate
Promus to restore capital to the Partnership except as may be required by the
North Carolina Revised Uniform Limited Partnership Act and shall not be subject
to any preemptive or similar rights.
(c) Assuming the accuracy of the representations of Promus set forth in Section
5 hereof, (i) the Common Stock will have been issued, offered and sold to Promus
in compliance with all applicable laws (including, without limitation, federal
and state securities laws) and (ii) each consent, approval, authorization,
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order, license, certificate, permit, registration, designation or filing by or
with any governmental agency or body necessary for the valid authorization,
issuance, sale and delivery of any Common Stock to Promus, the execution,
delivery and performance of this Agreement and the Registration Rights Agreement
referred to in Section 7 hereof and the consummation by the Company of the
transactions contemplated hereby and thereby has been made or obtained and is in
full force and effect.
(d) Neither the issuance, sale and delivery to Promus by the Company of the
Common Stock, nor the execution, delivery and performance of this Agreement and
the Registration Rights Agreement referred to in Section 7 hereof, nor the
consummation of the transactions contemplated hereby or thereby by the Company
will conflict with or result in a breach or violation of any of the terms and
provisions of, or (with or without the giving of notice or passage of time or
both) constitute a default under, any agreement to which the Company is a party,
the certificate of incorporation, bylaws of the Company, any indenture,
mortgage, deed of trust, loan agreement, note, lease or other agreement or
instrument to which the Company is a party or to which any of its properties or
other assets or any hotel is subject, or any applicable statute, judgment,
decree, rule or regulation of any court or governmental agency or body
applicable to the Company or its assets, or result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or asset of the
Company.
(e) No consent, license, permit or filing of or with any governmental authority
or any person is required in connection with the Company's execution, delivery
and performance of this Stock Purchase Agreement except as has been obtained by
the Company.
(f) No finder, broker, agent, financial advisor or other intermediary has acted
on behalf of the Company in connection with the purchase of the Common Stock
pursuant to this Stock Purchase Agreement or the negotiation or consummation
hereof.
The foregoing representations and warranties are true and accurate as of the
date hereof, or such other date as of which they are deemed to be made, and
shall be true and accurate as of
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the date of the purchase of Common Stock made hereunder in connection with the
acquisition of the Developed Hotel and on the date of each Incremental Purchase
pursuant to the terms of this Stock Purchase Agreement, and shall survive such
dates.
7. Registration Rights. Prior to the first anniversary of the acquisition of the
Developed Hotel, the Company shall enter into with Promus a registration rights
agreement ("Registration Rights Agreement") in form and substance agreeable to
Promus and the Company, providing, among other things, for the following with
respect to Common Stock acquired by Promus pursuant to this Stock Purchase
Agreement:
(a) In the time periods and with the frequency described in Section 7(b) below,
the Company shall file and use its best efforts to cause to become effective,
registration statements under the Securities Act, and all necessary
qualifications or registrations under the securities laws covering the resale by
Promus of shares of Common Stock issued to Promus hereunder (each, a
"Registration Statement").
(b) A Registration Statement shall be filed within 60 days after (i) the first
anniversary of the acquisition of the Partnership's acquisition of the Developed
Hotel, and (ii) each subsequent anniversary if Promus has acquired Common Stock
which is not covered by a Registration Statement and which is not then-subject
to the provisions of subsection 1(d) above.
(c) The Company shall use its best efforts to maintain the effectiveness of each
Registration Statement until the earlier of (i) such time as all of the shares
of Common Stock covered thereby have been issued to and sold by Promus and (ii)
such time as all of the shares of Common Stock covered thereby may be resold by
Promus without restriction under the Securities Act.
(d) During any consecutive three month period, Promus shall be prohibited,
unless the Company shall otherwise consent thereto in writing, from selling more
than 25% of the outstanding shares of Common Stock, whether pursuant to a
Registration Statement or otherwise, except in an underwritten public offering
in which the managing underwriter is one reasonably acceptable to the Company.
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(e) All expenses of such Registration Statement shall be borne by the Company,
other than (i) any underwriting discounts or commissions or transfer taxes and
(ii) the fees and expenses of all separate counsel for Promus in excess of the
reasonable fees and expenses of one separate counsel retained by Promus to (A)
review the Registration Statement as requested by the Company, (B) review or
prepare information to be provided at the Company's request and (C) review
documents and instruments to be executed by Promus at the request of the
Company.
(f) (i) Promus shall refrain from the sale of any shares of Common Stock for one
or more periods of not more than sixty (60) days following written notice from
the Company that the relevant Registration Statement is not then current, due to
the existence of material non-public information disclosure of which would
materially adversely affect the business interests of the Company, and prior to
Promus' receipt from the Company of written notice that such Registration
Statement is again current, provided that Promus shall not be precluded from
effecting sales pursuant to this clause (i) for more than ninety (90) days
during any 360-day period.
(ii) Following written notice from the Company that it has filed and caused to
become effective a registration statement including an offering of shares of
Common Stock for sale by the Company to the public in an underwritten public
offering, Promus shall enter into agreements with the underwriters of such
public offering, substantially in the same form and for the same time period as
agreements entered into by the officers and directors of the Company, precluding
the sale of Common Stock by Promus for a period not to exceed one hundred eighty
(180) days following such notice, provided that Promus was given the opportunity
to include its shares for sale in such public offering.
(g) With respect to a Registration Statement, the following procedures shall
apply:
(i) The Company will, prior to filing a Registration Statement or
prospectus or any amendment or supplement thereto, furnish to Promus and
counsel designated by Promus, copies of such registration statement or
prospectus as proposed to be filed, together with exhibits thereto, which
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documents will be subject to review by the foregoing, and thereafter
furnish to Promus, such number of copies of such Registration Statement,
each amendment and supplement thereto, the prospectus included in such
Registration Statement (including each preliminary prospectus) and such
other documents as Promus may reasonably request in order to facilitate
the disposition of the Common Stock covered by the Registration Statement.
(ii) The Company will use its best efforts to register or qualify
the Common Stock under such other securities or blue sky laws of such
jurisdictions in the United States as Promus reasonably requests;
provided, that the Company will not be required to (A) qualify generally
to do business in any jurisdiction where it would not otherwise be
required to qualify, (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(iii) The Company will immediately notify Promus at any time when a
prospectus included in a Registration Statement is required to be
delivered under the Securities Act, of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of such Common Stock,
such prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and will promptly make
available to Promus any such supplement or amendment.
(iv) The Company will otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC.
(v) The Company shall promptly notify Promus (A) when the prospectus
or any prospectus supplement has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has
been declared effective, (B) of any request by the SEC for amendments or
supplements to the Registration Statement or the prospectus or for
additional information, (C) of the issuance by the SEC of any stop order
suspending the effectiveness of the
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Registration Statement or the initiation of any proceedings for that
purpose, and (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Common Stock for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(vi) Promus and each officer, director and controlling person of
Promus shall be indemnified by the Company for all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation)
caused by any untrue or alleged untrue statement or any omission or alleged
omission in the then-current prospectus included in a Registration
Statement, unless based upon information (if any) furnished to the Company
by Promus expressly for use in a Registration Statement in a writing signed
by or on behalf of Promus.
(f) The Company and each officer, director and controlling person of
the Company shall be indemnified by Promus for all losses, claims,
damages, liabilities and expenses (including reasonable costs of
investigation) caused by any untrue or alleged untrue statement or any
omission or alleged omission in the then-current prospectus included in a
Registration Statement, if based upon information (if any) furnished to
the Company by Promus expressly for use in a Registration Statement in a
writing signed by or on behalf of Promus.
(g) Promus agrees to promptly provide information or execute and
deliver documents reasonably determined by the Company to be necessary to
facilitate the preparation or filing of a Registration Statement.
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8. Miscellaneous.
(a) All notices or other communications given or made hereunder shall be in
writing and shall be delivered in person or mailed by registered or certified
mail, return receipt requested, postage prepaid, or by Federal Express overnight
mail, (A) to Promus at 785 Crossover Lane, Suite 141, Memphis, Tennessee 38117,
Attention: General Counsel, with a copy to the same address, Attention: Chief
Financial Officer, and (B) to the Company at 2209 Century Drive, Suite 300,
Raleigh, North Carolina 27612, with a copy to Mark Murphy, Hunton & Williams,
Riverfront Plaza-East Tower, 951 E. Byrd Street, Richmond, Virginia 23219.
(b) NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE
PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL OF THE TERMS AND PROVISIONS
HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NORTH CAROLINA (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES),
APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED THEREIN.
(c) This Agreement (i) supersedes all other agreements or understandings, by and
between Promus and the Company, and (ii) constitutes the entire agreement
between the parties hereto, in each case with respect to the subscription by
Promus for shares of Common Stock of the Company. This Agreement may be amended
only by an instrument in writing executed by all parties. Promus may assign and
transfer its rights and obligations hereunder, and the Common Stock it acquires,
to any direct or indirect subsidiary thereof.
(d) This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto.
(e) All terms used herein shall be deemed to include the masculine and the
feminine and the singular and the plural as the context requires. Captions
herein are for convenience of reference only and shall not alter or affect the
meaning or construction of the paragraphs hereof to which they relate.
(f) The parties hereto agree to take all actions, including the entering into of
any documents, agreements or instruments, or
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amendments thereof, as may be necessary or appropriate to effectuate the intents
and purposes hereof and consummate and make effective the transactions
contemplated hereby.
(g) This Agreement may be executed in two or more counterparts, any one of which
need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase
Agreement on and as of the date first above written.
PROMUS HOTELS, INC.,
a Delaware corporation
By:_____________________
Name:___________________
Title:__________________
WINSTON HOTELS, INC.,
a North Carolina corporation
By:_____________________
Name:___________________
Title:__________________
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