PUT OPTION AGREEMENT
This agreement dated as of April 30, 1993 by and among AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO, a __________________ banking corporation with
offices at 33 North La Salle Street, Chicago, IL 60690 (the "Bank"); WMS
INDUSTRIES INC., a Delaware corporation, with its principal executive offices at
3401 N. California Avenue, Chicago, Illinois 60618 ("WMS"), BURTON I. KOFFMAN
residing at 300 Plaza Drive, Binghamton, New York 13902 (the "Borrower"), and
EMPIRE HOTEL CORP., a Nevada corporation having its principal office at 300
Plaza Drive, Box 1568, Binghamton, New York 13902 (the "Pledgor").
W I T N E S S E T H :
WHEREAS, the Borrower desires to borrow from the Bank and the Bank is
willing to lend to the Borrower $1,000,000 (the "Loan") provided, among other
matters, the Borrower provides adequate collateral to the Bank; and
WHEREAS, the Pledgor, an affiliate of the Borrower, has offered to pledge
20 shares of common stock (the "Pledged Stock") of Williams Hospitality
Management Corporation, a Delaware corporation ("WHMC"), to the Bank as
collateral for the Loan; and
WHEREAS, the Pledgor owns 332.5 shares of common stock of WHMC,
constituting 33.25% of the outstanding shares of common stock of WHMC; and
WHEREAS, through wholly-owned subsidiaries, WMS owns 550 shares of common
stock of WHMC, constituting 55% of the outstanding shares of common stock of
WHMC; and
WHEREAS, pursuant to the terms of an agreement dated April 30, 1992 among
WMS, Burton I. and Richard E. Koffman and Hugh A. Andrews, WMS agreed to provide
a "Put" Agreement to the Bank with respect to the Pledged Stock; and
WHEREAS, the Bank has requested that WMS provide the put as hereinafter
set forth.
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the parties hereto agree as follows:
1. Grant of Option. WMS hereby grants to the Bank a put option to require
WMS to purchase all, but not less than all, of the Pledged Stock for a purchase
price of $53,000 per share, or an aggregate purchase price of One Million Sixty
Thousand Dollars ($1,060,000.00). The put option shall expire, if not previously
exercised, at 5:00 p.m. local time New York, New York on May 5, 1995 (the
"Expiration Date"). The put option may be exercised by the Bank at any time on
or before the Expiration Date by written notice to WMS of its election to
exercise
the put option in the manner herein provided. The Bank shall not sell or
transfer the Pledged Stock to any third party unless WMS shall have failed to
perform its obligations after the Bank shall have exercised the put option.
2. Closing. The closing with respect to the purchase by WMS of the Pledged
Stock upon exercise of the put option shall take place on the fifth business day
after the date the put option is exercised by the Bank or at such other date as
shall be mutually agreeable to the Bank and WMS. The closing shall be held at
the executive offices of the Bank, or such other place as shall be mutually
agreeable to the Bank and WMS. At the closing, the Pledged Stock shall be sold,
and WMS or its designee shall purchase, the Pledged Stock upon the following
terms and conditions.
(a) The Bank shall deliver to WMS, or its designee, certificates
representing the shares of Pledged Stock duly endorsed for transfer or
accompanied by appropriate stock powers.
(b) The shares representing the Pledged Stock and title thereto
shall be transferred to WMS, or its designee, free and clear of any liens,
claims or encumbrances, except that when acquired by WMS or its designee it is
understood that the Pledged Stock shall thereafter by subject to the Amended and
Restated Stockholders' Agreement dated May 5, 1992 among WMS Hotel Corporation,
Burton I. Koffman, as nominee, Hugh A. Andrews and WHMC (the "WHMC Stockholders'
Agreement").
(c) The purchase price for the Pledged Stock shall be paid by WMS by
wire transfer of funds to an account designated by the Bank.
(d) All transfer taxes, if any, with respect to transfers of the
Pledged Stock at the closing shall be the obligation of the Bank.
3. Representations and Warranties.
(a) The Bank represents and warrants that it has full corporate,
right, power and authority to enter into and perform this Agreement and to sell
and deliver the Pledged Stock.
(b) WMS represents and warrants as follows:
(i) WMS is a corporation validly existing and in good standing
under the laws of the state of Delaware;
(ii) The execution and delivery of this put agreement has been
duly authorized by the Board of Directors of WMS and no further corporate action
is necessary to constitute this put agreement a valid and binding obligation of
WMS; and
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(iii) The execution, delivery and performance by WMS of this
Agreement does not conflict with any provision of its Certificate of
Incorporation or By-Laws.
(c) Pledgor represents and warrants that it has full right, power
and authority to enter into this Agreement; that Pledgor is the beneficial owner
of the Pledged Stock free and clear of all liens, claims and encumbrances other
than the WHMC Stockholders' Agreement; and that upon delivery of the
certificates representing the Pledged Stock to WMS upon exercise of the put
option by the Bank, WMS will acquire the Pledged Stock free and clear of any
liens, claims or encumbrances other than the WHMC Stockholders' Agreement.
Pledgor agrees that the sale of the Pledged Stock pursuant to this Agreement
shall be expressly permitted and shall have priority over any rights of WHMC or
its stockholders set forth in the WHMC Stockholders' Agreement.
4. Adjustments Upon Changes in Capitalization. The aggregate number and
class of shares which will constitute the Pledged Stock and the price per share
of the Pledged Stock but not the total price will be proportionately adjusted
for any increase or decrease in the number of issued shares of common stock of
WHMC resulting from a stock split or consolidation of the shares or any like
capital adjustment or reclassification of the shares or the payment of any stock
dividend or any other increase or decrease in the number of shares of WHMC
without receipt of consideration by WHMC.
5. General Provisions.
(a) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof. No change, modification, amendment,
addition or termination of this Agreement or any part thereof shall be valid
unless in writing and signed by or on behalf of the party to be charged
therewith.
(b) This Agreement may be executed in one or more counterparts and
shall become effective when one or more counterparts has been signed by each of
the parties.
(c) Any and all notices or communications or deliveries required or
permitted to be given pursuant to any of the provisions of this Agreement shall
be deemed to have been duly given for all purposes if sent by certified or
registered mail, return receipt requested and postage prepaid, hand delivered or
sent by telegraph, telex or telephone facsimile as follows:
If to WMS:
3401 N. California Avenue
Chicago, Illinois 60618
Fax: 312-539-2099
Attention: President
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with a copy to:
Shack & Siegel, P.C.
360 Madison Avenue
New York, New York 10017
Fax: 212-818-1964
Attention: Jeffrey N. Siegel
If to the Bank:
American National Bank and Trust Company of Chicago
33 North La Salle Street
Chicago, Illinois 60690
If to the Borrower or the Pledgor:
Burton I. Koffman
300 Plaza Drive
Box 1568
Binghamton, New York 13902
or at such other address as any party may specify by notice given to the other
parties in accordance with this Paragraph 5(c). The date of giving of such
notice shall be the date of actual receipt by the addressee of such notice.
(d) This Agreement and the various rights and obligations arising
hereunder shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns.
(e) This Agreement shall be governed, interpreted and construed in
accordance with the laws of the State of New York.
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(f) This put agreement and the pledge and/or sale of the Pledged
Stock hereunder has not been registered under the Securities Act of 1933 or the
Securities Act of Puerto Rico.
IN WITNESS WHEREOF, this Agreement has been made and executed as of the
date first above written.
AMERICAN NATIONAL BANK &
TRUST COMPANY OF CHICAGO
By:__________________________________
WMS INDUSTRIES INC.
By:__________________________________
_____________________________________
BURTON I. KOFFMAN, Borrower
EMPIRE HOTEL CORP., Pledgor
By:__________________________________
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AMENDMENT TO PUT OPTION AGREEMENT
Reference is made to the Put Option Agreement dated April 30, 1993 (the
"Put Option Agreement") by and among American National Bank and Trust Company of
Chicago, WMS Industries Inc., Burton I. Koffman and Empire Hotel Corporation.
Capitalized terms as used herein shall have the same meaning ascribed to such
terms in the Put Option Agreement.
The Put Option Agreement is hereby amended to change the Expiration Date
from May 5, 1995 to May 5, 1996.
Except as set forth in this Amendment, all terms and conditions of the Put
Option Agreement shall remain unchanged and in full force and effect.
AMERICAN NATIONAL BANK &
TRUST COMPANY OF CHICAGO
By:__________________________________
WMS INDUSTRIES INC.
By:__________________________________
_____________________________________
BURTON I. KOFFMAN, Borrower
EMPIRE HOTEL CORPORATION, Pledgor
By:__________________________________
SECOND AMENDMENT TO PUT OPTION AGREEMENT
This Second Amendment dated April 9, 1996, amends the Put Option Agreement
dated April 30, 1993 (the "Put Option Agreement") by and among American National
Bank and Trust Company of Chicago, WMS Industries Inc., Burton I. Koffman and
Empire Hotel Corporation and as amended May 5, 1995. Capitalized terms as used
herein shall have the same meaning ascribed to such terms in the Put Option
Agreement.
1. Paragraph 1 of the Put Option Agreement is hereby amended to change the
Expiration Date from May 5, 1996 to May 5, 1997.
2. Paragraph 5(c) of the Put Option Agreement is hereby amended to correct
the addresses and/or fax numbers of WMS and Shack & Siegel P.C. as follows:
WMS Industries Inc.
3401 N. California Avenue
Chicago, Illinois 60618
Attention: President
Fax: 312-961-1020
Shack & Siegel P.C.
530 Fifth Avenue, 16th Floor
New York, New York 10036
Fax: 212-730-1964
Attention: Jeffrey N. Siegel
Except as set forth in this Amendment, all terms and conditions of the Put
Option Agreement shall remain unchanged and in full force and effect.
AMERICAN NATIONAL BANK &
TRUST COMPANY OF CHICAGO
By: /s/
------------------------------------
William D. Ryan
Second Vice President
WMS INDUSTRIES, INC.
By: /s/
------------------------------------
Barbara M. Norman
Vice President & Secretary
/s/
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BURTON I. KOFFMAN, Borrower
EMPIRE HOTEL CORPORATION, Pledgor
By:_____________________________________