0000891836-05-000224.txt : 20120625
0000891836-05-000224.hdr.sgml : 20120625
20050411165615
ACCESSION NUMBER: 0000891836-05-000224
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20050411
DATE AS OF CHANGE: 20050411
GROUP MEMBERS: 29/WHSHC, L.L.C. I
GROUP MEMBERS: GOLDMAN, SACHS & CO.
GROUP MEMBERS: WH ADVISORS, L.L.C. IX
GROUP MEMBERS: WH ADVISORS, L.L.C. VII
GROUP MEMBERS: WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP IX
GROUP MEMBERS: WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII
GROUP MEMBERS: WHSHC, L.L.C.
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: STRATEGIC HOTEL CAPITAL INC
CENTRAL INDEX KEY: 0001057436
STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798]
IRS NUMBER: 331082757
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-79938
FILM NUMBER: 05744465
BUSINESS ADDRESS:
STREET 1: 77 W WACKER DR STE 4600
CITY: CHICAGO
STATE: IL
ZIP: 60601
BUSINESS PHONE: 3126585000
MAIL ADDRESS:
STREET 1: 77 WEST WACKER DRIVE
STREET 2: STE 4600
CITY: CHICAGO
STATE: IL
ZIP: 60601
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/
CENTRAL INDEX KEY: 0000886982
STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211]
IRS NUMBER: 134019460
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1128
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: 85 BROAD ST
CITY: NEW YORK
STATE: NY
ZIP: 10004
BUSINESS PHONE: 2129021000
MAIL ADDRESS:
STREET 1: 85 BROAD ST
CITY: NEW YORK
STATE: NY
ZIP: 10004
SC 13D/A
1
sc0104.txt
AMENDMENT NO. 3 TO SCHEDULE 13D
SECURITIES EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Strategic Hotel Capital, Inc.
---------------------
(Name of Issuer)
Common Stock, par value $.01 per share
---------------------------
(Title of Class of Securities)
86272T106
---------------------
(CUSIP Number)
Ted Chang
The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
Telephone: (212) 902-1000
--------------------
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications)
April 7, 2005
--------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
(Continued on following pages)
---------------------
CUSIP NO. 86272T106 13D
---------------------
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS: WHSHC, L.L.C.
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS: OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) OR 2(e)
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER:
NUMBER OF 0 Shares
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER:
OWNED BY 2,854,554 Shares
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER:
WITH 0 Shares
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
2,854,554 Shares
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,854,554
PERSON
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.5%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: OO
---------------------
CUSIP NO. 86272T106 13D
---------------------
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS: Whitehall Street Real Estate Limited
Partnership VII
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS: AF
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) OR 2(e)
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER:
NUMBER OF 0 Shares
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER:
OWNED BY 2,854,554 Shares
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER:
WITH 0 Shares
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
2,854,554 Shares
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,854,554
PERSON
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.5%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: PN
---------------------
CUSIP NO. 86272T106 13D
---------------------
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS: WH Advisors, L.L.C. VII
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS: AF
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) OR 2(e)
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER:
NUMBER OF 0 Shares
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER:
OWNED BY EACH 2,854,554 Shares
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER:
WITH 0 Shares
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
2,854,554 Shares
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,854,554
PERSON
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.5%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: OO
---------------------
CUSIP NO. 86272T106 13D
---------------------
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS: W9/WHSHC, L.L.C. I
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS: OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) OR 2(e)
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER:
NUMBER OF 0 Shares
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER:
OWNED BY EACH 2,668,300 Shares
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER:
WITH 0 Shares
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
2,668,300 Shares
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,668,300
PERSON
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.9%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: OO
---------------------
CUSIP NO. 86272T106 13D
---------------------
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS: Whitehall Street Real Estate Limited
Partnership IX
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS: AF
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) OR 2(e)
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER:
NUMBER OF 0 Shares
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER:
OWNED BY EACH 2,668,300 Shares
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER:
WITH 0 Shares
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
2,668,300 Shares
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,668,300
PERSON
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.9%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: PN
---------------------
CUSIP NO. 86272T106 13D
---------------------
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS: WH Advisors, L.L.C. IX
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS: AF
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) OR 2(e)
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER:
NUMBER OF 0 Shares
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER:
OWNED BY EACH 2,668,300 Shares
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER:
WITH 0 Shares
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
2,668,300 Shares
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,668,300
PERSON
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.9%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: OO
---------------------
CUSIP NO. 86272T106 13D
---------------------
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS: Goldman, Sachs & Co.
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS: AF
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [X]
PURSUANT TO ITEM 2(d) OR 2(e)
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: New York
--------------------------------------------------------------------------------
7. SOLE VOTING POWER:
NUMBER OF 0 Shares
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER:
OWNED BY EACH 5,522,854 Shares
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER:
WITH 0 Shares
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
5,522,854 Shares
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 5,522,854
PERSON
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.4%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: PN/BD/IA
---------------------
CUSIP NO. 86272T106 13D
---------------------
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS: The Goldman Sachs Group, Inc.
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS: AF
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) OR 2(e)
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER:
NUMBER OF 0 Shares
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER:
OWNED BY EACH 5,522,854 Shares
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER:
WITH 0 Shares
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
5,522,854 Shares
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 5,522,854
PERSON
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.4%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: HC/CO
This Amendment No. 3, filed by WHSHC, L.L.C. ("WHSHC LLC"), W9/WHSHC,
L.L.C. I ("W9 LLC"), Whitehall Street Real Estate Limited Partnership VII
("Whitehall Real Estate VII"), Whitehall Street Real Estate Limited Partnership
IX ("Whitehall Real Estate IX"), WH Advisors, L.L.C. VII ("WH Advisors VII"), WH
Advisors, L.L.C. IX ("WH Advisors IX"), Goldman, Sachs & Co. ("Goldman Sachs")
and The Goldman Sachs Group, Inc. ("GS Group", together with WHSHC LLC, W9 LLC,
Whitehall Real Estate VII, Whitehall Real Estate IX, WH Advisors VII, WH
Advisors IX and Goldman Sachs, the "Reporting Persons")[1] amends and
supplements the Schedule 13D filed by the Reporting Persons on July 9, 2004 and
amended by Amendment No. 1 thereto on October 1, 2004 and Amendment No. 2
thereto on March 23, 2005. Schedules I and III to the Schedule 13D are hereby
amended and replaced in their entirety by Schedules I, III and IV attached
hereto and incorporated herein by reference. Capitalized terms used but
otherwise not defined herein shall have the meanings ascribed to such terms in
the Schedule 13D.
ITEM 4. PURPOSE OF TRANSACTIONS
Item 4 is hereby amended in its entirety as follows:
WHSHC LLC and W9 LLC acquired the Common Stock in connection with the
Company's IPO for investment purposes. If any, the shares of Common Stock which
may be deemed to be held by Goldman Sachs, other than shares which may be deemed
beneficially owned through WH Advisors VII and WH Advisor IX, were acquired in
the ordinary course of business of Goldman Sachs.
As of the date of this statement, none of the Reporting Persons, or to
the knowledge and belief of the Reporting Persons, any of the persons listed on
Schedules I, II or III hereto, has any present plan or proposals which would
relate to or would result in any transaction event or action enumerated in
paragraphs (a) through (j) of Item 4 of Schedule 13D, other than the fact that,
(i) on March 17, 2005, at the Company's suggestion, Jonathan A. Langer, a
Managing Director of Goldman, Sachs & Co., where he is Head of US Acquisitions
for the Real Estate Principal Investment Area, forwarded to the Chairman of the
Company's Corporate Governance and Nominating Committee and the Company's Chief
Executive Officer his resume in connection with the Corporate Governance and
Nominating Committee's consideration of Mr. Langer's nomination to stand for
election as a director of the Company at the annual meeting of shareholders
scheduled for May 18, 2005, and (ii) on April 7, 2005, WHSHC LLC and W9 LLC
entered into a Shareholders Agreement (the "Shareholders Agreement") with the
Company providing for, among other matters, the right of WHSHC LLC and W9 LLC to
nominate one person as a director to the Company's Board of Directors so long as
the Shareholders maintain aggregate ownership of 10%. A copy of the Shareholders
Agreement is attached hereto as Exhibit 16.
----------
[1] Neither the present filing nor anything contained herein shall be construed
as an admission that WHSHC LLC, W9 LLC, Whitehall Real Estate VII,
Whitehall Real Estate IX, WH Advisors VII, WH Advisors IX, Goldman Sachs or
GS Group constitute a "person" for any purpose other than Section 13(d) of
the Securities Exchange Act of 1934, as amended, or that WHSHC LLC, W9 LLC,
Whitehall Real Estate VII, Whitehall Real Estate IX, WH Advisors VII, WH
Advisors IX, Goldman Sachs or GS Group constitute a "group" for any
purpose.
Each of the Reporting Persons expects to evaluate on an ongoing basis
the Company's financial condition, business, operations and prospects, the
market price of the Common Stock, conditions in the securities markets
generally, general economic and industry conditions and other factors.
Accordingly, each Reporting Person reserves the right to change its plans and
intentions at any time, as it deems appropriate. In particular, any one or more
of the Reporting Persons (and their respective affiliates) may purchase
additional shares of Common Stock or other securities of the Company or may sell
or transfer shares of Common Stock beneficially owned by them from time to time
in public or private transactions and/or may enter into privately negotiated
derivative transactions with institutional counterparties to hedge the market
risk of some or all of their positions in the shares of Common Stock or other
securities and/or may cause any of the Reporting Persons to distribute in kind
to their respective partners or members, as the case may be, shares of Common
Stock or other securities. Any such transactions may be effected at any time or
from time to time subject to any applicable limitations imposed on the sale of
any of their Company securities by the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder (the "Securities Act") or other
applicable law. To the knowledge of each Reporting Person, each of the persons
listed on Schedules I, II or III hereto may make similar evaluations from time
to time or on an ongoing basis and reserves the same rights.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER
Item 6 is hereby amended by inserting at the end thereof:
SHAREHOLDERS AGREEMENT
WHSHC and W9 LLC (the "Shareholders") are parties to a Shareholders
Agreement (the "Shareholders Agreement"), dated as of April 7, 2005, with the
Company. Under the Shareholders Agreement, the Shareholders have the right to
nominate one person as a director to the Company's Board of Directors so long as
the fully diluted ownership of the Shareholders is not less than 10% in the
aggregate, and the Company has agreed to use its best efforts to cause the
election of the Shareholders' nominee. Under the Shareholders Agreement, in the
event of the death, disability, removal or resignation of the director nominated
by the Shareholders, the Shareholders have the right to nominate a successor
director nominee, who will be promptly appointed by the remaining directors to
serve the unexpired term of the former director.
The foregoing description of the Shareholders Agreement is qualified in
its entirety by reference to the Shareholders Agreement, which is filed as an
exhibit hereto, and which is incorporated by reference into this Item 6.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 is hereby amended by inserting at the end thereof:
Exhibit Description
------------- -----------------------------------------------------------------
16. Shareholders Agreement, dated as of April 7, 2005, among WHSHC,
L.L.C. and W/WHSHC, L.C.C. I, on the one hand, and Strategic
Hotel Capital, Inc., on the other hand.
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: April 11, 2005
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Ted Chang
-------------------------------------
Name: Ted Chang
Title: Attorney-in-Fact
GOLDMAN, SACHS & CO.
By: /s/ Ted Chang
-------------------------------------
Name: Ted Chang
Title: Attorney-in-Fact
WH ADVISORS, L.L.C. VII
By: /s/ Ted Chang
-------------------------------------
Name: Ted Chang
Title: Attorney-in-Fact
WH ADVISORS, L.L.C. IX
By: /s/ Ted Chang
-------------------------------------
Name: Ted Chang
Title: Attorney-in-Fact
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII
By: /s/ Ted Chang
-------------------------------------
Name: Ted Chang
Title: Attorney-in-Fact
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP IX
By: /s/ Ted Chang
-------------------------------------
Name: Ted Chang
Title: Attorney-in-Fact
WHSHC, L.L.C.
By: /s/ Ted Chang
-------------------------------------
Name: Ted Chang
Title: Attorney-in-Fact
W9/WHSHC, L.L.C. I
By: /s/ Ted Chang
-------------------------------------
Name: Ted Chang
Title: Attorney-in-Fact
SCHEDULE I
The name of each director of The Goldman Sachs Group, Inc. is set forth
below.
The business address of each person listed below is c/o Goldman, Sachs
& Co., 85 Broad Street, New York, NY 10004.
Each person is a citizen of the United States of America except for
Lord Browne of Madingley, who is a citizen of the United Kingdom and Claes
Dahlback, who is a citizen of Sweden. The present principal occupation or
employment of each of the listed persons is set forth below.
Name Present Principal Occupation
---- ----------------------------
Henry M. Paulson, Jr. Chairman of the Board and Chief Executive Officer
of The Goldman Sachs Group, Inc.
Lloyd C. Blankfein President and Chief Operating Officer of The
Goldman Sachs Group, Inc.
Lord Browne of Madingley Group Chief Executive of BP plc
John H. Bryan Retired Chairman and Chief Executive Officer of
Sara Lee Corporation
Stephen Friedman Former Assistant to the President for Economic
Policy and Former Director of the National
Economic Council
Claes Dahlback Senior Advisor to Investor AB
William W. George Retired Chairman and Chief Executive Officer of
Medtronic, Inc.
James A. Johnson Vice Chairman of Perseus, L.L.C.
Lois D. Juliber Retired Vice Chairman of Colgate-Palmolive
Company
Edward M. Liddy Chairman of the Board, President and Chief
Executive Officer of The Allstate Corporation
Ruth J. Simmons President of Brown University
SCHEDULE III
The name and principal occupation of each member of the Whitehall
Investment Committee of Goldman, Sachs & Co., which exercises the authority of
Goldman, Sachs & Co. in managing each of WH Advisors, L.L.C. VII and WH
Advisors, L.L.C. IX, are set forth below.
The business address of each member listed below is 85 Broad Street,
New York, New York 10004, except as follows: The business address of Richard H.
Powers and Edward M. Siskind is 133 Fleet Street, London EC4A 2BB, England. The
business address of Todd A. Williams is 100 Crescent Court, Suite 1000, Dallas,
TX 75201. The business address of Toshinobu Kasai is Roppongi Hills Mori Tower,
47th floor, 10-1, Roppongi 6-chome, Minato-ku, Tokyo 106-6147, Japan.
Each member listed below is a citizen of the United States, except as
follows: Brahm S. Cramer is a citizen of Canada. Toshinobu Kasai is a citizen of
Japan.
Name Present Principal Occupation
---- ----------------------------
Broderick, Craig Managing Director of Goldman, Sachs & Co.
Chan, Lacxon Vice President of Goldman, Sachs & Co.
Cramer, Brahm S. Managing Director of Goldman, Sachs & Co.
Feldman, Steven M. Managing Director of Goldman, Sachs & Co.
Friedman, Richard A. Managing Director of Goldman, Sachs & Co.
Jonas, Andrew J. Managing Director of Goldman, Sachs & Co.
Kasai, Toshinobu Managing Director of Goldman Sachs (Japan) Ltd.
Powers, Richard H. Managing Director of Goldman Sachs
International
Rosenberg, Ralph F. Managing Director of Goldman, Sachs & Co.
Rothenberg, Stuart M. Managing Director of Goldman, Sachs & Co.
Siskind, Edward M. Managing Director of Goldman Sachs
International
Viniar, David A. Managing Director of Goldman, Sachs & Co.
Williams, Todd A. Managing Director of Goldman, Sachs & Co.
SCHEDULE IV
In November 2002, the SEC, the National Association of Securities
Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged that
five broker dealers, including Goldman Sachs, violated Section 17(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 17a-4
thereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and 3110 by allegedly
failing to preserve electronic mail communications for three years and/or to
preserve electronic mail communications for the first two years in an accessible
place, and by allegedly having inadequate supervisory systems and procedures in
relation to the retention of electronic mail communications. Without admitting
or denying the allegations, the five broker dealers, including Goldman Sachs,
consented to censure by the SEC, NASD and NYSE and to the imposition of a
cease-and-desist order by the SEC and Goldman Sachs paid a total fine of
$1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also
undertook to review its procedures regarding the preservation of electronic mail
communications for compliance with the federal securities laws and regulations
and the rules of the NASD and NYSE, and to confirm within a specified period of
time that it has established systems and procedures reasonably designed to
achieve compliance with those laws, regulations and rules.
On April 28, 2003, without admitting or denying liability, ten
investment banking firms including Goldman Sachs, entered into global
settlements with the SEC, the NYSE, the NASD and certain states to resolve the
investigations relating to equity research analyst conflicts of interest.
Goldman Sachs was charged with violating NYSE Rules 342, 401, 472 and 475, and
NASD Conduct Rules 2110, 2210 and 3010. Goldman Sachs also agreed to a censure
by the NYSE and the NASD and to pay a total of $110,000,000 and to adopt a set
of industry-wide reforms of its research and investment banking businesses and
to adopt certain restrictions on the allocations of "hot" IPO shares. The terms
of the global settlement were entered in an order by a federal court in the
Southern District of New York on October 31, 2003 (Civil Action Number
03CV2944).
On September 4, 2003, Goldman Sachs and the SEC settled administrative
proceedings relating to certain trading in U.S. Treasury securities by Goldman
Sachs on the morning of October 31, 2001. The Staff of the SEC alleged that
Goldman Sachs violated (i) Section 15(c)(1) and Rule 15c1-2 of the Exchange Act
as a result of certain trading in U.S. Treasury bonds over an eight minute
period on October 31, 2001; and (ii) Section 15(f) of the Exchange Act by
failing to maintain policies and procedures specifically addressed to the
possible misuse of non-public information obtained from outside consultants.
Under the Offer of Settlement submitted by Goldman Sachs and accepted by the
SEC, without admitting or denying the SEC's allegations, Goldman Sachs consented
to the entry of an Order that, among other things, (i) censured Goldman Sachs;
(ii) directed Goldman Sachs to cease and desist from committing or causing any
violations of Section 15(c)(1)(A) & (C) and 15(f) and Rule 15c1-2 of the
Exchange Act; (iii) ordered Goldman Sachs to pay disgorgement and prejudgment
interest in the amount of $1,742,642, and a civil monetary penalty of $5
million; and (iv) directed Goldman Sachs to conduct a review its policies and
procedures and to adopt, implement and maintain policies and procedures
consistent with the Order and that review. Goldman Sachs also undertook to pay
$2,562,740 in disgorgement and interest relating to certain trading in U.S.
Treasury bond futures during the same eight minute period.
On July 1, 2004, Goldman Sachs and the SEC settled administrative
proceedings relating to communications from Goldman Sachs sales traders on its
Asian Shares Sales Desk to certain institutional customers and news media
Page 1
concerning four international public securities offerings during the period
between October 1999 and March 2000. The SEC alleged (i) that certain of these
communications by Goldman Sachs employees were made after the registration
statements pertaining to those offerings were filed, but not yet declared
effective by the SEC, in violation of Section 5(b) of the Securities Act and
(ii) that certain comments to the news media by Goldman Sachs with respect to
one of the offerings constituted an offer to sell securities in violation of
Section 5(c) of the Securities Act. The SEC also alleged that Goldman Sachs
failed to adequately supervise the Asian Shares Sales Desk traders, as required
by Section 15(b)(4)(E) of the Exchange Act. Under the Offer of Settlement
submitted by Goldman Sachs and accepted by the SEC, without admitting or denying
the SEC's allegations, Goldman Sachs consented to the entry of an Order that,
among other things, directed Goldman Sachs to cease and desist from committing
or causing any violations of Sections 5(b) and 5(c) of the Securities Act., and
ordered Goldman Sachs to pay a civil monetary penalty of $2 million.
Page 2
EXHIBIT INDEX
Exhibit Description
------------- -----------------------------------------------------------------
1. Structuring and Contribution Agreement, dated as of February 13,
2004, by and among SHC Funding, Strategic Hotel Capital, L.L.C.
("SHC LLC"), Whitehall Street Real Estate Limited Partnership
VII, Whitehall Street Real Estate Limited Partnership IX and
other parties thereto (incorporated by reference to Exhibit 10.2
to the registration statement on Form S-11 (File No. 333-112846)
filed by the Company)).
2. Underwriting Agreement, dated as of June 23, 2004, among
Strategic Hotel Capital, Inc. Strategic Hotel Funding, L.L.C. and
the underwriters named therein (previously filed).
3. Lock-Up Agreement, dated as of June 23, 2004, between Goldman,
Sachs & Co., as representative of the several underwriters named
in Schedule I to the underwriting agreement and WHSHC, L.L.C.
(previously filed).
4. Lock-Up Agreement, dated as of June 23, 2004, between Goldman,
Sachs & Co., as representative of the several underwriters named
in Schedule I to the underwriting agreement and W9/WHSHC, L.L.C.
I. (previously filed).
5. Registration Rights Agreement, dated as of June 29, 2004, among
Strategic Hotel Capital, Inc., WHSHC, L.L.C., W9/WHSHC, L.L.C. I
and the other parties thereto (previously filed).
6. Voting Agreement, dated as of June 8, 2004, among Laurence
Geller, Strategic Hotel Capital, Inc., WHSHC, L.L.C. and
W9/WHSHC, L.L.C. I. (previously filed).
7. Joint Filing Agreement (previously filed).
8. Power of Attorney, dated December 12, 2003, relating to The
Goldman Sachs Group, Inc. (previously filed).
9. Power of Attorney, dated November 19, 2003, relating to Goldman,
Sachs & Co. (previously filed).
10. Power of Attorney, dated June 24, 2004, relating to WH Advisors,
L.L.C. VII (previously filed).
11. Power of Attorney, dated June 24, 2004, relating to WH Advisors,
L.L.C. IX (previously filed).
12. Power of Attorney, dated June 24, 2004, relating to Whitehall
Street Real Estate Limited Partnership VII (previously filed).
13. Power of Attorney, dated June 24, 2004, relating to Whitehall
Street Real Estate Limited Partnership IX (previously filed).
14. Power of Attorney, dated June 24, 2004, relating to WHSHC, L.L.C.
(previously filed).
15. Power of Attorney, dated June 24, 2004, relating to W9/WHSHC,
L.L.C. I (previously filed).
16. Shareholders Agreement, dated as of April 7, 2005, among WHSHC,
L.L.C. and W9/WHSHC, L.C.C. I, on the one hand, and Strategic
Hotel Capital, Inc., on the other hand.
EX-99.16
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sc0104a.txt
EXHIBIT 16: SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (this "Agreement"), is made and entered
into as of April 7, 2005 among WHSHC, L.L.C., a Delaware limited liability
company, and W9/WHSHC, L.C.C. I, a Delaware limited liability company
(individually a "Shareholder" and collectively the "Shareholders") and Strategic
Hotel Capital, Inc., a Maryland corporation (the "Company").
W I T N E S S E T H
WHEREAS, the Company and the Shareholders are parties to an Observer
Agreement, dated as of June 29, 2004 (the "Observer Agreement"), pursuant to
which, among other things, the Shareholders are entitled to appoint observers to
attend meetings of the Board of Directors of the Company and to receive certain
information on a confidential basis regarding the Company, all subject to the
terms set forth in the Observer Agreement;
WHEREAS, pursuant to a letter agreement dated the date hereof, the
parties have agreed to replace the Observer Agreement with this Agreement as
provided herein; and
WHEREAS, the Shareholders and the Company wish to record their
understanding regarding certain matters relating to the management of the
Company and certain other matters.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. In addition to the terms defined in the
preamble to this Agreement and elsewhere herein, the following terms shall have
the meanings set forth herein for the purposes of this Agreement:
"Affiliate" shall mean, with respect to a Person (as hereinafter
defined), any other Person that, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with
such Person.
"Board of Directors" shall mean the Board of Directors of the Company
in office at the applicable time as elected in accordance with the provisions of
the Maryland General Corporation Law, the Charter and the Bylaws.
"Bylaws" shall mean the bylaws of the Company, as amended from time to
time.
"Charter" shall mean the charter of the Company, as amended from time
to time.
"Common Stock" shall mean the shares of common stock, par value $0.01
per share, of the Company.
"Common Stock Deemed Outstanding" shall mean, as of any date, the total
number of shares of Common Stock outstanding as of such date plus the total
number of shares of Common Stock which may be acquired upon exercise or
conversion of all options, warrants or other securities or rights convertible
into or exercisable for shares of Common Stock which were outstanding as of such
date, whether or not convertible or exercisable within 60 days of such date.
"Deemed Beneficial Ownership" shall mean, with respect to the
Shareholders as of any date, the percentage obtained by dividing (a) the total
number of shares of Common Stock owned of record or beneficially by the
Shareholders as of such date plus the total number of shares of Common Stock
which may be acquired by the Shareholders upon exercise or conversion of all
options, warrants or other securities or rights convertible into or exercisable
for shares of Common Stock which were held by the Shareholders as of such date,
whether or not convertible or exercisable within 60 days of such date, by (b)
the Common Stock Deemed Outstanding as of such date.
"Person" shall mean an individual, corporation, partnership, trust,
joint venture, limited liability company, unincorporated organization or other
legal entity, or a government or any agency or political subdivision thereof.
ARTICLE II
BOARD REPRESENTATION
Section 2.1 Right to Nominee. The Shareholders shall collectively have
the right to nominate one person (such person, the "Shareholder Nominee"), as a
director (such person, the "Shareholder Director") to the Board of Directors so
long as the Deemed Beneficial Ownership of the Shareholders is not less than 10%
in the aggregate. The Shareholders shall not name any person as the Shareholder
Nominee if: (a) such person is not reasonably experienced in business, financial
and lodging industry matters; (b) such person has been convicted of, or has pled
nolo contendere to, a felony; (c) the election of such person would violate any
law; or (d) any event required to be disclosed pursuant to Item 401(f) of
Regulation S-K of the Exchange Act has occurred with respect to such person.
Section 2.2 Election of Directors. The Company hereby covenants and
agrees that, during such time as the Shareholders have the right to nominate the
Shareholder Nominee pursuant to Section 2.1, the Company shall use its best
efforts to cause the election of the Shareholder Nominee.
Section 2.3 Shareholders' Meeting. Immediately upon execution of this
Agreement by all parties hereto, the Shareholders may by written notice identify
the Shareholder Nominee, who will be nominated by the Board of Directors for
election at the next annual meeting of shareholders to elect directors of the
Company in accordance with Sections 2.1 and 2.2 hereof. The Shareholder Director
will not be entitled to receive compensation as a director of the Company;
provided the Shareholder Director will be reimbursed for reasonable
out-of-pocket expenses incurred in connection with such director's services on
the Board of Directors to the same extent as other non-employee directors and
will be named as a covered insured and a
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beneficiary on the same basis as other non-employee directors under any
directors' and officers' insurance policy maintained by the Company for its
directors.
Section 2.4 Resignation, etc., of Directors. In the event of the death,
disability, removal or resignation of the Shareholder Director, the Shareholders
collectively shall notify the Company, within 30 days after such death,
disability, removal or resignation, of a successor Shareholder Nominee who shall
be promptly appointed by the remaining directors then in office to serve the
unexpired term of such former Shareholder Director whose departure created the
vacancy.
ARTICLE III
MISCELLANEOUS
Section 3.1 Amendment. This Agreement may be amended, modified or
supplemented but only in writing signed by each of the parties hereto.
Section 3.2 Expenses. Except as otherwise specifically provided in this
Agreement, each party hereto shall bear its own costs and expenses with respect
to the negotiation of this Agreement and the termination of the Observer
Agreement contemplated hereby.
Section 3.3 Notices. Any notice, request, instruction or other
communication to be given hereunder by a party hereto shall be dated and in
writing and shall be deemed to have been given, (a) when received if given in
person or by courier or a courier service, (b) on the date of transmission if
sent by telex, facsimile or other wire transmission or (c) three business days
after being deposited in the U.S. mail, certified or registered mail, postage
prepaid, directed at the following addresses:
(a) If to the Company, addressed as follows:
Strategic Hotel Capital, Inc.
77 West Wacker Drive
Chicago, Illinois 60601
Attention: General Counsel
Facsimile No.: (312) 658-5799
(b) If to WHSHC, L.L.C., addressed as follows:
WHSHC, L.L.C.
c/o Whitehall Street Real Estate Limited Partnership VII
85 Broad Street
New York, New York 10004
Attention: General Counsel
Facsimile No.: (212) 357-5505
(c) If to W9/WHSHC, L.L.C. I, addressed as follows:
Whitehall Street Real Estate Limited Partnership IX
85 Broad Street
New York, New York 10004
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Attention: General Counsel
Facsimile No.: (212) 357-5505
or to such other individual or address as a party hereto may designate for
itself by notice given as herein provided.
Section 3.4 Waivers. The failure of a party hereto at any time or times
to require performance of any provision hereof shall in no manner affect its
right at a later time to enforce the same. No waiver by a party of any condition
or of any breach of any term, covenant, representation or warranty contained in
this Agreement shall be effective unless in writing, and no waiver in any one or
more instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
Section 3.5 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 3.6 Interpretation. The headings preceding the text of Articles
and Sections included in this Agreement are for convenience only and shall not
be deemed part of this Agreement or be given any effect in interpreting this
Agreement. The use of the masculine, feminine or neuter gender herein shall not
limit any provision of this Agreement. The use of the terms "including" or
"include" shall in all cases herein mean "including, without limitation" or
"include, without limitation," respectively.
Section 3.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS.
Section 3.8 Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Except as otherwise specifically provided in this Agreement, no
assignment of any rights or obligations shall be made by any party without the
written consent of the other parties hereto.
Section 3.9 No Third Party Beneficiaries. This Agreement is solely for
the benefit of the parties hereto and no provision of this Agreement shall be
deemed to confer upon other third parties any remedy, claim, liability,
reimbursement, cause of action or other right.
Section 3.10 Severability. If any provision of this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality or enforceability
of the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
Section 3.11 Remedies Cumulative. The remedies provided in this
Agreement shall be cumulative and shall not preclude the assertion or exercise
of any other rights or remedies available by law, in equity or otherwise.
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Section 3.12 Entire Understanding. This Agreement sets forth the entire
agreement and understanding of the parties hereto with respect to the matters
set forth herein and supersedes any and all prior agreements, arrangements and
understandings among the parties.
Section 3.13 Termination. This Agreement shall terminate (i) on the
first date upon which the Deemed Beneficial Ownership of the Shareholders is
less than 10% or (ii) immediately upon delivery of written notice of termination
by the Shareholders to the Company, which notice may be given at any time at the
sole discretion of the Shareholders.
Section 3.14 Effectiveness; Replacement of Observer Agreement. The
Company has agreed that it will nominate a Shareholder Nominee for election at
its 2005 annual meeting of shareholders. This Agreement shall become effective
immediately upon election of such Shareholder Nominee at such meeting and the
Observer Agreement shall immediately be replaced by this Agreement and,
thereafter, the terms of the Observer Agreement shall have no further force or
effect. In the event that such Shareholder Nominee is not elected at the
Company's 2005 annual meeting of shareholders, this Agreement shall not become
effective and the Observer Agreement shall remain in full force and effect.
Notwithstanding the foregoing, the confidentiality obligations set forth in
Section 3.11 of the Observer Agreement shall survive the replacement of the
Observer Agreement in accordance with the terms thereof.
Section 3.15 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
STRATEGIC HOTEL CAPITAL, INC.
By: /s/ Laurence S. Geller
-----------------------------------------------
Laurence S. Geller
President and Chief Executive Officer
WHSHC, L.L.C.
By: Whitehall Street Real Estate Limited
Partnership VII
By: WH Advisors, L.P. VII, General Partner
By: WH Advisors, Inc., VII,
General Partner
By: /s/ Alan Kava
------------------------------------
Name: Alan Kava
Title: Vice President
W9/WHSHC, L.L.C. I
By: Whitehall Real Estate Limited Partnership IX
By: WH Advisors, L.L.C. IX, General Partner
By: /s/ Alan Kava
------------------------------------------------
Name: Alan Kava
Title: Vice President
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