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 2 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 2 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 3 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. 4 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. * * * * * 5 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 6