AGREEMENT AND PLAN OF MERGER
BY AND AMONG
AIRCOA HOTEL PARTNERS, L.P.,
AIRCOA HOSPITALITY SERVICES, INC.,
REGAL HOTEL MANAGEMENT, INC.
AND
REGAL MERGER LIMITED PARTNERSHIP
May 2, 1997
TABLE OF CONTENTS
Page
RECITALS..........................................................1
ARTICLE I -- The Merger...........................................2
1.1 The Merger.............................................2
1.2 Effective Time of the Merger...........................2
1.3 Closing................................................2
1.4 Effects of the Merger; General Partner.................3
1.5 Governing Documents....................................3
1.6 Conversion of Securities...............................3
1.7 Payment................................................4
1.8 Delisting of Class A Units and Depositary Receipts.....5
1.9 Appraisal Rights.......................................5
ARTICLE II -- Approval of the Merger..............................5
2.1 Actions of the Partnership and the General Partner.....5
2.2 Proxy Statement........................................5
ARTICLE III -- Representations and Warranties of the Parent
and Regal..........................................6
3.1 Organization and Qualification.........................6
3.2 Authority Relative to this Agreement...................6
3.3 Compliance.............................................6
3.4 Documents and Information..............................7
3.5 Financing..............................................7
3.6 Solvency...............................................7
ARTICLE IV -- Representations and Warranties of the Partnership...8
4.1 Organization and Qualification.........................8
4.2 Capitalization.........................................8
4.3 Fees...................................................8
4.4 Documents and Information..............................8
4.5 Opinion of Financial Advisor...........................9
ARTICLE V -- Covenants............................................9
5.1 Legal Conditions to the Merger.........................9
5.2 State Statutes.........................................9
5.3 Special Committee......................................9
ARTICLE VI -- Additional Agreements...............................9
6.1 Public Announcements...................................9
6.2 Expenses..............................................10
ARTICLE VII -- Conditions Precedent..............................10
7.1 Certain Conditions on the Obligation of Regal to
Consummate the Merger.................................10
7.2 Obligation of Each Party to Effect the Merger.........11
ARTICLE VIII -- Termination......................................12
8.1 Termination...........................................12
8.2 Effect of Termination.................................12
ARTICLE IX -- General Provisions.................................13
9.1 Amendment.............................................13
9.2 Extension; Waiver.....................................13
9.3 Nonsurvival of Representations, Warranties and
Agreements............................................13
9.4 Entire Agreement; Counterparts........................13
9.5 Severability..........................................13
9.6 Notices...............................................14
9.7 Interpretation........................................15
9.8 Headings..............................................15
9.9 Assignment............................................15
9.10 Governing Law........................................16
9.11 Consent to Jurisdiction; Service of Process..........16
9.12 Limitation of Liability..............................16
9.13 Limitation of Remedies...............................16
AGREEMENT AND PLAN OF MERGER (this "Agreement") dated
as of May 2, 1997, among AIRCOA HOTEL PARTNERS, L.P., a Delaware
limited partnership (the "Partnership"), AIRCOA HOSPITALITY
SERVICES, INC., a Delaware corporation (the "General Partner"),
REGAL HOTEL MANAGEMENT, INC., a Delaware corporation (the
"Parent"), and REGAL MERGER LIMITED PARTNERSHIP, a Delaware
limited partnership and a direct, wholly owned subsidiary of the
Parent ("Regal").
RECITALS
WHEREAS, the Partnership has heretofore issued Class A
limited partnership units (the "Class A Units") and Class B
limited partnership units (the "Class B Units" and, together with
the Class A Units, the "Units"), each representing limited
partner interests in the Partnership;
WHEREAS, all outstanding Class A Units have been
deposited with a depository (the "Depositary") designated by the
General Partner, pursuant to the terms of a Deposit Agreement
(the "Deposit Agreement") among the General Partner (both
individually and as attorney-in-fact for the holders of Class A
Units), the Depositary, the Partnership and all holders from time
to time of Class A Units represented by depositary receipts
("Depositary Receipts") or certificates (together with the Class
B Units represented by certificates, "Certificates");
WHEREAS, the General Partner is the sole general
partner of the Partnership;
WHEREAS, each of the Parent and Regal is an affiliate
(as used herein, such term shall have the meaning set forth in
the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (the "Exchange Act")) of the General
Partner;
WHEREAS, the Parent wishes to merge Regal with and
into the Partnership (the "Merger") pursuant and subject to the
terms and conditions of this Agreement, whereby each issued and
outstanding Unit not owned directly or indirectly by Regal, the
Parent or their affiliates will be converted into the right to
receive $3.10 per Class A Unit and $20.00 per Class B Unit (the
"Merger Consideration");
WHEREAS, the Board of Directors of the General Partner
has established a special committee consisting of persons not
otherwise affiliated with the General Partner (the "Special
Committee"), and has charged the Special Committee to negotiate
and determine the fairness of this Agreement and to, among other
things, approve any amendment of or waiver pursuant to this
Agreement on behalf of the Partnership;
WHEREAS, the Special Committee has considered the
fairness of this Agreement and the Merger to the holders of Units
("Unitholders"), other than the Parent and its affiliates (the
"Unaffiliated Unitholders"), and, subject to the terms and
conditions of this Agreement, (i) determined that the Merger is
fair to and in the best interests of the Unaffiliated
Unitholders, (ii) recommended that the General Partner approve
this Agreement and (iii) recommended that the Merger be approved
by the Unitholders;
WHEREAS, the General Partner, on its own behalf and on
behalf of the Partnership, and the Parent, on its own behalf and
on behalf of Regal, have duly approved this Agreement and the
Merger pursuant hereto, and the General Partner has determined,
upon the recommendation of the Special Committee, that the Merger
is fair to and in the best interests of the Unitholders and,
subject to the terms and conditions of this Agreement, has
recommended that the Merger be accepted by the Unitholders; and
WHEREAS, the Parent and affiliates of the Parent
holding, in the aggregate, approximately 71.0% of the outstanding
Class A Units and approximately 93.6% of the outstanding Class B
Units have agreed to submit this Agreement and the Merger to the
Unitholders for approval and adoption at a meeting of Unitholders
called for such purpose (the "Merger Meeting") pursuant to
Section 17.4 of the Agreement of Limited Partnership of AIRCOA
Hotel Partners, L.P., dated July 30, 1987 (as amended, the
"Partnership Agreement").
NOW THEREFORE, in consideration of the mutual benefits
to be derived from this Agreement and of the representations,
warranties, agreements and conditions contained in this
Agreement, the parties agree as follows:
ARTICLE I
The Merger
1.1 The Merger. In accordance with and subject to (a)
the provisions of this Agreement, (b) the Certificate of Merger
(as hereinafter defined), and (c) the Delaware Revised Uniform
Limited Partnership Act (the "Delaware Partnership Act"), at the
Effective Time (as hereinafter defined), Regal shall be merged
with and into the Partnership in the Merger. As a result of the
Merger, the separate existence of Regal shall cease, and the
Partnership shall continue as the surviving partnership. The
Partnership is hereinafter sometimes referred to as the
"Surviving Partnership."
1.2 Effective Time of the Merger. Subject to the
provisions of this Agreement, an appropriate form of certificate
of merger (the "Certificate of Merger") shall be duly executed
and filed by the Partnership and Regal on the Closing Date (as
hereinafter defined) in the manner provided in Section 17-211 of
the Delaware Partnership Act. The Merger shall become effective
at such time on the Closing Date as the Certificate of Merger is
filed with the Secretary of State of the State of Delaware (or
such later time as may be specified in the Certificate of Merger)
(the "Effective Time").
1.3 Closing. Unless this Agreement shall have been
terminated and the transactions contemplated by this Agreement
shall have been abandoned pursuant to the provisions of Article
VIII, and subject to the provisions of Sections 7.1 and 7.2
hereof, the closing of the Merger (the "Closing") will take place
at 10:00 a.m., Denver time, on the first Business Day (as
hereinafter defined) occurring after the Merger Meeting (which
shall occur after the passage of 20 business days from and after
the mailing of the Proxy Statement (as defined below) to
Unitholders) or, if later, the date which is the first Business
Day after all of the conditions set forth in Sections 7.1 and 7.2
hereof shall have been satisfied (or waived in accordance with
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Section 9.2 hereof), or such other date and time which is
agreed to in writing by the parties (the "Closing Date"). The
Closing shall take place at the offices of the Partnership at
0000 XXX Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, unless another
place is agreed to by the parties. For purposes of this
Agreement, "Business Day" shall mean any day except Saturday,
Sunday or any day on which banks are generally not open for
business in Denver, Colorado.
1.4 Effects of the Merger; General Partner. The Merger
shall, from and after the Effective Time, have the effects
provided for in the Delaware Partnership Act. The General Partner
shall be the general partner of the Surviving Partnership until
its resignation or removal or until its successor is duly
qualified.
1.5 Governing Documents. Following the Effective Time,
the Partnership Agreement of the Partnership shall be the
partnership agreement of the Surviving Partnership, until amended
in accordance with the provisions thereof and applicable law.
1.6 Conversion of Securities. At the Effective Time,
by virtue of the Merger and without any action on the part of
Regal, the Partnership, the Surviving Partnership or any holder
of any of the following securities:
(a) Each Class A Unit which is issued and outstanding
immediately prior to the Effective Time (other than Class A
Units owned by Regal Hotels International Holdings Limited,
a Bermuda company and an indirect parent of each of the
General Partner, the Parent and Regal ("Regal Holdings"),
or any direct or indirect subsidiary of Regal Holdings)
shall be canceled, extinguished and retired, and be
converted into and become a right to receive $3.10 in cash,
without interest (the "Class A Merger Consideration");
(b) Each Class B Unit which is issued and outstanding
immediately prior to the Effective Time (other than Class B
Units owned by Regal Holdings or any direct or indirect
subsidiary of Regal Holdings) shall be canceled,
extinguished and retired, and be converted into and become
a right to receive $20.00 in cash, without interest (the
"Class B Merger Consideration" and, together with the Class
A Merger Consideration, the "Merger Consideration");
(c) Each Unit which is issued and outstanding
immediately prior to the Effective Time and owned by Regal
Holdings or any direct or indirect subsidiary of Regal
Holdings shall be and remain a unit of limited partnership
interest in the Surviving Partnership;
(d) Each partnership interest, general or limited, of
Regal issued and outstanding immediately prior to the
Effective Time shall be canceled, extinguished and retired,
and no payment shall be made thereon; and
(e) The General Partner's general partnership interest
in the Partnership shall be and remain a general
partnership interest in the Surviving Partnership.
1.7 Payment. (a) From and after the Effective Time,
a bank or trust company organized under the laws of the United
States or any state thereof with capital, surplus and
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undivided profits of at least $100,000,000 that is designated by the
Parent (the "Payment Agent") shall act as payment agent in effecting
the payment of the Merger Consideration for Units pursuant to
Sections 1.6(a) and 1.6(b) hereof. At or before the Effective
Time, the Parent or Regal shall deposit with the Payment Agent
the aggregate Merger Consideration in trust for the benefit of
the Unaffiliated Units. Promptly after the Effective Time, the
Payment Agent shall mail to each record holder of Depository
Receipts or Certificates a form of letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss
and title to such Depositary Receipts or Certificates shall pass,
only upon delivery of such Depositary Receipts or Certificates to
the Payment Agent) and instructions for use in surrendering such
Depositary Receipts or Certificates and receiving the Merger
Consideration for each Unit previously represented thereby. Upon
the surrender of each such Depositary Receipt or Certificate and
the payment by the Payment Agent of the Merger Consideration in
exchange therefor, such Depositary Receipts and Certificates
shall forthwith be canceled. Until so surrendered and exchanged,
each such Depositary Receipt or Certificate (other than
Depositary Receipts or Certificates representing Units held by
Regal Holdings or any direct or indirect subsidiary of Regal
Holdings) shall represent solely the right to receive the Class A
Merger Consideration or the Class B Merger Consideration, as
applicable, multiplied by the number of Class A Units or Class B
Units, respectively, represented by such Depositary Receipt or
Certificate, and the holder thereof shall have no rights
whatsoever as a Unitholder of the Partnership or the Surviving
Partnership. Upon the surrender of such outstanding Depositary
Receipt or Certificate, the holder shall receive such Merger
Consideration, without any interest thereon. If any cash is to be
paid to a name other than the name in which the Depositary
Receipt or Certificate surrendered in exchange therefor is
registered, it shall be a condition to such payment that the
person requesting such payment shall pay to the Payment Agent any
transfer or other taxes required by reason of the payment of such
cash to a name other than that of the registered holder of the
Depositary Receipt or Certificate surrendered, or such person
shall establish to the satisfaction of the Payment Agent that
such tax has been paid or is not applicable. Notwithstanding the
foregoing, neither the Payment Agent nor any party hereto shall
be liable to a holder of Depositary Receipts or Certificates for
any Merger Consideration or other payments made to a public
official pursuant to applicable abandoned property laws. The
Surviving Partnership and the Payment Agent shall be entitled to
deduct and withhold from the Merger Consideration otherwise
payable to a holder of Units pursuant to the Merger any taxes or
other amounts as are required by applicable law, including
without limitation Sections 3406 and 1445 of the Internal Revenue
Code of 1986. To the extent that amounts are so withheld by the
Surviving Partnership or the Payment Agent, they shall be treated
for all purposes of this Agreement as having been paid to the
holder of the Units in respect of which such deduction and
withholding was made.
(b) Six (6) months after the Closing Date, the
Surviving Partnership shall be entitled to the return of all
amounts then held by the Payment Agent pursuant to Section 1.7(a)
(including earnings thereon), and the Payment Agent's duties
shall terminate. Thereafter, any holder of a Depositary Receipt
or Certificate shall look only to the Surviving Partnership
(subject to applicable abandoned property, escheat and similar
laws) as a general creditor to receive in exchange therefor the
Merger Consideration, without any interest thereon.
(c) At and after the Effective Time, there shall be no
transfers on the books of the Surviving Partnership of any Unit
other than Units which remain outstanding pursuant to Section
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1.6(b) hereof. As of the Effective Time, each holder of a Unit
which was converted into the right to receive cash pursuant to
Section 1.6(a) hereof shall be deemed to have withdrawn as a
limited partner and shall have no further interest in the
Partnership or the Surviving Partnership or any allocations or
distributions of income, property or otherwise, other than the
right to receive the Merger Consideration as provided in this
Article I.
1.8 Delisting of Class A Units and Depositary
Receipts. Following the Effective Time, the General Partner, on
behalf of the Partnership, shall take all actions necessary to
effect the delisting of the Class A Units and the Depositary
Receipts from the American Stock Exchange and the deregistration
of the Class A Units and the Depositary Receipts with the
Securities and Exchange Commission (the "Commission").
1.9 Appraisal Rights. Unitholders shall not have any
appraisal or dissenters' rights in connection with the Merger.
ARTICLE II
Approval of the Merger
2.1 Actions of the Partnership and the General
Partner. (a) The General Partner hereby consents to the Merger,
agrees in all respects with the terms of this Agreement and,
subject to the terms and conditions of this Agreement, the
consummation of the transactions contemplated hereby. In
connection therewith, pursuant to the Delaware Partnership Act
and Article VIII of the Partnership Agreement, by executing this
Agreement, the General Partner, as the sole general partner of
the Partnership, consents to and approves in all respects this
Agreement and the transactions contemplated hereby (including,
without limitation, the Merger) on behalf of the Partnership. The
General Partner hereby represents that, at a meeting of its Board
of Directors duly called and held on May 2, 1997, (i) such Board
approved, upon the recommendation of the Special Committee, this
Agreement and the Merger and has determined that the Merger,
considered as a whole, is fair to and in the best interests of
the Unaffiliated Unitholders and (ii) such Board recommended that
the Unitholders of the Partnership approve and adopt this
Agreement and the Merger.
(b) Each of the General Partner, the Parent and
affiliates of the Parent holding, in the aggregate, approximately
71.0% of the outstanding Class A Units and approximately 93.6% of
the outstanding Class B Units, shall approve and consent to this
Agreement and the Merger by a vote in person or by proxy at the
Merger Meeting to be held twenty (20) calendar days from and
after the mailing of the Proxy Statement to the Unitholders.
2.2 Proxy Statement. Promptly following the execution
of this Agreement, the Partnership shall prepare (and Regal shall
cooperate in preparing) and as soon as reasonably practicable
thereafter shall file with the Commission a preliminary Proxy
Statement with respect to the Merger. Subject to compliance with
the rules and regulations of the Commission, the Partnership
shall thereafter file with the Commission and mail to Unitholders
a definitive Proxy Statement with respect to the Merger (the
"Proxy Statement"). The term "Proxy Statement" shall mean such
Proxy Statement at the time it initially is mailed to the
Unitholders and all amendments
5
or supplements thereto, if any, similarly filed and mailed. Regal
and the Partnership each agree to correct any information
provided by it for use in the Proxy Statement which shall have
become false or misleading in any material respect.
ARTICLE III
Representations and Warranties of the Parent and Regal
The Parent and Regal, jointly and severally, represent
and warrant at the date hereof to the Partnership as follows:
3.1 Organization and Qualification. Regal is a limited
partnership duly formed, validly existing and in good standing
under the laws of the State of Delaware, with the requisite power
and authority to carry on its respective business as now
conducted. The Parent is the sole general partner of Regal. The
Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the
requisite corporate power and authority to carry on its
respective business as now conducted. Each of the Parent and
Regal is duly qualified to do business, and is in good standing,
in each jurisdiction where the character of its properties owned
or leased or the nature of its activities makes such
qualification necessary, except where the failure to be so
qualified or in good standing would not, in the aggregate, have a
material adverse effect on the Parent and its subsidiaries, taken
as a whole. Copies of the charter and bylaws of the Parent and
the Certificate of Limited Partnership and the Limited
Partnership Agreement of Regal (such documents, the
"Organizational Documents") previously delivered to the
Partnership are accurate and complete as of the date hereof.
3.2 Authority Relative to this Agreement. Each of the
Parent and Regal has the requisite power and authority to enter
into this Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement by the
Parent and Regal and the consummation by the Parent and Regal of
the transactions contemplated hereby have been duly authorized by
the Board of Directors of the Parent, including in the Parent's
capacity as general partner of Regal, and no other action or
proceeding on the part of the Parent or Regal is necessary to
authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by
the Parent and Regal and constitutes a valid and binding
obligation of each of them, enforceable in accordance with its
terms, except to the extent that its enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or
other laws affecting the enforcement of creditors' rights
generally or by general equitable principles.
3.3 Compliance. (a) Neither the execution and delivery
of this Agreement by the Parent and Regal nor the consummation of
the transactions contemplated hereby nor compliance by the Parent
and Regal with any of the provisions hereof will (i) violate,
conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result
in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Parent or
Regal or any other direct or indirect subsidiary of the Parent
6
under, any of the terms, conditions or provisions of (x)
the respective Organizational Documents of the Parent or Regal or
any partnership agreement or charter or bylaws of any other
direct or indirect subsidiary of the Parent or (y) any material
note, bond, mortgage, indenture, deed of trust, license, lease,
agreement or other instrument or obligation to which the Parent
or Regal or any other direct or indirect subsidiary of the Parent
is a party, or to which any of them, or any of their respective
properties or assets, may be subject, or (ii) subject to
compliance with the statutes and regulations referred to in the
next paragraph, violate any judgment, ruling, order, writ,
injunction, decree, statute, rule or regulation applicable to the
Parent or Regal or any other direct or indirect subsidiary of the
Parent or any of their respective properties or assets, except,
in the case of each of clauses (i) and (ii) above, for such
violations, conflicts, breaches, defaults, terminations,
accelerations or creations of liens, security interests, charges
or encumbrances, which, in the aggregate, would not have a
material adverse effect on the transactions contemplated hereby
or on the condition (financial or other), business or operations
of the Parent and its subsidiaries taken as a whole (a "Material
Adverse Effect on the Parent").
(b) Other than in connection with or in compliance
with the provisions of the Delaware Partnership Act, the Exchange
Act, any state "anti-takeover" ("State Takeover Laws") or "blue
sky" laws ("Blue Sky Laws") or other similar statutes and
regulations, no notice to, filing with, or authorization, consent
or approval of, any domestic or foreign public body or authority
is necessary for the consummation by the Parent or Regal of the
transactions contemplated by this Agreement, except where failure
to give such notice, make such filings, or obtain authorizations,
consents or approvals would not, in the aggregate, have a
Material Adverse Effect on the Parent.
3.4 Documents and Information. The information
supplied by the Partnership, Parent or Regal expressly for
inclusion in the Proxy Statement shall not, (i) at the time of
the mailing thereof and (ii) at the Closing Date, contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
3.5 Financing. The Parent has sufficient available
funds to consummate the Merger, and shall make such funds
available to Regal for such purposes.
3.6 Solvency. At the Effective Time and after giving
effect to any changes in the Parent's, Regal's or the Surviving
Partnership's assets and liabilities as a result of the Merger,
none of the Parent, Regal or the Surviving Partnership will (i)
be insolvent (either because its financial condition is such that
the sum of its debts is greater than the fair value of its assets
or because the present fair salable value of its assets will be
less than the amount required to pay its probable liability on
its debts as they become absolute and matured); (ii) have
unreasonably small capital with which to engage in its business;
or (iii) have incurred or plan to incur debts beyond its ability
to pay as they become absolute and matured.
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ARTICLE IV
Representations and Warranties of the Partnership
The Partnership represents and warrants to each of the
Parent and Regal at the date hereof as follows:
4.1 Organization and Qualification. The Partnership is
a limited partnership duly formed, validly existing and in good
standing under the laws of the State of Delaware and has the
requisite power and authority to carry on its business as it is
now being conducted. The Partnership is duly qualified to do
business, and is in good standing, in each jurisdiction where the
character of its properties owned or leased or the nature of its
activities makes such qualification necessary, except where the
failure to be so qualified or in good standing would not, in the
aggregate, have a material adverse effect on the Partnership and
its subsidiaries, taken as a whole. Copies of the Partnership
Agreement and the Certificate of Limited Partnership of the
Partnership which have heretofore been delivered to the Parent
are accurate and complete as of the date hereof.
4.2 Capitalization. As of the date hereof, there are
5,340,214 Class A Units and 950,000 Class B Units issued and
outstanding. All such Units have been validly issued. Other than
such Class A Units and Class B Units and the General Partner's
general partnership interest, there are no equity securities of
the Partnership authorized or outstanding, and, other than (a)
the Class B Units which are convertible into Class A Units and
(b) two promissory notes of the Partnership dated June 8, 1995,
payable to the General Partner, in the principal amounts of $2.1
million and $6 million, which are convertible into Class A Units,
there are no outstanding options, warrants, rights to subscribe
to (including any preemptive rights), calls or commitments of any
character whatsoever to which the Partnership or any subsidiary
of the Partnership is a party or may be bound, requiring the
issuance or sale of any Units or other equity securities of the
Partnership or securities or rights convertible into or
exchangeable for such Units or other equity securities, and there
are no contracts, commitments, understandings or arrangements by
which the Partnership is or may become bound to issue additional
Units or other equity securities or options, warrants or rights
to purchase or acquire any additional Units or other equity
securities or securities convertible into or exchangeable for
such Units or other equity securities.
None of the Units are held by the Partnership in treasury.
4.3 Fees. The Special Committee has not paid or agreed
to pay any fee or commission to any broker, finder or
intermediary in connection with the transactions contemplated
hereby.
4.4 Documents and Information . The information
supplied by the Partnership expressly for inclusion in the Proxy
Statement shall not, (i) at the time of the mailing thereof and
(ii) at the Closing Date, contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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4.5 Opinion of Financial Advisor. Xxxxxxxx Xxxxx,
the financial advisor to the Special Committee (the "Financial
Advisor"), has delivered to the Special Committee its written
opinion, dated May 2, 1997, that the Merger Consideration to be
received by the Unitholders pursuant to the Merger, taken as a
whole, is fair, from a financial point of view, to the
Unaffiliated Unitholders.
ARTICLE V
Covenants
5.1 Legal Conditions to the Merger. The General
Partner (on behalf of itself and the Partnership), Regal and the
Parent shall take all reasonable actions necessary to comply
promptly with all legal requirements with respect to the Merger
and shall take all reasonable action necessary to cooperate
promptly with and furnish information to the other parties in
connection with any such requirements. The General Partner (on
behalf of itself and the Partnership), Regal and the Parent shall
take all reasonable actions necessary (i) to obtain (and will
take all reasonable actions necessary to promptly cooperate with
the other parties in obtaining) any consent, authorization, order
or approval of, or any exemption by, any administrative agency or
commission or other governmental authority or instrumentality (a
"Governmental Entity"), or other third party, required to be
obtained or made (or cooperate in the obtaining of any thereof
required to be obtained) in connection with the Merger or the
taking of any action contemplated by this Agreement; (ii) to
lift, rescind or mitigate the effect of any injunction or
restraining order or other order adversely affecting the
consummation of the transactions contemplated hereby; (iii) to
fulfill all conditions pursuant to this Agreement; and (iv) to
prevent, with respect to a threatened or pending temporary,
preliminary or permanent injunction or other order, decree or
ruling, the entry thereof.
5.2 State Statutes. If any State Takeover Law shall
become applicable to the transactions contemplated by this
Agreement, the parties hereto shall use their reasonable efforts
to take such actions as are necessary so that the transactions
contemplated by this Agreement may be consummated as promptly as
practicable on the terms contemplated by this Agreement and
otherwise to minimize the effects of such State Takeover Law on
the transactions contemplated by this Agreement.
5.3 Special Committee. Prior to the Effective Time or
the earlier termination of this Agreement, the Parent and the
General Partner shall take all actions necessary such that the
Special Committee shall continue in existence without diminution
of any of its powers or duties.
ARTICLE VI
Additional Agreements
6.1 Public Announcements. The General Partner, on behalf
of itself and the Partnership, and the Parent, on behalf of itself
and Regal, shall consult with each other before issuing any press
release or otherwise making any public statements with respect to
this Agreement or the Merger and shall not issue any such press
release or make such public statement
9
prior to such consultation except as may be required by law or the
rules of the American Stock Exchange.
6.2 Expenses. Parent shall bear all costs and expenses
of each party hereto incurred in connection with the transactions
contemplated by this Agreement.
ARTICLE VII
Conditions Precedent
7.1 Certain Conditions on the Obligation of Regal to
Consummate the Merger.
(a) The obligations of Regal to effect the Merger
shall be subject to the fulfillment of the following
conditions, any or all of which may be waived by Regal in
its sole discretion:
(i) except for changes in the business or
conditions of the Partnership, financial or otherwise,
or in the results of operations of the Partnership,
occurring prior to the date of this Agreement, or
expected by the management of the General Partner to
occur based on events occurring prior to the date of
this Agreement, there shall not have occurred any
material adverse change in the business or condition
of the Partnership, financial or otherwise, or in the
results of operations of the Partnership from that set
forth in or contemplated by the financial statements
of the Partnership for the year ended December 31,
1996;
(ii) there shall not be pending or threatened
against the Partnership, or any subsidiary of the
Partnership, any action, suit or proceeding involving
a claim at law or in equity or before or by any
Governmental Entity, domestic or foreign, that would
be reasonably likely to have a Material Adverse Effect
on the Partnership; and
(iii) there shall not be pending or threatened
against the Partnership, the General Partner, the
Parent, Regal, or any of their respective affiliates
or their respective properties or businesses, any
other action, suit or proceeding involving a claim at
law or in equity or before or by any federal, state,
or municipal or other court of competent jurisdiction
or other Governmental Entity, relating to the Merger
or this Agreement that would be reasonably likely to
have a Material Adverse Effect on the Partnership.
(b) The parties hereto agree that in exercising its
discretion to waive or require the fulfillment of the
conditions prescribed in Section 7.1(a) above, Regal shall
not be required to consider the interests of any person or
entity that may be affected by the Merger other than Regal,
and that Regal shall have no obligation, fiduciary or
otherwise, to the limited partners of the Partnership or
the General Partner in exercising its discretion under
Section 7.1(a).
10
7.2 Obligation of Each Party to Effect the Merger. The
respective obligations of each party generally to effect the
Merger shall be subject to the fulfillment at or prior to the
Effective Time of the following conditions:
(a) This Agreement and the Merger shall have been approved
and adopted by a Majority Interest (as defined in the Partnership
Agreement);
(b) Neither the execution and delivery of this Agreement
by the Partnership nor the consummation of the transactions
contemplated hereby nor compliance by the Partnership with
any of the provisions hereof shall (i) violate, conflict
with, or result in a breach of any provision of, or
constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under,
or result in the termination of, or accelerate the
performance required by, or result in a right of
termination or acceleration under, or result in the
creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the
Partnership or any direct or indirect subsidiary of the
Partnership under any of the terms, conditions or
provisions of (x) the Partnership Agreement or any other
partnership agreement or charter or bylaws of any direct or
indirect subsidiary of the Partnership or (y) any material
note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which
the Partnership or any direct or indirect subsidiary of the
Partnership is a party, or to which any of them, or any of
their respective properties or assets, may be subject, or
(ii) violate any judgment, ruling, order, writ, injunction,
decree, statute, rule or regulation applicable to the
Partnership or any direct or indirect subsidiary of the
Partnership or any of their respective properties or
assets, except, in the case of each of clauses (i) and (ii)
above, for such violations, conflicts, breaches, defaults,
terminations, accelerations or creations of liens, security
interests, charges or encumbrances, which would not, in the
aggregate, have a material adverse effect on the
transactions contemplated hereby or on the condition
(financial or other), business or operations of the
Partnership and its subsidiaries, taken as a whole (a
"Material Adverse Effect on the Partnership");
(c) The Financial Advisor shall not have withdrawn or
modified in any manner materially adverse to the Parent,
Regal, the Partnership or any holder of Units its opinion
as described in Section 4.5; and
(d) No preliminary or permanent injunction or other
order, decree or ruling issued by a court of competent
jurisdiction or by a Governmental Entity nor any statute,
rule, regulation or executive order promulgated or enacted
by any Governmental Entity shall be in effect, which would
make the acquisition or holding by the Parent, its
subsidiaries or affiliates of the Units of the Surviving
Partnership illegal or otherwise prevent the consummation
of the Merger or make the consummation of the Merger
illegal.
11
ARTICLE VIII
Termination
8.1 Termination. This Agreement may be terminated, and
the Merger contemplated herein may be abandoned, at any time
prior to the Effective Time, whether prior to or after approval
of the Merger by the Unitholders:
(a) by mutual written consent of the Board of
Directors of the Parent, on behalf of the Parent and Regal,
and the General Partner of the Partnership, with the
concurrence of the members of the Special Committee; or
(b) by the Partnership (which shall so act only if
requested by the Special Committee) if the Parent or Regal
breaches in any material respect any of its
representations, warranties, covenants or agreements
contained in this Agreement (other than any breach caused
by the Partnership) or if the Financial Advisor shall have
withdrawn or modified in any manner adverse to the
Partnership, the holder of any Units, the Parent or Regal
its opinion as described in Section 4.5; or
(c) by the Parent, if the Partnership breaches in any
material respect any of its representations, warranties,
covenants or agreements contained in this Agreement (other
than any breach caused by the Parent or any affiliate of
the Parent) or if the Special Committee shall have
withdrawn or modified in any manner adverse to the Parent
or Regal its recommendation of the Merger or this Agreement
or if the Financial Advisor shall have withdrawn or
modified in any manner adverse to the Partnership, the
holder of any Units, the Parent or Regal its opinion as
described in Section 4.5; or
(d) by either the Parent or the Partnership (with the
concurrence of the members of the Special Committee, if
terminated by the Partnership):
(i) if the Merger has not been consummated prior
to September 30, 1997; or
(ii) if any court of competent jurisdiction or
other Governmental Entity shall have issued an order,
decree or ruling, or taken any other action
restraining, enjoining or otherwise prohibiting the
Merger and such order, decree, ruling or other action
shall have become final and non-appealable.
8.2 Effect of Termination. In the event of the
termination of this Agreement as provided in Section 8.1 hereof,
this Agreement shall forthwith become void, and there shall be no
liability on the part of the Parent, Regal, the General Partner
or the Partnership.
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ARTICLE IX
General Provisions
9.1 Amendment. This Agreement may not be amended except
by (i) an instrument in writing signed on behalf of each of the
parties hereto and (ii) prior approval of such amendment by the
members of the Special Committee; provided, however, that after
approval of the Merger by the Unitholders, no amendment may be
made without the further approval of a Majority Interest (as
defined in the Partnership Agreement) which would either (a)
alter or change the Merger Consideration or (b) alter or change
any other terms and conditions of this Agreement, if any of such
alterations or changes, alone or in the aggregate, would
materially adversely affect the Unitholders.
9.2 Extension; Waiver. At any time prior to the
Effective Time, whether before or after the mailing of the Proxy
Statement, any party hereto may (i) extend the time for the
performance of any of the obligations or other acts of any other
party hereto; (ii) waive any inaccuracies in the representations
and warranties contained in this Agreement; and (iii) waive
compliance with any of the agreements of the other parties or
conditions to its own obligations contained in this Agreement.
Any agreement on the part of a party hereto to any such extension
or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party by a duly authorized
officer and, if given by the Partnership, approved by the members
of the Special Committee. No such consent or waiver of compliance
given by any of the parties hereto shall operate as a consent or
waiver of compliance in respect of any subsequent default, breach
or non-observance, whether of the same or any other nature.
9.3 Nonsurvival of Representations, Warranties and
Agreements. The respective representations and warranties of the
Partnership, the Parent and Regal contained herein shall expire
with, and be terminated and extinguished upon, consummation of
the Merger, and thereafter none of the Partnership, the Parent or
Regal or any officer, director or principal thereof shall be
under any liability whatsoever with respect to any such
representation or warranty. This Section 9.3 shall have no effect
upon any other obligation of the parties hereto, whether to be
performed before or after the consummation of the Merger.
9.4 Entire Agreement; Counterparts. (a) This Agreement
contains the entire agreement among the Partnership, the Parent
and Regal with respect to the subject matter hereof and
supersedes all prior arrangements and understandings, both
written and oral, among such parties with respect thereto.
(b) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more
counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
9.5 Severability. It is the desire and intent of the
parties that the provisions of this Agreement be enforced to the
fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any
13
provision of this Agreement would be held in any jurisdiction to
be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not to be invalid,
prohibited or unenforceable in such jurisdiction, the parties
shall adopt an amendment hereto in accordance with the provisions
of Section 9.1 hereof in which such provision, as to such
jurisdiction, is so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity
or enforceability of such provision in any other jurisdiction.
9.6 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to be
sufficient if contained in a written instrument and shall be
deemed to have been duly given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or
mailed by registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following
addresses (or at such other addresses as shall be specified by a
party by like notice):
(a) If to the Parent or Regal:
REGAL HOTEL MANAGEMENT, INC.
0000 XXX Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, President
Telecopier: (000) 000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
(b) If to the Partnership or the General Partner:
AIRCOA HOTEL PARTNERS, L.P.
0000 XXX Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, President
Telecopier: (000) 000-0000
14
with a copy to:
Holland & Xxxx LLP
Suite 3200
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
and
Hire & Associates
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Hire
Telecopier: (000) 000-0000
and
Miramar Asset Management, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
All such notices and other communications shall be deemed to have
been received (a) in the case of personal delivery, on the date
of such delivery if received prior to 5:00 p.m. New York City
time on such date, (b) in the case of a telecopy, when the party
receiving such telecopy shall have confirmed receipt of the
communication, (c) in the case of delivery by nationally
recognized overnight courier, on the Business Day following
dispatch and (d) in the case of mailing, on the third Business
Day following such mailing.
9.7 Interpretation. When a reference is made in this
Agreement to subsidiaries of Regal Holdings, the Parent, Regal or
the Partnership, the word "subsidiaries" means any corporation
more than 50% of whose outstanding voting securities, or any
partnership, joint venture or other entity more than 50% of whose
total equity interest, is directly or indirectly owned by the
Parent, Regal, or the Partnership, as the case may be. For
purposes of this Agreement, the Partnership shall not be deemed
to be an affiliate or subsidiary of the Parent or Regal.
9.8 Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
9.9 Assignment. This Agreement is not intended to confer
upon any person other than the parties any rights or remedies hereunder.
This Agreement shall not be assigned by operation of law or otherwise;
provided, however, that notwithstanding the foregoing, the parties
15
hereto acknowledge that Regal shall have the unrestricted
right to assign all of its respective rights hereunder to a
wholly-owned affiliate of the Parent or Regal; provided, further,
that notwithstanding such assignment, Regal shall not be released
from its obligations hereunder nor shall such assignment
prejudice the rights of holders of Units entitled to receive
payment pursuant to Section 1.6(a) hereof to receive such payment
for Units properly delivered to the Payment Agent and accepted
for payment.
9.10 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware,
without reference to the conflicts of laws provisions thereof.
9.11 Consent to Jurisdiction; Service of Process. (a)
The parties hereto irrevocably submit to the jurisdiction of the
Court of Chancery of the State of Delaware or the U.S. District
Court for the District of Delaware over any dispute arising out
of or relating to this Agreement or any of the transactions
contemplated hereby and each party hereby irrevocably agrees that
all claims in respect of such dispute or proceeding shall be
heard and determined in such court. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable
law, any objection which they may now or hereafter have to the
laying of venue of any such dispute brought in such court or any
defense of inconvenient forum for the maintenance of such
dispute. Each of the parties hereto agrees that a judgment in any
such dispute may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
(b) Each of the parties hereto hereby consents to
process being served by any party to this Agreement in any suit,
action or proceeding of the nature specified in subsection (a)
above by mailing a copy thereof in accordance with the provisions
of Section 9.6 hereof.
9.12 Limitation of Liability. In no event shall any
partner (other than the General Partner) or representative of the
Partnership or any direct or indirect stockholder, officer,
director, partner or representative of the General Partner or any
other such person, be personally liable for any obligation of the
Partnership or the General Partner under this Agreement. In no
event shall recourse with respect to the obligations under this
Agreement of the Partnership or the General Partner be had to the
assets or business of any person other than the Partnership or
the General Partner, respectively.
9.13 Limitation of Remedies. The sole remedy of any
party hereto for breach by any other party of a covenant,
representation or warranty made under this Agreement shall be
limited to termination of this Agreement.
16
IN WITNESS WHEREOF, the Partnership, the General
Partner, the Parent and Regal have caused this Agreement to be
executed as of the date first written above by their respective
officers thereunder duly authorized.
AIRCOA HOTEL PARTNERS, L.P.
By AIRCOA Hospitality Services, Inc.,
its General Partner
By: /s/
------------------------------------
Name:
Title:
By: /s/
------------------------------------
Name:
Title:
AIRCOA HOSPITALITY SERVICES, INC.
By: /s/
------------------------------------
Name:
Title:
By: /s/
------------------------------------
Name:
Title:
REGAL HOTEL MANAGEMENT, INC.
By: /s/
------------------------------------
Name:
Title:
By: /s/
------------------------------------
Name:
Title:
REGAL MERGER LIMITED PARTNERSHIP
By: Regal Hotel Management, Inc.,
its General Partner
By: /s/
------------------------------------
Name:
Title:
By: /s/
------------------------------------
Name:
Title:
