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EXHIBIT 4.2
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STOCKHOLDERS' AGREEMENT
BY AND AMONG
BRISTOL HOTELS & RESORTS, INC.
HOLIDAY CORPORATION
BASS AMERICA INC.
BASS PLC
AND
UNITED/XXXXXX HOLDINGS, L.P.
DATED ___________, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CORPORATE GOVERNANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Composition of the Board . . . . . . . . . . . . . . . . . . . 4
2.2 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
RIGHT OF FIRST REFUSAL; RIGHT TO PARTICIPATE IN
SALES; TRANSFERS TO AFFILIATES . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Right of First Refusal . . . . . . . . . . . . . . . . . . . . 5
3.2 Right to Participate in Sales . . . . . . . . . . . . . . . . 8
3.3 Transfers to Affiliates . . . . . . . . . . . . . . . . . . . 9
3.4 Distributions . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV
PREEMPTIVE RIGHTS; STANDSTILL OBLIGATIONS . . . . . . . . . . . . . . . . . . 10
4.1 Preemptive Rights . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Acquisition of Securities . . . . . . . . . . . . . . . . . . 11
4.3 Regulatory Restrictions . . . . . . . . . . . . . . . . . . . 11
ARTICLE V
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.1 No Inconsistent Agreements . . . . . . . . . . . . . . . . . . 11
5.2 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . 11
5.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.4 Assignability . . . . . . . . . . . . . . . . . . . . . . . . 13
5.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 14
5.8 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 14
5.9 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . 14
5.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.11 Termination . . . . . . . . . . . . . . . . . . . . . . . . . 14
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STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT (this "Agreement"), is made and entered
into as of ________________, 1998, by and among Bristol Hotels & Resorts, Inc.,
a Delaware corporation ("BHR"), Bass America Inc., a Delaware corporation
("BAI"), Holiday Corporation, a Delaware corporation ("HC"), Bass plc, an
English public limited company ("PLC"), and United/Xxxxxx Holdings, L.P., a
Delaware limited partnership ("Holdings").
RECITALS
A. HC, BAI and Holdings own the issued and outstanding shares of
common stock, par value $0.01 per share, of BHR (the "Shares") set forth on
Schedule A;
X. Xxxx plc has agreed to be a party to this Agreement solely with
respect to Section 4.2 hereof; and
C. The parties hereto have agreed that certain aspects of their
relationship be governed by the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following terms
have the respective meanings set forth below when used herein with initial
capital letters:
"Adverse Person" has the meaning set forth in Section 3.1(a).
"Affiliate" means, with respect to any Person, any other Person who is
directly or indirectly Controlling, Controlled by or under common Control with
such Person; provided that no Stockholder of BHR shall be deemed an Affiliate
of any other Stockholder of BHR solely by reason of any investment in BHR or by
this Agreement.
"Attribution Rules" has the meaning set forth in Section 4.1.
"Bass Parties" means BAI, HC and any of their Permitted Transferees who
are Affiliates of PLC.
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"Beneficial ownership", "beneficially own" and "beneficial owner" shall
be determined in accordance with Rules 13d-3 and 13d-5 under the Exchange Act
as in effect on the date hereof.
"Board" means the Board of Directors of BHR.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or obligated to close.
"Buyer" has the meaning set forth in Section 3.1(c).
"Control" (including the terms "Controlling", "Controlled by" and "under
common Control with") means the possession, directly or indirectly, of the
power to direct or cause the direction of the management policies of a Person,
whether through the ownership of voting securities, as trustee or executor, by
contract or credit arrangement or otherwise.
"Co-Sale Acceptance Period" has the meaning set forth in Section 3.2(a).
"Co-Sale Notice" has the meaning set forth in Section 3.2(a).
"Election Notice" has the meaning set forth in Section 4.1(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all rules and regulations promulgated thereunder, as in effect from time to
time.
"Excluded Securities" means (i) options granted to directors, officers
and employees of the Company to purchase capital stock of the Company, and the
securities issued pursuant to such options or plan under which options may be
granted, which have been authorized by the Board, (ii) capital stock issued or
sold upon exercise of warrants, options or rights, or upon conversion of
convertible securities, which warrants, options, rights or convertible
securities were the subject of the preemptive rights under Article IV or (iii)
any securities which are issued to all Stockholders by means of a distribution,
stock dividend or stock split or reclassification.
"Fair Market Value" has the meaning set forth in Section 3.1(b).
"Initial Ownership" means, with respect to each Stockholder, the total
number of shares of BHR Common Stock beneficially owned by such Stockholder set
forth on Schedule A (equitably adjusted to reflect any stock spit, dividend,
reclassification or any similar event).
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"Non-Offering Stockholder" has the meaning set forth in Section 3.2(a).
"No-ROFR Transaction" has the meaning set forth in Section 3.1(a).
"Offer Notice" has the meaning set forth in Section 3.2(a).
"Offer Price" has the meaning set forth in Section 3.2(a).
"Offered Securities" has the meaning set forth in Section 3.2(a).
"Offering Stockholder" has the meaning set forth in Section 3.2(a).
"Ownership Percentage" means with respect to each Stockholder at any
time, the percentage derived by dividing (i) the aggregate number of Shares
beneficially owned by such Stockholder as of such time, by (ii) the total
number of Shares outstanding as of such time.
"Person" means an individual, corporation, partnership, association,
trust, limited liability company, joint venture or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Portion" has the meaning set forth in Section 3.2(a).
"Pro Rata Number" has the meaning set forth in Section 3.2(a).
"Qualified Offering" has the meaning set forth in Section 4.1(a).
"Qualified Offering Notice" has the meaning set forth in Section 4.1(a).
"Regulatory Objection" has the meaning set forth in Section 4.3.
"ROFR Acceptance Notice" has the meaning set forth in Section 3.1(b).
"ROFR Acceptance Period" has the meaning set forth in Section 3.1(b).
"ROFR Closing" has the meaning set forth in Section 3.1(c).
"ROFR Offer Notice" has the meaning set forth in Section 3.1(b).
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"ROFR Offer Price" has the meaning set forth in Section 3.1(b).
"ROFR Sale" has the meaning set forth in Section 3.1(b).
"ROFR Securities" has the meaning set forth in Section 3.1(b).
"Securities" means the Shares and any securities convertible into or
exchangeable for Shares and rights to purchase Shares.
"Securities Act" means the Securities Act of 1933, as amended, and all
rules and regulations promulgated thereunder, as in effect from time to time.
"Stockholder" means each of (i) the Bass Parties, as a group, and (ii)
Holdings.
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Third Party" means a prospective purchaser of Shares in an arm's-length
transaction from a Stockholder where such purchaser is not an Affiliate of such
Stockholder.
"Third Party Sale" has the meaning set forth in Section 3.2(a).
"Total Voting Power" means the aggregate number of votes which may be
cast by holders of outstanding Voting Securities.
"Voting Securities" means all securities of BHR entitled, in the
ordinary course, to vote in the election of directors of BHR.
ARTICLE II
CORPORATE GOVERNANCE
2.1 Composition of the Board. Each of the Stockholders will be
entitled to nominate one director for election to serve on the Board for so
long as it owns a number of Shares equal to at least 25% of its Initial
Ownership. Any vacancy on the Board caused by the death, removal or
resignation of a director elected pursuant to this Section 2.1 may only be
filled by the Persons entitled to nominate such director pursuant to this
Section 2.1.
2.2 Voting. Until either Stockholder owns less than 25% of its
Initial Ownership, each Stockholder will vote its Voting
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Securities or execute written consents, as the case may be, and each
Stockholder will take all other necessary action (including causing BHR to call
a special meeting of Stockholders) in order to ensure that the nominee of each
Stockholder is elected to the Board, and no Stockholder will vote any of its
Voting Securities in favor of the removal of any director who shall have been
so designated unless such removal shall be for cause or the Person entitled to
designate or nominate such director shall have consented to such removal in
writing. When either Stockholder no longer owns at least 25% of its Initial
Ownership, each Stockholder's obligations to take or refrain from taking
certain actions pursuant to this Section 2.2 will terminate without further
action. For the avoidance of doubt, this Article II will not apply to any
Voting Securities held or received by the constituent partners of Holdings.
ARTICLE III
RIGHT OF FIRST REFUSAL; RIGHT TO PARTICIPATE
IN SALES; TRANSFERS TO AFFILIATES
3.1 Right of First Refusal. (a) The Bass Parties have requested that
Holdings not sell its Securities to a Person who could reasonably be deemed to
have business interests that are materially adverse to the material business
interests of HC (any such Person, an "Adverse Person") unless Holdings has
complied with the provisions of this Section 3.1. The Bass Parties hereby
acknowledge and agree, however, that in no event will the restrictions in this
Section 3.1 apply to any transfer (i) pursuant to or as a result of (A) a
public offering or (B) a hedging transaction with a broker-dealer, bank or
other financial institution, (ii) in an open-market transaction effected on a
national securities exchange or national quotation system or a transaction
involving as a counterparty an underwriter, broker-dealer or other similar
Person effecting a transaction in or consistent with the ordinary course of its
business, (iii) to one or more financial institutions, investment companies,
pension or other employee benefit plans, trusts, mutual or similar funds or
"qualified institutional buyers" within the meaning of Rule 144A under the
Securities Act, (iv) pursuant to a tender offer or other transaction that has
been approved by the Board, or (v) resulting from any pledge of Securities by
Holdings made in connection with a bona fide loan to Holdings, including any
transfer resulting from a lender foreclosing on any pledge of any Security or
exercising its other rights in respect thereof. Transactions referred to in
the immediately preceding sentence are herein defined as "No-ROFR
Transactions."
(b) Holdings will notify the Bass Parties in writing of the identity
of any Third Party (and to the extent known, the identity of any Person that
Controls the Third-Party) to whom
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Holdings desires to transfer any or all of the Securities owned by Holdings
(the "ROFR Securities") other than in a No-ROFR Transaction. Within five
Business Days of such notice, the Bass Parties will notify Holdings in writing
whether or not the Bass Parties have determined in good faith that such Third
Party is an Adverse Person, specifying in reasonable detail the basis for any
such determination. If the Bass Parties so determine that the Third Party is
an Adverse Person, Holdings will, if it nonetheless wishes to pursue the
transaction, advise (such advice, a "ROFR Offer Notice") the Bass Parties in
writing of (A) the aggregate amount of cash consideration, the amount of any
promissory note or other debt instrument and the Fair Market Value of any other
non-cash consideration (the "ROFR Offer Price"), for which Holdings proposes to
transfer the ROFR Securities in the proposed transaction (such transaction, a
"ROFR Sale"), (B) the date the proposed ROFR Sale is expected to close, and (C)
all other material terms of the proposed ROFR Sale, including without
limitation any other contract or transaction entered into or proposed to be
entered into in connection with the ROFR Sale. If the Bass Parties deliver to
Holdings a written notice (a "ROFR Acceptance Notice") within five Business
Days following the delivery of the ROFR Offer Notice (the "ROFR Acceptance
Period") stating that the Bass Parties will purchase all of the ROFR Securities
for the ROFR Offer Price and on the other terms set forth in the ROFR Offer
Notice, Holdings will, subject to Section 4.2, sell all (but not less than all)
of the ROFR Securities to the Bass Parties, and the Bass Parties will purchase
the ROFR Securities from Holdings, on the terms and subject to the conditions
set forth in Section 3.1(c). If the consideration under the Third-Party Sale
includes a promissory note or other debt instrument payable to Holdings, the
Bass Parties may deliver a similar promissory note or debt instrument in
payment of the ROFR Offer Price. "Fair Market Value" means the price agreed
upon by a willing buyer and a willing seller both in possession of reasonable
knowledge of all relevant facts, with neither party being under any compulsion
to act or not to act; provided that if the Bass Parties, on the one hand, and
Holdings, on the other hand, disagree on the calculation of the Fair Market
Value, they will select an unaffiliated financial advisory firm to determine
the Fair Market Value and such firm's determination will be final and binding.
All costs relating to the financial advisor will be borne solely by the Bass
Parties.
(c) The consummation of any purchase and sale pursuant to Section
3.1(b) (the "ROFR Closing") will occur 15 Business Days following the delivery
of the ROFR Acceptance Notice or on such other date as may be agreed upon by
Holdings and the Bass Parties (the "ROFR Closing Period") at the time and place
as may be agreed upon by Holdings and the Bass Party delivering the ROFR
Acceptance Notice (the "Buyer"). At the ROFR Closing, (i) Holdings will
deliver to the Buyer one or more certificates evidencing all of the Offered
Securities, duly endorsed for
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Transfer to the Buyer, together with such other duly executed instruments or
documents as may be required to permit the Buyer to acquire the Offered
Securities free and clear of any and all encumbrances, except for encumbrances
under this Agreement, if applicable, (ii) the Buyer will deliver to Holdings by
certified or official bank check or wire transfer to an account designated by
Holdings an amount in immediately available funds equal to the ROFR Offer
Price, and (iii) Holdings will be deemed to represent and warrant to the Buyer
that, upon the ROFR Closing, Holdings will convey and the Buyer will acquire
the entire record and beneficial ownership of, and good and valid title to, the
Offered Securities, free and clear of any and all encumbrances, except for
encumbrances under this Agreement, if applicable.
(d) If no ROFR Acceptance Notice relating to a proposed ROFR Sale is
delivered to Holdings prior to the expiration of the ROFR Acceptance Period, or
a ROFR Acceptance Notice is so delivered to Holdings but the ROFR Closing fails
to occur prior to the expiration of the ROFR Closing Period (unless the Bass
Party was ready, willing and able prior to the expiration of the ROFR Closing
Period to consummate the transactions to be consummated by the Bass Party at
the ROFR Closing or the Bass Party was not so ready, willing and able to
consummate the transactions to be consummated by the Bass Party at the ROFR
Closing as a result of Holdings's failure reasonably to cooperate in good faith
with the efforts of the Bass Party to consummate such transactions), Holdings
may consummate the proposed ROFR Sale in accordance with Section 3.1(e).
(e) Holdings may consummate the ROFR Sale to the Third-Party
Purchaser identified in the ROFR Offer Notice (the "Third-Party Purchaser")
only (i) during the 60 calendar day period immediately following the expiration
of the ROFR Acceptance Period (in the event that no ROFR Acceptance Notice was
timely delivered to Holdings) or the 60 calendar day period immediately
following the expiration of the ROFR Closing Period, (ii) at a price at least
equal to the ROFR Offer Price, and (iii) upon terms not materially less
favorable to Holdings than those set forth in the ROFR Offer Notice. If it
does not so consummate the ROFR Sale, Holdings must repeat the steps specified
above if it wishes to continue to pursue the transaction.
(f) The purpose of this Section 3.1 is to permit the Bass Parties to
protect their economic interests only in the narrow circumstances specified in
the first sentence of Section 3.1(a). Accordingly, if Holdings so requests,
the Bass Parties will deliver to Holdings such documents as Holdings may
reasonably request consistent with this Section 3.1 confirming the terms hereof
for the benefit of any Third Party, including without limitation execution of a
written acknowledgment prepared by Holdings within a reasonable period of time,
not to exceed two
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Business Days, confirming that, with respect to a particular No-ROFR
Transaction, the provisions of this Section 3.1 do not apply to a sale of any
Securities owned by Holdings in such No-ROFR Transaction.
(g) Notwithstanding any other provision hereof, Holdings' obligations
under this Section 3.1 will terminate (i) upon HC or its Affiliates no longer
holding a Controlling equity interest in the entities that directly or
indirectly hold the intellectual property rights related to the Holiday Inn,
Holiday Inn Express or Crowne Plaza brands and (ii) in the circumstances
specified in Section 5.11.
3.2 Right to Participate in Sales. (a) If a Stockholder (the
"Offering Stockholder") proposes to sell any or all of the Securities owned by
the Offering Stockholder (the "Offered Securities") to a Third-Party in a bona
fide transaction other than a No-ROFR Transaction (a "Third-Party Sale"), the
Offering Stockholder will, prior to effecting any Third-Party Sale, deliver to
the other Stockholder (the "Non-Offering Stockholder") a written notice (an
"Offer Notice") specifying (i) the aggregate amount of cash consideration, the
amount of any promissory note or other debt instrument and the Fair Market
Value of any other non-cash consideration (the "Offer Price"), for which the
Offering Stockholder proposes to sell the Offered Securities in the proposed
Third-Party Sale, (ii) the identity of the purchaser in the proposed Third
Party Sale, (iii) the date the proposed Third-Party Sale is scheduled to close,
and (iv) all other material terms of the proposed Third-Party Sale, including
without limitation any other contract or transaction entered into or proposed
to be entered into in connection with the Third-Party Sale. If the
Non-Offering Stockholder so requests in a written notice (a "Co-Sale Notice")
delivered to the Offering Stockholder within five Business Days following the
delivery of the Offer Notice (the "Co-Sale Acceptance Period"), the Non-
Offering Stockholder will be permitted to sell in that Third-Party Sale, on the
same terms as the Offering Stockholder, up to the number of Securities held by
the Non-Offering Stockholder as is specified in the Co-Sale Notice; provided
that the number of Securities to be sold by the Non-Offering Stockholder
participating in such Third-Party Sale will in no event exceed the Portion
corresponding to such Non-Offering Stockholder. As used herein, "Portion"
means, with respect to the Non-Offering Stockholder, the number of Securities
beneficially owned by such Non-Offering Stockholder multiplied by a fraction
the numerator of which is the number of Securities to be sold by the Offering
Stockholder in such Third-Party Sale and the denominator of which is the
aggregate number of Securities beneficially owned by the Offering Stockholder
immediately prior to such Third-Party Sale. If a Co-Selling Stockholder
requests to include more Securities than provided under the preceding
sentences, the Offering Stockholder will attempt to cause the Third-Party
Purchaser to
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acquire those additional Securities, but will have no liability for the
Third-Party Purchaser's refusal to purchase those additional Securities. To
the extent that the Third-Party Purchaser is unwilling to purchase all of the
Securities proposed to be sold by the Offering Stockholder and the Non-Offering
Stockholder, the number of Securities to be sold by each of the Offering
Stockholder and the Non-Offering Stockholder will be reduced to their
respective Pro Rata Number of Securities. "Pro Rata Number" means, with
respect to the participation of the Offering Stockholder or the Non-Offering
Stockholder in a Third-Party Sale, the product of (i) the total number of
Securities proposed to be sold by such Stockholder and (ii) a fraction, the
numerator of which is the total number of Securities proposed to be purchased
by the Third-Party Purchaser, and the denominator of which is the total number
of Securities proposed to be sold by both the Offering Stockholder and the Non-
Offering Stockholder.
(b) Notwithstanding anything to the contrary herein contained, the
Offering Stockholder (i) will have the right to elect not to consummate any
Third-Party Sale (without liability to the Non-Offering Stockholder) if it is
unable to sell all of the Offered Securities as initially set forth in the
Offer Notice and (ii) may increase the Securities included in the Offered
Securities to accommodate any Securities proposed to be sold by a Non-Offering
Stockholder.
(c) If the Non-Offering Stockholder properly elects to participate in
a Third-Party Sale, the Offering Stockholder will represent the Non-Offering
Stockholder in the sale but will not assume any fiduciary duty to the Non-
Offering Stockholder under this Agreement. The Non-Offering Stockholder will
execute and deliver the documentation providing for the Third-Party Sale as
negotiated by the Offering Stockholder; provided that, at any time prior to
such execution and delivery, the Non-Offering Stockholder may decline to
participate in the Third-Party Sale if the documentation is not reasonably
acceptable to it. If the Non-Offering Stockholder fails to execute and deliver
the documentation or timely to perform its obligations thereunder, the Offering
Stockholder may complete the Third-Party Sale without the participation of the
Non-Offering Stockholder. The Offering Stockholder will have no responsibility
to the Non-Offering Stockholder if it fails to consummate a Third-Party Sale,
and the Offering Stockholder will in all events be free to abandon any
Third-Party Sale at any time prior to its consummation without any liability to
the Non-Offering Stockholder.
3.3 Transfers to Affiliates. No Stockholder will sell, assign or
otherwise transfer any of its Shares to an Affiliate unless such Affiliate
executes a copy of this Agreement and agrees to be bound by all the provisions
herein, whereupon
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references in this Agreement to a Stockholder will be deemed to include any
such Affiliates.
3.4 Distributions. This Article III will not apply to any
distribution by Holdings to its direct or indirect constituent partners.
ARTICLE IV
PREEMPTIVE RIGHTS; STANDSTILL OBLIGATIONS
4.1 Preemptive Rights. Except for the issuance of Excluded
Securities, BHR will provide the Stockholders with written notice of any sale
by it for cash of any Securities in which the gross proceeds of such sale to
BHR and its Subsidiaries equals or exceeds $10 million (such offering, a
"Qualified Offering") no later than the closing date of the Qualified Offering
(such notice, the "Qualified Offering Notice"). The Qualified Offering Notice
will specify the Securities that were issued, the purchase price (which, in the
case of a public offering, will be the purchase price to the public and, in all
other cases will be the purchase price to the purchasers (without regard to
underwriting discounts or commissions) of the issued securities), the issuance
date and all other material terms of such issuance. No later than five
calendar days after receipt of the Qualified Offering Notice, each Stockholder
must deliver to BHR a written notice stating whether such Stockholder desires
to acquire the same type of securities that were issued and the number of
Securities it intends to purchase (the "Election Notice"). The Election Notice
will constitute a binding contract by the Stockholder to acquire, on the terms
offered by the Company to purchasers of the Securities issued, up to that
number of the Securities such that, after giving effect to the consummation of
the Qualified Offering and the issuance to the Stockholder pursuant to this
Section 4.1, the Stockholder would hold that Ownership Percentage of BHR equal
to such Stockholder's Ownership Percentage immediately prior to such Qualified
Offering; provided, however, in no event may a Stockholder acquire any
Securities under this Section 4.1 if it would be deemed to own, by virtue of
the attribution provisions of Section 544 of the Code (as modified by Section
856(h)(i)(B) of the Code) (assuming that BHR is a REIT for such purposes)
and/or Section 318 of the Code (as modified by Section 856(d)(5) of the Code)
(together, the "Attribution Rules") more than 9.9% of the total number of
outstanding Shares and be deemed to own, by virtue of the Attribution Rules,
more than 9.9% of the total number of outstanding shares of common stock of
FelCor Suite Hotels, Inc. The issuance will be completed five days after the
Qualified Offering or such other date to which BHR and the relevant
Stockholders agree, and payment will be made in immediately available funds on
such completion date. Notwithstanding anything herein to the contrary, BHR
will be entitled not to
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proceed with the proposed issuance or to alter the terms hereof; provided that,
in the event that any material terms of the proposed issuance are altered, (i)
each Stockholder's Election Notice will be revoked automatically and (ii) such
Stockholder will be entitled to participate in such proposed issuance on the
revised terms in accordance with this Section 4.1 following written
confirmation by such Stockholder to such effect. This Section 4.1 will
terminate with respect to any Stockholder that fails three times to deliver an
Election Notice with respect to the full number of Shares purchasable under
Section 4.1.
4.2 Acquisition of Securities. The Bass Parties will not, and will
not permit their Affiliates to, purchase or otherwise acquire, or agree or
offer to purchase or otherwise acquire, beneficial ownership of any Securities
if after giving effect thereto the Bass Parties would be deemed to own, by
virtue of the Attribution Rules, Securities representing more than 9.9% of the
total number of outstanding Securities, without the prior written consent of
BHR.
4.3 Regulatory Restrictions. BHR may modify Section 4.1 in whole or
in part to the extent necessary to address any objections raised by the NYSE or
any other securities exchange or quotation system on which the Shares are (or
have been applied to be) listed (a "Regulatory Objection"). BHR will use all
reasonable efforts to address any Regulatory Objection so as to preserve to the
greatest extent practicable the parties' rights hereunder.
ARTICLE V
MISCELLANEOUS
5.1 No Inconsistent Agreements. BHR has not, as of the date hereof,
and will not, on or after the date hereof, enter into any agreement with
respect to the Securities which is inconsistent with the rights granted to the
holders of Securities in this Agreement or otherwise conflicts with the
provisions hereof.
5.2 Amendments and Waivers. Except as set forth in Section 4.3, no
provision of this Agreement may be waived except by an instrument in writing
executed by the party against whom the waiver is to be effective. The
provisions of this Agreement may not be amended, modified or supplemented
without the prior written consent of each of the parties hereto.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions of this Agreement with respect to a matter that relates exclusively
to the rights of a Stockholder and that does not directly or indirectly affect
the rights of the other Stockholder may be given only by the affected
Stockholder; provided, however, that the provisions of this sentence may not be
amended,
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modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
5.3 Notices. All notices, requests, claims, demands and other
communications under this Agreement will be in writing and will be delivered
personally, sent by overnight courier (providing proof of delivery) to the
parties or sent by telecopy (providing confirmation of transmission) at the
following addresses or telecopy numbers (or at such other address or telecopy
number for a party as will be specified by like notice):
(a) if to BHR:
Bristol Hotels & Resorts, Inc.
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
(b) if to the Bass Parties or Bass plc:
Holiday Corporation
Xxxxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
Bass plc
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, X0X 0XX
Xxxxxxx
Attention: Xxxxxxx Xxxxxx
Telecopy: 011-44-171-409-8513
with copies to:
Crowne Plaza - Corporate Headquarters
Xxxxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
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and
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
(c) if to Holdings:
United/Xxxxxx Holdings, L.P.
0000 Xxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
All notices will be deemed to be given only when actually received.
5.4 Assignability. Except as otherwise provided herein, (a) BHR may
not assign its rights or delegate its obligations hereunder and (b) no
Stockholder may assign its rights or delegate its obligations hereunder without
the prior written consent of the other Stockholder; provided, however, no
consent will be required if the Stockholder transfers any or all of its rights
under this Agreement to an Affiliate that agrees in writing to be bound by the
terms of this Agreement. No transferee will have any rights under this
Agreement until such transferee has acknowledged its rights and obligations
hereunder by a signed written statement of such transferee's acceptance of such
rights and obligations. In the case of an assignment by a Stockholder in
accordance with this Section 5.4, the transferee shall thence forth be a
"Stockholder."
5.5 Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties hereto.
5.6 Headings. Article and Section headings in this Agreement are
included herein for convenience of reference only
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and will not constitute a part of this Agreement for any other purpose.
5.7 Governing Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of Delaware, without giving effect to
the principles of conflict of laws of that State that would apply the laws of
any other jurisdiction. Each of the parties to this Agreement hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware, and
any appellate court thereof, in any action, suit, or proceeding arising out of
or relating to this Agreement and any such action, suit or proceeding will be
brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein). Process in any such
action, suit or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without limiting
the foregoing, each party agrees that service of process on such party as
provided in Section 5.3 shall be deemed effective service of process on such
party.
5.8 Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and undertakings, both written
and oral, among the parties with respect to the subject matter of this
Agreement.
5.9 Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, will
be entitled to recover reasonable attorneys' fees and related disbursements and
expenses in addition to any other available remedy.
5.10 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision will be
interpreted to be only so broad as is enforceable.
5.11 Termination. This Agreement shall terminate on the earliest of
(a) the voluntary or involuntary dissolution or liquidation of BHR, (b) the
mutual agreement of the parties hereto, (c) the date on which any Stockholder
ceases to beneficially own a number of Shares equal to at least 25% of its
Initial Ownership and (d) the date on which Holdings distributes its Shares to
its direct or indirect constituent partners.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BRISTOL HOTELS & RESORTS, INC.
By:
------------------------------
Name:
Title:
UNITED/XXXXXX HOLDINGS, L.P.
By: Hampstead Genpar, L.P., its
General Partner
By: HH GenPar Partners, its
General Partner
By: Hampstead Associates, Inc.,
its Managing General Partner
By:
-----------------------
Name:
Title:
BASS AMERICA INC.
By:
------------------------------
Name:
Title:
HOLIDAY CORPORATION
By:
------------------------------
Name:
Title:
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The undersigned agrees to the terms
of Section 4.2.
BASS PLC
By:
------------------------------
Name:
Title:
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SCHEDULE A
Stockholder Number of Shares
----------- ----------------
Bass America Inc.
Holiday Corporation
United/Xxxxxx Holdings, L.P.
