SECOND AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT
Exhibit 4.1
EXECUTION COPY
EXECUTION COPY
SECOND AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT
This SECOND AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT (this “Amendment”), dated as of May
19, 2006, is between XXXXXX LODGING COMPANY, an Ohio corporation (the “Company”), and NATIONAL CITY
BANK, a national banking association (the “Rights Agent”).
RECITALS:
WHEREAS, the Company and the Rights Agent are parties to that certain Shareholder Rights
Agreement, dated as of May 25, 1999, as amended as of December 31, 2001 (the “Shareholder Rights
Agreement”), which was authorized by the Company’s Board of Directors to provide shareholders of
the Company with the opportunity to benefit from the long-term prospects and value of the Company
and to ensure that shareholders of the Company receive fair and equal treatment in the event of any
proposed takeover of the Company; and
WHEREAS, the Company desires to amend the Shareholder Rights Agreement in connection with the
execution of the Agreement and Plan of Merger, dated as of May 19, 2006, by and among Braveheart
Investors LP, a Delaware limited partnership (“Parent”), Braveheart II Realty (Ohio) Corp., an Ohio
corporation (“REIT Merger Sub”), Braveheart II Properties Company LLC, an Ohio limited liability
company (“OP Merger Sub”), Braveheart II Properties Holding LLC, a Delaware limited liability
company (“OP Holdco”), the Company and Xxxxxx Hotel Properties, L.P., an Ohio limited partnership
(the “Merger Agreement”), and the consummation of the transactions contemplated thereby.
AGREEMENTS
1. Defined Terms. Unless otherwise defined herein, capitalized terms used in this
Amendment shall have the meanings ascribed thereto in the Shareholder Rights Agreement.
2. Acquiring Person. The definition of the term “Acquiring Person” in Section 1(a) of
the Shareholder Rights Agreement is hereby deleted in its entirety and replaced with the following:
“‘Acquiring Person’ means any Person (as defined herein) who, together with all
Affiliates (as defined herein) and Associates (as defined herein) of such Person, is
the Beneficial Owner (as defined herein) of 15% or more of the Common Shares then
outstanding, but does not include (i) the Company, (ii) any Subsidiary (as defined
herein) of the Company, (iii) any employee benefit plan or compensation arrangement
of the Company or of any Subsidiary of the Company, or (iv) any Person holding
Common Shares organized, appointed or established by the Company or by any
Subsidiary of the Company for or pursuant to the
terms of any employee benefit plan or compensation arrangement described in
clause (iii) above (the Persons described in clauses (i) through (iv) above are
referred to herein as ‘Exempt Persons’).
In addition, (i) AEW Partners III, L.P., a Delaware limited partnership
(‘AEW’), is not an Acquiring Person with respect to Common Shares (the ‘AEW Shares’)
acquired or to be acquired under the Stock Purchase Agreement dated as of February
1, 1999 ( the ‘Purchase Agreement’) among the Company, Xxxxxx Hotel Properties,
L.P., an Ohio limited partnership (‘BHP’), and AEW, and on exercise of the Initial
Warrant or the Expansion Warrant (each as defined in the Purchase Agreement), except
to the extent that any acquisition or series of acquisitions under the Purchase
Agreement, the Initial Warrant and the Expansion Warrant of less than 15% of the
Common Shares when combined with Common Shares then beneficially owned by AEW
(within the meaning of Section 1(d)(i) hereof, but excluding Common Shares
beneficially owned by an Affiliate that is not an Associate of AEW and without
giving effect to Rule 13d-d(d) of the Rules under the Exchange Act), results in AEW
beneficially owning (as defined in the immediately preceding clause of this
sentence) 15% or more of the Common Shares then outstanding; (ii) the Common Shares
acquired or to be acquired by JABO LLC, a Delaware limited liability company
(‘JABO’), upon redemption by the Company of BHP partnership units issued to JABO
pursuant to the Master Contribution Agreement (the ‘Contribution Agreement’), dated
as of December 31, 2001, by and among Xxxxxx Management Company Limited Liability
Company, an Ohio limited liability company, JABO, the Company and BHP (the ‘JABO
Shares’), shall not be included in the calculation of the beneficial ownership of
Common Shares of JABO or any of JABO’s Affiliates or Associates, except (A) to the
extent that any issuance of JABO Shares to JABO of less than 15% of the issued and
outstanding Common Shares, when combined with Common Shares then beneficially owned
by JABO (within the meaning of Section 1(d)(i) hereof), results in JABO beneficially
owning (as defined in the immediately preceding clause of this sentence) 20% or more
of the Common Shares then issued and outstanding, and (B) if, at the time of any
issuance of JABO Shares to JABO, JABO is not controlled (as that term is defined in
Rule 12b-2 of the Exchange Act) by Xxxxxx X. Xxxxxx or Xxxx X. Xxxxxx; and (iii)
none of Parent, REIT Merger Sub, OP Merger Sub or OP Holdco, nor any of their
Affiliates, is an Acquiring Person, nor shall any such Persons become an Acquiring
Person, with respect to Common Shares acquired or to be acquired under the Merger
Agreement, whether by reason of the announcement of the mergers contemplated
thereby, execution of the Merger Agreement, consummation of the mergers and other
transactions contemplated by the Merger Agreement, or acquisition of Common Shares
pursuant thereto or otherwise in connection therewith.
Notwithstanding the foregoing, no Person will become an ‘Acquiring Person’ as a
result of an acquisition by the Company of Common Shares that, by reducing the
number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person from below 15% to 15% or more of the
Common Shares then outstanding; however, if person becomes a Beneficial Owner
of 15% or more of the Common Shares then outstanding by reason of shares purchases
by the Company and, after those share purchases are made, becomes the Beneficial
Owner of any additional Common Shares (other than
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pursuant to a share split, share
dividend or similar transaction) and immediately thereafter is the Beneficial Owner
of 15% or more of the Common Shares then outstanding, then that Person will be an
‘Acquiring Person.’
In addition, notwithstanding the foregoing, a Person is not an ‘Acquiring
Person’ if the Board of Directors determines that a Person who would otherwise be an
‘Acquiring Person’ inadvertently acquired the Common Shares that would otherwise
make the Person an ‘Acquiring Person,’ if that Person as promptly as practicable
divests a sufficient number of Common Shares so that that Person is a Beneficial
Owner of less than 15% of the Common Shares then outstanding.”
3. Distribution Date. The definition of the term “Distribution Date” in
Section 1(j) of the Shareholder Rights Agreement is hereby amended by adding the following
language at the end thereof:
“For the avoidance of doubt, none of the announcement of the mergers
contemplated by the Merger Agreement, the execution of the Merger Agreement, the
consummation of the mergers and other transactions contemplated by the Merger
Agreement or the acquisition of the Common Shares pursuant thereto or otherwise in
connection therewith shall result in the occurrence of a Distribution Date.”
4. Amendment to Section 7(a). Section 7(a) of the Shareholder Rights Agreement is
hereby deleted in its entirety and replaced with the following:
“(a) Subject to Section 7(e), the registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent at the office or offices of
the Rights Agent designated for such purpose, together with payment of the aggregate
Exercise Price for the total number of one one-thousandths of a Preferred Share (or
other securities, cash or other assets, as the case may be) for which the
surrendered rights are then exercised, at or prior to the earliest of (i) (A) the
Close of Business on May 24, 2009 and (B) immediately prior to the Effective Time of
the Mergers (as each such term is defined in the Merger Agreement) (the earlier of
such dates, the ‘Final Expiration Date’), (ii) the time at which the Rights are
redeemed in accordance with Section 23, and (iii) the time at which such Rights are
exchanged in accordance with Section 24 (the earlier of (i), (ii) and (iii), the
‘Expiration Date’). Except as set forth in Section 7(e) and notwithstanding any
other provision (except Section 7(e)) of this Agreement, any Person who prior to the
Distribution Date becomes a record holder of Common Shares may exercise all of the
rights of a registered holder of a
Right Certificate with respect to the Rights associated with such Common Shares
in accordance with the provisions of this Agreement, as of the date such Person
becomes a record holder of Common Shares.”
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5. Counterparts. This Amendment may be executed in multiple counterparts, each of
which shall be deemed an original and all of which together shall constitute one action. The
signature page of any individual or entity, or copies or facsimiles thereof, may be appended to any
counterparts of this action and when so appended shall constitute an original.
6. Full Force and Effect. Except as expressly amended by this Amendment, all other
terms and conditions of the Shareholder Rights Agreement shall remain in full force and effect and
unmodified hereby.
7. Governing Law. This Amendment is governed by and construed in accordance with the
laws of the State of Ohio, without regard to principles of conflicts of laws.
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IN WITNESS WHEREOF, this Amendment has been executed in one or more counterparts by or on
behalf of each of the parties hereto as of the date first written above.
| XXXXXX LODGING COMPANY, | ||||
| an Ohio corporation | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx | ||||
| Title: President and Chief Operating Officer | ||||
| NATIONAL CITY BANK, a national banking | ||||
| Association, as Rights Agent | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Assistant Vice President | ||||
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