1
EXHIBIT 99.9
EXHIBIT C
TO VOTING AND COOPERATION AGREEMENT
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STOCKHOLDERS' AND REGISTRATION
RIGHTS AGREEMENT
BY AND AMONG
FELCOR SUITE HOTELS, INC.
BASS PLC
BASS AMERICA INC.
HOLIDAY CORPORATION
PARTNERSHIP A
AND
PARTNERSHIP B
DATED ___________, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1. Shelf Registration of Resales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2. "Market Stand-Off" Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.5. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.6. Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.7. Underwritten Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.8. Indemnification of Statutory Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE III
CORPORATE GOVERNANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.1. Composition of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.2. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IV
RESTRICTIONS ON TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.1. General Restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.2. Transfers in Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.3. Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.4. Unauthorized Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.5. Transfers to Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE V
RIGHT TO PARTICIPATE IN SALES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.1. Right to Participate in Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.2. Securities Not Subject to Tag-Along Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.3. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI
PREEMPTIVE RIGHTS; WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.1. Preemptive Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.2. Regulatory Restrictions; Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VII
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.1. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.2. No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.3. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.4. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.5. Owner of Registrable Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.6. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.8. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.9. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.10. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.11. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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7.12. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.13. Changes in Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.14. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.15. Acquisition of BHR Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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INDEX OF DEFINED TERMS
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Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BAI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Bass Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Beneficial ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
BHR Common Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Blackout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bristol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Co-Sale Acceptance Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Co-Sale Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Co-Selling Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Derivatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Election Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Excluded Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Excluded Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Fair Market Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
FelCor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FelCor Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Form S-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
HC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Holdings Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
indemnified party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
indemnifying party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Initial Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Lock-Up Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Market Stand-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Merger Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Non-Offering Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Offer Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Offer Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Offered Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Offering Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ownership Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Partnership A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Partnership B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Permitted Transferee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
PLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pro Rata Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Public Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Qualified Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Qualified Offering Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Registrable Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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Registration Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Regulatory Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rule 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rule 415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Special Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Suspension Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Third Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Third Party Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Total Voting Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Unauthorized Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Underwritten Registration or Underwritten Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Voting Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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STOCKHOLDERS' AND REGISTRATION RIGHTS AGREEMENT
This STOCKHOLDERS' AND REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), is made and entered into as of ________________, 1998, by and
among FelCor Suite Hotels, Inc., a Maryland corporation ("FelCor"), Bass
America Inc., a Delaware corporation ("BAI"), Holiday Corporation, a Delaware
corporation ("HC"), Bass plc, an English public limited company ("PLC"),
[Partnership A], a Delaware limited partnership ("Partnership A"), and
[Partnership B], a Delaware limited partnership ("Partnership B").
RECITALS
A. On March 23, 1998, FelCor and Bristol Hotel Company, a
Delaware corporation ("Bristol"), entered into an Agreement and Plan of Merger
(the "Merger Agreement") pursuant to which Bristol will merge with and into
FelCor subject to the terms and conditions thereof.
B. Upon consummation of the Merger, each Stockholder will
beneficially own the number of shares of common stock, par value $0.01 per
share, of FelCor ("FelCor Common Stock") set forth on Schedule A hereto.
C. PLC has agreed to be a party to this Agreement solely for the
purposes set forth on the signature pages hereto.
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. Capitalized terms used herein and not defined herein
have the meanings set forth in the Merger Agreement.
"Affiliate" means, with respect to any Person, any other Person who is
directly or indirectly Controlling, Controlled by or under the common Control
with such Person; provided that no Stockholder of FelCor shall be deemed an
Affiliate of any other Stockholder of FelCor solely by reason of any investment
in FelCor or by this Agreement.
"Bass Parties" means, collectively, 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 FelCor.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York or Dallas, Texas are authorized or
obligated to close.
"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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"Excluded Securities" means (i) options granted to directors, officers
and employees of FelCor to purchase capital stock of FelCor, and the securities
issued pursuant to such options or plans 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 are
outstanding on the date hereof or were the subject of the preemptive rights
under Article VI 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" 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 act.
"Holdings Parties" means, collectively, Partnership A and Partnership
B and any of their Permitted Transferees who are Affiliates of The Hampstead
Group, LLC.
"Initial Ownership" means, with respect to each Stockholder, the total
number of shares (equitably adjusted to reflect any stock split, dividend,
reclassification or any similar event) of FelCor Common Stock beneficially
owned by such Stockholder as of the Effective Time.
"Ownership Percentage" means with respect to each Stockholder at any
time, the percentage derived by dividing (i) the aggregate number of shares of
FelCor Common Stock beneficially owned by such Stockholder as of such time, by
(ii) the total number of shares of FelCor Common Stock outstanding as of such
time.
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"Permitted Transferee" means with respect to each Stockholder, (i) any
Affiliate of such Stockholder, (ii) in the case of Partnership A or Partnership
B, any direct or indirect constituent partner of such partnership (as to its
pro rata interest in the partnership), and (iii) any transferee approved in
writing by FelCor; provided that, in each case, such transferee has executed a
copy of this Agreement and agreed to be bound by the provisions herein as a
Stockholder.
"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.
"Prospectus" means the prospectus included in any Registration
Statement (including without limitation a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Public Offering" means an underwritten public offering of Securities
of FelCor pursuant to an effective registration statement under the Securities
Act.
"Registrable Securities" means (i) all shares of FelCor Common Stock
received by a Registration Stockholder pursuant to the Merger, (ii) all shares
of FelCor Common Stock which a Registration Stockholder has an option to
purchase at the Effective Time (including shares of FelCor Common Stock subject
to the Amended and Restated Put/Call Option Agreement, dated as of November 16,
1995, by and between Xxxxxx Hotel Holdings, Inc., X.X. Xxxx, Xx. and the other
parties thereto, as amended from time to time), and (iii) all other shares of
FelCor Common Stock and shares issued upon exercise of preemptive rights or
upon purchase from another Stockholder, until, in the case of any such
security, (a) such security is disposed of in accordance with a Registration
Statement, (b) such security is saleable by the holder thereof pursuant to Rule
144(k), (c) such security is saleable by the holder thereof pursuant to Rule
144 without regard to any volume limitations, or (d) such security is
distributed to the public pursuant to Rule 144.
"Registration Statement" means any registration statement of FelCor
under the Securities Act that covers the Registrable Securities pursuant to the
provisions of Article II of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all materials
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incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"Registration Stockholder" means each of (i) the Bass Parties and (ii)
the Holdings Parties, in each case, including any of their Permitted
Transferees.
"Rule 144", "Rule 145" or "Rule 415", as applicable, means Rule 144,
Rule 145, or Rule 415 under the Securities Act, as each such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the Securities and Exchange Commission.
"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, (ii)
Partnership A, and (iii) Partnership B.
"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 Securities in an
arm's-length transaction from a Stockholder where such purchaser is not a
Permitted Transferee of such Stockholder.
"Total Voting Power" means the aggregate number of votes which may be
cast by holders of outstanding Voting Securities.
"Underwritten Registration" or "Underwritten Offering" means a
registration under the Securities Act in which securities of FelCor are sold to
an underwriter or group of underwriters for reoffering to the public.
"Voting Securities" means all securities of FelCor entitled, in the
ordinary course, to vote in the election of directors of FelCor.
ARTICLE II
REGISTRATION RIGHTS
2.1. Shelf Registration of Resales. (a) Registration of
Resales. Subject to Section 2.1(b), FelCor will file with the SEC a
Registration Statement under Rule 415 with respect to all Registrable
Securities and use its reasonable best efforts to cause such Registration
Statement to become effective no later than the expiration of the Lock-Up
Period. Subject to Section 2.1(b), FelCor will file with the SEC, if
necessary, a Registration Statement under Rule 415 with respect to all shares
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of FelCor Common Stock issued in the Merger and held by officers and directors
of Bristol Hotels & Resorts, Inc., a Delaware corporation ("BHR"), who may be
deemed to be "affiliates" under Rule 145 at the Effective Time and use its
reasonable best efforts to cause such Registration Statement to be effective as
of the Effective Time.
(b) Conversion of Form S-4. Subject to the other provisions of
this Agreement (including the covenant contained in Section 2.3 with respect to
the absence of Suspension Notices), FelCor may, in its sole discretion, convert
the Form S-4 Registration Statement filed by FelCor in connection with its
issuance of shares of FelCor Common Stock pursuant to the Merger (the "Form
S-4") to a Registration Statement on another form permitted to be used by
FelCor for the registration under the Securities Act of the Registration
Stockholders' offering and resale of Registrable Securities (in accordance with
the intended methods of distribution). References herein to the "Form S-4"
will be deemed to include the Registration Statement into which it may be
converted, and the Form S-4 will be deemed to be a "Registration Statement" for
all purposes of this Agreement.
(c) Maintenance of Effectiveness. FelCor will keep the
Registration Statement filed pursuant to this Section 2.1 effective so long as
the Registration Stockholders hold Registrable Securities.
2.2. "Market Stand-Off" Agreement. The Bass Parties and the
Holdings Parties will not, to the extent requested (by timely written notice)
by the managing underwriter or underwriters for any Underwritten Offering of
FelCor's capital stock (or any securities issued by FelCor that are exercisable
to purchase, convertible into or exchangeable for shares of capital stock of
FelCor) for FelCor's account in which the expected gross proceeds of such
Offering equal or exceed $100 million, sell, make any short sale of, lend,
grant any option for the purchase of or otherwise Transfer any Registrable
Securities (except to the extent permitted in the Underwritten Offering)
without the prior written consent of FelCor and/or the managing underwriter or
underwriters on the same terms and for the same period of time from the
effective date of the Registration Statement relating to the Underwritten
Offering as the officers and directors of FelCor agree to refrain from taking
such actions; provided, however, such period of time shall not exceed 90
calendar days during any 12 month period. FelCor may impose stop-transfer
instructions with respect to the Registrable Securities of each Stockholder
until the end of such period (not to exceed 90 calendar days during any 12
month period) in order to enforce these restrictions. In no event, however,
will the foregoing parties be required to enter into more than two such
agreements in any 12 month period.
2.3. Registration Procedures. In connection with FelCor's
registration obligations pursuant to this Article II, FelCor will use its
reasonable best efforts to effect such registration to
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permit the sale of the Registrable Securities in accordance with the
Registration Stockholders' intended method or methods of distribution of those
Registrable Securities, and pursuant thereto FelCor will as expeditiously as
possible:
(a) Prepare and file with the SEC a Registration
Statement on any appropriate form under the Securities Act available
for the sale of the Registrable Securities by the Registration
Stockholders in accordance with the Registration Stockholders'
intended method or methods of distribution thereof, and use its
reasonable best efforts to cause the Registration Statement to become
effective and remain effective as provided herein; provided, however,
that not less than three Business Days before filing a Registration
Statement or Prospectus or any amendments or supplements thereto
(excluding documents that would be incorporated or deemed to be
incorporated therein by reference) FelCor will furnish to the
Registration Stockholders whose Registrable Securities are covered by
that Registration Statement, counsel for such Registration
Stockholders with respect to such registration ("Special Counsel") and
the managing underwriter, if any, copies of all documents proposed to
be filed, which documents will be subject to the review of the
Registration Stockholders, the Special Counsel and the managing
underwriters, if any, and FelCor will not file a Registration
Statement or any amendment thereto or any Prospectus or any supplement
thereto (excluding any documents which, upon filing, would be
incorporated or deemed to be incorporated by reference therein) to
which the Registration Stockholders whose Registrable Securities are
covered by that Registration Statement, the Special Counsel or the
managing underwriter, if any, may reasonably object on a timely basis;
(b) Prepare and file with the SEC any amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement continuously effective
for the period herein specified; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with
the provisions of the Securities Act with respect to the distribution
of all securities covered by the Registration Statement during the
applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in the Registration
Statement as so amended or to the Prospectus as so supplemented;
(c) Notify the Registration Stockholders selling
Registrable Securities, the Special Counsel and the managing
underwriters, if any, promptly, and (if requested by any of those
Persons) confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a
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Registration Statement or any post-effective amendment, when the
Registration Statement or amendment has become effective, (ii) of any
request by the SEC or any other federal or state governmental
authority for amendments or supplements to a Registration Statement or
related Prospectus or for additional information, (iii) of the
issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if at any time the representations and warranties of
FelCor contained in any agreement contemplated by Section 2.3(l)
(including any underwriting agreement) cease to be true and correct,
(v) of the receipt by FelCor of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (vi) of
the occurrence of any event which makes any statement made in the
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in
a Registration Statement, Prospectus or document so that, in the case
of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and, in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated or that is necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, and (vii) of FelCor's reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate;
(d) Use every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement,
or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest possible moment;
(e) If requested by the managing underwriters, if any, or
Registration Stockholders whose Registrable Securities are being
registered, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters,
if any, and those Registration Stockholders agree should be included
therein to comply with applicable law and (ii) make all required
filings of the Prospectus supplement or such post-effective amendment
as soon as practicable after FelCor has received notification of the
matters to be incorporated in the Prospectus supplement or
post-effective amendment; provided, however, that FelCor will not be
required to take any actions under this Section 2.3(e) that are not, in
the
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reasonable opinion of counsel for FelCor, in compliance with
applicable law;
(f) Furnish to each Registration Stockholder whose
Registrable Securities are being registered, the Special Counsel and
each managing underwriter, if any, without charge, conformed copies of
the Registration Statement and each post-effective amendment or
supplement thereto, including financial statements (including
schedules, all documents incorporated or deemed incorporated therein
by reference and all exhibits) as such Registration Stockholders may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by each such Registration Stockholder;
(g) Deliver to each Registration Stockholder whose
Registrable Securities are being registered, the Special Counsel and
the underwriters, if any, without charge, copies of the Prospectus or
Prospectuses relating to the Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as
those Persons may reasonably request; and FelCor hereby consents to the
use of that Prospectus or each amendment or supplement thereto by each
of the Registration Stockholders whose Registrable Securities are being
registered, and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by that
Prospectus or any amendment or supplement thereto;
(h) Cooperate with the Registration Stockholders that are
selling Registrable Securities and the managing underwriters, if any,
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates
will not bear any restrictive legends; and enable the Registrable
Securities to be in such denominations and registered in such names as
the managing underwriters, if any, may request at least two Business
Days prior to any sale of Registrable Securities to the underwriters;
(i) Use reasonable efforts to cause the sale of
Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities within the United States, except as may be required solely
as a consequence of the nature of a Registration Stockholder's
business, in which case FelCor will cooperate in all reasonable
respects with the filing of the Registration Statement and the
granting of such approvals as may be necessary to enable such
Registration Stockholder or the underwriters, if any, to consummate
the disposition of such Registrable Securities;
(j) Upon the occurrence of any event contemplated by
Section 2.3(c)(vi) or 2.3(c)(vii) hereof, promptly prepare a
supplement or post-effective amendment to the Registration
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Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(k) Use its best efforts to cause all Registrable
Securities covered by the Registration Statement to be (i) listed on
each securities exchange, if any, on which similar securities issued
by FelCor are then listed or, if no similar securities issued by
FelCor are then so listed, on the New York Stock Exchange or another
national securities exchange if the securities qualify to be so listed
or (ii) authorized to be quoted on the Nasdaq National Market System
or the Nasdaq SmallCap Market if the securities qualify to be so
quoted; in each case, if requested by the holders of a majority of the
Registrable Securities covered by the Registration Statement or the
managing underwriters, if any;
(l) Enter into such agreements (including, in the event
of an Underwritten Offering, an underwriting agreement in form, scope
and substance as is customary in underwritten offerings) and take all
such other actions as may be reasonably requested by the managing
underwriters or the placement agent or other counterparty to the
transaction in order to expedite or facilitate the disposition of the
Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such
representations and warranties as may be reasonably requested by the
Registration Stockholders whose Registrable Securities are being
registered and the underwriters, if any, with respect to the business
of FelCor and its Subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in Underwritten Offerings
and confirm those representations and warranties if and when
requested; (ii) obtain opinions of counsel to FelCor and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters,
addressed to each of the underwriters and covering the matters
customarily covered in opinions requested in Underwritten Offerings
and such other matters as may be reasonably requested by the
underwriters); (iii) use its best efforts to obtain "comfort" letters
and updates thereof from the independent certified public accountants
of FelCor (and, if necessary, any other certified public accountants
of any subsidiary of FelCor or
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of any business acquired by FelCor for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed to each Registration Stockholder whose
Registrable Securities are being registered and each of the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters
in connection with Underwritten Offerings; (iv) deliver such documents
and certificates as may be requested by any Registration Stockholder
whose Registrable Securities are being registered, the Special Counsel
and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of FelCor and its
Subsidiaries made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting
agreement or similar agreement entered into by FelCor; (v) promptly
incorporate in a Prospectus supplement or post-effective amendment to
the Registration Statement such information as the managing
underwriter or underwriters, if any, and such Registration
Stockholders agree should be included therein as may be required by
applicable law; and (vi) make all required filings of such Prospectus
supplement or such post-effective amendment (or other Registration
Statement) as soon as practicable after FelCor has received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment (or other Registration
Statement); provided, however, that FelCor will not be required to
take any actions under clauses (v) and (vi) that are not, in the
opinion of counsel for FelCor, in compliance with applicable law. The
foregoing actions will be taken in connection with each closing under
such underwriting or similar agreement as and to the extent required
thereunder;
(m) Make available for inspection by a representative of
the Registration Stockholders whose Registrable Securities are being
registered, any underwriter participating in any disposition of
Registrable Securities and any attorney or accountant retained by such
Registration Stockholders or underwriter, all financial and other
records, pertinent corporate documents and properties of FelCor and
its Subsidiaries, and cause the officers, directors and employees of
FelCor and its Subsidiaries to supply all information reasonably
requested by any such representative, underwriter, attorney or
accountant in connection with the Registration Statement; provided,
however, that any records, information or documents that are
designated by FelCor in writing as confidential at the time of
delivery of such records, information or documents will be kept
confidential by those Persons unless (i) those records, information or
documents are in the public domain or otherwise publicly available,
(ii) disclosure of those records, information or documents is required
by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, or (iii) disclosure of those
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records, information or documents, in the opinion of counsel to such
Person, is otherwise required by law (including, without limitation,
pursuant to the requirements of the Securities Act);
(n) Comply with all applicable rules and regulations of
the SEC and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 calendar days
after the end of any 12-month period (or 90 calendar days after the
end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best
efforts Underwritten Offering, and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal
quarter of FelCor, after the effective date of a Registration
Statement, which statements shall cover that 12-month period;
(o) Cause its directors, officers and other appropriate
employees to participate in any presentations regarding any
Underwritten Offering reasonably requested by the Registration
Stockholders or the managing underwriter or underwriters participating
in the disposition of those Registrable Securities, provided that so
doing does not unreasonably interfere with the business of FelCor and
the out-of-pocket costs thereof are reimbursed to FelCor;
(p) Use all reasonable efforts to facilitate the
Stockholders' purchase or sale of puts, calls and forward contracts,
short sales and other hedging transactions involving Registrable
Securities; and
(q) Use all reasonable efforts to take all of the steps
necessary or advisable to effect the registration of the Registrable
Securities pursuant to the Registration Statement.
FelCor may require each Registration Stockholder whose Registrable
Securities are being registered to furnish to FelCor such information regarding
the distribution of its Registrable Securities as FelCor may, from time to
time, reasonably request in writing and FelCor may exclude from such
registration the Registrable Securities of any Registration Stockholder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
Each Registration Stockholder will be deemed to have agreed by virtue
of its acquisition of Registrable Securities that, upon receipt of any notice
from FelCor of the occurrence of any event of the kind described in Section
2.3(c)(ii), 2.3(c)(iii), 2.3(c)(v), 2.3(c)(vi) or 2.3(c)(vii) (each, a
"Suspension Notice"), the Registration Stockholder will forthwith discontinue
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disposition of its Registrable Securities covered by the Registration Statement
or Prospectus (a "Blackout") until the Registration Stockholder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
2.3(j), or until it is advised in writing by FelCor that the use of the
applicable Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus. FelCor will not give a Suspension Notice at any
time prior to the date which is 60 calendar days after the effective date of
the Registration Statement (or after expiration of the Lock-Up Period if the
Form S-4 is converted under Section 2.1(b)) and in no event will the aggregate
number of days the Registration Stockholders are subject to Blackout during any
period of 12 consecutive months exceed 180 days.
2.4. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by FelCor will be borne by
FelCor. Those fees and expenses will include, without limitation, (i) all
registration and filing fees (including without limitation fees and expenses
with respect to filings required to be made with the National Association of
Securities Dealers, Inc.), (ii) printing expenses (including without limitation
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with The Depository Trust Company and of printing or photocopying
prospectuses), (iii) messenger, telephone and delivery expenses, (iv)
reasonable fees and disbursements of counsel for FelCor and the Special Counsel
(provided however, that FelCor will reimburse the Registration Stockholders for
the reasonable fees and disbursements of not more than one Special Counsel
chosen by the Registration Stockholders), (v) fees and disbursements of all
independent certified public accountants referred to in Section 2.3(l)(iii)
(including the expenses of any special audit and "comfort" letters required by
or incident to such performance), (vi) Securities Act liability insurance if
FelCor so desires that insurance, and (vii) fees and expenses of all other
Persons retained by FelCor; but excluding underwriting discounts and
commissions and transfer Taxes, if any, relating to the sale or disposition of
Registrable Securities, which shall be borne by the Registration Stockholders.
In addition, FelCor will pay its internal expenses (including without
limitation all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange on which similar securities issued by
FelCor are then listed and the fees and expenses of any Person, including
special experts, retained by FelCor.
2.5. Indemnification. (a) Indemnification by FelCor. FelCor
will, without limitation as to time, indemnify and hold harmless, to the
fullest extent permitted by law, each Registration Stockholder holding
Registrable Securities registered pursuant to this Agreement, the officers,
directors,
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partners, stockholders, agents and employees of each of them, each Person who
Controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) a Registration Stockholder and the officers, directors,
partners, stockholders, agents and employees of any such Controlling Person,
from and against all losses, claims, damages, liabilities, costs (including
without limitation the costs of investigation and attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same are based solely upon information furnished in
writing to FelCor by such Registration Stockholder expressly for use therein;
provided, however, that FelCor will not be liable to any Registration
Stockholder to the extent that any such Losses arise out of or are based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus if either (i)(A) that Registration
Stockholder failed to send or deliver a copy of the Prospectus with or prior to
the delivery of written confirmation of the sale by that Registration
Stockholder of a Registrable Security to the Person asserting the claim from
which such Losses arise and (B) the Prospectus would have completely corrected
such untrue statement or alleged untrue statement or such omission or alleged
omission; (ii) such untrue statement or alleged untrue statement, omission or
alleged omission is completely corrected in an amendment or supplement to the
Prospectus previously furnished by or on behalf of FelCor with copies of the
Prospectus as so amended or supplemented, and that Registration Stockholder
thereafter fails to deliver such Prospectus as so amended or supplemented prior
to or concurrently with the sale of a Registrable Security to the Person
asserting the claim from which such Losses arise; or (iii) such untrue
statement or alleged untrue statement, omission or alleged omission was
contained in any information so furnished in writing by that Stockholder to
FelCor expressly for use in the Registration Statement or Prospectus and was
relied upon by FelCor in the preparation of the Registration Statement,
Prospectus or preliminary prospectus.
(b) Indemnification by Holders of Registrable Securities. In
connection with the Registration Statement, the Registration Stockholders
selling Registrable Securities will furnish to FelCor in writing such
information as FelCor reasonably requests for use in connection with the
Registration Statement or Prospectus and will severally, but not jointly,
indemnify, to the fullest extent permitted by law, FelCor, its directors and
officers, agents and employees, each Person who Controls (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act) FelCor,
and the directors, officers, agents or employees of such Controlling Persons,
from and against all Losses arising out of or based upon any untrue statement
of a
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material fact contained in any Registration Statement, Prospectus or
preliminary prospectus or arising out of or based upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent, that such untrue statement or
omission is contained in any information so furnished in writing by that
Registration Stockholder to FelCor expressly for use in the Registration
Statement or Prospectus and was relied upon by FelCor in the preparation of the
Registration Statement, Prospectus or preliminary prospectus. In no event will
the liability of any Registration Stockholder under this Section 2.5(b) be
greater in amount than the dollar amount of the proceeds (net of payment of all
expenses) received by that Registration Stockholder upon the sale of the
Registrable Securities giving rise to the indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
this Section 2.5, such Person (the "indemnified party") will promptly notify
the Person against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party, upon request of the indemnified party,
will retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and will pay the fees and disbursements of such
counsel related to such proceeding; provided that the failure of any
indemnified party so to notify the indemnifying party will not relieve the
indemnifying party of its obligations hereunder except to the extent that the
indemnifying party is actually prejudiced by such failure to notify. In any
such proceeding, any indemnified party will have the right to retain its own
counsel, but the fees and expenses of such counsel will be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party will not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all indemnified parties
and that all such fees and expenses will be reimbursed as they are incurred.
The indemnifying party will not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any Loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to
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reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it will be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party will, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) Contribution. If the indemnification provided for in this
Section 2.5 is unavailable to an indemnified party under Section 2.5(a) or
2.5(b) in respect of any Losses or is insufficient to hold the indemnified
party harmless (other than giving effect to the last sentence of Section
2.5(b)), then each applicable indemnifying party, in lieu of indemnifying the
indemnified party, will, jointly and severally, contribute to the amount paid
or payable by the indemnified party as a result of the Losses, in the
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and the indemnified party, on
the other hand, in connection with the actions, statement or omissions that
resulted in the Losses as well as any other relevant equitable considerations.
The relative fault of the indemnifying party or indemnifying parties, on the
one hand, and the indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, the indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any
legal or other fees or expenses incurred by such party in connection with any
action or proceeding. In no event will the obligation of a Registration
Stockholder under this Section 2.5(d) be greater in amount than the dollar
amount of the proceeds (net of payment of all expenses) received by that
Registration Stockholder upon the sale of the Registrable Securities giving
rise to the contribution obligation.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this
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Section 2.5(d), an indemnifying party that is a Registration Stockholder will
not be required to contribute any amount in excess of the dollar amount of the
proceeds (net of payment of all expenses) received by that Registration
Stockholder upon the sale of the Registrable Securities giving rise to the
contribution obligation over the amount of any damages which that Registration
Stockholder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
FelCor hereunder will be in addition to any liability FelCor may otherwise have
under this Agreement. The provisions of this Section 2.5 will survive so long
as Registrable Securities remain outstanding, notwithstanding any transfer of
the Registrable Securities by any holder thereof or any termination of this
Agreement.
2.6. Rule 144. FelCor will file the reports required to be filed
by it under the Securities Act and the Exchange Act, and will cooperate with
any Registration Stockholder (including without limitation by making any
representations as any Registration Stockholder may reasonably request), all to
the extent required from time to time to enable the Registration Stockholder to
sell Registrable Securities without registration under the Securities Act
within the limitations of the exemptions provided by Rule 144. Upon the
request of any Registration Stockholder, FelCor will deliver to such
Registration Stockholder a written statement as to whether it has complied with
such filing requirements. Notwithstanding the foregoing, nothing in this
Section 2.6 will be deemed to require FelCor to register any of its securities
under any section of the Exchange Act.
2.7. Underwritten Registrations. If any of the Registrable
Securities are to be sold in an Underwritten Offering (other than an
Underwritten Offering with respect to Securities that are sold primarily on
behalf of FelCor), the underwriter or underwriters and the managing underwriter
or managing underwriters will be selected by the Registration Stockholders
holding a majority of such Registration Securities; provided, that such
underwriter or managing underwriter shall be reasonably satisfactory to FelCor.
Each party hereby agrees that, in connection with any Underwritten Offering
hereunder in which it participates, it will undertake to offer customary
indemnification to the participatory underwriters.
2.8. Indemnification of Statutory Underwriters. Any institutional
buyer, placement agent or counterparty who is deemed to be an underwriter
pursuant to Section 2(11) of the Securities Act in connection with the sale of
Registrable Securities by a Registration Stockholder to such Person will be
entitled to the indemnity set forth in Section 2.5(a).
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ARTICLE III
CORPORATE GOVERNANCE
3.1. Composition of the Board. Each of the Bass Parties as a group
and the Holdings Parties as a group have designated on Schedule 1.7 to the
Merger Agreement one Person to serve as a director of FelCor effective upon the
Merger. FelCor will take all necessary action in order to ensure that the
Persons designated pursuant to this Section 3.1 are appointed to the Board
promptly following or upon the effectiveness of the Merger to serve in the
class of directors specified thereon and, in the case of Xxxxxx X. XxXxxxxx, to
serve as the Chairman of the Board and of its Executive Committee.
3.2. Voting. Until either the Holdings Parties or the Bass Parties
owns less than 25% of its Initial Ownership, each of the Bass Parties and the
Holdings Parties will vote its Voting Securities, or execute written consents,
as the case may be, and each of the Bass Parties and the Holdings Parties will
take all other necessary action (including causing FelCor to call a special
meeting of stockholders), in order to ensure that the Person designated by the
Bass Parties and the Person designated by the Holdings Parties are elected to
the Board, and none of the Bass Parties or the Holdings Parties will vote any
of their 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 such director shall have consented to such removal in
writing. When either the Holdings Parties or the Bass Parties, as applicable,
no longer own at least 25% of their Initial Ownership, each Stockholder's
obligations to take or refrain from taking certain actions pursuant to this
Section 3.2 will terminate without further action. For the avoidance of doubt,
this Article III will not apply to any Voting Securities held or received by
the direct or indirect constituent partners of any of the Holdings Parties.
ARTICLE IV
RESTRICTIONS ON TRANSFER
4.1. General Restriction. Until the six month anniversary of the
Effective Time (such period, the "Lock-Up Period"), no Stockholder may,
directly or indirectly, sell, assign, transfer, grant a participation in,
pledge or otherwise dispose of ("Transfer") any shares of FelCor Common Stock
or any securities convertible into, or exchangeable for shares of FelCor Common
Stock or rights to purchase shares of FelCor Common Stock ("Derivatives" and
collectively with the shares of FelCor Common Stock referred to herein as
"Securities") except (a) to a Permitted Transferee, (b) in compliance with the
limitations of Rule 145, (c) pursuant to a tender offer or other transaction
that has been approved by the Board and is made to all holders of Securities
that are the subject of the tender offer or other
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transaction, (d) any pledge of Securities by a Stockholder made in connection
with a bona fide loan to such Stockholder, (e) any involuntary Transfer
resulting from a lender foreclosing on any pledge of any Securities which
pledge existed on the date hereof or was made in accordance with this Section
4.1, or (f) any Transfer made with the prior written consent of FelCor.
4.2. Transfers in Compliance with Law. No Stockholder may Transfer
any Securities at any time to any Person except in compliance with applicable
federal, state and foreign securities laws.
4.3. Legends. Each Stockholder understands and agrees that stop
transfer instructions will be given to FelCor's transfer agent with respect to
certificates evidencing the FelCor Common Stock such Stockholder may acquire
pursuant to the Merger and that there will be placed on the certificate
evidencing the FelCor Common Stock such Stockholder may acquire pursuant to the
Merger a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE
MAY NOT BE OFFERED, SOLD, PLEDGED, EXCHANGED, TRANSFERRED OR OTHERWISE
DISPOSED OF EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS OF THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE OTHER CONDITIONS
SPECIFIED IN THAT CERTAIN STOCKHOLDERS' AND REGISTRATION RIGHTS
AGREEMENT DATED __________, 1998 AMONG FELCOR AND THE STOCKHOLDERS
NAMED THEREIN, A COPY OF WHICH WILL BE MAILED TO THE HOLDER HEREOF
WITHOUT CHARGE WITHIN FIVE DAYS AFTER RECEIPT OF WRITTEN REQUEST
THEREFOR."
FelCor agrees to notify the transfer agent of the removal of such stop transfer
instructions and legend upon (i) the transfer of the FelCor Common Stock
represented by such certificate pursuant to a Registration Statement under the
Securities Act or in accordance with the applicable provisions of Rule 145
(including without limitation paragraph (d) thereof), (ii) the expiration of
the restrictive period set forth in Rule 145(d), or (iii) the delivery by the
Stockholder to FelCor of a copy of a letter from the staff of the SEC, or an
opinion of counsel in form and substance reasonably satisfactory to FelCor, to
the effect that the shares subject thereto may be offered and sold without
registration under the Securities Act.
4.4. Unauthorized Transfers. Any purported Transfer of any
Securities in violation of the provisions of this Article IV (an "Unauthorized
Transfer") will be null and void. FelCor will not register, recognize or give
effect to any Unauthorized Transfer and the purported transferee of any
Securities pursuant to an Unauthorized Transfer will not thereby acquire any
rights in those Securities. FelCor will, immediately upon becoming aware of an
actual or attempted Unauthorized Transfer, instruct the
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transfer agent or registrar for the Securities to issue an appropriate
stop-transfer order with regard to the Unauthorized Transfer or attempted
Unauthorized Transfer.
4.5. Transfers to Affiliates. No Stockholder will Transfer any of
its shares of FelCor Common Stock to an Affiliate unless such Affiliate
executes a copy of this Agreement and agrees to be bound by all the provisions
herein, whereupon references in this Agreement to a Stockholder will be deemed
to include any such Affiliates; provided, however, this Section 4.5 will not
apply to any distribution by Partnership A or Partnership B to their respective
direct or indirect constituent partners.
ARTICLE V
RIGHT TO PARTICIPATE IN SALES
5.1. 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 not involving an Excluded Transaction (a "Third Party Sale"),
the Offering Stockholder will, prior to effecting any Third Party Sale, deliver
to the other Stockholders (the "Non-Offering Stockholders") 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 a Non-Offering
Stockholder so requests in a written notice (a "Co-Sale Notice") delivered to
the Offering Stockholder within 20 calendar days following the delivery of the
Offer Notice (the "Co-Sale Acceptance Period"), such Non-Offering Stockholder
(a "Co-Selling 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 such Co-Selling Stockholder as is specified in the Co-Sale
Notice; provided that the number of Securities to be sold by such Co-Selling
Stockholder participating in such Third Party Sale will in no event exceed the
Portion corresponding to such Co-Selling Stockholder. As used herein,
"Portion" means, with respect to a Co-Selling Stockholder, the number of
Securities beneficially owned by such Co-Selling Stockholder multiplied by a
fraction the numerator of which is the number of Securities to be sold by the
Offering Stockholder and its Permitted Transferees in such Third Party Sale and
the denominator of which is the aggregate number of Securities beneficially
owned by the Offering Stockholder and its Permitted Transferees, without
duplication, immediately prior
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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 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 Co-Selling
Stockholders, the number of Securities to be sold by each of the Offering
Stockholder and the Co-Selling Stockholders will be reduced to their respective
Pro Rata Number of Securities. "Pro Rata Number" means, with respect to the
participation of the Offering Stockholder and each Co-Selling Stockholder in a
Third Party Sale, the product of (i) the total number of Securities proposed to
be sold by such Stockholder (not to exceed, with respect to any Co-Selling
Stockholder, such Co-Selling Stockholder's Portion) 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 all of
the Co-Selling Stockholders (not to exceed, with respect to any Co-Selling
Stockholder, such Co-Selling Stockholder's Portion). For purposes of this
Section 5.1, an "Excluded Transaction" will mean 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.
(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 Stockholders) if it is
unable to sell all of the Offered Securities as initially set forth in the
Offer Notice and (ii) may increase the number of Securities included in the
Offered Securities to accommodate any Securities proposed to be sold by a
Non-Offering Stockholder.
(c) If a Co-Selling Stockholder properly elects to participate in
a Third-Party Sale, the Offering Stockholder will represent such Co-Selling
Stockholder in the sale but will not assume any fiduciary duty to the
Co-Selling Stockholder under
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this Agreement. The Co-Selling 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 Co-Selling Stockholder may decline to participate in the Third Party Sale
if the documentation is not reasonably acceptable to it. If the Co-Selling
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 Co-Selling Stockholder. The
Offering Stockholder will have no responsibility to the Co-Selling 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 Stockholders.
If the Holdings Parties so request, the Bass Parties will deliver to
Holdings such documents as Holdings may reasonably request consistent with this
Section 5.1 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 Business Days,
confirming that, with respect to a particular Excluded Transaction, the
provisions of this Section 5.1 do not apply to a sale of any Securities owned
by Holdings in such Excluded Transaction.
5.2. Securities Not Subject to Tag-Along Right. For the avoidance
of doubt, this Article V will not apply to (i) the Transfer of Securities by
either of the Holdings Parties to any of their direct or indirect constituent
partners or (ii) Securities held or received by such direct or indirect
partners. Nothing in this Article V or VI will constitute a waiver,
modification or amendment of any restriction on transfer or ownership arising
under FelCor's charter or Section 4.1 hereof.
5.3. Termination. This Article V will terminate on the date either
the Bass Parties or the Holdings Parties beneficially own less than 25% of
their Initial Ownership.
ARTICLE VI
PREEMPTIVE RIGHTS; WAIVER
6.1. Preemptive Rights. Except for the issuance of Excluded
Securities, FelCor will provide the Bass Parties and the Holdings Parties with
written notice of any sale by it for cash of any Securities of FelCor in which
the gross proceeds of such sale to FelCor and its Subsidiaries equals or
exceeds $100 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
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Securities issued, the purchase price (which, in the case of a public offering,
will be the initial offering price to the public, and in all other cases, the
price to the purchasers of the Securities without regard to underwriting
discounts or commissions), 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 FelCor 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 set forth in the Qualified Offering
Notice,up to that number of Securities such that, after giving effect to the
consummation of the Qualified Offering and the issuance to the Stockholder
pursuant to this Section 6.1, the Stockholder would hold that Ownership
Percentage equal to such Stockholder's Ownership Percentage immediately prior
to the Qualified Offering, to be completed five days after the Qualified
Offering or on such other date to which FelCor and the relevant Stockholder
agree. Payment will be made in immediately available funds on such completion
date.
6.2. Regulatory Restrictions; Termination. (a) FelCor may modify
this Article VI 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 FelCor Common Stock is listed (a "Regulatory Objection").
FelCor will use all reasonable efforts to address any Regulatory Objection so
as to preserve to the greatest extent practicable the parties' rights
hereunder.
(b) This Article VI will terminate (i) with respect to any
Stockholder that fails three times to deliver an Election Notice with respect
to the full number of Securities purchasable under Section 6.1 and (ii) as to
the Bass Parties or the Holdings Parties, as applicable, on the date the Bass
Parties or the Holdings Parties, respectively, beneficially own less than 50%
of their Initial Ownership.
ARTICLE VII
MISCELLANEOUS
7.1. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or in any Delaware State court, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (a) consents to submit itself (without
making such
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submission exclusive) to the personal jurisdiction of any federal court located
in the State of Delaware or any Delaware State court in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement and (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court.
Process in any action, suit or proceeding hereunder 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 7.4 will be deemed effective
service of process or such party. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity will be cumulative and not alternative, and the exercise of any thereof
by any party will not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
7.2. No Inconsistent Agreements. FelCor 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.
7.3. Amendments and Waivers. Except as set forth in Section
6.2(a), 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 FelCor and the Stockholders.
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 particular Stockholder and that does not directly or
indirectly affect the rights of the other Stockholders may be given only by
affected Stockholders; provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
7.4. 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) if to
FelCor, at the address or telecopy number below and if to a Stockholder, at the
address or telecopy number set forth on Schedule A (or at such other address or
telecopy number for a party as will be specified by like notice):
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if to FelCor:
FelCor Suite Hotels, Inc.
000 X. Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: President
Attention: General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Jenkens & Xxxxxxxxx, P.C.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
All notices will be deemed to be given only when actually received.
7.5. Owner of Registrable Securities. FelCor will maintain, or
will cause its registrar and transfer agent to maintain, a stock book with
respect to FelCor Common Stock, in which all transfers of Registrable
Securities of which FelCor has received notice will be recorded. FelCor may
deem and treat the person in whose name Registrable Securities are registered
in the stock book of FelCor as the owner thereof for all purposes, including
without limitation the giving of notices under this Agreement.
7.6. Successors and Assigns. Except as provided elsewhere herein,
no party may assign its rights or delegate its obligations under this
Agreement. Notwithstanding the foregoing, Permitted Transferees will succeed
to the rights granted under Article II and Article III (to the extent provided
therein), and to the extent applicable thereto, Articles I and VII, of this
Agreement.
7.7. 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.
7.8. Headings. Article and Section headings in this Agreement are
included herein for convenience of reference only and will not constitute a
part of this Agreement for any other purpose.
7.9. Governing Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable conflict of laws
principles thereof.
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7.10. Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and undertakings, both written
and oral, including without limitation, the Stockholders' Agreement, dated as
of April 28, 1997, among Holdings, HC, BAI, PLC and Bristol and the
Registration Rights Agreement, dated as of April 28, 1997, among Holdings, HC,
BAI and Bristol, with respect to the subject matter of this Agreement.
7.11. 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.
7.12. 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.
7.13. Changes in Outstanding Securities. The provisions of this
Agreement regarding Registrable Securities, FelCor Common Stock and other
securities of FelCor will apply to securities of FelCor or any successor or
assign of FelCor (whether by merger, consolidation, sale of assets or
otherwise) that may be issued in respect of, or by reason of any stock
dividend, stock split, stock issuance, reverse stock split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. Upon
the occurrence of any such event, the definitions of FelCor Common Stock and
Registrable Securities will be appropriately modified by the board of directors
of FelCor.
7.14. Termination. Except as otherwise provided herein, this entire
Agreement will terminate on the earlier of (i) the voluntary or involuntary
dissolution or liquidation of FelCor, and (ii) the mutual agreement of the
parties hereto.
7.15. Acquisition of BHR Shares. 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 shares
("BHR Common Shares") of the common stock, par value $0.01 per share, of BHR if
after giving effect thereto the Bass Parties 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
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(as modified by Section 856(d)(5) of the Code), BHR Common Shares representing
more than 9.9% of the total number of outstanding BHR Common Shares, without
the prior written consent of FelCor.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FELCOR SUITE HOTELS, INC.
By:
------------------------------------
Name:
Title:
BASS AMERICA INC.
By:
------------------------------------
Name:
Title:
HOLIDAY CORPORATION
By:
------------------------------------
Name:
Title:
[PARTNERSHIP A]
By:
-------------------------------, its
general partner
By:
----------------------------
Name:
Title:
[PARTNERSHIP B]
By:
-------------------------------, its
general partner
By:
----------------------------
Name:
Title:
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The undersigned agrees to the terms of
Article IV and Section 7.15.
BASS PLC
By:
------------------------------------
Name:
Title:
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SCHEDULE A
Name and Address Number of Shares of
of Stockholder FelCor Common Stock
----------------- -------------------
