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EXHIBIT 4.1
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
BRISTOL HOTELS & RESORTS, INC.
BASS AMERICA INC.
HOLIDAY CORPORATION
AND
UNITED/XXXXXX HOLDINGS, L.P.
DATED ___________, 1998
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TABLE OF CONTENTS
PAGE
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Demand Registration . . . . . . . . . . . . . . . . . . . . . 3
3. Piggyback Registration . . . . . . . . . . . . . . . . . . . . 5
4. "Market Stand-Off" Agreement . . . . . . . . . . . . . . . . . 7
5. Registration Procedures . . . . . . . . . . . . . . . . . . . 8
6. Registration Expenses . . . . . . . . . . . . . . . . . . . . 14
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 14
8. Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9. Underwritten Registrations . . . . . . . . . . . . . . . . . . 18
10. Indemnification of Statutory Underwriters . . . . . . . . . . 18
11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 19
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made
and entered into as of ________________, 1998, by and among Bristol Hotels &
Resorts, Inc., a Delaware corporation ("BHR"), Bass America Inc., a Delaware
corporation ("BAI"), Holiday Corporation, a Delaware corporation ("HC"), and
United/Xxxxxx Holdings, L.P., a Delaware limited partnership ("Holdings").
RECITALS
The parties hereto have entered into, or are equity owners in entities
that have entered into, other agreements which contemplate, among other things,
the execution and delivery of this Agreement by the parties 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:
1. Definitions. For purposes of this Agreement, the following terms
have the respective meanings set forth below when used herein with initial
capital letters:
"Advice" has the meaning set forth in Section 5 hereto.
"Bass Parties" means BAI and HC and any of their transferees who are
Affiliates of Bass plc.
"Blackout" has the meaning set forth in Section 5 hereto.
"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.
"Common Stock" means the Common Stock, par value $.01 per share, of BHR.
"Demand Notice" has the meaning set forth in Section 2(a) hereto.
"Demand Registration" has the meaning set forth in Section 2(a) hereto.
"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.
"indemnified party" has the meaning set forth in Section 7(c) hereto.
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"indemnifying party" has the meaning set forth in Section 7(c) hereto.
"Losses" has the meaning set forth in Section 7(a) hereto.
"Notice" has the meaning set forth in Section 2(b) hereto.
"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.
"Piggyback Registration" has the meaning set forth in Section 3(a)
hereto.
"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 such
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.
"Registrable Securities" means (i) all the shares of Common Stock
beneficially owned by a Stockholder as of the date hereof, (ii) all shares of
Common Stock which a Stockholder has an option to purchase as of the date
hereof (including without limitation shares of 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
Common Stock (including shares of Common Stock issued pursuant to the other
Securities of BHR that are exercisable to purchase, convertible into, or
exchangeable for shares of Common Stock), whether acquired before or after the
date of this Agreement, until, in the case of any such security, (i) such
security is effectively registered under the Securities Act and disposed of in
accordance with the Registration Statement covering it, (ii) such security is
saleable by the holder thereof pursuant to Rule 144(k), (iii) such security is
saleable by the holder thereof pursuant to Rule 144 without regard to any
volume limitations, or (iv) such security is distributed to the public pursuant
to Rule 144.
"Registration Statement" means any registration statement of BHR under
the Securities Act that covers any of the Registrable Securities pursuant to
the provisions of this Agreement, including the related Prospectus, all
amendments and supplements
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to such registration statement (including post-effective amendments), all
exhibits and all materials incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as 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.
"Special Counsel" has the meaning set forth in Section 5(a) hereto.
"Spin-Off" means the consummation of the spin-off contemplated under the
Spin-Off Agreement dated as of March 23, 1998, among Bristol Hotel Company,
Bristol Hotel Management Corporation and BHR.
"Stockholder" means each of (i) the Bass Parties, as a group, (ii)
Holdings, and (iii) any of Holdings' direct or indirect constituent partners to
whom it distributes any of its shares of Common Stock.
"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.
"Suspension Notice" has the meaning set forth in Section 5 hereto.
"Underwritten Registration" or "Underwritten Offering" means a
registration under the Securities Act in which securities of BHR are sold to an
underwriter or group of underwriters for reoffering to the public.
2. Demand Registration. (a) Requests for Registration. At any time
and from time to time after the date of the Spin-Off, each Stockholder will
have the right by written notice delivered to BHR (a "Demand Notice") to
require BHR to register the number of Registrable Securities requested to be so
registered in accordance with the provisions of the Securities Act (a "Demand
Registration"), but in no event fewer than would result in $5,000,000 of
Registrable Securities being registered or all Registrable Securities owned by
the Stockholder delivering the Demand Notice if it owns less than $5,000,000 of
Registrable
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Securities; provided, however, that no Stockholder may deliver a Demand Notice
until 120 days after the effective date of the immediately preceding Demand
Registration.
The number of Demand Registrations pursuant to this Section 2(a) will
not exceed three on behalf of the Bass Parties, and three on behalf of
Holdings; provided, however, that in determining the number of Demand
Registrations to which the Stockholders are entitled there will be excluded (i)
any Demand Registration that is an Underwritten Registration if the managing
underwriter or underwriters have advised the Stockholders whose Registrable
Securities are being registered in the Demand Registration that the total
number of Registrable Securities requested to be included in the Demand
Registration exceeds the number of Registrable Securities that can be sold in
that offering in accordance with the provisions of this Agreement without
materially and adversely affecting the success of such offering, (ii) any
Demand Registration that does not become effective or is not maintained
effective for the period required pursuant to Section 2(b), unless in the case
of this clause (ii) the Demand Registration does not become effective after
being filed by BHR solely by reason of the refusal to proceed by the holders of
Registrable Securities unless (A) the refusal to proceed is based upon the
advice of counsel relating to a matter with respect to BHR or (B) the
Stockholders that requested their Registerable Securities to be included in the
Demand Registration elect to pay all registration expenses in connection with
that Demand Registration, or (iii) any Demand Registration requested by a
Stockholder in which the other Stockholder elects to participate under Section
2(b).
(b) Filing and Effectiveness. BHR will file a Registration Statement
relating to any Demand Registration within 60 calendar days and will use its
reasonable best efforts to cause the Registration Statement to be declared
effective by the SEC within 120 calendar days of the date on which BHR received
the related Demand Notice.
Each Demand Notice must specify the number of Registrable Securities to
be registered and the intended methods of distribution of those Registerable
Securities. If the Stockholder delivering the Demand Notice specifies one
particular type of Underwritten Offering, the method of distribution will be
that type of Underwritten Offering or a series of that type of Underwritten
Offerings during the period during which the Registration Statement is
effective.
In connection with a Demand Registration pursuant to Section 2(a), BHR
will keep the Registration Statement effective for a period of not less than
180 days or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold. If any
Demand
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Registration is requested to be effected as a "shelf" registration, BHR will
keep the Registration Statement filed in respect of that Demand Registration
effective for a period of up to 12 months from the date on which the SEC
declares that Registration Statement effective (subject to extension pursuant
to Section 5 hereof) or such shorter period that will terminate when all
Registrable Securities covered by that Registration Statement have been sold
pursuant to that Registration Statement.
Within 10 calendar days after receipt of a Demand Notice, BHR will serve
written notice of its receipt of the Demand Notice (the "Notice") to the other
Stockholder and will, subject to the provisions of Section 2(c), include in
that Demand Registration all Registrable Securities with respect to which BHR
receives a written request for inclusion therein within 20 calendar days after
the receipt of the Notice by the other Stockholder.
(c) Priority on Demand Registration. If any of the Registrable
Securities registered pursuant to a Demand Registration are to be sold in one
or more firm commitment Underwritten Offerings, BHR may also provide written
notice to holders of its equity securities (other than Registrable Securities),
if any, who have piggyback registration rights with respect thereto and will
permit all of those holders who request to be included in the Demand
Registration to include any or all equity securities held by those holders in
that Demand Registration on the same terms and conditions as the Registrable
Securities. Notwithstanding the foregoing, if the managing underwriter or
underwriters of the Underwritten Offering to which that Demand Registration
relates advises the Stockholders whose Registrable Securities are being
registered that the total amount of Registrable Securities and securities that
the other equity security holders intend to include in that Demand Registration
is in the aggregate such as to materially and adversely affect the success of
the offering, then (i) first, the amount of securities to be offered for the
account of the holders of the other equity securities will be reduced, to zero
if necessary, pro rata among the holders on the basis of the amount of the
other securities to be included therein by each holder and (ii) the number of
Registrable Securities included in such Demand Registration will, if necessary,
be reduced and there will be included in such firm commitment Underwritten
Offering the number of Registrable Securities that in the opinion of such
managing underwriter or underwriters can be sold without materially and
adversely affecting the success of such offering, allocated pro rata among the
holders of Registrable Securities on the basis of the amount of Registrable
Securities to be included therein by each holder.
(d) Postponement of Demand Registration. BHR will be entitled to
postpone the filing period (or suspend the effectiveness) of any Demand
Registration for a reasonable period of time not in excess of 90 calendar days
during any period of 12
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consecutive months, if BHR determines, in the good faith exercise of its
reasonable business judgment, that the Demand Registration and offering could
materially interfere with bona fide financing plans of BHR or would require
disclosure of information, the premature disclosure of which could materially
and adversely affect BHR. If BHR postpones the filing of a Demand Registration
Statement, it will promptly notify the Stockholders whose Registrable
Securities are the subject of that Demand Registration in writing when the
events or circumstances permitting such postponement have ended.
3. Piggyback Registration. (a) Right to Piggyback. If at any time
BHR proposes to file a registration statement under the Securities Act with
respect to an offering of any class of equity securities (other than a
registration statement (i) on Form X-0, X-0 or any successor form thereto or
(ii) filed solely in connection with an offering made solely to employees of
BHR), whether or not for its own account, then BHR will give written notice of
the proposed filing to the Stockholders as soon as practicable but in any event
at least 30 calendar days before the anticipated filing date. That notice will
offer the Stockholders the opportunity to register such amount of Registrable
Securities as each Stockholder may request (a "Piggyback Registration").
Subject to Section 3(b), BHR will include in each Piggyback Registration all
Registrable Securities with respect to which BHR has received written requests
for inclusion in that Piggyback Registration. The Stockholders will be
permitted to withdraw all or part of the Registrable Securities from a
Piggyback Registration at any time prior to the effective date of the Piggyback
Registration.
(b) Priority on Piggyback Registrations. BHR will cause the managing
underwriter or underwriters of a proposed Underwritten Offering to permit the
Stockholders that requested their Registerable Securities to be included in the
Piggyback Registration for that offering to include therein all Registrable
Securities requested to be so included on the same terms and conditions as any
similar securities, if any, of BHR included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of the offering deliver
an opinion to the Stockholders to the effect that the total amount of
securities which the Stockholders, BHR and any other persons having rights to
participate in that registration propose to include in the offering exceeds the
number of securities that can be sold in the offering without materially and
adversely affecting the success of the offering, then:
(i) if the registration is a primary registration on behalf of
BHR, BHR will include therein (x) first, up to the full amount of
securities BHR proposes to sell that, in the opinion of the managing
underwriter or underwriters, can be sold, (y) second, the amount of
Registrable Securities
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proposed to be sold for the account of Stockholders in excess of the
amount of securities BHR proposes to sell that, in the opinion of such
managing underwriter or underwriters, can be sold (allocated pro rata
among the Stockholders on the basis of the Registrable Securities
requested to be included therein by each Stockholder), and (z) third,
the amount of securities proposed to be sold for the account of any
other Person (other than BHR and the Stockholders) in excess of the
amounts of securities and Registrable Securities BHR and the
Stockholders propose to sell that, in the opinion of such managing
underwriter or underwriters, can be sold (allocated among such Persons
as may be agreed, or if no other agreement, on the basis of the amount
of securities requested to be included therein); and
(ii) if the registration is an underwritten secondary
registration on behalf of holders of securities of BHR other than the
Stockholders, BHR will include therein: (x) first, up to the full number
of securities of the Persons exercising "demand" registration rights
that in the opinion of the managing underwriter or underwriters can be
sold or allocated among such holders or as they may otherwise so
determine, (y) second, the amount of Registrable Securities proposed to
be sold for the account of Stockholders in excess of the amount of
securities such Persons exercising "demand" registration rights propose
to sell that, in the opinion of such managing underwriter or
underwriters, can be sold (allocated pro rata among the Stockholders on
the basis of the Registrable Securities requested to be included
therein), and (z) third, the amount of securities proposed to be sold
for the account of any other Person (other than such Persons exercising
"demand" registration rights and the Stockholders) in excess of the
amounts of securities and Registrable Securities such Persons exercising
"demand" registration rights and the Stockholders propose to sell that,
in the opinion of such managing underwriter or underwriters, can be sold
(allocated among such Persons as may be agreed, or if no other
agreement, on the basis of the amount of securities requested to be
included therein).
(c) Registration of Securities Other than Registrable Securities.
Without the written consent of the Stockholders, BHR will not grant to any
person the right to request BHR to register any securities of BHR under the
Securities Act unless the rights so granted are subject to the prior rights of
the Stockholders set forth herein and, if exercised, would not otherwise
conflict or be inconsistent in any way with the provisions of this Agreement.
4. "Market Stand-Off" Agreement. The Bass Parties and Holdings will
not, to the extent requested (by timely written notice) by the managing
underwriter or underwriters for any
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Underwritten Offering of BHR's capital stock (or any securities issued by BHR
that are exercisable to purchase, convertible into or exchangeable for shares
of capital stock of BHR), for BHR's account, in which the expected gross
proceeds of such offering equal or exceed $25 million, sell, make any short
sale of, lend, grant any option for the purchase of or otherwise transfer or
dispose of any Registerable Securities (except to the extent permitted in the
Underwritten Offering) without the prior written consent of BHR and/or managing
underwriter or underwriters for such period of time (not to exceed 90 days)
from the effective date of the registration statement relating to the
Underwritten Offering as BHR and/or managing underwriter or underwriters may
specify. BHR may impose stop-transfer instructions with respect to the
Registerable Securities of each of the Bass Parties and Holdings until the end
of that 90-day period in order to enforce these restrictions. In no event,
however, will the foregoing parties be required to enter into more than one
such agreement during any period of 12 consecutive months or agree to restrict
any transfer of its Registrable Securities conducted within the volume
limitations of Rule 144.
5. Registration Procedures. In connection with BHR's registration
obligations pursuant to Sections 2 and 3, BHR will effect those registrations
to permit the sale of the Registrable Securities in accordance with the
intended method or methods of distribution of those Registrable Securities, and
pursuant thereto BHR will as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Stockholder
in accordance with the intended method or methods of distribution
thereof, and cause each such 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) BHR will furnish to the Stockholder whose Registrable
Securities are covered by that Registration Statement, counsel for such
Stockholder with respect to such registration ("Special Counsel") and
the managing underwriters, if any, copies of all documents proposed to
be filed, which documents will be subject to the review of the
Stockholder, the Special Counsel and underwriters, and BHR will not file
any Registration Statement or amendment thereto or any Prospectus or any
supplement thereto (excluding any documents which, upon filing, would or
would be incorporated or deemed to be incorporated by reference therein)
to which the Stockholders whose Registrable Securities are covered by
that Registration Statement, the
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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 each Registration Statement as may be necessary
to keep the Registration Statement continuously effective for the
applicable period specified in Section 2; 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 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 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 BHR contained in any agreement contemplated by Section
5(l) (including any underwriting agreement) cease to be true and
correct, (v) of the receipt by BHR 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
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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 BHR'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 the
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 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
BHR has received notification of the matters to be incorporated in the
Prospectus supplement or post-effective amendment; provided, however,
that BHR will not be required to take any actions under this Section
5(e) that are not, in the reasonable opinion of counsel for BHR, in
compliance with applicable law;
(f) Furnish to each 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 the Stockholder
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Stockholder;
(g) Deliver to each Stockholder whose Registrable Securities
are being registered, the Special Counsel and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses
relating to those Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as those Persons may
request; and BHR hereby consents to the use of that Prospectus or each
amendment or supplement thereto by each of the Stockholder whose
Registrable Securities 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;
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(h) Cooperate with the 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) Cause the Sale of Registrable Securities covered by the
applicable 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
Stockholder's business, in which case BHR will cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals as may be necessary to enable the
Stockholder or the underwriters, if any, to consummate the disposition
of such Registrable Securities;
(j) Upon the occurrence of any event contemplated by Section
5(c)(vi) or 5(c)(vii) hereof, promptly prepare a supplement or post-
effective amendment to each Registration 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 such Registration Statement to be (i) listed on each
securities exchange, if any, on which similar securities issued by BHR
are then listed or, if no similar securities issued by BHR 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 such 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
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offerings) and take all such other actions in connection therewith as
may be 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 to the Stockholders whose Registrable
Securities are being registered and the underwriters, if any, with
respect to the business of BHR 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 BHR and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the
Stockholders whose Registrable Securities are being registered)
addressed to such Stockholder and each of the underwriters, if any,
covering the matters customarily covered in opinions requested in
Underwritten Offerings and such other matters as may be reasonably
requested by such Stockholders and underwriters; (iii) use its best
efforts to obtain "comfort" letters and updates thereof from the
independent certified public accountants of BHR (and, if necessary, any
other certified public accountants of any Subsidiary of BHR or of any
business acquired by BHR for which financial statements and financial
data is, or is required to be, included in the Registration Statement),
addressed to each 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; and (iv)
deliver such documents and certificates as may be requested by the
Stockholders 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 BHR 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 BHR. 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
Stockholders whose Registrable Securities are being sold, any
underwriter participating in any disposition of
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Registrable Securities and any attorney or accountant retained by those
Stockholders or underwriter, all financial and other records, pertinent
corporate documents and properties of BHR and its Subsidiaries, and
cause the officers, directors and employees of BHR and its Subsidiaries
to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with
such Registration Statement; provided, however, that any records,
information or documents that are designated by BHR 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 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 BHR, 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 Stockholders whose Registrable
Securities are being registered 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 BHR and the out-of-pocket costs thereof are reimbursed
to BHR;
(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
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(q) Use its best efforts to take all of the steps necessary or
advisable to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby.
BHR may require each Stockholder whose Registrable Securities are being
registered to furnish to BHR such information regarding the distribution of
such Registrable Securities as BHR may, from time to time, reasonably request
in writing and BHR may exclude from such registration the Registrable
Securities of any Stockholder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
Each Stockholder will be deemed to have agreed by virtue of its
acquisition of Registrable Securities that, upon receipt of any notice from BHR
of the occurrence of any event of the kind described in Section 5(c)(ii),
5(c)(iii), 5(c)(v), 5(c)(vi) or 5(c)(vii) (each a "Suspension Notice"), the
Stockholder will forthwith discontinue disposition of its Registrable
Securities covered by the Registration Statement or Prospectus (a "Blackout")
until the Stockholder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof, or until it is advised in
writing (the "Advice") by BHR 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.
If BHR gives any such notice, the time period prescribed in Section 2(b) will
be extended by the number of days during the time period from and including the
date of the giving of that notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(j) hereof or (y) the Advice. BHR will not give a Suspension
Notice at any time prior to the date which is 60 calendar days from the
effective date of the Spin-Off and in no event will the aggregate number of
days the Stockholders are subject to Blackout during any period of 12
consecutive months exceed 180 days.
6. Registration Expenses. (a) All fees and expenses incident to the
performance of or compliance with this Agreement by BHR will be borne by BHR
whether or not any of the Registration Statements become effective. 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,
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(iv) fees and disbursements of counsel for BHR and the Special Counsel for the
Stockholders whose Registrable Securities are being registered, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(l)(iii) (including the expenses of any special audit and "comfort"
letters required by or incident to such performance), (vi) fees and expenses of
any "qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Rule 2720(c) of the National
Association of Securities Dealers, Inc. Conduct Rules, (vii) Securities Act
liability insurance if BHR so desires that insurance, and (viii) fees and
expenses of all other Persons retained by BHR, but excluding underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities. In addition, BHR 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 BHR are then listed and the fees and expenses of any
Person, including special experts, retained by BHR.
(b) In connection with any Demand Registration or Piggyback
Registration under this Agreement, BHR will reimburse the Stockholders whose
Registrable Securities are being registered in such registration for the
reasonable fees and disbursements of not more than one Special Counsel,
together with appropriate local counsel, chosen by the Stockholders whose
Registrable Securities are being registered.
7. Indemnification.
(a) Indemnification by BHR. BHR will, without limitation as to time,
indemnify and hold harmless, to the fullest extent permitted by law, each
Stockholder whose Registrable Securities have been registered pursuant to this
Agreement, the officers, directors, partners, stockholders, and 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
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
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misleading, except insofar as the same are based solely upon information
furnished in writing to BHR by such Stockholder expressly for use therein;
provided, however, that BHR will not be liable to any 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 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 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 BHR with copies of the Prospectus as so amended or supplemented, and
that 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 BHR
expressly for use in such Registration Statement or Prospectus and was relied
upon by BHR in the preparation of such Registration Statement, Prospectus or
preliminary prospectus.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement in which the Registrable Securities
of a Stockholder are being registered, that Stockholder will furnish to BHR in
writing such information as BHR reasonably requests for use in connection with
any Registration Statement or Prospectus and will indemnify, to the fullest
extent permitted by law, BHR, 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) BHR, 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 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 Stockholder to BHR expressly for
use in such Registration Statement or Prospectus and was relied upon by BHR in
the preparation of such Registration Statement, Prospectus or preliminary
prospectus. In no event will the liability of any Stockholder under this
Section 7(b) be greater in amount than the dollar amount of the proceeds (net
of payment of all expenses)
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received by that 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
7(c), 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 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
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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 7 is unavailable to an indemnified party under Section 7(a) or 7(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 7(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, statements 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 Stockholder under
this Section 7(d) be greater in amount than the dollar amount of the proceeds
(net of payment of all expenses) received by that Stockholder upon the sale of
the Registerable 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 7(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 Section 7(d), an
indemnifying party that is a 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 Stockholder upon the sale of the Registrable
Securities giving rise to the contribution obligation over the amount of any
damages which that 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
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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 BHR
hereunder will be in addition to any liability BHR may otherwise have under
this Agreement. The provisions of this Section 7 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.
8. Rule 144. BHR will file the reports required to be filed by it
under the Securities Act and the Exchange Act, and will cooperate with any
Stockholder (including without limitation by making any representations as any
Stockholder may reasonably request), all to the extent required from time to
time to enable the 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 Stockholder, BHR will deliver to
the Stockholder a written statement as to whether it has complied with such
filing requirements. Notwithstanding the foregoing, nothing in this Section 8
will be deemed to require BHR to register any of its securities under any
section of the Exchange Act.
9. Underwritten Registrations. If any of the Registrable Securities
covered by any Demand Registration are to be sold in an Underwritten Offering
(other than an Underwritten Offering with respect to Securities that are sold
primarily on behalf of BHR), the investment banker or investment bankers and
manager or managers that will manage the offering will be selected by the
Stockholder that gave the Demand Notice with respect to such offering;
provided, that such investment banker or manager shall be reasonably
satisfactory to BHR. If any Piggyback Registration is an Underwritten
Offering, BHR will have the right to select the investment banker or investment
bankers and managers to administer the offering. Each party hereto agrees
that, in connection with any Underwritten Offering hereunder in which it
participates, it will undertake to offer customary indemnification to the
participatory underwriters.
10. 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 Stockholder to such Person will be entitled to the
indemnity set forth in Section 7(a).
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11. Miscellaneous.
(a) No Inconsistent Agreements. BHR has not, as of the date hereof,
and will not, on or after the date hereof, enter into any agreement with
respect to its securities which is inconsistent with the rights granted to the
holders of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions of this
Agreement may not be given, unless BHR has obtained the written consent of 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 Stockholder whose Registrable Securities are
being registered pursuant to a Registration Statement 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.
(c) Notices. All notices, requests, claims, demands and other
communications under this Agreement will be in writing and will be delivered
personally, sent by overnight courier (providing proof of delivery) to the
parties or sent by telecopy (providing confirmation of transmission) at the
following addresses or telecopy numbers (or at such other address or telecopy
number for a party as will be specified by like notice):
(i) if to BHR:
Bristol Hotels & Resorts, Inc.
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(ii) if to the Bass Parties:
Holiday Corporation
Xxxxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
and
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Bass plc
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, X0X 0XX
Xxxxxxx
Attention: Xxxxxxx Xxxxxx
Telecopy: 011-44-171-409-8513
with copies to:
Crowne Plaza - Corporate Headquarters
Xxxxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
and
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
(iii) if to Holdings:
United/Xxxxxx Holdings, L.P.
0000 Xxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
All notices will be deemed to be given only when actually received.
(d) Owner of Registrable Securities. BHR will maintain, or will
cause its registrar and transfer agent to maintain, a stock book with respect
to the Common Stock, in which all transfers of Registrable Securities of which
BHR has received notice will be recorded. BHR may deem and treat the person in
whose name Registrable Securities are registered in the stock book of BHR as
the owner thereof for all purposes, including without limitation the giving of
notices under this Agreement.
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(e) Successors and Assigns. This Agreement will inure to the benefit
of and be binding upon the successors and assigns of each of the parties and
will inure to the benefit of each holder of any Registrable Securities. BHR
may not assign its rights or delegate its obligations hereunder.
Notwithstanding the foregoing, transferees will succeed to the rights granted
under this Agreement provided that such transferee shall have acknowledged its
rights and obligations hereunder by a signed written statement of such
transferee's acceptance of such rights and obligations (unless the transferor
notifies BHR in writing on or prior to such transfer that the transferee shall
not have such rights).
(f) 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.
(g) 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.
(h) Governing Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of Delaware, without giving effect to
the principles of conflict of laws of that State that would apply the laws of
any other jurisdiction. Each of the parties to this Agreement hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware, and
any appellate court thereof, in any action, suit, or proceeding arising out of
or relating to this Agreement and any such action, suit or proceeding will be
brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein). Process in any such
action, suit or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without limiting
the foregoing, each party agrees that service of process on such party as
provided in Section 11(c) shall be deemed effective service of process on such
party.
(i) Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and undertakings, both written
and oral, between the parties, with respect to the subject matter of this
Agreement.
(j) 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
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reasonable attorneys' fees and related disbursements and expenses in addition
to any other available remedy.
(k) 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BRISTOL HOTELS & RESORTS, INC.
By:
------------------------------
Name:
Title:
UNITED/XXXXXX HOLDINGS, L.P.
By: Holdings Genpar, L.P., its
General Partner
By: HH Genpar Partners, its
General Partner
By: Holdings Associates, Inc., its
Managing General Partner
By:
-----------------------
Name:
Title:
BASS AMERICA INC.
By:
----------------------------------
Name:
Title:
HOLIDAY CORPORATION
By:
----------------------------------
Name:
Title:
24
