Exhibit 99.4
AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT
This Amendment to SHAREHOLDER RIGHTS Agreement (this "Amendment"), dated as
of December 31, 2001, is between XXXXXX LODGING COMPANY, an Ohio corporation
(the "Company"), and NATIONAL CITY BANK, a national banking association (the
"Rights Agent").
RECITALS:
WHEREAS, the Company and the Rights Agent are parties to that certain
Shareholder Rights Agreement, dated as of May 25, 1999 (the "Shareholder Rights
Agreement"), which was authorized by the Company's Board of Directors to provide
shareholders of the Company with the opportunity to benefit from the long-term
prospects and value of the Company and to ensure that shareholders of the
Company receive fair and equal treatment in the event of any proposed takeover
of the Company; and
WHEREAS, the Company desires to amend the Shareholder Rights Agreement in
connection with the execution of the Master Contribution Agreement, dated as of
December 31, 2001, by and among Xxxxxx Management Company Limited Liability
Company, an Ohio limited liability company, JABO LLC, a Delaware limited
liability company, the Company and Xxxxxx Hotel Properties, L.P., an Ohio
limited partnership, and the consummation of the transactions contemplated
thereby.
AGREEMENTS
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms used
in this Amendment shall have the meanings ascribed thereto in the Shareholder
Rights Agreement.
2. ACQUIRING PERSON. The definition of the term "Acquiring Person" in
Section 1(a) of the Shareholder Rights Agreement is hereby deleted in its
entirety and replaced with the following:
"Acquiring Person" means any Person (as defined herein) who, together with
all Affiliates (as defined herein) and Associates (as defined herein) of such
Person, is the Beneficial Owner (as defined herein) of 15% or more of the Common
Shares then outstanding, but does not include (i) the Company, (ii) any
Subsidiary (as defined herein) of the Company, (iii) any employee benefit plan
or compensation arrangement of the Company or of any Subsidiary of the Company,
or (iv) any Person holding Common Shares organized, appointed or established by
the Company or by any Subsidiary of the Company for or pursuant to the terms of
any employee benefit plan or compensation arrangement described in Section
1(a)(iii), (the Persons described in clauses (i) through (iv) above are referred
to herein as "Exempt Persons"). In addition, (i) AEW Partners III, L.P., a
Delaware limited partnership ("AEW"), is not an Acquiring Person with respect to
Common Shares (the "AEW Shares") acquired or to be acquired under the Stock
Purchase Agreement dated as of February 1, 1999 (the "Purchase Agreement") among
the Company, Xxxxxx Hotel Properties, L.P., an Ohio limited partnership ("BHP"),
and AEW, and on exercise of the Initial Warrant or the Expansion Warrant (each
as defined in the Purchase Agreement), except to the extent that any acquisition
or series of acquisitions under the Purchase Agreement, the Initial Warrant and
the Expansion Warrant of less than 15% of the Common Shares, when combined with
Common Shares then beneficially owned by AEW (within the meaning of Section
1(d)(i) hereof, but excluding Common Shares beneficially owned by an Affiliate
that is not an Associate of AEW and without giving effect to Rule 13d-3(d) of
the Rules under the Exchange Act), results in AEW beneficially owning (as
defined in the immediately preceding clause of this sentence)
15% or more of the Common Shares then outstanding and (ii) the Common Shares
acquired or to be acquired by JABO LLC, a Delaware limited liability company
("JABO"), upon redemption by the Company of BHP partnership units issued to JABO
pursuant to the Master Contribution Agreement (the "Contribution Agreement"),
dated as of December 31, 2001, by and among Xxxxxx Management Company Limited
Liability Company, an Ohio limited liability company, JABO, the Company and BHP
(the "JABO Shares"), shall not be included in the calculation of the beneficial
ownership of Common Shares of JABO or any of JABO's Affiliates or Associates,
except (A) to the extent that any issuance of JABO Shares to JABO of less than
15% of the issued and outstanding Common Shares, when combined with Common
Shares then beneficially owned by JABO (within the meaning of Section 1(d)(i)
hereof), results in JABO beneficially owning (as defined in the immediately
preceding clause of this sentence) 20% or more of the Common Shares then issued
and outstanding, and (B) if, at the time of any issuance of JABO Shares to JABO,
JABO is not controlled (as that term is defined in Rule 12b-2 of the Exchange
Act) by Xxxxxx X. Xxxxxx or Xxxx X. Xxxxxx.
Notwithstanding the foregoing, (i) no Person will become an "Acquiring
Person" as a result of an acquisition by the Company of Common Shares that, by
reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person from below 15% to 15% or more of the
Common Shares then outstanding; however, if a Person becomes a Beneficial Owner
of 15% or more of the Common Shares then outstanding by reason of share
purchases by the Company and, after those share purchases are made, becomes the
Beneficial Owner of any additional Common Shares (other than pursuant to a share
split, share dividend or similar transaction) and immediately thereafter is the
Beneficial Owner of 15% or more of the Common Shares then outstanding, then that
Person will be an "Acquiring Person" and (ii) neither JABO nor any of its
Affiliates and Associates (collectively, the "JABO Parties") will become an
"Acquiring Person" as a result of an acquisition by the Company of Common Shares
that, by reducing the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such JABO Party from below 20% to 20% or
more of the Common Shares then outstanding; however, if a JABO Party becomes a
Beneficial Owner of 20% or more of the Common Shares then outstanding by reason
of share purchases by the Company and, after those share purchases are made,
becomes the Beneficial Owner of any additional Common Shares (other than
pursuant to a share split, share dividend or similar transaction) and
immediately thereafter is the Beneficial Owner of 20% or more of the Common
Shares then outstanding, then that Person will be an "Acquiring Person."
In addition, notwithstanding the foregoing, a Person is not an "Acquiring
Person" if the Board of Directors determines that a Person who would otherwise
be an "Acquiring Person," inadvertently acquired the Common Shares that would
otherwise make the Person an "Acquiring Person," if that Person as promptly as
practicable divests a sufficient number of Common Shares so that that Person is
a Beneficial Owner of less than 15% (or, in the case of the JABO Parties, less
than 20%) of the Common Shares then outstanding.
3. COUNTERPARTS. This Amendment may be executed in multiple counterparts,
each of which shall be deemed an original and all of which together shall
constitute one action. The signature page of any individual or entity, or copies
or facsimiles thereof, may be appended to any counterparts of this action and
when so appended shall constitute an original.
4. FULL FORCE AND EFFECT. Except as expressly amended by this Amendment,
all other terms and conditions of the Shareholder Rights Agreement shall remain
in full force and effect and unmodified hereby.
5. GOVERNING LAW. This Amendment is governed by and construed in accordance
with the laws of the State of Ohio, without regard to principles of conflicts of
law.
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IN WITNESS WHEREOF, this Amendment has been executed in one or more
counterparts by or on behalf of each of the parties hereto as of the date first
written above.
XXXXXX LODGING COMPANY,
an Ohio corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
NATIONAL CITY BANK, a national banking
Association, as Rights Agent
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
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