Exhibit 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT (the "Amendment")
is made this 25 day of June, 1999 by and between CRESTLINE CAPITAL CORPORATION,
a Maryland corporation (the "Company") and THE BANK OF NEW YORK (the "Rights
Agent").
WHEREAS, the Company and the Rights Agent previously entered
into a Rights Agreement, dated as of December 14, 1998 (the "Rights Agreement").
WHEREAS, the Company has determined that the Rights Agreement
should be amended to correct and supplement certain provisions which are
defective and/or inconsistent with other provisions in the Rights Agreement.
WHEREAS, the Company has determined that it is necessary and
desirable to supplement and amend the Rights Agreement.
WHEREAS, the Company has determined that this Amendment does
not adversely affect the interests of the holders of Rights Certificates (other
than an Acquiring Person or an Affiliate or Associate of any such Person) (as
such terms are defined in the Rights Agreement).
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company may, and the Rights Agent shall, if the Company so directs, supplement
or amend any provision of the Agreement without the approval of any holders of
certificates representing shares of Common Stock (as defined in the Rights
Agreement).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements made in the Rights Agreement and this Amendment, the parties hereto
agree as follows:
1. Defined Terms. Terms defined in the Rights Agreement and used
herein shall have the meanings given to them in the Rights Agreement.
2. Amendments to Section 1.
(a) Section 1(a) of the Rights Agreement is amended by
deleting the number "20" in every instance that it
appears and substituting in its place in every
instance the number "10".
(b) Section 1(a)(i) of the Rights Agreement is amended by
deleting the phrase "Host Marriott Corporation, a
Delaware corporation and the parent of the Company
("Host Marriott")" and substituting in its place "any
Person that on the date of the Amendment is a
Beneficial Owner of 10% or more of the shares of
Common Stock then outstanding, provided, however,
that such Person shall nonetheless become an
Acquiring Person in the event such Person thereafter
acquires Beneficial Ownership of an additional share
of Common Stock".
(c) Section 1(k) of the Rights Agreement is amended by
deleting the number "20" and substituting in its
place the number "10".
(d) Section 1(o) of the Rights Agreement is amended by
deleting the phrase "and (iv) shares of Common Stock
acquired by such Person as a result of such Person
becoming a Beneficial Owner (without giving effect to
the last sentence of Section 1(e)) pursuant solely to
clauses (ii) or (iii) of Section 1(e) by any other
Person".
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(e) Section 1 of the Rights Agreement is amended to add
the following provision at the end thereof:
"(nn) "Host Marriott" shall mean Host Marriott
Corporation, a Delaware corporation."
3. Amendment to Section 11. Section 11(p) of the Rights Agreement
is amended by deleting the phrase "Corporation, a Delaware corporation."
4. Amendment to Section 23. Section 23 of the Rights Agreement
is amended by deleting the phrase "10% or less" and substituting in its place
"less than 10%".
5. Amendment to Section 26. Section 26 of the Rights Agreement
is amended by deleting the phrase "10400 Fernwood Road" and substituting in its
place with "6600 Rockledge Drive".
6. Exhibits. The Summary of Rights attached as Exhibit B to the
Rights Agreement is amended by deleting the existing Exhibit B and substituting
in its place the Exhibit B attached hereto. The Rights Certificate attached as
Exhibit C to the Rights Agreement is amended by deleting the existing Rights
Certificate in Exhibit C and substituting in its place the Rights Certificate
attached hereto.
7. Benefits. Nothing in the Rights Agreement, as amended by this
Amendment, shall be construed to give any Person other than the Company, the
Rights Agent and the registered holders of the Rights Certificates any legal or
equitable right, remedy or claim under the Rights Agreement, as amended by this
Amendment; but the Rights Agreement, as amended by this Amendment, shall be the
sole and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Rights Certificates.
8. Descriptive Headings. Descriptive headings of the sections in
this Amendment are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
9. Effectiveness. Except as amended hereby, the Rights Agreement
shall remain in full force and effect and shall be otherwise unaffected hereby.
10. Miscellaneous. This Amendment shall be deemed to be a contract
made under the laws of the State of Maryland and for all purposes be governed
by and construed in accordance with laws of such State. This Amendment may be
executed in any number of counterparts. It shall not be necessary that the
signature of or on behalf of each party appears on one or more of the
counterparts. All counterparts shall collectively constitute single agreement.
It shall not be necessary in any proof of this Amendment to produce or account
for more than a number of counterparts containing the respective signatures on
or on behalf of all of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the day and year first
above written.
ATTEST: CRESTLINE CAPITAL CORPORATION
By: /s/ Xxxxx X.X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------- ---------------------------
Name: Xxxxx X.X. Xxxxxx Name: Xxxxx X. Xxxxxxxxx
Title: Secretary Title: President and Chief
Executive Officer
ATTEST: THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxx
-------------------------- ---------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxxx Xxxxxxxx
Title: Vice President Title: Vice President
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EXHIBIT B
SUMMARY OF RIGHTS TO PURCHASE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
On December 11, 1998, the Board of Directors of CRESTLINE
CAPITAL CORPORATION (the "Company") declared effective on December 14, 1998 a
dividend distribution of one right ("Right") for each outstanding share of
common stock (the "Common Stock") of the Company. The distribution is payable to
stockholders of record on December 15, 1998. Each Right, when exercisable,
entitles the registered holder to purchase from the Company one one-thousandth
of a share of Series A Junior Participating Preferred Stock ("Preferred Stock")
at a price of $65.00 per one one-thousandth share (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth in
a Rights Agreement dated as of December 14, 1998 and amended as of June 25, 1999
(the "Rights Agreement") between the Company and The Bank of New York, as Rights
Agent (the "Rights Agent").
Initially, the Rights will be attached to all certificates
representing shares of Common Stock then outstanding, and no separate
certificates evidencing the Rights will be distributed. The Rights will separate
from the Common Stock and a distribution of Rights Certificates (as defined
below) will occur upon the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 10% or more of the outstanding shares of Common Stock (the "Stock
Acquisition Date") (except for stockholders who owned 10% or more of the
outstanding shares of Common Stock as of June 25, 1999 when the Rights Agreement
was amended) or (ii) 10 business days (or such later date as the Board of
Directors may determine) following the commencement of a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by a person of 10% or more of the outstanding shares of Common Stock
(the earlier of such dates being called the "Distribution Date"). In addition,
the Rights Agreement contains exceptions for acquisitions by (i) the Company,
(ii) any subsidiary of the Company and (iii) any employee benefit plan of the
Company or any subsidiary of the Company or any person holding shares of Common
Stock for or pursuant to the terms of any such benefit plan. For purposes of the
Rights Agreement, a person shall not be deemed to beneficially own "Exempt
Shares" which include (i) shares of Common Stock that are received pursuant to
the distribution by Host Marriott Corporation (the "Distribution") of the shares
of Common Stock of the Company to the holders of shares of common stock, par
value $1.00 per share of Host Marriott Corporation ("HM Common Stock") held of
record on the record date fixed for the distribution, provided that such shares
of HM Common Stock were beneficially owned by such person on February 3, 1989,
and owned continuously thereafter until the Distribution; (ii) certain shares of
Common Stock which were acquired by a person pursuant to a gift, bequest,
inheritance or distribution from a trust or from a corporation controlled by
such person where such shares of Common Stock were Exempt Shares immediately
prior to such acquisition; and (iii) certain shares of Common Stock which were
acquired by a person as a result of a stock dividend, stock distribution or
recapitalization, in respect of Exempt Shares only.
Until the Distribution Date, (i) the Rights will be evidenced
by the Common Stock certificates, and will be transferred with and only with the
Common Stock certificates, (ii) new Common Stock certificates issued after
December 15, 1998 upon transfer or new issuance of the Common Stock will contain
a notation incorporating the Rights Agreement by reference, and (iii) the
surrender for transfer of any certificates for Common Stock outstanding will
also constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on December 13, 2008, unless earlier
redeemed or exchanged by the Company as described below. The Rights will not be
exercisable by a holder in any jurisdiction where the requisite qualification to
the issuance to such holder, or the exercise by such holder, of the Rights has
not been obtained or is not obtainable.
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As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Rights Certificates") will be
mailed to holders of record of the Common Stock as of the close of business on
the Distribution Date and, thereafter, the separate Rights Certificates alone
will evidence the Rights. Except as otherwise determined by the Board of
Directors, only shares of Common Stock issued prior to the Distribution Date
will be issued with Rights.
In the event that a Person becomes the beneficial owner of 10%
or more of the then outstanding shares of Common Stock (except pursuant to an
offer for all outstanding shares of Common Stock which the Board of Directors
determine to be fair to and otherwise in the best interests of the Company and
its stockholders), each holder of a Right will, after the end of a redemption
period referred to below, have the right (subject to the ownership limit and the
other ownership restrictions contained in the Company's Articles of
Incorporation) to exercise the Right by purchasing, for an amount equal to the
Purchase Price, Common Stock (or, in certain circumstances, cash, property or
other securities of the Company) having a value equal to two times such amount.
Notwithstanding any of the foregoing, following the occurrence of the events set
forth in this paragraph, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not exercisable following the
occurrence of the events set forth above until such time as the Rights are no
longer redeemable by the Company as set forth below.
In the event that, at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation (other than a
merger which follows an offer described in the preceding paragraph), or (ii) 50%
or more of the Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights which previously have been voided as set forth
above) shall, after the expiration of the redemption period referred to below,
have the right to receive, upon exercise, common stock of the acquiring company
having a value equal to two times the Purchase Price of the Right.
At any time after a person or group of affiliated or
associated persons becomes an Acquiring Person, the Board of Directors of the
Company may exchange the Rights (other than Rights owned by such person or group
which have become void), in whole or in part, at an exchange ratio of one share
of Common Stock per Right (subject to adjustment).
The Purchase Price payable, and the number of one
one-thousandths of a share of Preferred Stock or other securities or property
issuable, upon exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of the Preferred Stock, (ii) upon
the grant to holders of the Preferred Stock of certain rights or warrants to
subscribe for Preferred Stock or convertible securities at less than the current
market price of the Preferred Stock or (iii) upon the distribution to holders of
the Preferred Stock of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants (other than
those referred to above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional shares will be issued (other than
fractions which are integral multiples of one one-thousandth of a share of
Preferred Stock) and in lieu thereof, an adjustment in cash will be made based
on the market price of the Preferred Stock on the last trading date prior to the
date of exercise.
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In general, the Board of Directors of the Company, may cause
the Company to redeem the Rights in whole, but not in part, at any time during
the period commencing on December 14, 1998, and ending on the tenth day
following the Stock Acquisition Date, as such period may be extended or
shortened by the Board of Directors (the "Redemption Period") at a price of
$.005 per Right (payable in cash, Common Stock or other consideration deemed
appropriate by the Board of Directors). Under certain circumstances set forth in
the Rights Agreement, the decision to redeem the Rights will require the
concurrence of two-thirds of the Board of Directors. After the Redemption Period
has expired, the Company's right of redemption may be reinstated if an Acquiring
Person reduces his beneficial ownership to less than 10% of the outstanding
shares of Common Stock in a transaction or series of transactions not involving
the Company and there are no other Acquiring Persons. Immediately upon the
action of the Board of Directors of the Company ordering redemption of the
Rights, the Rights will terminate and the only right of the holders of Rights
will be to receive the $.005 redemption price.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends. While the distribution of the Rights
will not be subject to federal taxation to stockholders or to the Company,
stockholders may, depending upon the circumstances, recognize taxable income in
the event that the Rights become exercisable for Common Stock (or other
consideration) of the Company or for common stock of the acquiring company as
set forth above.
* * *
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Rights Certificate
CRESTLINE CAPITAL CORPORATION
This certifies that , or its registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of December 14, 1998 and amended as of June 25, 1999 (the
"Rights Agreement"), between CRESTLINE CAPITAL CORPORATION, a Maryland
corporation (the "Company"), and THE BANK OF NEW YORK (the "Rights Agent"), to
purchase from the Company at any time prior to ____________ __, ____ at the
office or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one one-thousandth of a fully paid, non-assessable
share of Series A Junior Participating Preferred Stock, par value $.01 per share
(the "Preferred Stock") of the Company, at a purchase price of $_____ per one
one-thousandth share (the "Purchase Price"), upon presentation and surrender of
this Rights Certificate with the Form of Election to Purchase and related
Certificate duly executed. The number of Rights evidenced by this Rights
Certificate (and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set forth above, are
the number and Purchase Price as of ____________ __, ____, based on the
Preferred Stock as constituted at such date, and are subject to adjustment upon
the happening of certain events as provided in the Rights Agreement.
From and after the occurrence of an event described in Section
11(a)(ii) of the Rights Agreement, the Rights evidenced by this Rights
Certificate beneficially owned by (i) an Acquiring Person or an Affiliate or
Associate of any such Person (as such terms are defined in the Rights
Agreement), which the Board of Directors, in their sole discretion, determine is
or was involved in or caused or facilitated, directly or indirectly (including
through any change in the Board), such Section 11(a)(ii) Event, (ii) a
transferee of any such Acquiring Person, Associate or Affiliate, or (iii) under
certain circumstances specified in the Rights Agreement, a transferee of a
person who, concurrently with or after such transfer, became an Acquiring Person
or an Affiliate or Associate of an Acquiring Person shall become null and void
and no holder hereof shall have any right with respect to such Rights from and
after the occurrence of such Section 11(a)(ii) Event.
The Rights evidenced by this Rights Certificate shall not be
exercisable, and shall be void so long as held, by a holder in any jurisdiction
where the requisite qualification to the issuance to such holder, or the
exercise by such holder, of the Rights in such jurisdiction shall not have been
obtained or be obtainable.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of shares of Preferred Stock or other securities, which may
be purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the happening of
certain events, including Triggering Events (as such term is defined in the
Rights Agreement).
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Rights Certificates,
which limitations of rights include the temporary suspension of the
exercisability of such Rights under the specific circumstances set forth in the
Rights Agreement. Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and are also available upon written
request to the Rights Agent.
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This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office or offices of the Rights Agent
designated for such purpose, may be exchanged for another Rights Certificate or
Right Certificates of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number of one one-thousandths of a share of
Preferred Stock as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Rights Certificate or Rights Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.005 per Right at any time prior to the earlier of the
close of business on (i) the tenth day following the Stock Acquisition Date (as
such time period may be changed in the discretion of the Board of Directors
pursuant to the Rights Agreement), and (ii) the Final Expiration Date (as
defined in the Rights Agreement). Under certain circumstances set forth in the
Rights Agreement, the decision to redeem shall require the concurrence of
two-thirds of the Board of Directors. After the expiration of the redemption
period, the Company's right of redemption may be reinstated if an Acquiring
Person reduces his beneficial ownership to less than 10% of the outstanding
shares of Common Stock in a transaction or series of transactions not involving
the Company, and such reinstatement is approved by the Company's Board of
Directors.
At any time after a person becomes an Acquiring Person, the
Board of Directors of the Company may exchange the Rights (other than Rights
owned by such Acquiring Person which have become void), in whole or in part, at
an exchange ratio of one share of Common Stock per Right (subject to
adjustment).
No fractional shares of Preferred Stock will be issued upon
the exercise of any Right or Rights evidenced hereby (other than fractions which
are integral multiples of one one-thousandth of a share of Preferred Stock,
which may, at the election of the Company, be evidenced by depositary receipts),
but in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
shares of Preferred Stock or of any other securities of the Company which may at
any time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of ____________ __, ____
ATTEST: CRESTLINE CAPITAL CORPORATION
By:________________________ By:__________________________
Name: Name:
Title: Title:
COUNTERSIGNED:
THE BANK OF NEW YORK
By:________________________
Name:
Title:
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