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Exhibit (c)(2)
TENDER AND VOTING AGREEMENT
THIS TENDER AND VOTING AGREEMENT dated as of July 10, 1999
(this "AGREEMENT") is by and among ACCOR SA, a corporation organized under the
laws of France ("PARENT"), RRI ACQUISITION CORP., a Delaware corporation and a
wholly owned subsidiary of Parent ("PURCHASER"), and the persons listed on Annex
A hereto (collectively, the "MS ENTITIES").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Purchaser and Red Roof Inns, Inc., a Delaware corporation (the
"COMPANY"), have entered into an Agreement and Plan of Merger (as amended from
time to time, the "MERGER AGREEMENT"), pursuant to which Purchaser has agreed,
among other things, to commence a cash tender offer (as such tender offer may
hereafter be amended from time to time, the "OFFER") to purchase any and all
shares of common stock, par value $0.01 per share, of the Company (the "COMPANY
COMMON STOCK");
WHEREAS, as an inducement and a condition to its entering into
the Merger Agreement and incurring the obligations set forth therein, including
the Offer and the Merger, Parent has required that the MS Entities enter into
this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises, representations, warranties, covenants and agreements contained
herein and in the Merger Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Certain Definitions. Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement. In addition, for
purposes of this Agreement:
"AFFILIATE" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified. For
purposes of this Agreement, with respect to any MS Entity, "AFFILIATE" shall not
include the Company and the Persons that directly, or indirectly through one or
more intermediaries, are controlled by the Company.
"ENCUMBRANCES" shall mean any and all liens, charges, security
interests, options, claims, mortgages, pledges, proxies, voting trusts or
agreements, obligations, understandings or arrangements or other restrictions of
any nature whatsoever.
"OWNED SHARES" means, with respect to each MS Entity, the shares of
Company Common Stock set forth opposite such MS Entity's name on Annex A to this
Agreement, together with any other shares of Company Common Stock acquired by
that MS Entity after the date hereof.
"PERSON" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, estate, unincorporated
organization or other entity.
"REPRESENTATIVE" means, with respect to any Person, such Person's
officers, directors, partners, shareholders, members, employees, and other
agents and representatives (including any investment banker, financial advisor,
agent, representative or expert retained by or acting on behalf of such Person
or its subsidiaries).
"TRANSFER" means, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof, the offer to make such a sale, transfer or
other disposition, and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing. As a verb, "TRANSFER"
shall have a correlative meaning.
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2. Representations and Warranties of the MS Entities. Each MS Entity hereby
represents and warrants, but as to itself only, to Parent and Purchaser as
follows:
(a) Upon the consummation of the Offer or exercise of the Option (as
defined in Section 6 hereof), Purchaser will acquire good and marketable title
to such MS Entity's Owned Shares, free and clear of all Encumbrances, except for
any Encumbrance arising (i) under the Securities Act of 1933, as amended, or any
applicable state securities laws or (ii) solely as a result of the conduct of
Purchaser. Annex A accurately sets forth the number of shares of Company Common
Stock owned by such MS Entity as of the date of this Agreement.
(b) Such MS Entity is a corporation, limited liability company or
partnership (as specified on Annex A hereto) duly organized and validly existing
under the laws of its jurisdiction of organization, is in good standing under
the laws of its jurisdiction of organization, and has the corporate, company or
partnership (as the case may be) power and authority to execute and deliver this
Agreement and perform its obligations hereunder. The execution, delivery and
performance by such MS Entity of this Agreement and the consummation by it of
the transactions contemplated hereby have, to the extent required, been duly and
validly authorized by its Board of Directors, Manager(s) and General Partner(s)
(as the case may be) of such MS Entity and no other corporate, company or
partnership (as the case may be) proceedings on its part are necessary to
authorize the execution, delivery or performance by it of this Agreement or the
consummation by it of the transactions contemplated hereby.
(c) This Agreement has been duly and validly executed and delivered by
such MS Entity and constitutes a valid and binding agreement of it and any
person for whom it is acting as a nominee, enforceable against them in
accordance with its terms except (i) to the extent limited by applicable
bankruptcy, insolvency or similar laws affecting creditors rights and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(d) None of the execution and delivery of this Agreement by such MS
Entity, the consummation by it of the transactions contemplated hereby or
compliance by it with any of the provisions hereof shall (i) conflict with or
result in a breach of any provision of its certificate of incorporation,
by-laws, limited liability company agreement, partnership agreement or similar
organizational documents, (ii) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which it is a party or by which any of its properties or assets
(including the Owned Shares) may be bound, (iii) require on its part any filing
with, or permit, authorization, consent or approval of, any Governmental Entity,
other than any filing required to be made under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR ACT"), or (iv) violate any order,
writ, injunction, decree, judgment, statute, rule or regulation applicable to it
or any of its properties or assets, excluding from clauses (ii) through (iv)
such violations, breaches, defaults or failure to make any filing or to obtain
any permit, authorization, consent or approval which would not, individually or
in the aggregate, have a material adverse effect on it, and which will not
materially impair the its ability to consummate the transactions contemplated
hereby.
(e) Except as set forth on Schedule 2(e) to this Agreement, such MS
Entity is the record and beneficial owner, has sole voting power, sole power of
disposition and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to its Owned Shares, subject to applicable
securities laws and the terms of this Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent and Purchaser
hereby represent and warrant, jointly and severally, to the MS Entities as
follows:
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(a) Each of Parent and Purchaser is a corporation duly organized and
validly existing under the laws of its jurisdiction of incorporation, and each
of them is in good standing under the laws of its jurisdiction of incorporation.
Parent and Purchaser have the corporate power and authority to execute and
deliver this Agreement and perform their respective obligations hereunder. The
execution and delivery by Parent and Purchaser of this Agreement and the
performance by Parent and Purchaser of their respective obligations hereunder
have been duly and validly authorized by the Management Board and/or the
Supervisory Board of Parent and the Board of Directors and Purchaser and no
other corporate proceedings on the part of Parent or Purchaser are necessary to
authorize the execution, delivery or performance of this Agreement by Parent and
Purchaser or the consummation of the transactions contemplated hereby by Parent
and Purchaser.
(b) This Agreement has been duly and validly executed and delivered by
Parent and Purchaser and constitutes a valid and binding agreement of each of
Parent and Purchaser, enforceable against each of them in accordance with its
terms except (i) to the extent limited by applicable bankruptcy, insolvency or
similar laws affecting creditors rights and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) None of the execution and delivery of this Agreement by Parent or
Purchaser, the consummation by Parent or Purchaser of the transactions
contemplated hereby or compliance by Parent or Purchaser with any of the
provisions hereof shall (i) conflict with or result in any breach of the
certificate of incorporation or by-laws of Parent or Purchaser, or (ii) result
in a violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent or Purchaser is a party or
by which Parent or Purchaser or any of their respective properties or assets may
be bound, (iii) require on the part of Parent or the Purchaser any filing with,
or permit, authorization, consent or approval of, any Governmental Entity, other
than any filing required to be made under the HSR Act, or (iv) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Parent or Purchaser or any of their respective properties or
assets, excluding from clauses (ii) through (iv) such violations, breaches,
defaults or failure to make any filing or to obtain any permit, authorization,
consent or approval which would not, individually or in the aggregate, have a
material adverse effect on Parent or Purchaser, and which will not materially
impair the ability of Parent or Purchaser to consummate the transactions
contemplated hereby.
4. Tender of Shares. Each MS Entity shall tender or cause the record owner
thereof to tender, pursuant to and in accordance with the terms of the Offer,
and shall not withdraw, any and all of its Owned Shares. The parties agree that
each MS Entity will, for all Owned Shares tendered by it in the Offer and
accepted for payment and purchased by Purchaser, receive a price for each of its
Owned Shares equal to $22.75, or such higher per share consideration paid to
other stockholders who have tendered shares of Company Common Stock into the
Offer which have been accepted for payment and purchased by Purchaser in the
Offer (the "OFFER PRICE"), but not any additional amounts paid or payable to
holders of Company Common Stock that do not participate in the Offer by reason
of rights of appraisal, rights of dissent or otherwise. Parent and Purchaser
agree (a) not to decrease the price to be paid to the Company's stockholders in
the Offer or the Merger below $22.75 per Share, and that (b) on the date that
the Owned Shares are accepted for payment and purchased by Purchaser pursuant to
the Offer, Purchaser or Parent, as the case may be, shall make, or cause to be
made by the Paying Agent, payment by wire transfer to each MS Entity of the
purchase price for all its Owned Shares that are tendered by it and accepted for
payment and purchased by Purchaser to such account as is designated by such MS
Entity in the letter of transmittal which accompanies the tender of the Owned
Shares.
5. Voting of Owned Shares; Proxy. (a) During the period commencing on the date
hereof and continuing until the earlier of (x) the consummation of the Offer and
(y) the termination of this Agreement (such period being referred to as the
"VOTING PERIOD"), at any meeting (whether annual or special, and
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whether or not an adjourned or postponed meeting) of the Company's stockholders,
however called, or in connection with any written consent of the Company's
stockholders, subject to the absence of a preliminary or permanent injunction or
other requirement under applicable law by any United States federal, state or
foreign court barring such action, each MS Entity shall vote (or cause to be
voted) all of its Owned Shares: (i) in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the approval and adoption of
the Merger and the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in furtherance
thereof and hereof; and (ii) against any action or agreement that would impede,
interfere with, or prevent the Offer or the Merger, including any Acquisition
Proposal (other than the Offer and the Merger). No MS Entity shall enter into
any agreement, arrangement or understanding with any Person the effect of which
would be inconsistent or violative of the provisions and agreements contained in
this Section 5.
(b) By its execution hereof and in order to secure its obligations
under this Agreement, during the period commencing on the date hereof, each MS
Entity irrevocably grants to, and appoints, Parent and Xxxxxxxx Xxxxx, Xxxxxx
Xxxxxxx, Xxxxxx Xxxxxx and Xxxxxx X.Xxxxxx, Xx., or any of them, in their
respective capacities as employees of Parent and/or its Subsidiaries, and any
individual who shall hereafter succeed to either of their respective positions
at Parent and/or such Subsidiary, and each of them individually, as its true and
lawful proxy and attorney-in-fact (with full power of substitution), for and in
the name, place and stead of it, to vote the Owned Shares or grant a consent or
approval in respect of the Owned Shares (i) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the approval
and adoption of the Merger and the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; and (ii) against any action or agreement that
would impede, interfere with, or prevent the Offer or the Merger, including
against any Acquisition Proposal other than the Offer and the Merger (the
irrevocable proxy granted by each MS Entity under this Section 5(b) being its
"IRREVOCABLE PROXY").
(c) Each MS Entity understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon its execution and delivery of its
Irrevocable Proxy. Each MS Entity hereby affirms that its Irrevocable Proxy is
given in connection with the execution of this Agreement and the Merger
Agreement, and further affirms that its Irrevocable Proxy is coupled with an
interest in this Agreement and may under no circumstances be revoked until the
termination of this Agreement in accordance with Section 15 at which point its
Irrevocable Proxy shall be automatically revoked. Each MS Entity hereby ratifies
and confirms all that its Irrevocable Proxy may lawfully do or cause to be done
by virtue hereof. The Irrevocable Proxy of each MS Entity is executed and
intended to be irrevocable in accordance with the provisions of Section 212(e)
of the Delaware General Corporation Law.
6. Option. (a) Each MS Entity hereby grants Purchaser an irrevocable option (the
irrevocable option granted by each MS Entity under this Section 6(a) being its
"OPTION") to purchase all its Owned Shares at a price per share equal to the
Offer Price (the "OPTION PRICE"). The Option granted by each MS Entity shall
become exercisable, in whole but not in part, only if either of the following
occur (each a "TRIGGERING EVENT"):
(i) the Offer is terminated without the Purchaser purchasing
Shares thereunder solely because the Minimum Condition has not been met; or
(ii) the Offer is consummated without that MS Entity having
tendered all its Owned Shares in accordance with Section 4.
(b) Notwithstanding any provision of this Agreement to the contrary, it
is understood that Purchaser shall not be entitled to purchase the Shares
pursuant to any Option if Purchaser shall have failed to purchase Shares
pursuant to the Offer in breach of its obligations under the Merger Agreement.
Upon the purchase of the Owned Shares of any MS Entity pursuant to the
applicable Option, Purchaser shall, unless the Company shall have breached its
obligations pursuant to the last sentence of Section
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5.4(d) of the Merger Agreement, complete the Merger in accordance with, and
subject to the terms and conditions set forth in, the Merger Agreement.
7. Exercise of Options.
(a) Subject to the conditions set forth in Section 9 hereof, the
Options may be exercised by Purchaser in accordance with the terms in this
Section 7 and the other provisions of this Agreement. In the event Purchaser
wishes to exercise any Option granted by the MS Entities under Section 6,
Purchaser shall send a written notice (the "EXERCISE NOTICE") to such MS Entity
stating that it wishes to purchase such MS Entity's Owned Shares pursuant to
such exercise and the place, the date (not less than one nor more than 20
business days from the Exercise Notice), and the time for closing of such
purchase; provided, that such time and place may be earlier than one day after
the Exercise Notice if reasonably practicable; provided, further, that no
Exercise Notice shall be valid unless contemporaneously therewith an Exercise
Notice is delivered to all other MS Entities with respect to all other Options
that are then exercisable which provides for a contemporaneous closing. An
Exercise Notice may be delivered by Purchaser not later than 10 business days
after the occurrence of a Trigger Event, and, if such a Notice is not delivered
by such date, the Options shall terminate automatically and be of no further
force and effect. The closing of a purchase of Owned Shares upon the exercise of
any Option (a "CLOSING") shall take place at the place, on the date and at the
time designated by Purchase in its Exercise Notice; provided that if, at the
date of the Closing herein provided for, the conditions set forth in Section 9
shall not have been satisfied (or waived by the applicable MS Entity) or the
conditions set forth in Section 10 shall not have been satisfied (or waived by
Purchaser), Purchaser may, by written notice to the applicable MS Entity,
postpone the Closing until a date that is no later than five business days after
such conditions are satisfied (or so waived). If the Closing does not occur by
such date, the Options shall terminate and be of no further force or effect.
(b) Purchaser shall not be under any obligation to deliver any Exercise
Notice and may allow the Options to terminate without purchasing any Owned
Shares hereunder; provided, however, that once Purchaser has delivered to an MS
Entity an Exercise Notice, subject to the terms and conditions set forth in this
Agreement, Purchaser shall be bound to effect the purchase of the relevant Owned
Shares as described in such Exercise Notice.
8. Closing. At the Closing, (a) the relevant MS Entity shall deliver to
Purchaser a certificate or certificates, duly endorsed or accompanied by stock
powers duly executed in blank (collectively, the "CERTIFICATES") representing
(or cause to be made book entry delivery to an account designated by Purchaser
in the Exercise Notice of) such Owned Shares, and (b) Purchaser shall deliver to
the MS Entity a certified or bank cashier's check or checks payable to or upon
the order of the MS Entity in an amount equal to (i) the number of Owned Shares
being purchased from such MS Entity at such Closing multiplied by (ii) the Offer
Price.
9. Conditions to the MS Entity's Obligations. The obligation of an MS Entity to
sell Owned Shares pursuant to an exercise of an Option at any Closing is subject
to the following conditions:
(a) The representations and warranties of Purchaser contained in
Section 3 shall be true and correct in all material respects on the date
thereof.
(b) All waiting periods under the HSR Act applicable to the exercise of
the applicable Option shall have expired or been terminated.
(c) There shall be no preliminary or permanent injunction or other
order, decree or ruling issued by a Governmental Entity or court of competent
jurisdiction, nor any statute, rule, regulation or order promulgated or enacted
by any Governmental Entity, prohibiting the exercise of the applicable Option.
(d) Purchaser shall have purchased all the Owned Shares of all the MS
Entities.
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10. Conditions to Purchaser's Obligations. The obligation of Purchaser to
purchase Owned Shares pursuant to an exercise of an Option at any Closing is
subject to the following conditions:
(a) The representations and warranties of the MS Entities contained in
Section 2 shall be true and correct in all material respects on the date
thereof.
(b) After giving effect to the Closing, Purchaser shall have purchased
at least 18,400,000 shares of Company Common Stock in the aggregate, which
18,400,000 shares represent at least 68.3% of the total issued and outstanding
shares (other than treasury shares) of Company Common Stock on the date hereof
(and no less than 51% of such Shares on the date of the Closing), from the MS
Entities.
(c) any applicable waiting period under the HSR Act has expired or
terminated.
(d) at any time on or after the occurrence of a Trigger Event and
before the Closing,
(i) there shall not be any statute, rule, regulation,
judgment, order or injunction promulgated, entered, enforced, enacted,
issued or applicable to the Options or the Merger by any domestic or
foreign federal or state governmental regulatory or administrative
agency or authority or court or legislative body or commission which
(1) prohibits, or imposes any material limitations on, Parent's or
Purchaser's ownership or operation of all or a material portion of the
Company's businesses or assets, (2) prohibits, or makes illegal the
acceptance for payment, payment for or purchase of the Shares or the
Owned Shares or the consummation of the Options or the Merger, (3)
restricts the ability of Purchaser, or renders Purchaser unable, to
accept for payment, pay for or purchase some or all the Shares or the
Owned Shares, or (4) imposes material limitations on the ability of
Purchaser or Parent effectively to exercise full rights of ownership of
the Shares or the Owned Shares, including, without limitation, the
right to vote the Shares to be purchased by it on all matters properly
presented to the Company's stockholders, provided, however, that Parent
shall have used its reasonable best efforts to cause any such judgment,
order or injunction to be vacated or lifted;
(ii) there shall not be any action or proceeding pending or
instituted by any domestic or foreign national or federal governmental
regulatory or administrative agency or authority, or by any U.S. state
governmental regulatory or administrative agency or authority, which:
(A) (1) seeks to prohibit, or impose any material limitation on,
Parent's or Purchaser's ownership or operation of all or a material
portion of the Company's businesses or assets, (2) seeks to prohibit or
make illegal the acceptance for payment, payment for or purchase of
Shares or the consummation of the Options or the Merger, (3) seeks to
restrict the ability of Purchaser, or render Purchaser unable, to
accept for payment, pay for or purchase some or all the Shares or the
Owned Shares or (4) seeks to impose material limitations on the ability
of Purchaser or Parent effectively to exercise full rights of ownership
of the Shares or the Owned Shares, including, without limitation, the
right to vote the Shares or the Owned Shares purchased or to be
purchased by it on all matters properly presented to the Company's
stockholders; and (B) Parent shall have used all reasonable best
efforts to cause to be dismissed; and (C) the Management Board or
Supervisory Board of Parent shall have determined, after consultation
with legal counsel, would, if adversely determined, have any of the
results described in any of clauses (A)(1) through (A)(4) of this
paragraph (ii) if the relief sought were to be obtained;
(iii) the representations and warranties of the Company set
forth in the Merger Agreement shall be true and correct in any respect,
disregarding for this purpose any standard of materiality contained in
any such representation or warranty, as of the date of consummation of
the Options as though made on or as of such date, except (i) for
changes specifically permitted by the Merger Agreement or (ii) (A)
those representations and warranties that address matters only as of a
particular date which are true and correct as of such date or (B) where
the failure of such representations and warranties to be true and
correct, do not, individually or in the
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aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole; or
(iv) the Company shall not have breached or failed in any
material respect to perform or comply with any material obligation,
agreement or covenant required by the Merger Agreement to be performed
or complied with by it (including, without limitation, if the Company
shall have entered into any definitive agreement or any agreement in
principle with any Person (other than Parent, Purchaser or any
affiliate thereof) with respect to an Acquisition Proposal or similar
business combination with the Company); or
(v) there shall not have occurred (1) any general suspension
of trading in, or limitation on prices for, securities on the New York
Stock Exchange, the Nasdaq National Market System or the Paris Stock
Exchange, which suspension or limitation shall have continued for at
least five New York Stock Exchange trading days, (2) a declaration of a
banking moratorium or any suspension of payments in respect of banks in
the United States or in France or any limitation (whether or not
mandatory) by Federal, state or foreign authorities on the extension of
credit by lending institutions, which moratorium, suspension, or
limitation is reasonably likely to materially affect the ability of
Parent to pay for the Shares or the Owned Shares, (3) a commencement of
a war or armed hostilities or other national or international calamity
directly or indirectly involving the United States or France and
reasonably likely to have a material adverse effect on the Company and
its Subsidiaries taken as a whole or materially and adversely affect
the consummation of the Options or the Merger, or (4) in the case of
clauses (1), (2) and (3) above existing at the time of the giving of
the Exercise Notice, a material acceleration or worsening thereof.
11. Restrictions on Transfer, Other Proxies; No Solicitation.
(a) Except as provided in Sections 4, 5 or 6 hereof, no MS Entity
shall, until the termination of this Agreement, pursuant to Section 15, directly
or indirectly: (i) Transfer to any Person any or all of its Owned Shares; or
(ii) grant any proxies or powers of attorney, deposit any of its Owned Shares
into a voting trust or enter into a voting agreement, understanding or
arrangement with respect to such Owned Shares. Nothing contained herein shall
prevent any MS Entity from transferring any or all of its Owned Shares to an
Affiliate of such MS Entity which is or agrees to be bound by this Agreement;
provided that such MS Entity shall continue to remain liable for all its
obligations under this Agreement.
(b) Each MS Entity hereby agrees, solely in its capacity as a
stockholder of the Company, that it and its subsidiaries or Affiliates shall
not, and such MS Entity shall cause its Representatives not to, directly or
indirectly, (i) initiate, solicit or encourage (including by way of furnishing
non-public information) any inquiries or the making of any proposal that
constitutes or is reasonably likely to lead to an Acquisition Proposal or (ii)
engage in any negotiations or discussions with, or furnish any information or
data, to, any third party relating to an Acquisition Proposal. The MS Entities
will promptly inform Parent of the terms of any proposal, discussion,
negotiation or inquiry (and will disclose any written materials received by the
MS Entities in connection with such proposal, discussion, negotiation or
inquiry) and the identity of the party making such proposal or inquiry which the
MS Entities may receive in respect of any Acquisition Proposal. The MS Entities
will also promptly request each Person that has heretofore received any
non-public information in connection with its consideration of an Acquisition
Proposal to return all such non-public information furnished to such person by
or on behalf of the MS Entities, the Company or any of the Company's
Subsidiaries. Any action taken by the Company or any member of the Board of
Directors of the Company or any Affiliate of any MS Entity as a financial
advisor to the Company in his or its capacity as such in accordance with the
terms of the Merger Agreement shall be deemed not to violate this Section 11(b).
12. Stop Transfer. No MS Entity shall request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of its Owned Shares, unless such transfer is made in compliance
with this Agreement.
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13. Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or appropriate to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
14. Waiver of Appraisal Rights. Each MS Entity hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have.
15. Termination. This Agreement, and all rights and obligations of the parties
hereunder, shall terminate upon the earlier of (a) the date upon which Purchaser
shall have purchased and paid for all of the Owned Shares of the MS Entities in
accordance with the terms of the Offer or pursuant to this exercise of the
Options granted by the MS Entities, (b) the date on which the Options have
expired in accordance with this Agreement, or (c) the date upon which the Merger
Agreement is terminated in accordance with its terms.
16. Miscellaneous.
(a) This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements;
understandings, representations and warranties, both written and oral, between
the parties with respect to the subject matter hereof.
(b) Each of the MS Entities agrees that this Agreement and the
respective rights and obligations of the MS Entities hereunder shall attach to
all Owned Shares.
(c) Without limiting Sections 3.20 and 5.9 of the Merger Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
(d) This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties and their respective successors,
personal or legal representatives, executors, administrators, heirs,
distributees, devisees, legatees and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either party (whether by operation of law or otherwise) without the
prior written consent of the other party; provided, that Parent and Purchaser
may assign their rights and obligations hereunder to any assignee of such
parties' rights and obligations under the Merger Agreement or to any other
Subsidiary of Parent; provided that, in the case of any such assignment by
Parent or Purchaser, Parent or Purchaser, as the case may be, shall remain
liable for all of its obligations under this Agreement. Except for the last
sentence of Section 6 hereof, which is intended to benefit the Company's
stockholders, nothing in this Agreement, express or implied, is intended to or
shall confer upon any other Person any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement.
(e) This Agreement may not be amended, changed, supplemented, or
otherwise modified or terminated, except upon the execution and delivery of a
written agreement executed by each of the parties hereto. The parties may waive
compliance by the other parties hereto with any representation, agreement or
condition otherwise required to be complied with by such other party hereunder,
but any such waiver shall be effective only if in writing executed by the
waiving party.
(f) All notices (which term shall include any other communications)
required or permitted to be given under this Agreement or in connection with the
matters contemplated by this Agreement shall be in writing and shall be deemed
to have been duly given to the intended party (i) when personally delivered,
(ii) upon receipt if sent by reputable overnight courier service or (iii) when
successfully transmitted by telecopier without interruption (with a confirming
copy of such transmission sent within one business day by reputable overnight
courier service) to the party for whom intended, provided that any notice
received by telecopy or otherwise at the addressee's location on any business
day after 5:00 p.m. (addressee's local time) shall be deemed to have been
received at 9:00 a.m. (addressee's local
8
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time) on the next business day. Any party to this Agreement may notify any other
party of any changes to the address or any of the other details specified in
this paragraph, provided that such notification shall only be effective on the
date specified in such notice or five (5) business days after the notice is
given, whichever is later. All notices required to be given under this Agreement
shall be sent to the party using the addresses or telecopy numbers specified
below:
If to Parent or Purchaser,
to it at: c/o Accor S.A.
Tour Maine Montparnasse
00, xxxxxx xx Xxxxx
Xxxxx 00000
Xxxxxx
Attention: Secretaire General
Telephone No.: 00-0-00-00-00-00
Telecopy No.: 00-0-00-00-00-00
- and -
c/o Motel 6
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telephone No.: 0-000-000-0000
Telecopy No.: 0-000-000-0000
- and -
Attention: General Counsel
Telephone No.: 0-000-000-0000
Telecopy No.: 0-000-000-0000
with a copy to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: 0-000-000-0000
Telecopy No.: 0-000-000-0000
If to any MS Entity: c/o Morgan Xxxxxxx Xxxx Xxxxxx & Co.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Telephone No.: 1-212- 000-0000
Telecopy No.: 0-000-000-0000
with a copies to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx Xxxx, Xx., Esq.
Telephone No.: 0-000-000-0000
Telecopy No.: 0-000-000-0000
- and-
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10
Red Roof Inns, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxx, Executive Vice President
Chief Financial Officer and Treasurer
Telephone No.: 0-000-000-0000
Telecopy No.: 0-000-000-0000
-and-
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: 0-000-000-0000
Telecopy No.: 0-000-000-0000
(g) Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without affecting the validity or
enforceability of the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable, provided the commercial objective of this
Agreement is not frustrated.
(h) Each of the parties hereto acknowledges and agrees that in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached, each non-breaching party
would be irreparably and immediately harmed and could not be made whole by
monetary damages. Accordingly, it is agreed that the parties hereto (a) shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to compel specific performance of this Agreement in any proceeding
instituted in the courts of the State of New York or the United States of
America for the Southern District of New York or in the Court of Chancery in and
for New Castle County in the State of Delaware or the courts of the United
States of America for the District of Delaware (or, if any such court lacks
subject matter jurisdiction, any appropriate state or federal court in the State
of New York or the State of Delaware), this being in addition to any other
remedy to which they are entitled at law or in equity, and (b) will waive, in
any proceeding for specific performance, the defense of adequacy of a remedy at
law. Each of the parties further agrees to waive any requirement for the
securing or posting of any bond or other security in connection with any
proceeding for specific performance.
(i) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) Notwithstanding anything herein to the contrary, nothing set forth
herein shall in any way restrict any person, including any officer, partner,
director or employee of the MS Entities, in the exercise of his or her fiduciary
duties as a director of the Company.
(k) This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware without giving effect to the principles of
conflicts of law thereof or of any other jurisdiction.
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11
(l) The descriptive headings used herein are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement. "INCLUDE," "INCLUDES," and "INCLUDING" shall
be deemed to be followed by "without limitation" whether or not they are in fact
followed by such words or words of like import. The words "HEREOF," "HEREIN" and
"HEREWITH" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit and
schedule references are to the articles, sections, paragraphs, exhibits and
schedules of this Agreement unless otherwise specified. All terms defined in
this Agreement shall have the defined meanings contained herein when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein. The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the gender and neuter genders of such term. The term "BUSINESS DAY"
shall mean any day other than Saturday, Sunday or any other day on which banks
in New York City, New York or Paris, France are required to or permitted to be
closed.
(m) This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which, taken together, shall constitute
one and the same instrument. This Agreement may be executed by facsimile
signatures and such signature shall be deemed binding for all purposes hereof,
without delivery of an original signature being thereafter required.
(n) Any legal action or proceeding with respect to this Agreement or any
matters arising out of or in connection with this Agreement or otherwise, and
any action for enforcement of any judgment in respect thereof shall be brought
exclusively in the courts of the State of New York or of the United States of
America for the Southern District of New York, the Court of Chancery of Delaware
or the courts of the United States of America for the District of Delaware and,
by execution and delivery of this Agreement, each of the MS Entities, Parent and
Purchaser each hereby accept for itself and in respect of its property,
generally and unconditionally, the exclusive jurisdiction of the aforesaid
courts and appellate courts thereof. Each of the MS Entities, Parent and
Purchaser irrevocably consents to service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, or by recognized
international express carrier or delivery service, to any MS Entity at the
address referred to in Section 16(f) or, in the case of Parent or Purchaser, as
provided in Section 16(o).
(o) Each of Parent and Purchaser hereby designates CT Corporation as its
respective agent for service of process in the State of New York and RL&F
Service Corp. as its agent for the service of process in the State of Delaware,
in each case solely with respect to any dispute or controversy arising out of
this Agreement only, and service upon Parent or Purchaser for such purposes
shall be deemed to be effective upon service of either CT Corporation or RL&F
Service Corp., as applicable, as aforesaid or of its successor designated in
accordance with the following sentence in the appropriate State. Parent or
Purchaser may designate another corporate agent or law firm reasonably
acceptable to the MS Entities and located in the Borough of Manhattan, in the
City of New York, or in the County of Newcastle in the State of Delaware, as
applicable, as successor agent for service of process upon 30 days' prior
written notice to the MS Entities. Parent further covenants and agrees to
execute, upon the MS Entities' request, such documents and agreements as are
reasonably necessary to confirm such designations.
(p) Each of the MS Entities, Parent and Purchaser each hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or
11
12
proceedings arising out of or in connection with this Agreement or otherwise
brought in the courts referred to above and hereby further irrevocably waives
and agrees, to the extent permitted by applicable law, not to plead or claim in
any such court, by way of motion, as a defense, counterclaim or otherwise, in
any action or proceeding with respect to this Agreement, (a) any claim that it
is not personally subject to the jurisdiction of the above-named courts, (b)
that it or its property is exempt or immune from jurisdiction of any such court
or from any legal process commenced in such courts (whether through service of
notice, attachment before judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise), (c) that the proceeding in any such court
is brought in an inconvenient forum, (d) that the venue of such proceeding is
improper or (e) that this Agreement, or the subject matter hereof, may not be
enforced in or by such court. Nothing herein shall affect the right of any party
hereto to serve process in any other manner permitted by law.
(q) Wherever this Agreement requires Purchaser to take any action, such
requirement shall be deemed to include an undertaking on the part of Parent to
cause Purchaser to cause such action.
[END OF TEXT; EXECUTION PAGE FOLLOWS]
12
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[EXECUTION PAGE]
IN WITNESS WHEREOF, Parent, Purchaser and the MS Entities have
caused this Agreement to be duly executed as of the day and year first above
written.
ACCOR SA
By: /s/ XXXXX XXXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Authorized Signatory
By: /s/ XXXXXX XXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
RRI ACQUISITION CORP.
By: /s/ XXXXXX XXXXXX
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
THE XXXXXX XXXXXXX REAL ESTATE FUND, L.P.
By: /s/ XXXX XXXXX
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXXXXX XXXXXXX REAL ESTATE INVESTMENT
MANAGEMENT, INC., as nominee
By: /s/ XXXX XXXXX
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXXXXX XXXXXXX REAL ESTATE CO-INVESTMENT
PARTNERSHIP II, L.P.
By: /s/ XXXX XXXXX
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
14
ANNEX A
MS Entities and their Owned Shares
MS ENTITY OWNED SHARES
--------- ------------
THE XXXXXX XXXXXXX REAL ESTATE FUND, L.P., a 12,872,640 shares of Company Common Stock
Delaware limited partnership
XXXXXX XXXXXXX REAL ESTATE INVESTMENT 901,600 shares of Company Common Stock
MANAGEMENT, INC., a Delaware corporation, as
nominee
XXXXXX XXXXXXX REAL ESTATE CO-INVESTMENT 4,625,760 shares of Company Common Stock
PARTNERSHIP II, L.P., a Delaware limited
partnership
A-1
