<PAGE> 1
As filed with the Securities and Exchange Commission on July 27, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
BRISTOL HOTELS & RESORTS
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 75-2754805
(State of Incorporation) (I.R.S. Employer
Identification Number)
14295 MIDWAY ROAD
DALLAS, TEXAS 75244
(Address of Principal Executive Offices)
BRISTOL HOTELS & RESORTS
1998 EQUITY INCENTIVE PLAN,
------------------------------------------
BRISTOL HOTELS & RESORTS
NON-EMPLOYEE DIRECTORS
STOCK OPTION PLAN,
------------------------------------------
BRISTOL HOTEL COMPANY
AMENDED 1995 EQUITY INCENTIVE PLAN,
AND
---
BRISTOL HOTEL COMPANY
AMENDED STOCK OPTION PLAN FOR
NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
LYNN MARIE LUCIER, ESQ.
VICE PRESIDENT AND SECRETARY
BRISTOL HOTELS & RESORTS
14295 MIDWAY ROAD
DALLAS, TEXAS 75244
(972) 391-3910
(Name, Address and Telephone Number for Agent of Service)
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Proposed
Maximum Proposed
Title of Amount Offering Maximum Amount of
Securities to to be Price per Aggregate Registration
be Registered (1) Registered (1) Share (2) Offering Price Fee (3)
----------------- -------------- --------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share . . . . 7,091,250 $ 1.42 $ 10,069,575.00 $ 2,970.52
============================================================================================================================
</TABLE>
(1) Represents the aggregate shares available under the Bristol Hotels &
Resorts 1998 Equity Incentive Plan, the Bristol Hotels & Resorts
Non-Employee Directors Stock Option Plan (collectively the "BHR
Plans"), and the options to purchase Common Shares of Bristol Hotels &
Resorts that were granted under the Bristol Hotel Company Amended 1995
Equity Incentive Plan and the Bristol Hotel Company Amended Stock
Option Plan for Non-Employee Directors (collectively, with the BHR
Plans, the "Plans") and were assumed by Bristol Hotels & Resorts in the
Spin-Off of Bristol Hotels & Resorts from its parent, Bristol Hotel
Company. Pursuant to Rule 416, there are also registered hereunder an
indeterminate number of additional shares as may become subject to the
Plans as a result of the antidilution provisions contained therein.
(2) The "Proposed Maximum Offering Price per Share" is equal to the
weighted average of (a) the book value for the 6,191,850 Common Shares
registered hereunder that are reserved for issuance under the Plans
for future grants at exercise prices which have not been established;
and (b) the exercise prices for outstanding options to acquire 929,400
Common Shares registered hereunder that are issuable under the Bristol
Hotel Company Amended 1995 Equity Incentive Plan and the Bristol Hotel
Company Amended Stock Option Plan for Non-Employee Directors.
(3) The registration fee has been computed in accordance with paragraph
(h)(i) of Rule 457.
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<PAGE> 2
EXPLANATORY NOTE
The information called for by Part I of Form S-8 is included in the
description of the Bristol Hotels & Resorts 1998 Equity Incentive Plan, the
Bristol Hotels & Resorts Non-Employee Directors Stock Option Plan, the Bristol
Hotel Company Amended 1995 Equity Incentive Plan, as assumed by Bristol Hotels
& Resorts (the "Company"), and the Bristol Hotel Company Amended Stock Option
Plan for Non-employee Directors, as assumed by the Company, (collectively, the
"Plans") to be delivered to persons receiving grants pursuant to the Plans.
Pursuant to the Note to Part I of Form S-8, this information is not being filed
with or included in this Form S-8.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Registration
Statement the Company's Registration Statement on Form 10 (Commission File No.
1-14047) filed with the Securities and Exchange Commission on June 18, 1998.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for all purposes of this
Registration Statement to the extent that a statement contained herein or
therein or in any other subsequently filed document that also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that the personal
liability of directors of the Company to the Company is eliminated to the
maximum extent permitted by Delaware law. The Company's Certificate of
Incorporation and Bylaws provide for the indemnification of the directors,
officers, employees, and agents of the Company and its subsidiaries to the
fullest extent that may be permitted by Delaware law from time to time, and the
Bylaws provide for various procedures relating thereto. Section 145 of the
Delaware General Corporation Law (the "DGCL") permits the Company to indemnify
its directors and officers for liabilities, costs and expenses that such
persons may incur as a result of actions they may take in performing their
duties as officers and directors. In order to be indemnified under Delaware
law, the person must have acted in good faith and in a manner he believed was
in, or not opposed to, the best interests of the Company. In the case of any
criminal proceeding, the person must not have reasonable cause to believe that
his conduct was unlawful. In Delaware, if a person is found by a court to be
liable to the corporation, that court must approve any reimbursement of
expenses to such person. The foregoing limitations do not, however, apply to
the indemnity contracts to which all officers and directors are parties with
the Company. Any amendment or repeal of the Company's Certificate of
Incorporation may not adversely affect the rights of any person entitled to
indemnification for any event occurring prior to such amendment or repeal.
Under Delaware law, directors, officers, employees, and other individuals
may be indemnified against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement in connection with specified actions,
suits or proceedings, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the
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<PAGE> 3
corporation -- a "derivative action") if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests
of the Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applicable in the case of a derivative action, except that
indemnification only extends to expenses (including attorneys' fees) incurred
in connection with defense or settlement of such an action and Delaware law
requires court approval before there can be any indemnification of expenses
where the person seeking indemnification has been found liable to the Company.
As authorized by the Company's Certificate of Incorporation, the Company
intends to enter into indemnification agreements with each of its directors,
which provide for indemnification greater or otherwise different than that
provided for in the Certificate of Incorporation or by the DGCL.
Notwithstanding anything to the contrary in the Certificate of Incorporation,
if the Company enters into a contract with any director providing for
indemnification of the director, the provisions of the contract will
exclusively govern the Company's obligations in respect of indemnification for
or advancement of fees or disbursements of the director's counsel or any other
professional engaged by the director.
ITEM 7. EXEMPTION FROM REGISTERED CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Form of Common Stock Certificate (1)
4.2 Amended and Restated Certificate of Incorporation of the Company
4.3 Amended and Restated Bylaws of the Company
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Price Waterhouse LLP
- -----------
(1) Incorporated by reference to the Company's Registration Statement
on Form 10 (Commission File No. 1-14047).
ITEM 9. UNDERTAKINGS
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act"), unless the information required to be included
in such post-effective amendment is contained in periodic reports filed by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act and
incorporated herein by reference; (ii) to reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement unless the information required to be included in such
post-effective amendment is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act and incorporated
herein by reference; (iii) to include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
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<PAGE> 4
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
-4-
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on July 27, 1998.
BRISTOL HOTELS & RESORTS
By: /s/ J. Peter Kline
----------------------------------------
J. Peter Kline
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 27, 1998.
<TABLE>
<S> <C>
Signature Title
--------- -----
/s/ J. Peter Kline Chairman and Chief Executive Officer
- ------------------------------------------------------ (Principal Executive Officer)
J. Peter Kline
/s/ Jeffrey P. Mayer Senior Vice President and
- ------------------------------------------------------ Chief Financial Officer
Jeffrey P. Mayer (Principal Financial Officer)
/s/ John D. Bailey Vice President and Controller
- ------------------------------------------------------ (Principal Accounting Officer)
John D. Bailey
/s/ John A. Beckert President, Chief Operating Officer and Director
- ------------------------------------------------------
John A. Beckert
/s/ Robert A. Whitman Director
- ------------------------------------------------------
Robert A. Whitman
/s/ Reginald K. Brack Director
- ------------------------------------------------------
Reginald K. Brack
/s/ James J. Pinto Director
- ------------------------------------------------------
James J. Pinto
/s/ David A. Dittman Director
- ------------------------------------------------------
David A. Dittman
/s/ Thomas R. Oliver Director
- ------------------------------------------------------
Thomas R. Oliver
/s/ Kurt C. Read Director
- ------------------------------------------------------
Kurt C. Read
</TABLE>
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<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Exhibit Page
------- ------- ----
<S> <C>
4.1 Form of Common Stock Certificate (1)
4.2 Amended and Restated Certificate of Incorporation of the Company
4.3 Amended and Restated Bylaws of the Company
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Price Waterhouse LLP
- -----------
</TABLE>
(1) Incorporated by reference to the Company's Registration Statement on Form
10 (Commission File No. 001-14047).
<PAGE> 1
EXHIBIT 4.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BRISTOL HOTELS & RESORTS, INC.
Pursuant to the provisions of Section 245 of the Delaware General
Corporation Law (the "DGCL"), Bristol Hotels & Resorts, Inc., a Delaware
corporation (the "Company"), does hereby certify as follows:
1. The original name of the Company is Bristol Hotels & Resorts,
Inc.
2. The original Certificate of Incorporation of the Company was
filed in the office of the Secretary of State of Delaware on March 20, 1998.
3. This Amended and Restated Certificate of Incorporation has
been duly adopted in accordance with the provisions of Sections 242 and 245 of
the DGCL.
4. The text of the Certificate of Incorporation of the Company is
hereby amended and restated in its entirety to read as follows:
FIRST. The name of the corporation is Bristol Hotels & Resorts
(the "Company").
SECOND. The address of the Company's registered office in the
State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of
New Castle. The name of its registered agent at that address is Corporation
Service Company.
THIRD. The purpose of the Company is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "DGCL").
FOURTH. Section 1. Authorized Capital Stock. The Company is
authorized to issue two classes of capital stock, designated Common Stock and
Preferred Stock. The total number of shares of capital stock that the Company
is authorized to issue is 125,000,000 shares, consisting of 100,000,000 shares
of Common Stock, par value $0.01 per share, and 25,000,000 shares of Preferred
Stock, par value $0.01 per share.
Section 2. Preferred Stock. The Preferred Stock may be issued in one
or more series. The Board of Directors of the Company (the "Board") is hereby
authorized to authorize the issuance of shares of Preferred Stock in any series
and to fix from time to time before issuance the number of shares to be
included in any series and the designation, relative powers, preferences, and
rights and qualifications, limitations, or restrictions of all shares of any
series. The authority of the Board with respect to each series will include,
without limiting the generality or effect of the foregoing, the determination
of any or all of the following:
<PAGE> 2
(a) The number of shares of any series and the
designation to distinguish the shares of the series from the shares of
all other series;
(b) The voting powers, if any, and whether such voting
powers are full or limited in the series;
(c) The redemption provisions, if any, applicable to the
series, including the redemption price or prices to be paid;
(d) Whether dividends, if any, will be cumulative or
noncumulative, the dividend rate of the series, and the dates and
preferences of dividends on the series;
(e) The rights of the series upon the voluntary or
involuntary dissolution of, or upon any distribution of the assets of,
the Company;
(f) The provisions, if any, pursuant to which the shares
of the series are convertible into, or exchangeable for, shares of any
other class or classes or of any other series of the same or any other
class or classes of stock, or any other security, of the Company or
any other corporation or other entity, and the price or prices or the
rates of exchange applicable thereto;
(g) The right, if any, to subscribe for or to purchase
any securities of the Company or any other corporation or other
entity;
(h) The provisions, if any, of a sinking fund applicable
to the series; and
(i) Any other relative, participating, optional, or other
special powers, preferences, rights, qualifications, limitations, or
restrictions of the series;
all as may be determined from time to time by the Board and stated in the
resolution or resolutions providing for the issuance of Preferred Stock
(collectively, a "Preferred Stock Designation").
Section 3. Common Stock. Except as may otherwise be provided in a
Preferred Stock Designation or as a result of Article Seventh, the holders of
Common Stock will be entitled to one vote on each matter submitted to a vote at
a meeting of stockholders for each share of Common Stock held of record by that
holder as of the record date for that meeting.
FIFTH. The Board may make, amend, and repeal the Bylaws of the
Company. Any Bylaw made by the Board under the powers conferred by this Article
Fifth may be amended or repealed by the Board (except as specified in any such
Bylaw so made or amended) or by the stockholders in the manner provided in the
Bylaws of the Company. Notwithstanding the foregoing and anything contained in
this Certificate of Incorporation to the contrary, Bylaws 1, 3, 8, 10, 11, 12,
13, 34, and 40 may not be amended or repealed by the stockholders, and no
provision inconsistent therewith may be adopted by the stockholders, without
the affirmative vote of the holders of record of at least 80% of the Voting
Stock, voting together as a single class. For
2
<PAGE> 3
the purposes of this Certificate of Incorporation, "Voting Stock" means capital
stock of the Company of any class or series entitled to vote generally in the
election of Directors. Notwithstanding anything contained in this Certificate
of Incorporation to the contrary, the affirmative vote of the holders of record
of at least 80% of the Voting Stock, voting together as a single class, is
required to amend or repeal, or to adopt any provision inconsistent with, this
Article Fifth.
SIXTH. Subject to the rights of the holders of any series of
Preferred Stock:
(a) Any action required or permitted to be taken by the
stockholders of the Company must be effected at a duly called annual
or special meeting of stockholders of the Company and may not be
effected by any consent in writing of such stockholders; and
(b) Special meetings of stockholders of the Company may
be called only by (i) the Chairman of the Board (the "Chairman") or a
Vice Chairman of the Board (the "Vice Chairman"), (ii) the Secretary
of the Company (the "Secretary") within ten calendar days after
receipt of the written request of a majority of the total number of
Directors then in office (the "Whole Board"), and (iii) as provided in
Bylaw 3.
At any annual meeting or special meeting of stockholders of the Company, only
such business will be conducted or considered as has been brought before such
meeting in the manner provided in the Bylaws of the Company. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of record of at least 80% of the Voting Stock,
voting together as a single class, is required to amend or repeal, or to adopt
any provision inconsistent with, this Article Sixth.
SEVENTH. Section 1. (a) Definitions. For the purpose of this
Article Seventh, the following terms have the following meanings when used
herein with initial capital letters:
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with, such
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Beneficial Ownership" has the meaning ascribed to that term under
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as such Rule is in effect on June 1, 1998. The terms
"Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" have
correlative meanings.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in New York
City are authorized or required by law, regulation, or executive order to
close.
3
<PAGE> 4
"Charitable Beneficiary" means one or more beneficiaries of the
Charitable Trust as designated pursuant to Section 3(f) of this Article
Seventh.
"Charitable Trust" means any trust provided for in Section 3(f) of
this Article Seventh.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Excepted Holder" means (a) any stockholder of the Company for whom an
Excepted Holder Limit is created by the Board pursuant to Section 2(f) of this
Article Seventh, and (b) any stockholder who acquires record and Beneficial
Ownership of Voting Stock as of the Initial Date in excess of the Ownership
Limit so long as such stockholder does not increase his or her percentage
equity interest in the Company.
"Excepted Holder Limit" means (a) with respect to any Excepted Holder
described in clause (a) of the definition thereof, the percentage limitation,
including the terms and conditions thereof, established by the Board pursuant
to this Article Seventh; or (b) with respect to any Excepted Holder described
in clause (b) of the definition thereof, the percentage equity interest in the
Company represented by that stockholder's record and Beneficial Ownership of
Voting Stock as of the Initial Date less any Transfers of record and Beneficial
Ownership of shares of Voting Stock by such stockholder after the Initial Date.
"Initial Date" means the date upon which Common Stock was distributed
to holders of common stock of Bristol Hotel Company.
"Market Price" on any date means, with respect to any class or series
of outstanding Voting Stock, the Closing Price for the Voting Stock on that
date. The "Closing Price" on any date means the last sale price for the Voting
Stock, regular way, or, in case no sale takes place on that day, the average of
the closing bid and ask prices, regular way, for the Voting Stock, in either
case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Voting Stock is not listed or admitted to trading on the
New York Stock Exchange, as reported on the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Voting Stock is listed or admitted to trading
or, if the Voting Stock is not listed or admitted to trading on any national
securities exchange, the last quoted price, or, if not so quoted, the average
of the high bid and low asked prices in the over-the- counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System or, if such system is no longer in use, the principal other
automated quotation system that may then be in use or, if the Voting Stock is
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the
Voting Stock selected by the Board (in any such case, the "Exchange") or, if no
trading price is available for the Voting Stock, the fair market value of the
Voting Stock, as determined in good faith by the Board.
"Ownership Limit" means not more than 9.9% (by voting power or total
number of shares, whichever is more restrictive) of the aggregate of the
outstanding shares of Common Stock and 9.9% of any series or class of other
outstanding Voting Stock. The number and voting power of
4
<PAGE> 5
outstanding Voting Stock will be determined by the Board in good faith, which
determination will be conclusive for all purposes hereof.
"Person" means an individual, corporation, partnership, limited
liability company, estate, trust, association, foundation, joint stock company,
or other entity and also includes a group as that term is used in Section
13(d)(3) of the Exchange Act, and a group to which an Excepted Holder Limit
applies.
"Prohibited Owner" means, with respect to any purported Transfer, any
Person who, but for the provisions of this Article Seventh, would Beneficially
Own an amount of Voting Stock in excess of the Ownership Limit, and if
appropriate in the context, also means any Person who would have been the
record owner of Voting Stock that the Prohibited Owner would have so
beneficially owned.
"Restriction Termination Date" means December 31, 2000 or such earlier
date as may be fixed for purposes hereof by the Board.
"Transfer" means any sale, transfer, gift, assignment, devise, or
other disposition, whether or not for value and whether by contract, by
operation of law, or otherwise. The terms "Transferring" and "Transferred" have
correlative meanings.
"Trustee" means the Person appointed by the Board to serve as trustee
of the Charitable Trust.
Section 2. Ownership Limitations. During the period commencing on the
Initial Date and ending on the Restriction Termination Date:
(a) Basic Restrictions. No Person, other than an Excepted
Holder, may Beneficially Own Voting Stock in excess of the Ownership
Limit, and no Excepted Holder may Beneficially Own Voting Stock in
excess of the Excepted Holder Limit for such Excepted Holder.
(b) Transfer in Trust. If any Transfer of Voting Stock
(whether or not such Transfer is the result of a transaction entered
into through the facilities of the Exchange) occurs which, if
effective, would result in any Person Beneficially Owning Voting Stock
in violation of Section 2(a) of this Article Seventh, then:
(i) The amount of Voting Stock the Beneficial
Ownership of which otherwise would cause that Person to
violate Section 2(a) (rounded up to the nearest whole share)
will be, without further action, transferred to a Charitable
Trust for the benefit of a Charitable Beneficiary, as
described in Section 3 of this Article Seventh, effective as
of the close of business on the Business Day prior to the date
of the Transfer, and that Person will acquire no rights in the
Voting Stock; or
5
<PAGE> 6
(ii) If the transfer to the Charitable Trust
described in clause (i) of this sentence would not be
effective for any reason to prevent the violation of Section
2(a) of this Article Seventh, then the Transfer of Voting
Stock that otherwise would cause the Person to violate Section
2(a) will be void ab initio, and the intended Transferee will
acquire no rights in the Voting Stock.
(c) Remedies for Breach. If the Board or any duly
authorized committee thereof at any time determines that a Transfer or
other event has taken place that results in a violation of Section
2(a) or that a Person intends to acquire or has attempted to acquire
Beneficial Ownership of any Voting Stock in violation of Section 2(a)
(whether or not such violation is intended), the Board or a committee
thereof may take such action as it deems advisable to refuse to give
effect to or to prevent that Transfer or other event, including
without limitation causing the Company to redeem Voting Stock,
refusing to give effect to that Transfer on the books of the Company
or instituting proceedings to enjoin that Transfer or other event;
provided, however, that any Transfer or attempted Transfer or other
event in violation of Section 2(a) will automatically result in the
Transfer to the Charitable Trust described above, and, where
applicable, the Transfer (or other event) will be void ab initio as
provided above irrespective of any action (or non-action) by the Board
or a committee thereof.
(d) Notice of Restricted Transfer. Any Person who
acquires or attempts or intends to acquire Beneficial Ownership of
Voting Stock that will or may violate Section 2(a), or any Person who
would have owned the Voting Stock that resulted in a transfer to the
Charitable Trust pursuant to the provisions of Section 2(b) of this
Article Seventh, must immediately give written notice to the Company
of that event, or in the case of a proposed or attempted transaction,
give at least ten Business Days prior written notice, and must provide
to the Company such other information as the Company may request in
order to determine the effect, if any, of that Transfer under this
Article Seventh.
(e) Ambiguity. In the case of an ambiguity in the
application of any of the provisions of this Article Seventh, the
Board will have the power conclusively to determine the application of
the provisions of this Article Seventh with respect to any situation
based on the facts then known to it. If this Article Seventh and this
Certificate of Incorporation fails to provide specific guidance with
respect to any situation, the Board will have the power to determine
the action to be taken so long as the action is not contrary to the
provisions of this Article Seventh.
(f) Exceptions. (i) The Board, in its sole discretion,
may exempt a Person from the Ownership Limit, and may establish or
increase an Excepted Holder Limit for such Person on such terms and
subject to such conditions as the Board determines in its sole
discretion.
(ii) An underwriter which participates in a public
offering or a private placement of Voting Stock (or securities
convertible into or exchangeable for Voting Stock) may
Beneficially Own Voting Stock (or securities convertible into
6
<PAGE> 7
or exchangeable for Voting Stock) in excess of the Ownership
Limit, but only to the extent necessary to facilitate such
public offering or private placement.
(iii) The Board may only reduce the Excepted Holder
Limit for an Excepted Holder (A) with the written consent of
such Excepted Holder at any time, or (B) pursuant to the terms
and conditions of the agreements and undertakings entered into
with such Excepted Holder in connection with the establishment
of the Excepted Holder Limit for that Excepted Holder. No
Excepted Holder Limit shall be reduced to a percentage that is
less than the Ownership Limit.
(iv) A Person shall not become a Prohibited Owner
if that Person shall become the Beneficial Owner of Voting
Stock in excess of the Ownership Limit solely as a result of a
reduction in the number of shares of Voting Stock by the
Company, unless and until such time as that Person shall
purchase or otherwise become (as a result of actions taken by
such Person or its Affiliates) the Beneficial Owner of
additional shares of Voting Stock.
(g) Legend. Through the Restriction Termination Date,
each certificate for Voting Stock will bear substantially the
following legend (as modified from time to time by action of the
Board):
The shares represented by this certificate are subject to
restrictions on Beneficial Ownership and Transfer provided in
the Company's Certificate of Incorporation, as amended from
time to time, under which, subject to certain exceptions, no
Person may Beneficially Own Voting Stock in excess of 9.9% (by
voting power or number of shares) of the outstanding Voting
Stock of the Company. Any Person who Beneficially Owns or
attempts to Beneficially Own Voting Stock which causes or will
cause any Person to Beneficially Own Voting Stock in excess or
in violation of the above limitations must immediately notify
the Company. If any of the restrictions on Transfer or
Ownership are violated, the shares represented hereby will be
automatically transferred to a Trustee of a Charitable Trust
for the benefit of one or more Charitable Beneficiaries. In
addition, upon the occurrence of certain events, attempted
Transfers in violation of the restrictions described above may
be void ab initio. All capitalized terms in this legend have
the meanings defined in the Company's Certificate of
Incorporation, as the same may be amended from time to time, a
copy of which, including the restrictions on Transfer and
Ownership, will be furnished to each holder of Voting Stock of
the Company on request and without charge.
Instead of the foregoing legend, the certificate may state that the Company
will furnish a full statement about certain restrictions on transferability to
a stockholder on request and without charge.
Section 3. Transfer of Voting Stock in Trust. (a) Ownership in
Trust. Upon any purported Transfer or other event described in Section 2(a)
that would result in a Transfer of
7
<PAGE> 8
Voting Stock to a Charitable Trust, such Voting Stock will be deemed to have
been Transferred to the Trustee as trustee of a Charitable Trust for the
exclusive benefit of one or more Charitable Beneficiaries effective as of the
close of business on the Business Day prior to the purported Transfer or other
event that results in the transfer to the Charitable Trust pursuant to Section
2(a). Each Charitable Beneficiary will be designated by the Company as provided
in Section 3(f).
(b) Status of Shares Held by the Trustee. Voting Stock
held by the Trustee will be issued and outstanding Voting Stock of the
Company. The Prohibited Owner will have no rights in the Voting Stock
held by the Trustee, will not benefit economically from ownership of
any Voting Stock held in trust by the Trustee, will have no rights to
dividends, and will not possess any rights to vote or other rights
attributable to the Voting Stock held in the Charitable Trust.
(c) Dividend and Voting Rights. The Trustee will have all
voting rights and rights to dividends or other distributions with
respect to Voting Stock held in the Charitable Trust which rights will
be exercised for the exclusive benefit of the Charitable Beneficiary.
Any dividend or other distribution paid prior to the discovery by the
Company that Voting Stock has been Transferred to the Trustee will be
paid with respect to that Voting Stock to the Trustee by the
Prohibited Owner upon demand of the Trustee and any dividend or other
distribution authorized but unpaid will be paid when due to the
Trustee. Any dividends or distributions so paid over to the Trustee
will be held in trust for the Charitable Beneficiary. Effective as of
the date that Voting Stock has been Transferred to the Trustee, the
Trustee will have the authority (at the Trustee's sole discretion) to
(i) rescind as void any vote cast by a Prohibited Owner prior to the
discovery by the Company that Voting Stock has been transferred to the
Trustee and (ii) recast such vote in accordance with the desires of
the Trustee acting for the benefit of the Charitable Beneficiary.
Notwithstanding the provisions of this Article Seventh, until the
Company has received notification that Voting Stock has been
transferred into a Charitable Trust, the Company will be entitled to
rely on its stock transfer and other stockholder records for purposes
of preparing lists of stockholders entitled to vote at meetings,
determining the validity and authority of proxies and otherwise
conducting votes of stockholders.
(d) Sale of Shares by Trustee. Within 20 Business Days of
receiving notice from the Company that Voting Stock has been
Transferred to the Charitable Trust, the Trustee will sell the Voting
Stock held in the Charitable Trust to a Person, designated by the
Trustee, whose ownership of the Voting Stock will not violate the
ownership limitations set forth in Section 2(a) of this Article
Seventh. Upon such sale, the interest of the Charitable Beneficiary in
the Voting Stock sold will terminate and the Trustee will distribute
the net proceeds of the sale to the Prohibited Owner and to the
Charitable Beneficiary as provided in this Section 3(d). The
Prohibited Owner will receive the lesser of (i) the price paid by the
Prohibited Owner for the Voting Stock or, if the Prohibited Owner did
not give value for the Voting Stock in connection with the event
causing the Voting Stock to be held in the Charitable Trust (e.g., in
the case of a gift, devise or other similar transaction), the Market
Price of the Voting Stock on the day of the event causing the Voting
Stock to be held in the Charitable Trust and (ii) the price per share
received by the Trustee from the sale or other disposition of the
Voting Stock held in the Charitable
8
<PAGE> 9
Trust. Any net sales proceeds in excess of the amount payable to the
Prohibited Owner will be immediately paid to the Charitable
Beneficiary. If, prior to the discovery by the Company that Voting
Stock has been Transferred to the Trustee, the Voting Stock is sold by
a Prohibited Owner, then (i) the Voting Stock will be deemed to have
been sold on behalf of the Charitable Trust and (ii) to the extent
that the Prohibited Owner received an amount for that Voting Stock
that exceeds the amount that the Prohibited Owner was entitled to
receive pursuant to this Section 3(d), such excess will be paid by the
Prohibited Owner to the Trustee upon demand.
(e) Purchase Right in Shares Transferred to the Trustee.
Voting Stock Transferred to the Trustee will be deemed to have been
offered for sale to the Company, or its designee, at a price per share
equal to the lesser of (i) the price per share in the transaction that
resulted in the Transfer to the Charitable Trust (or, in the case of a
devise or gift, the Market Price at the time of the devise or gift)
and (ii) the Market Price on the date the Company, or its designee,
accepts the offer. The Company will have the right to accept the offer
until the Trustee has sold the Voting Stock held in the Charitable
Trust pursuant to Section 3(d) of this Articles Seventh. Upon such a
sale to the Company, the interest of the Charitable Beneficiary in the
Voting Stock sold will terminate and the Trustee will distribute the
net proceeds of the sale to the Prohibited Owner.
(f) Designation of Charitable Beneficiaries. By written
notice to the Trustee, the Company will designate one or more
nonprofit organizations to be the Charitable Beneficiary of the
interest in the Charitable Trust such that Voting Stock held in the
Charitable Trust would not violate the restrictions set forth in
Section 2(a) in the hands of such Charitable Beneficiary. Each
organization designated under this Section 3(f) must be described in
Section 501(c)(3) of the Code and contributions to the organization
must be eligible for deduction under each of Sections 170(b)(1)(A),
2055 and 2522 of the Code.
Section 4. Exchange Transactions. Nothing in this Article Seventh
precludes the settlement of any transaction entered into through the facilities
of the Exchange. The fact that the settlement of any transaction is so
permitted will not, however, negate the effect of any other provision of this
Article Seventh and any Transferee in such a transaction is subject to all of
the provisions set forth in this Article Seventh.
Section 5. Enforcement. The Company is authorized specifically to seek
equitable relief, including injunctive relief, to enforce the provisions of
this Article Seventh.
Section 6. Non-Waiver. No delay or failure on the part of the Company
or the Board in exercising any right hereunder will operate as a waiver.
EIGHTH. Section 1. Number, Election, and Terms of Directors.
Subject to the rights, if any, of the holders of any series of Preferred Stock
to elect additional Directors under circumstances specified in a Preferred
Stock Designation, the number of the Directors of the Company will not be less
than three nor more than 15 and will be fixed from time to time in the manner
described in the Bylaws of the Company. The Directors, other than those who may
be elected by the holders of any series of Preferred Stock, will be classified
with respect to the time
9
<PAGE> 10
for which they severally hold office into three classes, as nearly equal in
number as possible, designated Class I, Class II, and Class III, all as
determined by action of the full Board. At any meeting of stockholders at which
Directors are to be elected, commencing with the 1999 meeting of stockholders,
the number of Directors elected may not exceed the greatest number of Directors
then in office in either class of Directors not standing for election at such
meeting. The Directors first appointed to Class I will hold office for a term
expiring at the annual meeting of stockholders to be held in 1999; the
Directors first appointed to Class II will hold office for a term expiring at
the annual meeting of stockholders to be held in 2000; and the Directors first
appointed to Class III will hold office for a term expiring at the annual
meeting of stockholders to be held in 2001, with the members of each class to
hold office until their successors are elected and qualified. At each
succeeding annual meeting of the stockholders of the Company, the successors of
the class of Directors whose terms expire at that meeting will be elected by
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election. Subject to the rights, if any, of the holders of
any series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, Directors may be elected by the
stockholders only at an annual meeting of stockholders. Election of Directors
of the Company need not be by written ballot unless requested by the Chairman
or by the holders of a majority of the Voting Stock present in person or
represented by proxy at a meeting of the stockholders at which Directors are to
be elected.
Section 2. Nomination of Director Candidates. Advance notice of
stockholder nominations for the election of Directors must be given in the
manner provided in the Bylaws of the Company.
Section 3. Newly Created Directorships and Vacancies. Subject to the
rights, if any, of (a) the holders of any series of Preferred Stock or (b) any
party to the Stockholders Agreement (the "Stockholders Agreement") among the
Corporation, Bass plc, Bass America, Inc., Holiday Corporation and
United/Harvey Holdings, L.P. to elect additional Directors, newly created
directorships resulting from any increase in the number of Directors and any
vacancies on the Board resulting from death, resignation, disqualification,
removal, or other cause will be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a
quorum of the Board, by a sole remaining Director, or, if there is no remaining
Director, by the stockholders. Any Director elected in accordance with the
preceding sentence will hold office for the remainder of the full term of the
class of Directors in which the new directorship was created or the vacancy
occurred and until such Director's successor has been elected and qualified. No
decrease in the number of Directors constituting the Board may shorten the term
of any incumbent Director.
Section 4. Removal. Subject to the rights, if any, of the holders of
any series of Preferred Stock or of any party to the Stockholders Agreement to
elect additional Directors under circumstances specified in a Preferred Stock
Designation or the Stockholders Agreement, any Director may be removed from
office (a) by the Board as provided in the Bylaws and (b) by the stockholders
only for cause and only in the manner provided in this Section 4. At any annual
meeting or special meeting of the stockholders, the notice of which states that
the removal of a Director or Directors is among the purposes of the meeting,
the affirmative vote of the holders of
10
<PAGE> 11
at least 80% of the Voting Stock, voting together as a single class, may remove
such Director or Directors for cause.
Section 5. Amendment, Repeal, Etc. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of at least 80% of the Voting Stock, voting together as a single class, is
required to amend or repeal, or to adopt any provision inconsistent with, this
Article Eighth.
NINTH. To the fullest extent permitted by the DGCL or any
other applicable law currently or hereafter in effect, no Director of the
Company will be personally liable to the Company or its stockholders for or
with respect to any acts or omissions in the performance of his or her duties
as a Director of the Company. Any repeal or modification of this Article Ninth
will not adversely affect any right or protection of a Director of the Company
in respect of any act or omission occurring in whole or in part prior to such
repeal or modification.
TENTH. Each Person who is or was or had agreed to become a
Director or officer of the Company, and each such Person who is or was serving
or who had agreed to serve at the request of the Board or an officer of the
Company as an employee or agent of the Company or as a director, officer,
employee, trustee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan, or other entity, whether for profit or not for
profit (including the heirs, executors, administrators, or estate of such
Person), will be indemnified by the Company to the fullest extent permitted by
the DGCL or any other applicable law as currently or hereafter in effect. The
right of indemnification provided in this Article Tenth (a) will not be
exclusive of any other rights to which any Person seeking indemnification may
otherwise be entitled, including without limitation pursuant to any contract
approved by a majority of the Whole Board (whether or not the Directors
approving such contract are or are to be parties to such contract or similar
contracts) and (b) will be applicable to matters otherwise within its scope
whether or not such matters arose or arise before or after the adoption of this
Article Tenth. Without limiting the generality or the effect of the foregoing,
the Company may adopt Bylaws, or enter into one or more agreements with any
Person, which provide for indemnification greater or otherwise different than
that provided in this Article Tenth or the DGCL, and any such agreement
approved by the Whole Board will be a valid and binding obligation of the
Company regardless of whether one or more members of the Board, or all members
of the Board, are parties thereto or to similar agreements. Notwithstanding
anything to the contrary in this Article Tenth, in the event that the Company
enters into a contract with any Person providing for indemnification of such
Person, the provisions of such contract will exclusively govern the Company's
obligations in respect of indemnification for or advancement of fees or
disbursements of such Person's counsel or any other professional engaged by
such Person. Any amendment or repeal of, or adoption of any provision
inconsistent with, this Article Tenth will not adversely affect any right or
protection existing hereunder, or arising out of events occurring or
circumstances existing, in whole or in part, prior to such amendment, repeal,
or adoption and no such amendment, repeal, or adoption, will affect
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<PAGE> 12
the legality, validity, or enforceability of any contract entered into or right
granted prior to the effective date of such amendment, repeal, or adoption.
This Amended and Restated Certificate of Incorporation shall be
effective at 4:00 p.m. (Eastern Time) on July 27, 1998.
EXECUTED as of July 27, 1998.
BRISTOL HOTELS & RESORTS, INC.
By: /s/ Jeffrey P. Mayer
-------------------------------
Jeffrey P. Mayer
Senior Vice President and
Chief Financial Officer
ATTEST:
/s/ Linda Kelso
- --------------------------
A. Secretary
12
<PAGE> 1
Exhibit 4.3
BRISTOL HOTELS & RESORTS, INC.
AMENDED AND RESTATED BYLAWS
AS ADOPTED AND IN EFFECT
AS OF JULY 27, 1998
<PAGE> 2
BRISTOL HOTELS & RESORTS, INC.
BYLAWS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
STOCKHOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Time and Place of Meetings . . . . . . . . . . . . . . . . . . 1
2. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
4. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . 2
5. Inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
8. Order of Business . . . . . . . . . . . . . . . . . . . . . . 3
DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9. Function . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10. Number and Term of Office . . . . . . . . . . . . . . . . . . 4
11. Vacancies and New Directorships . . . . . . . . . . . . . . . 4
12. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
13. Nominations of Directors; Election . . . . . . . . . . . . . . 5
14. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . 6
15. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
16. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 6
17. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
18. Written Action . . . . . . . . . . . . . . . . . . . . . . . . 7
19. Participation in Meetings by Telephone Conference . . . . . . 7
20. Committees . . . . . . . . . . . . . . . . . . . . . . . . . . 7
21. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 8
22. Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
23. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . 8
24. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
25. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . 9
26. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 9
27. Succession . . . . . . . . . . . . . . . . . . . . . . . . . . 9
28. Authority and Duties . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
i
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<TABLE>
<S> <C>
STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
29. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 9
30. Classes of Stock . . . . . . . . . . . . . . . . . . . . . . . 10
31. Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . 10
32. Lost, Stolen, or Destroyed Certificates . . . . . . . . . . . 10
33. Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . 10
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
34. Damages and Expenses . . . . . . . . . . . . . . . . . . . . . 11
35. Insurance, Contracts, and Funding . . . . . . . . . . . . . . 15
GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
36. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 15
37. Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
38. Reliance upon Books, Reports, and Records . . . . . . . . . . 15
39. Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . 16
40. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 16
41. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
BRISTOL HOTELS & RESORTS, INC.
BYLAWS
STOCKHOLDERS' MEETINGS
1. Time and Place of Meetings. All meetings of the stockholders for
the election of Directors or for any other purpose will be held at such time
and place, within or without the State of Delaware, as may be designated by the
Board or, in the absence of a designation by the Board, the Chairman, the
President, or a Vice Chairman and stated in the notice of meeting. The Board,
the Chairman, or a Vice Chairman may postpone any previously scheduled annual
or special meeting of the stockholders.
2. Annual Meeting. An annual meeting of the stockholders will be
held at such date and time as may be designated from time to time by the Board,
at which meeting the stockholders will elect, by a plurality vote of the Voting
Stock of the stockholders present in person or represented by proxy, the
Directors to succeed those whose terms expire and will transact such other
business as may properly be brought before the meeting in accordance with Bylaw
8.
3. Special Meetings. (a) Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by law or by the
Certificate of Incorporation, may be called only by (i) the Chairman or a Vice
Chairman, (ii) the Secretary within 10 calendar days after receipt of the
written request of a majority of the total number of directors that the Company
would have if there were no vacancies (the "Whole Board") or (iii) as otherwise
provided in a Preferred Stock Designation. Any such request by a majority of
the Whole Board must be sent to the Chairman and the Secretary and must state
the purpose or purposes of the proposed meeting. Special meetings of holders of
the outstanding Preferred Stock, if any, may be called in the manner and for
the purposes provided in the applicable Preferred Stock Designation.
(b) Upon the receipt by the Company of a written request executed by
the holders of not less than a majority of the outstanding Voting Stock (a
"Meeting Request"), the Board will (i) call a special meeting of the
stockholders for any lawful purpose (which may not, however, include the
election of Directors) and (ii) fix a record date for the determination of
stockholders entitled to notice of and to vote at that meeting, which record
date will not be later than 60 calendar days after the date of receipt by the
Company of the Meeting Notice; provided, however, that no separate special
meeting of stockholders requested pursuant to a Meeting Request will be
required to be convened if (A) the Board calls an annual or special meeting of
stockholders to be held not later than 90 calendar days after receipt of the
Meeting Request, (B) the purposes of the annual or special meeting include
(among any other matters properly brought before the meeting) the purposes
specified in the Meeting Request, and (C) in all events, the Board may defer
taking any action referred to in this Bylaw 3(b) for up to 180 calendar days if
and to the extent that the Board determines in its sole discretion that so
doing is in the best interests of the Company. Notwithstanding any provision of
the Certificate of Incorporation or these Bylaws to the contrary, this Bylaw
3(b) may not be amended or repealed by the Board, and no provision inconsistent
with
1
<PAGE> 5
this Bylaw 3(b) may be adopted by the Board, without the affirmative vote of
the holders of at least 80% of the Voting Stock, voting together as a class.
4. Notice of Meetings. Written notice of every meeting of the
stockholders, stating the place, date, and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
will be given not less than 10 nor more than 60 calendar days before the date
of the meeting to each stockholder of record entitled to vote at such meeting,
except as otherwise provided in these Bylaws or by law. When a meeting is
adjourned to another place, date, or time, written notice need not be given of
the adjourned meeting if the place, date, and time thereof are announced at the
meeting at which the adjournment is taken; provided, however, that if the
adjournment is for more than 30 calendar days, or if after the adjournment a
new record date is fixed for the adjourned meeting, written notice of the
place, date, and time of the adjourned meeting must be given in conformity with
this Bylaw 4. At any adjourned meeting, any business may be transacted which
might have been transacted at the original meeting.
5. Inspectors. The Board may appoint one or more inspectors of
election to act as judges of the voting and to determine those entitled to vote
at any meeting of the stockholders, or any adjournment thereof, in advance of
the meeting. The Board may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the presiding officer of
the meeting may appoint one or more substitute inspectors.
6. Quorum. Except as otherwise provided by law or in a Preferred
Stock Designation, the holders of a majority of the stock issued and
outstanding and entitled to vote at a meeting of stockholders, present in
person or represented by proxy, will constitute a quorum at all meetings of the
stockholders for the transaction of business at a meeting of the stockholders.
If, however, such quorum is not present or represented at any meeting of the
stockholders, the stockholders entitled to vote at that meeting of
stockholders, present in person or represented by proxy, will have the power to
adjourn, without notice other than announcement at the meeting, the meeting
from time to time until a quorum is present or represented.
7. Voting. Except as otherwise provided by law or in a Preferred
Stock Designation, each stockholder will be entitled at every meeting of the
stockholders to one vote for each share of stock having voting power standing
in the name of that stockholder on the books of the Company on the record date
for the meeting and those votes may be cast either in person or by written
proxy. Every proxy must be duly executed and filed with the Secretary. A
stockholder may revoke any proxy that is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary.
The vote upon any question brought before a meeting of the stockholders may be
by voice vote, unless otherwise required by these Bylaws or unless the
presiding officer of the meeting or the holders of a majority of the
outstanding shares of all classes of stock entitled to vote on that question
present in person or by proxy at the meeting otherwise determine. Every vote
taken by written ballot will be counted by the inspectors of election. When a
quorum is present at any meeting, the vote of the holders of a majority of the
stock which has voting power present in person or represented by proxy and
which has actually voted will decide any question
2
<PAGE> 6
properly brought before such meeting, unless the question is one upon which by
express provision of law, the Certificate of Incorporation, a Preferred Stock
Designation, or these Bylaws, a different vote is required, in which case that
express provision will govern and control the decision of such question.
8. Order of Business. (a) The Chairman, or such other officer of
the Company designated by a majority of the Whole Board, will call meetings of
the stockholders to order and will act as presiding officer thereof. Except as
otherwise provided by law or in a Preferred Stock Designation or unless
otherwise determined by the Board prior to the meeting, the presiding officer
of the meeting of the stockholders will also determine the order of business
and have the authority in his or her sole discretion to regulate the conduct of
the meeting, including without limitation by imposing restrictions on the
persons (other than stockholders of the Company or their duly appointed
proxies) who may attend any such stockholders' meeting, by ascertaining whether
any stockholder or the stockholder's proxy may be excluded from any meeting of
the stockholders based upon any determination by the presiding officer, in his
or her sole discretion, that any such person has unduly disrupted or is likely
to disrupt the proceedings at the meeting of the stockholders, and by
determining the circumstances in which any person may make a statement or ask
questions at any meeting of the stockholders.
(b) At an annual meeting of the stockholders, only such business will
be conducted or considered as is properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in
the notice of meeting (or any supplement thereto) given by or at the direction
of the Chairman or a Vice Chairman or the Board in accordance with Bylaw 4,
(ii) otherwise properly brought before the meeting by the presiding officer or
by or at the direction of a majority of the Whole Board, or (iii) otherwise
properly requested to be brought before the meeting by a stockholder of the
Company in accordance with Bylaw 8(c).
(c) For business to be properly requested by a stockholder to be
brought before an annual meeting, the stockholder must (i) be a stockholder of
the Company of record at the time of the giving of the notice for such annual
meeting provided for in these Bylaws, (ii) be entitled to vote at such meeting,
and (iii) have given timely notice thereof in writing to the Secretary. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Company not less than 60 calendar days
prior to the annual meeting; provided, however, that in the event public
announcement of the date of the annual meeting is not made at least 75 calendar
days prior to the date of the annual meeting, notice by the stockholder to be
timely must be so received not later than the close of business on the 10th
calendar day following the day on which public announcement is first made of
the date of the annual meeting. A stockholder's notice to the Secretary must
set forth as to each matter the stockholder proposes to bring before the annual
meeting (A) a description in reasonable detail of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (B) the name and address, as they appear on the
Company's books, of the stockholder proposing such business and the beneficial
owner, if any, on whose behalf the proposal is made, (C) the class and number
of shares of the Company that are owned beneficially and of record by the
stockholder proposing such business and by the beneficial owner, if any, on
whose behalf the proposal is made, and (D) any material interest of such
stockholder proposing such business and
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the beneficial owner, if any, on whose behalf the proposal is made in such
business. Notwithstanding the foregoing provisions of this Bylaw 8(c), a
stockholder must also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Bylaw 8(c). For purposes of this Bylaw
8(c) and Bylaw 13, "public announcement" means disclosure in a press release
reported by the Dow Jones News Service, Associated Press, or comparable
national news service or otherwise published by the Company in substantial
conformity with its ordinary practice in a document publicly filed by the
Company with the Securities and Exchange Commission pursuant to Section 13, 14,
or 15(d) of the Exchange Act, or furnished to stockholders. Nothing in this
Bylaw 8(c) will be deemed to affect any rights of stockholders to request
inclusion of proposals in the Company's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
(d) At a special meeting of stockholders, only such business may be
conducted or considered as is properly brought before the meeting. To be
properly brought before a special meeting, business must be (i) specified in
the notice of the meeting (or any supplement thereto) given by or at the
direction of the Chairman or a Vice Chairman or a majority of the Whole Board
in accordance with Bylaw 4 or (ii) otherwise properly brought before the
meeting by the presiding officer or by or at the direction of a majority of the
Whole Board.
(e) The determination of whether any business sought to be brought
before any annual or special meeting of the stockholders is properly brought
before such meeting in accordance with this Bylaw 8 will be made by the
presiding officer of such meeting. If the presiding officer determines that any
business is not properly brought before such meeting, he or she will so declare
to the meeting and any such business will not be conducted or considered.
DIRECTORS
9. Function. The business and affairs of the Company will be
managed under the direction of the Board.
10. Number and Term of Office. Subject to the rights, if any, of any
series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation and to the minimum and maximum
number of authorized Directors provided in the Certificate of Incorporation,
the authorized number of Directors may be determined from time to time by (i) a
vote of a majority of the Whole Board or (ii) by the affirmative vote of the
holders of at least 80% of the Voting Stock, voting together as a single class.
The Directors, other than those who may be elected by the holders of any series
of the Preferred Stock, will be classified with respect to the time for which
they severally hold office in accordance with the Certificate of Incorporation.
11. Vacancies and New Directorships. Subject to the rights, if any,
of (a) the holders of any series of Preferred Stock under a Preferred Stock
Designation or (b) any party to the Stockholders Agreement dated _________,
1998 (the "Stockholders Agreement") among the Corporation, Bass plc, Bass
America, Inc., Holiday Corporation and United/Harvey Holdings, L.P. to elect
additional Directors, and newly created directorships resulting from any
increase in
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the authorized number of Directors and any vacancies on the Board resulting
from death, resignation, disqualification, removal, or other cause will be
filled solely by the affirmative vote of a majority of the remaining Directors
then in office, even though less than a quorum of the Board, by a sole
remaining Director, or, if there is no remaining Director, by the stockholders.
Any Director elected in accordance with the preceding sentence will hold office
for the remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and until such Director's
successor has been elected and qualified. No decrease in the number of
Directors constituting the Board may shorten the term of any incumbent
Director.
12. Removal. Subject to the rights, if any, of the holders of any
series of Preferred Stock or of any party to the Stockholders Agreement to
elect additional Directors under circumstances specified in a Preferred Stock
Designation or the Stockholders Agreement, any Director may be removed from
office (a) by the Board with or without cause and upon the vote of a majority
of the Whole Board and (b) by the stockholders only for cause and only in the
manner provided in the Certificate of Incorporation.
13. Nominations of Directors; Election. Subject to the rights, if
any, of the holders of any series of Preferred Stock or of any party to the
Stockholders Agreement to elect additional Directors under circumstances
specified in a Preferred Stock Designation or the Stockholders Agreement, only
persons who are nominated in accordance with the following procedures will be
eligible for election at a meeting of stockholders as Directors of the Company.
(a) Nominations of persons for election as Directors of the Company
may be made only at an annual meeting of stockholders (i) by or at the
direction of the Board or (ii) by any stockholder who is a stockholder of
record at the time of giving of notice provided for in this Bylaw 13, who is
entitled to vote for the election of Directors at such meeting, and who
complies with the procedures set forth in this Bylaw 13. All nominations by
stockholders must be made pursuant to timely notice in proper written form to
the Secretary.
(b) To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Company not less
than 60 calendar days prior to the annual meeting of stockholders; provided,
however, that in the event that public announcement of the date of the annual
meeting is not made by the Company by inclusion in a report filed with the
Securities and Exchange Commission or furnished to stockholders, or by mail,
press release or otherwise more than 75 calendar days prior to the date of the
annual meeting, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th calendar day following the day on
which public announcement is first made of the date of the annual meeting. To
be in proper written form, such stockholder's notice must set forth or include
(i) the name and address, as they appear on the Company's books, of the
stockholder giving the notice and of the beneficial owner, if any, on whose
behalf the nomination is made; (ii) a representation that the stockholder
giving the notice is a holder of record of stock of the Company entitled to
vote at such annual meeting and intends to appear in person or by proxy at the
annual meeting to nominate the person or persons specified in the notice; (iii)
the class and number of shares of stock of the Company owned beneficially and
of record by the stockholder giving the notice and by the beneficial owner, if
any, on whose behalf the nomination is made; (iv)
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a description of all arrangements or understandings between or among any of (A)
the stockholder giving the notice, (B) the beneficial owner on whose behalf the
notice is given, (C) each nominee, and (D) any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder giving the notice; (v) such other information
regarding each nominee proposed by the stockholder giving the notice as would
be required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission under the Exchange Act had the
nominee been nominated, or intended to be nominated, by the Board; and (vi) the
signed consent of each nominee to serve as a director of the Company if so
elected. At the request of the Board, any person nominated by the Board for
election as a Director must furnish to the Secretary that information required
to be set forth in a stockholder's notice of nomination which pertains to the
nominee. The presiding officer of any annual meeting will, if the facts
warrant, determine that a nomination was not made in accordance with the
procedures prescribed by this Bylaw 13, and if he or she should so determine,
he or she will so declare to the meeting and the defective nomination will be
disregarded. Notwithstanding the foregoing provisions of this Bylaw 13, a
stockholder must also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Bylaw 13.
14. Resignation. Any Director may resign at any time by giving
written notice of his resignation to the Chairman or the Secretary. Any
resignation will be effective upon actual receipt by any such person or, if
later, as of the date and time specified in such written notice.
15. Regular Meetings. Regular meetings of the Board may be held
immediately before or after the annual meeting of the stockholders and at such
other time and place as may from time to time be determined by the Board. Prior
written notice of regular meetings of the Board must be given not less than 24
hours prior to such meeting by U.S. mail, overnight courier telegram, telex,
facsimile or similar medium.
16. Special Meetings. Special meetings of the Board may be called by
the Chairman or a Vice Chairman on one day's notice to each Director by whom
such notice is not waived, given either personally or by mail, telephone,
telegram, telex, facsimile, or similar medium of communication, and will be
called by the Chairman or the Vice Chairman in like manner and on like notice
on the written request of five or more Directors. Special meetings of the Board
may be held at such time and place either within or without the State of
Delaware as is determined by the Board or specified in the notice of any such
meeting.
17. Quorum. At all meetings of the Board, a majority of the total
number of Directors then in office will constitute a quorum for the transaction
of business. Except for the designation of committees as provided in Bylaw 20
and except for actions required by these Bylaws or the Certificate of
Incorporation to be taken by a majority of the Whole Board, the act of a
majority of the Directors present at any meeting at which there is a quorum
will be the act of the Board. If a quorum is not present at any meeting of the
Board, the Directors present at the meeting may adjourn the meeting from time
to time to another place, time, or date, without notice other than announcement
at the meeting, until a quorum is present.
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18. Written Action. Any action required or permitted to be taken at
any meeting of the Board or of any committee of the Board may be taken without
a meeting if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes or
proceedings of the Board or committee.
19. Participation in Meetings by Telephone Conference. Members of
the Board, or any committee designated by the Board, may participate in a
meeting of the Board, or any such committee, by means of telephone conference
or similar means by which all persons participating in the meeting can hear
each other, and such participation in a meeting will constitute presence in
person at the meeting.
20. Committees. (a) The Board, by resolution passed by a majority of
the Whole Board, may designate an executive committee (the "Executive
Committee") of not less than two and not more than four members of the Board,
one of whom will be the Chairman. In the event of the inability of the Chairman
to attend any meeting thereof, a Vice Chairman, in order of seniority if there
be more than one Vice Chairman, may take the place at such meeting of the
Chairman. The Executive Committee will have and may exercise the powers of the
Board, except the power to amend these Bylaws or the Certificate of
Incorporation (except, to the extent authorized by a resolution of the Board,
to fix the designation, preferences, and other terms of any series of Preferred
Stock), adopt an agreement of merger or consolidation other than with an entity
of which all of its equity interests are held by the Company, authorize the
issuance of stock, declare a dividend, or recommend to the stockholders the
sale, lease, or exchange of all or substantially all of the Company's property
and assets, a dissolution of the Company, or a revocation of a dissolution, and
except as otherwise provided by law. Two-thirds of the members of the Executive
Committee will constitute a quorum for the transaction of business, and the act
of two-thirds of the members of the Executive Committee (which must include the
affirmative vote of the Chairman or, in the absence of the Chairman, a Vice
Chairman) will constitute the act of such committee.
(b) The Board, by resolution passed by a majority of the Board, may
designate one or more additional committees, each such committee to consist of
one or more Directors and each to have such lawfully delegable powers and
duties as the Board may confer.
(c) The Executive Committee and each other committee of the Board
will serve at the pleasure of the Board or as may be specified in any
resolution from time to time adopted by the Board. The Board may designate one
or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In lieu of such
action by the Board, in the absence or disqualification of any member of a
committee of the Board, the members thereof present at any meeting of the
committee and not disqualified from voting, whether or not they constitute a
quorum, may, by unanimous action, appoint another member of the Board to act at
the meeting in the place of any absent or disqualified member.
(d) Except as otherwise provided in these Bylaws or by law, any
committee of the Board, to the extent provided in Bylaw 20(a) or, if
applicable, in the resolution of the Board designating a committee, will have
and may exercise all the powers and authority of the Board in
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the direction of the management of the business and affairs of the Company. Any
committee designated by the Board will have such name as may be determined from
time to time by resolution adopted by the Board. Except as provided in Bylaw
20(a) or as otherwise prescribed by the Board, a majority of the members of any
committee of the Board will constitute a quorum for the transaction of
business, and the act of a majority of the members will be the act of the
committee. Each committee of the Board may prescribe its own rules for calling
and holding meetings and its method of procedure, subject to any rules
prescribed by the Board, and will keep a written record of all actions taken by
it.
(e) A majority of the members of each of the Executive Committee and
all of the members of any committee the primary responsibilities of which
include reviewing the professional services to be provided by the Company's
independent auditors and the independence of such firm from the Company's
management, reviewing financial statements with management or independent
auditors, and/or reviewing internal accounting controls will be directors who
are not employees of the Company. Notwithstanding any provision of the
Certificate of Incorporation or these Bylaws to the contrary, this Bylaw 20(e)
may not be amended or repealed by the Board, and no provision inconsistent
therewith may be adopted by the Board, without the affirmative vote of the
holders of at least a majority of the Voting Stock present or represented by
proxy and entitled to vote at any annual or special meeting of stockholders at
which such vote is to be taken.
21. Compensation. The Board may establish such compensation for, and
reimbursement of the expenses of, Directors for membership on the Board and on
committees of the Board, attendance at meetings of the Board or committees of
the Board, or for other services by Directors to the Company or any of its
majority-owned subsidiaries, as the Board may determine.
22. Rules. The Board may adopt rules and regulations for the conduct
of its meetings and the management of the affairs of the Company.
NOTICES
23. Generally. Whenever by law or under the provisions of the
Certificate of Incorporation or these Bylaws, notice is required to be given to
any Director or stockholder, it will not be construed to require personal
notice, but such notice may be given in writing, by mail, addressed to such
Director or stockholder, at his, her, or its address as it appears on the
records of the Company, with postage thereon prepaid, and such notice will be
deemed to be given at the time when the same is deposited in the United States
mail. Notice to Directors may also be given by telephone, telegram, telex,
facsimile, or similar medium of communication or as may otherwise be permitted
by these Bylaws.
24. Waivers. Whenever any notice is required to be given by law or
under the provisions of the Certificate of Incorporation or these Bylaws, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time of the event for which notice is to be
given, will be deemed equivalent to such notice. Attendance of a person at a
meeting will constitute a waiver of notice of such meeting, except when the
person attends a
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meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or convened.
OFFICERS
25. Generally. The officers of the Company will be elected by the
Board and will consist of a Chairman, a Chief Executive Officer, a Chief
Operating Officer, a President, a Secretary, and a Treasurer. The Board may
also choose any one or more Vice Chairmen, Vice Presidents, Assistant Vice
President's, Assistant Secretaries, Assistant Treasurers and any such other
officers as the Board may from time to time determine. Notwithstanding the
foregoing, by specific action, the Board may authorize the Chairman, President
or a Vice Chairman to appoint any person to any office other than Chairman,
Vice Chairman, Chief Executive Officer, President, Secretary, or Treasurer. Any
number of offices may be held by the same person. Any of the offices may be
left vacant from time to time as the Board may determine. In the case of the
absence or disability of any officer of the Company or for any other reason
deemed sufficient by a majority of the Board, the Board may delegate the absent
or disabled officer's powers or duties to any other officer or to any Director.
26. Compensation. The compensation of all officers and agents of the
Company who are also Directors of the Company will be fixed by the Board or by
a committee of the Board. The Board may fix, or delegate the power to fix, the
compensation of other officers and agents of the Company to an officer of the
Company.
27. Succession. The officers of the Company will hold office until
their successors are elected and qualified. Any officer may be removed at any
time (a) by the affirmative vote of a majority of the Whole Board or (b) with
respect to any officer other than the Chairman, the President, the Chief
Executive Officer or the Chief Operating Officer, by the President or the Chief
Executive Officer. Any vacancy occurring in any office of the Company may be
filled by the Board as provided in Bylaw 25.
28. Authority and Duties. Each of the officers of the Company will
have such authority and will perform such duties as are customarily incident to
their respective offices or as may be specified from time to time by the Board
or by the Chairman or any Vice Chairman as provided in these Bylaws.
STOCK
29. Certificates. Certificates representing shares of stock of the
Company will be in such form as is determined by the Board or an authorized
committee thereof, subject to applicable legal requirements. Each certificate
will be numbered and its issuance recorded in the books of the Company, and
each certificate will exhibit the holder's name and the number of shares and
will be signed by, or in the name of, the Company by the Chairman, the
President or a Vice President and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer, and will also be signed by, or bear
the facsimile signature of, any properly designated transfer agent of the
Company. Any or all of the signatures and the seal of the Company, if any, upon
the certificates
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may be facsimiles, engraved, or printed. The certificates may be issued and
delivered notwithstanding that the person whose facsimile signature appears
thereon may have ceased to be an officer at the time certificates are issued
and delivered.
30. Classes of Stock. The designations, preferences, and relative
participating, optional, or other special rights of the various classes of
stock or series thereof, and the qualifications, limitations, or restrictions
thereof, will be set forth in full or summarized on the face or back of the
certificates which the Company issues to represent its stock or, in lieu
thereof, such certificates will set forth the office of the Company from which
the holders of certificates may obtain a copy of such information.
31. Transfers. Upon surrender to the Company or the transfer agent
of the Company of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment, or authority to transfer, it will be
the duty of the Company to issue, or cause its transfer agent to issue, a new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon its books.
32. Lost, Stolen, or Destroyed Certificates. The Secretary may
direct a new certificate or certificates to be issued in place of any
certificate or certificates previously issued by the Company alleged to have
been lost, stolen, or destroyed upon the making of an affidavit of that fact,
satisfactory to the Secretary, by the person claiming the certificate of stock
to be lost, stolen, or destroyed. As a condition precedent to the issuance of a
new certificate or certificates, the Secretary may require the owners of such
lost, stolen, or destroyed certificate or certificates to give the Company a
bond in such sum and with such surety or sureties as the Secretary may direct
as indemnity against any claims that may be made against the Company with
respect to the certificate alleged to have been lost, stolen, or destroyed or
the issuance of the new certificate.
33. Record Dates. (a) In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board may fix a record date, which will not be
more than 60 nor less than 10 calendar days before the date of such meeting. If
no record date is fixed by the Board, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders will
be at the close of business on the calendar day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the
calendar day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of the stockholders will apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
(b) In order that the Company may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion, or exchange of stock, or for the purpose of any other
lawful action, the Board may fix a record date, which record date will not be
more than 60 calendar days prior to such action. If no record date is fixed,
the record date for determining stockholders for any such purpose will be at
the close of business on the calendar day on which the Board adopts the
resolution relating thereto.
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(c) The Company will be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes, and
will not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Company has
notice thereof, except as expressly provided by applicable law.
INDEMNIFICATION
34. Damages and Expenses. (a) Without limiting the generality or
effect of Article Ninth of the Certificate of Incorporation, the Company will
to the fullest extent permitted by applicable law as then in effect indemnify
any person (an "Indemnitee") who is or was involved in any manner (including
without limitation as a party or a witness) or is threatened to be made so
involved in any threatened, pending, or completed investigation, claim, action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
(including without limitation any action, suit, or proceeding by or in the
right of the Company to procure a judgment in its favor) (a "Proceeding") by
reason of the fact that such person is or was or had agreed to be a Director,
officer, employee, trustee, or agent of the Company, or is or was serving at
the request of the Board or an officer of the Company as a director, officer,
employee, trustee, or agent of another corporation, partnership, joint venture,
trust, employee benefit plan, or other entity, whether or not for profit
(including the heirs, executors, administrators, or estate of such person), or
anything done or not done by such person in any such capacity, against all
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such Proceeding. Such indemnification will be a contract right and will include
the right to receive payment in advance of any expenses incurred by an
Indemnitee in connection with such Proceeding, consistent with the provisions
of applicable law as then in effect.
(b) The right of indemnification provided in this Bylaw 34 will not
be exclusive of any other rights to which any person seeking indemnification
may otherwise be entitled, and will be applicable to Proceedings commenced or
continuing after the adoption of this Bylaw 34, whether arising from acts or
omissions occurring before or after such adoption.
(c) In furtherance, but not in limitation of the foregoing
provisions, the following procedures, presumptions, and remedies will apply
with respect to advancement of expenses and the right to indemnification under
this Bylaw 34:
(i) All reasonable expenses incurred by or on behalf of an
Indemnitee in connection with any Proceeding will be advanced to the
Indemnitee by the Company within 30 calendar days after the receipt by
the Company of a statement or statements from the Indemnitee requesting
an advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements will
reasonably evidence the expenses incurred by the Indemnitee and, if and
to the extent required by law at the time of such advance, will include
or be accompanied by an undertaking by or on behalf of the Indemnitee to
repay such amounts advanced as to which it may ultimately be determined
that the Indemnitee is not entitled. If such an undertaking is required
by law at the time of an advance, no security will be required for
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the undertaking and the undertaking will be accepted without reference
to the recipient's financial ability to make repayment.
(ii) To obtain indemnification under this Bylaw 34, the
Indemnitee will submit to the Secretary a written request, including
such documentation supporting the claim as is reasonably available to
the Indemnitee and is reasonably necessary to determine whether and to
what extent the Indemnitee is entitled to indemnification (the
"Supporting Documentation"). The determination of the Indemnitee's
entitlement to indemnification will be made not less than 60 calendar
days after receipt by the Company of the written request for
indemnification together with the Supporting Documentation. The
Secretary within 10 days after receipt of such a request for
indemnification advise the Board in writing that the Indemnitee has
requested indemnification. The Indemnitee's entitlement to
indemnification under this Bylaw 34 will be determined in one of the
following ways: (A) by a majority vote of the Disinterested Directors
(as hereinafter defined), if they constitute a quorum of the Board, or,
in the case of an Indemnitee that is not a present or former officer of
the Company, by any committee of the Board or committee of officers or
agents of the Company designated for such purpose by a majority of the
Board of Directors; (B) by a written opinion of Independent Counsel (as
hereinafter defined) if (1) a Change of Control (as hereinafter defined)
has occurred and the Indemnitee so requests or (2) in the case of an
Indemnitee who is a present or former officer of the Company, a quorum
of the Board consisting of Disinterested Directors is not obtainable or,
even if obtainable, a majority of such Disinterested Directors so
directs; (C) by the stockholders (but only if a majority of the
Disinterested Directors, if they constitute a quorum of the Board,
presents the issue of entitlement to indemnification to the stockholders
for their determination); or (D) as provided in subparagraph (iii)
below. If the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to clause (B) above, a majority of
the Disinterested Directors will select the Independent Counsel, but
only an Independent Counsel to which the Indemnitee does not reasonably
object; provided, however, that if a Change of Control has occurred, the
Indemnitee will select such Independent Counsel, but only an Independent
Counsel to which the Board does not reasonably object.
(iii) Except as otherwise expressly provided in this Bylaw 34,
the Indemnitee will be presumed to be entitled to indemnification under
this Bylaw 34 upon submission of a request for indemnification together
with the Supporting Documentation in accordance with subparagraph
(c)(ii) above, and thereafter the Company will have the burden of proof
to overcome that presumption in reaching a contrary determination. In
any event, if the person or persons empowered under subparagraph (c)(ii)
to determine entitlement to indemnification have not been appointed or
have not made a determination within 60 calendar days after receipt by
the Company of the request therefor together with the Supporting
Documentation, the Indemnitee will be deemed to be entitled to
indemnification and the Indemnitee will be entitled to such
indemnification unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in
the Supporting Documentation or (B) such indemnification is prohibited
by law. The termination of any Proceeding described in Bylaw 34(a), or
of any
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claim, issue, or matter therein, by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent, will
not, of itself, adversely affect the right of the Indemnitee to
indemnification or create a presumption that the Indemnitee did not act
in good faith and in a manner which the Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company or, with
respect to any criminal Proceeding, that the Indemnitee had reasonable
cause to believe that his or her conduct was unlawful.
(iv) (A) In the event that a determination is made pursuant
to subparagraph (c)(ii) that the Indemnitee is not entitled to
indemnification under this Bylaw 34, (1) the Indemnitee will be entitled
to seek an adjudication of his entitlement to such indemnification
either, at the Indemnitee's sole option, in (x) an appropriate court of
the State of Delaware or any other court of competent jurisdiction or
(y) an arbitration to be conducted by a single arbitrator pursuant to
the rules of the American Arbitration Association, (2) any such judicial
proceeding or arbitration will be de novo and the Indemnitee will not be
prejudiced by reason of such adverse determination, and (3) in any such
judicial proceeding or arbitration the Company will have the burden of
proving that the Indemnitee is not entitled to indemnification under
this Bylaw 34.
(B) If a determination is made or deemed to have been
made, pursuant to subparagraph (c)(ii) or (iii) of this Bylaw 34 that
the Indemnitee is entitled to indemnification, the Company will be
obligated to pay the amounts constituting such indemnification within
five business days after such determination has been made or deemed to
have been made and will be conclusively bound by such determination
unless (1) the Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification or in the
Supporting Documentation or (2) such indemnification is prohibited by
law. In the event that advancement of expenses is not timely made
pursuant to subparagraph (c)(i) of this Bylaw 34 or payment of
indemnification is not made within five business days after a
determination of entitlement to indemnification has been made or deemed
to have been made pursuant to subparagraph (c)(ii) or (iii) of this
Bylaw 34, the Indemnitee will be entitled to seek judicial enforcement
of the Company's obligation to pay to the Indemnitee such advancement of
expenses or indemnification. Notwithstanding the foregoing, the Company
may bring an action, in an appropriate court in the State of Delaware or
any other court of competent jurisdiction, contesting the right of the
Indemnitee to receive indemnification hereunder due to the occurrence of
any event described in subclause (1) or (2) of this clause (B) (a
"Disqualifying Event"); provided, however, that in any such action the
Company will have the burden of proving the occurrence of such
Disqualifying Event.
(C) The Company will be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to the provisions
of this subparagraph (c)(iv) that the procedures and presumptions of
this Bylaw 34 are not valid, binding, and enforceable and will stipulate
in any such court or before any such arbitrator that the Company is
bound by all the provisions of this Bylaw 34.
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<PAGE> 17
(D) In the event that the Indemnitee, pursuant to the
provisions of this subparagraph (c)(iv), seeks a judicial adjudication
of, or an award in arbitration to, enforce his or her rights under, or
to recover damages for breach of, this Bylaw 34, the Indemnitee will be
entitled to recover from the Company, and will be indemnified by the
Company against, any expenses actually and reasonably incurred by the
Indemnitee if the Indemnitee prevails in such judicial adjudication or
arbitration. If it is determined in such judicial adjudication or
arbitration that the Indemnitee is entitled to receive part but not all
of the indemnification or advancement of expenses sought, the expenses
incurred by the Indemnitee in connection with such judicial adjudication
or arbitration will be prorated accordingly.
(v) For purposes of this paragraph (c):
(A) "Change in Control" means the occurrence of any of
the following events:
(1) The Company is merged, consolidated, or
reorganized into or with another corporation or other legal
entity, and as a result of such merger, consolidation, or
reorganization less than a majority of the combined voting power
of the then-outstanding securities of such corporation or entity
immediately after such transaction are held in the aggregate by
the holders of the Voting Stock immediately prior to such
transaction;
(2) The Company sells or otherwise transfers all
or substantially all of its assets to another corporation or
other legal entity and, as a result of such sale or transfer,
less than a majority of the combined voting power of the then-
outstanding securities of such other corporation or entity
immediately after such sale or transfer is held in the aggregate
by the holders of Voting Stock of the Company immediately prior
to such sale or transfer;
(3) If, during any period of two consecutive
years, individuals who at the beginning of any such period
constitute the Directors cease for any reason to constitute at
least a majority thereof; provided, however, that for purposes of
this clause (3) each Director who is first elected, or first
nominated for election by the Company's stockholders by a vote of
at least two-thirds of the Directors (or a committee of the
Directors), then still in office who were Directors at the
beginning of any such period will be deemed to have been a
Director at the beginning of such period.
(B) "Disinterested Director" means a Director of the
Company who is not or was not a party to the Proceeding in respect of
which indemnification is sought by the Indemnitee.
(C) "Independent Counsel" means a law firm or a member
of a law firm that neither presently is, nor in the past five years has
been, retained to represent (1) the
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<PAGE> 18
Company or the Indemnitee in any matter material to either such party or
(2) any other party to the Proceeding giving rise to a claim for
indemnification under this Bylaw 34. Notwithstanding the foregoing, the
term "Independent Counsel" will not include any person who, under the
applicable standards of professional conduct then prevailing under the
law of the State of Delaware, would be precluded from representing
either the Company or the Indemnitee in an action to determine the
Indemnitee's rights under this Bylaw 34.
(d) If any provision or provisions of this Bylaw 34 are held to be
invalid, illegal, or unenforceable for any reason whatsoever: (i) the validity,
legality, and enforceability of the remaining provisions of this Bylaw 34
(including without limitation all portions of any paragraph of this Bylaw 34
containing any such provision held to be invalid, illegal, or unenforceable,
that are not themselves invalid, illegal, or unenforceable) will not in any way
be affected or impaired thereby and (ii) to the fullest extent possible, the
provisions of this Bylaw 34 (including without limitation all portions of any
paragraph of this Bylaw 34 containing any such provision held to be invalid,
illegal, or unenforceable, that are not themselves invalid, illegal, or
unenforceable) will be construed so as to give effect to the intent manifested
by the provision held invalid, illegal, or unenforceable.
35. Insurance, Contracts, and Funding. The Company may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines, and amounts paid in settlement or incurred by any Indemnitee
in connection with any Proceeding referred to in Bylaw 34 or otherwise, to the
fullest extent permitted by applicable law as then in effect. The Company may
enter into contracts with any person entitled to indemnification under Bylaw 34
or otherwise, and may create a trust fund, grant a security interest, or use
other means (including without limitation a letter of credit) to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in Bylaw 34. Notwithstanding anything to the contrary contained in
Bylaw 34, in the event that the Company enters into a contract with any person
providing for indemnification of such person, the provisions of such contract
will exclusively govern the Company's obligations in respect of indemnification
for or advancement of fees or disbursements of such person's counsel or any
other professional engaged by such person.
GENERAL
36. Fiscal Year. The fiscal year of the Company will be fixed from
time to time by the Board.
37. Seal. The Board may adopt a corporate seal and use the same by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
38. Reliance upon Books, Reports, and Records. Each Director, each
member of a committee designated by the Board, and each officer of the Company
will, in the performance of his or her duties, be fully protected in relying in
good faith upon the records of the Company and upon such information, opinions,
reports, or statements presented to the Company by any of the Company's
officers or employees, or committees of the Board, or by any other person or
entity as
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<PAGE> 19
to matters the Director, committee member, or officer believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company.
39. Time Periods. In applying any provision of these Bylaws that
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days will be used unless otherwise specified, the
day of the doing of the act will be excluded and the day of the event will be
included.
40. Amendments. Except as otherwise provided by law or by the
Certificate of Incorporation or these Bylaws, these Bylaws or any of them may
be amended in any respect or repealed at any time, either (a) at any meeting of
stockholders, provided that any amendment or supplement proposed to be acted
upon at any such meeting has been described or referred to in the notice of
such meeting, or (b) at any meeting of the Board, provided that no amendment
adopted by the Board may vary or conflict with any amendment adopted by the
stockholders.
41. Certain Defined Terms. Terms used herein with initial capital
letters that are defined in the Certificate of Incorporation are used herein as
so defined.
16
<PAGE> 1
Exhibit 5.1
[JONES, DAY, REAVIS & POGUE LETTERHEAD]
July 27, 1998
Bristol Hotels & Resorts
14295 Midway Road
Dallas, Texas 75244
Re: Registration on Form S-8 of 7,091,250 Shares of Common
Stock, par value $0.01 per share, of Bristol Hotels &
Resorts
Ladies and Gentlemen:
We have acted as counsel for Bristol Hotels & Resorts, a Delaware
corporation (the "Company"), in connection with the registration of 7,091,250
shares (the "Shares") of common stock, par value $0.01 per share ("Common
Stock") of the Company pursuant to the Company's registration statement on Form
S-8 (the "Registration Statement").
We have examined such documents, records, and matters of law as we
have deemed necessary for purposes of this opinion. Based on these
examinations and on the assumptions set forth below, we are of the opinion that
the Shares are duly authorized and, when issued and delivered in accordance
with the provisions of the Company's 1998 Equity Incentive Plan and the
Company's Non-Employee Directors Stock Option Plan (the "BHR Plans") and in
accordance with the Bristol Hotel Company Amended 1995 Equity Incentive Plan
and the Bristol Hotel Company Stock Option Plan for Non-Employee Directors (the
"BHC Plans") as assumed by the Company, in each case against payment of the
consideration therefor as provided in the BHR Plans and the BHC Plans and
having a value not less than par value thereof, will be validly issued, fully
paid, and nonassessable.
In rendering the foregoing opinion, we have relied as to certain
factual matters upon certificates of officers of the Company and public
officials, and we have not independently checked or verified the accuracy of
the statements contained therein. In addition, our examination of matters of
law has been limited to the General Corporation Law of the State of Delaware
and the federal laws of the United States of America, in each case as in effect
on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated February 6, 1998 (except with respect to the matter discussed in Note 20
as to which the date is March 25, 1998), on the consolidated financial
statements of the Bristol Hotel Company and to the use of our report dated
February 6, 1998 (except with respect to the matter discussed in Note 18 as to
which the date is March 25, 1998), on the consolidated financial statements of
the Bristol Hotel Asset Company (and to all references to our Firm),
incorporated by reference into the Registration Statement on Form S-8 of
Bristol Hotels & Resorts, Inc.
/s/ Arthur Andersen LLP
----------------------------
Arthur Andersen LLP
Dallas, Texas
July 24, 1998
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Bristol Hotels & Resorts, Inc. of our report dated
February 23, 1996 appearing on page F-2 of Bristol Hotel Company's Annual
Report on Form 10-K and Amended Annual Report on Form 10- K/A for the year
ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
Dallas, Texas
July 24, 1998
