CUSIP No. 46088S106
Page 9 of 20
SEC 1746 (11-02) Page 1 of 20
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)
Interstate Hotels & Resorts Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
46088S106
(CUSIP Number)
Christopher Shackelton/Adam Gray
825 Third Avenue, 36th Floor
New York, NY 10022
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 12, 2009
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of sections 240.13d-1(e), 240.13d-1(f) or
140.13d-1(g), check the following box. [ ]
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See section 240.13d-7
for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
Potential persons who are to respond to the collection of information
contained in this form are not required to respond unless the form displays
a currently valid OMB control number.
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1. Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Coliseum Capital Management, LLC
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) ______ (b) XX
3. SEC Use Only
4. Source of Funds (See Instructions) AF
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) ____
6. Citizenship or Place of Organization Delaware
Number of 7. Sole Voting Power 0
Shares
Beneficially
Owned by
Each Reporting
Person With
8. Shared Voting Power 3,740,743
9. Sole Dispositive Power 0
10. Shared Dispositive Power 3,740,743
11. Aggregate Amount Beneficially Owned by Each Reporting Person3,740,743
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See
Instructions) ______
13. Percent of Class Represented by Amount in Row (11) 11.8%
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14. Type of Reporting Person (See Instructions)
OO, IA
1. Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Coliseum Capital, LLC
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) ______ (b) XX
3. SEC Use Only
4. Source of Funds (See Instructions) AF
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) ____
6. Citizenship or Place of Organization Delaware
Number of 7. Sole Voting Power 0
Shares
Beneficially
Owned by
Each Reporting
Person With
8. Shared Voting Power 3,740,743
9. Sole Dispositive Power 0
10. Shared Dispositive Power 3,740,743
11. Aggregate Amount Beneficially Owned by Each Reporting Person3,740,743
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See
Instructions) ______
13. Percent of Class Represented by Amount in Row (11) 11.8%
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14. Type of Reporting Person (See Instructions)
OO
1. Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Coliseum Capital Partners, L.P.
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) ______ (b) XX
3. SEC Use Only
4. Source of Funds (See Instructions) WC
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) ____
6. Citizenship or Place of Organization Delaware
Number of 7. Sole Voting Power 0
Shares
Beneficially
Owned by
Each Reporting
Person With
8. Shared Voting Power 3,740,743
9. Sole Dispositive Power 0
10. Shared Dispositive Power 3,740,743
11. Aggregate Amount Beneficially Owned by Each Reporting Person3,740,743
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See
Instructions) ______
13. Percent of Class Represented by Amount in Row (11) 11.8%
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14. Type of Reporting Person (See Instructions)
PN
1. Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Adam Gray
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) ______ (b) XX
3. SEC Use Only
4. Source of Funds (See Instructions) AF
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) ____
6. Citizenship or Place of Organization United States
Number of 7. Sole Voting Power 0
Shares
Beneficially
Owned by
Each Reporting
Person With
8. Shared Voting Power 3,740,743
9. Sole Dispositive Power 0
10. Shared Dispositive Power 3,740,743
11. Aggregate Amount Beneficially Owned by Each Reporting Person3,740,743
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See
Instructions) ______
13. Percent of Class Represented by Amount in Row (11) 11.8%
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14. Type of Reporting Person (See Instructions)
IN
1. Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Christopher Shackelton
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) ______ (b) XX
3. SEC Use Only
4. Source of Funds (See Instructions) AF
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) ____
6. Citizenship or Place of Organization United States
Number of 7. Sole Voting Power 0
Shares
Beneficially
Owned by
Each Reporting
Person With
8. Shared Voting Power 3,740,743
9. Sole Dispositive Power 0
10. Shared Dispositive Power 3,740,743
11. Aggregate Amount Beneficially Owned by Each Reporting Person3,740,743
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See
Instructions) ______
13. Percent of Class Represented by Amount in Row (11) 11.8%
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14. Type of Reporting Person (See Instructions)
IN
Item 1. Security and Issuer
This statement relates to shares of Common Stock (the "Stock") of Interstate
Hotels & Resorts Inc. (the "Issuer"). The principal executive office of the
Issuer is located at 4501 North Fairfax Drive, Suite 500, Arlington, VA 22203.
Item 2. Identity and Background
The persons filing this statement and the persons enumerated in Instruction C of
Schedule 13D and, where applicable, their respective places of organization,
general partners, directors, executive officers and controlling persons, and the
information regarding them, are as follows:
(a) Coliseum Capital Management, LLC ("CCM"), Coliseum Capital, LLC
("CC"), Coliseum Capital Partners, L.P. ("CCP"), Adam Gray ("Gray")
and Christopher Shackelton ("Shackelton") (collectively, the
"Filers").
(b) The business address of the Filers is 825 Third Avenue, 36th Floor,
New York, NY 10022.
(c) Present principal occupation or employment of the Filers and the
name, principal business and address of any corporation or other
organization in which such employment is conducted:
CCM is the Investment Adviser to, and CC is the General Partner of,
CCP, an investment limited partnership. Gray and Shackelton are the
Managers of CCM and CC.
(d) During the last five years, none of the Filers has been convicted in
a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, none of the Filers was a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to
a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
(f) The citizenship of the Filers is listed on the cover page herein.
Item 3. Source and Amount of Funds or Other Consideration
The source and amount of funds used in purchasing the Stock were as follows:
Purchaser Source of Funds Amount
CCP Working Capital $ 11,825,511.04
CCM Funds under Management(1) $ 11,825,511.04
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(1) Includes funds of CCP invested in Stock.
Item 4. Purpose of Transaction
On February 12, 2009, Christopher Shackelton was appointed to the Board of
Directors of the Issuer. The Filers acquired the Stock for investment purposes,
and such purposes were made in the Filers' ordinary course of business. In
pursuing such investment purposes (subject to the Agreement referred to below
and any applicable restriction arising from Mr. Shackelton becoming a Director),
the Filers may further purchase, hold, vote, trade, dispose or otherwise deal in
the Stock at times, and in such manner, as they deem advisable to benefit from
changes in market prices of such Stock, changes in the Issuer's operations,
business strategy or prospects, or from sale or merger of the Issuer. To
evaluate such alternatives, the Filers routinely will monitor the Issuer's
operations, prospects, business development, management, competitive and
strategic matters, capital structure, and prevailing market conditions, as well
as alternative investment opportunities, liquidity requirements of the Filers
and other investment considerations. Consistent with their investment research
methods and evaluation criteria, the Filers may discuss (subject to the
Agreement referred to below and any applicable restriction arising from Mr.
Shackelton becoming a Director) such matters with management or directors of the
Issuer, other shareholders, industry analysts, existing or potential strategic
partners or competitors, investment and financing professionals, sources of
credit and other investors. Such factors and discussions may materially affect,
and result in, the Filers' modifying their ownership of the Stock, exchanging
information with the Issuer pursuant to appropriate confidentiality or similar
agreements, proposing changes in the Issuer's operations, governance or
capitalization, or in proposing one or more of the other actions described in
paragraphs (a) through (j) of item 4 of Schedule 13D (subject to the Agreement
referred to below and any applicable restriction arising from Mr. Shackelton
becoming a Director).
CC, CCM and CCP have entered into an Agreement with the Issuer dated February
12, 2009 (a copy of which is attached as Exhibit B), which relates to (a) the
Board of Directors of the Issuer appointing Mr. Shackelton to serve as a
Director, and (b), CC, CCM and CCP agreeing to not acquire 35% or more of the
Stock.
The Filers reserve the right to formulate other plans and/or make other
proposals, and take such actions with respect to their investment in the Issuer,
including any or all of the actions set forth in paragraphs (a) through (j) of
Item 4 of Schedule 13D, or acquire additional Stock or dispose of all Stock
beneficially owned by them, in public market or privately negotiated
transactions (subject to the Agreement referred to above and any applicable
restriction arising from Mr. Shackelton becoming a Director). The Filers may at
any time reconsider and change their plans or proposals relating to the
foregoing (subject to the Agreement referred to above and any applicable
restriction arising from Mr. Shackelton becoming a Director).
Item 5. Interest in Securities of the Issuer
The beneficial ownership of the Stock by each Filer at the date hereof is
reflected on that Filer's cover page.
Except as indicated, the Filers effected the following transactions in the Stock
in open market transactions on the dates indicated, and such transactions are
the only transactions in the Stock by the Filers since December 15, 2008:
Name Purchase or Date Number of Price Per Share
Sale Shares
CCP P 12/18/2008 137,600 0.62
CCM P 12/18/2008 68,800 0.62
CCP P 12/19/2008 711 0.64
CCM P 12/19/2008 2,733 0.64
CCP P 12/19/2008 5,467 0.67
CCM P 12/19/2008 355 0.67
CCP P 12/29/2008 66,667 0.50
CCM P 12/29/2008 33,333 0.50
CCM * 1/29/2009 1,775,840 N/A
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* Reduction in beneficial ownership due to elimination of voting and dispositive
authority under an investment management agreement between CCM and a client of
CCM.
Item 6.Contracts, Arrangement, Understandings or Relationships with Respect
to Securities of the Issuer
CCM is an investment adviser whose clients, including CCP, have the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the Stock. CC is the general partner of CCP. Gray and
Shackelton are the managers of CC and CCM.
Item 7. Material to Be Filed as Exhibits
Agreement Regarding Joint Filing of Statement on Schedule 13D or 13G set forth
in Exhibit A.
Agreement between CC, CCM, CCP and the Issuer dated as of February 12, 2009, set
forth in Exhibit B.
SIGNATURES
After reasonable inquiry and to the best of my knowledge, I certify that the
information set forth in this statement is true, complete and correct.
Dated: February 13, 2009
COLISEUM CAPITAL MANAGEMENT, LLC COLISEUM CAPITAL, LLC
By: Christopher Shackelton, Manager By: Adam Gray, Manager
COLISEUM CAPITAL PARTNERS, L.P.
Christopher Shackelton
By: Coliseum Capital, LLC, General
Partner Adam Gray
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By: Adam Gray, Manager
SEC 1746 (11-02) Page 20 of 20
EXHIBIT A
AGREEMENT REGARDING JOINT FILING
OF STATEMENT ON SCHEDULE 13D OR 13G
The undersigned agree to file jointly with the Securities and Exchange
Commission (the "SEC") any and all statements on Schedule 13D or Schedule 13G
(and any amendments or supplements thereto) required under section 13(d) of the
Securities Exchange Act of 1934, as amended, in connection with purchases by the
undersigned of the common stock of Interstate Hotels & Resorts Inc.. For that
purpose, the undersigned hereby constitute and appoint Coliseum Capital
Management, LLC, a Delaware limited liability company, as their true and lawful
agent and attorney-in-fact, with full power and authority for and on behalf of
the undersigned to prepare or cause to be prepared, sign, file with the SEC and
furnish to any other person all certificates, instruments, agreements and
documents necessary to comply with section 13(d) and section 16(a) of the
Securities Exchange Act of 1934, as amended, in connection with said purchases,
and to do and perform every act necessary and proper to be done incident to the
exercise of the foregoing power, as fully as the undersigned might or could do
if personally present.
Dated: February 13, 2009
COLISEUM CAPITAL MANAGEMENT, LLC COLISEUM CAPITAL, LLC
By: Christopher Shackelton, Manager By: Adam Gray, Manager
COLISEUM CAPITAL PARTNERS, L.P.
By: Coliseum Capital, LLC, General Christopher Shackelton
Partner
By: Adam Gray, Manager
Adam Gray
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EXHIBIT B
AGREEMENT BETWEEN CC, CCM, CCP AND THE ISSUER
DATED AS OF FEBRUARY 12, 2009
AGREEMENT
This Agreement, dated February 12, 2009 (this "Agreement"), is entered
into by and among the persons listed on Schedule A (collectively, the "Coliseum
Group", and each individually, a "member" of the Coliseum Group) and Interstate
Hotels & Resorts, Inc. (the "Company").
WHEREAS, as of the date hereof, the members of the Coliseum Group own of
record and/or beneficially an aggregate of 3,740,743 shares of the Company's
common stock, par value $0.01 per share ("Common Stock") and the Company has a
vacancy on its Board of Directors that the parties wish to fill with a designee
of the Coliseum Group; and
WHEREAS, each of the Company and the Coliseum Group has determined that it
is in its best interests to enter into this Agreement.
NOW, THEREFORE, in consideration of and reliance upon the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Board Appointment; Board Nomination.
(a) Except as otherwise required by any applicable laws, rules or regulations
(including any securities exchange regulations), the Company agrees that (i) as
soon as practicable after the date hereof but no later than February 15, 2009
the Board of Directors of the Company (the "Board"), at a duly convened meeting,
will take all necessary action to appoint Christopher Shackelton (the "Coliseum
Nominee") to serve as a director of the Company in the class of directors whose
term expires at the 2009 annual meeting of the Company's stockholders (the "2009
Annual Meeting") and (ii) the Board will take all necessary action to nominate
and recommend to its stockholders for election, at the 2009 Annual Meeting, the
Coliseum Nominee to the class of directors whose term expires at the 2012 annual
meeting of the Company's stockholders and, in furtherance thereof, the Company
shall give no less scope and degree of support to and use no less efforts to
encourage its stockholders to vote in favor of the Coliseum Nominee at the 2009
Annual Meeting than the Company gives with respect to any other person that is
nominated and recommended by the Board for election to the Board at the 2009
Annual Meeting of the Company's stockholders.
(b) At such time as the Coliseum Nominee shall become a director of the Company,
the Coliseum Nominee shall irrevocably agree in writing to be bound by the terms
and conditions of the Company's policies applicable to directors from time to
time, including, without limitation, the Company's Code of Conduct and Ethics,
Business Code of Conduct, Corporate Governance Guidelines, International
Compliance Manual and insider trading policies. For the avoidance of doubt, as a
director, the Coliseum Nominee shall be subject to and entitled to the same
standards and considerations as the other directors on the Board for purposes of
determining his rights and obligations as a director, including with respect to
indemnification, insurance and director compensation.
(c) Notwithstanding anything to the contrary in this Agreement, if at any time
after the date hereof (i) the Coliseum Group shall cease collectively to
beneficially own at least seven percent (7%) or, in the event the Company issues
additional Common Stock that dilutes the beneficial ownership of the Coliseum
Group, five percent (5%) of the then-outstanding Common Stock, or (ii) any
member of the Coliseum Group or any affiliate thereof (such affiliates,
collectively and individually, the "Coliseum Affiliates") shall have materially
breached or otherwise materially violated any provision of this Agreement or any
other material agreement between such person and the Company (including any
confidentiality agreement) and the Board shall by a vote (or written consent)
have determined such breach or violation to have occurred, (x) the Coliseum
Group shall cause the Coliseum Nominee to promptly tender his resignation from
the Board and (y) the Company shall be relieved of all obligations under this
Section 1 other than with respect to any indemnification or insurance
obligations for service prior to such resignation. In furtherance of this
Section 1(c), the Coliseum Nominee, upon his appointment to the Board, shall
execute an irrevocable resignation as director in the form attached hereto as
Exhibit A.
(d) The Company represents, warrants and covenants as follows:
(i) The Company has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement;
(ii) This Agreement and the consummation of the transactions contemplated hereby
have been duly authorized, executed and delivered by the Company and constitutes
a legal, valid and binding obligation, enforceable against the Company in
accordance with its terms;
(iii) No governmental, regulatory or other approval, authorization, clearance,
consent, filing, license, notification or registration with, to or from any
person, including any governmental or regulatory authority, is required in order
to permit the Company to perform its obligations under this Agreement, other
than with respect to any necessary filings to be made by the Company pursuant to
any federal securities laws and any necessary meetings and approvals of the
stockholders of the Company and the Board with respect to the transactions
described herein.
2. Representation and Warranties. Each member of the Coliseum Group hereby
jointly and severally represents, warrants and covenants to the Company as
follows:
(a) Each member has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement;
(b) This Agreement and the consummation of the transactions contemplated hereby
have been duly authorized, executed and delivered by each member of the Coliseum
Group and constitutes a legal, valid and binding obligation, enforceable against
such member in accordance with its terms;
(c) No governmental, regulatory or other approval, authorization, clearance,
consent, filing, license, notification or registration with, to or from any
person, including any governmental or regulatory authority, is required in order
to permit any member of the Coliseum Group to perform its obligations under this
Agreement, other than with respect to any necessary filing to be made by any
member of the Coliseum Group pursuant to Section 13 or 16 of the Exchange Act.
(d) Schedule B sets forth a true, correct and complete list of (i) all
Securities (as defined in Section 16) beneficially owned by any member of the
Coliseum Group or any Coliseum Affiliate, (ii) all derivative contracts,
derivative securities or derivative transactions to which any member of the
Coliseum Group or any Coliseum Affiliate is a party and which gives such member
or such Coliseum Affiliate the economic or voting equivalent of ownership of
Securities, (iii) any derivative contracts, derivative securities or derivative
transactions to which any member of the Coliseum Group or any Coliseum Affiliate
is a party and which reduces such member's or such Coliseum Affiliate's economic
or voting interest in any Securities, (iv) any Securities that any member of the
Coliseum Group or any Coliseum Affiliate owns or has title to that are subject
to a repurchase or similar borrowing agreement or arrangement and (v) any proxy
(including any revocable proxy), contract, arrangement or understanding (whether
or not binding) pursuant to which any member of the Coliseum Group or any
Coliseum Affiliate has or may have a right to vote or acquire any Securities or
pursuant to which such member or Coliseum Affiliate has or may have granted a
right to vote or acquire any Securities. In the event that any of the
information in Schedule B (as Schedule B may be revised hereunder, from time to
time, after the date hereof) is or becomes incomplete or incorrect at any time
on or after the date hereof, the Coliseum Group shall, to the extent not filed
when due with the SEC pursuant to federal securities laws, promptly (and in any
event within 3 business days thereof) provide a revised Schedule B to the
Company, together with a certificate executed by each member of the Coliseum
Group certifying that such revised Schedule B sets forth a true, correct and
complete list of the items described in clauses (i) through (v) above as of the
date such revised Schedule B is delivered to the Company (it being understood
and agreed that no such revisions to Schedule B shall affect any remedies of the
Company hereunder for any breaches or other violations of this Agreement).
(e) Each member of the Coliseum Group and each Coliseum Affiliate has filed and
shall use all reasonable commercial efforts to timely file with the SEC all
reports, schedules, forms, certifications and other documents (including
exhibits and all other information incorporated by reference therein) required
to be filed by such person with respect to Securities (the "Coliseum Reports").
The Coliseum Reports were prepared and will be prepared (when filed after the
execution of this Agreement) in all material respects in accordance with the
requirements of the Securities Act of 1933, as amended (the "Securities Act")
and the Exchange Act, and did not at the time they were filed and will not, when
filed after the execution of this Agreement, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
3. Standstill. From the date of this Agreement until the End Date (as defined in
Section 16), no member of the Coliseum Group shall, and the Coliseum Group shall
cause each Coliseum Affiliate not to, directly or indirectly:
(a) other than as a Board member with respect to actions approved in advance by
the Board, solicit proxies or written consents of holders of Securities, or any
other person with the right to vote or power to give or withhold consent in
respect of Securities, or conduct, encourage, participate, or engage in any
other type of referendum (binding or non-binding) with respect to, or from the
holders of Securities or any other person with the right to vote or power to
give or withhold consent in respect of Securities, make, or in any way
participate or engage in (other than by voting its shares of Common Stock in a
manner that does not violate this Agreement), any "solicitation" of any proxy,
consent or other authority to vote any Securities, with respect to any matter,
call or seek to have called any meeting of the stockholders of the Company for
any purpose, or become a participant in any contested solicitation with respect
to the Company or its subsidiaries, including without limitation relating to the
removal or the election of directors; provided, that the restriction in this
clause (a) shall not restrict any member of the Coliseum Group from (i) voting
any Securities that it beneficially owns and is entitled to vote in any
transaction to be voted upon by the Company's stockholders or (ii) providing
investment management advice pursuant to a bona fide iinvestment management
agreement the existence of which has been disclosed to the Company on or prior
to the date hereof;
(b) acquire any Securities (except by way of stock dividends or other
distributions or offerings made available to holders of Common Stock generally);
provided that, subject to the terms and conditions of this Agreement, the
members of the Coliseum Group may acquire additional shares of Common Stock
unless and until any such acquisition, together with all Common Stock then owned
by the Coliseum Group and the Coliseum Affiliates in the aggregate, would result
in ownership of Common Stock by the Coliseum Group and the Coliseum Affiliates
in the aggregate equal to or in excess of 35% of the Common Stock then
outstanding;
(c) form or join in a group as defined under Section 13(d) of the Exchange Act,
with respect to Securities, or otherwise support, encourage or participate in
any effort by a third party with respect to the matters set forth in this
Section 3, or deposit any Securities in a voting trust or subject any Securities
to any voting agreement, other than solely with other members of the Coliseum
Group with respect to Securities now or hereafter owned by them or pursuant to
this Agreement; provided, that the restriction in this clause (c) shall not
restrict any member of the Coliseum Group from voting any Securities that it
beneficially owns and is entitled to vote in any transaction to be voted upon by
the Company's stockholders;
(d) without the prior approval of the Board contained in a written resolution of
the Board (including as a Board member pursuant to authority expressly conveyed
in advance by the Board), either directly or indirectly for itself or its
affiliates, or in conjunction with any other person in which it is or proposes
to be either a principal, partner or financing source or is acting or proposes
to act as broker or agent for compensation, effect or seek, offer or propose
(whether publicly or otherwise) to effect, or cause or participate in, or in any
way support, assist or facilitate any other person to effect or seek, offer or
propose to effect, or cause or participate in, any (i) tender offer or exchange
offer, merger, acquisition or other business combination involving the Company
or any of its subsidiaries or affiliates, (ii) any form of business combination
or acquisition or other transaction relating to a material amount of assets or
securities of the Company or any of its subsidiaries or affiliates or (iii) any
form of restructuring, reorganization, recapitalization or similar transaction
with respect to the Company or any of its subsidiaries or affiliates; provided
that, subject to the terms and conditions of this Agreement, the members of the
Coliseum Group may acquire additional shares of Common Stock unless and until
any such acquisition, together with all Common Stock then owned by the Coliseum
Group and the Coliseum Affiliates in the aggregate, would result in ownership of
Common Stock by the Coliseum Group and the Coliseum Affiliates in the aggregate
equal to or in excess of 35% of the Common Stock then outstanding; provided,
that the restriction in this clause (d) shall not restrict any member of the
Coliseum Group from (i) voting any Securities that it beneficially owns and is
entitled to vote in any transaction to be voted upon by the Company's
stockholders or (ii) as a Board member, engaging in private discussions with the
Board regarding a potential transaction, in each case, on a strictly
confidential basis in circumstances that would not reasonably be expected to
require public disclosure by the Company or any member of the Coliseum Group;
(e) other than as a Board member with respect to actions approved in advance by
the Board, take or fail to take any action for the purpose of requiring the
Company to make a public announcement regarding the possibility of a business
combination, merger or other strategic alternative or a process related to any
of the foregoing, in any case involving the Company or any of its subsidiaries;
provided, that the restriction in this clause (e) shall not restrict any member
of the Coliseum Group from voting any Securities that it beneficially owns and
is entitled to vote in any transaction to be voted upon by the Company's
stockholders;
(f) other than as a Board member with respect to actions approved in advance by
the Board, arrange, or in any way participate in, any financing for the purchase
of any assets of the Company or any of its subsidiaries; provided, that the
restriction in this clause (f) shall not restrict any member of the Coliseum
Group from (i) voting any Securities that it beneficially owns and is entitled
to vote in any transaction to be voted upon by the Company's stockholders or
(ii) as a Board member, engaging in private discussions with the Board regarding
a potential transaction, in each case, on a strictly confidential basis in
circumstances that would not reasonably be expected to require public disclosure
by the Company or any member of the Coliseum Group;
(g) other than as a Board member with respect to actions approved in advance by
the Board, publicly disclose any intention, plan or arrangement inconsistent
with any of the foregoing;
(h) other than as a Board member with respect to actions approved in advance by
the Board, propose or agree to do or propose any of the foregoing, or advise,
assist, encourage or facilitate any third party in taking any action with
respect to any of the foregoing; provided, that the restriction in this clause
(h) shall not restrict any member of the Coliseum Group from (i) voting any
Securities that it beneficially owns and is entitled to vote in any transaction
to be voted upon by the Company's stockholders or (ii) as a Board member,
engaging in private discussions with the Board regarding a potential
transaction, in each case, on a strictly confidential basis in circumstances
that would not reasonably be expected to require public disclosure by the
Company or any member of the Coliseum Group; or
(i) request to amend, waive or terminate any provision of this Agreement
(including, without limitation, any provision of this Section 3) provided that
the restriction in this clause (i) shall not restrict any member of the Coliseum
Group, as a Board member, from engaging in private discussions with the Board
regarding a potential transaction, in each case, on a strictly confidential
basis in circumstances that would not reasonably be expected to require public
disclosure by the Company or any member of the Coliseum Group.
4. Public Announcement. The Company shall announce this Agreement and the
material terms hereof by means of a press release in the form attached hereto as
Exhibit B (the "Press Release") as soon as practicable on or after the date
hereof. The Coliseum Group shall not, and shall cause the Coliseum Affiliates to
not, make any public announcement or statement that is inconsistent with or
contrary to the statements made in the Press Release except with the prior
written consent of the Company.
5. Confidentiality Agreement. The Company hereby agrees that commencing on or
promptly after the date hereof, as soon as it is in receipt from the Coliseum
Nominee of an executed confidentiality agreement in the form attached hereto as
Exhibit C-1, it may share with the Coliseum Nominee, information that it shares
with directors and that thereafter, the Coliseum Nominee is permitted to and may
provide confidential information, other than confidential information that may
be privileged, to any member of the Coliseum Group that executes a
confidentiality agreement in the form attached hereto as Exhibit C-2 in
accordance with the terms thereof.
6. Trading on Material Non-Public Information. Each member of the Coliseum Group
hereby acknowledges that it is aware of and that it has advised each of its
respective representatives and each Coliseum Affiliate that, under certain
circumstances, applicable securities laws may prohibit a person who has received
material, non-public information from an issuer from purchasing or selling
securities of such issuer or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such other
person is likely to purchase or sell such securities. Each member of the
Coliseum Group further acknowledges that it will not, and will cause the
Coliseum Affiliates to not, trade in any Securities or engage in any derivative
or other transaction with respect to Securities in violation of any law, rule or
regulation.
7. Miscellaneous. The parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement exclusively in the Court of Chancery
or other federal or state courts of the State of Delaware, in addition to any
other remedy to which they are entitled at law or in equity. Furthermore, each
of the parties hereto (a) consents to submit itself to the personal jurisdiction
of the Court of Chancery or other federal or state courts of the State of
Delaware in the event any dispute arises out of this Agreement or the
transactions contemplated by this Agreement, (b) agrees that it shall not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (c) agrees that it shall not bring any action
relating to this Agreement or the transactions contemplated by this Agreement in
any court other than the Court of Chancery or other federal or state courts of
the State of Delaware, and each of the parties irrevocably waives the right to
trial by jury, (d) agrees to waive any bonding requirement under any applicable
law, in the case any other party seeks to enforce the terms by way of equitable
relief and (e) irrevocably consents to service of process by a reputable
overnight mail delivery service, signature requested, to the address of such
parties' principal place of business or as otherwise provided by applicable law.
THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION
VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE
WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.
8. No Waiver; Amendment. Any waiver by any party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. No provision of this agreement
can be amended or waived except by written consent of the other parties, which
consent shall specifically refer to such amended or waived provision and
explicitly make such amendment or waiver, it being understood and agreed that
any amendment or waiver hereof by the Company shall require advance written
approval by a majority of the disinterested directors.
9. Entire Agreement. This Agreement and the confidentiality agreements contain
the entire understanding of the parties with respect to the subject matter
hereof and may be amended only by an agreement in writing executed by the
parties hereto. Each of the Exhibits and Schedules attached hereto are
incorporated into this Agreement and by this reference are made a part hereof.
10. Notices. All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be in writing and shall be deemed validly given, made or served, if (a) given by
facsimile or email, when such facsimile or email is transmitted to the facsimile
number set forth below or sent to the email address set forth below and the
appropriate confirmation is received or (b) if given by any other means, when
actually received during normal business hours at the address specified in this
subsection:
if to the Company:
Interstate Hotels & Resorts, Inc.
4501 North Fairfax Drive, Suite 500
Arlington, VA 22203
Attention: Christopher L. Bennett, Esq.
Facsimile: (703) 542-0965
Email: Chris.Bennett@ihrco.com
With a copy to (which shall not constitute notice):
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Attention: Kelley D. Parker, Esq.
Facsimile: (212) 757-3990
Email: KParker@paulweiss.com
if to any member of the Coliseum Group:
c/o Coliseum Capital Management
825 Third Avenue, 36th Floor
New York, NY 10022
Attention: [_____________]
Facsimile: [_____________]
Email: [_____________]
With a copy to (which shall not constitute notice):
Shartsis Friese LLP
One Maritime Plaza, 18th Floor
San Francisco, CA 94111
Attention: Christopher J. Rupright, Esq.
P. Rupert Russell, Esq. Facsimile: (415) 421-2922
Email: crupright@sflaw.com
rrussell@sflaw.com
11. Severability. If at any time subsequent to the date hereof, any provision of
this Agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon the legality or enforceability of any other provision of this Agreement.
12. Counterparts. This Agreement may be executed in two or more counterparts
which together shall constitute a single agreement.
13. Successors and Assigns. This Agreement shall not be assignable by any member
of the Coliseum Group. This Agreement, however, shall be binding on successors
of the members of the Coliseum Group.
14. No Third Party Beneficiaries. This Agreement is solely for the benefit of
the parties hereto and is not enforceable by any other persons; provided that
Christopher Shackleton is an express third party beneficiary of the last
sentence of Section 1(b) hereof with respect to his service as a director.
15. Fees and Expenses. Neither the Company, on the one hand, nor the Coliseum
Group, on the other hand, will be responsible for any fees or expenses of the
other in connection with the negotiation and execution of this Agreement.
16. Definitions. For purposes of this Agreement, the term
(a) "affiliate" shall have the meaning set forth in Rule 12b-2 promulgated by
the Securities and Exchange Commission (the "SEC") under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (for purposes of this Agreement,
neither the Company nor any of its subsidiaries, nor any person (that is
otherwise not an affiliate of the Coliseum Group) with whom any member of the
Coliseum Group has entered into an investment management agreement where no
member of the Coliseum Group is a beneficial owner of any Securities subject to
such investment management agreement, shall be considered an affiliate of any
member of the Coliseum Group);
(b) "beneficially own" or "beneficial owner" shall have the meanings ascribed to
them in Rule 13d-3 of the Exchange Act as in effect on the date of this
Agreement;
(c) "DGCL" means the General Corporation Law of the State of Delaware (as
amended, from time to time, and any successor thereto).
(d) "End Date" means the later of (i) the first (1st) anniversary of the date of
this Agreement and (ii) the first (1st) anniversary of the date on which the
Coliseum Nominee ceases to be a director of the Company.
(e) "person" or "persons" shall mean any individual, corporation (including
not-for-profit), general or limited partnership, limited liability or unlimited
liability company, joint venture, estate, trust, association, organization or
other entity of any kind or nature;
(f) "Securities" shall mean the Common Stock and any other securities or
indebtedness, of any type or class, of the Company or its subsidiaries, whether
or not entitled to vote in the election of directors, and any securities
convertible into, or exercisable or exchangeable for Common Stock or such other
securities or indebtedness, whether or not subject to the passage of time or
other contingencies.
17. Interpretation and Construction. Each of the parties hereto acknowledges
that it has been represented by counsel of its choice throughout all
negotiations that have preceded the execution of this Agreement, and that it has
executed the same with the advice of said independent counsel. Each party and
its counsel cooperated and participated in the drafting and preparation of this
Agreement and the documents referred to herein, and any and all drafts relating
thereto exchanged among the parties shall be deemed the work product of all of
the parties and may not be construed against any party by reason of its drafting
or preparation. Accordingly, any rule of law or any legal decision that would
require interpretation of any ambiguities in this Agreement against any party
that drafted or prepared it is of no application and is hereby expressly waived
by each of the parties hereto, and any controversy over interpretations of this
Agreement shall be decided without regards to events of drafting or preparation.
The section headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
18. Acknowledgements. Notwithstanding anything to the contrary in this Agreement
(including Section 3), each of the members of the Coliseum Group (including the
Coliseum Nominee) hereby acknowledges and agrees that: (i) prior to the
execution of this Agreement, (A) one or more members of the Coliseum Group
and/or one or more affiliates thereof, individually and/or collectively with one
or more of such other person(s), owned (as defined in Section 203 of the DGCL)
15% or more of the outstanding voting stock (as defined in Section 203 of the
DGCL) of the Company without the prior approval of the Board with respect to the
transaction(s) resulting in such ownership and (B) in accordance with Section
203(b)(5) of the DGCL, such persons reduced their ownership of outstanding
voting stock of the Company below 15%; (ii) if at any time after the execution
of this Agreement one or more members of the Coliseum Group and/or one or more
affiliates thereof, individually or collectively with any such other person(s),
owns (as defined in Section 203 of the DGCL) 15% or more of the outstanding
voting stock (as defined in Section 203 of the DGCL) of the Company, (A) the
transaction pursuant to which such person(s) acquires or thereafter owns such
percentage of the outstanding voting stock shall, for purposes of Section 203 of
the DGCL, be deemed the transaction which resulted in such person(s) becoming an
interested stockholder (as defined in Section 203 of the DGCL) and (B)
thereupon, each such person shall be an interested stockholder that became such
an interested stockholder in a transaction that was not approved by the Board
and shall be subject to the restrictions set forth in Section 203 of the DGCL;
and (iii)(A) it will not, and will cause its and its affiliates' respective
officers, directors, employees, members, stockholders, partners, agents,
representatives and advisors (including attorneys) not to, directly or
indirectly, bring, participate in or otherwise support or encourage (including
by making any admission or agreement or failing to take any action) any claim or
cause of action before any court, arbitrator, or other tribunal in any
jurisdiction, whether as a claim, cross-claim, counterclaim or otherwise, that
(x) includes any allegation, admission or assertion, directly or indirectly,
that any member of the Coliseum Group or any affiliate thereof was on the date
hereof, or became as a result of the appointment and/or election of the Coliseum
Nominee in accordance with the terms of this Agreement, an interested
stockholder or (y) is otherwise inconsistent, in any way, with the
acknowledgements and agreements in this Section 18, (B) the Company may plead
this Agreement as a complete bar to any such claim or cause of action brought in
derogation of the foregoing and (C) for purposes of any injunctive relief or
specific performance that the Company may seek to prevent breaches of or to
enforce this Agreement, irreparable harm would result to the Company and its
stockholders if any member of the Coliseum Group and/or any one or more of their
affiliates breached or otherwise violated this Section 18.
19. Further Assurances. Each party shall execute and deliver such additional
instruments and other documents and shall take such further action as may be
necessary or appropriate to effectuate, carry out and comply with all of its
respective obligations under this Agreement. Nothing in this Agreement, express
or implied, shall restrict or prevent or be deemed or interpreted to restrict or
prevent, in any manner whatsoever, the Company or any of its subsidiaries from,
directly or indirectly, issuing any Securities (whether by private placement,
public offering or otherwise), repurchasing or redeeming any Securities,
conducting any tender or exchange offer for any Securities, completing or
agreeing to any transaction involving any merger, consolidation or
recapitalization, adopting or implementing or proposing to adopt or implement
any shareholder rights plan, establishing one or more holding companies or
subsidiaries, transferring, exchanging, pledging or otherwise disposing of any
economic, voting or other rights in or to any Securities or any assets or
liabilities of the Company or any of its subsidiaries, or completing any
transaction or series or group of related transactions similar to any of the
foregoing, nor shall anything in this Agreement, express or implied, require or
obligate or be deemed or interpreted to require or obligate, in any manner
whatsoever, the Company or any of its subsidiaries, to do, directly or
indirectly, any of the foregoing.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused the same to be executed by its duly authorized
representative as of the date first above written.
INTERSTATE HOTELS & RESORTS, INC.
By:
Name:
Title:
Coliseum Capital Management, LLC
By:
Name:
Title:
Coliseum Capital, LLC
By: ________________________________
Name:
Title:
Coliseum Capital Partners, L.P.
By: ___________________________
Name:
Title:
Q:EDGAR EasePlus7107 ColiseumIHR FilingsIHR 13gihr13g.rtf
Interstate Hotels (NYSE:IHR)
過去 株価チャート
から 6 2024 まで 7 2024
Interstate Hotels (NYSE:IHR)
過去 株価チャート
から 7 2023 まで 7 2024