EXHIBIT 4.3
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AMENDMENT NO. 3
TO
RIGHTS AGREEMENT
THIS AMENDMENT NO. 3 TO RIGHTS AGREEMENT (this "Amendment") is entered
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into as of November 23, 1998, between HOST MARRIOTT CORPORATION (the "Company"),
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and THE BANK OF NEW YORK (the "Rights Agent").
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WHEREAS, the Company and the Rights Agent are party to a Rights
Agreement, dated as of February 3, 1989 (as amended by the Amendment No. 1 to
Rights Agreement, dated as of October 8, 1993, and the Amendment No. 2 to Rights
Agreement, dated as of November 3, 1998, the "Rights Agreement");
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WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement on the terms and conditions hereinafter set forth; and
WHEREAS, for purposes of this Amendment, capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Rights Agreement, as amended by this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Certain Definitions. Section 1 of the Rights Agreement is amended
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as follows:
(A) by adding the following sentence at the end of subsection 1(f)
thereof:
"Notwithstanding anything contained in this Section 1(f), neither HMC,
Host LP nor any of their Affiliates or Associates shall be deemed to
be the Beneficial Owner of, nor to beneficially own, any of the Common
Stock solely by virtue of the approval, execution or delivery of the
REIT Merger Agreement or the consummation of the REIT Merger or any of
the other transactions contemplated by the REIT Merger Agreement."
(B) by adding the following new subsections after the existing
subsection 1(qq):
"(rr) "HMC" shall mean HMC Merger Corporation, a Maryland
corporation and wholly owned subsidiary of the Company.
(ss) "Host LP" shall mean Host Marriott, L.P., a Delaware limited
partnership and wholly owned subsidiary of the Company.
(tt) "REIT Conversion" shall mean the proposed conversion of the
Company into a real estate investment trust.
(uu) "REIT Merger" shall mean the merger of the Company with and
into HMC pursuant to the REIT Merger Agreement.
(vv) "REIT Merger Agreement" shall mean the Agreement and Plan of
Merger by and among the Company, HMC and Host LP, to be executed in
connection with the REIT Conversion.
(ww) "Surviving Corporation" shall mean HMC, as the surviving
corporation of the REIT Merger.
(xx) "HMC Rights Agreement" shall mean a Rights Agreement by and
between HMC and the Rights Agent, or another rights agent, to be
implemented prior to the REIT Conversion."
2. Conversion Upon REIT Merger; Merger with HMC. The Rights
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Agreement is amended by inserting the following Sections 34 and 35 immediately
after the existing Section 33 of the Rights Agreement:
"Section 34. Conversion Upon REIT Merger"
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In connection with the REIT Conversion, each Right shall be converted,
as of the effective time of the REIT Merger, into one preferred stock
purchase right of the Surviving Corporation, issued pursuant to, and
subject to the terms and conditions of, the HMC Rights Agreement, the
terms of which shall be in substantially the same form as shall have
been reviewed by the Board of Directors of the Company prior to the
execution of this Amendment, together with such changes, additions
and/or deletions as the appropriate officers of the Surviving
Corporation determine to be necessary and appropriate (such
determination to be conclusively, but not exclusively, evidenced by
the execution and delivery of the HMC Rights Agreement of the
Surviving Corporation by such officer(s)). The Company shall cause
HMC to enter into the HMC Rights Agreement prior to the consummation
of the REIT Merger.
Section 35. Merger with HMC.
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Notwithstanding anything contained in this Agreement to the contrary,
none of the approval, execution or delivery of the REIT Merger
Agreement or the consummation of the REIT Merger or any of the other
transactions contemplated by the REIT Merger Agreement shall cause (i)
HMC, Host LP or any of their Affiliates or Associates to be deemed an
Acquiring Person, (ii) a Stock Acquisition Date to occur, (iii) a
Distribution Date to occur, or (iv) a Triggering Event to occur."
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3. Benefits. Nothing in the Rights Agreement, as amended by this
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Amendment, shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Rights Certificates (and, prior
to the Distribution Date, the registered holders of the Common Stock) any legal
or equitable right, remedy or claim under the Rights Agreement, as amended by
this Amendment; but the Rights Agreement, as amended by this Amendment, shall be
for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock).
4. Descriptive Headings. Descriptive headings of the several
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Sections of this Amendment are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
5. Governing Law. This Amendment shall be deemed to be a contract
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made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State.
6. Other Terms Unchanged. The Rights Agreement, as amended by this
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Amendment, shall remain and continue in full force and effect and is in all
respects agreed to, ratified and confirmed hereby. Any reference to the Rights
Agreement after the date first set forth above shall be deemed to be a reference
to the Rights Agreement, as amended by this Amendment.
7. Counterparts. This Amendment may be executed in any number of
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counterparts. It shall not be necessary that the signature of or on behalf of
each party appears on each counterpart, but it shall be sufficient that the
signature of or on behalf of each party appears on one or more of the
counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in any proof of this Amendment to produce
or account for more than a number of counterparts containing the respective
signatures of or on behalf of all of the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the day and year first above written.
Attest: HOST MARRIOTT CORPORATION
By: /s/ Susan E. Wallace By: /s/ Christopher G. Townsend
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Name: Susan E. Wallace Name: Christopher G. Townsend
Title: Assistant Corporate Secretary Title: Senior Vice President,
General Counsel and
Corporate Secretary
Attest: THE BANK OF NEW YORK
By: /s/ Karol Mantz By: /s/ Ralph Chianese
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Name: Karol Mantz Name: Ralph Chianese
Title: Vice President Title: Vice President
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