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Exhibit 10.33.1.1
Execution Version
AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
MS RESORT HOLDINGS LLC,
MS RESORT ACQUISITION LLC,
MS RESORT PURCHASER LLC,
ASHFORD SAPPHIRE ACQUISITION LLC
AND
CNL HOTELS & RESORTS, INC.
DATED AS OF FEBRUARY 21, 2007
THIS AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER ,
dated as of February 21, 2007 (this " Amendment "), is
entered into by and among MS Resort Holdings LLC, a Delaware
limited liability company (" Parent "), MS Resort
Acquisition LLC, a Delaware limited liability company and a
wholly-owned subsidiary of Parent (" Sub "), MS Resort
Purchaser LLC, a Delaware limited liability company and
wholly-owned subsidiary of Parent (" Missouri "), Ashford
Sapphire Acquisition LLC, a Delaware limited liability company ("
Arizona "), and CNL Hotels & Resorts, Inc., a Maryland
corporation (the " Company "). Parent, Sub, Missouri and
Arizona are hereinafter collectively referred to as the " Buyer
Parties ".
W I T N E S S E T H:
WHEREAS,
the Buyer Parties and the Company entered into that certain
Agreement and Plan of Merger, dated as of January 18, 2007, by
and among the Buyer Parties and the Company (the " Merger
Agreement "); and
WHEREAS,
the Buyer Parties and the Company desire to amend the Merger
Agreement as provided in this Amendment.
NOW,
THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
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1.
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Amendment to Section 1.1 of the Merger
Agreement . The definition of the "Company Letter" set forth
in Section 1.1 of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
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"" Company Letter " means the letter from
the Company to the Buyer Parties dated as of January 18, 2007
as amended by that certain amendment to the Company Letter, dated
as of February 21, 2007, which letter, as amended, relates to
this Agreement and is designated therein as the Company
Letter."
The Buyer Parties and the Company hereby agree that the
amendment to the Company Letter, dated as of February 21,
2007, shall be in the form attached hereto as Exhibit A
.
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2.
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Amendment to Section 3.2(b) of the Merger
Agreement . The second sentence of Section 3.2(b) is
hereby amended and restated in its entirety as follows:
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"Upon surrender of a Certificate (or affidavits
of loss in lieu thereof) for cancellation to the Paying Agent,
together with such letter of transmittal, duly executed, and such
other documents as may reasonably be required by the Paying Agent
or, in the case of Uncertificated Shares, at or promptly following
the receipt by the Paying Agent of a duly executed letter of
transmittal and such other documents as may be required by the
Paying Agent or at such earlier time as the Company (or, if after
the Effective Time, the Surviving Entity) and Parent
shall
instruct the Paying Agent, the holder of such Certificate or
Uncertificated Shares shall be entitled to receive in exchange
therefor the amount of cash (after giving effect to any required
Tax withholdings as provided in Section 3.2(g) ) equal
to (x) the number of Shares held by such stockholder
multiplied by (y) the Per Share Merger Consideration, and any
Certificates surrendered shall forthwith be cancelled."
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3.
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WARN Notices . The Company hereby
agrees that, on or before February 23, 2007, the Company
shall, at the request of Parent, cause notices in the forms
attached hereto as Exhibit B , Exhibit C and
Exhibit D , and any supplemental notices thereafter as
required by WARN, to be provided to the respective parties set
forth in Exhibit B and Exhibit C and to
those employees of the Company that Parent shall identify to the
Company in writing. The Company hereby agrees to provide notices in
the form set forth as Exhibit E from time to time upon
two (2) Business Days notice to those employees as Parent
shall identify in writing. The Company and the Buyer Parties
acknowledge that any Change resulting from the Company’s
compliance with this Section 3 shall be excluded from any
determination as to whether a Material Adverse Effect on the
Company has occurred.
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4.
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Consent . Parent hereby consents to the
amendment by the Company of each of (a) the Employment Agreement
and (b) the Deferred Share Award Grant Notice for each of
Thomas J. Hutchison, III, John A. Griswold and C. Brian Strickland
in the forms attached hereto as Exhibit F ,
Exhibit G , Exhibit H ,
Exhibit I , Exhibit J and Exhibit K
respectively.
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5.
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Employee Bonus Program . The Company
and Buyer Parties agree to implement a bonus program for employees
of the Company substantially on the terms and in the amounts set
forth on Exhibit L hereto.
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6.
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Defined Terms . Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed
to such terms in the Merger Agreement.
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7.
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References to the Merger Agreement .
After giving effect to this Amendment, each reference in the Merger
Agreement to "this Agreement", "hereof", "hereunder" or words of
like import referring to the Merger Agreement shall refer to the
Merger Agreement as amended by this Amendment and all references in
the Company Letter to "the Agreement" and "the Merger Agreement"
shall refer to the Merger Agreement as amended by this
Amendment.
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8.
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Construction . Except as expressly
provided in this Amendment, all references in the Merger Agreement
and the Company Letter to "the date hereof" and "the date of this
Agreement" shall refer to January 18, 2007.
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9.
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Other Miscellaneous Terms . The
provisions of Article XI (General
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