Amendment No. 1 to
the
Amended and Restated Stockholder Protection Rights
Agreement
This Amendment No. 1, dated as of
October 15, 2009 (this “ Amendment ”), to
the Amended and Restated Stockholder Protection Rights Agreement,
dated as of October 1, 2009 (the “ Rights
Agreement ”), between the Morgans Hotel Group Co. (the
“ Company ”) and Mellon Investors Services LLC,
as rights agent (the “ Rights Agent ”).
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Rights Agreement.
WHEREAS, pursuant to Section 5.4 of the
Rights Agreement, the Company may amend the Rights Agreement in any
respect prior to the Flip-in Date without the consent of the
holders of Rights;
WHEREAS, the
Flip-in Date, as defined in the Rights Agreement, has not occurred;
and
WHEREAS, the
Company would like to amend Section 1.1 of the Rights
Agreement.
NOW, THEREFORE, the Company and the Rights Agent
hereby agree to amend the Rights Agreement as follows:
Section 1 . From and after the execution and delivery of
this Amendment, the definition of the term “Acquiring
Person” in Section 1.1 of the Rights Agreement is hereby
amended and restated to read in its entirety as follows:
“Acquiring Person” shall mean any
Person who is or becomes the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock; provided ,
however , that the term “Acquiring Person” shall
not include any Person (i) who is the Beneficial Owner of 15%
or more of the outstanding shares of Common Stock on the date of
the Original Rights Agreement, or who shall become the Beneficial
Owner of 15% or more of the outstanding shares of Common Stock
solely as a result of an acquisition by the Company of shares of
Common Stock, until such time after the date of the Original Rights
Agreement or thereafter as such Person shall become the Beneficial
Owner (other than by means of a stock dividend or stock split) of
any additional shares of Common Stock while such Person is or as a
result of which such Person becomes the Beneficial Owner of 15% or
more of the outstanding shares of Common Stock, (ii) who
becomes the Beneficial Owner of 15% or more of the outstanding
shares of Common Stock but who acquired Beneficial Ownership of
shares of Common Stock without any plan or intention to seek or
affect control of the Company, if such Person promptly divests, or
promptly enters into an agreement with, and satisfactory to, the
Company, in its sole discretion, to divest
(without
exercising or retaining any power, including voting power, with
respect to such shares), sufficient shares of Common Stock (or
securities convertible into, exchangeable into or exercisable for
Common Stock) so that such Person ceases to be the Beneficial Owner
of 15% or more of the outstanding shares of Common Stock,
(iii) who Beneficially Owns shares of Common Stock consisting
solely of one or more of (A) shares of Common Stock
Beneficially Owned pursuant to the grant or exercise of an option
granted to such Person (an “Option Holder”) by the
Company in connection with an agreement to merge with, or acquire,
the Company entered into prior to a Flip-in Date, (B) shares
of Common Stock (or securities convertible into, exchangeable into
or exercisable for Common Stock) Beneficially Owned by such Option
Holder or its
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