EXHIBIT 2.2
Amendment to Merger Agreement
dated May 27, 2003
among the Company, CNL Rose Acquisition Corp.,
RFS Hotel Investors, Inc., CNL Rose Acquisition OP, LP
and RFS Partnership, L.P.
AMENDMENT TO AGREEMENT
AMENDMENT dated May 27, 2003, by and among CNL Hospitality Properties,
Inc., a Maryland corporation ("Parent"), CNL Rose Acquisition Corp., a Delaware
corporation and an indirect wholly-owned subsidiary of Parent ("REIT Merger
Sub"), RFS Hotel Investors, Inc., a Tennessee corporation (the "Company"), CNL
Rose Acquisition OP, LP, a Tennessee limited partnership and an indirect
wholly-owned subsidiary of Parent ("Acquiror OP") and RFS Partnership, L.P., a
Tennessee limited partnership ("Target OP").
WITNESSETH:
WHEREAS, the parties entered into an Agreement dated May 8, 2003 (the
"Agreement") providing, among other things, that Parent and REIT Merger Sub
shall consummate a business combination with the Company (the "REIT Merger") and
simultaneously with the REIT Merger, Acquiror OP will be merged with and into
Target OP (the "OP Merger," and collectively, with the REIT Merger, the
"Mergers") on the terms and conditions set forth in the Agreement;
WHEREAS, the parties desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual premises recited above, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Capitalized terms used but not defined in this Amendment shall have the
respective meanings set forth in the Agreement.
2. Section 7.1(h) of the Agreement is hereby amended to read as follows:
"(h) By Parent prior to the fifth day immediately preceding the date of the
Company Shareholder Meeting, in its sole discretion and for any reason not set
forth above, by payment to the Company of the fee set forth in paragraph (iv) of
Section 5.4(b)."
3. Section 5.11(a) of the Agreement is hereby amended to read as follows:
"(a) All rights to indemnification and exculpation from liabilities for
acts or omissions occurring at or prior to the Effective Time now existing in
favor of the current or former directors or officers of the Company or any of
its subsidiaries (the "Indemnified Parties") as provided in their respective
charters, by-laws (or other comparable organizational instruments and
agreements) and those indemnification agreements of the Company set forth on
Schedule 3.1(p) of the Company Disclosure Schedule, shall survive the Mergers as
obligations of Surviving Corporation and shall continue in full force and effect
in accordance with their terms for a period of four years following the
Effective Time and for so long as any claim against any such officer or director
is brought within such four-year period, until a final, non-appealable judgment
is rendered with respect thereto. Parent shall cause the Surviving Corporation
to maintain shareholders' equity of not less than $300,000,000 during such
period. In the event Parent fails to cause the Surviving Corporation to maintain
shareholders' equity in such amount, such indemnification obligations to such
officers and directors shall become and be direct obligations of Parent."
4. Section 6.2 of the Agreement is amended to delete subsection (f) of
Section 6.2.
5. The Agreement is hereby amended to add to the Company Disclosure
Schedule a Schedule 3.1(p), which schedule is set forth as Schedule 3.1(p)
hereto.
6. Except as specifically set forth herein, all other terms and provisions
of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered as of the date first above written.
CNL HOSPITALITY PROPERTIES, INC.
By: /s/ XXXXXX X. XXXXXXXXX, III
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
Title: Chief Executive Officer
CNL ROSE ACQUISITION CORP.
By: /s/ XXXXXX X. XXXXXXXXX, III
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
Title: Chief Executive Officer
CNL ROSE ACQUISITION OP, LP
By: CNL Rose GP Corp, general partner
By: /s/ XXXXXX X. XXXXXXXXX, III
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
Title: Chief Executive Officer
RFS HOTEL INVESTORS, INC.
By: /s/ XXXXXX XXXXXXX
-------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
RFS PARTNERSHIP, L.P.
By: RFS Hotel Investors, Inc., general
partner
By: /s/ XXXXXX XXXXXXX
---------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
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