-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BcjiE/BzNkNweZpBJpi0/3lqZIE3RuQEHy16FaBu/aOYqWzLmuI56aWIckCq0RWI LzFfyO4n0pbiRvC0ZzOBeQ== 0000914121-00-001037.txt : 20001228 0000914121-00-001037.hdr.sgml : 20001228 ACCESSION NUMBER: 0000914121-00-001037 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20001227 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20001227 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LODGIAN INC CENTRAL INDEX KEY: 0001066138 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 522093696 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-14537 FILM NUMBER: 796438 BUSINESS ADDRESS: STREET 1: 3445 PEACHTREE ROAD N E SUITE 700 CITY: ATLANTA STATE: CA ZIP: 30326 BUSINESS PHONE: 4043649400 MAIL ADDRESS: STREET 1: 3445 PEACHTREE ROAD N E SUITE 700 CITY: ATLANTA STATE: CA ZIP: 30326 8-K 1 0001.txt CURRENT REPORT SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934 -------------------- Date of Report: December 27, 2000 LODGIAN, INC. ------------- (Exact name of registrant as specified in its charter) Delaware 001-14537 52-2093696 - ---------------- ---------------- ---------------- (State or other (Commission (IRS Employer jurisdiction of File Number) Identification incorporation) Number) 3445 Peachtree Road, N.E., Suite 700, Atlanta, Georgia 30326 - ----------------------------------------- ---------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (404) 364-9400 ITEM 5. OTHER EVENTS. On December 26, 2000, Lodgian, Inc. (the "Company") entered into an Exclusivity Agreement with Edgecliff Holdings, LLC ("Edgecliff") (the "Exclusivity Agreement"). Under the terms of the Exclusively Agreement Lodgian has granted Edgecliff an exclusive period of sixty days to complete its due diligence review of Lodgian. In consideration for the granting of such exclusive period, Edgecliff has agreed for a period of one year not to make an offer to acquire Lodgian for less than $4.75 per share in cash. Lodgian may continue to sell assets during the exclusive period. The Exclusivity Agreement is attached to this Form 8-K as Exhibit 10.1 and is incorporated herein by reference. The Company's press release dated December 27, 2000 is attached to this Form 8-K as Exhibit 99.1 and is incorporated herein by reference. ITEM 7. EXHIBITS. 10.1 Exclusivity Agreement by and between Lodgian, Inc. and Edgecliff Holdings, LLC, dated as of December 26, 2000. 99.1 Press release dated December 27, 2000. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. LODGIAN, INC. By /s/ Robert S. Cole ------------------------------------- Name: Robert S. Cole Title: President and Chief Executive Officer Date: December 27, 2000 EXHIBIT INDEX - ------------------------------------------------------------------------------- Exhibit Number Description - ------------------------------------------------------------------------------- 10.1 Exclusivity Agreement by and between Lodgian, Inc., and Edgecliff Holdings, LLC dated as of December 26, 2000 99.2 Press release dated December 27, 2000. - ------------------------------------------------------------------------------- EX-10.1 2 0002.txt EXCLUSIVITY AGREEMENT EXCLUSIVITY AGREEMENT This Exclusivity Agreement, dated as of December 26, 2000 (this "Agreement"), is made by and between Lodgian, Inc., a Delaware corporation (the "Company"), and Edgecliff Holdings, LLC, a Delaware limited liability company ("Edgecliff"). WHEREAS, the Company and Edgecliff desire to consider further the possibility of entering into a transaction (the "Transaction") pursuant to which a subsidiary of Edgecliff (the "Purchaser") will merge with and acquire the Company in a reverse merger as described in that certain letter dated December 10, 2000 from Edgecliff to the Company (the "Letter"); WHEREAS, as a condition to pursuing the Transaction, Edgecliff has requested that the Company enter into this Agreement, and the Company is willing to do so; and WHEREAS, capitalized terms used herein but not otherwise defined shall have the meaning ascribed thereto in the Letter. NOW, THEREFORE, in order to carry out their intent as expressed above and in consideration of the mutual agreements hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows: 1. Exclusivity. (a) Except as provided in Section 1(b) below, for sixty (60) days after the date of this Agreement (the "Termination Date"), the Company, its subsidiaries and affiliates and their respective directors, officers, advisors, representatives and other agents shall not directly or indirectly (i) solicit, initiate, encourage, facilitate the submission of or entertain any proposals or offers relating to, (ii) provide any information to any third party in response to any submissions, proposals or offers relating to, (iii) engage in any negotiations or discussions with any person or entity relating to, or (iv) otherwise cooperate in any way with any person in connection with (such actions being individually and collectively referred to herein as "Marketing") any acquisition, merger, recapitalization, liquidation, dissolution or any similar transaction involving all or any material portion of the Company, its business or assets or all or any material portion of the Company's capital stock or other equity interests, other than the Transaction. The Company shall promptly notify Edgecliff of any such proposals or offers made on or prior to the Termination Date. From and after the date of this letter until the Termination Date, the Company, its subsidiaries and affiliates and their respective directors, officers, advisors, representatives and other agents shall not directly or indirectly take any other action (or fail to take any required action) or permit any person on its behalf to take any other action (or fail to take any required action) that would be inconsistent with, delay or adversely affect the consummation of the Transaction. Nothing contained in this paragraph, however, shall prevent the Company's Board of Directors (the "Board"), if they determine in good faith that their fiduciary duty so requires, from (A) considering a Superior Offer (as defined below) which had not been directly or indirectly solicited, initiated or encouraged by the Company, its subsidiaries or affiliates, or their respective directors, officers, advisors, representatives and other agents on or after the date of this Agreement; provided, however that the Company shall promptly notify Edgecliff (and continuously update such notification upon Edgecliff's request) of the receipt of any such offer, of the status of the Board's consideration thereof and of any actions taken in connection therewith; provided, further, that the Purchaser does not make, within five (5) days of receipt of the Company's written notification of the intention of the Board to consider such a Superior Offer, an offer that the Board determines, in good faith after consultation with its financial advisors, is at least as favorable to the stockholders of the Company as the Superior Offer or (B) providing information to a third party in response to a Superior Offer or an indication of interest from a third party (but not taking any other action proscribed by this Section 1); provided, however that (x) the Board determines that such third party is capable of providing a Superior Offer following receipt of such information, (y) such third party executes a confidentiality agreement in favor of the Company containing substantially the same terms, including the "standstill" provisions, as the confidentiality agreement previously executed by Edgecliff in favor of the Company and (z) the Company shall promptly notify Edgecliff of the request to receive such information and of any action taken in connection with such request including confirmation that the confidentiality agreement has been executed by such third party pursuant to clause (y) of this sentence. For purposes of this Agreement, the term "Superior Offer" shall mean an offer (xx) to purchase the Company or its business or assets or all or substantially all of the Company's capital stock or other equity that the Board determines in good faith to be more favorable to the Company and its stockholders than that provided in the Transaction and (yy) that the Board determines is likely to result in a transaction that will actually be consummated. (b) Notwithstanding the provisions of clause (a) of this Section 1, the Company may engage, at any time during the period in which the restrictions contained in clause (a) of this Section 1 apply, in Marketing with respect to the following: (i) the assets listed under the heading "Tier I" on Schedule I to this Agreement (the "Tier I Assets"); provided, however, that in no event may the Company sell or otherwise dispose of, or enter into a letter of intent, definitive sale contract or similar agreement with respect to any Tier I Asset for less than the minimum price set forth opposite such Tier I Asset on Schedule I; (ii) the assets listed under the heading "Tier II" on Schedule I to this Agreement (the "Tier II Assets"); provided, however, that in no event may the Company sell, transfer or otherwise dispose of any Tier II Asset unless: (A) The Company has received an offer from a bona fide third party purchaser (a "Third Party Purchaser") to purchase a Tier II Asset solely for cash and, upon receipt of such offer the Company has delivered written notice of such offer (the "Offering Notice") to Edgecliff, which Offering Notice shall state: (x) the name of the Tier II Asset proposed to be sold (the "Offered Asset"), (y) the proposed purchase price offered by the Third Party Purchaser for the Offered Asset (the "Offer Price") and (z) the terms and conditions of such sale. Upon delivery of the Offering Notice, such offer shall not be amended until the rights of first refusal provided for herein shall have been waived or shall have expired. (B) For a period of five (5) business days after delivery of the Offering Notice (the "Edgecliff Option Period"), Edgecliff shall have the right (the "Edgecliff Option") but not the obligation to purchase the Offered Asset at a purchase price equal to the Offer Price and upon the terms and conditions set forth on the Offering Notice. The right of Edgecliff to purchase the Offered Asset under this Section 1(b)(ii) shall be exercisable by delivering written notice of the exercise thereof, prior to the expiration of the Edgecliff Option Period, to the Company, which notice shall set forth Edgecliff's desire to purchase the Offered Asset from the Company. The failure of Edgecliff to respond within the Edgecliff Option Period shall be deemed to be a waiver of the Edgecliff Option. (C) Edgecliff shall have forty-five (45) days from the date of the Offering Notice to conclude diligence and remove all transaction contingencies and conditions. The closing of the purchase of the Offered Asset by Edgecliff shall be held at the executive office of the Company at 11:00 a.m., local time, no later than the thirtieth (30th) day (or the next following business day) after such diligence is concluded and such contingencies and conditions are removed. (D) Unless Edgecliff elects to purchase the Offered Asset, the Company may sell the Offered Asset to the Third Party Purchaser on the terms and conditions set forth in the Offering Notice; provided, -------- however, that such sale is concluded within ninety (90) days after the expiration of the Edgecliff Option Period. If such sale is not concluded within such ninety (90) day period for any reason, then the restrictions provided for herein shall again become effective, and no transfer of such Offered Asset may be made thereafter by the Company without again offering the same to Edgecliff in accordance with this Section 1(b)(ii); and (iii) the assets listed under the heading "Tier III" on Schedule I to this Agreement (the "Tier III Assets"); provided, however, that in no event may the Company sell, transfer or otherwise dispose of any Tier III Asset except where such Tier III Asset is sold to a Third Party Purchaser (which Third Party Purchaser shall not be an affiliate of the Company or an officer, director, or employee (or relative of any of the foregoing) of the Company or any affiliate thereof) at not less than fair market value and on terms and conditions that have been negotiated with such Third Party Purchaser on an arm's length basis. The Company agrees that, except as otherwise provided in this Section 1(b), the Company, its subsidiaries and affiliates and their respective directors, officers, advisors, representatives and other agents shall not directly or indirectly engage in any Marketing with respect to any of its assets. The Company shall promptly notify Edgecliff of any such proposals or offers made on or prior to the Termination Date. (c) In consideration for the Company's agreement to abide by the exclusivity provisions of this Agreement, Edgecliff, on its own behalf and on behalf of each of its affiliates, agrees that it shall not and shall not permit its representatives, advisors and other agents to, without the prior written consent of the Company's Board of Directors, take any of the following actions for a period of one year from the date of this Agreement, unless the total consideration to be offered to the stockholders of the Company in any of the following transactions is not less than $4.75 per share in cash: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person; (ii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its securities or assets; (iii) otherwise act, whether alone or in concert with others, to seek to propose to the company or any of its stockholders, any merger, business combination, restructuring, recapitalization or similar transaction to or with the Company; (iv) announce an intention to, or enter into any discussion, negotiations, arrangements or understandings with any third party with respect to, any of the foregoing matters; (v) disclose any intention, plan or arrangement inconsistent with any of the foregoing provisions; (vi) advise, assist, encourage or participate with any other person or entity in connection with action inconsistent with any of the foregoing provisions; (vii) make any proposal to be considered and/or voted upon at any meeting of the stockholders of the Company with respect to any of the foregoing matters; or (viii)form, join or in any way participate in a "group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any of the foregoing matters. 2. Access; Brokers. (a) Upon reasonable advance notice to the Company, the Company shall allow Edgecliff and its representatives full and complete access to the assets and the books, records and documents of the Company during normal business hours or such other hours as the Company and Edgecliff shall agree and subject to the reasonable rules of the Company, and the Company shall make available (subject to the same conditions) the officers, employees, attorneys, independent accountants and other agents of the Company to discuss the business, condition (financial or otherwise) or prospects of the assets. Edgecliff agrees that the confidentiality agreement executed with the Company will apply to all information received pursuant to this section. (b) The Company represents and warrants to Edgecliff that other than the engagement by the Company of Morgan Stanley & Co. Incorporated, the fees, costs and expenses of which will be borne by the Company (i) there shall be no brokers' or finders' fees due in connection with the Transaction for which the Company may be liable, (ii) no broker or finder has been engaged by the Company or on the Company's behalf in connection with the Transaction and (iii) the Company shall not authorize any person to act in a manner so as to give rise to any valid claim for any brokers' or finders' fee or similar compensation. 3. Publicity. This Agreement is intended to be confidential and its existence shall not be publicly disclosed by the Company unless required by law or the rules or regulations of a national securities exchange or the National Association of Securities Dealers, Inc. In the event the Company determines that any public announcement of this Agreement is so required, any public announcement shall be subject to the review and reasonable approval of Edgecliff prior to its release which shall not be unreasonably withheld or delayed. 4. Legal Effect. This Agreement shall be governed by the laws of the State of New York without regard to the conflicts of laws principles thereof. This Agreement shall remain in full force and effect and shall survive the termination or withdrawal of the Letter; provided, however, that the Company's obligations under Section 1 of this Agreement shall terminate in the event the Letter is withdrawn by Edgecliff or the Purchaser. IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement on the date first above written. LODGIAN, INC. By:/s/ Joseph C. Calabro --------------------------------------- Name: Joseph C. Calabro Title: Chairman EDGECLIFF HOLDINGS, LLC By:/s/ Joseph E. Marquet --------------------------------------- Name: Joseph E. Marquet Title: Vice President - Finance EX-99.1 3 0003.txt PRESS RELEASE LODGIAN, INC. 3445 PEACHTREE ROAD ATLANTA, GA 30326 www.lodgian.com [GRAPHIC OMITTED] NYSE : LOD
AT LODGIAN, INC. AT THE FINANCIAL RELATIONS BOARD/BSMG Robert Cole Thomas Eppich Leslie Hunziker Georganne Palffy Chief Executive Officer Chief Financial Officer General Information Analysts/Investors rcole@lodgian.com teppich@lodgian.com lhunzike@frb.bsmg.com gpalffy@frb.bsmg.com (404) 365-3800 (404) 365-4469 (312) 640-6760 (312) 640-6768
FOR IMMEDIATE RELEASE WEDNESDAY, DECEMBER 27, 2000 LODGIAN SIGNS EXCLUSIVITY AGREEMENT WITH EDGECLIFF HOLDINGS ATLANTA - DECEMBER 27, 2000 - LODGIAN, INC. (NYSE: LOD) announced today that it has entered into an Exclusivity Agreement with Edgecliff Holdings, LLC. As previously announced, on December 10, 2000, Edgecliff made a proposal to acquire Lodgian for $4.75 per share in cash, subject to certain conditions, including completion of due diligence. The key points contained in the exclusivity agreement with Edgecliff are as follows: o Lodgian has agreed to give Edgecliff an exclusive 60-day period during which the two parties will attempt to negotiate a definitive agreement, and Edgecliff will complete its due diligence review; o Edgecliff has agreed not to make an offer to purchase the Company at any time during the next 12 months for less than $4.75 per share; o Lodgian may continue to sell specified assets during the exclusivity period; o Lodgian is permitted to consider other unsolicited offers for the Company if the Lodgian board concludes that such offers are superior to Edgecliff's proposal; o Lodgian is not obligated to reimburse Edgecliff for any of its expenses, nor is Lodgian obligated to pay any break-up fee should the Company pursue another transaction. ABOUT LODGIAN Lodgian, Inc. owns or manages a portfolio of 114 hotels with approximately 21,400 rooms in 32 states and Canada. The hotels are primarily full service, providing food and beverage service, as well as meeting facilities. Substantially all of Lodgian's hotels are affiliated with nationally recognized hospitality brands such as Holiday Inn, Crowne Plaza, Marriott, Sheraton, and Hilton. Lodgian's common shares are listed on the New York Stock Exchange under the symbol "LOD". Lodgian is a component of both the Russell 2000(R) Index, representing small cap stocks, and the Russell 3000(R) Index, representing the broader market. FORWARD-LOOKING STATEMENTS Note: Statements in this press release that are not strictly historical are "forward-looking" statements that are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements involve known and unknown risks, which may cause the Company's actual results in the future to differ materially from expected results. These risks include, among others, the failure to complete a transaction for the sale of the Company with Edgecliff or any other party; competition within the lodging and contract service industries; the relationship between supply and demand for hotel rooms; the effects of economic conditions; issues associated with the ongoing integration of the former Servico, Inc. and Impac Hotel Group, LLC; the acquisition and renovation of existing hotels and the development of new hotels; operating risks; the cyclical nature of the lodging industry; risks associated with the dependence on franchisers of the Company's lodging properties; and the availability of capital to finance planned growth, as described in the Company's filings with the Securities and Exchange Commission. FOR MORE INFORMATION ON LODGIAN TOLL-FREE VIA FAX, DIAL 1-800-PRO-INFO (1-800-776-4636), FOLLOW THE VOICE MENU PROMPTS AND ENTER THE COMPANY TICKER LOD (OR 563) OR VISIT THE LODGIAN PAGE ON THE FRB WEB SITE AT WWW.FRBINC.COM VISIT LODGIAN AT www.lodgian.com -----END PRIVACY-ENHANCED MESSAGE-----