VOTING AGREEMENT
This VOTING AGREEMENT, dated as of December 8, 2000 (this
"Agreement"), is made and entered into among MeriStar Hotels & Resorts, Inc., a
Delaware corporation (the "MeriStar"), American Skiing Company, a Delaware
corporation ("ASC"), Oak Hill Capital Partners, L.P., a Delaware limited
partnership ("OCP"), Oak Hill Capital Management Partners, L.P., a Delaware
limited partnership ("OMP"), F.W. Hospitality, L.P., a Delaware limited
partnership ("F.W. Hospitality"), Arbor REIT, L.P., a Delaware limited
partnership ("Arbor REIT"), and MHX Investors, L.P., a Delaware limited
partnership ("MHX Investors"). OCP, OMP, F.W. Hospitality, Arbor REIT and MHX
Investors are referred to collectively as the "Stockholders" and each as a
"Stockholder".
RECITALS:
A. ASC, ASC Merger Sub, Inc. a Delaware corporation ("Merger
Sub"), and MeriStar are, simultaneously with the execution hereof, entering into
an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), pursuant to which Merger Sub will merge with and into MeriStar (the
"Merger") on the terms and subject to the conditions set forth in the Merger
Agreement and, as a result, MeriStar will become a wholly-owned subsidiary of
ASC. Except as otherwise defined herein, capitalized terms used herein without
definition have the respective meanings ascribed to them in the Merger
Agreement.
B. As a condition and inducement to ASC's willingness to enter
into the Merger Agreement, ASC has requested that each Stockholder agree, and
each Stockholder has agreed, to enter into this Agreement and to grant to ASC an
irrevocable proxy with respect to the shares of common stock, par value $0.01
per share, of MeriStar (the "MeriStar Common Stock") in the form attached hereto
as Exhibit A (each a "Proxy") with respect to such Stockholder's Subject Shares
(as defined in Section 2.1(a)).
C. Simultaneously with the execution and delivery of this
Agreement, each Stockholder has irrevocably granted ASC a Proxy to vote its
shares in a manner consistent with the covenants set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
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ARTICLE I
VOTING OF SUBJECT SHARES
Section 1.1 Agreement to Vote Subject Shares. At any meeting
(including any and all postponements and adjournments thereof) of the
stockholders of MeriStar (a "MeriStar Stockholders Meeting") called to consider
and vote upon the approval of the Merger, the Merger Agreement and the
transactions contemplated thereby (the "Proposals"), and in connection with any
action to be taken in respect of the Proposals by written consent of the
stockholders of MeriStar, each Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all of such Stockholder's Subject
Shares in favor of the Proposals and any other matter necessary for the
consummation of the transactions contemplated by the Merger Agreement and
considered and voted upon at any such meeting. At any meeting (and at any and
all postponements and adjournments thereof) of the stockholders of MeriStar (an
"Adverse Meeting") called to consider and vote upon any Adverse Proposal (as
defined below), and in connection with any action to be taken in respect of any
Adverse Proposal by written consent of stockholders of MeriStar, each
Stockholder shall vote or cause to be voted (including by written consent, if
applicable) all of such Stockholder's Subject Shares against such Adverse
Proposal. For purposes of this Agreement, the term "Adverse Proposal" means any
(a) proposal or action that would reasonably be expected to result in a breach
of any covenant, representation or warranty of MeriStar set forth in the Merger
Agreement or (b) proposal or action that is intended or would reasonably be
expected to impede, interfere with, delay or materially and adversely affect the
Merger or any of the other transactions contemplated by the Merger Agreement or
this Agreement.
Section 1.2 Other Proxies Revoked. Any proxies (other than the
Proxy) heretofore given in respect of such Stockholder's Subject Shares are not
irrevocable and all such proxies are hereby revoked.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the
Stockholders. Each Stockholder, severally and not jointly, represents and
warrants, as of the date hereof, the time of each MeriStar Stockholders Meeting
and each Adverse Meeting and as of the Effective Time, to ASC as follows:
(a) Except for Subject Shares transferred in accordance with
Section 3.1 hereof after the date hereof, such Stockholder is the sole record
and beneficial owner of the number of shares of MeriStar Common Stock set forth
opposite such Stockholder's name on Annex A hereto (such MeriStar Common Stock,
together with any other equity or voting interests in MeriStar the beneficial
ownership of which is hereafter acquired by such Stockholder and any MeriStar
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Common Stock into which such other equity or voting interests are converted,
being collectively referred to herein as such Stockholder's "Subject Shares")
and has full, unrestricted and sole power to dispose of and to vote such Subject
Shares. Such Subject Shares are now, and at all times prior to the Effective
Time will be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting such Stockholder's legal power
or authority to vote or sell the Subject Shares, except for those restrictions
arising hereunder or under the Proxy delivered by such Stockholder or set forth
under applicable securities laws and except as specified on Schedule 2.1 hereto.
Such Stockholder does not beneficially own or hold any rights to acquire any
additional securities of MeriStar other than such Subject Shares.
(b) Such Stockholder has all requisite power and authority to
enter into this Agreement, to grant the Proxy and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the Proxy
by such Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of such Stockholder. This Agreement and the Proxy have been duly
executed and delivered by such Stockholder and, assuming that this Agreement
constitutes the valid and binding obligation of ASC, each of this Agreement and
the Proxy constitutes a valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and to general principles of equity. The Proxy is an irrevocable proxy, coupled
with an interest, and ASC shall, by operation of the Proxy, have the power to
vote such Stockholder's Subject Shares in accordance with, and as contemplated
by, Section 1.1 and by the terms of the Proxy.
(c) The execution and delivery of this Agreement or of the
Proxy does not, and the consummation of the transactions contemplated hereby and
thereby and compliance with the provisions hereof and thereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
(i) in the case of a Stockholder that is a corporation or other business
organization, any organizational documents of such Stockholder, (ii) in the case
of any Stockholder that is a trust, violate or conflict with any term or
provision of the indenture, or other governing or testamentary instrument
relating to such trust or (iii) in the case of any Stockholder, any Contract,
Law, order, injunction, determination or award binding on such Stockholder,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that, individually or in the aggregate, would not (i) impair
the ability of such Stockholder to perform such Stockholder's obligations under
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this Agreement or (ii) prevent or delay the consummation of any of the
transactions contemplated hereby.
(d) Except for the other Stockholders, there are no parties
who are affiliates of such Stockholder who are also affiliates of MeriStar.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Restriction on Transfer of Subject Shares; Proxies and
Noninterference. No Stockholder shall, prior to the Effective Time, directly or
indirectly: (A) except pursuant to the terms of this Agreement, offer for sale,
sell, transfer, pledge, tender, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender,
encumbrance, assignment or other disposition of, any or all of such
Stockholder's Subject Shares, unless it receives (i) an irrevocable proxy, in
form and substance substantially similar to Exhibit A hereto, to vote the
transferred Subject Shares as provided therein and (ii) a deed of adherence to
this Agreement (including representations and warranties of the type set forth
in Section 2.1) reasonably satisfactory to the other parties hereto executed by
the transferee of such Subject Shares; (B) except pursuant to the terms of this
Agreement and except for the execution and delivery of the Proxy, grant any
proxies or powers of attorney, deposit any of such Stockholder's Subject Shares
into a voting trust or enter into a voting agreement with respect to any of such
Stockholder's Subject Shares; or (C) take any action that would reasonably be
expected to make any representation or warranty contained herein untrue or
incorrect or have the effect of impairing the ability of such Stockholder to
perform such Stockholder's obligations under this Agreement or preventing or
delaying the consummation of any of the transactions contemplated hereby or
revoke or invalidate the Proxy.
Section 3.2 Reliance by ASC; Cooperation. Each Stockholder
understands and acknowledges that ASC is entering into the Merger Agreement in
reliance upon the Stockholders' execution and delivery of this Agreement and the
Proxy. Each Stockholder shall cooperate fully with ASC and MeriStar in
connection with the respective reasonable best efforts of ASC and MeriStar to
fulfill the conditions to the Merger set forth in Article VI of the Merger
Agreement.
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ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Except as set forth in the ASC
Voting/Recapitalization Agreement, each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
Section 4.2 Amendment; Termination. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the termination
of the Merger Agreement in accordance with its terms. In addition, this
Agreement may be terminated by mutual written consent of MeriStar, ASC and the
Stockholders. In the event of termination of this Agreement pursuant to this
Section 4.2, this Agreement shall become null and void and of no effect with no
liability on the part of any party hereto and all Proxies shall automatically
terminate; provided, however, that no such termination shall relieve any party
hereto from any liability for any breach of this Agreement occurring prior to
such termination; and provided, further, that Article II shall survive the
termination of this Agreement.
Section 4.3 Extension, Waiver. Any agreement on the part of a
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
Section 4.4 Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement and is not intended to confer upon any person
other than the parties any rights or remedies.
SECTION 4.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, REGARDLESS
OF ANY PRINCIPLES OF CONFLICTS OF LAWS THEREOF THAT MIGHT INDICATE THE
APPLICABILITY OF LAWS OF ANY OTHER JURISDICTION, EXCEPT WHERE THE LAWS OF THE
STATE OF DELAWARE ARE MANDATORILY APPLICABLE.
Section 4.6 Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, by hand delivery or telecopy (with a
confirmation copy sent for next day delivery via courier service, such as
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Federal Express), or sent by overnight courier, such as Federal Express
(providing proof of delivery). All communications hereunder shall be delivered
to the respective parties at the following addresses:
If to the Stockholders:
Park Avenue Tower
65 E. 55th Street
New York, New York 10022
Attention: Steven B. Gruber
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Bradford E. Bernstein
Telecopy: (212) 593-7187
If to ASC:
American Skiing Company
One Monument Way
Portland, Maine
Attention: Christopher E. Howard, Esq.
Foster A. Stewart, Jr., Esq.
Telecopy: (207) 791-2607
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10036-6522
Attention: Mark Roppel, Esq.
Telecopy: (212) 848-7179
If to MeriStar:
MeriStar Hotels & Resorts, Inc.
1010 Wisconsin Avenue, NW
Washington, DC 20007
Attention: Christopher L. Bennett, Esq.
Telecopy: (202) 295-1026
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Richard S. Borisoff, Esq.
Telecopy: (212) 757-3990
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Section 4.7 Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by any
Stockholder without the prior written consent of ASC, or by ASC without the
prior written consent of the Stockholders and any such assignment or delegation
that is not consented to shall be null and void. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns
(including, without limitation, any person to whom any Subject Shares are sold,
transferred or assigned).
Section 4.8 Further Assurances. Each Stockholder shall execute and
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by ASC in
order to ensure that ASC receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
Section 4.10 Waiver of Trial by Jury. Each party acknowledges and
agrees that any controversy that may arise under this Agreement is likely to
involve complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to a trial
by jury in respect of any litigation directly or indirectly arising out of or
relating to this Agreement or the transactions contemplated by this Agreement.
Each party certifies and acknowledges that (i) no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver, (ii) each such party understands and has considered the implications of
this waiver, (iii) each such party makes this waiver voluntarily, and (iv) each
such party has been induced to enter into this agreement by, among other things,
the mutual waivers and certifications in this Section 4.10.
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Section 4.11 Severability. Whenever possible, each provision or
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.12 Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
instrument and shall become effective when one or more counterparts have been
signed by each party and delivered to the other parties.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
MERISTAR HOTELS & RESORTS, INC.
By: /s/ Paul Whetsell
--------------------------------------------
Name: Pual Whetsell
Title: Chief Executive Officer
AMERICAN SKIING COMPANY
By: /s/ Leslie B. Otten
--------------------------------------------
Name: Leslie B. Otten
Title: President
OAK HILL CAPITAL PARTNERS, L.P.
By: OHCP GenPar, L.P., its general partner
By: OHCP MGP, LLC, its general partner
By: /s/ Kevin G. Levy
--------------------------------------------
Name: Kevin G. Levy
Title: Vice President
OAK HILL CAPITAL MANAGEMENT PARTNERS, L.P.
By: OHCP GenPar, L.P., its general partner
By: OHCP MGP, LLC, its general partner
By: /s/ Kevin G. Levy
--------------------------------------------
Name: Kevin G. Levy
Title: Vice President
FW HOSPITALITY, L.P.
By: Group III 31, L.L.C., General Partner
By: /s/ Kevin G. Levy
--------------------------------------------
Name: Kevin G. Levy
Title: Vice President
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ARBOR REIT, L.P.
By: Group Investors, L.L.C., General Partner
By: /s/ Kevin G. Levy
--------------------------------------------
Name: Kevin G. Levy
Title: Vice President
MHX INVESTORS, L.P.
By: FW Group GenPar, Inc., General Partner
By: /s/ Kevin G. Levy
--------------------------------------------
Name: Kevin G. Levy
Title: Vice President
<PAGE>
Annex A
Stockholder Number of Shares of MeriStar Common Stock
Oak Hill Capital Partners, L.P. 3,545,455
Oak Hill Capital Management Partners, L.P. 90,909
F.W. Hospitality, L.P. 764,067
Arbor REIT, L.P. 764,067
MHX Investors, L.P. 764,066
<PAGE>
Exhibit A
IRREVOCABLE PROXY
The undersigned shareholder of MERISTAR HOTELS & RESORTS,
INC., a Delaware corporation ("MeriStar") hereby appoints AMERICAN SKIING
COMPANY, a Delaware corporation ("ASC"), as proxy for the undersigned, with full
power of substitution, to attend any annual or special meeting of the
shareholders of MeriStar (including any and all adjournments and postponements
thereof), and in respect of any written consent in lieu of such meeting, held or
made for the purpose of considering or voting upon the matters described in
Section 1.1 of the Voting Agreement, dated the date hereof, among ASC, the
undersigned and certain other shareholders of MeriStar (the "Agreement"), in
accordance with such Section 1.1, and to cast all votes that the undersigned is
entitled to cast at such a meeting (or in connection with such written consent)
with respect to all of the undersigned's Subject Shares (as defined in the
Agreement) with respect to the matters described in Section 1.1 of the
Agreement. The undersigned hereby revokes any proxy heretofore given with
respect to such a meeting (or written consent in lieu thereof) or with respect
to such a vote cast. The undersigned affirms that this proxy is a power coupled
with an interest and shall be irrevocable. The undersigned shall take such
further action or execute such other instruments as may be necessary to
effectuate the intent of this irrevocable proxy.
[Name of Stockholder]
Please sign exactly as name appears on the By
records of MeriStar and date. When signing as attorney, --------------------
executor, administrator, trustee, guardian, officer Name:
of a corporation or other entity or in another Title:
representative capacity, please give the full title
under signature(s).
Dated: _________, _____
