VOTING AGREEMENT
VOTING AGREEMENT, dated as of August 18, 2004 (this "Agreement"), among
BREP IV Hotels Holding L.L.C., a Delaware limited liability company ("Parent"),
X.X. Xxxxxxxxxx ("Xxxxxxxxxx") and United Capital Corp., a Delaware corporation
("UCC," and together with Xxxxxxxxxx, the "Stockholders").
WHEREAS, concurrently herewith, Parent, BREP IV Hotels Acquisition
L.L.C., a Delaware limited liability company and a wholly owned subsidiary of
Parent ("Merger Sub"), and Prime Hospitality Corp., a Delaware corporation (the
"Company"), are entering into an Agreement and Plan of Merger (the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), pursuant to which (and subject to
the terms and conditions set forth therein) the Company will merge with and into
Merger Sub (the "Merger") and each outstanding share of common stock, par value
$0.01 per share, of the Company (the "Common Stock") will be converted into the
right to receive the Merger Consideration;
WHEREAS, Xxxxxxxxxx beneficially owns 45,000 Shares, excluding the UCC
Shares (as hereinafter defined) and Shares issuable upon conversion of employee
stock options (the "Xxxxxxxxxx Shares"), and UCC beneficially owns 3,539,697
Shares (the "UCC Shares," and together with the Xxxxxxxxxx Shares, the "Owned
Shares"), the Owned Shares, including any Shares acquired by either of the
Stockholders after the date hereof and prior to the termination hereof, whether
upon exercise of options, warrants, conversion of other convertible securities
or otherwise, are collectively referred to herein as the "Covered Shares";
WHEREAS, in order to induce Parent to enter into the Merger Agreement
and proceed with the Merger, Parent and the Stockholders are entering into this
Agreement; and
WHEREAS, each of the Stockholders acknowledges that Parent is entering
into the Merger Agreement in reliance on the representations, warranties,
covenants and other agreements of the Stockholders set forth in this Agreement
and would not enter into the Merger Agreement if the Stockholders did not enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent and each of the Stockholders hereby agree as follows:
1. Agreement to Vote.
(a) Prior to any termination of this Agreement, subject to Section 7
hereof (in the case of Xxxxxxxxxx), each of the Stockholders hereby agrees that
it shall, and shall cause any other holder of record of any Covered Shares to,
at any meeting of the stockholders of the Company (whether annual or special and
whether or not an adjourned or postponed meeting), however called, (i) when a
meeting is held, appear at such meeting or otherwise cause the Covered Shares to
be counted as present thereat for the purpose of establishing a quorum, (ii)
vote (or caused to be voted) in person or by proxy all Covered Shares in favor
of the Merger and any other matters necessary for consummation of the
Transactions and (iii) vote (or cause to be voted) all Covered Shares against
(A) any proposal for any recapitalization, reorganization,
liquidation, merger, sale of assets or other business combination between the
Company and any other person (other than the Merger) and (B) any other action
that could reasonably be expected to impede, interfere with, delay, postpone or
adversely affect the Merger or any of the Transactions, any transactions
contemplated by this Agreement or result in a breach in any material respect of
any covenant, representation or warranty or other obligation or agreement of the
Company under the Merger Agreement.
(b) EACH OF THE STOCKHOLDERS HEREBY GRANTS TO, AND APPOINTS, PARENT,
EACH SENIOR MANAGING DIRECTOR OF PARENT AND THE SECRETARY OF PARENT, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF PARENT, AND ANY OTHER DESIGNEE OF PARENT,
EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION
DATE) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE
COVERED SHARES AS INDICATED IN CLAUSE (a) OF THIS SECTION 1. EACH OF THE
STOCKHOLDERS INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE)
AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH
OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY EACH STOCKHOLDER WITH RESPECT TO
THE COVERED SHARES.
(c) Except as set forth in clause (a) of this Section 1, the
Stockholders shall not be restricted from voting in favor of, against or
abstaining with respect to any matter presented to the stockholders of the
Company. In addition, nothing in this Agreement shall give Parent the right to
vote any Covered Shares in connection with the election of directors.
2. No Inconsistent Agreements. Each of the Stockholders hereby
covenants and agrees that, except as contemplated by this Agreement, it (a) has
not entered into, and shall not enter at any time while this Agreement remains
in effect, any voting agreement or voting trust with respect to the Covered
Shares and (b) has not granted, and shall not grant at any time while this
Agreement remains in effect, a proxy or power of attorney with respect to the
Covered Shares, in either case, which is inconsistent with its obligations
pursuant to this Agreement.
3. Termination. This Agreement shall terminate upon the earliest of (a)
the Effective Time, (b) the termination of the Merger Agreement in accordance
with its terms and (c) written notice of termination of this Agreement by Parent
to the Stockholders, such date shall be referred to herein as the "Termination
Date".
4. Representations and Warranties.
(a) Representations and Warranties of Parent. Parent hereby represents
and warrants to the Stockholders as follows:
(i) Valid Existence. Parent is a limited liability company
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has the requisite limited
liability company power and authority and all necessary
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governmental approvals to own, lease and operate its properties and to
carry on its business as it is now being conducted.
(ii) Authority Relative to This Agreement. Parent has all
necessary limited liability company power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by Parent and the
consummation by Parent of the transactions contemplated hereby have
been duly and validly authorized by all necessary limited liability
company action, and no other limited liability company proceedings on
the part of Parent are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has
been duly and validly authorized, executed and delivered by Parent and,
assuming due authorization, execution and delivery by each of the
Stockholders, constitutes a legal, valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms.
(iii) No Conflicts. Except for the applicable requirements of
the Exchange Act (A) no filing with, and no permit, authorization,
consent or approval of, any state, federal or foreign governmental
authority is necessary on the part of Parent for the execution and
delivery of this Agreement by Parent and the consummation by Parent of
the transactions contemplated hereby and (B) neither the execution and
delivery of this Agreement by Parent nor the consummation by Parent of
the transactions contemplated hereby nor compliance by Parent with any
of the provisions hereof shall (1) conflict with or violate the
Certificate of Formation or Limited Liability Company Agreement (or
similar organizational document) of Parent, (2) result in any breach or
violation of, or constitute a default (or an event which, with notice
or lapse of time or both, would become a default) under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any property or
asset of Parent pursuant to, any Contract to which Parent is a party or
by which Parent or any property or asset of Parent is bound or affected
or (3) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Parent or any of its properties or assets,
except in the case of (2) or (3) for violations, breaches or defaults
that would not in the aggregate materially impair the ability of Parent
to perform its obligations hereunder.
(b) Representations and Warranties of the Stockholders. The
Stockholders hereby severally (and not jointly) represent and warrant to Parent
as follows:
(i) Ownership of Securities. The Stockholders are the only
beneficial owners and record holders of the Covered Shares, free and
clear of Liens and the Stockholders have sole voting power and sole
power of disposition with respect to all Covered Shares, with no
restrictions, subject to applicable federal securities laws on their
rights of disposition pertaining thereto (other than as created by this
Agreement). As of the date hereof, Xxxxxxxxxx does not own beneficially
or of record any equity securities of the Company other than the
Xxxxxxxxxx Shares, the UCC Shares and 4,825,000 Shares issuable upon
the exercise of stock options, including 3,075,000 Shares issuable upon
the exercise of currently exercisable stock options (collectively, the
"Options") and UCC does not own beneficially or of record any equity
securities of the Company other than the UCC
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Shares. Neither Stockholder has appointed or granted any proxy which is
still in effect with respect to the Covered Shares.
(ii) Existence, Power; Binding Agreement. UCC is a corporation
duly incorporated, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite
corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. Xxxxxxxxxx has full power and authority to execute
and deliver this Agreement, to perform his obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by each of the
Stockholders and, assuming due authorization, execution and delivery by
Parent, constitutes a legal, valid and binding obligation of each of
the Stockholders, enforceable against each of Stockholders in
accordance with its terms. If Xxxxxxxxxx is married, and any of the
Covered Shares constitute community property or otherwise need spousal
or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly authorized, executed and delivered by, and
constitutes the legal, valid and binding obligation of, Xxxxxxxxxx'x
spouse, enforceable in accordance with its terms.
(iii) No Conflicts. Except for the applicable requirements of
the Exchange Act (A) no filing with, and no permit, authorization,
consent or approval of, any state, federal or foreign governmental
authority is necessary on the part of either of the Stockholders for
the execution and delivery of this Agreement by either of the
Stockholders and the consummation by either of the Stockholders of the
transactions contemplated hereby and (B) the execution and delivery of
this Agreement by the Stockholders or the consummation by the
Stockholders of the transactions contemplated hereby or compliance by
the Stockholders with any of the provisions hereof shall not (1) in
case of UCC, violate any provision of its certificate of incorporation,
bylaws or similar organizational documents, (2) result in any breach or
violation of, or constitute a default (or an event which, with notice
or lapse of time or both, would become a default) under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any property or
asset of either of the Stockholders pursuant to any Contract to which
either of the Stockholders is a party or by which either of the
Stockholders or any property or asset of either of the Stockholders is
bound or affected or (3) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to either of the Stockholders or
any of its properties or assets, except in the case of (2) or (3) for
violations, breaches or defaults that would not in the aggregate
materially impair the ability of either of the Stockholders to perform
its obligations hereunder.
(iv) Accredited Investor. Each of the Stockholders is an
"accredited investor" (as defined under the Securities Act) and a
sophisticated investor, is capable of evaluating the merits and risks
of its investments and has the capacity to protect its own interests.
5. Certain Covenants of the Stockholders. Except in accordance with the
terms of this Agreement, each of the Stockholders hereby severally (and not
jointly) covenants and agrees as follows:
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(a) No Solicitation. Prior to any termination of this Agreement,
subject to Section 7 hereof (with respect to Xxxxxxxxxx), each of the
Stockholders agrees that neither it nor any of its Representatives shall,
directly or indirectly, solicit (including by way of furnishing information) any
inquiries or the making of any proposal by any person or entity (other than
Parent or any affiliate of Parent) which constitutes, or could reasonably be
expected to lead to, an Acquisition Proposal. If either of the Stockholders
receives a bona fide inquiry or proposal with respect to the sale of Shares,
then such Stockholder shall promptly inform Parent of the terms and conditions,
if any, of such inquiry or proposal and the identity of the person making it.
Each of the Stockholders will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
prior to the date of this Agreement with respect to any of the foregoing.
(b) Restriction on Transfer, Proxies and Non-Interference. Except as
set forth in Section 8 hereof (in the case of Xxxxxxxxxx), each of the
Stockholders hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (i) sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any Contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Covered Shares or Options, (ii)
grant any proxies or powers of attorney, deposit any Covered Shares into a
voting trust or enter into a voting agreement with respect to any Covered Shares
or (iii) knowingly take any action that would make any representation or
warranty of either of the Stockholders contained herein untrue or incorrect or
have the effect of preventing or disabling either of the Stockholders from
performing its obligations under this Agreement.
(c) Each of the Stockholders agrees, while this Agreement is in effect,
to promptly notify Parent of the number of any new Shares acquired by such
Stockholder, if any, after the date hereof (including, upon exercise of
Options).
6. Further Assurances. From time to time, at the other party's request
and without further consideration, each party hereto shall take such reasonable
further action as may reasonably be necessary or desirable to consummate and
make effective the transactions contemplated by this Agreement.
7. Fiduciary Duties. Notwithstanding anything in this Agreement to the
contrary: (a) Xxxxxxxxxx makes no agreement or understanding herein in any
capacity other than in Xxxxxxxxxx'x capacity as a record holder and beneficial
owner of Covered Shares, (b) nothing herein shall be construed to limit or
affect any action or inaction by Xxxxxxxxxx acting in his capacity as a director
of the Company and in compliance with Section 6.04 of the Merger Agreement and
(c) Xxxxxxxxxx shall have no liability to Parent or any of its affiliates under
this Agreement or otherwise as a result of any action or inaction by Xxxxxxxxxx
in his capacity as a director of the Company and in compliance with Section 6.04
of the Merger Agreement.
8. Permitted Transfers. Notwithstanding anything in this Agreement to
the contrary, Xxxxxxxxxx may transfer any or all of the Xxxxxxxxxx Shares, in
accordance with provisions of applicable Law, to Xxxxxxxxxx'x spouse, ancestors,
descendants or any trust (controlled by Xxxxxxxxxx) for any of their benefit or
to a charitable trust (controlled by Xxxxxxxxxx); provided, however, that, prior
to and as a condition to the effectiveness of such transfer, each person to
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which any of such Xxxxxxxxxx Shares or any interest in any of such Xxxxxxxxxx
Shares is or may be transferred shall have executed and delivered to Parent a
counterpart of this Agreement pursuant to which such person shall be bound by
all of the terms and provisions of this Agreement, and shall have agreed in
writing with Parent to hold such Xxxxxxxxxx Shares or interest in such
Xxxxxxxxxx Shares subject to all of the terms and provisions of this Agreement.
9. No Control. Nothing contained in this Agreement shall give Parent
the right to control or direct the Company or the Company's operations.
10. Amendment. This Agreement may be amended by the parties hereto;
provided, however, that after the adoption of this Agreement and the
Transactions by the stockholders of the Company no amendment shall be made
except as allowed under applicable Law. This Agreement may not be amended except
by an instrument in writing signed by each of the parties hereto.
11. Non-survival of Representations and Warranties. The respective
representations and warranties of the Stockholders and Parent contained herein
shall not survive the closing of the transactions contemplated hereby and by the
Merger Agreement.
12. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing in the English language and shall
be deemed duly given (a) on the date of delivery if delivered personally, (b) on
the first business day following the date of dispatch if delivered by a
nationally recognized next-day courier service, (c) on the fifth business day
following the date of mailing if delivered by registered or certified mail
(postage prepaid, return receipt requested) or (d) if sent by facsimile
transmission, when transmitted and receipt is confirmed. All notices hereunder
shall be delivered to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 12):
if to Parent:
c/o Blackstone Real Estate Partners IV L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
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if to Xxxxxxxxxx:
c/o United Capital Corp.
0 Xxxx Xxxxx
Xxxxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: X.X. Xxxxxxxxxx
if to UCC:
United Capital Corp.
0 Xxxx Xxxxx
Xxxxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
13. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of Law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
14. Entire Agreement; Assignment. This Agreement (a) constitutes the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and undertakings, both written and
oral, among the parties hereto with respect to the subject matter hereof and (b)
shall not be assigned by operation of law or otherwise, except that Parent may
assign all or any of its rights and obligations hereunder to any direct or
indirect wholly owned subsidiary of Parent; provided, however, that no such
assignment shall relieve the assigning party of its obligations hereunder if
such assignee does not perform such obligations.
15. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties hereto shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
16. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed in that State. All Actions arising out of or
relating to this Agreement shall be heard and determined exclusively in the
Delaware Court of Chancery. The parties hereto hereby (a) submit to the
exclusive jurisdiction of the Delaware Court of Chancery for the purpose of any
Action arising out of or relating to this Agreement brought by any party hereto,
and
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(b) irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named court, that its property is exempt or immune
from attachment or execution, that the Action is brought in an inconvenient
forum, that the venue of the Action is improper, or that this Agreement or the
transactions contemplated hereby may not be enforced in or by the above-named
court. This Agreement does not involve less than $100,000, and the parties
intend that 6 Del.C. ss.2708 shall apply to this Agreement.
17. Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
18. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterpart, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same.
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IN WITNESS WHEREOF, Parent and each Stockholder have caused to be
executed or executed this Agreement as of the date first written above.
BREP IV Hotels Holding L.L.C.
/s/ Xxxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Managing Director and
Vice President
X.X. Xxxxxxxxxx
/s/ X.X. Xxxxxxxxxx
-----------------------------------
X.X. Xxxxxxxxxx
UNITED CAPITAL CORP.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
