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EXHIBIT 10.1
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of March 23, 2000 (this "AGREEMENT"), by
and among MERISTAR HOTELS & RESORTS, INC., a Delaware corporation ("PARENT"),
MERISTAR BROOKLYN, INC., a Delaware corporation and wholly owned subsidiary of
Parent ("ACQUISITION SUB"), and the shareholders of BRIDGESTREET ACCOMMODATIONS,
INC., a Delaware corporation (the "COMPANY"), listed on SCHEDULE I hereto (each,
a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
WHEREAS, Parent, Acquisition Sub and the Company propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (the "MERGER
AGREEMENT"), which provides for, among other things, the merger of Acquisition
Sub with and into the Company (the "MERGER");
WHEREAS, as of the date hereof, the Stockholders are holders of record or
Beneficially Own (as defined herein) shares of Common Stock; and
WHEREAS, as a condition to the willingness of Parent and Acquisition Sub to
enter into the Merger Agreement, Parent and Acquisition Sub have required that
each Stockholder agrees, and in order to induce Parent and Acquisition Sub to
enter into the Merger Agreement, each Stockholder has agreed, severally and not
jointly, to enter into this Agreement with respect to all of the shares of
Company Common Stock now held of record or Beneficially Owned and which may
hereafter be acquired by such Stockholder or the Beneficial Ownership of which
such Stockholder may hereafter acquire during the period from and including the
date hereof through and including the date on which this Agreement is terminated
pursuant to Section 7.1 hereof (not including such shares of Company Common
Stock subject to outstanding options until such time as such shares are acquired
by such Stockholder upon exercise thereof) (collectively, the "SHARES").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 GENERAL. Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement.
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Section 1.2 BENEFICIAL OWNERSHIP. For purposes of this Agreement,
"BENEFICIALLY OWN ," "BENEFICIALLY OWNED" or "BENEFICIAL OWNERSHIP" with respect
to any securities shall mean "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing.
ARTICLE 2
VOTING OF SHARES
Section 2.1 AGREEMENT TO VOTE THE SHARES. Each of the Stockholders hereby
agrees as follows:
(a) to appear, or cause the holder of record on any applicable record date
with respect to any Shares held of record or Beneficially Owned by such
Stockholder (the "RECORD HOLDER") to appear, in person or by proxy, for the
purpose of obtaining a quorum at any annual or special meeting of Stockholders
of the Company and at any adjournment thereof at which matters relating to the
Merger, the Merger Agreement (as amended from time to time) or any transaction
contemplated by the Merger Agreement are considered;
(b) at any meeting of the Stockholders of the Company however called, and
in any action by consent of the Stockholders of the Company, to vote, or cause
to be voted by the Record Holder, in person or by proxy, the Shares held of
record or Beneficially Owned by such Stockholder in favor as required of the
Merger, the Merger Agreement (as amended from time to time) and the transactions
contemplated by the Merger Agreement; and
(c) at any meeting of the shareholders of the Company however called, and
in any action by consent of the shareholders of the Company, to vote or cause to
be voted by the Record Holder, in person or by proxy, the Shares held of record
or Beneficially Owned by such Stockholder against (i) any acquisition or
purchase of a substantial amount of assets of, or any equity interest in, the
Company or any of its Subsidiaries or any tender offer (including a self tender
offer) or exchange offer, merger, consolidation, business combination, sale of
substantially all assets, sale of securities, recapitalization, liquidation,
dissolution or similar transaction involving the Company or any of its
Subsidiaries (other than the transactions contemplated by the Merger Agreement),
(ii) any other proposal or material corporate transaction the consummation of
which would or could reasonably be expected to impede, interfere with, prevent
or materially delay the consummation of the Merger or of any of the transactions
contemplated by the Merger Agreement or this Agreement or (iii) any proposal or
action that would reasonably be expected to result in a breach of any covenant,
representation or warranty of the Company set forth in the Merger Agreement
(collectively, "ADVERSE PROPOSALS").
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Section 2.2 IRREVOCABLE PROXY . EACH SHAREHOLDER HEREBY APPOINTS PARENT AND
ANY DESIGNEE OF PARENT, EACH OF THEM INDIVIDUALLY, SUCH SHAREHOLDER'S PROXY AND
ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 212 OF THE DELAWARE
GENERAL CORPORATION LAW, WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, TO
VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO SUCH SHAREHOLDER'S SHARES IN
ACCORDANCE WITH SECTION 2.2 HEREOF. THIS PROXY IS GIVEN TO SECURE THE
PERFORMANCE OF THE DUTIES OF SUCH SHAREHOLDER UNDER THIS AGREEMENT. EACH AFFIRMS
THAT THIS PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE. EACH
SHAREHOLDER SHALL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY.
Section 2.3 NO OWNERSHIP INTEREST. Except as set forth in this Article 2
and in Article 3 hereof, nothing contained in this Agreement shall be deemed to
vest in Parent or Acquisition Sub any direct or indirect ownership or incidence
of ownership of or with respect to any Shares. All rights, ownership and
economic benefits of and relating to the Shares shall remain and belong to the
Stockholders, and neither Parent nor Acquisition Sub shall have any authority to
manage, direct, restrict, regulate, govern, or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Stockholders in the voting of any of the Shares except as otherwise provided
herein, or the performance of the Stockholders' duties or responsibilities as
shareholders of the Company.
ARTICLE 3
OPTION
Section 3.1 GRANT OF THE OPTION. Each Stockholder hereby grants to Parent
an irrevocable option (each, an "OPTION" and, collectively, the "OPTIONS") to
purchase such Stockholder's Shares on the terms and subject to the conditions
set forth herein in cash at a price per share equivalent to the value of the
Merger Consideration (as defined in the Merger Agreement) (the "PURCHASE
PRICE"); PROVIDED, HOWEVER, that if Parent, Acquisition Sub or any affiliate of
either such company subsequently enters into any agreement or arrangement to
acquire the Company, by merger, tender offer, asset acquisition or otherwise,
for consideration on a per share basis that is greater than the Merger
Consideration (a "SUBSEQUENT OFFER"), the Purchase Price will be increased to an
amount in cash equal to the value of the Subsequent Offer. In the event a
Subsequent Offer is made following the exercise of some or all of the Options
granted hereunder, the Parent shall promptly pay to the Stockholder by wire
transfer an amount equal to (x) the Subsequent Offer multiplied by the number of
shares for which the Option granted by such Stockholder has been exercised minus
(y) the aggregate Purchase Price paid for that portion of the Option exercised.
For purposes of
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this Agreement, the Average Trading Price shall be calculated based on the
average of the closing prices for a share of Parent Common Stock as reported on
the NYSE Composite Transaction Tape for the ten trading days ending three
trading days prior to the date on which the Options become exercisable. If the
Merger Agreement is terminated (otherwise than pursuant to Section 7.1(a),
Section 7.1(b), Section 7.1(c), Section 7.1(e), Section 7.1(f) or Section 7.1(h)
thereof under circumstances in which the Company is entitled to so terminate the
Merger Agreement (each, a "Company Termination")) in accordance with its terms
for reasons other than the failure of Parent or Acquisition Sub to fulfill their
respective obligations under the Merger Agreement, then (and only then) the
Options shall become exercisable (in whole but not in part) and remain
exercisable (in whole but not in part) until the date that is 20 days after the
date of the occurrence of the event described above (the applicable period of
exercisability being the "OPTION PERIOD").
Section 3.2 EXERCISE OF THE OPTION.
(a) Parent may exercise all of the Options, in whole but not in part, at
any time or from time to time during the Option Period. Notwithstanding anything
in this Agreement to the contrary, Parent shall be entitled to purchase all
Shares in respect of which it shall have exercised an Option in accordance with
the terms hereof prior to the expiration of the Option Period, and the
expiration of the Option Period shall not affect any rights hereunder which by
their terms do not terminate or expire prior to or as of such expiration.
(b) If Parent wishes to exercise an Option, it shall deliver to the
applicable Stockholder (each a "SELLING STOCKHOLDER") a written notice (an
"EXERCISE NOTICE") to that effect which specifies a date (an "OPTION CLOSING
DATE") not earlier than three business days after the date such Exercise Notice
is delivered for the consummation of the purchase and sale of such Shares (an
"OPTION CLOSING"). If the Option Closing cannot be effected on the Option
Closing Date specified in the Exercise Notice by reason of any applicable
judgment, decree, order, law or regulation, or because any applicable waiting
period under the HSR Act shall not have expired or been terminated, (i) the
Stockholders shall promptly take all such actions as may be reasonably requested
by Parent, and shall otherwise fully cooperate with Parent, to use such
Stockholder's reasonable efforts to cause the elimination of all such
impediments to the Option Closing and (ii) the Option Closing Date specified in
the Exercise Notice shall be extended to the third business day following the
elimination of all such impediments. The place of the Option Closing shall be at
the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the time of the Option Closing shall be
10:00 a.m. (Eastern Time) on the Option Closing Date.
Section 3.3 PAYMENT AND DELIVERY OF THE CERTIFICATES. At any Option
Closing, Parent shall deliver to each Selling Stockholder, by wire transfer of
immediately available funds to such account as shall have been designated by
such Selling Stockholder to Parent prior to the Option Closing, the Purchase
Price payable in respect of the Shares to be purchased from such Selling
Stockholder at the Option Closing, and each Selling Stockholder shall
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deliver to Parent such Shares, free and clear of all Liens, with the certificate
or certificates evidencing such Shares being duly endorsed for transfer by such
Selling Stockholder and accompanied by all powers of attorney and/or other
instruments necessary to convey valid and unencumbered title thereto to Parent,
and shall assign to Parent (pursuant to a written instrument in form and
substance satisfactory to Parent) all rights that such Selling Stockholder may
have to require the Company to register such Shares under the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder (the
"SECURITIES Act").
Section 3.4 ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. In the event of
any change in the capital stock of the Company by reason of a stock dividend,
subdivision, reclassification, recapitalization, split, combination, exchange of
shares, extraordinary distribution or similar transaction, the type and number
or amount of shares, securities or other property subject to each of the
Options, and the Purchase Price payable therefor, shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
such transaction, so that (a) Parent shall receive upon exercise of any Option
the type and number or amount of shares, securities or property that Parent
would have retained and/or been entitled to receive in respect of the applicable
Selling Stockholder's Shares if the Option had been exercised immediately prior
to such event relating to the Company or the record date therefor, as
applicable, and (b) the applicable Selling Stockholder shall receive upon
exercise of any Option granted by such Selling Stockholder the amount of cash
that such Selling Stockholder would have received as a result of the exercise of
the Option if the Option had been exercised immediately prior to such event
relating to the Company or the record date therefor, as applicable. The
provisions of this Section 3.4 shall apply in a like manner to successive stock
dividends, subdivisions, reclassifications, recapitalizations, splits,
combinations, exchanges of shares, extraordinary distributions or similar
transactions.
Section 3.5 ACQUIRED SHARES. In the event that (i) Shares are acquired by
Parent pursuant to the exercise of the Options (such acquired Shares being the
"ACQUIRED SHARES"), and (ii) Parent thereafter sells, transfers or disposes of
the Acquired Shares within eighteen months after the acquisition of such
Acquired Shares (any such sale, transfer or disposition of Acquired Shares
occurring within such eighteen month period being a "SALE"); Parent shall
promptly pay to the Selling Stockholders (pro rata, in proportion to the number
of Acquired Shares purchased from each Stockholder) an amount in cash equal to
the positive difference (if any) between the aggregate proceeds received by
Parent in the Sale (net of selling commissions, if any) and the aggregate
Purchase Price paid by Parent for the Acquired Shares sold, transferred or
disposed of in such Sale. Parent shall effect any Sale of Acquired Shares only
to an unaffiliated party in a bona fide arm's-length transaction.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
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Each of the Stockholders hereby represents and warrants, severally and not
jointly, to each of Parent and Acquisition Sub as follows:
Section 4.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Such Stockholder has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. Where such Stockholder is a corporation, partnership or other entity,
the execution and delivery of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby have
been duly and validly authorized by the board of directors or other governing
body of such Stockholder, and no other proceedings on the part of such
Stockholder are necessary to authorize this Agreement or to consummate such
transactions and where such Stockholder is an individual, such individual has
the capacity to enter into this Agreement. This Agreement has been duly and
validly executed and delivered by such Stockholder and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally or by general principles
governing the availability of equitable remedies.
Section 4.2 NO CONFLICT.
(a) The execution and delivery of this Agreement by such Stockholder does
not, and the performance of this Agreement by such Stockholder shall not, (i)
where such Stockholder is a corporation, partnership or other entity, conflict
with or violate the organizational documents of such Stockholder, (ii) conflict
with or violate any agreement, arrangement, law, rule, regulation, order,
judgment or decree to which such Stockholder is a party or by which such
Stockholder (or the Shares held of record or Beneficially Owned by such
Stockholder) is bound or affected or (iii) result in any breach of or constitute
a default (or an event that 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 (as defined
below) on any of the Shares held of record or Beneficially Owned by such
Stockholder pursuant to any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder (or the Shares
held of record or Beneficially Owned by such Stockholder) is bound or affected.
(b) The execution and delivery of this Agreement by such Stockholder does
not, and the performance of this Agreement by such Stockholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental entity except for applicable requirements, if
any, of federal or state securities and antitrust laws and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent the performance by such
Stockholder of its obligations under this Agreement.
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Section 4.3 TITLE TO THE SHARES. As of the date hereof, such Stockholder is
the sole record or Beneficial Owner of the Shares listed opposite the name of
such Stockholder on SCHEDULE I hereto and has full and unrestricted power to
dispose of and to vote such Shares. The Shares listed opposite the name of such
Stockholder on SCHEDULE I hereto are all the securities of the Company either
held of record or Beneficially Owned by such Stockholder. Such Stockholder has
not appointed or granted any proxy, which appointment or grant is still
effective, with respect to the Shares held of record or Beneficially Owned by
such Stockholder. The Shares listed opposite the name of such Stockholder on
SCHEDULE I hereto are owned free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, limitations on such
Stockholder's voting rights, charges and other encumbrances of any nature
whatsoever ("LIENS"). The transfer by such Stockholder of its Shares to
Acquisition Sub pursuant to the Merger or the applicable Option shall pass to
and unconditionally vest in Acquisition Sub good and valid title to such Shares,
free and clear of all Liens.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF
PARENT AND ACQUISITION SUB
Each of Parent and Acquisition Sub hereby represents and warrants,
severally and not jointly, to each of the Stockholders as follows:
Section 5.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Each of Parent and
Acquisition Sub has all necessary power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Parent and Acquisition Sub and the consummation by Parent and Acquisition Sub
of the transactions contemplated hereby have been duly and validly authorized by
the board of directors or other governing body of Parent and Acquisition Sub,
and no other proceedings on the part of Parent or Acquisition sub are necessary
to authorize this Agreement or to consummate such transactions. This Agreement
has been duly and validly executed and delivered by each of Parent and
Acquisition Sub and, assuming the due authorization, execution and delivery by
the other parties hereto, constitutes a legal, valid and binding obligation of
Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in
accordance with its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting creditors'
rights generally or by general principles governing the availability of
equitable remedies.
Section 5.2 NO CONFLICT.
(a) The execution and delivery of this Agreement by each of Parent and
Acquisition Sub does not, and the performance of this Agreement by Parent and
Acquisition Sub shall not, (i) conflict with or violate the organizational
documents of Parent or
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Acquisition Sub, (ii) conflict with or violate any agreement, arrangement, law,
rule, regulation, order, judgment or decree to which Parent or Acquisition Sub
is a party or by which Parent or Acquisition Sub is bound or affected or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse or time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Parent or Acquisition Sub
is a party or by which Parent or Acquisition Sub is bound or affected.
(b) The execution and delivery of this Agreement by each of Parent and
Acquisition Sub does not, and the performance of this Agreement by Parent and
Acquisition Sub shall not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental entity except for
applicable requirements, if any, of federal or state securities and antitrust
laws and except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent the performance by Parent or Acquisition Sub of their obligations under
this Agreement.
Section 5.3 SECURITIES LAW COMPLIANCE. The Options and the Shares to be
acquired upon exercise of the Options are being and shall be acquired by Parent
without a view to public distribution thereof otherwise than in compliance with
the Securities Act and applicable state securities laws and shall not be
transferred or otherwise disposed of except in a transaction registered or
exempt from registration under the Securities Act and in compliance with
applicable state securities laws. Neither Parent nor Acquisition Sub will effect
any offer or sale of Shares which would cause any Stockholder to violate the
registration requirements of the Securities Act, or the registration or
qualification requirements of the securities laws of any jurisdiction.
ARTICLE 6
COVENANTS OF THE SHAREHOLDERS
Section 6.1 NO INCONSISTENT AGREEMENTS. Each Stockholder hereby represents,
warrants, covenants and agrees that, except as expressly provided by this
Agreement and the Merger Agreement, such Stockholder has not and shall not, and
will not permit any Person under such Stockholder's control (including any
Record Holder) to, (i) enter into any voting agreement or grant a proxy or power
of attorney with respect to the Shares held of record or Beneficially Owned by
such Stockholder or deposit such Shares into a voting trust agreement or (ii)
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 impeding, interfering with, preventing or delaying the
consummation of the Merger or of any of the transactions contemplated by the
Merger Agreement or this Agreement.
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Section 6.2 TRANSFER OF TITLE. Each Stockholder hereby covenants and agrees
that, except as expressly provided by the Merger Agreement or this Agreement,
such Stockholder will not, prior to the termination of this Agreement, either
directly or indirectly, offer or otherwise agree to sell, assign, pledge,
hypothecate, transfer, exchange, or dispose of any Shares or options, warrants
or other convertible securities to acquire or purchase shares of Company Common
Stock (collectively, "DERIVATIVE SECURITIES") or any other securities or rights
convertible into or exchangeable for shares of Company Common Stock, held of
record or Beneficially Owned either directly or indirectly by such Stockholder
or with respect to which such Stockholder has the power of disposition, whether
now or hereafter acquired, without the prior written consent of Parent or
Acquisition Sub, unless the Person to whom Shares or Derivative Securities have
been sold, assigned, pledged, hypothecated, transferred, exchanged or disposed
agrees to be bound by and become a party to this Agreement. Each Stockholder
hereby agrees and consents to the entry of stop transfer instructions by Parent
or Acquisition Sub against the transfer of any Shares inconsistent with the
terms of this Section 6.2.
Section 6.3 NO SOLICITATION. Except as otherwise provided under Section
7.11 hereto, no Stockholder shall, nor shall such Stockholder authorize or
permit any of its directors, officers, employees, investment bankers,
accountants, attorneys or other agents or representatives, directly or
indirectly to, (i) solicit, initiate, encourage (including by way of furnishing
information or assistance) or take any other action to facilitate, any inquiry
or the making of any proposal which constitutes, or may reasonably be expected
to lead to, an Adverse Proposal or agree to or endorse any Adverse Proposal or
(ii) propose, enter into or participate in any discussions or negotiations
regarding any of the foregoing, or furnish to any other Person any information
with respect to the Company's business, properties or assets or any of the
foregoing, or otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage, any effort or attempt by any other Person to do or seek
any of the foregoing. Except as otherwise provided under Section 7.11 hereto,
each Stockholder shall immediately cease and cause to be terminated all existing
discussions or negotiations with any Persons conducted heretofore with respect
to, or that could reasonably be expected to lead to, any Adverse Proposal.
Section 6.4 WAIVER OF APPRAISAL RIGHTS OR FIRST OFFER RIGHTS. Each
Stockholder hereby waives any rights of appraisal or rights to dissent from the
Merger that such Stockholder may have. No Stockholder shall exercise any
purchase right or right of first refusal that it may have with respect to any
securities of the Company owned by any other Person in connection with any
tender by such other Person of such securities pursuant to the Merger.
Section 6.5 COOPERATION. Each Stockholder shall cooperate fully with Parent
and Acquisition Sub in connection with their respective reasonable best efforts
to fulfill the conditions to the Merger set forth under the Merger Agreement.
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ARTICLE 7
MISCELLANEOUS
Section 7.1 TERMINATION. This Agreement shall terminate upon the earlier to
occur of (i) the Effective Time, (ii) the date on which the Option Period
expires (or, if later, the date on which the last Option Closing occurs) and
(iii) a Company Termination. Upon such termination, no party shall have any
further obligations or liabilities hereunder; PROVIDED, HOWEVER, that nothing in
this Agreement shall relieve any party from liability for the breach of any of
its representations, warranties, covenants and agreements set forth in this
Agreement prior to such termination.
Section 7.2 ADDITIONAL SHARES. If, after the date hereof, a Stockholder
acquires record ownership or Beneficial Ownership of any additional shares of
Company Common Stock (any such shares shall be referred to herein as "ADDITIONAL
SHARES"), including, without limitation, upon exercise or conversion of any
Derivative Security or through any stock dividend or stock split, the provisions
of this Agreement applicable to the Shares shall be applicable to such
Additional Shares as if such Additional Shares had been outstanding Shares as of
the date hereof. The provisions of the immediately preceding sentence shall be
effective with respect to Additional Shares without action by any Person
immediately upon the acquisition by a Stockholder of record or Beneficial
Ownership of such Additional Shares.
Section 7.3 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 7.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among Parent, Acquisition Sub and the Stockholders with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, among Parent, Acquisition Sub and the Stockholders with
respect to the subject matter hereof.
Section 7.5 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 7.6 SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule or 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
this Agreement 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 hereby shall negotiate in good faith
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to modify this Agreement so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable law in a
mutually acceptable manner in order that the terms of this Agreement remain as
originally contemplated.
Section 7.7 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, upon
receipt of a transmission confirmation if sent by facsimile (with a confirming
copy sent by overnight courier) and on the next business day if sent by Federal
Express, United Parcel Service, Express Mail or other reputable overnight
courier to the parties at the following addresses (or at such other address for
a party as shall be specified by notice):
If to a Stockholder to such Stockholder's address set forth on SCHEDULE I
hereto.
If to Parent or Acquisition Sub, to:
MeriStar Hotels & Resorts, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Section 7.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state without giving
effect to the provisions thereof relating to conflicts of law.
Section 7.9 OBLIGATIONS OF STOCKHOLDERS. The obligations of the
Stockholders hereunder shall be "several" and not "joint" or "joint and
several." Without limiting the generality of the foregoing, under no
circumstances will any Stockholder have any liability or obligation with respect
to any misrepresentation or breach of covenant of any other Stockholder.
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Section 7.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which, when taken
together, shall constitute one and the same instrument.
Section 7.11 OFFICERS AND DIRECTORS. No person who is or becomes (during
the term of this Agreement) a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer, and nothing herein will limit or affect, or give rise to any liability
to any Stockholder by virtue of, any actions taken by any Stockholder solely in
his or her capacity as an officer or director of the Company in exercising its
rights under the Merger Agreement and the transactions contemplated thereby, and
no such actions shall be deemed a breach or default under this Agreement.
Section 7.12 FEES AND EXPENSES. Each party hereto shall pay its own
expenses incident to preparing, entering into and performing its obligations
under this Agreement and the consummation of the transactions contemplated
hereunder.
Section 7.13 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 Parent, and any such assignment or delegation that
is not consented to shall be null and void. This Agreement, together with any
rights, interests, or obligations of Parent hereunder, may be assigned or
delegated, in whole or in part, by Parent without the consent of or any action
by any Stockholder upon notice by Parent to each Stockholder affected thereby as
herein provided. 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 Shares are sold, transferred or assigned).
Section 7.14 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 Parent in order to
ensure that Parent receives the full benefit of this Agreement.
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IN WITNESS WHEREOF, each of the Stockholders, Parent and Acquisition Sub
have caused this Agreement to be duly executed on the date hereof.
MERISTAR HOTELS & RESORTS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal and Secretary
MERISTAR BROOKLYN, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal and Secretary
SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxxxx
----------------------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx, III
----------------------------------------------
Xxxxxxx X. Xxxxxx, III
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
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/s/ Xxxxx Xxx Xxxxxxxx
----------------------------------------------
Xxxxx Xxx Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
----------------------------------------------
Xxxx X. Xxxxxxxx
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