EXHIBIT 2.1
EXECUTION COPY
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AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "AMENDMENT"),
dated as of February 21, 2001, among MERISTAR HOTELS & RESORTS, INC., a Delaware
corporation ("MERISTAR"), AMERICAN SKIING COMPANY, a Delaware corporation
("ASC"), and ASC MERGER SUB, INC., a Delaware corporation ("MERGER SUB").
RECITALS
(a) MeriStar, ASC and Merger Sub entered into an Agreement and
Plan of Merger, dated as of December 8, 2000 (the "MERGER AGREEMENT"), pursuant
to which, among other things, Merger Sub agreed to merge with and into MeriStar,
with MeriStar surviving as a wholly-owned subsidiary of ASC. All capitalized
terms used in this Amendment but not otherwise defined shall have the meanings
ascribed to them in the Merger Agreement.
(b) The parties to the Merger Agreement wish to revise the Merger
Agreement to provide for certain changes to the terms of the Merger Agreement.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Amendment, intending to be legally bound by this Amendment, agree as follows:
ARTICLE 1. Section 2.1(c) of the Merger Agreement is hereby
amended by replacing the number "1.88" in the first sentence thereof with the
number "1.75".
ARTICLE 2.
SECTION 2.1 Section 2.6(a) of the Merger Agreement is hereby
amended by replacing the number "1.88", in each of the two places where said
number occurs, with the number "1.75".
SECTION 2.2 Section 2.6(b) of the Merger Agreement is hereby
amended by replacing the number "1.88", in each of the two places where said
number occurs, with the number "1.75".
ARTICLE 3.
SECTION 3.1 Each of the parties hereto acknowledges and agrees
with the other parties hereto that, as of the date of this Amendment, such party
knows of no condition, event or circumstance that would give such party the
right to terminate the Merger Agreement.
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SECTION 3.2 ASC and Merger Sub acknowledge and agree with
MeriStar that, as of the date of this Amendment, each knows of no condition,
event or circumstance that would enable it to assert at the Closing Date that a
condition specified in Section 6.2(a) or 6.2(c) has not been satisfied.
SECTION 3.3 MeriStar acknowledges and agrees with ASC and
Merger Sub that, as of the date of this Amendment, it knows of no condition,
event or circumstance that would enable it to assert at the Closing Date that a
condition specified in Section 6.3(a) or 6.3(c) has not been satisfied.
ARTICLE 4.
SECTION 4.1 Except as expressly amended or modified herein,
the provisions of the Merger Agreement are and shall remain in full force and
effect.
SECTION 4.2 In the event any provision hereof is held void or
unenforceable by any court, such provision shall be severable and shall not
affect the remaining provisions hereof.
SECTION 4.3 This Amendment, the Merger Agreement (including
any annexes to the Merger Agreement), the MeriStar Disclosure Letter, the ASC
Disclosure Letter, the ASC Voting/Recapitalization Agreement and the MeriStar
Voting Agreement constitute the entire agreement and supersede all other prior
agreements, understandings, representations and warranties, both written and
oral, among the parties, with respect to the subject matter of those agreements.
SECTION 4.4 THIS AMENDMENT SHALL BE DEEMED TO BE MADE IN AND
IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES, EXCEPT THAT MATTERS GOVERNED OR AFFECTED BY THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE SHALL BE GOVERNED BY THAT LAW.
SECTION 4.5 This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officers of the parties to this Amendment as of
the date first written above.
MERISTAR HOTELS & RESORTS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer and
Chairman of the Board
AMERICAN SKIING COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
ASC MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
