APPENDIX J
EXECUTION COPY
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.
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.
1
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.
2
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
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title:CHIEF EXECUTIVE OFFICER AND
CHAIRMAN OF THE BOARD
AMERICAN SKIING COMPANY
By:/s/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title:PRESIDENT
ASC MERGER SUB, INC.
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title:PRESIDENT
3
