EXHIBIT 4.1
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT (this "AMENDMENT"), dated as of December 8, 2000, by and
between MeriStar Hotels & Resorts, Inc., a Delaware corporation (the "COMPANY"),
and Continental Stock Transfer & Trust Company, a New York corporation (the
"RIGHTS AGENT"), to the Preferred Share Purchase Rights Agreement (the "RIGHTS
AGREEMENT"), dated as of July 23, 1998, between the Company and the Rights
Agent.
W H E R E A S
The Company and the Rights Agent have previously executed and entered
into the Rights Agreement;
Pursuant to Section 27 of the Rights Agreement, the Company and the
Rights Agent may from time to time supplement or amend the Rights Agreement; and
In anticipation of the execution of and the entering into the Agreement
and Plan of Merger (the "MERGER AGREEMENT"), by and among the Company, American
Skiing Company ("ASC") and ASC Merger Sub, Inc., the Company and the Rights
Agent wish to amend the Rights Agreement to, among other things, exclude the
parties to the Merger Agreement, who would otherwise be deemed an Acquiring
Person after the implementation of the terms of the Merger Agreement, from such
definition of "Acquiring Person" and to terminate the Rights Agreement after the
completion of the transactions contemplated by the Merger Agreement.
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Rights Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the adequacy of which is hereby acknowledged, the parties
hereto agree to amend the Rights Agreement as follows:
1. AMENDMENTS TO THE RIGHTS AGREEMENT.
1.1 Section 1(a) of the Rights Agreement is amended and
restated in its entirety to read as follows:
"(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 20% or more of the Common Shares of the Company then
outstanding but shall not include (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company or of any Subsidiary of
the Company, or any entity holding Common Shares for or pursuant to the terms of
any such plan, (iv) MeriStar and its affiliates, (v) CapStar Hotel Company, a
Delaware corporation, before the Company is
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spun off from CapStar Hotel Company or (vi) any Merger Holder who acquires such
Beneficial Ownership in the Merger. Notwithstanding anything in this definition
of Acquiring Person to the contrary, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares by the Company which,
by reducing the number of shares outstanding, increases the proportionate number
of shares beneficially owned by such Person to 20% or more of the Common Shares
of the Company then outstanding; provided, however, that if a Person shall
become the Beneficial Owner of 20% or more of the Common Shares of the Company
then outstanding by reason of share purchases by the Company and shall, after
such share purchases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company, then such Person shall be deemed to be
an "Acquiring Person." Notwithstanding anything in this definition of Acquiring
Person to the contrary, if the Board of Directors determines in good faith that
a Person who would otherwise be an "Acquiring Person," as defined pursuant to
the foregoing provisions of this paragraph (a), has become such inadvertently,
and such Person divests as promptly as practicable a sufficient number of Common
Shares so that such Person would no longer be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this paragraph (a), then such Person
shall not be deemed to be an "Acquiring Person" for any purposes of this
Agreement."
1.2 The following Sections 1(t) and 1(u) are hereby
added:
"(t) "Merger" means the transactions contemplated by
the Agreement and Plan of Merger to be executed by and among the Company,
American Skiing Company, a Delaware corporation, and a wholly owned subsidiary
of American Skiing Company (as amended to date).
(u) "Merger Holder" means any Person who Beneficially
Owns the Common Shares of the Company as a result of the Merger."
1.3 Section 3 of the Rights Agreement is amended and
restated in its entirety to read as follows:
"Section 3. ISSUE OF RIGHT CERTIFICATES. (a) Until the earlier
of (i) the tenth day after the Shares Acquisition Date or (ii) the tenth
Business day (or such later date as may be determined by action of the Board of
Directors prior to such time as any Person becomes an Acquiring Person) after
the date of the commencement by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, any entity holding Common Shares for or pursuant to
the terms of any such plan or any MeriStar Affiliate) of, or of the first public
announcement of the intention of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, any entity holding Common Shares for or pursuant to
the terms of any such plan or, any MeriStar Affiliate) to commence, a tender or
exchange
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offer (other than the Merger) the consummation of which would result in any
Person becoming the Beneficial Owner of Common Shares aggregating 20% or more of
the then outstanding Common Shares (the earlier of such dates being herein
referred to as the "Rights Distribution Date"), (x) the Rights shall be
evidenced (subject to the provisions of Section 3(b) hereof) by the certificates
for Common Shares registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and not by separate
Right Certificates, and (y) the right to receive Right Certificates shall be
transferable only in connection with the transfer of Common Shares. As soon as
practicable after the Rights Distribution Date, the Company shall prepare and
execute, the Rights Agent shall countersign, and the Company shall send or cause
to be sent (and the Rights Agent shall, if requested, send) by first-class,
postage-prepaid mail, to each record holder of Common Shares as of the Close of
Business on the Rights Distribution Date, at the address of such holder shown on
the records of the Company, a Right Certificate, in substantially the form of
Exhibit B hereto (a "Right Certificate"), evidencing one Right for each Common
Share so held. From and after the Rights Distribution Date, the Rights shall be
evidenced solely by such Right Certificates."
1.4 The following Section 35 shall be added:
"Section 35. TERMINATION UPON COMPLETION OF THE MERGER.
Immediately after the completion of the Merger, this Agreement and the Rights
issued hereunder shall terminate and be of no further force and effect."
2. MISCELLANEOUS.
2.1 Except as expressly amended or modified herein, the
provisions of the Rights Agreement are and shall remain in full force and
effect.
2.2 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.
2.3 This Amendment, together with the Rights Agreement,
reflects the entire agreement among the parties and supersedes all prior
agreements and communications, either oral or in writing, among the parties
hereto with respect to the subject matter hereof.
2.4 Each of the parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby.
2.5 THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
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DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE (WITHOUT REGARD TO THE CONFLICTS OF LAWS, PRINCIPLES OF SUCH STATE).
2.6 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, the undersigned have executed this
Amendment as of the date first above written.
MERISTAR HOTELS & RESORTS, INC.
By: /s/ Paul W. Whetsell
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Name: Paul W. Whetsell
Title: Chief Executive Officer and Chairman of the
Board
CONTINENTAL STOCK TRANSFER & TRUST
COMPANY
By: /s/ Roger Bernhammer
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Name: Roger Bernhammer
Title: Vice President