EXHIBIT 2.1
TERMINATION AGREEMENT
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TERMINATION AGREEMENT, dated as of March 22, 2001 (this
"AGREEMENT"), among MeriStar Hotels & Resorts, Inc., a Delaware corporation
("MeriStar"), American Skiing Company, a Delaware corporation ("ASC") and ASC
Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of ASC.
WHEREAS, the parties hereto are parties to a Agreement and
Plan of Merger, dated as of December 8, 2000 as amended by an Amendment to
Agreement and Plan of Merger dated as of February 21, 2001 (as so amended, the
"MERGER AGREEMENT"; capitalized terms used but not otherwise defined herein have
the meanings assigned to such terms in the Merger Agreement);
WHEREAS, Section 7.1(a) of the Merger Agreement provides that
the Merger Agreement may be terminated at any time prior to the Effective Time
by mutual written consent of each of MeriStar and ASC;
WHEREAS, the Board of Directors of each of MeriStar and ASC
has determined that it is in the best interests of each of their respective
companies and shareholders to terminate the Merger Agreement, and has authorized
the termination of the Merger Agreement pursuant to Section 7.1(a) thereof, upon
the terms and subject to the conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
respective covenants and agreements set forth in this Agreement, the parties
hereto agree as follows:
SECTION 1. TERMINATION. The Merger Agreement is hereby
terminated pursuant to Section 7.1(a) thereof by the mutual written consent of
the parties thereto.
SECTION 2. EFFECT OF TERMINATION; MUTUAL DISCHARGE AND
WAIVER. (a) Except as expressly provided in Sections 5.7(b) of the Merger
Agreement or as expressly provided in this Agreement and notwithstanding
anything to the contrary in Section 7.2 of the Merger Agreement, as a result of
the termination of the Merger Agreement pursuant hereto, the Merger Agreement,
the ASC Voting/Recapitalization Agreement and the MeriStar Voting Agreement
shall become void, and there shall be no liability under the Merger Agreement,
the ASC Voting/Recapitalization Agreement and the MeriStar Voting Agreement on
the part of any party hereto or any of their respective affiliates, subsidiaries
or Representatives, and all rights and obligations of each party thereto shall
cease, including, without limitation, the rights and obligations set forth in
Section 7.3 of the Merger Agreement and any liability for the breach of any
representations, warranties, covenants or agreements.
(b) In furtherance thereof, each party hereto, on behalf
of itself and its affiliates, subsidiaries, and Representatives, and the
predecessors, heirs, executors, administrators, successors and assigns of each
of them (each, a "RELEASING PARTY") hereby releases and forever discharges each
other party hereto and each of their respective affiliates, subsidiaries, and
Representatives, and the predecessors, heirs, executors, administrators,
successors and assigns of each of them, from any and all liabilities and
obligations, claims, demands, causes of action and suits, at law or in equity,
whether now known or unknown, whether arising under any United States federal,
state or local or any foreign law or otherwise, that any of them have, have had
or may have in the future to the Releasing Party arising out of or in connection
with the Merger Agreement (other than with regard to any violation of Section
5.7(b) of the Merger Agreement), the ASC Voting/Recapitalization Agreement or
the MeriStar Voting Agreement and the transactions contemplated thereby,
including, without limitation, any liability or obligation set forth in Section
7.3 of the Merger Agreement and any liability for the breach of any
representations, warranties, covenants or agreements.
(c) Notwithstanding paragraphs (a) and (b) above, the
parties agree that they shall share equally (i) the costs of the printing and
mailing of the Proxy Materials and the filing fees for the Proxy Statement, the
Registration Statement and HSR notification forms (ii) fees of appraisal firms,
legal counsel to lenders and other fees payable to lenders incurred in
connection with the Resorts Credit Facility Amendment and (iii) fees payable to
Fergus Partners Limited in connection with the Merger.
SECTION 3. FURTHER ASSURANCES. Each party hereto agrees
to use all reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement.
SECTION 4. GOVERNING LAW. This Agreement shall be
deemed to be made in and in all respects shall be interpreted, construed and
governed by and in accordance with the laws of the State of New York, without
regard to conflicts-of-law principles.
SECTION 5. 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 shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
SECTION 6. 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.
SECTION 7. COUNTERPARTS. This Agreement may be executed
and delivered (including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
MERISTAR HOTELS & RESORTS, INC.
By: /s/ Paul W. Whetsell
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Name: Paul W. Whetsell
Title: Chairman and CEO
AMERICAN SKIING COMPANY
By: /s/ Leslie B. Otten
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Name: Leslie B. Otten
Title: CEO and Chairman
ASC MERGER SUB, INC.
By: /s/ Leslie B. Otten
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Name: Leslie B. Otten
Title: CEO and Chairman