EXHIBIT 9.1
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MERISTAR HOTELS & RESORTS, INC.
STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 1, 2002 (this "AGREEMENT"), among
Interstate Hotels Corporation, a Maryland corporation ("INTERSTATE"), and each
of the persons set forth on Schedule A hereto (each, a "STOCKHOLDER" and,
collectively, the "STOCKHOLDERS").
RECITALS:
A. Interstate and Meristar Hotels & Resorts, Inc., a Delaware
corporation ("MERISTAR") propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "MERGER AGREEMENT"), pursuant to which
Interstate will be merged with and into MeriStar on the terms and subject to the
conditions set forth in the Merger Agreement. MeriStar will be the surviving
corporation in the Merger. Except as otherwise defined herein, capitalized terms
used herein shall have the respective meanings ascribed thereto in the Merger
Agreement.
B. As of the date hereof, each Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of shares of MeriStar Common Stock set forth
opposite such Stockholder's name on Schedule A hereto (such shares together with
any other shares of MeriStar Common Stock, the beneficial ownership of which is
acquired by such Stockholder during the period from and including the date
hereof through and including the date on which this Agreement is terminated
pursuant to Section 4.2 hereof, are collectively referred to herein as such
Stockholder's "SUBJECT SHARES").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Interstate has requested that each Stockholder agree, and each
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follow:
I. VOTING OF SUBJECT SHARES
1.1 AGREEMENT TO VOTE SUBJECT SHARES. From the date hereof until this
Agreement is terminated pursuant to Section 4.2 hereof, at any meeting of the
stockholders of MeriStar called to consider and vote upon the adoption of the
Merger Agreement (and at any and all postponements and adjournments thereof),
and in connection with any action to be taken in respect of the adoption of the
Merger Agreement by written consent of the stockholders of MeriStar, each
Stockholder will vote or cause to be voted (including by written consent, if
applicable) all of such Stockholder's Subject Shares which it has the right to
vote in favor of the adoption of the Merger Agreement and in favor of the
MeriStar Proposals and any other matter necessary or appropriate for the
consummation of the transactions relating to the Merger contemplated by the
Merger Agreement that is considered and voted upon at any such meeting or made
the subject of any such written consent, as applicable. At any meeting of the
stockholders of MeriStar called to consider and vote upon any Adverse Proposal
(and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of any Adverse Proposal by
written consent of the stockholders of MeriStar, each Stockholder will vote or
cause to be voted (including by written consent, if applicable) all of such
Stockholder's Subject Shares which it has the right to vote against the adoption
of such Adverse Proposal. For purposes of this Agreement, the term "ADVERSE
PROPOSAL" means any (a) MeriStar Acquisition Proposal that is not a MeriStar
Superior Proposal, (b) proposal or action that could reasonably be expected to
result in a breach of any covenant, agreement, representation or warranty of
MeriStar set forth in the Merger Agreement, or (c) the following actions (other
than the Merger, the other transactions contemplated by the Merger Agreement and
any other action the approval of which has been recommended by the board of
directors of MeriStar): (i) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving MeriStar or any
MeriStar Subsidiary; (ii) a sale, lease or transfer of a material amount of
assets of MeriStar or any MeriStar Subsidiary, or a reorganization,
recapitalization, dissolution or liquidation of MeriStar or any MeriStar
Subsidiary; (iii) (1) any change in a majority of the persons who constitute the
board of directors of MeriStar as of the date hereof; (2) any change in the
present capitalization of MeriStar or any amendment of MeriStar's certificate of
incorporation or bylaws, as amended to date; (3) any other material change in
MeriStar's corporate structure or business; or (4) any other action that is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or adversely affect the Merger and the other transactions contemplated
by this Agreement and the Merger Agreement or increase the likelihood that such
transactions will not be consummated.
1.2 IRREVOCABLE PROXY. (a) (a) GRANT OF PROXY. Each Stockholder hereby
appoints Interstate and any designee of Interstate, each of them individually,
as such Stockholder's proxy and attorney-in-fact, with full power of
substitution and resubstitution, to vote or act by written consent with respect
to all of such Stockholder's Subject Shares which it has the right to vote (i)
in accordance with Section 1.1 hereof and (ii) to sign its name (as a
stockholder) to any consent, certificate or other document relating to MeriStar
that the law of the State of Delaware may permit or require in connection with
any matter referred to in Section 1.1 hereof. This proxy is given to secure the
performance of the duties of such Stockholder under this Agreement and its
existence will not be deemed to relieve the Stockholders of their obligations
under Section 1.1 hereof. Each Stockholder affirms that this proxy is coupled
with an interest and is irrevocable until termination of this Agreement pursuant
to Section 4.2 hereof, whereupon such proxy and power of attorney shall
automatically terminate. Each Stockholder will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy. For Subject Shares as to which the Stockholder is the beneficial but
not the record owner, the Stockholder will cause any record owner of such
Subject Shares to grant to Interstate a proxy to the same effect as that
contained herein.
(b) OTHER PROXIES REVOKED. Each Stockholder represents that any
proxy heretofore given in respect of such Stockholder's Subject Shares is not
irrevocable, and is hereby revoked.
II. REPRESENTATIONS AND WARRANTIES
2.1 CERTAIN REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder, severally and not jointly, represents and warrants to Interstate as
follows:
(a) OWNERSHIP. Such Stockholder is the sole beneficial owner of
the number of
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Subject Shares set forth opposite such Stockholder's name on Schedule A hereto
and has full and unrestricted power to dispose of, to vote, to grant a proxy in
respect of and to convert such securities of MeriStar, as applicable. Such
Subject Shares are now, and at all times during the term hereof will be held by
such Stockholder or any Permitted Transferee (as defined in Section 4.1 hereof),
or by a nominee or custodian for the benefit of such Stockholder, free and clear
of all Liens and proxies, except for any Liens or proxies arising hereunder.
Except as set forth opposite the Stockholder's name on Schedule A hereto, such
Stockholder (i) does not beneficially own any securities issued by MeriStar on
the date hereof; (ii) does not, directly or indirectly, beneficially own or have
any option, warrant or other right to acquire any shares issued by MeriStar that
are or may by their terms become entitled to vote on any matter presented to
MeriStar's Stockholders or any securities that are convertible or exchangeable
into or exercisable for any securities issued by MeriStar that are or may by
their terms become entitled to vote, or any matter presented to MeriStar's
Shareholders nor is such Stockholder subject to any contract, commitment,
arrangement, understanding or relationship (whether or not legally enforceable),
other than this Agreement, that allows or obligates such Stockholder to vote,
dispose of or acquire any securities issued by MeriStar; and (iii) holds
exclusive power to vote the Subject Shares on any matter presented to MeriStar's
stockholders in respect of which such Subject Shares are entitled to vote or
give consent and has not granted a proxy to any other Person to vote or give
consent the Subject Shares, subject to the limitations set forth in this
Agreement.
(b) POWER AND AUTHORITY; EXECUTION AND DELIVERY. Such Stockholder
has all requisite individual power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement. This Agreement has been duly executed and delivered by such
Stockholder and constitutes a valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
(c) NO CONFLICTS. The execution and delivery of this Agreement do
not, and, subject to compliance with the HSR Act and appropriate filings under
securities laws (which such Stockholder agrees to make promptly), to the extent
applicable, the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, conflict with, result in a
violation or breach of, or constitute a default (or an event that, with notice
or lapse of time or both, would result in a default) or give rise to any right
of termination, amendment, cancellation, notice or acceleration under, (i) any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which such Stockholder is a party or by which such Stockholder is
bound, (ii) any injunction, judgment, writ, decree, order or ruling applicable
to such Stockholder or (iii) any law, statute, rule or regulation applicable to
such Stockholder; except in the case of clauses (i) and (ii) for conflicts,
violations, breaches or defaults that could not reasonably be expected to (1)
impair the ability of such Stockholder to perform its obligations under this
Agreement or (2) prevent or delay the consummation of any of the transactions
contemplated by this Agreement or the Merger Agreement.
(d) BROKERS. Except as set forth in Section 4.19 of the Merger
Agreement, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement or the Merger Agreement based upon arrangements
made by or on behalf of such Stockholder that is or will be payable by MeriStar
or any MeriStar Subsidiary.
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2.2 REPRESENTATIONS AND WARRANTIES OF INTERSTATE. Interstate hereby
represents and warrants to each Stockholder that:
(a) ORGANIZATION; AUTHORITY. Interstate is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation. Interstate has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement.
(b) EXECUTION AND DELIVERY. This Agreement has been duly executed
and delivered by Interstate and constitutes a valid and binding obligation of
Interstate, enforceable against Interstate in accordance with its terms.
(c) NO CONFLICTS. Neither the execution and delivery of this
Agreement nor the performance by Interstate of its respective obligations
hereunder will conflict with, result in a violation or breach of, or constitute
a default (or an event that, with notice or lapse of time or both, would result
in a default) or give rise to any right of termination, amendment, cancellation,
or acceleration under, (i) Interstate's charter, bylaws or similar constitutive
documents, (ii) any contract, commitment, agreement, understanding, arrangement
or restriction of any kind to which Interstate is a party or by which Interstate
is bound, (iii) any judgment, writ, decree, order or ruling applicable to
Interstate, or (iv) any law, statute, rule or regulation applicable to
Interstate; except in the case of clauses (ii) and (iii) for conflicts,
violations, breaches or defaults that could not reasonably be expected to (1)
impair the ability of Interstate to perform its obligations under this Agreement
or (2) prevent or delay the consummation of any of the transactions contemplated
by this Agreement or the Merger Agreement.
III. CERTAIN COVENANTS OF STOCKHOLDERS
3.1 RESTRICTION ON TRANSFER OF SUBJECT SHARES, PROXIES AND
NONINTERFERENCE. No Stockholder will, directly or indirectly: (a) except
pursuant to the terms of this Agreement, (i) offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or (ii) enter into any
contract, option or other arrangement or understanding with respect to or (iii)
consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of such Stockholder's Subject
Shares other than any sale, transfer, assignment or other action restricted by
this clause 3.1(a) to members of such Stockholder's immediate family, a family
trust of such Stockholder or a charitable institution (each a "PERMITTED
TRANSFEREE")if, in each case, the transferee of such Subject Shares agrees in
writing to be bound by the terms hereof and notice of such sale, transfer or
assignment, including the name and address of the purchaser, transferee or
assignee, is delivered to Interstate pursuant to Section 4.6 hereof; (b) except
pursuant to the terms of this Agreement, grant any proxies or powers of attorney
with respect to any Subject Shares, deposit any Subject Shares into a voting
trust or enter into a voting agreement with respect to any Subject Shares; or
(c) take any action that could reasonably be expected to make any of its
representations or warranties 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 preventing or delaying the
consummation of any of the transactions contemplated by this Agreement or the
Merger Agreement.
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3.2 ADJUSTMENTS. (a)(a) In the event (i) of any stock dividend, stock
split, recapitalization, reclassification, combination or exchange of shares of
capital stock or other securities of MeriStar on, of or affecting the Subject
Shares or any other similar action that would have the effect of changing a
Stockholder's ownership of Subject Shares or (ii) a Stockholder becomes the
beneficial owner of any additional Subject Shares, then the terms of this
Agreement will apply to the Subject Shares held by such Stockholder immediately
following the effectiveness of the events described in clause (i) or such
Stockholder becoming the beneficial owner thereof, as described in clause (ii).
(b) Each Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Interstate of the number of any new Subject Shares
acquired by such Stockholder, if any, after the date hereof.
3.3 NO SOLICITATION. Subject to Section 4.16, no Stockholder will take,
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant for such Stockholder) ("REPRESENTATIVES") to take, any action that
MeriStar would be prohibited from taking under the first sentence of Section
5.8(a) of the Merger Agreement (disregarding for purposes of this Section 3.3
the proviso to such sentence). Each Stockholder will, and will cause its
Representatives to, immediately cease all existing discussions or negotiations
with respect to any of the foregoing and promptly (and in any event within one
business day) advise Interstate in writing of the receipt by such Stockholder of
a request for information or any inquiries or proposals relating to a MeriStar
Acquisition Proposal. Notwithstanding any provision of Sections 3.3 or 3.5
hereof the contrary, (a) if any Stockholder or any of its Representatives is a
member of the Board of Directors of MeriStar, such member of the Board of
Directors of MeriStar may take actions in such capacity to the extent permitted
by Section 5.8 of the Merger Agreement, and (b) if any Stockholder is an officer
of MeriStar, such officer may take actions in such capacity to the extent
directed to do so by the Board of Directors in compliance with Section 5.8 of
the Merger Agreement.
3.4 WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that such Stockholder
may have.
3.5 COOPERATION. Each Stockholder will cooperate fully with MeriStar
and Interstate in connection with their respective reasonable best efforts to
fulfill the conditions to the Merger set forth in Article VI of the Merger
Agreement.
3.6 DISCLOSURE. Each Stockholder hereby authorizes Interstate to
publish and disclose in any announcement or disclosure required by the SEC and
the Proxy Statement (including all documents and schedules filed with the SEC in
connection with either of the foregoing), its identity and ownership of the
Subject Shares and the nature of its commitments, arrangements and
understandings under this Agreement provided that such Stockholder is provided
with a reasonable opportunity to review and comment on such disclosure.
IV. MISCELLANEOUS
4.1 FEES AND EXPENSES. Each party hereto will pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
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4.2 AMENDMENT; TERMINATION. This Agreement may not be amended except by
an instrument in writing signed on behalf of Interstate and each of the parties
whose rights or obligations are changed by the terms of such amendment. This
Agreement will terminate on the earliest to occur of (a) the Effective Time or
(b) the date the Merger Agreement is terminated in accordance with its terms.
This Agreement may be earlier terminated by the mutual consent of the Board of
Directors of Interstate and the Stockholders representing a majority of the
Subject Shares subject to this Agreement. Except as set forth below, in the
event of termination of this Agreement pursuant to this Section 4.2, this
Agreement will become null and void and of no effect with no liability on the
part of any party hereto and all proxies granted hereby will be automatically
revoked; provided, however, that no such termination will relieve any party
hereto from any liability for any breach of this Agreement occurring prior to
such termination.
Notwithstanding anything to the contrary contained in this Agreement,
if this Agreement is terminated for any reason, Sections 4.1, 4.5 and 4.15
hereof and the preceding sentence of this Section 4.2 will survive any
termination of this Agreement indefinitely.
4.3 EXTENSION; WAIVER. Any agreement on the part of a party to waive
any provision of this Agreement, or to extend the time for any performance
hereunder, will be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise will not constitute a waiver of
such rights. Any waiver by any party of a breach of any provision of this
Agreement will not operate as or be construed as a waiver of any other breach of
such provision or of any breach of any other provision of this Agreement. The
failure of a party to insist upon strict adherence to any term of this Agreement
or one or more sections hereof will not be considered a waiver or deprive that
party of a right thereafter to insist upon strict adherence to that term or any
other term of this Agreement.
4.4 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES; SEVERAL
OBLIGATIONS. This Agreement and the Merger Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to such matters. Neither the Merger Agreement nor
this Agreement is intended to confer upon any Person other than the parties
hereto any rights or remedies. The obligations of, and the representations and
warranties made by, each Stockholder shall be several and not joint and shall
relate only to such Stockholder.
4.5 GOVERNING LAW; WAIVER OF JURY TRIAL.(a) (a) 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 LAW OF THE STATE OF DELAWARE WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES.
(b) Each party acknowledges and agrees that any controversy which
may arise under this Agreement is likely to involve complicated and difficult
issues, and therefore each such party hereby irrevocably and unconditionally
waives any right such party may have to a trial by jury in respect of any
litigation directly or indirectly arising out of or relating to this Agreement,
or the transactions contemplated by this agreement. Each party certifies and
acknowledges that (i) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (ii) each such party
understands and has considered the implications of this waiver, (iii) each such
party
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makes this waiver voluntarily, and (iv) each such party has been induced to
enter into this agreement by, among other things, the mutual waivers and
certifications in this Section 4.5(b).
4.6 NOTICES. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid, or by
facsimile:
If to Interstate:
Interstate Hotels Corporation
Foster Plaza Ten
680 Andersen Drive
Pittsburgh, PA 15220
Attention: Timothy Q. Hudak, Esq.
Facsimile: (412) 937-3116
With copies to:
Jones, Day, Reavis & Pogue
222 East 41st Street
New York, New York 10017-6702
Attention: Jere R. Thomson, Esq.
Facsimile: (212) 755-7306
If to MeriStar or any Stockholder:
MeriStar Hotels and Resorts, Inc.
1010 Wisconsin Avenue, NW
Washington, DC 20007
Attention: Christopher L. Bennett, General Counsel
Facsimile: (202) 295-1026
With copies to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Richard S. Borisoff, Esq.
Facsimile: (212) 757-3990
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
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4.7 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 Interstate or by Interstate without the consent of
the applicable Stockholder (and then only with respect to such Stockholder), and
any such assignment or delegation that is not consented to will be null and
void; PROVIDED that this Agreement, together with any rights, interests, or
obligations of Interstate hereunder, may be assigned or delegated, in whole or
in part, by Interstate to any direct or indirect wholly owned subsidiary of
Interstate without the consent of or any action by any Stockholder upon notice
by Interstate to each Stockholder affected thereby as herein provided; PROVIDED
FURTHER, HOWEVER, that any such assignment shall not relieve MeriStar of its
obligations hereunder. Subject to the preceding sentence, this Agreement will 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 Subject Shares are sold, transferred or assigned).
4.8 FURTHER ASSURANCES. Each Stockholder will 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 Interstate in
order to ensure that Interstate receive the full benefit of this Agreement.
4.9 PUBLICITY. Except as may be required by Law or applicable stock
exchange rules, MeriStar, Interstate, and each Stockholder will reasonably
consult with each other party before issuing any press release or otherwise
making any public statements with respect to this Agreement and will not issue
any such press release or make any such public statement before such
consultation.
4.10 ENFORCEMENT. Irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity.
4.11 SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability or the other provisions of this Agreement.
If any provision of this Agreement, or the application of that provision to any
person or any circumstance, is invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted for that provision in order to carry
out, so far as may be valid and enforceable, the intent and purpose of the
invalid or unenforceable provision and (b) the remainder of this Agreement and
the application of the provision to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of the provision, or the
application of that provision, in any other jurisdiction.
4.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
4.13 HEADINGS. The descriptive headings contained herein are for
convenience and reference only and will not affect in any waythe meaning or
interpretation of this Agreement.
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4.14 REMEDIES NOT EXCLUSIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity will be cumulative and not alternative, and the exercise of any thereof
by either party will not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
4.15 JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)(a) Each party
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of the Chancery or other courts of the
State of Delaware (a "DELAWARE COURT"), and any appellate court from any such
court, in any suit, action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment resulting from any
suit, action or proceeding, and each party hereby irrevocably and
unconditionally agrees that all claims in respect of any such suit, action or
proceeding may be heard and determined in a Delaware Court.
(b) It will be a condition precedent to each party's right to
bring any such suit, action or proceeding that such suit, action or proceeding,
in the first instance, be brought in a Delaware Court (unless such suit, action
or proceeding is brought solely to obtain discovery or to enforce a judgment),
and if each such court refuses to accept jurisdiction with respect thereto, such
suit, action or proceeding may be brought in any other court with jurisdiction.
(c) No party may move to (i) transfer any such suit, action or
proceeding from a Delaware Court to another jurisdiction, (ii) consolidate any
such suit, action or proceeding brought in a Delaware Court with a suit, action
or proceeding in another jurisdiction, or (iii) dismiss any such suit, action or
proceeding brought in a Delaware Court for the purpose of bringing the same in
another jurisdiction.
(d) Each party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, (i) any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in a Delaware Court,
(ii) the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court, and (iii) the right to object, with
respect to such suit, action or proceeding, that such court does not have
jurisdiction over such party. Each party irrevocably consents to service of
process in any manner permitted by law.
4.16 FIDUCIARY DUTIES. Each Stockholder is signing this Agreement
solely in such Stockholder's capacity as the beneficial owner of Subject Shares
and, notwithstanding anything herein to the contrary, nothing contained herein
shall limit or affect any actions taken by such Stockholder or any designee of
such Stockholder in his or her capacity, if any, as an officer or director of
MeriStar or any of its Subsidiaries and none of such actions in any such
capacity shall be deemed to constitute a breach of this Agreement.
4.17 BENEFICIAL OWNERSHIP. For purposes of this Agreement, the term
"beneficial owner" shall have the meaning ascribed to such term under Rule 13d-3
under the Securities Exchange Act of 1934, and the terms "beneficially own" and
"beneficial ownership" shall have correlative meanings therewith.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
INTERSTATE HOTELS CORPORATION
By: /s/ Thomas F. Hewitt
---------------------------
Name: Thomas F. Hewitt
Title: Chief Executive Officer
JOHN EMERY
By: /s/ John Emery
----------------------------
STEVEN D. JORNS
By: /s/ Steven D. Jorns
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PAUL W. WHETSELL
By: /s/ Paul W. Whetsell
----------------------------
OAK HILL CAPITAL PARTNERS, L.P.
By: OHCP GenPar, L.P., its general partner
By: OHCP MGP, LLC, its general partner
By: /s/ Kevin G. Levy
------------------------------------
Name: Kevin G. Levy
Title: Vice President
OAK HILL CAPITAL MANAGEMENT PARTNERS, L.P.
By: OHCP GenPar, L.P., its general partner
By: OHCP MGP, LLC, its general partner
By: /s/ Kevin G. Levy
------------------------------------
Name: Kevin G. Levy
Title: Vice President
FW HOSPITALITY, L.P.
By: Group III 31, L.L.C., its general partner
By: /s/ Kevin G. Levy
------------------------------------
Name: Kevin G. Levy
Title: Vice President
ARBOR REIT, L.P.
By: Group Investors, L.L.C., its general partner
By: /s/ Kevin G. Levy
------------------------------------
Name: Kevin G. Levy
Title: Vice President
MHX INVESTORS, L.P.
By: FW Group Genpar, Inc., its general partner
By: /s/ Kevin G. Levy
------------------------------------
Name: Kevin G. Levy
Title: Vice President
SCHEDULE A
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Stockholder MeriStar Common Stock
- -------------------------------------------- -----------------------------------
John Emery 90,000
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Steven D. Jorns 1,073,930
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Paul W. Whetsell 533,319
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Oak Hill Capital Partners, L.P. 3,545,455
- -------------------------------------------- -----------------------------------
Oak Hill Capital Management Partners, L.P. 90,909
- -------------------------------------------- -----------------------------------
FW Hospitality, L.P. 764,067
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Arbor REIT, L.P. 764,067
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MHX Investors, L.P. 764,066
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