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EXHIBIT 1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of July 25, 1997, between PRIME
HOSPITALITY CORP., a Delaware corporation ("Parent"), and the stockholder of
HOMEGATE HOSPITALITY, INC., a Delaware corporation (the "Company"), whose name
and signature is set forth on the signature page hereof (the "Stockholder").
RECITALS
The Company, Parent and PH Sub Corporation, a Delaware corporation
and a wholly owned subsidiary of Parent ("Parent Sub"), are entering into an
Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), pursuant to which, subject to the
terms and conditions of the Merger Agreement, Parent Sub will merge with and
into the Company (the "Merger"), and each outstanding share of Company Common
Stock, other than shares owned by the Company or Parent or their respective
affiliates, will be converted into the right to receive a number of shares of
Parent Common Stock, all as more fully set forth in the Merger Agreement.
As of the date hereof, the Stockholder is the record or beneficial
owner of the number of shares of Company Common Stock set forth on the signature
page hereof (the "Existing Shares" and, together with any shares of Company
Common Stock acquired after the date hereof, whether upon the exercise of
warrants, options, conversion of convertible securities or otherwise, the
"Shares").
The Stockholder and Parent desire to set forth their agreement with
respect to the voting of the Shares in connection with the Merger, upon the
terms and subject to the conditions set forth herein.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Agreement to Vote. The Stockholder hereby agrees that, from and
after the date hereof and until the Expiration Date (as defined in Section 3),
at any meeting of the stockholders of the Company, however called, or in
connection with any written consent of the stockholders of the Company, the
Stockholder shall vote (or cause to be voted) or act by written consent with
respect to the Shares in favor of the adoption and approval of the Merger
Agreement and the Merger and the approval of the terms thereof and the
transactions contemplated thereby.
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The Stockholder shall not enter into any agreement or understanding with any
person or entity prior to the Expiration Date to vote or give instructions in
any manner inconsistent with the preceding sentence.
2. PROXY. THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PARENT,
AND EACH OF THE CHIEF EXECUTIVE OFFICER AND THE CHIEF FINANCIAL OFFICER OF
PARENT, IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF PARENT, AND ANY INDIVIDUAL
WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF PARENT, AND ANY OTHER DESIGNEE
OF PARENT, EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN
CONSENT WITH RESPECT TO THE SHARES AS TO THE MATTERS DESCRIBED IN SECTION 1
HEREOF IN ACCORDANCE WITH SECTION 1 HEREOF PRIOR TO THE EXPIRATION DATE. THIS
PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE, AND THE STOCKHOLDER
WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE
NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY
PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO THE SHARES AS TO THE
MATTERS DESCRIBED IN SECTION 1 HEREOF.
The proxy set forth in this Section shall terminate on the
Expiration Date (as defined in Section 3).
3. Expiration Date. As used herein, the term "Expiration Date" means
the earlier of (i) the consummation of the Merger on the Effective Date and (ii)
the date the Merger Agreement is terminated pursuant to Article X thereof
(unless such Expiration Date shall be extended by the mutual written consent of
Parent and the Stockholder).
4. Representations and Warranties of the Stockholder. The
Stockholder represents and warrants to Parent as follows:
(a) If the Stockholder is a corporation, partnership or trust, the
Stockholder has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its organization.
(b) If the Stockholder is a corporation, partnership or trust, the
Stockholder has all necessary corporate, partnership or trust power and
authority (including, if necessary, authority of the beneficial owner of
the Shares) to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. If the
Stockholder is a corporation, partnership or trust, the execution, delivery
and performance of this Agreement by the Stockholder and the consummation
by the Stockholder of the transactions contemplated hereby have been duly
authorized by all necessary corporate, partnership or trust action on the
part of the Stockholder and, if necessary, the beneficial owner of the
Existing Shares or the Shares.
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(c) This Agreement has been duly executed and delivered by the
Stockholder and (assuming the valid authorization, execution and delivery
of this Agreement by Parent) is a valid and binding obligation of the
Stockholder (and, if necessary, the beneficial owner of the Shares),
enforceable in accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity
or at law).
(d) The execution and delivery of this Agreement by the Stockholder
do not, and the performance of this Agreement by the Stockholder will not,
(i) if the Stockholder is a corporation, partnership or trust, conflict
with or violate the Certificate or Articles of Incorporation or By-Laws, or
other organizational documents, of the Stockholder or (ii) conflict with,
result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation
of, or require payment under, or result in the creation of any encumbrance
on any of the properties or assets of the Stockholder pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the
Stockholder is a party or by which the Stockholder or any of its properties
is bound, except for any thereof that could not reasonably be expected to
materially impair the ability of the Stockholder to perform its obligations
hereunder or to consummate the transactions contemplated hereby.
(e) There is no suit, action, investigation or proceeding pending
or, to the knowledge of the Stockholder, threatened against the Stockholder
at law or in equity before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind,
that in any such case could reasonably be expected to materially impair the
ability of the Stockholder to perform its obligations hereunder or to
consummate the transactions contemplated hereby, and there is no judgment,
decree, injunction, rule or order of any court, governmental department,
commission, board, bureau, agency, instrumentality or arbitrator to which
the Stockholder is subject that in any such case could reasonably be
expected to materially impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated
hereby.
(f) The Existing Shares are, and (subject to Section 6(d) hereof)
the Shares on the record date for the Company
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Meeting (the "Record Date") and the Effective Date will be, except as set
forth on the signature page hereof, owned beneficially or of record by the
Stockholder. The Existing Shares constitute all of the shares of Company
Common Stock owned of record or (except as set forth on the signature page
hereof) beneficially by the Stockholder. Except as indicated on the
signature page hereto, the Stockholder does not own, of record or
beneficially, any warrants, options or other rights to acquire any shares
of Company Common Stock. The Stockholder has (except as set forth on the
signature page hereof) sole voting power and sole power of disposition with
respect to all of the Existing Shares and (subject to Section 6(d) hereof)
will have sole voting power and sole power of disposition with respect to
all of the Shares on the Record Date and the Effective Date, with no
restrictions other than those set forth herein, subject to applicable
federal securities laws, on the Stockholder's rights of disposition
pertaining thereto. The Stockholder has good and valid title to the
Existing Shares and (subject to Section 6(d) hereof) on the Record Date and
the Effective Date will have good and valid title to the Shares, free and
clear of all encumbrances, except for those arising under that certain
Stockholders' Agreement, dated as of October 29, 1996 among Homegate
Hospitality, Inc., and the stockholders of Homegate Hospitality, Inc.
listed on the signature pages thereto and that certain Stockholders'
Agreement, dated as of October 28, 1996 among Wyndham Hotel Corporation,
and the stockholders of Homegate Hospitality, Inc. listed on the signature
pages thereto; provided, however, that Parent acknowledges that certain of
the Existing Shares may be pledged to Wyndham Management Corporation
("Wyndham") as security for a promissory note to be delivered by Crow Hotel
Realty Investors, L.P. to Wyndham on the Effective Date.
5. Investment Representations of the Stockholder. The Stockholder
represents and warrants to, and agrees with, Parent that the Stockholder has
reviewed the Merger Agreement and has been given the opportunity to obtain any
additional information or documents and to ask questions and receive answers
about the Merger, Parent and the business and prospects of Parent which the
Stockholder deems necessary to evaluate the merits and risks related to the
Stockholder's determination to enter into this Agreement and to consummate the
transactions contemplated hereby.
6. Agreements of the Stockholder. The Stockholder hereby agrees as
follows:
(a) The Stockholder hereby agrees, while this Agreement is in effect
prior to the Expiration Date, and except as contemplated hereby or except
with the prior written consent of Parent, not to (i) subject to Section
6(d) hereof, sell, transfer, pledge (except as set forth in
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Section 4), encumber, assign or otherwise dispose of, enforce the execution
of the provisions of any redemption agreement with the Company or enter
into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Existing Shares, or any
Shares acquired after the date hereof, or any interest in any of the
foregoing, except to Parent, (ii) grant any proxies or powers of attorney
or deposit any Shares into a voting trust, except to Parent, or (iii) take
any action that would make any representation or warranty of the
Stockholder contained herein untrue or incorrect in any material respect or
have the effect of preventing or disabling the Stockholder from performing
such Stockholder's obligations under this Agreement, or that would
otherwise hinder or delay the Merger. Notwithstanding anything in this
Section 6 to the contrary, the foregoing shall not restrict any affiliate,
partner, director, officer or employee of the Stockholder (or any general
partner thereof) who is also a director of the Company from taking actions
in such person's capacity as a director of the Company to the extent and in
the circumstances permitted by Section 8.9 and Article X of the Merger
Agreement.
(b) The Stockholder hereby agrees, while this Agreement is in effect
prior to the Expiration Date, to notify promptly Parent of the number of
any new shares of Company Common Stock acquired by the Stockholder, if any,
after the date hereof.
(c) The Stockholder hereby agrees, while this Agreement is in effect
prior to the Expiration Date, except with respect to Parent and its
affiliates, on or after the date hereof, that the Stockholder shall not
initiate, solicit or encourage, directly or indirectly, any inquiries or
the making or implementation of any proposal or offer with respect to any
matter described in Section 6(a) hereof or any Alternative Proposal, except
to the extent consistent with the actions of officers, directors,
employees, agents and representatives pursuant to Section 8.9 of the Merger
Agreement.
(d) The Stockholder may transfer the Shares to any person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Stockholder; provided
that such transferee takes such Shares subject to the proxy and other terms
and restrictions contained in this Agreement. In such event, such
transferee shall be deemed a Stockholder for purposes of this Agreement.
Any such transferee shall execute an adoption agreement reasonably
acceptable to Parent pursuant to which such transferee agrees to adopt and
be bound by the terms of this Agreement.
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7. Further Assurances. From time to time, at the other party's
reasonable request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be necessary or reasonably desirable to consummate and make effective, in
the most expeditious manner practicable, the transactions contemplated by this
Agreement.
8. Survival. The covenants of the parties hereto, and the
representations and warranties of the parties hereto, shall survive until the
Expiration Date.
9. Miscellaneous. (a) This Agreement (i) constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and (ii) shall not
be assigned by operation of law or otherwise, provided that Parent may assign
its rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of Parent, but no such assignment shall relieve Parent of its
obligations hereunder. Subject to the foregoing, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by the parties hereto and
their respective successors (including any successor in interest by merger, sale
of all or substantially all of the assets or otherwise) and assigns.
(b) This Agreement may not be amended or supplemented, except upon
the execution and delivery of a written agreement executed by the parties
hereto. Parent or the Stockholder may, from time to time, waive (but only in
writing), on such terms and conditions as Parent or the Stockholder, as the case
may be, may specify in such instrument, any of the requirements of this
Agreement. Any such amendment shall be binding upon the parties thereto and any
such waiver shall be binding upon Parent or the Stockholder, as the case may be,
executing the same. No such waiver shall extend to any subsequent or other event
or circumstance or impair any right consequent thereon.
(c) All notices and other communications hereunder shall be in
writing and shall be deemed given (i) on the date delivered, if delivered
personally, (ii) on the first business day following the deposit thereof with an
overnight courier, if sent by overnight courier, and (iii) on the fourth
business day following the mailing thereof with postage prepaid, if mailed by
registered or certified mail (return receipt requested), in each case to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(i) if to the Stockholder, to it at its address set forth on the
signature page hereof; and
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(ii) if to Parent, to it at:
Prime Hospitality Corp.
000 Xxxxx 00 Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: President and Chief Executive
Officer
with copies to:
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(e) The parties agree that 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. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the Chancery Courts of the State of Delaware (and any appellate
courts therefrom), this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of the Chancery Courts of
the State of Delaware and (b) agrees that it will not attempt to deny or defeat
such personal jurisdiction or venue by motion or other request for leave from
any such court.
(f) This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original, but both of which shall constitute one
and the same Agreement.
(g) The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(h) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties
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hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
fullest extent possible.
(i) Notwithstanding anything herein to the contrary, no person who
is an affiliate, partner, director, officer or employee of the Stockholder (or
any general partner thereof) who is, or becomes prior to the Expiration Date, a
director of the Company, makes any agreement or understanding herein in his or
her capacity as such director, and the agreement set forth herein shall in no
way restrict any director in the exercise of his or her fiduciary duties as a
director of the Company. The Stockholder has executed this Agreement solely in
his capacity as the record or beneficial owner of the Shares.
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IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
PRIME HOSPITALITY CORP.
By:___________________________
Name: Xxxx X. Xxxxxx
Title: Executive Vice
President and Chief
Financial Officer
THE STOCKHOLDER:
By:______________________
Name:
Title:
Number of Existing Shares:
Company Common Stock:
Options, Warrants or other
Rights:
______________________________
______________________________
______________________________
______________________________
(Insert Number and Describe)
Address:
______________________________
______________________________
______________________________
______________________________
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