Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of August 18, 2004 (this "AGREEMENT"),
among BREP IV Hotels Holding L.L.C., a Delaware limited liability
company
("PARENT"), A.F. Petrocelli ("PETROCELLI") and United Capital
Corp., a Delaware
corporation ("UCC," and together with Petrocelli, the
"Stockholders").
WHEREAS, concurrently herewith, Parent, BREP IV Hotels Acquisition
L.L.C., a Delaware limited liability company and a wholly owned
subsidiary of
Parent ("MERGER SUB"), and Prime Hospitality Corp., a Delaware
corporation (the
"COMPANY"), are entering into an Agreement and Plan of Merger (the
"MERGER
AGREEMENT"; capitalized terms used but not defined herein shall
have the
meanings set forth in the Merger Agreement), pursuant to which (and
subject to
the terms and conditions set forth therein) the Company will merge
with and into
Merger Sub (the "MERGER") and each outstanding share of common
stock, par value
$0.01 per share, of the Company (the "COMMON STOCK") will be
converted into the
right to receive the Merger Consideration;
WHEREAS, Petrocelli beneficially owns 45,000 Shares, excluding the
UCC
Shares (as hereinafter defined) and Shares issuable upon conversion
of employee
stock options (the "PETROCELLI SHARES"), and UCC beneficially owns
3,539,697
Shares (the "UCC SHARES," and together with the Petrocelli Shares,
the "OWNED
SHARES"), the Owned Shares, including any Shares acquired by either
of the
Stockholders after the date hereof and prior to the termination
hereof, whether
upon exercise of options, warrants, conversion of other convertible
securities
or otherwise, are collectively referred to herein as the "COVERED
SHARES";
WHEREAS, in order to induce Parent to enter into the Merger
Agreement
and proceed with the Merger, Parent and the Stockholders are
entering into this
Agreement; and
WHEREAS, each of the Stockholders acknowledges that Parent is
entering
into the Merger Agreement in reliance on the representations,
warranties,
covenants and other agreements of the Stockholders set forth in
this Agreement
and would not enter into the Merger Agreement if the Stockholders
did not enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be
legally bound
hereby, Parent and each of the Stockholders hereby agree as
follows:
1.
AGREEMENT TO VOTE.
(a) Prior to any termination of this Agreement, subject to Section
7
hereof (in the case of Petrocelli), each of the Stockholders hereby
agrees that
it shall, and shall cause any other holder of record of any Covered
Shares to,
at any meeting of the stockholders of the Company (whether annual
or special and
whether or not an adjourned or postponed meeting), however called,
(i) when a
meeting is held, appear at such meeting or otherwise cause the
Covered Shares to
be counted as present thereat for the purpose of establishing a
quorum, (ii)
vote (or caused to be voted) in person or by proxy all Covered
Shares in favor
of the Merger and any other matters necessary for consummation of
the
Transactions and (iii) vote (or cause to be voted) all Covered
Shares against
(A) any proposal for any recapitalization, reorganization,
liquidation, merger,
sale of assets or other business combination between the Company
and any other
person (other than the Merger) and (B) any other action that could
reasonably be
expected to impede, interfere with, delay, postpone or adversely
affect the
Merger or any of the Transactions, any transactions contemplated by
this
Agreement or result in a breach in any material respect of any
covenant,
representation or warranty or other obligation or agreement of the
Company under
the Merger Agreement.
(b) EACH OF THE STOCKHOLDERS HEREBY GRANTS TO, AND APPOINTS,
PARENT,
EACH SENIOR MANAGING DIRECTOR OF PARENT AND THE SECRETARY OF
PARENT, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF PARENT, AND ANY OTHER DESIGNEE
OF PARENT,
EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S IRREVOCABLE (UNTIL
THE TERMINATION
DATE) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION)
TO VOTE THE
COVERED SHARES AS INDICATED IN CLAUSE (a) OF THIS SECTION 1. EACH
OF THE
STOCKHOLDERS INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE
TERMINATION DATE)
AND COUPLED WITH AN INTEREST AND 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 EACH STOCKHOLDER
WITH RESPECT TO
THE COVERED SHARES.
(c) Except as set forth in clause (a) of this Section 1, the
Stockholders shall not be restricted from voting in favor of,
against or
abstaining with respect to any matter presented to the stockholders
of the
Company. In addition, nothing in this Agreement shall give Parent
the right to
vote any Covered Shares in connection with the election of
directors.
2. NO INCONSISTENT AGREEMENTS. Each of the Stockholders hereby
covenants and agrees that, except as contemplated by this
Agreement, it (a) has
not entered into, and shall not enter at any time while this
Agreement remains
in effect, any voting agreement or voting trust with respect to the
Covered
Shares and (b) has not granted, and shall not grant at any time
while this
Agreement remains in effect, a proxy or power of attorney with
respect to the
Covered Shares, in either case, which is inconsistent with its
obligations
pursuant to this Agreement.
3. TERMINATION. This Agreement shall terminate upon the earliest of
(a) the Effective Time, (b) the termination of the Merger Agreement
in
accordance with its terms and (c) written notice of termination of
this
Agreement by Parent to the Stockholders, such date shall be
referred to herein
as the "TERMINATION DATE".
4. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby
represents
and warrants to the Stockholders as follows:
(i) VALID EXISTENCE. Parent is a limited liability company duly
organized, validly existing and in good standing under the laws of
the
jurisdiction of its organization and has the requisite limited
liability
company power and authority and all necessary governmental
approvals to
2
own, lease and operate its properties and to carry on its business
as it is now
being conducted.
(ii) AUTHORITY RELATIVE TO THIS AGREEMENT. Parent has all necessary
limited liability company power and authority to execute and
deliver this
Agreement, to perform its obligations hereunder and to consummate
the
transactions contemplated hereby. The execution, delivery and
performance
of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby have been duly and validly
authorized by
all necessary limited liability company action, and no other
limited
liability company proceedings on the part of Parent are necessary
to
authorize this Agreement or to consummate the transactions
contemplated
hereby. This Agreement has been duly and validly authorized,
executed and
delivered by Parent and, assuming due authorization, execution and
delivery
by each of the Stockholders, constitutes a legal, valid and binding
obligation of Parent, enforceable against Parent in accordance with
its
terms.
(iii) NO CONFLICTS. Except for the applicable requirements of the
Exchange Act (A) no filing with, and no permit, authorization,
consent or
approval of, any state, federal or foreign governmental authority
is
necessary on the part of Parent for the execution and delivery of
this
Agreement by Parent and the consummation by Parent of the
transactions
contemplated hereby and (B) neither the execution and delivery of
this
Agreement by Parent nor the consummation by Parent of the
transactions
contemplated hereby nor compliance by Parent with any of the
provisions
hereof shall (1) conflict with or violate the Certificate of
Formation or
Limited Liability Company Agreement (or similar organizational
document) of
Parent, (2) result in any breach or violation of, or constitute a
default
(or an event which, 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 result in the creation of a
Lien on any
property or asset of Parent pursuant to, any Contract to which
Parent is a
party or by which Parent or any property or asset of Parent is
bound or
affected or (3) violate any order, writ, injunction, decree,
statute, rule
or regulation applicable to Parent or any of its properties or
assets,
except in the case of (2) or (3) for violations, breaches or
defaults that
would not in the aggregate materially impair the ability of Parent
to
perform its obligations hereunder.
(b) REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The
Stockholders hereby severally (and not jointly) represent and
warrant to Parent
as follows:
(i) OWNERSHIP OF SECURITIES. The Stockholders are the only
beneficial
owners and record holders of the Covered Shares, free and clear of
Liens
and the Stockholders have sole voting power and sole power of
disposition
with respect to all Covered Shares, with no restrictions, subject
to
applicable federal securities laws on their rights of disposition
pertaining thereto (other than as created by this Agreement). As of
the
date hereof, Petrocelli does not own beneficially or of record any
equity
securities of the
