EXHIBIT 2.1
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of February 12,
2001 (the "First Amendment"), by and among CENDANT CORPORATION, a Delaware
corporation ("Parent"), FAIRFIELD COMMUNI TIES, INC., a Delaware corporation
(the "Company"), and GRAND SLAM ACQUI SITION CORP., a Delaware corporation and
a subsidiary of Parent ("Merger Sub").
WHEREAS, Parent, the Company and Merger Sub have previously entered into an
Agreement and Plan of Merger, dated as of November 1, 2000 (the "Merger
Agreement"); and
WHEREAS, the parties desire to amend the Merger Agreement as set forth
herein in order to, among other things, set April 2, 2001 as the date of the
Company Stockholders Meeting and the Closing Date.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties agree as follows:
1. Each capitalized term used but not defined in this First Amendment
shall have the meaning provided for such term in the Merger Agreement.
2. Section 1.2 of the Merger Agreement shall be replaced in its entirety
with the following:
SECTION 1.2 Closing. Subject to the satisfaction or waiver of all the
-------
conditions to closing contained in Article VI hereof, the closing of the Merger
(the "Closing") will take place at 10:00 a.m. on April 2, 2001 (the "Closing
Date"); provided, however, that if all the conditions to closing contained in
-------- -------
Article VI hereof have not been satisfied or waived by April 2, 2001, the
Closing Date shall be on such other date as agreed upon by the parties, which
shall be no later than the second business day after satisfaction or waiver of
the conditions set forth in Article VI (other than those conditions that by
their nature are to be satisfied at the Closing, but subject to the fulfillment
or waiver of those conditions); provided, further, that upon written election of
-------- -------
Parent delivered to the Company prior to 5:00 p.m., New York City time, on the
later of (i) the day immediately before the Company Stockholders Meeting and
(ii) the date of the satisfaction or waiver of all of the conditions (other than
those conditions that by their nature are to be satisfied at the Closing, but
subject to the fulfillment or waiver of those conditions) set forth in Article
VI (in
each case, the "Closing Extension Notice"), the Closing shall take place
(subject to the satisfaction or waiver of the conditions set forth in Article
VI) five days after the date of the Closing Extension Notice (unless that date
would not be a business day, in which case the Closing shall take place on the
first business day after the 5-day extension), unless another time or date is
agreed to by the parties hereto. The Closing will be held at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or at such other location as is agreed to by the parties hereto.
3. Section 2.1(c)(v) of the Merger Agreement shall be replaced in its
entirety with the following:
(v) Notwithstanding subsections (i) through (iv) above, Parent shall
have the right, exercisable at any time prior to the Closing, at Parent's sole
discretion, to pay in cash for any shares for which an Election (as defined
below) was made and to substitute on a pro rata basis a payment of cash in an
amount equal to the Average Trading Price multiplied by the Exchange Ratio for
any or all shares of Company Common Stock for which the Stock Election has been
made or which would otherwise be converted into Parent Common Stock pursuant to
Section 2.1(c)(iii)(C); provided, that prior to making such substitution, Parent
--------
shall first have paid in cash for all shares for which a Cash Election has been
made and which were not fully converted into the right to receive the Cash
Election Consideration.
4. The last sentence of Section 5.1(a) of the Merger Agreement shall be
replaced in its entirety with the following:
The Company shall use its reasonable best efforts to cause the Proxy
Statement to be mailed to its stockholders as promptly as practicable after the
Form S-4 is declared effective; provided, that the Company may elect to postpone
--------
the mailing of the Proxy Statement to a date that is no later than 20 business
days before the Company Stockholders Meeting.
5. The first sentence of Section 5.1(d) of the Merger Agreement shall be
replaced in its entirety with the following:
The Company shall, as promptly as practicable after the Form S-4 is
declared effective under the Securities Act, but subject to the last sentence of
Section 5.1(a), duly call, give notice of, convene and hold the Company
Stockholders Meeting in accordance with the DGCL for the purpose of obtaining
the Company Stockholder Approval on April 2, 2001; provided, that the Company
--------
may elect to adjourn the Company Stockholders Meeting to a date no later than
the Closing Date.
2
6. Section 7.1(b)(i) of the Merger Agreement shall be replaced in its
entirety with the following:
(i) if the Merger shall not have been consummated by April 2, 2001,
provided, however, that the right to terminate this Agreement pursuant to this
-------- -------
Section 7.1(b) shall not be available to any party whose failure to perform any
of its obligations under this Agreement results in the failure of the Merger to
be consum mated by such time; provided, further, that such date may be extended
-------- -------
(x) for not more than 30 days, by either party, by written notice to the other
party if the Merger shall not have been consummated solely as a result of the
condition set forth in Section 6.1(c) failing to have been satisfied and the
extending party reasonably believes that the relevant approvals will be obtained
during such extension period or (y) for not more than 5 days after the date of
the Closing Extension Notice (unless that date would not be a business day, in
which case, the extension shall be for not more than the first business day
after the 5-day extension) by the delivery by Parent of the Closing Extension
Notice;
7. Except as specifically amended in this First Amendment, the Merger
Agreement shall remain in full force and effect as originally constituted and
the undersigned shall remain obligated pursuant to the terms thereunder.
8. This First Amendment may be executed in one or more counterparts, all
of which shall be considered one and the same agreement, and the executed
counterparts taken together shall be deemed to be one originally executed
document.
9. This First Amendment 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 conflict of laws thereof.
3
IN WITNESS WHEREOF, Parent, the Company and Merger Sub have caused this
First Amendment to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
CENDANT CORPORATION.
By /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice Chairman, General Counsel and
Assistant Secretary
FAIRFIELD COMMUNITIES, INC.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
GRAND SLAM ACQUISITION CORP.
By /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Assistant Secretary
4
