VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") dated as of November 1,
2000, by and among CENDANT CORPORATION, a Delaware corporation ("Cendant"),
and the individuals and other parties listed on Schedule A attached hereto
(each, a "Stockholder" and, collectively the "Stockholders").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution of this Agreement,
Cendant, Grand Slam Acquisition Corp., a Delaware corporation and a
subsidiary of Cendant ("Merger Sub"), and Fairfield Communities, Inc., a
Delaware corporation (the "Company"), have entered into an Agreement and
Plan of Merger (the "Merger Agreement"), which provides, among other
things, for the merger (the "Merger") of Merger Sub with and into the
Company upon the terms and subject to the conditions set forth therein;
WHEREAS, Each Stockholder is the record and/or beneficial owner of,
and has the sole right to vote and dispose of that number of shares of the
Company's common stock, par value $.01 per share ("Company Common Stock"),
listed opposite such Stockholder's name on Schedule A hereto; and
WHEREAS, as an inducement and a condition to its entering into and
delivering the Merger Agreement and incurring the obligations set forth
therein, including the Merger, Cendant has required that Stockholders enter
into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, respective covenants and agreements
of the parties contained herein and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged
by each of the parties hereto), the parties hereto, intending to be legally
bound hereby, agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Capitalized Terms. Capitalized terms used in this
Agreement and not defined herein shall have the respective meanings
ascribed to such terms in the Merger Agreement.
Section 1.2. Other Definitions. For the purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, the Person specified.
For purposes of this Agreement, with respect to Stockholders, "Affiliate"
shall not include the Company and the Persons that directly, or indirectly
through one or more intermediaries, are controlled by the Company.
"Beneficial Owner" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all Affiliates of such Person and all other Person
with whom such Person would constitute a "group" within the meaning of
Section 13(d) of the Exchange Act and the rules promulgated thereunder.
"Company Common Stock" shall include all shares or other voting
securities into which shares of Company Common Stock may be reclassified,
sub-divided, consolidated or converted and any rights and benefits arising
therefrom including any extraordinary distributions of securities which may
be declared in respect of the shares of Company Common Stock and entitled
to vote in respect of the matters contemplated by Article II of this
Agreement.
"Owned Shares" means the shares of Company Common Stock owned by a
Stockholder on the date hereof as shown on Schedule A hereto, together with
any other shares of Company Common Stock or any other securities of the
Company hereafter acquired by such stockholder entitled to vote for or
against the Merger.
"Person" means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, association, trust, estate, unincorporated
organization or other entity, including any governmental entity.
"Representative" means, with respect to any particular Person, any
officer, director, employee, agent, consultant, advisor or other
representative of such Person (including legal counsel, accountants, and
financial advisors).
"Transfer" means, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make such a
sale, transfer or other disposition, and each option, agreement,
arrangement or understanding, whether or not in writing, to effect any of
the foregoing.
ARTICLE II
VOTING
Section 2.1 Agreement to Vote. Subject to the terms and conditions
hereof, each Stockholder irrevocably and unconditionally agrees that until
this Agreement is terminated pursuant to Section 5.1, at any meeting
(whether annual or special, and whether or not an adjourned or postponed
meeting) of the Company's stockholders, however called, or in connection
with any written consent of the Company's stockholders, Stockholders shall
vote, or cause to be voted (including by written consent, if applicable)
all of its Owned Shares (i) in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement, the approval and adoption
of the Merger and the terms thereof, the approval of each of the other
actions contemplated by the Merger Agreement and this Agreement and any
other actions that could be required in furtherance thereof and hereof, and
(ii) against any proposals presented for a vote to prevent or thwart the
Merger or any of the transactions contemplated by the Merger Agreement or
this Agreement, unless such meetings or consents do not involve any such
matter. Each Stockholder agrees not to enter into any agreement or
understanding with any Person the effect of which would be inconsistent or
violative of the provisions and agreements contained in this Section 2.1.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Stockholders.
Each Stockholder, severally and not jointly, represents and
warrants to Cendant that the following statements are as of the date of
this Agreement, and will be, as of the date of the Company Stockholders
Meeting, true and correct:
(a) Such Stockholder has all necessary power and authority
to enter into, execute and deliver this Agreement and to perform all of his
obligations hereunder.
(b) This Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a legal, valid and binding
agreement of such Stockholder enforceable by Cendant against such
Stockholder in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) As of the date of this Agreement, such Stockholder is
the record and/or beneficial owner of the Owned Shares which, as of the
date hereof, are set forth on the signature page hereto, and except as
provided in this Agreement or by applicable law, has full and unrestricted
power to dispose of and vote all the Owned Shares. Such Stockholder has
good and marketable title thereto. The Owned Shares constitute all of the
capital stock of the Company that is owned of record or Beneficially Owned
by the Stockholder and which the Stockholder is permitted to subject to
this Agreement as of this date.
(d) None of the execution and delivery of this Agreement by
such Stockholders, the consummation by such Stockholder of the transactions
contemplated hereby or compliance by such Stockholder with any of the
provisions hereof shall (A) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Stockholder is a party
or by which such Stockholder or any of such Stockholder's properties or
assets (including the Owned Shares) may be bound, or (B) violate any order,
writ, injunction, decree, judgment, statute, rule or regulation existing as
of the date of this Agreement applicable to such Stockholder or any of its
respective properties or assets.
(e) No broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission solely as a result of entering into this
Agreement based upon arrangements made by or on behalf of any Stockholder.
(f) Such Stockholder understands and acknowledges that
Cendant is entering into the Merger Agreement and is incurring the
obligations set forth therein, in reliance upon Stockholders' execution and
delivery of this Agreement.
Section 3.2 Representations and Warranties of Cendant.
Cendant represents and warrants to Stockholders that the following
statements are as of the date of this Agreement, and will be, as of the
date of the Company Stockholders Meeting true and correct:
(a) Cendant is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation.
(b) Cendant has all necessary corporate power and authority
to enter into this Agreement and to perform all of its obligations
hereunder. The execution, delivery and performance of this Agreement and
the Merger Agreement by Cendant and the consummation of the transactions
contemplated hereby and thereby have been duly and validly approved by the
board of directors of Cendant and no other corporate proceedings on the
part of Cendant or its stockholders are necessary to authorize the
execution, delivery and performance of this Agreement or the Merger
Agreement or the consummation of the transactions contemplated hereby or
thereby.
(c) This Agreement has been duly and validly executed and
delivered by Cendant and constitutes a legal, valid and binding agreement
of Cendant enforceable against Cendant in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(d) None of the execution and delivery of this Agreement by
Cendant, the consummation by Cendant of the transactions contemplated
hereby or compliance by Cendant with any of the provisions hereof shall (A)
result in a violation or breach of, or constitute (with or without notice
or lapse of time or both) a default (or give rise to any third party right
of termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which Cendant is a party or by which Cendant or any of its properties or
assets may be bound, or (B) violate any order, writ, injunction, decree,
judgment, statute, rule or regulation applicable to Cendant or any of its
properties or assets.
ARTICLE IV
COVENANTS OF STOCKHOLDERS
Section 4.1 General. Each Stockholder, severally and not jointly,
covenants and agrees with Cendant that, during the period commencing the
date hereof and ending on the date this Agreement is terminated under
Article V hereof, such Stockholder will comply with the provisions of
Section 4.3 of the Merger Agreement to the extent applicable to such
Stockholder in his capacity as a stockholder of the Company.
(a) Except as provided in this Agreement or the Merger
Agreement such Stockholder shall not, directly or indirectly: (i) Transfer
to any Person any or all Owned Shares except in open market transactions
conducted through an exchange; or (ii) other than to cause a nominee to
vote the shares in accordance with Section 2.1, grant any proxies or powers
of attorney, rights or privileges (whether by law, preemptive or
contractual), with respect to Owned Shares, deposit any Owned Shares into a
voting trust or enter into a voting agreement, understanding or arrangement
with respect to Owned Shares. Notwithstanding anything to the contrary
provided in this Agreement, each Stockholder shall have the right to
Transfer Owned Shares to (i) any Family Member (as defined below), (ii) the
trustee or trustees of a trust solely (except for remote contingent
interests) for the benefit of Stockholder and/or one or more Family
Members, (iii) a foundation created or established by Stockholder, (iv) a
charitable remainder trust for the benefit of Stockholder and/or one or
more Family Members and/or designated charities, (v) a partnership of which
Stockholder or a Family Member owns all of the partnership interests, (vi)
the executor, administrator personal representative of the estate of
Stockholder, or (vii) any guardian, trustee or conservator appointed with
respect to the assets of Stockholder; provided, that in the case of any
Transfer described in this sentence, the transferee shall execute an
agreement to be bound by the terms of this Agreement. "Family Member" shall
mean (i) a Stockholder's spouse, (ii) any other natural person who is a
lineal descendant of a Stockholder or a Stockholder's spouse or is related
to a Stockholder or a Stockholder's spouse within the second degree and
(iii) any other natural person who resides with a Stockholder.
(b) Such Stockholder will promptly notify Cendant in writing
upon any representation or warranty of such Stockholder contained in this
Agreement becoming untrue or incorrect in any respect during the term of
this Agreement and for the purposes of this provision, each representation
and warranty shall be deemed to be given at and as of all times during such
term (irrespective of any language which suggests that it is only being
given as at a particular date).
Section 4.2 Amendment to this Agreement. In the event that the
Company and Cendant enter into an amendment to the Merger Agreement that
does not alter or modify the economic terms or form of consideration,
Stockholders covenant and agree with Cendant to enter into an amendment to
this Agreement in accordance with Section 6.8 that shall reflect, to the
extent appropriate, the terms of such amended Merger Agreement.
ARTICLE V
TERMINATION
Section 5.1 Termination. This Agreement shall be terminated upon
the earlier of (i) the Effective Time; (ii) the termination of the Merger
Agreement pursuant to Section 7.1 thereof (other than a termination in
connection with which Cendant is or may be entitled to the payment
specified in Section 5.8 thereof) and (iii) the Average Trading Price being
less than $6.00 per share.
Section 5.2 Effect of Termination. Upon termination of this
Agreement, the covenants, representations, warranties, agreements and
obligations of all the parties shall terminate and become void without
further action by any party except for the provisions of this Section 5.2
and Article VI, which shall survive such termination.
ARTICLE VI
GENERAL
Section 6.1 Notices. All notices , requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed to
have been duly given (a) on the date of delivery if delivered personally,
(b) on the first business day following the date of dispatch if delivered
by a nationally recognized next-day courier service, (c) on the fifth
business day following the date of mailing if delivered by registered or
certified mail, return receipt requested, postage prepaid or (d) if sent by
facsimile transmission, with a copy mailed on the same day in the manner
provided in (a) or (b) above, when transmitted and receipt is confirmed by
telephone; provided, that any notice received by telecopy or otherwise at
the addressee's location on any business day after 5:00 p.m. (addressee's
local time) shall be deemed to have been received at 9:00 a.m. (addressee's
local time) on the next business day. Any party to this Agreement may
notify any other party of any changes to the address or any of the other
details specified in this paragraph, provided that such notification shall
only be effective on the date specified in such notice or five (5) business
days after the notice is given, whichever is later. Rejection or other
refusal to accept or the inability to deliver because of changed address of
which no notice was given shall be deemed to be receipt of the notice as of
the date of such rejection, refusal or inability to deliver. All notices
hereunder shall be delivered to the parties as set forth below, or pursuant
to such other instructions as may be designated in writing by the party to
receive such notice:
if to Stockholders:
at the address set forth on Schedule A for such Stockholder;
with a copy to (which shall not constitute notice):
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No. (000) 000-0000;
if to Cendant:
Cendant Corporation
Six Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to (which shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxx
Facsimile No.: (000) 000-0000
Section 6.2 No Third Party Beneficiaries. This Agreement is not
intended to confer third-party beneficiary rights upon any Person.
Section 6.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable
to contracts executed and to be performed fully within such State, without
giving effect to the principles of conflicts or choice of law thereof or
any other jurisdiction.
Section 6.4 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held to be invalid, illegal or unenforceable in any
respect for any reason under any present or future law, public policy or
order, (i) such provision will be fully severable and (ii) this Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties shall negotiate in good faith with a view to the
substitution therefor of a suitable and equitable solution in order to
carry out to the maximum extent possible, so far as may be valid and
enforceable, the intent and purpose of such invalid provision, provided,
however that the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be in any way impaired thereby, it being intended that all
of the rights and privileges of the parties hereto shall be enforceable to
the fullest extent permitted by law.
Section 6.5 Assignment. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any party hereto, in
whole or in part (whether by operation of law or otherwise), without the
prior written consent of the other party hereto and any attempt to do so
will be void.
Section 6.6 Successors. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors,
permitted assigns, heirs, administrators, executors and legal or personal
representatives.
Section 6.7 Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation." The words "hereof,"
"herein" and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement. The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of
such terms and to the masculine as well as to the feminine and neuter
genders of such term. Except for the Merger Agreement, any agreement or
instrument defined or referred to herein or in any agreement or instrument
that is referred to herein means such agreement or instrument as from time
to time amended, modified or supplemented and attachments thereto and
instruments incorporated therein. References to a Person are also to its
successors and permitted assigns. The parties have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
federal, state, local or foreign statute or law shall be deemed to also to
refer to any amendments thereto and all rules and regulations promulgated
thereunder, unless the context requires otherwise.
Section 6.8 Amendments. This Agreement may not be amended except by
written agreement signed by all of the parties to this Agreement.
Section 6.9 Fees and Expenses. Except as expressly provided in this
Agreement, each of the parties shall be responsible for his or its own fees
and expenses (including, without limitation, the fees and expenses of
financial consultants, investment bankers, accountants and counsel) in
connection with the entry into of this Agreement and the consummation of
the transactions contemplated hereby.
Section 6.10 Schedules. Schedule A and Schedule B hereto shall for
all purposes form an integral part of this Agreement.
Section 6.11 Entire Agreement. This Agreement, including the
Schedule hereto, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations, representations and warranties, and
discussions, whether oral or written, among the parties hereto, with
respect to the subject matter hereof. There are no conditions, covenants,
agreements, representations, warranties or other provisions, express or
implied, collateral, statutory or otherwise, relating to the subject matter
of this Agreement. No prior drafts of this Agreement and no words or
phrases from any such prior drafts shall be admissible into evidence in any
action, suit or other proceeding involving this Agreement.
Section 6.12 Time of Essence. Time shall be of the essence in this
Agreement.
Section 6.13 Remedies Cumulative. Except as otherwise herein
provided, the rights and remedies provided herein shall be cumulative and
not exclusive of any rights or remedies provided by applicable law.
Section 6.14 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall become
effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties.
Section 6.15 Execution. This Agreement may be executed by facsimile
signatures by any party and such signature shall be deemed binding for all
purposes hereof, without delivery of an original signature being thereafter
required.
Section 6.16 Jurisdiction. Each of the parties hereto irrevocably
agrees that any action, suit, claim or other legal proceeding with respect
to this Agreement or in respect of the transactions contemplated hereby
brought by any other party hereto or its successors or assigns shall be
brought and determined in any state or federal court located in the State
of Delaware or any appeals courts thereof (the "Delaware Courts"), and each
of the parties hereto irrevocably submits with regard to any such
proceeding for itself and in respect to its property, generally and
unconditionally, to the exclusive jurisdiction of the Delaware Courts. Each
of the parties hereto irrevocably waives, and agrees not to assert, by way
of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (a) any claim that it is not
personally subject to the jurisdiction of the Delaware Courts for any
reason, (b) that it or its property is exempt or immune from jurisdiction
of any Delaware Court or from any legal process commenced in any Delaware
Court (whether through service of notice, attachment before judgment,
attachment in aid of execution of judgment, execution of judgment or
otherwise) and (c) to the fullest extent permitted by applicable law, that
(i) the proceeding in any Delaware Court is brought in an inconvenient
forum, (ii) the venue of such proceeding is improper or (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by a
Delaware Court. Notwithstanding the foregoing, each of the parties hereto
agrees that the other party shall have the right to bring any action or
proceeding for enforcement of a judgment entered by the Delaware Courts in
any other court or jurisdiction.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to
be signed as of the date first above written.
CENDANT CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
XXXXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
R&A PARTNERSHIP LTD.
BY: RPM INVESTMENTS, INC., ITS GEN-
ERAL PARTNER
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
XX XXXXXXXX FAMILY LIMITED
PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
XXXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxx
--------------------------------------
XXXXX X. XXXX
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
XXXXXX X. XXXXXX
STEPHENS GROUP, INC.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
XXXXXXXX INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------------
VARIOUS STEPHENS FAMILY TRUSTS
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
SCHEDULE A
STOCKHOLDER ADDRESS SHARES OF COMPANY STOCK
COMPANY OPTIONS
COMMON STOCK
STEPHENS GROUP, 000 Xxxxxx Xxxxxx 300,000 ----
INC. Xxxxxx Xxxx, XX 00000
XXXXXXXX INC. 000 Xxxxxx Xxxxxx 1,466,264 ----
Xxxxxx Xxxx, XX 00000
VARIOUS STEPHENS
FAMILY TRUSTS
X.X. XXXXXXXX TRUST 000 Xxxxxx Xxxxxx 65,000 ----
XXX Xxxxxx Xxxx, XX 00000
XXXXXXX X. XXXXXXXX 000 Xxxxxx Xxxxxx 540,000 ----
Xxxxxx Xxxx, XX 00000
XXXXXX X. XXXXXXXX 000 Xxxxxx Xxxxxx 35,000 ----
XXX Xxxxxx Xxxx, XX 00000
XXXXXX X. XXXXXXXX 000 Xxxxxx Xxxxxx 325,000 ----
TRUST Xxxxxx Xxxx, XX 00000
XXXXXXX XXXXXXX 000 Xxxxxx Xxxxxx 55,000 ----
STEPHENS TRUST Xxxxxx Xxxx, XX 00000
XXXXX X. XXXXXX 0000 Xxxxx Xxxxx Xxxx. 1,219,950 ----
Xxxxxxxx Xxxxx, XX 00000
R&A PARTNERSHIP 0000 Xxxxx Xxxxx Xxxx. 1,465,174 ----
LTD Xxxxxxxx Xxxxx, XX 00000
XX XXXXXXXX 000 Xxxxx Xxxxxxx Xxxx 1,516,000 ----
FAMILY LIMITED Xxxxxxxxxx, XX 00000
PARTNERSHIP
XXXXXX X. XXXXXXXX 000 Xxxxx Xxxxxxx Xxxx 41,391 ----
Xxxxxxxxxx, XX 00000
XXXXX X. XXXX 0000 Xxxxx Xxxxxxx Xxxxx 78,565 900,000
Xxxxxxx, XX 00000
XXXXXX X. XXXXXX 1513 Black Bear Court 79,300 475,420
Xxxxxx Xxxxxxx, XX 00000
