EXHIBIT 4.10
FIRST AMENDMENT AND SUPPLEMENT TO
WARRANT AGREEMENT
FIRST AMENDMENT AND SUPPLEMENT TO WARRANT AGREEMENT, dated as of March 4,
1998 (the "Agreement"), by and among FAIRFIELD COMMUNITIES, INC., a Delaware
corporation (the "Company"), and _______________ ("Holder").
WITNESSETH
WHEREAS, pursuant to the Warrant Agreement, dated as of December 27, 1995
(the "Warrant Agreement"), among Vacation Break U.S.A., Inc. ("Vacation Break")
and Holder, Vacation Break issued to the Holder warrants ("Vacation Break
Warrants") to purchase up to an aggregate of _________ shares of common stock,
$.01 par value, of Vacation Break ("Vacation Break Common Stock") at an exercise
price of $6.35 which Vacation Break Warrants were part of an aggregate of 90,000
warrants issued to Xxxxxxxxxx Xxxx & Xxxx Incorporated ("Josephthal") pursuant
to the Representatives' Warrant Agreement, dated as of December 27, 1995, among
Vacation Break, Josephthal and Cruttenden Xxxx Incorporated;
WHEREAS, Vacation Break has become a wholly owned subsidiary of the Company
as a result of the consummation of the merger of FCVB Corp., a wholly owned
subsidiary of the Company, with and into Vacation Break (the "Merger") on the
terms and subject to the conditions provided for in the Agreement and Plan of
Merger, dated as of August 8, 1997 (the "Merger Agreement"), among the Company,
FCVB Corp., and Vacation Break; and
WHEREAS, the Merger Agreement provides that the Company will deliver to
each holder of a Vacation Break Warrant, upon such holder's delivery of its
warrant certificate ("VB Certificate") representing Vacation Break Warrants to
purchase shares of Vacation Break Common Stock to the Company, a supplemental
warrant agreement representing the right (until the expiration of such holder's
Vacation Break Warrants) to receive upon the exercise thereof, such number of
shares of common stock, par value $.01 per share, of the Company ("Common
Stock") rounded up or down to the nearest whole share that is equal to the
product of .6075 multiplied by the number of shares of Vacation Break Common
Stock subject to such Vacation Break Warrants immediately prior to the effective
time of the Merger, at a price per share equal to the aggregate exercise price
for the shares of Vacation Break Common Stock subject to such Vacation Break
Warrants divided by the number of shares of Common Stock deemed to be
purchasable pursuant to such Vacation Break Warrants; and
WHEREAS, the Company effected a two-for-one stock split of Common Stock
(the "Stock Split") in the form of a 100% stock dividend distributable on
January 30, 1998 and pursuant to the Warrant Agreement, the number of shares of
Common Stock subject to the Warrants (as defined below) and the exercise price
thereof was adjusted to reflect the Stock Split.
NOW, THEREFORE, in consideration of the premises, the agreements set forth
herein and in the Warrant Agreement and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. The First paragraph of the Warrant Agreement is hereby amended and
restated in its entirety to read as follows:
This is to certify that, for value received and subject to the conditions
herein set forth, ____________ or his registered assigns is entitled to
purchase, at any time during the period (the "Term") commencing on the date
hereof and ending at 5:30 p.m. Eastern time, December 21, 2000 (the
"Expiration Date"), such number of shares of the common stock, par value
$.01 per share (the "Common Stock") of Fairfield Communities, Inc., a
Delaware corporation (the "Company"), as equals the number of warrants (the
"Warrants") evidenced by this Agreement (such shares purchasable upon
exercise of the Warrants are herein called the "Warrant Shares"). The
Holder acknowledges and agrees that the foregoing constitutes a complete
and accurate description of all Vacation Break Warrants granted to the
Holder and waives any other entitlement to, or options to acquire, Vacation
Break Warrants arising prior to December 19, 1997.
2. Section 1 of the Warrant Agreement is hereby amended and restated in
its entirety to read as follows:
1. COMMON STOCK. Up to an aggregate of __________ shares of Common Stock
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will be issuable upon exercise of the Warrants at an initial exercise price
(subject to adjustment as provided in Section 8 hereof) of $5.225 per share
of Common Stock subject to the terms and conditions of this Agreement.
3. Section 2 of the Warrant Agreement is hereby amended and restated in
its entirety to read as follows:
2. SUPPLEMENTAL WARRANT CERTIFICATES. The Holder shall surrender to the
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Company his warrant certificate ("VB Certificate") representing Vacation
Break Warrants to purchase an aggregate of _______ shares of Vacation Break
Common Stock. The Company will issue to the Holder a supplemental warrant
certificate (the "Warrant Certificate") in the form set forth in Exhibit A
attached hereto and made a part hereof, with such appropriate insertions,
omissions, substitutions, and other variations as required or permitted by
this Agreement.
4. Section 3.1 of the Warrant Agreement is hereby amended and restated in
its entirety to read as follows:
3.1 METHOD OF EXERCISE. As a condition to exercise of the Warrants,
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the Holder must sign and return to the Company c/o Jones, Day, Xxxxxx &
Xxxxx copies of this Agreement and a Representation Letter addressed to the
Company regarding the Holder's status as an accredited investor, together
with the VB
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Certificate relating to the Vacation Break Warrants, by which
execution and delivery the Holder shall be deemed to have surrendered the
VB Certificate to the Company for cancellation of the Vacation Break
Warrants. The Company will mail to the Holder the Warrant Certificate
within 5 business days from the receipt by the Company of this executed
Agreement, the executed Representation Letter and the VB Certificate. The
Warrants initially are exercisable at the exercise price (subject to
adjustment as provided in Section 8 hereof) per share of Common Stock as
set forth in Section 6 hereof payable by certified or official bank check
in New York Clearing House funds or, upon prior approval, personal check.
Upon surrender of a Warrant Certificate with the annexed Form of Election
to Purchase duly executed, together with payment of the Exercise Price (as
hereinafter defined) for the shares of Common Stock purchased at the
Company's principal offices presently located in Little Rock, Arkansas, the
Holder shall be entitled to receive a certificate or certificates for the
shares of Common Stock so purchased. The purchase rights represented by
each Warrant Certificate are exercisable at the option of the Holder
thereof, in whole or in part (but not as to fractional shares of the Common
Stock underlying the Warrants). In the case of the purchase of less than
all the shares of Common Stock purchasable under any Warrant Certificate,
the Company shall cancel said Warrant Certificate upon surrender thereof
and shall execute and deliver a new Warrant Certificate of like tenor for
the balance of the shares of Common Stock purchasable thereunder.
5. Section 3.3 of the Warrant Agreement is hereby amended and restated in
its entirety to read as follows:
3.3 DEFINITION OF MARKET PRICE. As used herein, the phrase "Market
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Price" at any date shall be deemed to be the last reported sale price of a
share of Common Stock, or, in case no such reported sale takes place on
such day, the average of the last reported sale prices of a share of Common
Stock for the last three (3) trading days in either case as officially
reported by the New York Stock Exchange or, if the Common Stock is not then
listed on the New York Stock Exchange, the principal national securities
exchange on which the Common Stock is then listed or admitted to trading
or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, the average closing bid price as furnished by
the National Association of Securities Dealers, Inc. ("NASD") through
Nasdaq or a similar organization if Nasdaq is no longer reporting such
information, or if the Common Stock is not quoted on Nasdaq, as determined
in good faith by resolution of the Board of Directors of the Company, based
on the best information available to it.
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6. Section 6 of the Warrant Agreement is hereby amended and restated in
its entirety to read as follows:
6. EXERCISE PRICE.
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6.1 INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise provided
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in Section 8 hereof, the initial exercise price of each Warrant shall be
$5.225 per share of Common Stock. The adjusted exercise price shall be the
price which shall result from time to time from any and all adjustments of
the initial exercise price in accordance with the provisions of Section 8
hereof.
6.2 EXERCISE PRICE. The term "Exercise Price" herein shall mean the
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initial exercise price or the adjusted exercise price, depending upon the
context.
7. The last sentence of Section 11 of the Warrant Agreement is hereby
amended and restated in its entirety to read as follows:
As long as the Warrants are outstanding, the Company shall use its best
efforts to cause all shares of Common Stock issuable upon the exercise of
the Warrants to be listed (subject to official notice of issuance) on all
securities exchanges on which the Common Stock issued to the public in
connection herewith may then be listed and/or quoted.
8. Section 13.(b) of the Warrant Agreement is hereby amended and restated
in its entirety to read as follows:
13. NOTICES.
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(b) If to the Company, to Fairfield Communities, Inc., 00000 Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or to such other address as the
Company may designate by notice to the Holders.
9. COVENANT. IN ORDER TO EXERCISE HIS WARRANTS, THE HOLDER MUST
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REPRESENT AND WARRANT TO THE COMPANY THAT HE IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(A) PROMULGATED UNDER THE SECURITIES ACT AT THE TIME OF
EXERCISE. As a condition to exercise of his Warrants, at the time the Holder
presents his Warrant Certificate to the Company in order to exercise his
Warrants, the Holder will deliver to the Company a letter containing the
representations and warranties set forth below:
(a) he has reviewed any relevant reports, proxy statements or other
information filed by the Company with the Securities and Exchange
Commission or has otherwise obtained copies of such documents from the
Company (which were provided to him at no cost), which he deems necessary
in order to make the investment decision.
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(b) he is acquiring the Warrant Shares for his own account and for
investment purposes and does not intend to redistribute the Shares except
in a transaction or transactions exempt from registration under the federal
and state securities laws or pursuant to an effective registration
statement under such laws.
(c) he (i) is an "accredited investor" as defined in Rule 501(a)
promulgated under the Securities Act, (ii) has such knowledge and
experience in financial and business matters that he is capable of
independently evaluating the risks and merits of acquiring the Warrant
Shares, (iii) has independently evaluated the risks and merits of acquiring
the Warrant Shares and has independently determined that the Warrant Shares
are a suitable investment for him, and (iv) has sufficient financial
resources to bear the loss of his entire investment in the Warrant Shares.
10. REAFFIRMATION OF THE WARRANT AGREEMENT. To the extent that any
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provision hereof conflicts with any provision of the Warrant Agreement, the
provision hereof shall control. Except as expressly amended hereby, the terms
and conditions of the Warrant Agreement shall remain in full force and effect.
11. EFFECTIVE DATE OF AGREEMENT. Notwithstanding the date of execution
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hereof, this Agreement shall be deemed effective as of December 19, 1997, except
Sections 1, 2 and 6 of this Agreement which shall be deemed effective as of
March 4, 1998.
12. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
[REMAINDER OR PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of March 4, 1998.
FAIRFIELD COMMUNITIES, INC.
By:
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Xxxxxx X. Xxxxxx
Senior Vice President and Secretary
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Name:
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EXHIBIT A
FORM OF SUPPLEMENTAL WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
ON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT APPLICABLE, RULE
144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE
DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION
SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT AND THE FIRST AMENDMENT AND
SUPPLEMENT TO WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE 5:30 P.M.,
NEW YORK TIME, December 21, 2000
No. W-______
SUPPLEMENTAL WARRANT CERTIFICATE
This Supplemental Warrant Certificate certifies that __________ ("Holder") is
the registered holder of ________ Warrants, each Warrant to purchase initially,
at any time from the date hereof until 5:30 p.m. New York time on December 21,
2000 ("Expiration Date"), one fully-paid and non-assessable share of common
stock, $.01 par value per share ("Common Stock") of Fairfield Communities, Inc.,
a Delaware corporation (the "Company"), at the initial exercise price, subject
to adjustment in certain events (the "Exercise Price"), of $5.225 per share of
Common Stock upon surrender of this Supplemental Warrant Certificate and payment
of the Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Warrant Agreement, dated as of December
27, 1995, among Vacation Break U.S.A., Inc. and Holder and the First Amendment
and Supplement to Warrant Agreement, dated as of March 4, 1998, by and among the
Company and Holder (collectively, the "Supplemental Warrant Agreement"). Payment
of the Exercise Price shall be made by certified or official bank check in New
York Clearing House funds payable to the order of the Company or by surrender of
this Supplemental Warrant Certificate.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Supplemental Warrant Certificate are part of
a duly authorized issue of Warrants issued pursuant to the Supplemental Warrant
Agreement, which Supplemental Warrant Agreement is hereby incorporated by
reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Supplemental Warrant Agreement provides that, upon the occurrence of
certain events, the Exercise Price and the type and/or number of the Company's
securities issuable thereon may, subject to certain conditions, be adjusted. In
such event, the Company will, at the request of the holder, issue a new
supplemental warrant certificate evidencing the adjustment in the Exercise Price
and the number and/or type of securities issuable upon the exercise of the
Warrants; provided, however, that the failure of the Company to issue such new
supplemental warrant certificates shall not in any way change, alter, or
otherwise impair, the rights of the holder as set forth in the Supplemental
Warrant Agreement.
Upon due presentment for registration of transfer of this Supplemental
Warrant Certificate at an office or agency of the Company, a new Supplemental
Warrant Certificate or Supplemental Warrant Certificates of like tenor and
evidencing in the aggregate a like number of Warrants shall be issued to the
transferee(s) in exchange for this Supplemental Warrant Certificate, subject to
the limitations provided herein and in the Supplemental Warrant Agreement,
without any charge except for any tax or other governmental charge imposed in
connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Supplemental Warrant Certificate, the Company shall forthwith issue to the
holder hereof a new Supplemental Warrant Certificate representing such numbered
unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Supplemental Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, and of any distribution to the holder(s) hereof, and for
all other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Supplemental Warrant Certificate which are defined
in the Supplement Warrant Agreement shall have the meanings assigned to them in
the Supplemental Warrant Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of March __, 1998.
Attest: FAIRFIELD COMMUNITIES, INC.
By:
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Xxxx Xxxxxx Xxxxxx X. Xxxxxx
Assistant Secretary Senior Vice President and Secretary
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FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1
The undersigned hereby irrevocably elects to exercise the right,
represented by this Supplemental Warrant Certificate, to purchase ______________
shares of common stock, par value $.01 per share, of Fairfield Communities, Inc.
and herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of _________________
__________________________________ in the amount of $________ , all in
accordance with the terms of Section 3.1 of the Warrant Agreement, dated as of
December 27, 1995, among Vacation Break U.S.A., Inc. and _______________________
("Holder") and the First Amendment and Supplement to Warrant Agreement, dated as
of March 4, 1998, among Fairfield Communities, Inc. and Holder. The undersigned
requests that a certificate for such securities be registered in the name of
________________________________________________________________ whose address
is _____________________________________________________________________ and
that such certificate be delivered to ____________________________________ whose
address is _______________________________________________________.
Dated:
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Signature
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(Signature must conform in all respects to name of
holder as specified on the face of the Supplemental
Warrant Certificate.)
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(Insert Social Security or Other Identifying Number of Holder)
FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.2
The undersigned hereby irrevocably elects to exercise the right,
represented by this Supplemental Warrant Certificate to purchase ________ shares
of common stock, par value $.01 per share, of Fairfield Communities, Inc. all in
accordance with the terms of Section 3.2 of the Warrant Agreement, dated as of
December 27, 1995, among Vacation Break U.S.A., Inc. and __________________
("Holder") and the First Amendment and Supplement to Warrant Agreement, dated as
of March 4, 1998, among Fairfield Communities, Inc. and Holder. The undersigned
requests that a certificate for the securities be registered in the name of
whose address is
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__________________________________________________________________ and that such
certificate be delivered to __________________________________________ whose
address is __________________________________________________________________.
Dated:
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Signature
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(Signature must conform in all respects to name of
holder as specified on the face of the Supplemental
Warrant Certificate.)
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(Insert Social Security or Other Identifying Number of Holder)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Supplemental Warrant Certificate.)
FOR VALUE RECEIVED, _____________ hereby sells, assigns and transfers unto
_______________________________________________________________________________
(Please print name and address of transferee)
this Supplemental Warrant Certificate, together with all right, tide and
interest therein, and does hereby irrevocably constitute and appoint
____________________________________________ as Attorney, to transfer the within
Supplemental Warrant Certificate on the books of the within-named Company, with
full power of substitution.
Dated:
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Signature
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(Signature must conform in all respects to name of
holder as specified on the face of the Supplemental
Warrant Certificate.)
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(Insert Social Security or Other Identifying Number of Holder)
