STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement"), dated November 1, 2000,
between Fairfield Communities, Inc., a Delaware corporation (the
"Company"), and Cendant Corporation, a Delaware corporation ("Cendant").
WHEREAS, the Company, Cendant and Grand Slam Acquisition Corp., a
Delaware corporation and a subsidiary of the Company ("Merger Sub"), are
entering into a Merger Agreement of even date herewith (the "Merger
Agreement", terms defined therein and not otherwise defined herein having
the same meanings when used herein), which provides, among other things,
that upon the terms and subject to the conditions contained therein, Merger
Sub will be merged (the "Merger") with and into the Company; and
WHEREAS, the Company has agreed, in order to induce Cendant to
enter into the Merger Agreement, to grant the Option (as hereinafter
defined).
NOW THEREFORE, in consideration of the premises and the
representations, warranties, mutual covenants and agreements set forth
herein and in the Merger Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Grant of Option. The Company hereby grants Cendant an irrevocable option
(the "Option") to purchase, subject to the terms and conditions set forth
herein, up to 8,448,027 shares (the "Company Shares") of common stock of
the Company, par value $0.01 per share (the "Company Common Stock"),
together with the rights (the "Rights") associated with such shares issued
pursuant to the Rights Agreement, dated as of September 1, 1992, as
amended, between the Company and The First National Bank of Boston (as
successor of Society National Bank), as Rights Agent (the "Rights
Agreement"), in the manner set forth below at a price equal to the value,
based on the Average Trading Price, of the Merger Consideration per share
(the "Exercise Price"); provided, however, that if the Company Stockholders
Meeting shall not have occurred, the Exercise Price shall be calculated
using an Average Trading Price equal to the arithmetic average of the 4:00
p.m. Eastern Time closing sales prices of Parent Common Stock reported on
the NYSE Composite Tape for the 20 consecutive Trading Days ending on (and
including) the Trading Day immediately prior to the date of the Exercise
Notice (as defined herein); provided, further, that in no event shall the
number of shares of the Company Common Stock for which the Option is
exercisable exceed 19.9% of the Company's issued and outstanding shares of
the Company Common Stock. References herein to the Company Shares shall
also be deemed to include the associated Rights.
2. Exercise of Option. The Option may be exercised by Cendant, in whole or
in part, at any time or from time to time. In the event Cendant wishes to
exercise the Option, Cendant shall deliver to the Company a written notice
(an "Exercise Notice") specifying the total number of the Company Shares it
wishes to purchase and a date and time for the closing of such purchase (a
"Closing"), which date shall not be less than two nor more than thirty days
after the later of (x) the date such Exercise Notice is given and (y) the
expiration or termination of any applicable waiting period under the HSR
Act. The Option shall terminate upon the earliest 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)
5:00 p.m., New York City time, on the date that is the one year anniversary
of the termination of the Merger Agreement in connection with which Cendant
is or may be entitled to the payment specified in Section 5.8 thereof or
if, at the expiration of such one year period, the Option cannot be
exercised by reason of any applicable judgment, decree, order, law or
regulation, ten business days after such impediment to exercise shall have
been removed or shall have become final and not subject to appeal.
3. Conditions to Closing. The obligation of the Company to issue the
Company Shares to Cendant hereunder is subject to the conditions that (i)
all waiting periods, if any, under the HSR Act applicable to the issuance
of the Company Shares hereunder shall have expired or have been terminated
and (ii) no statute, rule or regulation shall be in effect, and no order,
decree or injunction entered by any court of competent jurisdiction or
governmental entity in the United States shall be in effect, that prohibits
or restrains the exercise of the Option pursuant to the terms of this
Agreement.
4. Closing. At any Closing, (a) upon receipt of the payment provided for by
this Section 4, the Company will deliver to Cendant a single certificate in
definitive form representing the number of the Company Shares designated by
Cendant in its Exercise Notice, such certificate to be registered in the
name of Cendant and to bear the legend set forth in Section 12 of this
Agreement, and (b) Cendant will deliver to the Company the aggregate price
for the Company Shares so designated in an amount equal to the product
obtained by multiplying the Exercise Price by the number of Company Shares
to be purchased by wire transfer of immediately available funds payable to
the Company pursuant to the Company's instructions. At any Closing at which
Cendant is exercising the Option in part, Cendant shall present and
surrender this Agreement to the Company, and the Company shall deliver to
Cendant an executed new agreement with the same terms as this Agreement
evidencing the right to purchase the balance of the shares of the Company
Common Stock purchasable hereunder.
5. Representations and Warranties of the Company. The Company represents
and warrants to Cendant that (a) the Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder, (b) the
execution and delivery of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or any of the transactions
contemplated hereby, (c) this Agreement has been duly executed and
delivered by the Company, constitutes a valid and binding obligation of the
Company and, assuming this Agreement constitutes a valid and binding
obligation of Cendant, is enforceable against the Company in accordance
with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, the availability of injunctive
relief and other equitable remedies, and limitations imposed by law on
indemnification for liability under securities laws, (d) the Company has
taken all necessary corporate action to authorize and reserve for issuance
and to permit it to issue, upon exercise of the Option, and at all times
from the date hereof through the expiration of the Option will have
reserved, 8,448,027 unissued Company Shares and such other shares of the
Company Common Stock or other securities which may be issued pursuant to
Section 10 of this Agreement, all of which, upon their issuance, payment
and delivery in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable, and free and clear of all
claims, liens, charges, encumbrances and security interests of any nature
whatsoever (other than those (i) created by or through Cendant, or any of
its affiliates, (ii) which arise under this Agreement, or (iii) which arise
under the Securities Act of 1933, as amended (the "Securities Act") or any
applicable state securities laws), (e) the execution and delivery of this
Agreement by the Company does not, and the performance of this Agreement by
the Company will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any
obligation or the loss of a material benefit under, or the creation of a
lien, pledge, security interest or other encumbrance on assets pursuant to
(any such conflict, violation, default, right of termination, cancellation
or acceleration, loss or creation, a "Violation"), (A) any provision of the
Certificate of Incorporation or By-laws of the Company, (B) any provisions
of any loan or credit agreement, note, mortgage, indenture, lease, benefit
plan or other agreement, obligation, instrument, permit, concession,
franchise, license of or applicable to the Company, or (C) any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
the Company or its properties or assets, which Violation, in the case of
each of clauses (B) and (C), individually or in the aggregate would prevent
or materially delay the exercise by Cendant of the Option or any other
right of Cendant under this Agreement, or (f) the execution and delivery of
this Agreement by the Company does not, and the performance of this
Agreement by the Company will not result in a "Triggering Event" under the
Rights Agreement, and (g) except as described in Section 3.1(d) of the
Merger Agreement or this Agreement, and other than the HSR Act and, with
respect to Section 9 hereof, compliance with the provisions of the
Securities Act and any applicable state securities laws, the execution and
delivery of this Agreement by the Company does not, and the performance of
this Agreement by the Company will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any
governmental or regulatory authority.
6. Representations and Warranties of Cendant. Cendant represents and
warrants to the Company that (a) Cendant is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder, (b) the execution and
delivery of this Agreement by Cendant and the consummation by Cendant of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Cendant and no other corporate
proceedings on the part of Cendant are necessary to authorize this
Agreement or any of the transactions contemplated hereby, (c) this
Agreement has been duly executed and delivered by Cendant and constitutes a
valid and binding obligation of Cendant, and, assuming this Agreement
constitutes a valid and binding obligation of the Company, is enforceable
against Cendant in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
the availability of injunctive relief and other equitable remedies and
limitations imposed by law on indemnification for liability under
applicable securities laws, (d) the execution and delivery of this
Agreement by Cendant does not, and the performance of this Agreement by
Cendant will not, result in any Violation pursuant to (A) any provision of
the charter documents of Cendant, (B) any provisions of any loan or credit
agreement, note, mortgage, indenture, lease, or other agreement,
obligation, instrument, permit, concession, franchise, license of or
applicable to it or (C) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Cendant or its properties or
assets, which Violation, in the case of each of clauses (B) and (C), would,
individually or in the aggregate have a material adverse effect on
Cendant's ability to consummate the transactions contemplated by this
Agreement, (e) except as described in Section 3.2(c) of the Merger
Agreement, and other than the HSR Act and, with respect to Section 9
hereof, compliance with the provisions of the Securities Act and any
applicable state securities laws, the execution and delivery of this
Agreement by Cendant does not, and the performance of this Agreement by
Cendant will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental or regulatory
authority and (f) any Company Shares acquired upon exercise of the Option
will not be, and the Option is not being, acquired by Cendant with a view
to public distribution or resale in any manner which would be in violation
of federal or state securities laws.
7. Put Right.
(a) Exercise of Put. At any time during which the Option is
exercisable pursuant to Section 2 or would be exercisable but for the
circumstances referred to in Section 2(iii) of this Agreement (the
"Repurchase Period"), upon demand by Cendant, Cendant shall have the right
to sell to the Company (or any successor entity thereof) and the Company
(or such successor entity) shall be obligated to repurchase from Cendant
(the "Put"), all or any portion of the Option, at the price set forth in
clause (i) below, or all or any portion of the Company Shares purchased by
Cendant pursuant hereto, at a price set forth in clause (ii) below:
(i) the product of multiplying (A) the difference between
the "Market/Offer Price" for shares of the Company Common
Stock as of the date (the "Notice Date") the notice of
exercise of the Put is given to the Company (defined as the
higher of (x) the highest price per share offered as of the
Notice Date pursuant to any tender or exchange offer or
other Company Takeover Proposal which was made prior to the
Notice Date and not terminated or withdrawn as of the Notice
Date (the "Offer Price") and (y) the average of the closing
prices of shares of the Company Common Stock on the New York
Stock Exchange for the five trading days immediately
preceding the Notice Date (the "Market Price")), and the
Exercise Price, by (B) the number of Company Shares
purchasable pursuant to the Option (or portion thereof with
respect to which Cendant is exercising its rights under this
Section 7). In determining the Market/Offer Price, the value
of consideration other than cash or stock as provided above
shall be determined by a nationally recognized investment
banking firm selected by Cendant and reasonably acceptable
to the Company.
(ii) the product of multiplying (A) the Exercise Price paid
by Cendant for the Company Shares acquired pursuant to the
Option plus, assuming the Market/Offer Price is greater than
the Exercise Price, the difference between the Market/Offer
Price and the Exercise Price, by (B) the number of Company
Shares so purchased.
(b) Payment and Redelivery of Option or Shares. In the event
Cendant exercises its rights under this Section 7, the Company shall,
within two business days of the Notice Date, pay the required amount to
Cendant by wire transfer in immediately available funds to an account
specified by Cendant two business days prior to the date that payment is
due and Cendant shall surrender to the Company the Option or the
certificates evidencing the Company Shares purchased by Cendant pursuant
hereto, and Cendant shall warrant that it owns such shares and that such
shares are then free and clear of all liens, claims, charges and
encumbrances of any kind or nature whatsoever.
8. Restrictions on Certain Actions. Until the termination of the option
pursuant to Section 2, the Company shall not adopt any Rights Agreement or
shareholder rights plan or any amendment thereto in any manner which would
cause Cendant, if Cendant has complied with its obligations under this
Agreement and the Merger Agreement, to become an "Acquiring Person" under
such Rights Agreement or shareholder rights plan solely by reason of the
beneficial ownership of the Company Shares acquired pursuant to this
Agreement.
9. Registration Rights.
(a) Demand. The Company will, if requested in writing (a "Registration
Notice") by Cendant at any time and from time to time within two years of
the exercise of the Option, as expeditiously as possible prepare and file
registration statements under the Securities Act if such registration or
the obtaining of a receipt for a prospectus is necessary in order to permit
the sale or other disposition of any or all shares or other securities that
have been acquired by or are issuable to Cendant upon exercise of the
Option ("Registrable Securities") in accordance with the intended method of
sale or other disposition stated by Cendant. Any such Registration Notice
must relate to a number of Registrable Securities equal to at least twenty
percent (20%) of Company Shares, unless the remaining number of Registrable
Securities is less than such amount, in which case Cendant shall be
entitled to exercise its rights hereunder but only for all of the remaining
Registrable Securities (a "Permitted Offering"). Cendant's rights hereunder
shall terminate at such time as Cendant shall be entitled to sell all of
the remaining Registrable Securities pursuant to Rule 144(k) under the Act.
The Company will use its reasonable best efforts to qualify such shares or
other securities under any applicable state securities laws; provided,
however, that the Company shall not be required to qualify to do business,
consent to general service of process or submit to taxation in any
jurisdiction by reason of this provision. The Company will use reasonable
efforts to cause each such registration statement to become effective and
to obtain a (final) receipt for each such prospectus, to obtain all
consents or waivers of other parties which are required therefor, and to
keep such registration statement or prospectus effective for such period
not in excess of 120 calendar days from the day such registration statement
first becomes effective or the date of the (final) receipt for such
prospectus as may be reasonably necessary to effect such sale or other
disposition. The obligations of the Company hereunder to file a
registration statement or prospectus and to maintain its effectiveness may
be suspended for up to 90 calendar days in the aggregate during any
12-month period if the board of directors of the Company shall have
determined that the filing of such registration statement or prospectus or
the maintenance of its effectiveness would require premature disclosure of
nonpublic information that would materially and adversely affect the
Company or otherwise interfere with or adversely affect any pending or
proposed offering of securities of the Company or any other material
transaction involving the Company, or the Company would be required under
the Securities Act to include audited financial statements for any period
in such registration statement or prospectus and such financial statements
are not yet available for inclusion in such registration statement or
prospectus. Subject to applicable law, the expenses associated with the
preparation and filing any registration statement or prospectus prepared
and filed under this Section 9, and any sale covered thereby ("Registration
Expenses"), will be paid by the Company except for underwriting discounts
or commissions, brokers' fees and the reasonable fees and disbursements of
one law firm acting as Cendant's counsel related thereto. In connection
with any registration statement or prospectus pursuant to this Section 9,
Cendant shall furnish, or cause any holder of the Option or Company Shares
(a "Holder") to furnish, the Company with such information concerning
itself and the proposed sale or distribution as shall reasonably be
required in order to ensure compliance with the requirements of the
Securities Act and to provide representations and warranties customary for
selling stockholders who are unaffiliated with the Company. In addition,
Cendant shall, and Cendant shall cause each Holder to contractually agree
to, indemnify and hold the Company, its underwriters and each of their
respective affiliates harmless against any and all losses, claims, damages,
liabilities and expenses (including, without limitation, investigation
expenses and fees and disbursement of counsel and accountants), joint or
several, to which the Company, its underwriters and each of their
respective affiliates may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
written information furnished by any Holder to the Company expressly for
use in such registration statement.
(b) Piggyback. If, during the time periods referred to in the first
sentence of subsection (a), the Company effects a registration under the
Securities Act of the Company Common Stock for its own account or for any
other stockholders of the Company pursuant to a firm commitment
underwriting (other than on Form S-4 or Form S-8, or any successor form),
it will allow Cendant the right to participate in such registration or
qualification as long as Cendant participates in such underwriting on terms
reasonably satisfactory to the managing underwriters of such offering, and
such participation will not affect the obligation of the Company to effect
demand registration statements or prospectuses for Cendant under this
Section 9; provided, that, if the managing underwriters of such offering
advise the Company in writing that in their opinion the number of shares of
the Company Common Stock requested to be included in such registration or
qualification exceeds the number that it would be in the best interests of
the Company to sell in such offering, the Company will, after fully
including therein all shares of Company Common Stock to be sold by the
Company, include the shares of Company Common Stock requested to be
included therein by Cendant pro rata (based on the number of shares of
Company Common Stock requested to be included therein) with the shares of
Company Common Stock requested to be included therein by persons other than
the Company and persons to whom the Company owes a contractual obligation
(other than any director, officer or employee of the Company to the extent
any such person is not currently owed such contractual obligation).
(c) In connection with any registration or qualification pursuant to this
Section 9, the Company and Cendant will provide each other and any
underwriter of the offering with customary representations, warranties,
covenants, indemnification, and contribution in connection with such
registration or qualification. The Company shall provide to any
underwriters such documentation (including certificates, opinions of
counsel and "comfort" letters from auditors) as are customary in connection
with underwritten public offerings as such underwriters may reasonably
require.
(d) If the Company's securities of the same type as the Company Common
Stock beneficially owned by Cendant are then authorized for quotation or
trading or listing on The New York Stock Exchange (the "NYSE") or any other
securities exchange or automated quotations system, the Company, upon the
request of Cendant, shall promptly file an application, if required, to
authorize for quotation, trading or listing such shares of the Company
Common Stock on such exchange or system and will use its reasonable efforts
to obtain approval, if required, of such quotation, trading or listing as
soon as practicable.
10. Adjustment Upon Changes in Capitalization.
(a) In the event of any change in the Company Common Stock by reason of
stock dividends, split-ups, mergers, recapitalizations, combinations,
exchange of shares or the like, the type and number of shares or securities
subject to the Option, and the purchase price per share provided in Section
1 of this Agreement, shall be adjusted appropriately, and proper provision
shall be made in the agreements governing such transaction so that Cendant
shall receive, upon exercise of the Option, the number and class of shares
or other securities or property that Cendant would have received in respect
of the Company Common Stock if the Option had been exercised immediately
prior to such event or the record date therefor, as applicable. In the
event that any additional shares of Company Common Stock otherwise become
outstanding after the date of this Agreement (other than pursuant hereto),
the number of shares of Company Common Stock subject to the Option shall be
increased to equal 19.9% of the number of shares of Company Common Stock
then issued and outstanding.
(b) In the event that the Company shall enter in an agreement: (i) to
consolidate with or merge into any person, other than Cendant or another
direct or indirect wholly-owned subsidiary of Cendant, and shall not be the
continuing or surviving corporation of such consolidation or merger; (ii)
to permit any person, other than Cendant or another direct or indirect
wholly-owned subsidiary of Cendant, to merge into the Company and the
Company shall be the continuing or surviving corporation, but, in
connection with such merger, the then-outstanding shares of Company Common
Stock shall be changed into or exchanged for stock or other securities of
the Company or any other person or cash or any other property or the
outstanding shares of Company Common Stock immediately prior to such merger
shall after such merger represent less than 50% of the outstanding shares
and share equivalents of the merged company; or (iii) to sell or otherwise
transfer all or substantially all of its assets to any person, other than
Cendant or another direct or indirect wholly-owned subsidiary of Cendant,
then, and in each such case, the Company shall immediately so notify
Cendant, and the agreement governing such transaction shall make proper
provisions so that upon the consummation of any such transaction and upon
the terms and conditions set forth herein. Cendant shall, upon exercise of
the Option, receive for each Company Share with respect to which the Option
has not been exercised an amount of consideration in the form of and equal
to the per share amount of consideration that would be received by the
holder of one share of Company Common Stock less the Exercise Price (and,
in the event of an election or similar arrangement with respect to the type
of consideration to be received by the holders of Company Common Stock,
subject to the foregoing, proper provision shall be made so that the holder
of the Option would have the same election or similar rights as would the
holder of the number of shares of Company Common Stock for which the Option
is then exercisable).
11. Profit Limitation.
(a) Notwithstanding any other provision of this Agreement, in no event
shall the Total Payment (as hereinafter defined) received by Cendant and
its affiliates exceed $32,000,000 and, if it otherwise would exceed such
amount, Cendant, at its sole election, shall either (i) reduce the number
of shares of Company Common Stock subject to the Option, (ii) deliver to
the Company for cancellation Company Shares previously purchased by Cendant
(valued, for the purposes of this Section 11(a) at the average closing
sales price per share of Company Common Stock (or if there is no sale on
such date then the average between the closing bid and ask prices on any
such date) as reported by the NYSE for the twenty consecutive trading days
preceding the day on which the Total Payment exceeds $32,000,000, (iii) pay
cash to the Company, or (iv) any combination thereof, so that the actually
realized Total Payment shall not exceed $32,000,000 after taking into
account the foregoing actions.
(b) As used herein, the term "Total Payment" shall mean the sum (before
taxes) of the following: (i) any amount received by Cendant pursuant to
Section 7 hereof, (ii) (x) the net cash amounts received by Cendant
pursuant to the sale, within twelve months following exercise of the
Option, of Company Shares (or any other securities into which such Company
Shares shall be converted or exchanged) to any unaffiliated party, less (y)
the aggregate Exercise Price for such shares, (iii) any amounts received by
Cendant upon transfer of the Option (or any portion thereof) to any
unaffiliated party, and (iv) the amount actually received by Cendant
pursuant to Section 5.8 of the Merger Agreement.
(c) Notwithstanding any other provision of this Agreement, nothing in this
Agreement shall affect the ability of Cendant to receive or relieve the
Company's obligation to pay a fee pursuant to Section 5.8 of the Merger
Agreement.
12. Restrictive Legends. Each certificate representing shares of the
Company Common Stock issued to Cendant hereunder shall include a legend in
substantially the following form:
"THE TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO CERTAIN PROVISIONS OF AN AGREEMENT BETWEEN THE
REGISTERED HOLDER HEREOF AND THE COMPANY AND TO RESALE
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. A COPY OF SUCH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY AND WILL BE PROVIDED TO THE
HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY THE COMPANY OF
A WRITTEN REQUEST THEREFOR."
The Company shall, upon written request of the holder thereof, issue such
holder a new certificate evidencing such Company Shares without such legend
in the event (i) the sale of such Company Shares has been registered
pursuant to the Securities Act, or (ii) such holder shall have delivered to
the Company an opinion of counsel to the effect that subsequent transfers
of such Company Shares may be effected without registration under the
Securities Act.
13. Listing and HSR Filing. The Company, upon request of Cendant, shall as
promptly as practicable file an application to list Company Shares to be
acquired upon exercise of the Option for listing or quotation on the NYSE
and shall use its reasonable efforts to obtain approval for such quotation
as promptly as practicable. Promptly after the date hereof, each of the
parties hereto shall promptly file all required pre-merger notification and
report forms and other documents and exhibits required to be filed under
the HSR Act to permit the acquisition of the Cendant Shares subject to the
Option at the earliest practicable date.
14. Binding Effect; No Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Except as expressly provided for in this Agreement
and except for any assignment by Cendant, in whole or in part, to a
wholly-owned, direct or indirect, subsidiary of Cendant (provided that any
such subsidiary agrees in writing to be bound by and liable for all of the
terms, conditions and provisions contained herein that would otherwise be
applicable to Cendant and provided further that Cendant shall remain liable
for all of its duties and obligations hereunder in the event such
subsidiary shall fail to perform hereunder), neither this Agreement nor the
rights or the obligations of either party hereto are assignable in whole or
in part (whether by operation of law or otherwise), without the written
consent of the other party and any attempt to do so in contravention of
this Section 14 will be void. Nothing contained in this Agreement, express
or implied, is intended to confer upon any person other than the parties
hereto and their respective permitted assigns any rights or remedies of any
nature whatsoever by reason of this Agreement.
15. Specific Performance. The parties recognize and agree that if for any
reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate
and irreparable harm or injury would be caused for which money damages
would not be an adequate remedy. Accordingly, each party agrees that, in
addition to other remedies, the other party shall be entitled to an
injunction or injunctions restraining any violation or threatened violation
of the provisions of this Agreement and to enforce specifically the terms
and provisions hereof in the Courts of the State of Delaware located in the
County of New Castle (or, if such court lacks subject matter jurisdiction,
any appropriate federal court in the State of Delaware (collectively, the
"Courts") any of the appeals courts thereof. In the event that any action
should be brought in equity to enforce the provisions of this Agreement,
neither party will allege, and each party hereby waives the defense that
there is adequate remedy at law.
16. Entire Agreement. This Agreement and the Merger Agreement (including
the Exhibits and Schedules thereto) constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all
other prior discussions, representations and warranties, agreements and
understandings, both written and oral, among the parties or any of them
with respect to the subject matter hereof. 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.
17. Further Assurances. Subject to the terms and conditions hereof, if
Cendant exercises the Option, or any portion thereof, in accordance with
the terms of this Agreement, each party will execute and deliver all such
further documents and instruments and take all such further action
including obtaining necessary regulatory approvals and making necessary
filings (including, without limitation, filings under the HSR Act and
filings with the NYSE) as may be necessary in order to consummate the
transactions contemplated hereby (including the issuance, registration and
listing of the Company Shares). To the extent that the Option becomes
exercisable, the Company will not take any actions which would frustrate
the exercise of the Option.
18. Interpretation. When a reference is made in this Agreement to Sections,
such reference shall be to a Section of to 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. All terms defined in this Agreement shall have the defined
meaning contained herein when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein. 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 gender and neuter genders of such term. 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 permitted
successors and 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.
19. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect.
In the event any court or other competent authority holds any provision of
this Agreement to be null, void or unenforceable, under any present or
future law, public policy or order, and if the rights or obligations of any
party hereto under this Agreement or the Merger Agreement, and the economic
or legal substance of the transactions contemplated hereby and thereby,
will not be materially and adversely affected thereby, (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
hereto shall negotiate in good faith the execution and delivery of an
amendment to this Agreement in order to the maximum extent possible to
effectuate, to the extent permitted by law, the intent of the parties
hereto with respect to such provision. Each party agrees that, should any
court or other competent authority hold any provision of this Agreement or
part hereof to be null, void or unenforceable, or order any party to take
any action inconsistent herewith, or not take any action required herein,
the other party shall not be entitled to specific performance of such
provision or part hereof or to any other remedy, including but not limited
to money damages, for breach hereof or of any other provision of this
Agreement or part hereof as the result of such holding or order.
20. Notices. Any notice, request, claim, demand or communication required
or permitted hereunder shall be in writing and either delivered personally,
telegraphed or telecopied or sent by certified or registered mail, postage
prepaid, and shall be deemed to be given, dated and received (a) on the
date of delivery if delivered personally, including by courier, (b) upon
receipt if delivered by registered or certified mail, return receipt
requested, postage prepaid or (c) upon receipt if sent by facsimile
transmission, 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 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 to the addresses or facsimile
numbers set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
If to the Company to:
Fairfield Communities, Inc.
0000 Xxxxxxxxx Xxxxxx
#000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
with a copy to (which shall not constitute notice):
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
If to Cendant:
Cendant Corporation
Six Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
with a copy to (which shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxx
21. 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.
22. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
23. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other parties. A facsimile copy
of a signature page shall be deemed to be an original signature page.
24. Expenses. Except as otherwise expressly provided herein or in the
Merger Agreement, all costs and expenses incurred by a party in connection
with the transactions contemplated by this Agreement, including fees and
expenses of its own financial consultants, investment bankers, accountants
and counsel, shall be paid by the party incurring such expenses.
25. Amendments; Waiver. This Agreement may be amended by the parties hereto
and the terms and conditions hereof may be waived only by an instrument in
writing signed on behalf of each of the parties hereto, or, in the case of
a waiver, by an instrument in writing signed on behalf of the party waiving
compliance.
26. Consent to 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.
27. Remedies Cumulative. Except as otherwise herein provided, the rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by applicable law.
28. Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter of this Agreement. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and except as otherwise
expressly provided for herein, it is not the intention of the parties to
confer third-party beneficiary rights upon any other person.
29. Limitations on Warranties.
(a) Except for the representations and warranties contained in this
Agreement and the Merger Agreement, the Company makes no other express or
implied representation or warranty to Cendant. Cendant acknowledges that,
in entering into this Agreement, it has not relied on any representations
or warranties of the Company or any other person other than the
representations and warranties of the Company set forth in this Agreement
or the Merger Agreement.
(b) Except for the representations and warranties contained in this
Agreement and the Merger Agreement, Cendant makes no other express or
implied representation or warranty to the Company. The Company acknowledges
that, in entering into this Agreement, it has not relied on any
representations or warranties of Cendant or any other person other than the
representations and warranties of Cendant set forth in this Agreement and
the Merger Agreement.
30. Date for Any Action. In the event that any date on which any action is
required to be taken hereunder by any of the parties hereto is not a
business day, such action shall be required to be taken on the next
succeeding day which is a business day.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective duly authorized officers as of the date
first above written.
FAIRFIELD COMMUNITIES, INC.
By: /s/ Xxxxx X. Xxxx
_________________________________
Name: Xxxxx X. Xxxx
Title: President and CEO
CENDANT CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
_________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice Chairman, General Counsel
and Assistant Secretary
