VOTING AGREEMENT
TABLE OF
CONTENTS
Exhibit
10.2
This
Voting Agreement (this “ Agreement ”), dated as of
October 29, 2009, is entered into by and among Secure America
Acquisition Holdings, LLC (“ XXXX ”), S. Xxxx Xxxxxxxx, Xxx
Xxxxxxxxxx, Xxxxxx X. XxXxxxx, Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxx
(collectively, with XXXX, the “ SAAC Founders ”), Ultimate
Resort Holdings, LLC, a Delaware limited liability company ( “URH” ) and Private Escapes
Holdings, LLC, a Delaware limited liability company (“ Private Escapes ,” and
together with URH, the “ Members ”).
WHEREAS,
Secure America Acquisition Corporation, a Delaware corporation (“ SAAC ”), Ultimate Escapes
Holdings, LLC, a Delaware limited liability company (the “ Company ”), URH and the
Members’ representative have entered into a Contribution Agreement, dated as of
September 2, 2009 (the “ Contribution Agreement ”),
pursuant to which SAAC will receive membership interests in the Company in
exchange for the Secure Contribution Property, as defined therein;
WHEREAS,
pursuant to and in accordance with the terms and provisions of the Amended and
Restated Operating Agreement of the Company, the Members have certain rights
with respect to conversion of their Membership Interests into capital stock of
SAAC; and
WHEREAS,
one of the conditions to the consummation of the transactions contemplated by
the Contribution Agreement is the execution and delivery of this Agreement so as
to impose the within restrictions and obligations on the Members and the SAAC
Founders for the mutual benefit of the parties hereto. Capitalized terms used
herein and not otherwise defined shall have the meanings given to them in the
Contribution Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and for
other valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Voting of Shares
..
(a) From
the Effective Time until the three-year anniversary of the date on which the
special meeting of SAAC’s stockholders is held in order to implement the
provisions of Section 5.9 of the Contribution Agreement, all of the Members and
the SAAC Founders shall vote or cause to be voted all Shares (as defined in
Section 2 below) owned
by it, or over which it has voting control, at any meeting for the election of
directors of SAAC or in any written consent in lieu of such meeting, and
otherwise use its respective best efforts, so as to fix the number of directors
of SAAC at six (subject to increase upon the mutual consent of XXXX and URH) and
to elect the following persons to the board of directors of SAAC (the “Board of Directors”
):
(i) two
(2) members of the Board of Directors designated by XXXX, it being understood
and agreed that the initial directors shall be (A) C. Xxxxxx XxXxxxxx, as a
Class C director (as defined in SAAC’s charter, “ Class C Director ”) and (B)
Xxxx X. Xxxxxx, as a Class B director (as defined in SAAC’s charter, “ Class B Director ”), each of
whom shall serve from the Effective Time for their respective terms, or until
their successors have been duly elected and qualified; and
(ii) four
(4) members of the Board of Directors designated by URH, it being understood and
agreed that the initial directors shall be (A) Xxxxx Xxxxxxxxxx as a Class C
Director, (B) Xxxxxxx Xxxxx, as a Class B Director and (C) Xxxxx Xxxxxxxx, as a
Class A Director, each of whom shall serve from the Effective Time for their
respective terms, or until their respective successors have been duly elected
and qualified;
it being
understood that, at all times, at least both of the nominees of XXXX and two of
the nominees of URH shall qualify as independent directors under the Securities
Exchange Act of 1934, as amended, and the NYSE Amex rules and regulations
(collectively, “ Applicable
Law” ) and those independent members of the Board of Directors must be
comprised of directors selected pursuant to Section 1(a)(i) and 1(a)(iii)
above.
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(b) The
parties hereto shall vote at a regular or special meeting of stockholders such
Shares that they own (or as to which they have voting power) to ensure that the
size of the Board of Directors shall be set and remain at five directors
(subject to increase upon the mutual consent of XXXX and URH).
(c) XXXX
and URH agree to nominate and recommend for election as directors only the
individuals designated, or to be designated, pursuant to Section 1(a) . If any party
hereto shall fail to provide SAAC with names of nominees as set forth in Section 1(a) , it shall be
deemed that the designees then serving as directors shall be the designees for
reelection, as long as in accordance with SAAC’s bylaws and Applicable
Law.
2. Shares. “ Shares ” shall mean and
include any and all shares of capital stock of SAAC, by whatever name called,
which carry voting rights (including voting rights which arise by reason of
default) and shall include any such shares now owned or subsequently acquired by
any party hereto, however acquired, including, without limitation, stock splits
and stock dividends.
3. Termination. This
Agreement shall terminate in its entirety upon the earlier of (a) the written
consent of XXXX and URH or (b) the three-year anniversary of the date on which
the special meeting of SAAC’s stockholders is held in order to implement the
provisions of Section 5.9 of the Contribution Agreement.
4. No Revocation.
The agreements contained herein are coupled with an interest and may
not be revoked, except by an amendment, modification or termination effected in
accordance with Sections 3 or
6(f) hereof. Nothing in this Section 4 shall be construed
as limiting the provisions of Sections 3 or 6(f)
hereof.
5. Restrictive Legend.
In addition to any legend placed on the certificates pursuant to any
other agreement or arrangement among the parties, each certificate evidencing
Shares owned or hereinafter acquired by the parties hereto or any of their
respective transferees bound by this Agreement shall, for so long as this
Agreement shall remain in effect, have affixed thereto a legend substantially in
the following form:
“THE
SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO CERTAIN VOTING
AGREEMENTS AS SET FORTH IN A VOTING AGREEMENT, AS AMENDED FROM TIME TO TIME, BY
AND AMONG THE COMPANY AND CERTAIN NAMED STOCKHOLDERS OF THE COMPANY, A COPY OF
WHICH IS AVAILABLE FOR INSPECTION AT THE OFFICES OF THE SECRETARY OF THE
COMPANY.”
SAAC
shall cooperate with the parties hereto to facilitate the removal of such legend
if this Agreement shall be terminated.
6. General.
(a) Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(b) Specific Performance.
Each party acknowledges and agrees that there can be no adequate
remedy at law for any breach by such party of the terms of this Agreement, that
any such breach may result in irreparable harm to the non-breaching party for
which monetary damages would be inadequate to compensate the non-breaching
party, and that the non-breaching party shall have the right, in addition to any
other rights available under Applicable Law, to obtain from any court of
competent jurisdiction injunctive relief to restrain any breach or threatened
breach of, or otherwise to specifically enforce, any covenant or obligation of
such party under this Agreement, without the necessity of posting any bond or
security.
(c) Governing Law; Consent to
Jurisdiction. This Agreement shall be governed by and
interpreted and enforced in accordance with the internal laws of the State of
Delaware, without giving effect to any choice of law or conflict of laws rules
or provisions (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Delaware.
(d) Notices. All
notices, requests, consents and other communications under this Agreement shall
be in writing and shall be deemed delivered (i) upon delivery when delivered
personally, (ii) upon receipt if by facsimile transmission (with confirmation of
receipt thereof), or (iii) one business day after being sent via a reputable
nationwide overnight courier service guaranteeing next business day delivery, in
each case to the intended recipient as set forth below:
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(i) if to
any SAAC Founder, to:
Secure America Acquisition Holdings, LLC
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: C. Xxxxxx XxXxxxxx
Facsimile: (000) 000-0000
With a required copy to (which shall not constitute notice):
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
(ii) if
to a Member, to:
Ultimate Resorts Holdings, LLC
0000 X. Xxxx Xx. Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxx, President
Facsimile: (000) 000-0000
With a required copy to (which shall not constitute notice):
Xxxxxxxxx Traurig LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Annex, Esq.
Facsimile: (000) 000-0000
Any party
may change the address to which notices, requests, consents or other
communications hereunder are to be delivered by giving the other parties notice
in the manner set forth in this Section.
(e) Complete Agreement.
This Agreement constitutes the entire agreement and understanding of
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings relating to such subject
matter.
(f) Amendments and Waivers.
This Agreement may be amended or terminated and the observance of
any term of this Agreement may be waived with respect to all parties to this
Agreement (either generally or in a particular instance and either retroactively
or prospectively), with the written consent of XXXX and URH. No failure or delay
by any party in exercising any right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. To the maximum extent permitted by applicable law, (i) no waiver that
may be given by a party shall be applicable except in the specific instance for
which it was given and (ii) no notice to or demand on one party shall be deemed
to be a waiver of any obligation of such party or the right of the party giving
such notice or demand to take further action without notice or
demand.
(g) Successors and Assigns.
This Agreement and the rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding upon, the parties’
respective successors, assigns and legal representatives and any subsequent
holders of the Shares.
(h) Pronouns.
Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
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(i) Counterparts; Facsimile
Signatures. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
shall be considered one and the same agreement, and shall become effective when
one or more such counterparts have been signed by each of the parties and
delivered to the other party. This Agreement may be executed by facsimile
signatures.
(j) Filing of Beneficial Ownership
Reports with the Commission. The parties hereto acknowledge
that, by virtue of the agreements herein contained, they may constitute a
“group” for purposes of Section 13 of the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and shall cooperate with
each other to timely prepare and file any and all beneficial ownership reports
required to be filed with the Commission as a “group” thereunder.
(k) Section Headings and
References. The section headings are for the convenience of
the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties. Any reference in this agreement to a
particular section or subsection shall refer to a section or subsection of this
Agreement, unless specified otherwise.
(Remainder
of page intentionally left blank. Signature pages to follow.)
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IN
WITNESS WHEREOF, this Voting Agreement has been executed by the parties hereto
as of the day and year first above written.
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SAAC
FOUNDERS:
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SECURE
AMERICA ACQUISITION HOLDINGS,
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LLC, by its managing
member, Secure America
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Holdings,
LLC
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By:
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/s/
C. Xxxxxx XxXxxxxx
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Name:
C. Xxxxxx XxXxxxxx
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Title:
Chief Executive Officer
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/s/
S. Xxxx Xxxxxxxx
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S.
Xxxx Xxxxxxxx
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/s/
Xxx Xxxxxxxxxx
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Xxx
Xxxxxxxxxx
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/s/
Xxxxxx X. XxXxxxx
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Xxxxxx
X. XxXxxxx
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/s/
Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
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/s/
Xxxx X. Xxxxxx
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Xxxx
X. Xxxxxx
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MEMBERS:
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ULTIMATE
RESORT HOLDINGS, LLC
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By:
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/s/
Xxxxx X. Xxxxxxxxxx
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Name:
Xxxxx X. Xxxxxxxxxx
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Title:
Chief Executive Officer
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PRIVATE
ESCAPES HOLDINGS, LLC
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By:
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/s/
Xxxxxxx Xxxxx
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Name:
Xxxxxxx Xxxxx
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Title:
Managing Member, Chief Executive
Officer
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