EXHIBIT 99.2
STOCK VOTING AGREEMENT
THIS STOCK VOTING AGREEMENT, dated as of August 4, 2003 (this
"Agreement"), by and among ResortQuest International, Inc., a Delaware
corporation (the "Company"), and the persons listed on Schedule I hereto (each,
a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, Xxxxxxx Entertainment Company, a Delaware corporation
("Xxxxxxx"), and the Company propose to enter into that certain Agreement and
Plan of Merger of even date herewith (the "Merger Agreement"), which provides
for, among other things, the merger of a wholly-owned subsidiary of Xxxxxxx with
and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholders are holders of record
or Beneficially Own (as hereinafter defined) shares of the common stock, $0.01
par value per share, of Xxxxxxx (the "Common Stock"); and
WHEREAS, as a condition to the willingness of the Company to enter into
the Merger Agreement, the Company has required that each Stockholder agree, and
in order to induce the Company to enter into the Merger Agreement, each
Stockholder has agreed, to enter into this Agreement with respect to all of the
shares of Common Stock listed as owned directly by such Stockholder on Schedule
I hereto and which may hereafter be acquired by such Stockholder prior to the
termination of this Agreement (collectively, the "Shares"), and all of the other
shares of Common Stock listed as Beneficially Owned by such Stockholder on
Schedule I hereto and which may hereafter be indirectly acquired by such
Stockholder and deemed Beneficially Owned by such Stockholder prior to the
termination of this Agreement (collectively, the "Other Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS
SECTION 1.1 GENERAL. Capitalized terms used and not defined herein have
the respective meanings ascribed to them in the Merger Agreement.
SECTION 1.2 BENEFICIAL OWNERSHIP. For purposes of this Agreement,
"Beneficially Own" or "Beneficial Ownership" with respect to any securities
shall mean "beneficial ownership" of such securities (as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), including pursuant to any agreement, arrangement or understanding,
whether or not in writing, but exclusive of options or other rights to purchase
Common Stock. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Stockholder shall include securities
Beneficially Owned by all other persons with whom such person would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act other than
parties to this Agreement.
ARTICLE II.
VOTING; PROXY
SECTION 2.1 VOTING AGREEMENT. Each of the Stockholders hereby
irrevocably and unconditionally agrees that during the term of this Agreement as
specified in Section 4.1, at any meeting of the stockholders of Xxxxxxx, however
called, and in any action by consent of the stockholders of Xxxxxxx, each of the
Stockholders shall vote (or cause to be voted) all of the Shares which such
Stockholder has the right to vote and use his or her reasonable best efforts to
cause to be voted all of the Other Shares entitled to vote:
(a) in favor of the Merger, the Merger Agreement the
transactions contemplated by the Merger Agreement and any other matter
necessary to consummate the transactions contemplated by the Merger
Agreement (each of the Stockholders acknowledges receipt and review of
a copy of the Merger Agreement);
(b) against any action or agreement that is reasonably
likely to result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of Xxxxxxx under the
Merger Agreement; and
(c) except for all such actions which Xxxxxxx may
undertake under the Merger Agreement, against any action that is
reasonably likely to materially impede, interfere with, delay, postpone
or adversely affect in any material respect the Merger and the
transactions contemplated by the Merger Agreement.
SECTION 2.2 PROXY. Each Stockholder, by this Agreement, does hereby
constitute and appoint the Company, or any nominee of the Company, with full
power of substitution, as such Stockholder's irrevocable proxy and
attorney-in-fact to vote the Shares in the manner, and only upon the matters,
described in Section 2.1 hereof in the event such Stockholder fails to comply
with its obligations under such section. Each Stockholder intends this proxy to
be irrevocable and coupled with an interest and will take such further action
and execute such other instruments as may be necessary to effectuate the intent
of this proxy and hereby revokes any proxy previously granted by such
Stockholder with respect to its Shares. The proxy granted pursuant to this
Section 2.2 shall automatically terminate upon the termination of this
Agreement.
SECTION 2.3 NO INCONSISTENT AGREEMENT OR ACTION. Each of the
Stockholders hereby covenants and agrees that such Stockholder shall not, nor
permit any person or entity under such Stockholder's control to, enter into any
voting agreement or grant a proxy or power of attorney with respect to the
Shares or Other Shares or form any "group" for purposes of the Exchange Act or
the rules promulgated thereunder.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders hereby represents and warrants, severally and
not jointly, to the Company as follows:
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SECTION 3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Such Stockholder has
all necessary legal capacity, power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, moratorium or other laws affecting creditors' rights
generally or by general principles governing the availability of equitable
remedies.
SECTION 3.2 NO CONFLICT.
(a) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder shall not, (i) conflict with or violate any agreement,
arrangement, law, rule, regulation, order, judgment or decree to which
such Stockholder is a party or by which such Stockholder is, or the
Shares or Other Shares are, bound or affected or (ii) result in any
breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or encumbrance on any of the Shares
or Other Shares pursuant to any note, bond, mortgage, indenture,
contract, agreement or other instrument or obligation to which such
Stockholder is a party or by which such Stockholder is bound or
affected, except for any such conflicts, violations, breaches, defaults
or other occurrences which would not interfere with, prevent or delay
the performance by such Stockholder of its obligations under this
Agreement.
(b) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder shall not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental entity
except for applicable requirements, if any, of the Exchange Act, and
except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications,
would not interfere with, prevent or delay the performance by such
Stockholder of its obligations under this Agreement.
SECTION 3.3 TITLE TO THE SHARES. As of the date hereof, such
Stockholder is the record or Beneficial Owner of the number of Shares and Other
Shares listed opposite the name of such Stockholder on Schedule I hereto. The
Shares listed opposite the name of such Stockholder on Schedule I hereto are all
of the shares of Common Stock held of record by such Stockholder and the Other
Shares listed opposite the name of such Stockholder on Schedule I hereto are all
of the shares of Common Stock held indirectly by such Stockholder and deemed
Beneficially Owned by such Stockholder. Such Stockholder has not appointed or
granted any proxy, which appointment or grant is still effective, with respect
to the Shares. Each Stockholder has the exclusive right to vote or cause to be
voted each of the Shares listed opposite the name of such Stockholder on
Schedule I hereto. The Shares listed opposite the name of such Stockholder on
Schedule I hereto are owned free and clear of all security interests, liens,
claims, pledges,
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options, rights of first refusal, agreements, limitations on such Stockholder's
voting rights, charges and other encumbrances of any nature whatsoever.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1 TERMINATION. This Agreement shall be effective as of the
date of this Agreement and shall terminate upon the earlier to occur of (a) the
closing of the transactions contemplated by the Merger Agreement and (b) the
date the Merger Agreement is terminated in accordance with its terms.
SECTION 4.2 ADDITIONAL SHARES. If, after the date hereof, a Stockholder
acquires any additional shares of Common Stock, including, without limitation,
upon exercise of any option, warrant or right to acquire shares of Common Stock
or through any stock dividend or stock split, the provisions of this Agreement
applicable to the Shares shall be applicable to such additional shares as if
such additional shares had been Shares as of the date hereof without action by
any person immediately upon the acquisition by such Stockholder of such
additional shares. If, after the date hereof, a Stockholder additional shares of
Common Stock indirectly that such Stockholder is deemed to Beneficially Own,
including, without limitation, upon exercise of any option, warrant or right to
acquire shares of Common Stock or through any stock dividend or stock split, the
provisions of this Agreement applicable to the Other Shares shall be applicable
to such additional shares as if such additional shares had been Other Shares as
of the date hereof without action by any person immediately upon the acquisition
of such additional shares.
SECTION 4.3 STOCKHOLDER CAPACITY. No Stockholder makes any agreement or
understanding herein in the Stockholder's capacity as a director or officer of
Xxxxxxx. Each Stockholder executes this Agreement solely in its capacity as a
stockholder of Xxxxxxx and nothing herein shall limit or affect any actions
taken by the Stockholder or any designee of the Stockholder in its capacity as
an officer or director of Xxxxxxx.
SECTION 4.4 FURTHER ASSURANCES. From time to time, at the Company's
request and without further consideration, each Stockholder shall execute and
deliver such additional documents as may be necessary or desirable to consummate
and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
SECTION 4.5 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 4.6 REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
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SECTION 4.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Company and the Stockholders with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between the Company and the Stockholders with respect to the
subject matter hereof.
SECTION 4.8 AMENDMENT AND WAIVER. No alteration, waiver, amendment or
supplement of this Agreement shall be binding or effective unless the same is
set forth in an instrument in writing signed by the parties hereto. The waiver
or failure to insist upon strict compliance with any condition or provision
hereof shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other waiver or failure.
SECTION 4.9 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other party.
SECTION 4.10 SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and the parties hereby shall
negotiate in good faith to modify such provision or portion of such provision so
as to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated.
SECTION 4.11 GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to the principles of conflicts of law thereof. Each party
hereby irrevocably submits to the exclusive jurisdiction of the Court of
Chancery in the State of Delaware in any action, suit or proceeding arising in
connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection based
on forum non conveniens or any other objection to venue therein); provided,
however, that such consent to jurisdiction is solely for the purpose referred to
in this paragraph and shall not be deemed to be a general submission to the
jurisdiction of said Court or in the State of Delaware other than for such
purposes. Each party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding.
SECTION 4.12 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, facsimile or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any courier service, such as Federal Express, providing proof of delivery.
All communications hereunder shall be delivered to the respective parties at the
following addresses or the addresses set forth on Schedule I hereto:
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If to the Company: ResortQuest International, Inc.
0000 Xxxxxxx 00 Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx XxXxxxxx
Fax: (000) 000-0000
If to any Stockholder at the address of such Stockholder set forth on
Schedule I or to such other address as the person to whom notice is given may
furnish to the others in writing in the manner set forth above.
SECTION 4.13 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be an original and all of which, when
taken together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the Stockholders and the Company have
caused this Agreement to be duly executed as of the date first written above.
RESORTQUEST INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: President, CEO
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SIGNATURE PAGE TO VOTING AGREEMENT
STOCKHOLDERS
XXXXXX X. XXXXXXX REVOCABLE TRUST
By: /s/ Xxxxx X. Xxxxx
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Title: Trustee
---------------------------------
By: /s/ Xxxxxxxxx Xxxxxxx Everest
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Title: Trustee
---------------------------------
SIGNATURE PAGE TO VOTING AGREEMENT
STOCKHOLDERS
/s/ X.X. Xxxxxxx XX
------------------------------------
X.X. Xxxxxxx XX
SIGNATURE PAGE TO VOTING AGREEMENT
STOCKHOLDERS
/S/ Xxxxxxxxx Xxxxxxx Everest
------------------------------------
Xxxxxxxxx Xxxxxxx Everest
SIGNATURE PAGE TO VOTING AGREEMENT
STOCKHOLDERS
/S/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx
SIGNATURE PAGE TO VOTING AGREEMENT
STOCKHOLDERS
/S/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx
SIGNATURE PAGE TO VOTING AGREEMENT
STOCKHOLDERS
/S/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
SIGNATURE PAGE TO VOTING AGREEMENT
SCHEDULE I
STOCKHOLDERS
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF SHARES NUMBER OF OTHER SHARES
------------------------------- ---------------- ----------------------
Xxxxxx X. Xxxxxxx Revocable Trust 0 5,130,581
c/o Xxxxx X. Xxxxx
X.X. Xxx 00000
Xxxxxxxx Xxxx, XX 00000
X.X. Xxxxxxx XX 402,500 0
Xxxxx 0, Xxx 000-X
Xxxxxxxx, XX 00000
Xxxxxxxxx Xxxxxxx Everest 849,163 2,236,727
0000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxxx 0 706,892
00000 Xxxxxxx Xx Xxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
Xxxxxxx X. Xxxx 30,000 0
Xxxxxxx Entertainment Company
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxx 110,000 0
Xxxxxxx Entertainment Company
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
