AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER is entered into as of
October 31, 1997 (this "Amendment"), among FAIRFIELD COMMUNITIES, INC., a
Delaware corporation ("Fairfield"), FA, Inc., an Arkansas corporation and a
wholly owned subsidiary of Fairfield ("Merger Sub"), ▇▇▇▇▇▇▇▇▇ FAMILY, LLC, an
Arkansas limited liability company ("LLC"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, C. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇. and APEX MARKETING, INC., and Arkansas corporation ("Apex").
WHEREAS, Fairfield, Merger Sub, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
and Apex are parties to that certain Agreement and Plan of Merger dated as of
October 22, 1997 (the "Merger Agreement"); and
WHEREAS, the parties desire to amend the Merger Agreement to reflect that
LLC is a shareholder of Apex and to include LLC as a party to the Merger
Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Amendment, the parties hereto agree
as follows:
1. The second recital to the Merger Agreement is hereby amended in its
entirety as follows:
WHEREAS, LLC and C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. hold all of the outstanding
capital stock of Apex and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ formerly held shares of capital
stock of Apex (collectively, LLC, C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇
▇▇▇▇▇▇▇▇▇ are referred to as the "Shareholders" and each as a
"Shareholder");
2. The following Section 3.2(u) is hereby added to the Merger Agreement:
(u) No Transfers. Other than pursuant to the Merger Agreement and the
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transfer of 450 shares of Apex Common Stock from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to LLC
on or about January 2, 1996, none of the Shareholders has transferred
or entered into any agreement to transfer any shares of Apex Common
Stock to any person or entity.
3. The following Sections 3.3(d) and (e) are hereby added to the
Merger Agreement:
(d) Organization. LLC is a limited liability company duly organized,
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validly existing and in good standing under the laws of the State of
Arkansas.
(e) Transfer of shares The transfer of 450 shares of Apex Common
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Stock from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to LLC on or about January 2, 1996 was not
made in contemplation of effecting the Merger.
4. Section 6.5(a)(iii) of the Merger Agreement is hereby amended in
its entirety as follows, and the following Section 6.5(a)(iv) and (v)
are hereby added to the Merger Agreement:
(iii) the Escrow Agreement, executed by LLC and C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇.:
(iv) a copy of the resolutions of LLC approving the Merger and other
transactions contemplated under this Agreement, certified
by an appropriate officer of LLC; and
(v) an opinion of counsel to LLC stating that (1) LLC is a limited
liability company duly organized, validly existing and in good
standing under the laws of the State of Arkansas and has full
power to own its properties, (2) all transfers of interests in
the LLC have been properly made and the names of all person with
ownership interest in the LLC with their respective ownership
interests set forth beside each name are set forth on a schedule
to the opinion and (3) the execution and delivery of the Merger
Agreement and all documents and agreements contemplated
thereunder and the consummation of the transactions contemplated
thereunder by LLC, has been duly authorized by all necessary
action and the Agreement has been duly executed and delivered and
constitutes the valid and binding agreement of LLC enforceable in
accordance with its terms.
5. The following hereby added to Section 8.2(b) of the Merger Agreement after
▇▇▇ ▇▇▇▇ "▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇":
▇▇▇▇▇▇▇▇▇ Family, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
6. The following sentences are hereby added to the end of Section 8.4 of the
Merger Agreement:
Pronouns referring to one gender shall be deemed to refer to any other
gender (including neutral) or genders where the context so requires. The
singular shall include the plural and vice versa, where the context so
requires.
7. All terms with initial capital letters in this Amendment shall have the
same meaning as set forth in the Merger Agreement unless otherwise defined
herein or unless the context requires otherwise.
8. Each of Apex, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. and LLC represent
and warrant that C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. and LLC are the sole beneficial
and record owners of Apex Common Stock and there are no other beneficial or
record owners of Apex Common Stock.
9. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ represents and warrants that he is a Manager and an
authorized officer of LLC and that he is duly authorized by LLC to take all
actions on behalf of LLC necessary to execute and deliver this Amendment
and to consummate the transactions contemplated under the Merger Agreement.
10. LLC agrees to be bound by the representations and warranties of
Shareholders set forth in the Merger Agreement and hereby confirms accuracy
of such representations and warranties, and Apex, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and C.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. hereby reconfirm their respective representations
and warranties set forth in the Merger Agreement.
11. LLC agrees to be bound by all of the terms and conditions applicable to a
Shareholder in the Merger Agreement as if LLC had originally executed and
delivered the Merger Agreement.
12. This Amendment 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.
13. Except as expressly amended by this Agreement, the Merger Agreement
continues in full force and effect.
14. This amendment shall be governed by, and construed in accordance with, the
laws of the State of Arkansas, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
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IN WITNESS WHEREOF, Fairfield, Merger Sub, Apex and LLC have caused
this Amendment to be signed by their respective officers thereunto duly
authorized and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. have signed
this Amendment, all as of the date first written above.
FAIRFIELD COMMUNITIES, INC.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Senior Vice President
FA, INC.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
President
APEX MARKETING, INC.
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
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C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
President
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
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C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇ FLAMILY, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President