EXHIBIT 99.2
STOCK VOTING AGREEMENT
THIS STOCK VOTING AGREEMENT, dated as of August 4, 2003 (this
"Agreement"), by and among ▇▇▇▇▇▇▇ Entertainment Company, a Delaware corporation
("Parent"), and the persons listed on Schedule I hereto (each, a "Stockholder"
and, collectively, the "Stockholders").
WHEREAS, ResortQuest International, Inc., a Delaware corporation (the
"Company"), and Parent 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 Parent with and into
the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholders are holders of record
or Beneficially Own (as defined herein) shares of the Company Common Stock; and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that each Stockholder agree, and in order
to induce Parent to enter into the Merger Agreement, each Stockholder has
agreed, to enter into this Agreement with respect to all of the shares of
Company Common Stock now held of record or Beneficially Owned and which may
hereafter be acquired by such Stockholder (collectively, the "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 Company 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 the Company,
however called, and in any action by consent of the
stockholders of the Company, each of the Stockholders shall vote (or cause to be
voted) all of the Shares which such Stockholder has the right 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 the Company under
the Merger Agreement; and
(c) except for all such actions which the Company may
undertake under the Merger Agreement, against (i) any extraordinary
corporate transaction, such as a merger, rights offering,
reorganization, recapitalization or liquidation involving the Company
or any of its subsidiaries, (ii) a sale or transfer (other than to a
subsidiary of the Company) of assets of the Company or any of its
subsidiaries comprising all or a substantial portion of the assets of
the Company or any of its subsidiaries, or a sale or transfer of any
right to all or a substantial portion of the revenues or income of the
Company or any of its subsidiaries, by way of a negotiated purchase,
lease, license, exchange, joint venture or other means, (iii) any
change in a majority of the Board of Directors of the Company other
than in connection with an annual meeting of the stockholders of the
Company with respect to the slate of directors proposed by the
incumbent Board of Directors of the Company, or (iv) 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 Parent, or any nominee of Parent, 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 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
form any "group" for purposes of the Exchange Act or the rules promulgated
thereunder. Except on the terms and conditions set forth in Section 5.1 of the
Merger Agreement, no Stockholder shall (a) solicit, initiate, encourage
(including by way of furnishing information or assistance) or take any other
action to facilitate, any inquiry or the making of any proposal which
constitutes, or may reasonably be expected to lead to, any Acquisition Proposal
or agree to or endorse any Acquisition Proposal, (b) propose, enter into or
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participate in any discussions or negotiations regarding any of the foregoing,
(c) furnish to any other person any information with respect to the Company's
business, properties or assets or (d) otherwise cooperate in any way with, or
assist or participate in, facilitate or encourage, any effort or attempt by any
other person to do or seek any of the foregoing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders hereby represents and warrants, severally and
not jointly, to Parent as follows:
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 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 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.
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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 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 the shares of
the Company Common Stock either held of record or 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 and 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, 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 the right to vote any additional shares of Company Common
Stock, including, without limitation, upon exercise of any option, warrant or
right to acquire shares of Company 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.
SECTION 4.3 STOCKHOLDER CAPACITY. No Stockholder makes any
agreement or understanding herein in the Stockholder's capacity as a director or
officer of the Company. Each Stockholder executes this Agreement solely in its
capacity as a Beneficial Owner of the Shares 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 the Company.
SECTION 4.4 FURTHER ASSURANCES. From time to time, at Parent'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
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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.
SECTION 4.7 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between Parent and the Stockholders with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Parent 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
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following addresses or the addresses set forth on Schedule I hereto:
If to Parent: ▇▇▇▇▇▇▇ Entertainment Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: F. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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 Parent have caused
this Agreement to be duly executed as of the date first written above.
▇▇▇▇▇▇▇ ENTERTAINMENT COMPANY
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
STOCKHOLDERS
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/S/ Elan ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
ELAN ▇. ▇▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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SCHEDULE I
STOCKHOLDERS
NAME AND ADDRESS OF STOCKHOLDER* NUMBER OF SHARES
--------------------------------- ----------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 40,000
▇▇▇▇▇ ▇. ▇▇▇▇ 35,214
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 140,091
Elan ▇. ▇▇▇▇▇▇▇▇▇ 608,538
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 0
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 267,435
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 41,000
* The Business Address for each of the directors is: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
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