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EXHIBIT 2.3
FAIRFIELD COMMUNITIES, INC.
8669 Commodity Circle, Suite 200
Orlando, Florida 32819
November 1, 2000
The First National Bank of Boston
P.O. Box 1865
Boston, Massachusetts 02105
Attention: Vice President, Shareholder
Services Division
Re: Amendment No.2 to Rights Agreement
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Ladies and Gentlemen:
Pursuant to Section 26 of the Rights Agreement, dated as of September
1, 1992, as amended (the "Rights Agreement"), between Fairfield Communities,
Inc. (the "Company") and The First National Bank of Boston (as successor to
Society National Bank), as rights agent, the Company, by resolution adopted by
its Board of Directors, hereby amends, and directs the Rights Agent to amend,
the Rights Agreement as follows:
1. Section 1(s) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"(s) "Expiration Date" shall mean the earliest of (i) the Close of
Business on the Final Expiration Date, (ii) the time at which the
Rights are redeemed as provided in Section 23, and (iii) immediately
prior to the Effective Time (as defined in the Merger Agreement)."
2. Section 1 of the Rights Agreement is hereby amended by adding the
following new Section 1(v) thereto (and current Sections 1(v) through 1(nn),
inclusive, of the Rights Agreement are hereby renumbered as Sections 1(w)
through 1(oo), inclusive):
"(v) "Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of November 1, 2000, among Cendant Corporation, a Delaware
corporation ("Acquiror"), Grand Slam Acquisition Corp., a Delaware
corporation ("Merger Co."), and the Company."
3. Section 1 of the Rights Agreement is hereby amended by adding the
following new paragraph at the end of that Section:
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"Notwithstanding anything in this Agreement to the contrary, none
of Acquiror, Merger Co., any of their Affiliates or Associates or any
of their permitted assignees or transferees shall be deemed an
Acquiring Person, a Beneficial Owner of shares of Common Stock or an
Affiliate of either an Acquiring Person or such a Beneficial Owner,
and none of a Distribution Date, a Stock Acquisition Date, or a
Triggering Event shall be deemed to occur or to have occurred, and the
Rights will not become separable, distributable, unredeemable or
exercisable, in each such case, by reason or as a result of the
approval, execution or delivery of the Merger Agreement, the Voting
Agreement (as defined in the Merger Agreement) or the Stock Option
Agreement (as defined in the Merger Agreement), the consummation of
the Merger (as defined in the Merger Agreement) or the consummation of
the other transactions contemplated by the Merger Agreement, the
Voting Agreement or the Stock Option Agreement in accordance with the
terms thereof."
4. Section 7(a) of the Rights Agreement is hereby amended in its
entirety as follows:
"(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except
as otherwise provided therein including, without limitation, the
restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23(a) hereof) in whole or in part at any time
after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase set forth on the reverse side
thereof and the certificate contained therein duly executed, to the
Rights Agent at the office of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price with
respect to the total number of Units (or other shares, securities,
cash or other assets, as the case may be) as to which such surrendered
Rights are then exercisable, at or prior to the Expiration Date."
5. The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment No. 2 to the Rights Agreement, but shall
remain in full force and effect.
6. Capitalized terms used without other definition in this Amendment
No. 2 to the Rights Agreement shall be used as defined in the Rights Agreement.
7. This Amendment No. 2 to the Rights Agreement shall be deemed to
be a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such State.
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8. This Amendment No. 2 to the Rights Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
9. This Amendment No. 2 to the Rights Agreement is effective as of,
and immediately prior to, the execution and delivery of the Merger Agreement,
and all references to the Rights Agreement shall, as of and after such time, be
deemed to be references to the Rights Agreement as amended hereby.
Notwithstanding anything in this Agreement to the contrary, (a) from and after
the effectiveness of this Amendment No. 2 to the Rights Agreement until the
earliest of (i) the Effective Time (as defined in the Merger Agreement) and (ii)
the termination of the Merger Agreement, the Rights Agreement may not be amended
or supplemented, and the Rights may not be redeemed, without the prior written
consent of Acquiror, and (b) upon the termination of the Merger Agreement, this
Amendment No. 2 to the Rights Agreement shall be deemed rescinded, void and of
no force or effect and the Rights Agreement shall be deemed amended to read in
its entirety as the Rights Agreement was in effect immediately prior to the
effectiveness of this Amendment No. 2 to the Rights Agreement.
10. Exhibit B to the Rights Agreement shall be deemed amended in a
manner consistent with this Amendment No. 2 to the Rights Agreement.
Very truly yours,
FAIRFIELD COMMUNITIES, INC.
By: /s/ James G. Berk
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Name: James G. Berk
Title: President and Chief Executive Officer
Accepted and agreed to as of
the effective time specified
above:
THE FIRST NATIONAL
BANK OF BOSTON, A/K/A BANK BOSTON, N.A.
AND BY SUCCESSION
FLEET NATIONAL BANK
By: /s/ Margaret M. Prentice
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Name: Margaret M. Prentice
Title: Managing Director
