Exhibit 2.4
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is entered into as of
__________ ___, 2000 by and among [NEWCO], a Delaware corporation (the
"COMPANY"), WPH-Xxxxxxx, LLC, a Delaware limited liability company ("LLC"),
Apollo Real Estate Investment Fund, L.P., a Delaware limited partnership
("APOLLO") , Blackacre WPH, LLC, a Delaware limited liability company
("BLACKACRE"), Highridge Pacific Housing Investors, L.P., a California limited
partnership ("HIGHRIDGE", and together with Apollo and Blackacre, the
"MEMBERS"), The Xxxxx and Xxxxxxxx Xxxxxxx Foundation, a Hawaii non-profit
corporation (the "FOUNDATION"), and Xxxxx X. Xxxxxxx, as sole trustee for the
Xxxxx X. Xxxxxxx Revocable Living Trust and the Xxxxx X. Xxxxxxx 1998 Qualified
Annuity Trust (collectively with the Foundation, "XXXXX XXXXXXX").
RECITALS
A. The Members, Xxxxxxx Homes, Inc., a Delaware corporation ("XXXXXXX"), and
certain other parties have entered into an Agreement and Plan of Reorganization,
dated as of September 12, 2000 (the "REORGANIZATION AGREEMENT"), which provides
for, among other things, the transfer to the Company of certain partnership and
membership interests by the Members, the merger of Xxxxxxx with a wholly-owned
subsidiary of the Company, and the issuance by the Company to (a) the LLC of
shares of the Company's Class B Common Stock, par value $0.001 per share (the
"CLASS B COMPANY SHARES"), and (b) the stockholders of Xxxxxxx, including Xxxxx
Xxxxxxx, of the Company's Class A Common Stock, par value $0.001 per share (the
"CLASS A COMPANY SHARES") (either Class A Company Shares or Class B Company
Shares may be referred to herein as "COMPANY SHARES").
B. Under the LLC's operating agreement (the "OPERATING AGREEMENT"), those
individuals listed on Schedule I hereto may receive Company shares from the LLC
upon the occurrence of certain events (these individuals referred to herein as
"MANAGEMENT HOLDERS"). Upon dissolution of the LLC, the Members and the
Management Holders will receive the Class B Company Shares held therein pursuant
to the terms of the Operating Agreement. Upon the occurrence of certain events
set forth in the Company's Certificate of Incorporation, the Class B Company
Shares held by the LLC, the Members or the Management Holders will convert to
Class A Company Shares.
C. As a condition to the closing of the transactions contemplated by the
Reorganization Agreement (the "REORGANIZATION"), the LLC, the Members and Xxxxx
Xxxxxxx desire to obtain and the Company has agreed to grant, upon the terms and
subject to the conditions set forth in this Agreement, certain registration
rights to the LLC, the Members and Xxxxx Xxxxxxx with respect to the Class A
Company Shares.
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AGREEMENT
The parties hereby agree as follows:
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS. For purposes of this Section 1:
(a) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC promulgated
thereunder.
(b) "HOLDER" means each of the LLC, Xxxxx Xxxxxxx and,
upon distribution of Company Shares by the LLC to a Member or Management
Holder, such Member or Management Holder, so long as such person is a holder
of outstanding Registrable Securities.
(c) "PERSON" means an individual, partnership, joint
venture, limited liability company, corporation, trust, unincorporated
organization or government or any department or agency thereof.
(d) "PROSPECTUS" means the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A), as amended
or supplemented by any prospectus supplement, with respect to the terms of
the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material
incorporated or deemed to be incorporated by reference in such prospectus.
(e) "REGISTRATION STATEMENT" means any registration
statement of the Company which covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated or
deemed to be incorporated by reference in such registration statement.
(f) "REGISTER," "REGISTERED," and "REGISTRATION" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act and the subsequent
declaration or ordering of the effectiveness of such registration statement
or document.
(g) "REGISTRABLE SECURITIES" means the Class A Company
Shares issued upon conversion of the Class B Company Shares or issued by the
Company for the purpose of satisfying an indemnification obligation of
Xxxxxxx pursuant to Section 9.6 of the Reorganization Agreement or, with
respect to Xxxxx Xxxxxxx, the Class A Company shares Xxxxx Xxxxxxx receives
upon the Reorganization.
(h) "SEC" means the United States Securities and Exchange
Commission or any successor agency thereto.
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(i) "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder.
1.2 DEMAND REGISTRATIONS
(a) DEMAND REGISTRATIONS. (i) At any time and from time
to time, a Holder or Holders (other than Management Holders) of at least
1,000,000 shares of the Registrable Securities shall have the right, by
written notice delivered to the Company by or on behalf of the Holders, to
require the Company to register (the "DEMAND REGISTRATIONS") under the
Securities Act 100% of the Registrable Securities held by such Holder or
Holders in accordance with this Section 1.2. All requests made pursuant to
this Section 1.2 shall specify the number of the Registrable Securities to be
registered and the intended methods of disposition thereof. Notwithstanding
anything to the contrary contained in this Agreement, a Demand Registration
may include a registration statement that contemplates a distribution of
securities on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act (a "SHELF REGISTRATION") if the Company is eligible to use
such a registration statement at the time of such request.
(ii) The number of Demand Registrations to be
exercised by the LLC or the Members pursuant to this Section 1.2 shall not
exceed five in the aggregate. The LLC shall only be entitled to exercise its
rights under Section 1.2 on behalf of the Members. As part of any written
request provided by the LLC pursuant to Section 1.2, the LLC shall state on
which Member's behalf it is making such request, and the Company shall be
entitled to fully rely on such statement. Notwithstanding anything to the
contrary contained in this Agreement, (A) Apollo shall not be entitled to
exercise its rights under Section 1.2, and the LLC shall not be entitled to
exercise its rights under Section 1.2 on behalf of Apollo, more than three
times taken collectively, (B) Blackacre shall not be entitled to exercise its
rights under Section 1.2, and the LLC shall not be entitled to exercise its
rights under Section 1.2 on behalf of Blackacre, more than one time taken
collectively, and (C) Highridge shall not be entitled to exercise its rights
under Section 1.2, and the LLC shall not be entitled to exercise its rights
under Section 1.2 on behalf of Highridge, more than one time taken
collectively.
(iii) Xxxxx Xxxxxxx shall be entitled to one Demand
Registration under Section 1.2.
(b) FILING AND EFFECTIVENESS. The Company shall use its
best efforts to file each of the Demand Registrations within 30 days (or 90
days if the Company is not subject to the reporting requirements of Section
13 of the Exchange Act) and shall use its best efforts to cause the same to
be declared effective by the SEC within 90 days (or 150 days if the Company
is not subject to the reporting requirements of Section 13 of the Exchange
Act) of the date on which the holders of Registrable Securities first give
the written notice (a "DEMAND NOTICE") required by Section 1.2(a) with
respect to such Demand Registration. If any Demand Registration is requested
to be a Shelf Registration, the Company shall keep the Registration Statement
filed in respect thereof effective for a period of nine months from the date
on which the SEC declares such Registration Statement effective or such
shorter period which will terminate when all registered Registrable
Securities covered by such Registration Statement have been sold pursuant to
such Registration Statement.
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(c) LIMITATION ON DEMAND REGISTRATIONS. Notwithstanding
anything to the contrary set forth in Section 1.2(a), but subject to Sections
1.6 and 2, the Company shall not be obligated to file a Registration
Statement with respect to a Demand Registration upon a request by a Holder
under Section 1.2(a): (1) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell less than one million shares of Registrable Securities;
(2) if the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that, in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such Demand Registration or any other
registration to be effected at such time, in which event the Company shall
have the right to defer the filing of the Registration Statement for a period
of not more than 90 days after receipt of the request of the Holder or
Holders under this Section 1.2; PROVIDED, HOWEVER, that the Company shall not
utilize this right more than once in any 12-month period; (3) if the Company
has, within the 12-month period preceding the date of such request, already
effected one Demand Registration for the Holders pursuant to this Section
1.2; (4) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance; or
(5) prior to nine months following the date of this Agreement.
(d) EFFECTIVE DEMAND REGISTRATION. A registration shall
not constitute a Demand Registration until the Registration Statement has
become effective and remains continuously effective for the lesser of (i) the
period during which all Registrable Securities registered in the Demand
Registration are sold and (ii) 90 days; provided, however, that a
registration shall not constitute a Demand Registration if (x) after such
Demand Registration has become effective, such registration or the related
offer, sale or distribution of Registrable Securities thereunder is
interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court for any reason not
attributable to the Holders requesting such registration and such
interference is not thereafter eliminated or (y) the conditions to closing
specified in the underwriting agreement, if any, entered into in connection
with such Demand Registration are not satisfied or waived, other than by
reason of an act, omission, circumstance or condition by or relating to the
Holders requesting such registration.
(e) UNDERWRITING PROCEDURES. If the Holders requesting
such registration so elect, the offering of Registrable Securities pursuant
to a Demand Registration shall be in the form of a firm commitment
underwritten offering and the managing underwriter or underwriters selected
for such offering shall be the Approved Underwriter (as hereinafter defined)
selected in accordance with Section 2(g). With respect to any firm commitment
underwritten offering, the Company shall enter into a reasonable and
customary underwriting agreement with the Approved Underwriter. If the
Approved Underwriter advises the Company and the Holders in writing that in
its opinion the aggregate amount of Class A Company Shares requested to be
included in such offering is sufficiently large to have a material adverse
effect on the success of such offering, then the Company shall include in
such registration only the aggregate amount of Class A Company Shares that in
the opinion of the Approved Underwriter may be sold without any such material
adverse effect and the Holders shall be allowed to include such amount of
Registrable Securities in the aggregate as the managing underwriter(s) deems
appropriate prior to any Class A Company Shares being included on behalf of
the Company or any other person, including other stockholders exercising
piggyback registration rights (pursuant to this Agreement or otherwise).
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(f) NO PIGGY-BACK ON DEMAND REGISTRATIONS WITHOUT
CONSENT. Neither the Company nor any of its stockholders (other than the
Holders) shall have the right to include any securities of the Company in any
Demand Registration, and the Company shall not enter into any agreements
providing any such right to any of its stockholders, without the written
consent of the Holders of a majority of the Registrable Securities.
(g) SELECTION OF UNDERWRITERS. The Holders requesting a
Demand Registration shall select and obtain one or more investment banking
firms of national reputation to act as the managing underwriters of the
offering (collectively, the "APPROVED UNDERWRITER"); PROVIDED, HOWEVER, that
the Approved Underwriter shall, in any case, be acceptable to the Company in
its reasonable judgment.
(h) HOLDER CUTBACK. (i) Subject to Section 1.2(h)(iii),
if in the case of any Demand Registration, the shares to be included by the
Holders in such registration are reduced by the Approved Underwriter by more
than forty percent (40%) of the amount of shares requested to be included by
the Holders requesting such registration pursuant to Section 1.2(a), such
registration shall not be deemed a Demand Registration.
(ii) Subject to Section 1.2(h)(iii), if in the
case of any Demand Registration, the shares to be included by the Holders in
such registration are reduced by the Approved Underwriter by an amount
between and including twenty percent (20%) and forty percent (40%) of the
amount of shares requested to be included by the Holders requesting such
registration pursuant to Section 1.2(a), such registration shall not be
deemed a Demand Registration if such Holders provide written notice to the
Company at least five days prior to the effectiveness of the related
Registration Statement that they have withdrawn their request for a Demand
Registration (in which such event the Company shall be under no obligation to
cause or maintain the effectiveness of such Registration Statement).
(iii) Notwithstanding anything to the contrary
contained in Section 1.2(h)(i) or Section 1.2(h)(ii), if 3,000,000 or more
shares of the Holders requesting such registration pursuant to Section 1.2(a)
are included in a registration after a reduction by the Approved Underwriter,
such registration shall be deemed a Demand Registration.
(iv) If in the case of any Demand Registration, the
shares to be included by the Holders in such registration are reduced by the
Approved Underwriter by less than twenty percent (20%) of the amount of
shares requested to be included by the Holders requesting such registration
pursuant to Section 1.2(a), such registration shall be deemed a Demand
Registration.
1.3 PIGGY-BACK REGISTRATION
(a) RIGHT TO PIGGY-BACK. If at any time the Company
proposes to file a registration statement under the Securities Act (including
pursuant to a Demand Registration) with respect to any class of its equity
securities (other than a registration statement on Form X-0, X-0 (exclusively
relating to an offering to securities required to be registered pursuant to
Rule 145 under the Securities Act) or S-8 or any successor form thereof),
whether for its own account or for the account of any stockholder, then the
Company shall give written notice of such proposed filing to the Holders
(other than those making any such Demand Registration) within ten days after
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receipt of a request for a Demand Registration or, in the event that such
registration statement is not pursuant to a Demand Registration, at least 30
days before the anticipated filing date. Such notice shall offer such Holders
the opportunity to register such amount of Registrable Securities as each
such Holder may request (a "PIGGY-BACK REGISTRATION"). The Company shall
include in each such Piggy-Back Registration all Registrable Securities with
respect to which the Company has received written requests for inclusion
therein within 15 days after notice has been duly given to the applicable
Holder. The Holders shall be permitted to withdraw all or any part of the
Registrable Securities from a Piggy-Back Registration at any time prior to
the effective date of such Piggy-Back Registration.
(b) PRIORITY ON PIGGY-BACK REGISTRATIONS. If the proposed
registration relates to an underwritten offering and the managing underwriter
determines that inclusion of all or any portion of the Registrable Securities
in such offering would adversely affect the ability of the underwriter for
such offering to sell all of the securities requested to be included for sale
or the price per share in such offering, the Company and all Holders
participating in such registration shall be allowed to include such amount of
Class A Company Shares as the managing underwriter(s) deems appropriate prior
to any Class A Company Shares being included on behalf of any other person;
PROVIDED, HOWEVER, that (i) if the proposed registration is not a Demand
Registration, then prior to any reduction of the amount of Class A Company
Shares intended to be registered by the Company, the aggregate amount of
Class A Company Shares intended to be included in the offering by all Holders
participating in the registration and any other stockholder exercising
registration rights (including those granted pursuant to Section 1.2(f))
shall be reduced in its entirety (which Class A Company Shares shall be cut
back on a pro rata basis in accordance with the number of shares proposed to
be registered by the Holders participating in the registration and any other
stockholder exercising registration rights (including those granted pursuant
to Section 1.2(f) hereof)) and (ii) if the proposed registration is a Demand
Registration, then prior to any reduction of the amount of Class A Company
Shares intended to be registered by the Holders requesting such registration
pursuant to Section 1.2(a), the aggregate amount of Class A Company Shares
intended to be included in the offering by the Company and any other
stockholder exercising registration rights (including those granted pursuant
to Section 1.2(f) and Section 1.3) shall be reduced in its entirety (which
Class A Company Shares shall be cut back on a pro rata basis in accordance
with the number of shares proposed to be registered by the Company and any
other stockholder exercising registration rights (including those granted
pursuant to Section 1.2(f) and Section 1.3 hereof)).
1.4 HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE
SECURITIES. Each Holder whose Registrable Securities are covered by a
Registration Statement filed pursuant to Section 1.2 hereof agrees (to the
extent timely notified in writing by the Company or the managing
underwriter(s)) not to effect any public sale or distribution of securities
of the Company of any class included in such Registration Statement,
including a sale pursuant to Rule 144 under the Securities Act (except as
part of such underwritten registration), during the 10-day period prior to,
and the 90-day period (or such longer period not exceeding 180 days as may be
required by the managing underwriter(s)) beginning on, the closing date of
any underwritten offering made pursuant to such Registration Statement. The
foregoing shall not apply to any Holder if such Holder is prevented by
applicable statute or regulation from entering into any such agreement;
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PROVIDED, HOWEVER, that any such Holder shall undertake in its request to
participate in such underwritten offering not to effect any public sale or
distribution of the class of Registrable Securities covered by such
Registration Statement (except as part of such underwritten registration)
during such period unless it has provided 45 days' prior written notice of
such sale or distribution to the managing underwriter(s).
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND
OTHERS. The Company agrees (i) not to effect any public or private sale or
distribution of its securities, including a sale pursuant to Regulation D
under the Securities Act, during the 10-day period prior to, and the 180-day
period beginning on, the effective date of any underwritten offering made
pursuant to such Registration Statement (except as part of such underwritten
registration or pursuant to registrations on Forms X-0, X-0 (which
exclusively relate to an offering of securities required to be registered
pursuant to Rule 145 under the Securities Act) or S-8 or any successor forms
thereto), and (ii) to cause each holder of its securities purchased from the
Company at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period, including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
underwritten registration, if otherwise permitted, or pursuant to
registration on such Forms X-0, X-0 or S-8 or any successor forms thereto).
1.5 REGISTRATION PROCEDURES. In connection with the
registration obligations of the Company pursuant to and in accordance with
Section 1.2 of this Agreement, the Company shall effect such registrations to
permit the sale of such Registrable Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
(a) notify the selling Holders and the managing
underwriters, if any, promptly, and (if requested by any such Person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment related to such Registrable Securities has been
filed, and, with respect to a Registration Statement or any post-effective
amendment related to such Registrable Securities, when the same has become
effective, (ii) of any request by the SEC for amendments or supplements to
such Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC of any stop order suspending
the effectiveness of such Registration Statement or the initiation of any
proceedings for that purpose, (iv) if at any time the representations and
warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated by Section 1.5(k) below cease to be
materially true and correct, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the happening of any event which makes any statement made in
such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference materially
untrue or which requires the making of any changes in such Registration
Statement or Prospectus so that such documents will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (vii) of
the reasonable determination of the Company that a post-effective amendment
to such Registration Statement would be appropriate;
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(b) use every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable time;
(c) if requested by the managing underwriters or any
Holder of Registrable Securities being sold in connection with an
underwritten offering, (i) immediately incorporate in a Prospectus supplement
or post-effective amendment such information as the managing underwriters and
such holder agree should be included therein and as may be required by
applicable law, (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such Prospectus supplement
or such post-effective amendment and (iii) supplement or make amendments to
such Registration Statement; PROVIDED, HOWEVER, that the Company shall not be
required to take any of the actions in this Section 1.5(c) which are not, in
the opinion of counsel for the Company, in compliance with applicable law;
(d) furnish to each selling Holder and each managing
underwriter, if any, without charge, at least one signed copy of each
Registration Statement related to such Registrable Securities and any
post-effective amendments thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including, if requested, those previously furnished or incorporated by
reference) at the earliest practicable time under the circumstances before
the filing of such documents with the SEC;
(e) deliver to all selling Holders and the underwriters,
if any, without charge, as many copies of the Prospectus or Prospectuses
related to such Registrable Securities (including each preliminary
prospectus) and as many copies of any amendment or supplement thereto as such
Persons may reasonably request; the Company consents to the use of such
Prospectus or any amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto;
(f) prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the selling Holders, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as any seller or
underwriter reasonably requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; PROVIDED, HOWEVER, that the Company will not be
required to (A) qualify generally to do business in any jurisdiction where it
is not then so qualified, (B) take any action which would subject it to
general service of process in any such jurisdiction where it is not then so
subject, or (C) take any action which would subject it to the assessment of
taxes in any such jurisdiction where it is not then so subject;
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(g) cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends;
(h) cause the Registrable Securities covered by each
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be reasonably necessary to enable
the seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(i) upon the occurrence of any event contemplated by
Sections 1.5(a)(vi) or (vii) above, prepare a supplement or post-effective
amendment to each Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading;
(j) cause all Registrable Securities covered by such a
Registration Statement to be listed on The Nasdaq Stock Market or any
securities exchange on which similar securities issued by the Company are
then listed;
(k) enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings) and take all such other reasonable actions in connection therewith
(including those reasonably requested by the managing underwriters, if any,
or the holders of a majority of the Registrable Securities being sold) in
order to expedite or facilitate the disposition of such Registrable
Securities and in such connection (i) make such representations and
warranties to the holders of such Registrable Securities and the
underwriters, if any, with respect to the business of the Company and its
Subsidiaries, the Registration Statement, the Prospectus, and documents, if
any incorporated or deemed to be incorporated by reference in the
Registration Statement, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested; (ii) obtain opinions of counsel to
the Company and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the managing underwriters,
if any, and the holders of a majority of the Registrable Securities being
sold) addressed to each selling holder and each of the underwriters, if any,
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested
by such holders and underwriters, (iii) obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of the
Company (and, if necessary, any other certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data is or is required to be
included in the Registration Statement) addressed to each selling holder of
Registrable Securities and each of the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 2 hereof (or such other provisions and procedures acceptable
to a majority of the holders of Registrable Securities covered by such
Registration Statement) with respect to all parties to be indemnified
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pursuant to said Section; and (v) deliver such documents and certificates as
may be required by an applicable underwriting agreement or reasonably
requested by the Holders of a majority of the Registrable Securities being
sold and the managing underwriters to evidence the continued validity of the
representations and warranties of the Company made pursuant to
Section 1.5(k)(i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company;
(l) make available for inspection by a representative of
the Holders of Registrable Securities being sold, any underwriter
participating in any disposition of Registrable Securities, and any attorney
or accountant retained by such selling Holders or underwriter, all relevant
financial and other records, pertinent corporate documents and properties of
the Company; and cause the officers, directors and employees of the Company
and its subsidiaries to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with
such Registration Statement; PROVIDED, HOWEVER, that any records, information
or documents that are designated by the Company in writing as confidential at
the time of delivery of such records, information or documents shall be kept
confidential by such Persons and their designees unless (i) such records,
information or documents are in the public domain or otherwise publicly
available, (ii) disclosure of such records, information or documents is
required by court or administrative order or (iii) disclosure of such
records, information or documents, in the opinion of counsel to such Person,
is otherwise required by law (including, without limitation, pursuant to the
requirements of the Securities Act); and
(m) comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if Registrable Securities are not sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
Each Holder agrees by acquisition of such Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 1.5(a)(ii), (iii), (v), (vi) or (vii) hereof, such
Holder shall forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated
by Section 1.5(i) hereof, or until it is advised in writing by the Company
that the use of the applicable Prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated or
deemed to be incorporated by reference in such Prospectus.
1.6 REGISTRATION EXPENSES
(a) All reasonable fees and expenses incident to the
Company's performance of or compliance with this Agreement (including (i) all
registration and filing fees, including fees and expenses (A) with respect to
filings required to be made with the National Association of Securities
Dealers, Inc., and (B) of compliance with securities or Blue Sky laws
(including fees and
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disbursements of counsel for the underwriters or selling holders (SUBJECT TO
THE PROVISIONS OF Section 1.6(b)) in connection with Blue Sky qualifications
of the Registrable Securities and determination of the eligibility of the
Registrable Securities for investment under the laws of such jurisdictions as
the managing underwriters or holders of a majority in number of the
Registrable Securities being sold may designate); (ii) printing expenses;
(iii) messenger, telephone and delivery expenses; (iv) fees and disbursements
of counsel for the Company, and special counsel or other counsel for the
sellers of the Registrable Securities (subject to the provisions of Section
1.6(b)); (v) fees and disbursements of all independent certified public
accountants referenced to in Section 1.5(k)(iii) hereof (including the
expenses of any special audit and "cold comfort" letters required by or
incident to such performance); (vi) underwriter's fees and expenses
(excluding discounts, commissions or fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals relating to the
distribution of the Registrable Securities or legal expenses of any Person
other than the Company, the underwriters and the selling holders (subject to
the provisions of Section 1.6(b)); but including the fees and expenses of any
"qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Schedule E to the
Bylaws of the National Association of Securities Dealers, Inc.); (vii)
Securities Act liability insurance if the Company so desires such insurance
and; (viii) fees and expenses of all other Persons retained by the Company)
shall be borne by the Company whether or not any Registration Statement
becomes effective. Notwithstanding the foregoing, the Company will not be
required to reimburse the holders of Registrable Securities for their
out-of-pocket expenses arising out of a Demand Registration if the
Registration Statement for such Demand Registration fails to become effective
at the request of the holders of a majority of Registrable Securities
participating in such Demand Registration.
(b) In connection with each Piggy-Back Registration
hereunder, the Company shall reimburse the Holders of the Registrable
Securities being registered in such registration for the reasonable fees and
disbursements of not more than one counsel (or more than one counsel if a
conflict exists among such selling holders in the exercise of the reasonable
judgment of counsel for the selling holders and counsel for the Company)
chosen by the Holders of a majority of such Registrable Securities.
1.7 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
Holder's Registrable Securities. The Company shall have no obligation with
respect to any registration requested pursuant to Section 1.2 of this
Agreement if, as a result of the application of the preceding sentence, the
number of shares of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares required to
originally trigger the Company's obligation to initiate such registration as
specified in Section 1.2(a)(i).
2. INDEMNIFICATION.
In the event any Registrable Securities are included in a registration
statement under Section 1:
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2.1 INDEMNIFICATION BY THE COMPANY. To the extent permitted by
law, the Company will indemnify and hold harmless each Holder and each
Person, if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act, against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject, under the Securities
Act, the Exchange Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of
or are based upon any of the following statements, omissions or violations
(collectively a "VIOLATION"): (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein, or necessary
to make the statements therein not misleading, or (iii) any violation or
alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law; and the Company
will pay, as incurred, any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability, or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this subsection 2.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company, which consent
shall not be unreasonably withheld, nor shall the Company be liable in any
such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any Holder or controlling
person.
2.2 INDEMNIFICATION BY THE HOLDERS. To the extent permitted by
law, each selling Holder will indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act, any other Holder selling
securities in such registration statement and any controlling person of any
such other Holder, against any losses, claims, damages, or liabilities (joint
or several) to which any of the foregoing persons may become subject, under
the Securities Act, the Exchange Act or other federal or state law, insofar
as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay,
as incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this Section 2.2, in connection with
investigating or defending any such loss, claim, damage, liability, or
action; PROVIDED, HOWEVER, that the indemnity agreement contained in this
Section 2.2 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld;
PROVIDED that in no event shall any indemnity under this subsection 2.2
exceed the gross proceeds from the offering received by such Holder.
2.3 INDEMNIFICATION PROCEDURES.
(a) Promptly after receipt by an indemnified party under
this Section 2 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 2,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying
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party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
shall have the right to retain its own counsel, with the fees and expenses to
be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 2, but the omission so to deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 2.
(b) If the indemnification provided in this Section 2 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim, damage
or expense in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and of the indemnified party on the
other in connection with the statements or omissions that resulted in such
loss, liability, claim, damage or expense as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(c) The obligations of the Company and Holders under this
Section 2 shall survive the completion of any offering of Registrable
Securities in a registration statement under Section 1, and otherwise.
3. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any
time permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably
requested in availing
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any Holder of any rule or regulation of the SEC which permits the selling of
any such securities without registration.
4. TERMINATION OF REGISTRATION RIGHTS. The rights granted under Section
1 shall terminate upon the earlier of (a) five years following the date of
this Agreement or (b) with respect to any Holder, at such time as such Holder
may sell all of such Holder's Registrable Securities in any one three month
period pursuant to Rule 144 (or such successor rule as may be adopted).
5. MISCELLANEOUS.
5.1 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered or mailed if delivered personally or
by recognized overnight delivery service or mailed by registered or certified
mail (postage prepaid, return receipt requested), or sent by facsimile
transmission (confirmation received) to the parties at the following
addresses and facsimile transmission numbers (or at such other address or
number for a party as shall be specified by like notice), except that notices
after the giving of which there is a designated period within which to
perform an act and notices of changes of address or number shall be effective
only upon receipt:
(a) if to the Company:
Xxxxxxx Homes, Inc.
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
(b) if to the LLC or the Members:
Xxxxxx Xxxxxxxxx
c/o Western Pacific Housing
000 Xxxxxxxxxxx Xxxx., Xxxxx 000
Xx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
X-00
XXX
Xxxx Xxxxxxxxxxxxx
Xxxxxx Xxxx Xxxxxx Advisors
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
AND
Xxxxxx X. Xxxxxx
Blackacre WPH, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxx & Bockius LLP
000 X. Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
AND
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx, Xxxx & Xxxxx LLP
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
(c) if to Xxxxx Xxxxxxx:
Xxxxx X. Xxxxxxx
Xxxxxxx Homes, Inc.
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
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with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
5.2 INTERPRETATION. Capitalized terms used herein which are not
defined herein shall the meanings assigned to them in the Reorganization
Agreement. When a reference is made in this Agreement to Sections,
subsections or Exhibits, such reference shall be to a Section, subsection or
Exhibit to this Agreement unless otherwise indicated. The words "include,"
"includes" and "including" when used herein shall be deemed in each case to
be followed by the words "without limitation." The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. The words "herein" and "hereby"
and similar references mean, except where a specific Section reference is
expressly indicated, the entire Agreement rather than any specific Section.
Except as otherwise expressly provided herein, all monetary amounts
referenced in this Agreement shall mean U.S. dollars. All capitalized terms
defined herein are equally applicable to both the singular and plural forms
of such terms.
5.3 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are
fulfilled to the greatest extent possible.
5.4 SUCCESSORS AND ASSIGNS. This Agreement may not be assigned
by operation of law or otherwise; PROVIDED, HOWEVER, that LLC and the Members
may assign their rights and obligations under this Agreement (without the
need for an express assignment) to the Management Holders in connection with
the assignment to the Management Holders of the Registrable Securities;
PROVIDED FURTHER, that each of Apollo and Blackacre may assign its rights and
obligations under this Agreement to a Person or Persons who agree in writing
to be bound by all the terms and provisions of this Agreement.
5.5 AMENDMENTS. This Agreement may not be amended or modified
except by an instrument in writing signed by all of the parties hereto.
5.6 FURTHER ASSURANCES. Each party agrees to cooperate fully
with the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
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5.7 MUTUAL DRAFTING. This Agreement is the joint product of the
parties hereto and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties hereto and shall not
be construed for or against any party hereto.
5.8 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Delaware
applicable to agreements made and to be performed entirely within such State
(without giving effect to such State's choice of law principles).
5.9 DISPUTE RESOLUTION. Any dispute, controversy or claim
between the parties relating to, arising out of or in connection with this
Agreement (or any subsequent agreements or amendments thereto), including as
to its existence, enforceability, validity, interpretation, performance or
breach or as to indemnification or damages, including claims in tort, whether
arising before or after the termination of this Agreement (any such dispute,
controversy or claim being herein referred to as a "Dispute"), shall be
settled without litigation and only by use of the alternative dispute
resolution procedure set forth in Section 12.13 of the Reorganization
Agreement. Subsections (a) through (d) of Section 12.13 of the Reorganization
Agreement are hereby incorporated herein; except that the Company, the LLC
and Xxxxx Xxxxxxx shall be deemed a party thereunder.
5.10 CONSENT TO JURISDICTION; WAIVERS. Each of the parties
hereto irrevocably submits to the exclusive jurisdiction of (a) the Delaware
Chancery Court, and (b) the United States District Court for Delaware, for
the purposes of confirming, modifying or vacating any alternative dispute
resolution award provided in accordance with Section 2.10 (an "Award
Action"). Each of the parties hereto agrees to commence any Award Action
relating hereto either in the United States District Court for Delaware or if
such Award Action may not be brought in such court for jurisdictional
reasons, in the Delaware Chancery Court. Each of the parties hereto further
agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth in Section 2.2
shall be effective service of process for any Award Action in Delaware with
respect to any matters to which it has submitted to jurisdiction in this
Section 2.10. Each of the parties hereto irrevocably and unconditionally
waives any objection to the laying of venue of any Award Action arising out
of this Agreement in (i) the Delaware Chancery Court, or (ii) the United
States District Court for Delaware, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such Award Action brought in any such court has been brought in an
inconvenient forum.
5.11 WAIVER OF JURY TRIAL. Each of the parties hereto
irrevocably and unconditionally waives trial by jury in any Award Action
relating to this Agreement or any transaction contemplated hereby or thereby,
and for any counterclaim with respect thereto.
5.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
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5.13 ENTIRE AGREEMENT. This Agreement, together with all
Exhibits hereto, constitute the entire agreement and supersede all prior
agreements and undertakings, both written and oral, among the parties hereto
with respect to the subject matter hereof.
5.14 NO INCONSISTENT AGREEMENTS; UNDERWRITING AGREEMENT. The
Company shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof; PROVIDED, HOWEVER, that to the extent the Company and
the Holders in a proposed registration shall enter into an underwriting or
similar agreement, which agreement contains provisions covering one or more
issues addressed in this Agreement, the provisions contained in this
Agreement addressing such issue or issues shall be superseded with respect to
such registration by such other agreement. The Company has not entered into
any agreement with respect to its securities granting any registration rights
to any person other than this Agreement.
[Signature Page Follows]
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The parties have executed this Agreement as of the date first above written.
[NEWCO]
By: _________________________________
Name:
Title:
WPH-XXXXXXX, LLC,
a Delaware limited liability company
By: _________________________________
Name:
Title:
APOLLO REAL ESTATE INVESTMENT FUND, L.P.,
a Delaware limited partnership
By: APOLLO REAL ESTATE ADVISORS, L.P.,
a Delaware limited partnership,
Its General Partner
By: APOLLO REAL ESTATE MANAGEMENT, INC.,
a Delaware corporation,
Its General Partner
By: _________________________________
Xxxxxxx X. Xxxxxx
Its Vice President
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BLACKACRE WPH, LLC,
a Delaware limited liability company
By: BLACKACRE CAPITAL GROUP, L.P.,
a Delaware limited partnership,
Its Managing Member
By: BLACKACRE CAPITAL MANAGEMENT CORP.,
a Connecticut corporation,
Its General Partner
By: _________________________________
Xxxxxx X. Xxxxxx
Its Vice President
HIGHRIDGE PACIFIC HOUSING INVESTORS,
L.P., a California limited partnership
By: WPH ACQUISITIONS, INC.,
a California corporation,
Its General Partner
By: _______________________________
Xxxxxx X. Xxxxxxxxx
Its CFO and Secretary
THE XXXXX AND XXXXXXXX XXXXXXX
FOUNDATION, a Hawaii non-profit corporation
By: _________________________________
Xxxxx X. Xxxxxxx
Its Chairman
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XXXXX X. XXXXXXX, as sole trustee for the Xxxxx
X. Xxxxxxx Revocable Living Trust and the Xxxxx X.
Xxxxxxx 1998 Qualified Annuity Trust
_________________________________________________
Xxxxx X. Xxxxxxx
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SCHEDULE I
[INTENTIONALLY OMITTED]
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