EXHIBIT 10.3
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of October 22, 2001 (this
"Agreement"), among X.X. XXXXXX, INC., a Delaware corporation ("DHI") and the
record and beneficial stockholders of XXXXXXX HOMES, INC., a Delaware
corporation (the "Company"), whose names appear on Schedule I (collectively, the
"Stockholders").
WITNESSETH:
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, DHI and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which provides for
the merger (the "Merger") of the Company with and into DHI and the conversion of
all the outstanding shares of Class A Common Stock and Class B Common Stock,
each with a par value of $.001 per share, of the Company (collectively, the
"Shares") into cash and shares of common stock, par value $.01 per share, of
DHI;
WHEREAS, as of the date hereof, each Stockholder owns
(beneficially or of record) no less than the number of Shares set forth opposite
such Stockholder's name on Schedule I (all such Shares and any Shares which may
hereafter be acquired by such Stockholder prior to the termination of this
Agreement, whether upon the exercise of options or by means of purchase,
dividend, distribution or otherwise, (but not any other Shares owned by such
Stockholder on the date hereof but not set forth opposite such Stockholder's
name on Schedule I) being referred to herein as such Stockholder's "Subject
Shares");
WHEREAS, the parties to the Stockholders Agreement, dated as
of April 3, 2001, by and among the Company, the Stockholders and the other
parties thereto, have consented to this Agreement and waived the provisions of
such stockholders agreement to the extent inconsistent with the provisions of
this Agreement;
WHEREAS, this Agreement has been approved by the Board of
Directors of the Company and such approval is sufficient to render inapplicable
to the transactions contemplated hereby the provisions of Section 203 of the
Delaware Law;
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, DHI has required that the Stockholders enter into this Voting
Agreement; and
WHEREAS, in order to induce DHI to enter into the Merger
Agreement, the Stockholders are willing to enter into this Voting Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, DHI and each of the Stockholders, severally and not jointly,
hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES;
AND OTHER COVENANTS OF THE STOCKHOLDERS
SECTION 1.1. Voting of Shares. During the Term (as defined
below), at any meeting of the stockholders of the Company, however called, and
in any action by consent of the stockholders of the Company, each Stockholder
(a) shall appear at such meeting of the stockholders or otherwise cause the
Subject Shares such Stockholder owns beneficially or of record on the record
date of any such meeting or solicitation of consents to be counted as present
thereat for purposes of establishing a quorum and (b) shall vote its Subject
Shares (i) in favor of the Merger and the Merger Agreement (as amended from time
to time), (ii) against any proposal for a Third Party Acquisition and against
(A) any proposal for action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or which is reasonably likely to result in
any of the conditions of the Company's obligations under the Merger Agreement
not being fulfilled, (B) any material change in the present capitalization of
the Company, (C) any other material change in the Company's corporate structure
or business or (D) any other action which could reasonably be expected to
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by the Merger Agreement or the likelihood of such
transactions being consummated and (iii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement which
is considered at any such meeting of stockholders or the subject of any such
consent and in connection therewith to execute any documents which are necessary
or appropriate in order to effectuate the foregoing, including the ability for
DHI or its nominees to vote such Subject Shares directly.
SECTION 1.2. No Inconsistent Arrangements. During the Term,
except as contemplated by this Agreement and the Merger Agreement, no
Stockholder shall (i) transfer (which term shall include any sale, assignment,
gift, pledge, hypothecation or other disposition, whether directly or indirectly
by contribution, distribution, dissolution or otherwise), or consent to any
transfer of, any or all of such Stockholder's Subject Shares or any interest
therein, or create or, except as set forth on Schedule 1.2, permit to exist any
Encumbrance (as defined below) on such Subject Shares, (ii) enter into any
contract, option or other agreement or understanding with respect to any
transfer of any or all of such Subject Shares or any interest therein, (iii)
grant any proxy, power-of-attorney or other authorization in or with respect to
such Subject Shares, (iv) deposit such Subject Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Subject Shares
or (v) take any other action that would in any way restrict, limit or interfere
with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement. Notwithstanding the foregoing,
Xxxxx X. Xxxxxxx shall be permitted to transfer Subject Shares to his Affiliates
that are Stockholders and also parties to this Agreement. For purposes of this
Agreement, a transfer of membership interests in WPH-Xxxxxxx, LLC shall be
deemed not to be an indirect transfer of the Stockholder's Subject Shares so
long as such transferee acknowledges and consents to all of the provisions of
this Agreement.
SECTION 1.3. Proxy. In order to secure such Stockholder's
agreement to vote in accordance with Section 1.1, each Stockholder hereby
revokes any and all prior proxies or
powers of attorney in respect of any of such Stockholder's Subject Shares and
constitutes and appoints DHI, or any nominee of DHI, with full power of
substitution and resubstitution, at any time during the Term, as its true and
lawful attorney and proxy (its "Proxy"), for and in its name, place and stead,
to demand that the Secretary of the Company call a special meeting of the
stockholders of the Company for the purpose of considering any matter referred
to in Section 1.1 (if permitted under the Company's certificate of incorporation
or bylaws) and to vote each of such Subject Shares as its Proxy, at every
annual, special, adjourned or postponed meeting of the stockholders of the
Company, including the right to sign its name (as stockholder) to any consent,
certificate or other document relating to the Company that Delaware Law may
permit or require as provided in Section 1.1.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND
COUPLED WITH AN INTEREST THROUGHOUT THE TERM.
SECTION 1.4. Waiver of Appraisal Rights. Each Stockholder
hereby waives any rights of appraisal or rights to dissent from the Merger.
SECTION 1.5. Stop Transfer. No Stockholder shall request that
the Company register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any of such Stockholder's Subject
Shares, unless such transfer is made expressly subject to Section 3.4.
SECTION 1.6. No Solicitation. Upon execution of this
Agreement, each Stockholder shall, and it shall cause its Representatives to,
immediately cease any discussions or negotiations with any parties with respect
to any Third Party Acquisition. During the Term, no Stockholder shall, nor shall
any Stockholder authorize or permit any of its officers, directors, employees,
investment bankers, attorneys and other representatives or agents (collectively,
the "Representatives") to, directly or indirectly, encourage, solicit,
participate in or initiate discussions or negotiations with or provide any
information to any person or group (other than DHI or any designees of DHI)
concerning, or take any other action designed to facilitate any inquiries or the
making of any proposal concerning, any Third Party Acquisition. Each Stockholder
shall promptly (but no later than 24 hours after receipt) notify DHI in the
event it receives any proposal or inquiry concerning a Third Party Acquisition,
including the terms and conditions thereof and the identity of the party
submitting such proposal or inquiry (all in reasonable detail), and shall advise
DHI promptly of any developments concerning the same and the status thereof;
provided, however, that nothing herein shall prevent any Stockholder or
Representative from taking any action, after having notified DHI thereof, or
omitting to take any action, solely as a member of the Board of Directors of the
Company required so as not to violate such Stockholder's or Representative's
fiduciary obligations as a director of the Company after consultation with
outside counsel.
SECTION 1.7. Termination of Registration Rights Agreement.
Contingent upon the consummation of the Merger and effective as of the Effective
Time, the Stockholders hereby terminate, and waive any rights in respect of, the
Registration Rights Agreement, dated as of April 3, 2001, among the Company and
the Stockholders signatory thereto, which termination and waiver shall be
effective without any further action by the parties thereto.
SECTION 1.8. Termination Agreement and Mutual Release. On the
Closing Date, each Stockholder and DHI shall execute and deliver the termination
agreement and mutual release contemplated by Section 6.14 of the Merger
Agreement.
SECTION 1.9. Section 341(f) Consent. Notwithstanding any
rights to the contrary set forth in Section 6.13 of the Reorganization
Agreement, each Stockholder hereby agrees that it will not request the Company
to file a statement with the IRS consenting to the application to the Company of
Section 341(f) of the Code except for a request made to the Company to file such
a statement immediately prior to the Merger as contemplated in Section 5.4 of
the Merger Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to DHI as
follows:
SECTION 2.1. Due Authorization, Enforceability. Such
Stockholder has all requisite power and authority to execute, deliver and
perform this Agreement, to appoint DHI as its Proxy and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement, the appointment of DHI as such Stockholder's Proxy and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of Stockholder. This Agreement has been duly
executed and delivered by or on behalf of such Stockholder and constitutes a
legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other similar laws and except
that the availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for such
remedy may be brought. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Stockholder is trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by such Stockholder of the transactions contemplated hereby.
SECTION 2.2. No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, (i) conflict with or violate any trust agreement or other similar
documents relating to any trust of which such Stockholder is trustee, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to such Stockholder or by which such Stockholder or any of such
Stockholder's properties is bound or affected or (iii) 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,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any assets of such Stockholder, including such Stockholder's
Subject Shares, pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder or any of such
Stockholder's assets is bound or affected, except, in the case of
clauses (ii) and (iii), for any such breaches, defaults or other occurrences
that would not prevent or delay the performance by such Stockholder of such
Stockholder's 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
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority (other than
any necessary filing under the Exchange Act), domestic or foreign, except where
the failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by such Stockholder of such Stockholder's obligations under this Agreement.
SECTION 2.3. Title to Shares. Such Stockholder is the sole
record or beneficial owner of its Subject Shares, free and clear of any pledge,
lien, security interest, mortgage, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, understanding, arrangement, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind ("Encumbrances"), other than as set forth on Schedule
1.2 and other than restrictions imposed by the securities laws or pursuant to
this Agreement and the Merger Agreement. Such Stockholder has the sole right and
power to vote and dispose of such Stockholder's Subject Shares.
ARTICLE III.
MISCELLANEOUS
SECTION 3.1. Definitions. Terms used but not otherwise defined
in this Agreement have the meanings ascribed to such terms in the Merger
Agreement.
SECTION 3.2. Termination. As used herein, "Term" means the
period beginning on the date hereof and ending on the date this Agreement shall
be terminated in accordance with its terms. This Agreement shall terminate and
be of no further force and effect (i) by the written mutual consent of the
parties hereto, (ii) upon termination of the Merger Agreement, including a
termination of the Merger Agreement pursuant to Section 7.1(d) thereof, in
accordance with its terms, or (iii) automatically and without any required
action of the parties hereto upon the Effective Time. No such termination of
this Agreement shall relieve any party hereto from any liability for any breach
of this Agreement prior to termination.
SECTION 3.3. Further Assurance. From time to time, at another
party's request and without consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
SECTION 3.4. Certain Events. Each Stockholder agrees that this
Agreement and such Stockholder's obligations hereunder shall attach to such
Stockholder's Subject Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of such Subject Shares shall pass, whether
by operation of law or otherwise, including such Stockholder's heirs,
guardians, administrators, or successors. Notwithstanding any transfer of
Subject Shares, the transferor shall remain liable for the performance of all
its obligations under this Agreement.
SECTION 3.5. No Waiver. The failure of any party hereto to
exercise any right, power, or remedy provided under this agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, any custom or practice of
the parties at variance with the terms hereof shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
SECTION 3.6. Specific Performance. Each Stockholder
acknowledges that if such Stockholder fails to perform any of its obligations
under this Agreement immediate and irreparable harm or injury would be caused to
DHI for which money damages would not be an adequate remedy. In such event, each
Stockholder agrees that DHI shall have the right, in addition to any other
rights it may have, to specific performance of this Agreement. Accordingly, if
DHI should institute an action or proceeding seeking specific enforcement of the
provisions hereof, each Stockholder hereby waives the claim or defense that DHI,
as the case may be, has an adequate remedy at law and hereby agrees not to
assert in any such action or proceeding the claim or defense that such a remedy
at law exists. Each Stockholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any such equitable
relief.
SECTION 3.7. Notice. 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 if and when delivered personally or by overnight courier
to the parties at the following addresses or sent by electronic transmission,
with confirmation received, to the telecopy numbers specified below (or at such
other address or telecopy number for a party as shall be specified by like
notice):
(a) If to DHI:
X.X. Xxxxxx,Inc.
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000 and (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxx Xxxxxxxx and Xxx Xxxxxxx
(b) If to a Stockholder, at the address set forth below
such Stockholder's name on Schedule I.
SECTION 3.8. Expenses. Except as otherwise expressly set forth
herein, all fees, costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such fees, costs and expenses.
SECTION 3.9. Headings. 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. When a reference is made in this
Agreement to Sections or Schedules, such
reference shall be to a section or schedule of this Agreement unless otherwise
indicated. Wherever the words "includes," "include" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
SECTION 3.10. 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 maximum
extent possible.
SECTION 3.11. Entire Agreement; No Third-Party Beneficiaries.
This Agreement constitutes the entire agreement and supersedes any and all other
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof, and this Agreement is
not intended to confer upon any other person any rights or remedies hereunder.
SECTION 3.12. Assignment. This Agreement shall not be assigned
by operation of law or otherwise.
SECTION 3.13. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed entirely within that
State without regard to the principles of conflicts of law that would apply any
other law.
SECTION 3.14. Jurisdiction. 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 Section 3.15 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 trial by jury in connection with any such action,
suit or proceeding.
SECTION 3.15. Amendment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
SECTION 3.16. Waiver. Any party hereto may (a) extend the time
for the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties of the
other parties hereto contained herein or in any document delivered pursuant
hereto and (c) waive compliance by the other parties hereto with any of their
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only as against such party
and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
SECTION 3.17. 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 shall constitute one and the same agreement.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, DHI and the Stockholders have caused this
Agreement to be executed as of the date first written above.
X.X. XXXXXX,INC.
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Xxxxxx X. Xxxxxx
Chairman of the Board
CLASS A STOCKHOLDERS:
THE XXXXX AND XXXXXXXX XXXXXXX FOUNDATION
By: /s/ XXXXX X. XXXXXXX
---------------------------------
XXXXX X. XXXXXXX,
as trustee for the Xxxxx X. Xxxxxxx 1998
Qualified Annuity Trust and the Xxxxx X.
Xxxxxxx Revocable Living Trust
/s/ XXXXX X. XXXXXXX
---------------------------------
Xxxxx X. Xxxxxxx
CLASS B STOCKHOLDERS:
WPH-XXXXXXX LLC
By each of its members
APOLLO REAL ESTATE
INVESTMENT FUND, L.P.
By: APOLLO REAL ESTATE
ADVISORS, L.P.
Its General Partner
By: APOLLO REAL ESTATE
MANAGEMENT, INC.
Its General Partner
By: /s/ XXXXXXX X. XXXXXX
------------------------
HIGHRIDGE PACIFIC HOUSING
INVESTORS, L.P.
By: WPH ACQUISITIONS, INC.
Its General Partner
By: /s/
------------------------
Name:
------------------------
Title:
------------------------
BLACKACRE WPH, LLC
By: BLACKACRE CAPITAL
GROUP, L.P.
Its Managing Member
By: BLACKACRE CAPITAL
MANAGEMENT, CORP.
Its General Partner
By: /s/
------------------------
Name:
------------------------
Title:
------------------------
APOLLO REAL ESTATE INVESTMENT FUND, L.P.
In its individual capacity
By: APOLLO REAL ESTATE
ADVISORS, L.P.
Its General Partner
By: APOLLO REAL ESTATE
MANAGEMENT, INC.
Its General Partner
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Xxxxxxx X. Xxxxxx
Vice President
HIGHRIDGE PACIFIC HOUSING INVESTORS, L.P.
In its individual capacity
By: WPH ACQUISITIONS, INC.
Its General Partner
By: /s/
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
BLACKACRE WPH, LLC
In its individual capacity
By: BLACKACRE CAPITAL
GROUP, L.P.
Its Managing Member
By: BLACKACRE CAPITAL
MANAGEMENT, CORP.
Its General Partner
By: /s/
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
SCHEDULE I
Total Number of Shares Owned
Name and Address of Stockholder of Record Subject Shares
------------------------------------------------- ---------------------------------- --------------------------------
The Xxxxx And Xxxxxxxx Xxxxxxx Foundation 500,000 Class A 250,000 Class A
000 Xxxx Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
The Xxxxx X. Xxxxxxx 1998 Qualified Annuity 314,065 Class A 157,033 Class A
Trust
000 Xxxx Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
The Xxxxx X. Xxxxxxx Revocable Living Trust 9,619,763 Class A 4,809,881 Class A
000 Xxxx Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
WPH-Xxxxxxx, LLC 18,754,727 Class B 18,754,727 Class B
000 Xxxxxxxxxxx Xxxx., Xxxxx 000
Xx Xxxxxxx, XX 00000
Apollo Real Estate Investment Fund, L.P.
0 Xxxxxxxxxxxxxx Xxxx 0 Class B 0 Class B
Xxxxxxxx, XX 00000-0000
Highridge Pacific Housing Investors, L.P. 0 Class B 0 Class B
000 Xxxxxxxxxxx Xxxx., Xxxxx 000
Xx Xxxxxxx, XX 00000
Blackacre WPH, LLC 0 Class B 0 Class B
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Total Number of Shares Owned
Name and Address of Stockholder of Record Subject Shares
------------------------------------------------- ---------------------------------- --------------------------------
The Xxxxx And Xxxxxxxx Xxxxxxx Foundation 500,000 Class A 250,000 Class A
000 Xxxx Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
The Xxxxx X. Xxxxxxx 1998 Qualified Annuity 314,065 Class A 157,033 Class A
Trust
000 Xxxx Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
The Xxxxx X. Xxxxxxx Revocable Living Trust 9,619,763 Class A 4,809,881 Class A
000 Xxxx Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
WPH-Xxxxxxx, LLC 18,754,727 Class B 18,754,727 Class B
000 Xxxxxxxxxxx Xxxx., Xxxxx 000
Xx Xxxxxxx, XX 00000
Apollo Real Estate Investment Fund, L.P.
0 Xxxxxxxxxxxxxx Xxxx 9,356,136 Class B (1) 9,356,136 Class B (1)
Xxxxxxxx, XX 00000-0000
Highridge Pacific Housing Investors, L.P. 7,076,360 Class B(1) 7,076,360 Class B(1)
000 Xxxxxxxxxxx Xxxx., Xxxxx 000
Xx Xxxxxxx, XX 00000
Blackacre WPH, LLC 2,322,232 Class B(1) 2,322,232 Class B(1)
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(1) The beneficial ownership of these entities is based entirely on assumptions
being made as of the date hereof. The actual beneficial ownership of each entity
on the date of the Company's stockholder meeting and on the Closing Date will be
calculated according to the provisions set forth in the amended and restated
operating agreement of WPH-Xxxxxxx, LLC.
