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Exhibit 9.1
INVESTORS' AGREEMENT
This Investor Agreement ("Agreement") is entered into as of November 30,
1998, by and among the following:
Communities Investor Corp., a Delaware corporation (the "CIC") and each of
the stockholders of CIC identified as such on Schedule A hereto (each of whom is
referred to individually as a "CIC Stockholder" and collectively as the "CIC
Stockholders").
Communities Investor Limited Partnership, a Delaware limited partnership
("CILP") and each of the limited partners of CILP identified as such on Schedule
A hereto (each of whom is referred to individually as a "CILP Limited Partner"
and collectively as the "CILP Limited Partners").
D & A Communities, Inc., a Delaware corporation ("Newco") and each of the
stockholders of Newco identified as such on Schedule A hereto (each of whom is
referred to individually as a "Newco Stockholder" and collectively as the "Newco
Stockholders").
BankBoston, N.A., as Agent and SFT II, Inc. (together with any successors
and assigns, individually a "Lender" and collectively the "Lenders").
References herein to the CIC Stockholders, the CILP Limited Partners, the
Newco Stockholders and the Lenders include their respective Permitted
Transferees (as defined below),
RECITALS:
The parties hereto have engaged in a reorganization (the "Reorganization")
involving the combination of the businesses of Florida Design Communities, Inc.
and WCI Communities Limited Partnership under the common ownership of Newco and
involving a re-allocation of the limited partnership interests in CILP, among
other things, and wish to enter into this Agreement to govern the transfers of
interests in and the governance of CILP, Newco and Newco's Affiliates.
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows.
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ARTICLE I
Additional Definitions
As used herein:
1.1 Affiliate. "Affiliate" means, in respect of any specified Person, that
Person's employees or directors, any Person that directly or indirectly through
one or more intermediaries, controls or is controlled by, or is under common
control with, the specified Person and in the case of a Party who is an
individual, "Affiliate" shall also mean in respect of such Person, his or her
spouse and descendants or any such Person's estate or a trust the beneficiaries
of which are such Person, his or her spouse or descendants. As used in this
definition, "control" (including, with its correlative meanings, "controlled by"
and "under common control with") shall mean possession, directly or indirectly,
of power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise). For purposes of this Agreement, the Agent shall not be
considered an Affiliate of BancBoston Investments, Inc.
1.2 Agent. "Agent" means BankBoston, N.A. and any successor agent under
that certain Amended and Restated Wholesale Warehouse Mortgage and Credit
Facility among Agent, Communities Finance Company and certain lenders named
therein, all as dated April 27, 1998, as modified.
1.3 Xxxxxx Interests. "Xxxxxx Interests" means the Equity Interests
initially held by Kamehameha Activities Association and its Affiliates.
1.4 CVC Interests. "CVC Interests" means the Equity Interests initially
held by Citicorp Venture Capital, Ltd. and its Affiliates.
1.5 Equity Owners. "Equity Owner" or "Equity Owners" means individually or
collectively, the CILP Limited Partners, the CIC Stockholders and the Newco
Stockholders and includes after transfer of the Treasury Interest, the Lenders.
1.6 Entity. "Entity" or "Entities" means individually or collectively,
CILP, CIC and Newco.
1.7 Equity Interests. "Equity Interests" means the limited partner
interests in CILP, the stock of CIC and the stock of Newco and all interests of
whatever kind issued in connection therewith or with respect thereto in any
refinancing, recapitalization, reclassification, merger, reorganization or
similar event. As to any particular securities constituting Equity Interests,
such securities will cease to be Equity Interests and will no longer be subject
to this Agreement when they have been sold pursuant to Section 4.3(e) hereof.
1.8 Independent Qualified Appraiser. "Independent Qualified Appraiser"
means a nationally-recognized investment bank or valuation firm which is
experienced in the valuation of concerns such as the Entities and which has no
preexisting relationship with any of the Parties.
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1.9 Investor Board. "Investor Board" means the Board of Directors of CIC.
1.10 MacArthur Interests. "MacArthur Interests" means the Equity Interests
initially held by Xxxx X. and Xxxxxxxxx X. XxxXxxxxx Foundation, Hartsel Ranch
Corporation and their Affiliates.
1.11 Management Partners. "Management Partners" shall mean Xxx X. Xxxxxxxx
and Xxxxxx Xxxxxxx, Xx., as individuals and not their respective Permitted
Transferees, successors, assigns or other representatives.
1.12 Non-Transferring Owners. "Non-Transferring Owners" means all Equity
Owners other than the Transferring Owner.
1.13 Newco Board. "Newco Board" means the Board of Directors of Newco.
1.14 Permitted Transferee. "Permitted Transferee" means any Person
acquiring Equity Interests pursuant to any of the transactions permitted by
Article 4.
1.15 Person. "Person" means any individual, corporation, partnership,
limited liability company, trust, estate, individual, association or other
entity.
1.16 Party. "Party" or "Parties" means individually or collectively, CIC,
the CIC Stockholders, CILP, the CILP Limited Partners, Newco and the Newco
Stockholders.
1.17 Respective Interest Share. "Respective Interest Share" means, in
respect of any Entity, each Equity Owner's percentage interest in the aggregate
Equity Interests of all Equity Owners in such Entity. If the Equity Owners do
not own interests in such Entity, the Respective Interest Shares of an Equity
Owner shall be determined with respect to Equity Interests owned by the Equity
Owner indirectly in the Entity, including through ownership of CILP, in Newco.
1.18 Subsidiary Affiliate. "Subsidiary Affiliate" means, in respect of any
specified Person, an Affiliate of the specified Person of which the specified
Person is the beneficial owner, directly or indirectly through one or more
intermediaries, of 51% or more of the capital or assets.
1.19 Starwood. "Starwood" means SFT II, Inc., a Delaware corporation as
successor to Starwood Financial Trust, and SFT II, Inc.'s successors,
participants, and assigns.
1.20 Transfer. "Transfer" shall mean any sale, assignment, pledge,
transfer, conveyance, grant of any option on or with respect to, or any other
disposition, direct or indirect, by operation of law, as a result of death or
incompetency or otherwise, by an Equity Owner of all or any of its Equity
Interests to any Person. In addition, any sale, assignment, transfer,
conveyance, grant of any option on or with respect to, direct or indirect, by
operation of law, as a result of death or incompetency or otherwise, of all or
any part of the equity interests in an Equity Owner, substantially all of the
assets of which are its Equity Interests, shall be deemed a Transfer. The
transfer to the Lenders or either of them or an Affiliate of any Lender of the
Treasury Interests shall not be a Transfer hereunder.
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1.21 Transfer Interests. "Transfer Interests" shall mean the Equity
Interests proposed to be transferred, or transferred by a Transferring Owner
pursuant to a Transfer.
1.22 Transferring Owner. "Transferring Owner" shall mean an Equity Owner
who desires to make, or makes, a Transfer.
1.23 Treasury Interests. "Treasury Interests" means Treasury Partnership
Interests and Treasury Stock.
1.24 Treasury Partnership Interests. "Treasury Partnership Interests"
means Class A and Class B limited partnership interests in CILP which have been
acquired by CILP, but not cancelled, and have been pledged to the Lenders.
1.25 Treasury Stock. "Treasury Stock" means the shares of common stock of
CIC which have been acquired by CIC and held as treasury shares and have been
pledged to the Lenders.
ARTICLE II
Prior Agreements and Transactions
2.1 Prior Agreements. The parties hereby agree that the provisions of this
Agreement supersede in their entirety those of the Existing Shareholder
Agreements and the provisions of the Existing Shareholder Agreements are hereby
terminated. In this Section 2.1 Existing Shareholder Agreements means the
Agreement on Exit Strategy, the General Agreement on Transfers and Sales, the
Communities Investor Corp Voting Agreement, the Investors of WCI, Inc. Voting
Agreement, the Communities Investor Corp. Shareholders Agreement and the
Investors of WCI, Inc. Shareholders Agreement, each dated July 24, 1995 and as
amended from time to time, and made between various of the Parties thereto.
2.2 Prior Transfers. The Parties hereto hereby expressly waive any breach
of any of the Existing Shareholder Agreements by virtue of (a) the transfer by
Royal Hawaiian Shopping Center, Inc. of its limited partnership interests in
CILP to Kamehameha Activities Association; (b) the transfer by Court Square
Capital, Limited of its limited partnership interests in CILP to Citicorp
Venture Capital Ltd.; (c) the transfer by Communities LP Holdings, Inc. of all
of its Equity Interests to Communities Finance Company ("CFC"); (d) the
transfer by the stockholders of Investors of WCI, Inc. ("IWCI") of all of the
outstanding stock of IWCI to Newco in exchange for Newco stock and the transfer
of Newco stock to CILP; (e) the transfer by the limited partners of WCI
Communities Limited Partnership ("WCI LP") of all of the limited partnership
interests therein to Newco in exchange for Newco stock and the transfer by the
holders thereof other than CILP of the Newco stock to CILP for CILP limited
partnership interests; (f) the transfer of certain PIK Notes of CILP to CILP;
(g) the transfer by CFC of all shares of stock owned by CFC in CIC to CIC in
exchange for limited partnership interests in WCI LP and the transfer by CFC of
all limited partnership interests owned by CFC in CILP to CILP in exchange for
limited partnership interests; (h) the issuance by CIC and CILP to the
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Lenders of guaranties which are secured by shares of stock of CIC held by CIC as
treasury shares and limited partnership interests of CILP held by CILP as
treasury interests; and (i) the transfer by the Estate of Xxxxxxx Xxxxxx Xxxxxx
(the "Estate") of that certain note in the original principal amount of
$13,750,000 issued by CILP to the Estate to Kamehameha Activities Association.
The grant of first and second in priority security interests in the Treasury
Stock and the Treasury Partnership Interests shall not constitute a breach of or
be affected by any rights of any prior agreement among any of the parties hereto
or this Agreement.
ARTICLE III
Restrictions on Transfers
3.1 General Restrictions. No CILP Limited Partner may Transfer any of its
limited partnership interests in CILP, including any Transfers otherwise
permitted under Article IV, from and after the date hereof to December 31, 2000
without the prior written consent of the Management Partners and the holders of
a majority of each of the Xxxxxx Interests, the CVC Interests and the MacArthur
Interests. Thereafter, an Equity Owner may only, directly or indirectly,
voluntarily or involuntarily, Transfer any Equity Interest as contemplated by
this Agreement. Any attempted Transfer by an Equity Owner other than as
permitted hereby shall be null and void and of no force or effect. Any Transfer
permitted by this Agreement (other than as contemplated by Section 4.3(e) or
Article IX) shall be conditional on the Permitted Transferee executing a joinder
to this Agreement and agreeing to be bound by the terms hereof.
3.2 Required Coordination. With respect to Transfers permitted under this
Agreement, no CILP Limited Partners or CIC Stockholders shall make or agree to
make any Transfer of any of its Equity Interests in respect of CILP or CIC
unless such Transfer includes a Transfer of the same proportion of the Equity
Interests of such Party and its Affiliates in respect of CILP and CIC.
3.3 Other Requirements. The provisions of this Agreement shall not be
deemed to remove or eliminate any requirements imposed by any partnership
agreement, certificate or constitutive document in relation to any Transfer.
ARTICLE IV
Permitted Transfers
4.1 Transfers to Affiliates. The Parties hereby consent and agree to any
Transfer by an Equity Owner to any Affiliate of such Equity Owner so long as
such Transfer does not change the stock ownership of Newco for the purposes of
Section 382 of the Internal Revenue Code, as amended.
4.2 Transfers to Equity Owners or Entities. The Parties hereby consent and
agree to any Transfer by an Equity Owner of all or any part of his, her or its
Equity Interests to another Equity Owner or to an Entity. In the event of a
Transfer to another Equity Owner permitted by
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this Section 4.2, the Equity Owner shall receive and hold such Equity Interests
subject to the terms of this Agreement and there shall be no further Transfer,
except in accordance with the terms of this Agreement. In the event of a
Transfer to an Entity permitted by this Section 4.2, the Entity shall retire the
Equity Interest if it is an Equity Interest in the Entity or shall hold the
Equity Interest as an Equity Owner under the terms of this Agreement and there
shall be no further Transfer, except in accordance with the terms of this
Agreement.
4.3 Pledge by DEA, the Xxxxxxxx Trust or Xxxxxxx. Xxx X. Xxxxxxxx ("DEA"),
DEA as Trustee of the Xxx X. Xxxxxxxx Trust U/T/A December 14, 1996 (the
"Xxxxxxxx Trust") and Xxxxxx Xxxxxxx, Xx. ("Xxxxxxx") may pledge Newco stock as
security for loans to DEA or Xxxxxxx made by financial institutions or as
security for letters of credit or guaranties of payment or performance of loans
or other obligations made by financial institutions to any entity in which DEA,
the Xxxxxxxx Trust or Xxxxxxx or an Affiliate has an equity ownership interest;
provided, however, that DEA, the Xxxxxxxx Trust and Xxxxxxx shall not pledge any
Newco stock (the "Pledged Stock") unless the pledgee (the "Pledgee") of such
pledge agrees to the following terms:
(a) The pledge agreement shall provide that in the event of a
default under the pledge agreement, the Pledgee shall give notice to Newco
of the default and the Pledgee's intent to foreclose on the Pledged Stock
at least thirty (30) days prior to offering for sale or otherwise
disposing of or taking any action with respect to the Pledged Stock (the
"Foreclosure Notice").
(b) The Foreclosure Notice shall include an offer to sell a portion
of the Pledged Stock to Newco and/or the Newco Stockholders or their
respective nominees at the fair market value of the Pledged Stock which
offer shall be an offer coupled with an interest and shall be irrevocable
for a period of thirty (30) days after receipt of the Foreclosure Notice.
The portion of the Pledged Stock to be sold shall be the number of shares
of the Pledged Stock which at the fair market value of each share of the
Pledged Stock shall be equal to the amount of the outstanding indebtedness
owed to the Pledgee.
(c) If Newco or the Newco Stockholders agree to purchase all or any
portion of the Pledged Stock, the fair market value of the Pledged Stock
shall be agreed upon by the Pledgee and Newco. If the Pledgee and Newco
are unable to agree upon the fair market value of the Pledged Stock, the
Pledgee and Newco shall select an Independent Qualified Appraiser
reasonably acceptable to each and shall abide by the decision of the
Independent Qualified Appraiser.
(d) The closing of the purchase of the Pledged Stock shall be within
thirty (30) days of the determination of the fair market value of the
Pledged Stock at the offices of the Pledgee. The purchase price of the
Pledged Stock shall be paid to the Pledgee at the closing by wire transfer
of immediately available funds.
(e) If Newco and the Newco Stockholders refuse to purchase the
Pledged Stock, the Pledgee shall be free to sell or otherwise dispose of
that number of shares of the Pledged Stock with an aggregate value equal
to the outstanding indebtedness owed to the Pledgee. Such sale shall be
without any restriction under the terms of this Agreement
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and this Agreement and all restrictions on the transfer of Pledged Stock
hereunder shall terminate upon such sale.
4.4 Transfers to or by Lenders. Either Lender may Transfer any Equity
Interest to the other and each to an Affiliate of any Lender so long as such
Transfer does not change the stock ownership of Newco for the purposes of
Section 382 of the Internal Revenue Code, as amended. Any such Transfer of any
Equity Interest to a Lender or to an Affiliate of a Lender, either by
foreclosure or otherwise, shall not be subject to any of the provisions of
Section 3.1 or Article V. Any Transfer by a Lender to an Affiliate shall be
conditional on the Affiliate executing a joinder to this Agreement and agreeing
to be bound by the terms hereof.
4.5 Other Transfers. An Equity Owner may Transfer Equity Interests in
accordance with the terms of Article V, Article IX or Section 11.1.
ARTICLE V
First Offer Options
5.1 First Offer Options. If a Transferring Owner desires to make a
Transfer or an offer to Transfer other than as permitted in Sections 4.1 through
4.4, the Transferring Owner shall give notice of the proposed Transfer (the
"Transfer Notice") to the Newco Board and to all of the other Equity Owners. The
Transfer Notice shall specify the nature and the amount of the Transfer
Interests and the aggregate price at which the Transferring Owner proposes to
sell the Transfer Interests.
5.2 Order of First Offer Options. After the delivery of the Transfer
Notice, each of Equity Owners, other than the Transferring Owner, and the
Entities shall have options (collectively the "First Offer Options") to purchase
all, but not less than all, of the Transfer Interests from the Transferring
Owner at the price set forth in the Transfer Notice, in the following order of
priority:
(a) If the Transfer Interests are shares of common stock of Newco, the
Newco Stockholders, other than the Transferring Owner and CILP, shall have
the first option to purchase all or any part of the Transfer Interests for
a period of thirty (30) days after delivery of the Transfer Notice (the
"Newco Stockholders' Option");
(b) If the Newco Stockholders do not exercise the Newco Stockholders'
Option to purchase all of the Transfer Interests, then CILP shall have the
second option to purchase all or any part of the remaining Transfer
Interests for an allocable portion of the purchase price specified in the
Transfer Notice (such allocable portion to be determined by the Newco
Board) for a period of fifteen (15) days after the Newco Stockholders fail
to exercise the Newco Stockholders' Option (the "CILP/Newco Option");
(c) If the Transfer Interests are limited partnership interests in CILP,
the CILP Limited Partners, other than the Transferring Owner, shall have
the first option to purchase all or any part of the Transfer Interests for
a period of thirty (30) days after delivery of the Transfer Notice (the
"CILP Partners' Option");
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(d) If the Transfer Interests are shares of common stock of CIC, the CIC
Stockholders, other than the Transferring Owner, shall have the first
option to purchase all or any part of the Transfer Interests for a period
of thirty (30) days after delivery of the Transfer Notice (the "CIC
Stockholders' Option");
(e) Each Entity shall have the second or third option, as the case may be,
to purchase all or any part of the Transfer Interests in such Entity for
an allocable portion of the purchase price specified in the Transfer
Notice (such allocable portion to be determined by the Newco Board) for a
period of fifteen (15) days after the expiration of the CILP/Newco Option,
the CILP Partners' Option or the CIC Stockholders' Option, as the case may
be ("Entity Option"). The purchase of any Transfer Interests by one Entity
shall be dependent and conditioned upon the purchase of all Transfer
Interests by all Entities or Equity Owner in respect of which such
Transfer Interests are held; and
(f) Each Equity Owner, other than the Transferring Owner, shall have the
last option to purchase all or any part of the Transfer Interests in the
amount of such Transferring Owner's Respective Interest Share for an
allocable portion of the purchase price specified in the Transfer Notice
(such allocable portion to be determined by the Newco Board) for a period
of the fifteen (15) day after the expiration of the Entity Option.
5.3 Manner of Exercise.
(a) Any Option to purchase the Transfer Interest shall be exercised, if at
all, by written notice to the Transferring Owner and, in the case of the
Equity Owners, to the Newco Board.
(b) The Non-Transferring Owners shall have the right and option to
purchase the Transfer Interests (but not less than all of the Transfer
Interests), pro rata according to the Respective Interest Shares of the
Non-Transferring Owners in the Entity for which Interests are offered. Any
dispute shall be resolved by the Newco Board.
(c) Failure of any Party to respond to the Transfer Notice within the
period stated in Section 5.2 shall be deemed to constitute a notification
to the Transferring Owner of such Non-Transferring Owner's decision not to
exercise the right and option to purchase the Transfer Interests as
provided under this subsection.
(d) In the event any Non-Transferring Owner does not exercise its right
and option to purchase the Transfer Interests, the Transferring Owner
shall give notice thereof (the "Second Transfer Notice") to each
Non-Transferring Owner which has agreed to purchase its pro rata share of
the Transfer Interests, and such Non-Transferring Owners shall have the
right and option, exercisable for a period of ten (10) days from the
delivery of the Second Transfer Notice, to purchase any remaining portion
of the Transfer Interests. If such Non-Transferring Owners desire
collectively to purchase more than the remaining portion of the Transfer
Interests, such remaining portion shall be allocated among them pro rata
according to the Respective Interest Shares of such Non-Transferring
Owners. Failure of any such Non Transferring Owner to respond within ten
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(10) days to the Second Transfer Notice shall be deemed to constitute a
notification to the Transferring Owner of such Non Transferring Owner's
decision not to exercise its right and option to purchase any additional
portion of the Transfer Interests pursuant to this Article V.
5.4 Failure to Purchase. If all of the Transfer Interests are not redeemed
or purchased by the Entities or by the Non-Transferring Owners pursuant to
Article V, any and all rights and options of the Entities and the
Non-Transferring Owners in respect of such Transfer pursuant to Article V
(including, any exercise by any Non-Transferring Owner of any of its rights)
shall be cancelled and terminated, and the Transferring Owner may, at any time
during the one hundred eighty (180) days following the expiration of the ten
(10) day response period following the Second Transfer Notice, offer to Transfer
and Transfer the Transfer Interests upon terms and conditions no more favorable
to the purchaser or purchasers thereof than were offered to the Non-Transferring
Owners and the Entities hereunder. If such Transfer by the Transferring Owner is
not consummated within such 180-day period, then the provisions of Article V
shall be applicable again to such Transfer.
5.5 Closing Procedures.
(a) After the valid exercise of any First Offer Options in respect of all
of the Transfer Interests pursuant to Article V, the closing of the sale
of the Transfer Interests shall be effected on a date (the "Closing Date")
within sixty (60) days after the delivery of the last notice by any Entity
or Non-Transferring Party completing the exercise of the First Offer
Options.
(b) The Closing shall be held at the offices of counsel to Newco or at
such other place as may be agreed upon by the Transferring Owner and the
purchasing party or parties (each a "Purchaser", collectively the
"Purchasers"). At the Closing, the following shall occur:
(i) Each document and instrument to be entered into by any
Party in connection with the sale of the Transfer Interests shall be
in form and substance reasonably satisfactory to such Party;
(ii) The Transferring Owner shall execute and deliver any and
all documents and instruments as may be necessary, desirable or
appropriate to vest in each Purchaser good and marketable title to
the Transfer Interests, free and clear of any security interest,
encumbrance, charge, pledge, hypothecation or other third-party
claim (except as may have been agreed to by the Purchaser in
connection with such Purchaser's purchase of the Transfer
Interests); and
(iii) Each Purchaser shall cause the purchase price for the
Transfer Interests it is purchasing hereunder to be paid to the
Transferring Owner by wire transfer of immediately available funds
at the Closing.
5.6 Recalculation of Interests. Immediately after any Transfer, the
Respective Interest Shares of the Equity Owners in respect of the various Equity
Interests shall be
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recalculated in order to reflect the relative Equity Interests of the Equity
Owners, including any transferee who prior to the Transfer was not a party to
this Agreement. The Investor Board shall coordinate such recalculation.
5.7 Additional and Successor Equity Owners. Upon any Transfer other than
as contemplated in Section 4.3(e) or Article IX, any transferee not already an
Equity Owner or an Entity shall become a Party hereto.
5.8 Transfers By Operation of Law. The Equity Owners acknowledge and
confirm that the provisions of Article V shall be applicable to Transfers which
occur by operation of law and that, in connection therewith, if the Transferring
Owner is not legally capable of taking, any action contemplated to be taken by
it pursuant to Article V, such action shall be taken by the trustee, executor,
personal representative or other appropriate party acting on behalf of or in the
place of the Transferring Owner.
ARTICLE VI
Lenders Interests
If at any time CIC and CILP shall transfer the Treasury Interests to the Lenders
pursuant to a foreclosure sale or transfer in lieu of a foreclosure sale, the
Lenders shall become Equity Owners, CIC Stockholders and CILP Limited Partners
for all purposes hereunder and shall be subject to such terms and conditions as
the other Equity Owners, CIC Stockholders, and CILP Limited Partners, except as
otherwise provided herein. If the Lenders are Equity Owners at any time,
Sections 3.1 and 7.3 shall provide that actions specified therein shall require
the concurrence of at least three of the holders of a majority of the Xxxxxx
Interests, CVC Interests, MacArthur Interests, the Management Partners and the
Lenders.
ARTICLE VII
Voting Agreement
7.1 Directors. To the extent permitted by law, each Equity Owner shall
vote all Interests over which such Equity Owner has voting control, and shall
take all other necessary or desirable actions within such Equity Owner's control
(whether in such Equity Owner's capacity as a partner, stockholder, director,
member of a board committee or officer of CIC, CILP, or Newco or otherwise, and
including, without limitation, attendance at meetings in Person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and each of CIC and Newco shall take all necessary and desirable
actions within its control (including, without limitation, calling special board
and stockholder or limited partner meetings), so as to provide for the
following:
(a) A Newco Board of not less than 5 members and not more than 9 members,
per Amendment
(b) The election of the following persons as members of the Newco Board:
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(i) Xxxxxx Xxxxxxx, Xx., or a person designated by him or his
personal representative;
(ii) Xxx X. Xxxxxxxx., or a person designated by him or his
personal representative;
(iii) A person designated by the holders of a majority of the
MacArthur Interests and the initial designee shall be Xxxxxxx X.
Xxxxxxxx;
(iv) A person designated by the holders of the majority of the
Xxxxxx Interests; provided, that until such time as a director is
designated, each of Xxxxx Xxx and Xxxxx Xxxx is entitled to receive
all notices and information available to the Newco Board and to
receive notice of all Newco Board meetings and either of them shall
have the right to attend in person or telephonically any meeting of
the Newco Board;
(v) A person designated by the holders of the majority of CVC
Interests and the initial designee shall be Xxxxxx X. XxXxxxxxxx;
and
(vi) Up to four directors designated by a majority of the
persons referred to in paragraphs (i) through (v) above, except as
provided in Section 7.1(c), per Amendment
"Investor Director" shall mean any director designated and elected
pursuant to Section 7. 1 (b)(iii), (iv), or (v).
(c) If the Lenders are Equity Owners, the Equity Owners agree to elect as
one of the designees referred to in Section 7.1 (b)(vi) a person
designated by the Lenders as a member of the Newco Board;
(d) Investors of WCI BCG FDC same as watermark board.
(e) Any committees of the Newco Board or a Sub Board shall be created only
upon the approval of a majority of the voting power of the Newco Board and
the composition of each such committee (if any) shall consist of not more
than three Persons, at least one of which shall be an Investor Director;
(f) Any directors designated under Section 7.1(b)(i) through (v) or
Section 7.1(c) shall be removed from the Newco Board, a Sub Board or any
committee thereof (with or without cause) only at the written request of
the Equity Owner or a majority of the Equity Owners which have the right
to designate such director hereunder, but only upon such written request
and under no other circumstances (in each applicable case, determined on
the basis of a vote or consent of the relevant Equity Owners). Any
director designated under Section 7.l(b)(vi) may be removed from the Newco
Board, a Sub Board or any committee thereof (with or without cause), at
any time upon the concurrence of at least three of the holders of a
majority of the Xxxxxx Interest, CUC Interests, MacArthur Interests and
the Management Partners as described in Sec 7.3 and the Equity Owners of
Newco agree to vote all Interests in Newco to remove such directors;
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(g) In the event that any individual designated hereunder for any reason
ceases to serve as a member of the Newco Board or a Sub Board or any
committee thereof during such individual's term of office, the resulting
vacancy on the Newco Board or such Sub Board or committee shall be filled
by an individual designated by the relevant Equity Owners;
(h) Newco shall pay the reasonable out-of pocket expenses incurred by each
Investor Director in connection with attending the meetings of the Newco
Board or any Sub Board and any committee thereof. In addition, Newco shall
pay such additional compensation to directors who are not employees of
Newco or any of its Subsidiaries as the Newco Board so determines. Each
Investor Director shall be entitled to receive the minutes of the meeting
of any Board or Sub Board meetings at which he or she is not in
attendance;
(i) If any party fails to designate an individual to fill a directorship
pursuant to the terms of this Section 7.1 within a reasonable period of
time following a vacancy, the election of a Person to such directorship
shall be accomplished in accordance with Newco's bylaws, certificate of
incorporation, and applicable law. In the event that any provision of
Newco's or any of its Subsidiaries' bylaws or certificate of incorporation
is inconsistent with any provision of this Section 7.1, this Agreement
governs and the Equity Owners shall promptly take all such action as may
be necessary to amend any such provision in Newco's or such Subsidiary's
bylaws or certificate of incorporation to remedy such inconsistency; and
(j) Each Equity Owner represents that such Equity Owner has not granted
and is not a party to any proxy, voting trust or other agreement which is
inconsistent with or conflicts with the provisions of this Agreement, and
no Equity Owners shall grant any proxy or become party to any voting trust
or other agreement which is inconsistent with or conflicts with the
provisions of this Agreement.
(k) new
7.2 Investor Board. The Investor Board shall be comprised of Xxxxxx
Xxxxxxx, Xx., Xxx X. Xxxxxxxx and Xxxxxx Xxxxxxxx; provided, that the Parties
acknowledge that the holders of a majority of the stock of CIC can replace any
of those designees (and any of their replacements) at any time for any reason.
7.3 Supermajority Voting Provisions. The Equity Owners and the Entities
agree that they shall take all necessary action and shall cause the Subsidiaries
of the Entities to take all necessary action to ensure that none of the
following actions shall occur without the concurrence of at least three of the
holders of a majority of the Xxxxxx Interests, CVC Interests, MacArthur
Interests and the Management Partners and, if, and only if, the proposed action
is a sale or exchange of all or any part of the Newco Shares by CILP, the
liquidation of Newco or non-liquidating distributions by Newco prior to November
30, 1999 which would result in taxable gain or income in CILP, without the
concurrence of a majority of the MacArthur Interests:
(a) Newco shall not sell, convey, lease, transfer, grant options to
purchase or otherwise dispose of all or substantially all of its assets or
dispose of any property or business of Newco or any Subsidiary
Affiliate(other than non-core property) in each case having a value in
excess of $25,000,000;
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(b) Newco, its Subsidiary Affiliates, CILP and CIC shall not (i) issue or
sell partnership interests or shares of stock, or (ii) incur indebtedness
(other than indebtedness permitted pursuant to the terms of the senior
credit facility in place for operation of the business of Newco or its
Subsidiary Affiliates), in excess of $25,000,000;
(c) CILP shall not admit a new or substitute general partner or limited
partner, except the Lenders and as otherwise permitted hereunder;
(d) Newco, CILP and CIC shall not, directly or indirectly, redeem,
purchase or otherwise acquire any of its own Equity Interests;
(e) None of Newco, the Subsidiary Affiliates, CILP or CIC resolve,
compromise, settle or agree as to any dispute, adjustment, payment to or
by any of them or adjustment or amendment arising out of the transactions
contemplated in the documents entered into in connection with the
Reorganization and related agreements and the institution of litigation
and defense of litigation with respect to such agreements;
(f) Newco and its Subsidiary Affiliates shall not terminate the employment
of or increase the compensation payable to either Xxxxxxx or DEA or amend
the terms of either of their respective employment agreements made with
WCI Communities Limited Partnership dated July 24, 1995, as assigned to
Newco under Assignment dated November 30, 1998 (the "Employment
Agreements");
(g) None of Newco, CILP or CIC shall amend, modify or terminate any other
their respective constituent documents, including, but not limited to, the
Certificate of Incorporation of Newco or CIC or the Agreement of Limited
Partnership of CILP.
(h) None of Newco, CILP or CIC shall consolidate with or merge into or
with any other Person or dissolve, or begin to liquidate or wind-up its
business or assets;
(i) File a petition under the Federal Bankruptcy Act or any other
insolvency law, or admit in writing that it is bankrupt, insolvent or
unable to pay its debts, or enter into an assignment for the benefit of
creditors; and
(j) Sale by CILP at any time prior to November 30, 1999 of all or any part
of the Newco Shares owned by CILP.
(k)
7.4 Obligations of Board. Nothing in this Agreement is intended, nor shall
it be construed, to expand or otherwise modify the fiduciary duties or liability
of the Investor Board, the Newco Board or the members of either, or to create
any independent contractual obligation on the part of either Board or any member
of either Board. In performing their duties under this Agreement, neither the
Investor Board nor the Newco Board shall be deemed to be acting on its own
behalf but solely on behalf of CILP or Newco, respectively, as its Board of
Directors.
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ARTICLE VIII
Pre-Emptive Rights
8.1 CILP Partners' Pre-Emptive Rights. The CILP Limited Partners shall
have the first right and option to purchase pro rata according to their
Respective Interest Shares, any and all debt or equity interests or instruments
which may be issued by CILP or CIC (each an "Issuing Entity"). For purposes of
this Section 8.1, the Lenders shall be considered CILP Limited Partners to the
extent of the Treasury Interests. The Respective Interest Shares to be applied
for purposes of this Section 8.1 shall be those in respect of the Equity
Interest held by the CILP Limited Partners, as adjusted for the issuance of the
Treasury Interests, in CILP.
8.2 Newco Stockholders' Pre-Emptive Rights. The Newco Stockholders shall
have the first right and option to purchase pro rata according to their
Respective Interest Shares any and all equity interests or instruments which may
be issued by Newco or any Subsidiary Affiliate of Newco (each, together with
CILP and CIC, an "Issuing Entity") other than any such issuance in connection
with a offering of equity or debt interests or instruments pursuant to a
registration statement filed with the Securities and Exchange Commission, grants
of stock awarded to employees or issuances upon exercise of up to 2,000,000
options (which includes the 328,200 shares issued in connection with the
Reorganization) granted to employees of Newco or any Affiliate Subsidiaries of
Newco, or any equity issuance approved as provided in Section 7.3.
8.3 Notice of Issuance. The Issuing Entity will give each Equity Owner, at
least 30 days prior written notice of any such proposed issuance of interests or
instruments, which notice shall disclose in reasonable detail the proposed terms
and conditions of such issuance (the Issuance Notice"). Each Equity Owner may
elect to purchase all (but not less than all) of the interests or instruments
offered to such Equity Owner by delivery of written notice of such election (the
"Election Notice") within 30 days after delivery of the Issuance Notice to the
Issuing Entity. Any offered interests or instruments not purchased by any Equity
Owner may be purchased by any exercising Equity Owner who so elects, such
purchase to be allocated among all such exercising Equity Owners according to
each such exercising Equity Owner's Respective Interest Share. The sale of such
interests or instruments to all such exercising Equity Owners shall be
consummated as soon as practical after delivery of the Election Notice.
8.4 Newco Board. The Newco Board shall oversee and coordinate with all
respective Entities the application and implementation of the pre-emptive rights
provided by this Article VIII.
ARTICLE IX
"Go Along" Provisions
9.1 "Go Along" Provisions". If any sale, transfer or exchange of CILP,
Newco or any Subsidiary Affiliate of Newco, whether by means of a sale of
assets, sale of entities, sale of a majority of the Equity Interests, or by
means of any other sale, transfer or exchange of stock, partnership interests,
debt instruments or other interests or assets, or by means of the
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organization of one or more new entities and a restructuring of Equity Interests
and/or other interests into such new entities; or any combination of the
foregoing is approved pursuant to the terms of this Agreement, then (a) the
Parties agree that all CIC stockholders, CILP Limited Partners and Newco
stockholders, as the case may be, shall have a pro rata opportunity to
participate in any transaction in which any of their Equity Interests are to be
sold, transferred or exchanged, and (b) the Equity Owners (including for
purposes of this Section 9.1, the Lenders as if they were Equity Owners) hereby
agree to (i) waive any dissenter's rights and other similar rights, (ii) if the
transaction is structured as a sale of stock, each Equity Owner will agree to
sell its Interests on the terms and conditions of the sale and (iii) each Equity
Owner will take all necessary and desirable actions as directed by the Newco
Board or Investor Board in connection with the consummation of any sale,
including without limitation executing the applicable purchase agreement and, in
the case of each Equity Owner, granting identical indemnification rights, and to
take all such further actions as are determined by the Newco Board or Investor
Board to be necessary and appropriate to implement and effect such transaction
or transactions in such form and structure as so determined by the Newco Board
or Investor Board with such concurrence.
9.2 Common Consideration. The obligations of the Equity Owners set forth
in Section 9.1 are subject to each Equity Owner receiving with respect thereto
the same amount and type of consideration in respect of each applicable unit
thereof. Consideration received in connection with any transaction subject to
Section 9.1 shall be deemed to include all consideration received by an Equity
Owner in any related transaction which is consummated substantially
contemporaneously with such transaction.
ARTICLE X
Special Transactions
Notwithstanding any other provision in this Agreement to the contrary, the
Parties agree that if in the opinion of counsel to any Equity Owner that is a
"private foundation" as defined in Section 509(a) of the Internal Revenue Code
(which opinion shall be reasonably acceptable to the Investor Board), any
redemption of Equity Interests by any Entity or any transfer or transaction in
respect of any Equity Interests or other interests in the Entity would produce
or involve a substantial risk of resulting in "excessive business holdings" on
the part of such Equity Owner within the meaning of Section 4943 of the Code,
then in any such event the Parties shall cooperate in all reasonable ways to
prevent, avoid or restructure the redemption, transfer or transaction that is
believed to produce or involve such risks.
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ARTICLE XI
Repurchase Rights
11.1 Partial Repurchase Option.
(a) Repurchase Option. Within sixty days following a Repurchase
Event (as defined in Section 11.1(d)(ii) below), CILP or its nominee shall
have the option (the "Repurchase Option") of repurchasing the Repurchase
Interest, as determined under subsection 11.1(f) below, of a Management
Partner in respect of whom the Repurchase Event has occurred (the
"Repurchase Partner"). The Repurchase Interest shall be purchased from the
Repurchase Partner or the Affiliates of the Repurchase Partner (or
successors in interest thereto) in proportion to the Repurchase Partner's
or the Affiliates Percentage Interest immediately before the occurrence of
the Repurchase Event (the "Repurchase Percentage").
(b) Purchase Price. Within thirty (30) days after the Repurchase
Event, CIC shall provide the Repurchase Partner with a notice (the
"Initial Notice") setting forth CIC's opinion of the Fair Market Value (as
defined below) of the Repurchase Interest. If, within thirty (30) days
after delivery of the Initial Notice, CIC and the Repurchase Partner do
not agree in writing as to the Fair Market Value of the Repurchase
Interest, the following procedures shall apply:
(i) Within ten (10) days after the expiration of such thirty
(30) day period, CIC shall select an Independent Qualified
Appraiser, the Repurchase Partner will select an Independent
Qualified Appraiser and within ten (10) days thereafter, the two
Independent Qualified Appraisers shall select a Third Independent
Qualified Appraiser. The third selected Independent Qualified
Appraiser shall, as promptly as is practical, make a determination
of the Fair Market Value of the Repurchase Interest taking into
consideration (and will be afforded access to ) all confidential
projects and any submissions of information by the Repurchase
Partner and CIC.
(ii) For purposes of the valuations required under this
Section, if Newco is operating as a going concern the appraisals
shall be conducted in accordance with the following and the Fair
Market Value shall be the higher of the Fair Market Value determined
under the following:
(A) The Independent Qualified Appraiser may determine
the Fair Market Value of the Repurchase Interest by appraising
the fair market value on the basis of the all cash price which
would be paid by an informed willing buyer to an informed
willing seller, neither being under any compulsion to buy or
sell, in an arm's-length transaction under then-prevailing
market conditions.
(B) Alternatively the Independent Qualified Appraiser
may determine the Fair Market Value of the Repurchase Interest
with respect to
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the market that would be both (x) available to access by CILP
at such time, and (u) yield the highest fair market value,
utilizing valuation techniques which are applicable to valuing
securities and entities in such market. The Repurchase
Partners portion of the Fair Market Value would, in this case,
be determined by calculating what the Repurchase Partner would
receive upon a dissolution and liquidation of the Entity
following a sale of the aggregate Repurchase Interests at a
purchase price equal to the Fair Market Value.
(iii) For purposes of the valuations required under this
Section, if Newco is being liquidated or if the Newco Board and
Newco Stockholders have approved the liquidation of Newco, the
Independent Qualified Appraiser may determine Fair Market Value of
the Repurchase Interest with respect to the value of the assets of
Newco that would be available in a liquidation of Newco.
(iv) All reasonable third party appraisal and accounting costs
(including the fees of the Independent Qualified Appraiser) incurred
in connection with the valuation of the Repurchase Interest shall be
paid 50% by CILP and 50% by the Repurchase Partners.
(c) Manner of Exercise.
(i) CILP shall exercise its Repurchase Option by providing
written notice thereof to the Repurchase Partner who shall be
obligated to immediately notify the other holders of the Repurchase
Interest. Such notice shall specify the Repurchase Event and the
amount of Repurchase Interest which will be purchased in the
aggregate and the date of closing of the repurchase, which shall be
a date not less than five business days nor more than thirty days
following the date of the notice.
(ii) Every redeemed Repurchase Interest shall be delivered to
CILP with representations and warranties as to ownership, title,
power and authority to transfer and that the Repurchase Interest is
not subject to liens or other encumbrances of any kind or nature and
such other representations, warranties and opinions of counsel as
CILP may reasonably request.
(d) Repurchase Event.
(i) For purposes of determining Repurchase Events, "Cause"
shall incorporate the meaning of such term set forth in the
Employment Agreements.
(ii) The following shall be Repurchase Events for each of the
Xxxxxxxx Partnership and Xxxxxxx:
(A) The voluntary termination by such Xxxxxxx or DEA, as
the case may be, of employment with Newco or any Subsidiary
Affiliates. It
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shall not be considered a voluntary termination if Xxxxxxx or
DEA dies or is Disabled, as defined in the Employment
Agreements; or
(B) Termination of employment of Xxxxxxx or DEA, as the
case may be, by Newco or the Subsidiary Affiliates for Cause.
(e) Repurchase Interest. The Repurchase Interest with respect to
each Repurchase Partner shall be equal to 18.75% of the Class Y limited
partnership interests in CILP.
(f) Termination of Repurchase Option. The provisions of this Section
11.1, the Repurchase Option and the right of CILP to exercise a Repurchase
Option shall terminate on the earlier to occur of the Liquidity Event
Closing (as defined below) or the expiration of the Employment Agreement.
ARTICLE XII
General Provisions
12.1 Term. This Agreement shall terminate on the earlier of: (a) the
agreement of all of the Equity Owners; (b) the closing under the underwriting
agreement between Newco and the several underwriters in connection with an
initial public offering of common stock pursuant to a firm commitment
underwriting, or (c) the closing of a transaction in which a third party
acquires substantially all of the business and property, subject to
substantially all of the liabilities of Newco by the acquisition of stock or
assets, merger, consolidation or other means in a transaction and for
consideration as may be approved by the Newco Board; provided, that the
requirement that the holders of a majority of the MacArthur Interests concur in
a transaction of the type described in the introductory sentence to Section 7.3
shall survive through November 30, 1999 unless the holders of a majority of
MacArthur Interests agree to its termination.
12.2 Amendment. This Agreement may be altered or amended only with the
written consent of the holders of a majority of each of the Xxxxxx Interests,
CVC Interests, MacArthur Interests and the Management Partners. Notwithstanding
the above, this Agreement shall not be altered or amended without the consent of
a Party if such amendment oro alteration would adversely affect the economic or
voting rights or the obligations of such Party. No modification or amendment
shall be made to the provisions of (a) Article V, Article VI, Section 7.2 and
Section 7.3 of the Amended and Restated Limited Partnership Agreement of CILP;
or (b) to the provisions of this Agreement which adversely affect any rights or
obligations of the Lenders, without the Lender's consent.
12.3 Specific Performance. The Parties recognize that the obligations
imposed on them in this Agreement are special, unique and of extraordinary
character, and that in the event of breach by any Party, damages will be an
insufficient remedy; consequently, it is agreed that the Parties may have
specific performance (in addition to damages) as a remedy for the enforcement
hereof, without proving damages.
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12.4 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or upon receipt if mailed, certified or
registered mail with postage prepaid (return receipt requested), or on the
second (2nd) next business day after deposit if sent by a recognized overnight
delivery service or upon transmission if sent by telecopy or facsimile
transmission (with request of assurance of receipt in a manner customary for
communication of such type) as follows:
If to CIC:
Communities Investor Corp.
00000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Attention: President
If to CILP:
Communities Investor Limited Partnership
00000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Attention: President
If to Newco:
00000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Attention: President
If to an Equity Owner or Lender:
To such Equity Owner's or Lender's address as set forth on the books
and records of Newco.
Upon request, each Equity Owner shall be entitled to receive a list
of all Equity Owners and their addresses.
12.5 Counterparts. This Agreement may be executed in two (2) or more
counterparts and each counterpart shall be deemed to be an original and which
counterparts together shall constitute one and the same agreement of the
Parties.
12.6 Section Headings. Headings contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit or extend the scope
or intent of this Agreement or any provision hereof.
12.7 Relationship of Parties. Nothing in this Agreement is intended, nor
shall it be construed, to create any partnership, joint venture or any other
relationship among the Parties or any of them not expressly set forth herein.
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12.8 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the
principles of conflicts of law of such State. The Parties agree that any
litigation relating- to this Agreement shall be brought in a state court of the
State of Delaware or a federal court in the district which sits in the State of
Delaware. Each Party hereby consents to personal jurisdiction in any such action
or proceeding brought in any such State or federal court, consents to service of
process by mail made upon such Party and such Party's agent (or in any other
manner permitted by the rules of the court in which the action or proceeding is
brought) and waives any objection to venue in any such court or to any claim
that any such court is an inconvenient forum.
12.9 No Waiver of Breach. The failure of any Party to require the
performance of any of the terms of this Agreement or the waiver by any Party of
any breach under this Agreement shall neither prevent a subsequent enforcement
of such term nor be deemed a waiver of any other breach.
12.10 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors and assigns.
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IN WITNESS WHEREOF, each of the Parties has executed this Agreement, as of
the date and year first above written.
COMMUNITIES INVESTOR CORP.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------------
Its: Authorized Officer
---------------------------------------------
HARTSEL RANCH CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------------
Its: Vice President
---------------------------------------------
KAMEHAMEHA ACTIVITIES ASSOCIATION
By: /s/ Xxxxxxx X.X. Xxxx
----------------------------------------------
Its: President
---------------------------------------------
CCT Partners II, L.P.
Natasha Partnership
63 BR Partnership
Xxxxxx Xxxxxxxx, as Trustee of Xxxxxx X. XxXxxxxxxx
Flint Trust dated October 27, 1998
Alchemy L.P.
Xxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
By: Xxxxxx Xxx Xxxxx
Its Attorney-In-Fact
By: /s/ Xxxxxx Xxx Xxxxx
------------------------------------------
Its: Attorney-In-Fact
-----------------------------------------
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CITICORP VENTURE CAPITAL, LTD.
By: Xxxxxx Xxx Xxxxx
---------------------------------------------
It: Attorney-in-fact
---------------------------------------------
COMMUNITIES INVESTOR LIMITED PARTNERSHIP,
a Delaware limited partnership
By: COMMUNITIES INVESTOR CORP.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Its: Authorized Officer
---------------------------------------
XXXX X. AND XXXXXXXXX X. XXXXXXXXX
FOUNDATION
By: Xxx Huttan
---------------------------------------------
Its: Vice President
--------------------------------------------
BANCBOSTON INVESTMENTS, INC.
By: /s/ Xxxx Xxxxxx X'Xxxxxx
---------------------------------------------
Its: Vice President
--------------------------------------------
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D & A COMMUNITIES, INC.
By: /s/ Xxxxxx Xxxxxxx, Xx.
---------------------------------------------
Its: President
--------------------------
/s/ Xxxxxx Xxxxxxx, Xx.
-------------------------------------------------
Xxxxxx Xxxxxxx, Xx.
/s/ Xxx X. Xxxxxxxx
-------------------------------------------------
Xxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxxxxx Xxxxxxx, as Personal Representative
of the Estate of Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
-------------------------------------------------
Xxxxx Xxxxxxx, by Xxxxxx X. Xxxx, his
Attorney-In-Fact
/s/ E. Xxxxxx Xxxxx
-------------------------------------------------
E. Xxxxxx Xxxxx
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Xxxxxxxx Family Limited Partnership, by its General
Partner, Chandelle Ventures, Inc.
By: /s/ Xxx X. Xxxxxxxx
----------------------------------------------
Xxx X. Xxxxxxxx, as Trustee
/s/ Xxx X. Xxxxxxxx
---------------------------------------------------
Xxx X. Xxxxxxxx, as Trustee of the Xxx X. Xxxxxxxx
Trust U/T/A dated 12/14/96
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SET II, INC.
By: /s/ Xxx Xxxxxxxx
----------------------------------------------
Its: President and Chief Executive Officer
---------------------------------------------
BANKBOSTON, N.A.
By: /s/ X. Xxxxx
----------------------------------------------
Its: Director
---------------------------------------------
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SCHEDULE A
COMMUNITIES INVESTOR CORP.
CIC STOCKHOLDERS:
HARTSEL RANCH CORPORATION
KAMEHAMEHA ACTIVITIES ASSOCIATION
CCT PARTNERS II, L.P.
63 BR PARTNERSHIP
ALCHEMY L.P.
XXXXX X. XXXXXX
XXXXX X. XXXX
XXXX X. XXXXX
XXXXXX X. XXXXXXXXX
CITICORP VENTURE CAPITAL, LTD.
COMMUNITIES INVESTOR LIMITED PARTNERSHIP
CILP LIMITED PARTNERS:
XXXX X. AND XXXXXXXXX X. XXXXXXXXX
FOUNDATION
KAMEHAMEHA ACTIVITIES ASSOCIATION
CITICORP VENTURE CAPITAL LTD.
CCT PARTNERS II, L.P.
NATASHA PARTNERSHIP
XXXXXX XXXXXXXX, AS TRUSTEE OF THE XXXXXX X. XXXXXXXXXX
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FLINT TRUST DATED OCTOBER 27, 1998
XXXXX X. XXXXXX
XXXXX X. XXXX
XXXX X. XXXXX
XXXXXX X. XXXXXXXXX
BANCBOSTON INVESTMENTS, INC.
XXXXXX XXXXXXX, YR.
XXXXXXXX FAMILY PARTNERSHIP
E. XXXXXX XXXXX
D&A COMMUNITIES, INC.
NEWCO STOCKHOLDERS:
XXXXXX XXXXXXX, XX.
XXX X. XXXXXXXX
XXX X. XXXXXXXX, AS TRUSTEE OF THE XXX X. XXXXXXXX
TRUST U/T/A DATED 12/14/16
XXXXXXX XXXXXXX
XXXXXXXXX XXXXXXX,
XXXXXXX XXXXXXX
XXXXXXXXX XXXXXXX, AS PERSON REPRESENTATIVE OF THE
ESTATE OF XXXXXX XXXXXXX
XXXXX XXXXXXX
E. XXXXXX XXXXX
COMMUNITIES INVESTOR LIMITED PARTNERSHIP
27
