Exhibit 4.1
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "AGREEMENT") is entered into as of
April 3, 2001, by and among Xxxxxxx Homes, Inc., a Delaware corporation
(formerly known as Xxxxxxx Holdings, Inc.) (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 Residential, Inc., a Delaware corporation
(formerly known as Xxxxxxx Homes, Inc.) ("OLD XXXXXXX") and certain other
parties have entered into an Agreement and Plan of Reorganization, dated as of
September 12, 2000, as amended January 15, 2001 (the "REORGANIZATION
AGREEMENT"), which provides for, among other things, the transfer of certain
partnership and memberships interests by the Members to the Company, the merger
of Old Xxxxxxx into 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 COMMON STOCK") and (b) Xxxxx Xxxxxxx
and the other stockholders of Old Xxxxxxx, of the Company's Class A Common
Stock, par value $0.001 per share (the "CLASS A COMMON STOCK").
B. As a condition to the closing of the transactions contemplated by
the Reorganization Agreement, the Company, the LLC, the Members and Xxxxx
Xxxxxxx desire set forth certain agreements governing the relationships amongst
each other.
NOW, THEREFORE, in consideration of the foregoing, and of the
warranties, covenants and agreements contained herein, the parties hereto
agree as follows:
AGREEMENT
1. DEFINITIONS
(a) As used herein, the following terms shall have the following
respective meanings:
(i) "AFFILIATE" have the meanings assigned to such terms in Rule
12b-2 of the General Rules and Regulations under the Exchange Act; PROVIDED,
HOWEVER, that in the case of Apollo, Affiliate shall not include an operating
company in which Apollo has an interest unless Apollo has any contract,
arrangement or understanding with such operating company with respect to any
securities of the Company.
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(ii) A Person shall be deemed the "BENEFICIAL OWNER" of, and shall
be deemed to "BENEFICIALLY OWN" and have "BENEFICIAL OWNERSHIP" of any
securities:
(1) which such Person or any of such Person's Affiliates,
directly or indirectly, has the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (whether or not in writing,
but other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of
securities) or upon the exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise; PROVIDED, HOWEVER, that a
Person shall not be deemed the "Beneficial Owner" of, or to
"Beneficially Own," or have "Beneficial Ownership" of, securities
tendered pursuant to a tender or exchange offer made by such Person or
any of such Person's Affiliates until such tendered securities are
accepted for purchase or exchange;
(2) which such Person or any of such Person's Affiliates,
directly or indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not
in writing; PROVIDED, HOWEVER, that a Person shall not be deemed the
"Beneficial Owner" of, or to "Beneficially Own," or have "Beneficial
Ownership" of, any security under this paragraph (2) as a result of an
agreement, arrangement or understanding to vote such security if such
agreement, arrangement or understanding: (A) arises solely from a
revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
provisions of the General Rules and Regulations under the Exchange Act,
and (B) is not also then reportable by such Person on Schedule 13D
under the Exchange Act (or any comparable or successor report); or
(3) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate thereof) with which such Person
(or any of such Person's Affiliates) has any agreement, arrangement or
understanding (whether or not in writing, but other than customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities), for the purpose
of acquiring, holding, voting (except pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this paragraph (c)) or
disposing of any shares of Voting Stock of the Company.
(iii) "BOARD" means the Board of Directors of the Company.
(iv) "CERTIFICATE OF INCORPORATION" means the Certificate of
Incorporation of the Company.
(v) "CHANGE OF CONTROL" has the meaning assigned to such term in
the Senior Notes Indenture.
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(vi) "CLASS A DIRECTORS" means the directors serving of the Board
who are elected by the Class A Stockholders.
(vii) "CLASS A STOCKHOLDERS" means the holders of Class A Common
Stock.
(viii) "CLASS B DIRECTORS" means the persons serving on the Board
who are elected by the Class B Stockholders.
(ix) "CLASS B STOCKHOLDERS" means the holders of Class B Common
Stock.
(x) "PERSON" means any individual, firm, corporation,
partnership, limited liability company or other entity.
(xi) "RISK EVENT" has the meaning assigned to such term in the
Subordinated Debentures Indenture.
(xii) "SENIOR NOTES" means Old Xxxxxxx'x currently outstanding 9%
Senior Notes, due 2008, issued pursuant to the Senior Notes Indenture.
(xiii) "SENIOR NOTES INDENTURE" means the Indenture, dated as of May
6, 1998, by and between Old Xxxxxxx and U.S. Trust Company of California,
N.A., as trustee.
(xiv) "SUBORDINATED DEBENTURES" means Old Xxxxxxx'x currently
outstanding 6.5% Convertible Subordinated Debentures, due 2003, issued
pursuant to the Subordinated Debentures Indenture.
(xv) "SUBORDINATED DEBENTURES INDENTURE" means the Indenture,
dated as of January 15, 1993, by and between Old Xxxxxxx and Pacific Century
Trust, as successor trustee to Xxxxxx Trust Company, Limited.
(xvi) "VOTING STOCK" means Class A Common Stock, Class B Common
Stock, any other security generally entitled to vote for the election of
directors of the Company and any outstanding convertible securities, options,
warrants or other things which are convertible into or exchangeable or
exercisable for securities entitled to vote for the election of directors of
the Company.
(b) Capitalized terms used herein which are not defined herein shall
the meanings assigned to them in the Reorganization Agreement.
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2. TERM OF AGREEMENT.
This Agreement will continue in full force and effect until the
later to occur of (a) the date upon which the Senior Notes are no longer
outstanding and (b) the fifth anniversary of the date hereof.
3. TRANSFER OF VOTING STOCK.
(a) Xxxxx Xxxxxxx shall not sell, assign or transfer, or otherwise
dispose of, any shares of Class A Common Stock if such sale, assignment,
transfer or disposition would result in the occurrence of a Change of Control
while any Senior Note remains outstanding or a Risk Event while any
Subordinated Debenture remains outstanding. Notwithstanding the preceding
sentence, neither Xxxxx Xxxxxxx nor any of his Affiliates shall be obligated
to dispose of any shares of Class A Common Stock to the extent that the
percentage of the issued and outstanding shares of Voting Stock (or any class
thereof) Beneficially Owned by Xxxxx Xxxxxxx and his Affiliates is increased
as a result of a recapitalization of the Company or any other action taken by
the Company, the LLC or any Member. So long as any Senior Note remains
outstanding, Xxxxx Xxxxxxx shall not sell, assign, transfer or otherwise
dispose of any shares of Class A Common Stock if such sale, assignment,
transfer or disposition would result in Xxxxx Xxxxxxx Beneficially Owning a
number of shares of Class A Common Stock which is less than the lesser of (i)
seventy percent (70%) of the number of shares of Class B Common Stock
allocated to Apollo on the date hereof pursuant to the operating agreement of
the LLC and (ii) the number of shares of Class A Common Stock or Class B
Common Stock then Beneficially Owned by Apollo plus one share
(b) None of the LLC, any Member or any Affiliate thereof shall sell,
assign or transfer, or otherwise dispose of, any shares of Voting Stock if
such sale, assignment, transfer or disposition (including as a result of a
later conversion of Class B Common Stock by the transferee thereof) would
result in the occurrence of a Change of Control while any Senior Note remains
outstanding or a Risk Event while any Subordinated Debenture remains
outstanding. None of the LLC, any Member or any Affiliate thereof shall,
directly or indirectly, acquire Beneficial Ownership of any shares of Voting
Stock (including as a result of a conversion of Class B Common Stock) if such
acquisition would result in the occurrence of a Change of Control while any
Senior Note remains outstanding or a Risk Event while any Subordinated
Debenture remains outstanding. Notwithstanding the preceding sentence, none
of the LLC, any Member or any Affiliate thereof shall be obligated to dispose
of any shares of Voting Stock to the extent that the percentage of the issued
and outstanding shares of Voting Stock (or any class thereof) Beneficially
Owned by the LLC, any such Member and/or any such Affiliate is increased as a
result of a recapitalization of the Company or any other action taken by the
Company or Xxxxx Xxxxxxx.
(c) The LLC shall be dissolved on or before the date that is two days
subsequent to the second anniversary of the Closing Date.
(d) The LLC and Apollo may not, directly or indirectly, sell, assign or
transfer, or otherwise dispose of, more than seventy percent (70%) of the
number of shares of
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Class B Company Stock allocated to Apollo on the date hereof pursuant to the
operating agreement of the LLC to a single Person or related group of Persons.
(e) Notwithstanding anything to the contrary herein, none of Xxxxx
Xxxxxxx, the LLC, any Member or an Affiliate thereof shall, directly or
indirectly, sell, assign or transfer, or otherwise dispose of, any shares of
Class A Common Stock or Class B Common Stock prior to the end of the period
ending nine months from the date hereof (the "LOCK-UP PERIOD"); PROVIDED,
HOWEVER, that during the Lock-Up Period (but subject to subsection 3(a) and
3(b)), (i) Xxxxx Xxxxxxx may, sell, assign or transfer, or otherwise dispose
of, (A) any shares of Class A Common Stock to the Foundation, the Xxxxx X.
Xxxxxxx Revocable Living Trust, the Xxxxx X. Xxxxxxx 1998 Qualified Annuity
Trust, Xxxxx X. Xxxxxxx in his individual capacity and/or any other trust of
which Xxxxx X. Xxxxxxx is the sole trustee and (B) up to an aggregate of
1,000,000 shares of Class A Common Stock to (I) any other Persons who are
members of the Xxxxxxx Family (as defined in the Senior Notes Indenture) and
who agree in writing not to, directly or indirectly, sell, assign or
transfer, or otherwise dispose of, any such shares during the Lock-Up Period
and (II) the management personnel of the Company, (ii) the LLC and any Member
may sell, assign or transfer, or otherwise dispose of, any shares of Class A
Common Stock or Class B Common Stock to those individuals listed on Exhibit A
hereto pursuant to the terms of the operating agreement of the LLC and (iii)
Xxxxx Xxxxxxx, the LLC, any Member or an Affiliate thereof may otherwise make
a bona fide pledge of any shares of Class A Common Stock or Class B Common
Stock to any pledgee who agrees in writing not to, directly or indirectly,
sell, assign or transfer, or otherwise dispose of, any such shares during the
Lock-Up Period. Nothing in this subsection 3(e) shall be deemed to prevent
the transfer by Blackacre of its membership interest in the LLC to any entity
that is directly or indirectly controlled by Xxxxxxx Xxxxxxxx or to prevent
the bona fide pledge by Blackacre (or a transferee of Blackacre that is
directly or indirectly controlled by Xxxxxxx Xxxxxxxx) of its membership
interest in the LLC.
(f) Xxxxx Xxxxxxx, the LLC, any Member or any Affiliate thereof shall
provide to the Company prompt written notice of any purchase, sale,
assignment or transfer, or other disposition of, by such Person of any Voting
Stock. Upon receipt of such notice, the Company shall promptly provide the
transferee of such Voting Stock with reasonable written notice of the
existence of the Change of Control and Risk Event provisions under the Senior
Notes Indenture and the Subordinated Debentures Indenture, respectively.
(g) Neither Xxxxxxx, the Company nor any of their Affiliates shall
purchase or sell any Class A Common Stock or Class B Common Stock during (i)
the period thirty (30) trading days prior to and thirty (30) trading days
after the first anniversary of the Closing Date and (ii) the period sixty
(60) trading days prior to (a) December 31, 2002 or (b) such other date as
the LLC may give written notice will be the date of its dissolution (to the
extent Xxxxxxx and the Company receive written notice during such period).
4. ACTING IN CONCERT WITH OTHER PARTIES; PROXY SOLICITATIONS.
(a) So long as the LLC remains in existence, except pursuant to this
Agreement, none of the parties hereto or any Affiliates thereof shall deposit
any shares of Voting Stock in a voting trust or subject any shares of Voting
Stock to any arrangement or agreement
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with respect to the voting of such shares of Voting Stock (other than shares
of Class B Common Stock held by the LLC).
(b) So long as the LLC remains in existence, none of the parties hereto
or any Affiliates thereof shall join a partnership, limited partnership,
syndicate or other group, or otherwise act in concert with any other Person
(except with respect to the Members' ownership of the LLC), for the purpose
of acquiring, holding, voting or disposing of shares of Voting Stock.
(c) So long as the LLC remains in existence, none of the parties hereto
or any Affiliates thereof shall solicit proxies or become a "participant" in
a "solicitation" (as such terms are defined in Regulation 14A (or any
successor regulation or rule) under the Securities Exchange Act of 1934, as
amended) in opposition to the recommendation of the majority of the directors
of the Company with respect to any matter.
5. DESIGNATION OF DIRECTORS.
(a) Following the automatic conversion of all Class B Common Stock into
Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of
the Certificate of Incorporation: (i) the Board shall adopt an amendment to
the Bylaws of the Company establishing nine as the number of directors which
shall constitute the whole Board and (ii) the Class B Directors serving on
the Board immediately preceding such conversion shall continue to serve on
the Board as Class A Directors until their successors are duly elected and
qualified or until their earlier death, resignation or removal.
(b) From and after the automatic conversion of all Class B Stock into
Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the
Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member
Beneficially Owns one-ninth (1/9) or more of the total number of the then
issued and outstanding shares of Class A Common Stock, such party shall have
the option, in its sole discretion, to notify the Company of such party's
designee or designees to be included in the slate of nominees to be
recommended by the Board to the stockholders for election as a director or
directors at the next meeting of stockholders of the Company held to elect
directors. The Board or its nominating committee shall include such designee
or designees in the slate of nominees to be recommended by the Board to the
stockholders for election as a director or directors at the next meeting of
the stockholders of the Company held to elect directors; PROVIDED, HOWEVER,
that the maximum number of persons so designated by such party shall be equal
to the result (rounded to the nearest whole number) of applying the following
formula:
(The number of outstanding shares of Class A Common Stock
Beneficially Owned by such party / the total number of issued and
outstanding shares of Class A Common Stock) x 9
(c) At any time a Person who has been designated by Apollo and is not
otherwise a Person whose primary business is the design, construction,
marketing and/or selling of single-family homes, townhomes and/or
condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a
transfer of Class A Common Stock or Class B Common Stock by Apollo to such
Eligible Holder, one-ninth (1/9) or more of the total number of the then
issued and
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outstanding shares of Class A Common Stock and Class B Common Stock, taken in
the aggregate, such Eligible Holder shall have the option, in its sole
discretion, to notify the Company of such Eligible Holder's designee to be
included in the slate of nominees to be recommended by the Board to the
stockholders for election as a director at the next meeting of stockholders
of the Company held to elect directors, provided that such Eligible Holder
continues to hold such number of shares through the date of such meeting. The
Board or its nominating committee shall include such designee in the slate of
nominees to be recommended by the Board to the stockholders for election as a
director at the next meeting of the stockholders of the Company held to elect
directors. Notwithstanding anything to the contrary contained herein, an
Eligible Holder shall not be entitled to designate more than one such
designee. Notwithstanding anything to the contrary contained herein, Apollo
may designate only one Person as an Eligible Holder during the term of this
Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall
limit Apollo's other rights to designate directors in accordance with
subsection 5(b).
(d) In the event that a person nominated and elected to the Board
pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for
any reason, a successor shall be designated and nominated in the same manner
and procedure as such former director was designated and nominated pursuant
to subsection 5(b) or 5(c).
(e) With respect to any Class A Director seat on the Board which is not
to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall
recommend to the stockholders of the Company for election as a director any
person designated by a majority of the Board to fill such seat.
(f) Each party hereto shall take such action as may be required so that
all Class A Common Stock Beneficially Owned by it and all its Affiliates are
voted, at any meeting of the stockholders of the Company held to elect
directors, for the persons nominated to the Board pursuant to subsection
5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A
Stockholders, shall be present, in person or by proxy, at all meetings of
stockholders of the Company so that all Class A Common Stock Beneficially
Owned by such party and its Affiliates may be counted for the purpose of
determining the presence of a quorum at such meetings.
(g) Upon request by Apollo, one of the directors designated by Apollo in
accordance with subsection 5(b) shall (i) serve on the Compensation Committee
of the Board so long as such director is an independent director under
Delaware law (it being agreed that being an employee or otherwise a
representative of Apollo shall not by itself disqualify any such director
from being independent) and (ii) serve on the Executive Committee, if any, of
the Board (it being agreed that the Company shall be under no obligation to
establish an Executive Committee).
6. MISCELLANEOUS.
(a) If the Company shall request in writing, the LLC, the Members or
Xxxxx Xxxxxxx, as applicable, shall present or cause to be presented promptly
all certificates representing shares of Voting Stock acquired by such party
and its Affiliates for the placement
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thereon of the following legend, which will remain thereon as long as such
shares of Voting Stock are subject to the restrictions contained in this
Agreement:
"The securities represented by this certificate are subject to
the provisions of a Stockholders Agreement, dated as of April 3,
2001, by and among by and among XXXXXXX HOMES, INC., a Delaware
corporation, WPH-Xxxxxxx, LLC, a Delaware limited liability company,
Apollo Real Estate Investment Fund, L.P., a Delaware limited
partnership, Blackacre WPH, LLC, a Delaware limited liability
company, Highridge Pacific Housing Investors, L.P., a California
limited partnership, The Xxxxx and Xxxxxxxx Xxxxxxx Foundation, a
Hawaii non-profit corporation, and Xxxxx X. Xxxxxxx, as sole trustee
for the Xxxxx X. Xxxxxxx Revocable Living Trust and the Xxxxx X.
Xxxxxxx 1998 Qualified Annuity Trust, and may not be sold or
transferred except in accordance therewith. A copy of said Agreement
is on file at the office of the Corporate Secretary of XXXXXXX
HOMES, INC..
The Company may enter a stop transfer order with the transfer agent or agents of
Voting Stock against the transfer of shares of Voting Stock except in compliance
with the requirements of this Agreement. The Company agrees to remove promptly
any stop transfer order with respect to, and issue promptly unlegended
certificates in substitution for, certificates for any shares of Voting Stock
that are no longer subject to the restrictions contained in this Agreement.
(b) 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:
(i) if to the Company and Xxxxx Xxxxxxx:
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, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
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(ii) if to the LLC or the Members:
Xxxxxx Xxxxxxxxx
c/o Western Pacific Housing
000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
AND
Xxxx Xxxxxxxxxxxxx
Apollo Real Estate Advisors
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 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, Xxxxxxxxxx 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) When a reference is made in this Agreement to a Section and
subsection, such reference shall be to a Section or subsection 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
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Section. All capitalized terms defined herein are equally applicable to both
the singular and plural forms of such terms.
(d) 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 hereto. 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 the transactions contemplated hereby are fulfilled to the greatest
extent possible.
(e) This Agreement may not be assigned by operation of law or otherwise.
(f) This Agreement is for the sole benefit of the parties hereto and
nothing herein expressed or implied shall give or be construed to give to any
Person, other than the parties hereto, any legal or equitable rights or
remedies hereunder.
(g) This Agreement may not be amended or modified except by an
instrument in writing signed by all of the parties hereto.
(h) 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.
(i) 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.
(j) 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).
(k) Notwithstanding any other provision of this Agreement, each party
acknowledges and agrees that irreparable damage would occur in the event any
of the provisions, of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed
that the parties hereto shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in either the Delaware Chancery
Court or the United States District Court for Delaware.
(l) Except as otherwise provided in subsection 6(k) above, any dispute,
controversy or claim among 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
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damages, including claims in tort, whether arising before or after the
termination of this Agreement, 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 parties thereunder shall be deemed to be the Company, the LLC,
Apollo, Blackacre, Highridge and Xxxxx Xxxxxxx.
(m) Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of (i) the Delaware Chancery Court, and (ii) the United States
District Court for Delaware, for the purposes of either an injunction action or
confirming, modifying or vacating any alternative dispute resolution award
provided in accordance with subsection 6(l) above ("Award Action"). Each of the
parties 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 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
subsection 6(b) above 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 subsection 6(m). Each of the parties irrevocably and
unconditionally waives any objection to the laying of venue of any Award Action
arising out of this Agreement in the Delaware Chancery Court, or 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.
(n) Each party hereto irrevocably and unconditionally waives trial by
jury in any Action relating to this Agreement, any transaction contemplated
hereby, and for any counterclaim with respect thereto.
(o) This Agreement may be executed in one or more counterparts, and by
the different parties 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.
(p) This Agreement constitutes the entire agreement and supersedes all
prior agreements and undertakings, both written and oral, among the parties
hereto with respect to the subject matter hereof.
[Signature Page Follows]
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The parties have executed this Agreement as of the date first above
written.
XXXXXXX HOMES, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx
Its Senior Vice President and
Chief Financial Officer
WPH-XXXXXXX, LLC,
a Delaware limited liability company
By: ESR HOUSING, INC.,
a Delaware corporation,
Its Administrative Manager Member
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Xxxxxx Xxxxxxxx
Its Treasurer
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: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
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: /s/ Xxxxxx X. Xxxxxx
-----------------------------
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: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
Its CFO and Secretary
THE XXXXX AND XXXXXXXX XXXXXXX
FOUNDATION, a Hawaii non-profit
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx
Its Chairman
13
XXXXX X. XXXXXXX, as sole trustee for the
Xxxxx X. Xxxxxxx Revocable Living Trust
and the Xxxxx X. Xxxxxxx 1998 Qualified
Annuity Trust
/s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx
14
EXHIBIT A
Xxxxx Xxxxxxxx
Xxx Xxxxxxxx
Xxxx Xxxxxx
Xx Xxxxxxxx
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxx Xxxxx
15
