EXHIBIT 7.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of the 31st day of May
2002, by and among Xxxxxxx Xxxx ("Xxxx") and Xxxx X. Cable and Xxxxx X. Cable,
Trustees of the Cable Family Trust (the "Cable Trust") and Xxxx X. Cable,
individually, with reference to the following facts:
RECITALS
X. Xxxx and the Cable Trust are currently shareholders of Xxxxxxx Xxxx
Homes, a Delaware corporation (the "Company").
B. The Cable Trust currently owns 233,793 shares of the Company's Common
Stock and Xxxx X. Cable has options to purchase 50,000 shares of the Company's
Common Stock under the Company's stock option program. For the purposes of this
Agreement, the Cable Trust and Cable shall be collectively referred to as
"Cable," and the Company Common Stock that the Cable Trust currently owns and
hereafter acquires or controls (directly or indirectly), and any Common Stock
that Xxxx X. Cable hereafter acquires or controls (directly or indirectly), in
each case whether through the exercise of stock options, purchases on the open
market or otherwise shall hereinafter be referred to as the "Cable Stock."
C. Cable has agreed to vote the Cable Stock as instructed by Lyon in
accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
1. Voting Agreement. From and after the date of this Agreement and ending
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on the Termination Date (as such term is define in Section 4 below), at any
meeting of the holders of Common Stock of the Company, however called, or in any
other circumstance upon which the vote, consent, or other approval of some or
all of the holders of the Company's Common Stock is sought, Cable hereby agrees
to vote (or cause to be voted) the Cable Stock on all matters, including, but
not limited to, extraordinary transactions, the election of directors, and
changes to the charter documents, in accordance with the instructions of Lyon.
Lyon hereby agrees to vote the shares of the Company's Common Stock that he owns
in the same manner that he has instructed Cable to vote the Cable Stock. In
addition to the other covenants and agreements of Cable provided elsewhere in
this Agreement, Cable shall not enter into any agreement, arrangement, or
understanding with any person or entity to do any of the foregoing, or the
effect of which would be inconsistent or violate the provision of this
Agreement.
2. Stockholder Capacity. Nothing contained herein shall in any way restrict
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or limit Cable from taking any action in any capacity he may have as a director
or officer of the Company or otherwise fulfilling any fiduciary duties that he
may have as a director or officer of the Company. Cable is entering into this
Agreement solely in his capacity as a stockholder of the Company and the
beneficial owner of the Cable Stock. Nothing contained herein shall be
deemed to constitute a transfer of the beneficial ownership of the Cable Stock
by Cable. Except as provided by this Agreement, Cable shall have the full rights
of a shareholder with respect to the Cable Stock.
3. Further Cooperation. Cable and Lyon agree to execute any further
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documents reasonably necessary to effectuate the terms and conditions of this
Agreement or to comply with federal or state securities laws including, without
limitation, a Schedule 13D for filing with the Securities and Exchange
Commission.
4. Termination. This Agreement shall terminate upon that date that either
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Lyon or Cable no longer owns, holds or controls, directly or indirectly, any
Common Stock of the Company (the "Termination Date").
5. Amendments and Waivers. Any term hereof may be amended and the
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observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the parties.
6. Entire Agreement. This Agreement constitutes the entire agreement among
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the parties with regard to the subject hereof, and this Agreement supersedes any
and all prior negotiations, correspondence, understandings and agreements among
the parties respecting the subject matter hereof.
7. Severability. Whenever possible, each provision of this Agreement shall
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be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
8. Governing Law and Venue. This Agreement shall be governed by and
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construed under the laws of the State of Delaware. The parties hereby agree that
any action, suit or proceeding arising in connection with this Agreement shall
be brought only in a court of competent jurisdiction located in Orange County,
California, and such court shall apply Delaware law with respect to such action,
suit or proceeding.
9. Notices. Unless otherwise provided, any notice required or permitted
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under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified by hand or professional
courier service, two (2) days after deposit with the United States Post Office,
by registered or certified mail, postage prepaid, or one (1) day after deposit
with a nationally recognized overnight delivery service, postage prepaid, and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties.
10. Equitable Remedies. Lyon and Cable each acknowledge and agree that the
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legal remedies available to each party in the event any party violates the
covenants and agreements made in this Agreement would be inadequate and that
each party shall be entitled, without
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posting any bond or other security, to temporary, preliminary, and permanent
injunctive relief, specific performance and other equitable remedies in the
event of such a violation, in addition to any other remedies which such party
may have at law or in equity.
11. Counterparts. This Agreement may be executed in any number
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. Acknowledgement by Cable. Cable hereby acknowledges and agrees that
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Lyon is relying on the agreements made by Cable in this Agreement, and that if
Cable did not enter into this Agreement, Lyon would have attempted to enter into
similar agreements with other shareholders of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
/s/ XXXXXXX XXXX
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XXXXXXX XXXX
Address: 0000 Xxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
/s/ XXXX X. CABLE
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XXXX X. CABLE, individually and as Trustee of
the Cable Family Trust
Address: 0 Xxxxxxxxx Xxxx
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Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
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/s/ XXXXX X. CABLE
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XXXXX X. CABLE, Trustee of the Cable Family Trust
Address: 0 Xxxxxxxxx Xxxx
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Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
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