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
10
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. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
Its Chairman
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XXXXX X. XXXXXXX, as sole trustee
for the Xxxxx X. Xxxxxxx Revocable
Living Trust and the Xxxxx X.
Xxxxxxx 1998 Qualified Annuity
Trust
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
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EXHIBIT A
Xxxxx Xxxxxxxx
Xxx Xxxxxxxx
Xxxx Xxxxxx
Xx Xxxxxxxx
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxx Xxxxx
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