Exhibit 3
[Form B]
VOTING AGREEMENT
VOTING AGREEMENT, dated as of August 28, 2000, between Hovnanian
Enterprises, Inc., a Delaware corporation ("Parent"), and WHI Holding Co.,
Inc., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger
Sub"), on the one hand, and each of the stockholders of the Company (as
hereinafter defined) set forth on the signature pages hereto (each, a
"Principal Stockholder"), on the other hand.
RECITALS
Concurrently herewith, Parent, Merger Sub and Washington
Homes, Inc., a Maryland corporation (the "Company"), are entering into an
Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), providing for the merger of the
Company with and into Merger Sub (the "Merger"), upon the terms and subject
to the conditions set forth in the Merger Agreement.
As of the date hereof, each Principal Stockholder is the
record and beneficial owner of the number of shares of common stock, par
value $0.01 per share (the "Company Common Stock"), of the Company set forth
opposite his, her or its name on the signature page of this Agreement (such
Company Common Stock, together with any shares of Company Common Stock or
other voting stock of the Company acquired after the date hereof and prior to
the termination hereof, whether upon the exercise of options, conversion of
convertible securities or otherwise, are the "Shares"), representing in the
aggregate 27.4% of the aggregate issued and outstanding shares of Company
Common Stock.
As a condition of its willingness to enter into the Merger
Agreement, Parent has requested that each Principal Stockholder enter into
this Agreement.
Prior to the date hereof, Parent and the Principal
Stockholders had no agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of the Shares.
AGREEMENT
To implement the foregoing and in consideration of the
mutual agreements contained herein, the parties agree as follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. (a) The Principal Stockholders
hereby agree during the term of this Agreement that each shall, and shall
cause the holder of record on any applicable record date to, at the request
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of Parent, at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of stockholders of the Company, however
called, or in connection with any written consent of the holders of Company
Common Stock, (a) if a meeting is held, appear at such meeting or otherwise
cause the Shares to be counted as present thereat for purposes of
establishing a quorum, and (b) vote or consent (or cause to be voted or
consented), in person or by proxy, all Shares, and any other voting
securities of the Company (whether acquired heretofore or hereafter) that are
beneficially owned or held of record by the Principal Stockholders or as to
which the Principal Stockholders have, directly or indirectly, the right to
vote or direct the voting (collectively, the "Subject Shares"), in favor of
the approval and adoption of the Merger Agreement, the Merger and the
transactions contemplated thereby. Each of the Principal Stockholders
further agrees to use his, her or its best reasonable good faith efforts to
cause the shareholders of the Company to approve the Merger and the
transactions and matters contemplated in connection therewith and to not,
directly or indirectly, solicit or encourage any offer from any party
concerning the possible disposition of all or any substantial portion of its
business, assets or capital stock. In the event the Company's board of
directors does not call a meeting of its shareholders to approve the Merger
and the transactions and matters contemplated in connection therewith, each
Principal Stockholder agrees to take all action permitted under the Restated
Articles of Incorporation, as amended and supplemented, and By-laws of the
Company and under Maryland law necessary to call a meeting of its
stockholders to approve the Merger and the transactions and matters
contemplated in connection therewith.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the stockholders
of the Company vote or consent or in connection with which other such
approval is sought, each Principal Stockholder shall vote the Subject Shares
against (i) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement and (ii)
any action or agreement (other than the Merger Agreement or the transactions
contemplated thereby) that is intended to or could reasonably be expected to
impede, interfere with, delay, postpone or attempt to discourage the Merger,
including, but not limited to: (A) any extraordinary corporate transaction
(other than the Merger Agreement and the Merger), such as a merger,
consolidation or other business combination involving the Company and its
subsidiaries, any sale or transfer of a material amount of assets of the
Company or its subsidiaries or of capital stock of the Company, any
reorganization, recapitalization or liquidation of the Company or its
subsidiaries or any other Competitive Proposal (as further described in
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Section 4.4); (B) any change in the management or board of directors of the
Company, except as otherwise agreed to in writing by Parent; (C) any material
change in the present capitalization or dividend policy of the Company; (D)
any amendment to the Company's Restated Articles of Incorporation, as amended
and supplemented, or By-laws or other proposal or transaction involving the
Company or any of its subsidiaries, which amendment or other proposal or
transaction changes in any manner the voting rights of any class of the
Company's capital stock or is intended or could reasonably be expected to
impede, frustrate, prevent, delay or nullify (1) the ability of the Company
to consummate the Merger or (2) any of the transactions contemplated by this
Agreement or the Merger Agreement and (E) any other material change in the
Company's corporate structure or business. Each Principal Stockholder
further agrees not to commit or agree to take any action inconsistent with
the foregoing.
1.2 Proxy. Each Principal Stockholder agrees to grant to
Parent a proxy to vote the Subject Shares as indicated in Section 1.1 above
if any Principal Stockholder fails for any reason to vote the Subject Shares
in accordance with Section 1.1. Each Principal Stockholder agrees that such
proxy would be irrevocable and would be coupled with an interest and agrees
that it will take such further action or execute such other instruments as
may be necessary or desirable to effectuate the intent of such a proxy and
hereby revokes any proxy previously granted by it with respect to the Subject
Shares.
1.3 No Inconsistent Agreements. Each Principal Stockholder
hereby covenants and agrees that, except as contemplated by this Agreement
and the Merger Agreement, each Principal Stockholder (a) has not entered, and
shall not enter at any time while this Agreement remains in effect, into any
voting agreement or voting trust with respect to the Shares and (b) has not
granted, and shall not grant at any time while this Agreement is in effect, a
proxy or power of attorney with respect to the Shares, in either case, which
is inconsistent with his, her or its obligations pursuant to this Agreement.
1.4 Suspension of Voting Obligations. Notwithstanding
anything to the contrary in this Agreement, the obligations of each Principal
Stockholder set forth in this Article I (but not the other obligations of the
Principal Stockholders hereunder including, for the avoidance of any doubt,
the obligations of the Principal Stockholders set forth in Article IV, except
as otherwise provided in Sections 4.1(c) and 4.4(b) below) shall be
suspended, and neither the Company nor Merger Sub shall be entitled to
enforce the same, if, but only so long as, there exists an unsolicited bona
fide written competitive proposal (as defined in the Merger Agreement) with
respect to the Company and its subsidiaries in their entirety from a Person
(other than (i) any Person that had been furnished with access to any of the
properties, books or records of the Company or any of its subsidiaries or
otherwise provided with non-public information relating to the Company or any
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of its subsidiaries prior to the date hereof in respect of such Person or any
of its affiliates making or considering making a competitive proposal or (ii)
any affiliate of a Person identified in clause (i)) that the independent
directors of the Company have concluded in good faith (after consultation
with the Company's financial advisors) would, if consummated, provide greater
aggregate value to the Company's stockholders (in their capacity as
stockholders), from a financial point of view, than the transactions
contemplated by the Merger Agreement and for which any required financing is
committed or which, in the good faith judgment of the independent directors
of the Company (after consultation with the Company's financial advisors), is
reasonably capable of being financed by the Person making such competitive
proposal (such competitive proposal being hereinafter referred to as a
"Superior Proposal"). For purposes of this Section 1.4 the "independent
directors of the Company" shall mean all members of the Board of Directors of
the Company who are neither employees of, or consultants to (other than in
their capacity as Board members), the Company nor members of the DeCesaris
family.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL STOCKHOLDERS
2.1 Authorization; Validity of Agreements; Necessary
Action. (a) Each Principal Stockholder has full power and authority to
execute and deliver this Agreement, to perform his, her or its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution, delivery and performance by each Principal Stockholder of this
Agreement and the consummation by him, her or it of the transactions
contemplated hereby have been duly and validly authorized by and no other
actions or proceedings on the part of any Principal Stockholder are necessary
to authorize the execution and delivery by him, her or it of this Agreement
and the consummation by each of the Principal Stockholders of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by each Principal Stockholder, and, assuming this Agreement
constitutes a valid and binding obligation of Parent, constitutes a valid and
binding obligation of the Principal Stockholders, enforceable against it in
accordance with its terms, except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(b) No broker, investment banker, financial adviser or
other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
person in his capacity as such.
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(c) The Principal Stockholders understand and acknowledge
that Parent is entering into the Merger Agreement in reliance upon such
Principal Stockholders' execution and delivery of this Agreement with Parent.
2.2 The Subject Shares. The shares of Company Common Stock
are, and all of each Principal Stockholder's Shares from the date hereof
through and on the Closing Date (as defined in the Merger Agreement) and have
been and will be, owned beneficially and of record by each Principal
Stockholder and as is set forth opposite such Principal Stockholder's name on
the signature page hereto. As of the date hereof, the shares of Company
Common Stock constitute all of the Shares owned of record or beneficially by
the Principal Stockholders. Each Principal Stockholder has or will have sole
voting power, sole power of disposition, sole power to issue instructions
with respect to the matters set forth in Article I hereof, and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the shares of Company Common Stock on the Closing Date (as
defined in the Merger Agreement), with no limitations, qualifications or
restrictions on such rights, subject to applicable federal securities laws
and the terms of this Agreement.
2.3 Additional Subject Shares; Adjustments. Each Principal
Stockholder hereby agrees, while this Agreement is in effect, to promptly
notify Parent of the number of any new Subject Shares acquired by such
Principal Stockholder, if any, after the date hereof. In the event of a
stock dividend or distribution, or any change in the Company's Common Stock
by reason of any stock dividend, split-up, recapitalization, combination or
the exchange of shares, the term "Subject Shares" shall be deemed to refer to
and include the Subject Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the
Subject Shares may be changed or exchanged.
2.4 No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by any Principal
Stockholder and the consummation by such Principal Stockholder of the
transactions contemplated hereby (other than (i) filings under the DGCL and
the MGCL required to effect the Merger, (ii) the filing of a pre-merger
notification and report form under the HSR, (iii) the filing of the
Registration Statement, the Proxy Statement and the Information Statement by
Parent in connection with the Merger, or (iv) as otherwise contemplated by
the Merger Agreement) and neither the execution and delivery of this
Agreement by any Principal Stockholder nor the consummation by any Principal
Stockholder of the transactions contemplated hereby nor compliance by the
Principal Stockholders with any of the provisions hereof shall conflict with
or result in any breach of any organizational documents applicable to any of
the Principal Stockholders, result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to
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any third-party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which any Principal Stockholder is a party or by which his, her or its
properties or assets may be bound or violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to any
Principal Stockholder or any of his, her or its properties or assets.
2.5 No Liens. The shares of Company Common Stock are held
by each Principal Stockholder, or by a nominee or custodian for the exclusive
benefit of such Principal Stockholder, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any
encumbrances arising hereunder and agreements existing prior to the date
hereof between a Principal Stockholder and the Company, as the same may be
amended pursuant to this Agreement.
2.6 Fiduciary Duties. Notwithstanding anything in this
Agreement to the contrary, the covenants and agreements set forth in this
Agreement shall not be deemed to prevent Paul Sukalo from taking any action,
subject to the applicable provisions of the Merger Agreement, while acting in
his capacity as director of the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
3.1 Representations and Warranties of Parent and Merger
Sub. Parent and Merger Sub jointly and severally represent and warrant to
each Principal Stockholder as follows:
(a) Power: Binding Agreement. Parent and Merger Sub have
full corporate power and authority to execute and deliver this Agreement and
to perform all of their respective obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by Parent and
Merger Sub and constitutes a valid and binding agreement of Parent and Merger
Sub, enforceable against each of them in accordance with its terms, except
that (i) such enforcement may be subject to applicable bankruptcy, insolvency
or other similar laws, now or hereafter in effect, affecting creditors'
rights generally, and (ii) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding therefor may be
brought.
(b) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by Parent or
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Merger Sub and the consummation by Parent or Merger Sub of the transactions
contemplated hereby (other than (i) filings under the DGCL and the MGCL
required to effect the Merger, (ii) the filing of a pre-merger notification
and report form under the HSR, (iii) the filing of the Registration Statement
and the Information Statement by Parent and the Company in connection with
the Merger, or (iv) as otherwise contemplated by the Merger Agreement) and
neither the execution and delivery of this Agreement by Parent or Merger Sub
nor the consummation by Parent or Merger Sub of the transactions contemplated
hereby nor compliance by Parent or Merger Sub with any of the provisions
hereof shall conflict with or result in any breach of any organizational
documents applicable to Parent or Merger Sub, as the case may be, result in a
violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third-party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which Parent or
Merger Sub is a party or by which Parent's or Merger Sub's properties or
assets may be bound or violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to Parent or Merger Sub or any
of Parent's or Merger Sub's properties or assets.
ARTICLE IV
OTHER COVENANTS
4.1 Further Agreements of the Principal Stockholders. (a)
Each Principal Stockholder, severally and not jointly, agrees not to (i)
sell, transfer, encumber, pledge, assign or otherwise dispose of (including
by gift, merger, testamentary disposition, interspousal disposition (pursuant
to domestic relations proceeding or otherwise) or otherwise by operation of
law ("Transfer")), or enter into any contract, option or other arrangement or
understanding (including any profit sharing arrangement) with respect to the
Transfer of, any of the Shares or any interest therein to any person other
than pursuant to the terms hereof or the Merger Agreement, (ii) except as
contemplated hereby, grant any proxy or power of attorney, enter into any
voting trust, arrangement or understanding or otherwise transfer voting
power, with respect to the Shares or any interest therein to any other person
other than Parent, (iii) take any action that would make any of his, her or
its representations or warranties contained herein untrue or incorrect in any
material respect, or have the effect of preventing or disabling such
Principal Stockholder from performing his, her or its obligations under this
Agreement or (iv) commit or agree to take any of the foregoing actions.
(b) In furtherance of this Agreement, concurrently
herewith, each Principal Stockholder shall and hereby does authorize the
Company's counsel to notify the Company's transfer agent that there is a stop
transfer order with respect to all of the Shares and that this Agreement
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places limits on the voting and transfer of such shares. Each Principal
Stockholder agrees that within ten business days after the date hereof, such
Principal Stockholder will no longer hold any Shares in "street name" or in
the name of any nominee. If requested by Parent, each Principal Stockholder
agrees to submit to Parent contemporaneously with or promptly following
execution of this Agreement all certificates representing the Shares so that
Parent may note thereon a legend referring to the option, proxy and other
rights granted to it by this Agreement. If any of the Shares beneficially
owned by such Principal Stockholder are held of record by a brokerage firm in
"street name" or in the name of any other nominee (a "Nominee," and, as to
such Shares, "Nominee Shares"), each Principal Stockholder agrees that, upon
written notice by Parent requesting it, such Principal Stockholder will
within five days of the giving of such notice execute and deliver to Parent a
limited power of attorney in such form as shall be reasonably satisfactory to
Parent enabling Parent to require the Nominee to (i) grant to Parent the
irrevocable proxy to the same effect as Articles I and II hereof with respect
to the Nominee Shares held by such Nominee and (ii) submit to Parent the
certificates representing such Nominee Shares for notation of the above-
referenced legend thereon.
(c) Notwithstanding anything to the contrary in this
Agreement, if, but only so long as, there exists a Superior Proposal, the
foregoing provisions of this Section 4.1 shall not restrict, and neither
Parent nor Merger Sub shall be entitled to prohibit under the terms of this
Section 4.1, a Transfer by a Principal Stockholder of Shares pursuant to a
tender offer or exchange offer that constitutes a Superior Proposal or any
other Transfer by a Principal Stockholder of Shares pursuant to the terms of
a Superior Proposal.
4.2 Appraisal Rights. Each Principal Stockholder hereby
covenants and agrees that he hereby irrevocably waives and agrees not to
asset any rights of appraisal or rights to dissent from the Merger that such
Principal Stockholder may have.
4.3 Rights of First Refusal. Each Principal Stockholder
hereby covenants and agrees that it hereby irrevocably waives any right of
first refusal, termination provision or similar right that such Principal
Stockholder may have. In addition, each Principal Stockholder hereby
covenants and agrees that it will not exercise any registration rights with
respect to the Company Common Stock from the date of this agreement through
the Effective Time.
4.4 Competitive Proposals. (a) Without limitation on any
of its other obligations under this Agreement, each Principal Stockholder
hereby covenants and agrees that he shall not, directly or indirectly, (i)
initiate, solicit, encourage or knowingly facilitate any inquiries or the
making of any proposal or offer with respect to, or a transaction to effect,
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a competitive proposal (as defined in the Merger Agreement) with respect to
the Company or any of its significant subsidiaries, (ii) have any discussion
with or provide any confidential information or data to any Person relating
to a competitive proposal, or engage in any negotiations concerning a
competitive proposal, or knowingly facilitate any effort or attempt to make
or implement an competitive proposal, in each case with respect to the
Company or any of its significant subsidiaries, (iii) approve, vote in favor
of, consent to or recommend, or propose publicly to approve or recommend, any
competitive proposal with respect to the Company or any of its significant
subsidiaries or (iv) approve, vote in favor of, consent to or recommend, or
propose to approve or recommend, or execute or enter into, any letter of
intent, agreement in principle, merger agreement, acquisition agreement,
option agreement or other similar agreement or propose publicly or agree to
do any of the foregoing related to any competitive proposal with respect to
the Company or any of its significant subsidiaries. The Principal
Stockholders agree that they will promptly keep Parent informed of the status
and terms of any such proposals.
(b) Notwithstanding anything to the contrary in this
Agreement, if, but only so long as, there exists a Superior Proposal, the
obligations of each Principal Stockholder set forth in clauses (iii) and (iv)
of Section 4.4(a) above (but not, for the avoidance of any doubt, the
obligations of the Principal Stockholders set forth in clauses (i) and (ii)
thereof, except as provided in Section 2.6 above) shall be suspended, and
neither the Company nor Merger Sub shall be entitled to enforce the same,
with respect to actions by a Principal Stockholder in connection with a
Superior Proposal.
ARTICLE V
MISCELLANEOUS
5.1 Termination. This Agreement shall terminate on the
first to occur of (i) the Effective Time; (ii) 15 days after the termination
of the Merger Agreement for any reason other than as described in clause
(iii) hereof; (iii) 90 days after the termination of the Merger Agreement in
respect of which Parent is entitled to a payment pursuant to Section 6.06(b)
of the Merger Agreement; or (iv) written notice of termination of this
Agreement by Parent to the Principal Stockholders. Nothing in this Section
5.1 shall relive or otherwise limit any party of liability for breach of this
Agreement. Upon any termination of this Agreement, this Agreement shall
thereupon become void and of no further force and effect, and there shall be
no liability in respect of this Agreement or of any transactions contemplated
hereby on the part of any party hereto or any of its directors, officers,
partners, members, stockholders, employees, agents, advisors, representatives
or affiliates; provided, however, that nothing herein shall relieve any party
from any liability for such party's material breach of this Agreement; and
provided further that nothing in this Section 5.1 shall limit, restrict,
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impair, amend or otherwise modify the rights, remedies, obligations or
liabilities of any person under any other contract or agreement, including,
without limitation, the Merger Agreement.
5.2 Further Assurances. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further
action as may be necessary or appropriate to consummate the transactions
contemplated by this Agreement.
5.3 Noninterference. Each Principal Stockholder hereby
agrees and covenants that he shall not, directly or indirectly, take any
action that would make any representation or warranty contained herein untrue
or incorrect or have the effect of preventing or disabling the Principal
Stockholders from performing its obligations under this Agreement.
5.4 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed duly given (a) on the date
of delivery if delivered personally, or by telecopy or facsimile, upon
confirmation of receipt, (b) on the first Business Day following the date of
dispatch if delivered by a recognized next-day courier service, or (c) on the
tenth Business Day following the date of mailing if delivered by registered
or certified mail, return receipt requested, postage prepaid. All notices
hereunder shall be delivered as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice:
(a) if to Parent of Merger Sub, to:
Hovnanian Enterprises, Inc.
10 Highway 35, P.O. Box 500
Red Bank, New Jersey 07701
Attention: Ara Hovnanian
Facsimile No.: (732) 747-7159
with copies to:
Hovnanian Enterprises, Inc.
10 Highway 35, P.O. Box 500
Red Bank, New Jersey 07701
Attention: Peter Reinhart
Facsimile No.: (732) 747-6835
and
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Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Attention: Vincent Pagano, Esq.
Facsimile No.: (212) 455-2502
(b) if to a Principal Stockholder, to him, her
or it at the address set forth below under
his, her or its signature.
5.5 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that both parties need not sign the same counterpart.
5.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Maryland, without
regard to conflicts of laws principles thereof.
5.7 Submission to Jurisdiction; Waivers. Each Principal
Stockholder, the Parent and Merger Sub irrevocably agree that any legal
action or proceeding with respect to this Agreement or for recognition and
enforcement of any judgment in respect hereof brought by the other party
hereto or its successors or assigns may be brought and determined in any
court of the United States located in the State of Maryland, New York or New
Jersey, or in Maryland, New York or New Jersey state court, and Parent,
Merger Sub and each of the Principal Stockholders hereby irrevocably submit
with regard to any such action or proceeding for itself and in respect to its
of his, her or its property, generally and unconditionally, to the exclusive
jurisdiction of the aforesaid courts. Each Principal Stockholder, Parent and
Merger Sub hereby irrevocably waive, and agree not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (a) any claim that he, she or it is not
personally subject to the jurisdiction of the above-named courts for any
reason other than the failure to lawfully serve process, (b) that he, she or
it or his, her or its property is exempt or immune from jurisdiction of any
such court or from any legal process commenced in such courts (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise), (c) to the
fullest extent permitted by applicable law, that (i) the suit, action or
proceeding in any such court is brought in an inconvenient forum, (ii) the
venue of such suit, action or proceeding is improper and (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts and (d) any right to a trial by jury.
5.8 Amendment. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto.
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5.9 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms. It is accordingly
agreed that the parties shall be entitled to specific performance of the
terms hereof, this being in addition to any other remedy to which they are
entitled at law or in equity, including without limitation injunctive relief.
5.10 Entire Agreement. This Agreement constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Principal Stockholders, Parent and
Merger Sub have executed this Agreement or have caused this Agreement to be
signed by their respective officers or other authorized persons thereunto
duly authorized as of the date first written above.
HOVNANIAN ENTERPRISES, INC.
By: /s/ J. Larry Sorsby
--------------------------------
Name: J. Larry Sorsby
Title: Senior Vice President and CFO
WHI HOLDING CO., INC.
By: /s/ J. Larry Sorsby
--------------------------------
Name: J. Larry Sorsby
Title: Senior Vice President and CFO
<TABLE>
<C> <C>
Number of Company Common Shares /s/ Marco A. DeCesaris
----------------------
Marco A. DeCesaris*
Record: 14521 Kent Drive
Beneficial: 531,333 Upper Marlboro, MD 20772
Number of Company Common Shares /s/ Joseph A. DeCesaris /s/ Donna M. DeCesaris
----------------------- ----------------------
Joseph A. DeCesaris* and Donna M. DeCesaris*
Record: 5805 Sonny Drive
Beneficial: 463,403 Lothian, MD 20711
Number of Company Common Shares /s/ A. Hugo DeCesaris /s/ Julie P. DeCesaris
--------------------- ----------------------
A. Hugo DeCesaris* and Julie P. DeCesaris*
Record: 2029 Rosetta Way
Beneficial: 602,835 Davidsonville, MD 21035
</TABLE>
* Pursuant to a Power of Attorney attached hereto.
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<TABLE>
<C> <C>
Number of Company Common Shares /s/ Paul C. Sukalo /s/ Ida M. Sukalo
------------------ -----------------
Paul C. Sukalo* and Ida M. Sukalo*
Record: 5809 Sonny Drive
Beneficial: 254,968 Lothian, MD 20711
Number of Company Common Shares THE JOSEPH A. AND DONNA M. DeCESARIS FAMILY TRUST
Record: By: /s/ Maria R. Vaccaro
------------------------
Beneficial: 80,000 Maria R. Vaccaro, Trustee*
By: /s/ Robert D. Courtland
------------------------
Robert D. Courtland, Trustee*
Number of Company Common Shares THE GEATON A. AND JOSEPHINE A. DeCESARIS FAMILY TRUST
Record: By: /s/ Maria R. Vaccaro
------------------------
Beneficial: 100,000 Maria R. Vaccaro, Trustee*
By: /s/ Robert D. Courtland
------------------------
Robert D. Courtland, Trustee*
Number of Company Common Shares THE MARCO A. DeCESARIS
FAMILY TRUST
Record:
Beneficial: 40,000 By: /s/ Maria R. Vaccaro
------------------------
Maria R. Vaccaro, Trustee*
By: /s/ Robert D. Courtland
------------------------
Robert D. Courtland, Trustee*
</TABLE>
* Pursuant to a Power of Attorney attached hereto.
<TABLE>
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<PAGE>
<C> <C>
Number of Company Common Shares THE GEATON A. AND ELIZABETH H.DeCESARIS
FAMILY TRUST
Record:
Beneficial: 20,000 By: /s/ Maria R. Vaccaro
-------------------------
Maria R. Vaccaro, Trustee*
By: /s/ Robert D. Courtland
-------------------------
Robert D. Courtland, Trustee*
Number of Company Common Shares THE A. HUGO AND JULIE P. DeCESARIS
FAMILY TRUST
Record:
Beneficial: 40,000 By: /s/ Maria R. Vaccaro
-------------------------
Maria R. Vaccaro, Trustee*
By: /s/ Robert D. Courtland
-------------------------
Robert D. Courtland, Trustee*
</TABLE>
* Pursuant to a Power of Attorney attached hereto.
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