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Exhibit 5
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "AGREEMENT") is entered into as of
___________, 2000, by and among [NEWCO], a Delaware corporation (the "COMPANY"),
WPH-Schuler, 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 James
and Patricia Schuler Foundation, a Hawaii non-profit corporation (the
"FOUNDATION"), and James K. Schuler, as sole trustee for the James K. Schuler
Revocable Living Trust and the James K. Schuler 1998 Qualified Annuity Trust
(collectively with the Foundation, "JAMES SCHULER").
RECITALS
A. The Members, Schuler Homes, Inc. ("OLD SCHULER") and certain other
parties have entered into an Agreement and Plan of Reorganization, dated as of
September 12, 2000 (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 Schuler 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) James Schuler and the other stockholders of Old
Schuler, 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 James
Schuler 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
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unless Apollo has any contract, arrangement or understanding with such operating
company with respect to any securities of the Company.
(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.
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(v) "CHANGE OF CONTROL" has the meaning assigned to such term in
the Senior Notes Indenture.
(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 Schuler's 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 Schuler and U.S. Trust Company of California,
N.A., as trustee.
(xiv) "SUBORDINATED DEBENTURES" means Old Schuler's 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 Schuler and Pacific Century
Trust, as successor trustee to Bishop 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) James Schuler 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
James Schuler 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 James Schuler 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, James Schuler
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
James Schuler 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 James Schuler.
(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 James
Schuler, 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) James Schuler may, sell, assign or transfer, or otherwise dispose of,
(A) any shares of Class A Common Stock to the Foundation, the James K. Schuler
Revocable Living Trust, the James K. Schuler 1998 Qualified Annuity Trust, James
K. Schuler in his individual capacity and/or any other trust of which James K.
Schuler 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 Schuler
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) James Schuler, 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 Stephen Feinberg or to prevent the bona fide pledge by Blackacre
(or a transferee of Blackacre that is directly or indirectly controlled by
Stephen Feinberg) of its membership interest in the LLC.
(f) James Schuler, 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 Schuler, 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 Schuler 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 James Schuler 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
James Schuler, 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 ________,
2000, by and among by and among [NEWCO], a Delaware corporation,
WPH-Schuler, 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
James and Patricia Schuler Foundation, a Hawaii non-profit
corporation, and James K. Schuler, as sole trustee for the James K.
Schuler Revocable Living Trust and the James K. Schuler 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 [NEWCO].
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 James Schuler:
Schuler Homes, Inc.
828 Fort Street Mall, 4th Floor
Honolulu, Hawaii 96813
Facsimile No.: (808) 524-8927
with a copy to:
Richard V. Smith, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
Facsimile No.: (415) 773-5759
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(ii) if to the LLC or the Members:
Eugene Rosenfeld
c/o Western Pacific Housing
300 Continental Boulevard, Suite 390
El Segundo, California 90246
Facsimile No.: (310) 414-0514
AND
Rick Koenigsberger
Apollo Real Estate Advisors
1301 Avenue of the Americas, 38th Floor
New York, New York 10019
Facsimile No.: (212) 515-3282
AND
Ronald J. Kravit
Blackacre WPH, LLC
450 Park Avenue, 28th Floor
New York, New York 10022
Facsimile No.: (212) 891-2103
with a copy to:
Peter P. Wallace, Esq.
Morgan, Lewis & Bockius LLP
300 S. Grand Ave., 22nd Floor
Los Angeles, California 90071
Facsimile No.: (213) 612-2554
AND
Stuart D. Freedman, Esq.
Schulte, Roth & Zabel LLP
900 3rd Avenue
New York, New York 10022
Facsimile No.: (212) 832-4169
(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 James Schuler.
(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.
[NEWCO]
By:
----------------------------------------
Name:
Title:
WPH-SCHULER, LLC, a Delaware limited
liability company
By:
----------------------------------------
Name:
Title:
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:
----------------------------
Michael D. Weiner
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:
----------------------------
Ronald J. Kravit
Its Vice President
HIGHRIDGE PACIFIC HOUSING INVESTORS, L.P.,
a California limited partnership
By: WPH ACQUISITIONS, INC.,
a California corporation,
Its General Partner
By:
---------------------------------
Steven A. Berlinger
Its CFO and Secretary
THE JAMES AND PATRICIA SCHULER FOUNDATION,
a Hawaii non-profit corporation
By:
----------------------------------------
James K. Schuler
Its Chairman
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JAMES K. SCHULER, as sole trustee for the
James K. Schuler Revocable Living Trust and
the James K. Schuler 1998 Qualified Annuity
Trust
-------------------------------------------
James K. Schuler
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EXHIBIT A
[INTENTIONALLY OMITTED]
15
