EXHIBIT E
TO STATEMENT ON SCHEDULE 13D
WILLIAM LYON HOMES
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”) is made and entered into as of May 15, 2013, by and among the Luxor Investors listed on Schedule A hereto (each a “Luxor Investor” and collectively the “Luxor Investors” ), Lyon Shareholder 2012, LLC, a Delaware limited liability company (the “Lyon Investor”), and WLH Recovery Acquisition LLC, a Delaware limited liability company (the “Paulson Investor”). The Luxor Investors, the Lyon Investor and the Paulson Investor are individually referred to herein as a “Party” and are collectively referred to herein as the “Parties” .
RECITALS
WHEREAS, William Lyon Homes, a Delaware corporation (the “Company”) is proposing to engage in a public offering of certain of its shares of Class A Common Stock, par value $0.01 per share (the “Class A Common Stock”), and certain of the Luxor Investors are seeking to sell certain of their shares of Class A Common Stock pursuant to such public offering (the “Offering”);
WHEREAS, in connection with the Offering, the Company proposes to file with the Delaware Secretary of State the Company’s Third Amended and Restated Certificate of Incorporation (the “Certificate Amendment”) to, among other things, amend certain of the voting and other terms of the Class B Common Stock, par value $0.01 per share, of the Company (the “Class B Common Stock”);
WHEREAS, in connection with the Offering and the Certificate Amendment, the Parties desire to agree among themselves as to the terms and conditions pursuant to which the Parties shall vote their shares of the Company’s voting stock in favor of electing to the Company’s board of directors (the “Board”) certain individuals proposed by the Parties.
NOW, THEREFORE, in consideration of the foregoing premises and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Agreement to Vote. Each Party hereby agrees, on behalf of itself and any Affiliate (as defined below) of such Party that is a subsequent transferee or assignee of any such shares of Class A Common Stock, Class B Common Stock, and any other voting capital stock of the Company presently owned of record or beneficially by such Party, to hold all of the shares of Class A Common Stock, Class B Common Stock, and such other voting capital stock of the Company and any other voting securities of the Company of which such Party or Affiliated transferee or assignee of such Party becomes the record or beneficial owner in the future (and any securities of the Company issued with respect to, upon conversion of, or in exchange or substitution for such securities) (collectively, the “Shares”) subject to, and to vote the Shares at a regular or special meeting of stockholders (or by written consent) in accordance with, the provisions of this Agreement; provided , however , that following a sale or other transfer of Shares by a Party to a person or entity that is not an Affiliate of such Party, the non-Affiliated purchaser
or other transferee of such Shares shall not be required to vote such Shares in accordance with, or otherwise be entitled to the rights or subject to the obligations set forth in, the provisions of this Agreement. For purposes of this Agreement, (a) a person or entity shall be considered to be an “Affiliate” of, or “Affiliated” with, a Party if such person or entity, directly or indirectly, is in control of, or is controlled by, such Party, and (b) “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.
2. Election of Directors.
(a) Paulson Director. In any election of directors of the Company to elect members of the Board, each of the Luxor Investors and the Lyon Investor shall vote at any regular or special meeting of stockholders (or by written consent) such number of Shares then owned of record or beneficially by it (or as to which it then has voting power) in favor of the election as one (1) of the directors an individual proposed by the Paulson Investor; provided , however , that if at any time the aggregate number of Shares beneficially owned by the Paulson Investor together with any Affiliated assignee or transferee of the Paulson Investor is less than 50% of the number of Shares set forth opposite the Paulson Investor’s name on Schedule B hereto, then the obligations of each of the Luxor Investors and the Lyon Investor under this Section 2(a) to vote their Shares in favor of any individual proposed by the Paulson Investor, together with the obligations of the Luxor Investors and the Lyon Investor under each of Sections 2(d) – (g) hereof with respect to the Paulson Investor, shall thereupon terminate and cease to be of any further force or effect.
(b) Luxor Directors. In any election of directors of the Company to elect members of the Board, each of the Paulson Investor and the Lyon Investor shall vote at any regular or special meeting of stockholders (or by written consent) such number of Shares then owned of record or beneficially by it (or as to which it then has voting power) in favor of the election as three (3) of the directors individuals proposed by the Luxor Investors; provided , however , that (i) if at any time the aggregate number of Shares beneficially owned by the Luxor Investors together with any Affiliated assignee or transferee of the Luxor Investors is less than 8,734,545 Shares but greater than or equal to 4,367,272 Shares, then the Paulson Investor and the Lyon Investor shall thereafter be obligated under this Section 2(b) to vote their Shares in favor of the election as directors of only two (2) individuals proposed by the Luxor Investors, (ii) if at any time the aggregate number of Shares beneficially owned by the Luxor Investors together with any Affiliated assignee or transferee of the Luxor Investors is less than 4,367,272 Shares but greater than or equal to 2,882,424 Shares, then the Paulson Investor and the Lyon Investor shall thereafter be obligated under this Section 2(b) to vote their Shares in favor of the election as a director of only one (1) individual proposed by the Luxor Investors, and (iii) if at any time the aggregate number of Shares owned by the Luxor Investors together with any Affiliated assignee or transferee of the Luxor Investors is less than 2,882,424 Shares, then the obligations of the Paulson Investor and the Lyon Investor under this Section 2(b) to vote their Shares in favor of any individual proposed by the Luxor Investors, together with the obligations of the Paulson Investor and the Lyon Investor under each of Sections 2(d) – (g) hereof with respect to the Luxor Investors, shall thereupon terminate and cease to be of any further force or effect. All references to actual Share amounts in this Section 2(b) are made to the number of Shares held by the Luxor Investors prior to the Offering, and immediately following the Offering, such Share amounts shall be adjusted to reflect the number of Shares held by the Luxor Investors after taking into account any reverse share splits or conversions made in connection with the Offering.
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(c) Lyon Directors. In any election of directors of the Company to elect members of the Board, each of the Paulson Investor and the Luxor Investors shall vote at any regular or special meeting of stockholders (or by written consent) such number of Shares then owned of record or beneficially by it (or as to which it then has voting power) in favor of the election as two (2) of the directors individuals proposed by the Lyon Investor; provided , however , that if at any time the aggregate number of Shares owned by the Lyon Investor together with any Affiliated assignee or transferee of the Lyon Investor is less than 50% of the number of Shares set forth opposite the Lyon Investor’s name on Schedule Bhereto, then the obligations of each of the Paulson Investor and the Luxor Investors under this Section 2(c) to vote their Shares in favor of any individual proposed by the Lyon Investor, together with the obligations of the Paulson Investor and the Luxor Investors under each of Sections 2(d) – (g) hereof with respect to the Lyon Investor, shall thereupon terminate and cease to be of any further force or effect.
(d) No Party, either directly or through any of its nominees on the Board, without the affected Party’s prior written approval, shall take any action that would have the intent or effect of reducing any of the rights of any other Party hereto with respect to representation on the Board, including by voting to increase or decrease the size of the Board in such a way that adversely and disproportionately affects any other Party’s representation on the Board.
(e) Upon the resignation, retirement, removal or death of any director (the “Former Director”) elected pursuant to Sections 2(a) – (c) hereof, the Parties shall request their respective nominees on the Board to take all necessary corporate action to fill such vacancy caused thereby with a designee proposed by the Party that nominated the Former Director.
(f) Solely for purposes of confirming the number of Shares at any time owned by a Party for purposes of this Section 2, each Party agrees that, to the extent current Share ownership information with respect to such Party is not already contained in publicly available reports or schedules filed by such Party with the Securities and Exchange Commission, such Party will, promptly following the receipt of a written request from any other Party to this Agreement, deliver to the Party that made the request a certificate, signed by a duly authorized representative of the receiving Party and certifying as to the number of Shares then owned beneficially and of record by the receiving Party and any Affiliated assignees or transferees of the receiving Party.
(g) Each Party hereby covenants for the benefit of the other Parties to this Agreement that, during the term of this Agreement, such Party will not, with respect to any Shares then beneficially owned by such Party, grant any proxy or enter into any voting or similar agreement that conflicts or is otherwise inconsistent with the voting obligations of such Party under this Agreement.
3. No Liability for Election of Recommended Directors. No Party, nor any officer, director, stockholder, partner, employee or agent of any such Party, makes any representation or warranty as to the fitness or competence of the nominee of any Party hereunder to serve on the Company’s Board by virtue of such Party’s execution of this Agreement or by the act of such Party in voting for such nominee pursuant to this Agreement.
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4. Specific Enforcement. It is agreed and understood that monetary damages would not adequately compensate an injured Party for the breach of this Agreement by any other Party, that this Agreement shall be specifically enforceable, and that any breach or threatened breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each Party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.
5. Captions. The captions, headings and arrangements used in this Agreement are for convenience only and do not in any way limit or amplify the terms and provisions hereof.
6. Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the respective parties at the addresses set forth on the signature pages attached hereto (or at such other addresses as shall be specified by notice given in accordance with this Section 6).
7. Term.
(a) This Agreement shall automatically terminate upon the date which is the earliest of: (i) the date on which the Lyon Investor, together with its Affiliates, ceases to own any shares of Class B Common Stock, or (ii) the date on which at least two of the Parties, together with their respective Affiliates, cease to own the minimum number of Shares required under the respective provisions of Sections 2(a) – (c) hereof to obligate the other Parties hereto to vote their Shares in favor of the election as a director of at least one (1) individual proposed by such Party, or (iii) during any period following a termination of this Agreement as to the Paulson Investor pursuant to Section 7(b) hereof, the date on which either the Lyon Investor, on the one hand, or the Luxor Investors, on the other hand, together with their respective Affiliates, cease to own the minimum number of Shares required under the respective provisions of Section 2(b) or Section 2(c) hereof to obligate the other Party to vote its Shares in favor of the election as a director of at least one (1) individual proposed by such first Party.
(b) In the event that the Paulson Investor ceases to own at least 10% of the then outstanding Shares in the Company (disregarding any Shares, the beneficial ownership of which may be attributed to the Paulson Investor by reason of this Agreement), the Paulson Investor may, after providing no less than fifteen (15) days’ notice to the other Parties, unilaterally elect to terminate this Agreement as to itself only, including (without limitation) (1) the Paulson Investor’s right under Section 2(a) hereof to propose a director and as to the other Parties’ obligations under such Section 2(a) to vote for such director and (2) the Paulson Investor’s obligations under Sections 2(b) and 2(c) hereof to vote for the other Parties’ proposed directors. Upon such election, the Paulson Investor shall cause any person that is then serving as
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director at its request pursuant to Section 2 of this Agreement to resign from the Board, effective as of the date of resignation set forth in the notice referenced above, and shall not have any further rights or obligations under this Agreement, including rights under Section 2(e) of this Agreement or otherwise to nominate or propose a new individual to fill the vacancy caused thereby.
8. Manner of Voting. The voting of shares pursuant to this Agreement may be effected in person, by proxy, by written consent or in any other manner permitted by applicable law.
9. Amendments and Waivers. Any term hereof may be amended and the observance of any term hereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Paulson Investor, the holders of a majority of the then outstanding voting securities held by the Luxor Investors and the holders of a majority of the then outstanding voting securities held by the Lyon Investor. Any amendment or waiver so effected shall be binding upon all the Parties hereto.
10. Stock Splits, Stock Dividends, etc. In the event of any issuance of shares of the Company’s voting securities hereafter to any of the Parties hereto (including, without limitation, in connection with any stock split, stock dividend, recapitalization, reorganization or the like), such shares shall become subject to this Agreement.
11. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
12. Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, assigns, administrators, executors and other legal representatives except as otherwise provided in Section 1 hereof. In the event a Party transfers or assigns ownership of any Shares to an Affiliate of such Party during the term of this Agreement, the transferring Party hereby undertakes to cause such Affiliate to deliver to the other Parties to this Agreement, contemporaneously with such transfer or assignment, a signed instrument confirming such Affiliate’s agreement to be bound by the terms of this Agreement with respect to the Shares so transferred or assigned as and to the same extent as the transferring Party.
13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of law principles thereof.
14. Entire Agreement. This Agreement is intended to be the sole agreement of the Parties as it relates to the subject matter hereof and supersede all other agreements of the Parties relating to the subject matter hereof.
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15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
16. Securities Law Filings. Each of the Luxor Investors, the Lyon Investor and the Paulson Investor shall be responsible for its own securities law filings pertaining to its ownership of Shares. None of the Parties hereto shall be under any obligation to file jointly with any other Party.
17. Effective Time. The covenants, agreements, rights and obligations of the Parties set forth in this Agreement shall be effective as of the filing of the Certificate Amendment by the Company with the Delaware Secretary of State, but conditioned upon the initial closing of the Offering. If for any reason the Company has not filed the Certificate Amendment or the initial closing of the Offering has not occurred by 5 p.m. PDT on May 31, 2013, this Agreement shall be deemed to be null and void, and of no force or effect.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
| PAULSON INVESTOR: | ||
| WLH RECOVERY ACQUISITION LLC | ||
| By: | /s/ Jonathan Shumaker | |
| Name: | Jonathan Shumaker | |
| Title: | Authorized Signatory | |
| Address: | ||
1251 Avenue of the Americas New York, NY 10020 | ||
SIGNATURE PAGE TO VOTING AGREEMENT
| LUXOR INVESTORS: | ||
| LUXOR CAPITAL II COMPANY | ||
| By: | /s/ Christopher Isaacs | |
| Name: | Christopher Isaacs | |
| Title: | Treasurer | |
| Address: | ||
C/O Luxor Capital Group, LP 1114 Avenue of the Americas, 29th Floor New York, NY 10036 | ||
| LUXOR CAPITAL PARTNERS, LP | ||
| By: | LCG Holdings, LLC, as General Partner | |
| By: | /s/ Adam Miller | |
| Name: | Adam Miller | |
| Title: | Chief Operating Officer | |
Address: | ||
C/O Luxor Capital Group, LP 1114 Avenue of the Americas, 29th Floor New York, NY 10036 | ||
| LUXOR SPECTRUM OFFSHORE MASTER FUND, LP | ||
| By: | LCG Holdings, LLC, as General Partner | |
| By: | /s/ Adam Miller | |
| Name: | Adam Miller | |
| Title: | Chief Operating Officer | |
SIGNATURE PAGE TO VOTING AGREEMENT
| Address: | ||
C/O Luxor Capital Group, LP 1114 Avenue of the Americas, 29th Floor New York, NY 10036 | ||
| LUXOR WAVEFRONT, LP | ||
| By: | LCG Holdings, LLC, as General Partner | |
| By: | /s/ Adam Miller | |
| Name: | Adam Miller | |
| Title: | Chief Operating Officer | |
Address: | ||
C/O Luxor Capital Group, LP 1114 Avenue of the Americas, 29th Floor New York, NY 10036 | ||
| OC 19 MASTER FUND, L.P.-LCG | ||
| By: | LCG OC GP, LLC, as General Partner | |
| By: | /s/ Adam Miller | |
| Name: | Adam Miller | |
| Title: | Manager | |
Address: | ||
C/O Luxor Capital Group, LP 1114 Avenue of the Americas, 29th Floor New York, NY 10036 | ||
SIGNATURE PAGE TO VOTING AGREEMENT
| LYON INVESTOR: | ||
| LYON SHAREHOLDER 2012, LLC | ||
| By: | /s/ William H. Lyon | |
| Name: | William H. Lyon | |
| Title: | Manager | |
| Address: | 4695 MacArthur Court, 8th Floor Newport Beach, California 92660 | |
SIGNATURE PAGE TO VOTING AGREEMENT
SCHEDULE A
Luxor Capital II Company
Luxor Capital Partners, LP
Luxor Spectrum Offshore Master Fund, LP
Luxor Wavefront, LP
OC 19 Master Fund, L.P.-LCG
SCHEDULE B
CAPITALIZATION TABLE
Stockholder | Total Number of Shares Held | |
| Paulson Investor | 3,322,667 | |
| Lyon Investor | 3,813,884 | |
| Luxor Investors | 8,734,545 |