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Exhibit 9.3
SECOND AMENDMENT TO INVESTORS' AGREEMENT
This Second Amendment to Investors' Agreement ("Second Amendment") is
made and entered into effective as of August 27, 2001, by and among the
following:
Communities Investor Corp., a Delaware corporation ("CIC") and each of
the stockholders of CIC identified as such on Schedule A hereto (each of whom is
referred to individually as a "CIC Stockholder" and collectively as the "CIC
Stockholders").
Communities Investor Limited Partnership, a Delaware limited
partnership ("CILP") and each of the limited partners of CILP identified as such
on Schedule A hereto (each of whom is referred to individually as a "CILP
Limited Partner" and collectively as the "CILP Limited Partners").
Watermark Communities Inc., a Delaware corporation ("Watermark") and
each of the stockholders of Watermark identified as such on Schedule A hereto
(each of whom is referred to individually as a "Watermark Stockholder" and
collectively as the "Watermark Stockholders").
References herein to the CIC Stockholders, the CILP Limited Partners
and the Watermark Stockholders include their respective Permitted Transferees
(as defined below).
RECITALS:
The parties entered into an Investors' Agreement dated November 30,
1998, as amended by that certain First Amendment to Investors' Agreement dated
February 23, 1999 (as amended, the "Investors' Agreement"), pursuant to which
they agreed, among other things, to certain voting agreements, including the
election of up to 9 directors for Watermark and to certain management controls,
including a requirement that certain subsidiaries of Watermark (the "Watermark
Subsidiaries") would have the same board of directors as Watermark.
The parties now wish to provide for the election of up to 11 directors
for Watermark and for the Watermark Subsidiaries, which must have the same
board of directors as Watermark, and to make certain conforming changes to the
Investors' Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows.
1. Section 7.1(a) is deleted and the following Section 7.1(a) is substituted
therefor:
"(a) A Newco Board of not less than 6 members and not more than 11
members,"
2. Section 7.1(b) is deleted and the following Section 7.1(b) is substituted
therefor:
"(b) The election of the following persons as members of the Newco
Board:
(i) Xxxxxx Xxxxxxx, Xx., or a person designated by him or his
personal representative;
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(ii) Xxx X. Xxxxxxxx, or a person designated by him or his
personal representative;
(iii) Xxxxx X. Xxxxxxx, or a person designated by the persons
designated in Sections 7.1(b)(i) and (ii);
(iv) A person designated by the holders of the majority of the
MacArthur Interests and the initial designee shall be Xxxxxxx X. Xxxxxxxx;
(v) A person designated by the holders of the majority of the
Xxxxxx Interests; provided, that until such time as a director is
designated, each of Xxxxx Xxx and Xxxxx Xxxx is entitled to receive all
notices and information available to the Newco Board and to receive notice
of all Newco Board meetings and either of them shall have the right to
attend in person or telephonically any meeting of the Newco Board;
(vi) A person designated by the holders of the majority of CVC
Interests and the initial designee shall be Xxxxxx X. XxXxxxxxxx; and
(vii) Up to five directors designated by a majority of the persons
referred to in paragraphs (i) through (vi) above, except as provided in
Section 7.1(c).
"Investor Director" shall mean any director designated and elected
pursuant to Sections 7.1(b)(iv), (v) or (vi) and "Management Director"
shall mean any director designated and elected pursuant to Sections
7.1(b)(i), (ii) or (iii)."
3. Section 7.1(c) is deleted and the following Section 7.1(c) is substituted
therefor:
"(c) If the Lenders are Equity Owners, the Equity Owners agree
to elect as one of the designees referred to in Section 7.1(b)(vii) a
person designated by the Lenders as a member of the Newco Board."
4. Section 7.1(d) is deleted and the following Section 7.1(d) is substituted
therefor:
"(d) The composition of the board of directors of WCI
Communities Inc. and Bay Colony-Gateway, Inc., subsidiaries of Newco
(each such board, a "Sub Board") shall be the same as that of the
Newco Board."
5. Section 7.1(f) is deleted and the following Section 7.1(f) is substituted
therefor:
"(f) Any director designated under Sections 7.1(b)(i) through
7.1(b)(vi) or Section 7.1(c) shall be removed from the Newco Board, a
Sub Board or any committee thereof (with or without cause) only at the
written request of the Equity Owner or a majority of the Equity Owners
or the other directors which have the right to designate such director
hereunder, but only upon such written request and under no other
circumstances (in each applicable case, determined on the basis of a
vote or consent of the relevant Equity Owners or directors). Any
director designated under Section 7.1(b)(vii) shall be removed from
the Newco Board, a Sub Board or any committee thereof (with or without
cause) only at the
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written request of a majority of the directors of the applicable Board
other than those designated under Section 7.1(b)(vii)."
6. Section 7.3(a) is deleted and the following Section 7.3(a) is substituted
therefor:
"(a) Newco shall not, sell, convey, lease, transfer, grant options to
purchase or otherwise dispose of all or substantially all of its assets or
dispose of any property or business of Newco or any Subsidiary Affiliate
(other than non-core property) in each case having a value in excess of
$25,000,000, except Newco shall be permitted to enter into a statutory
merger pursuant to the Delaware General Corporation Law with WCI
Communities, Inc."
7. Ratification. Except as amended by the First Amendment and this Second
Amendment, the Investors' Agreement is hereby ratified and confirmed and shall
remain in full force and effect.
8. Counterparts. This Second Amendment may be executed in any number of
counterparts which together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page by facsimile shall be
effective as delivery of a manually executed counterpart.
9. Section Headings. Headings contained in this Second Amendment are inserted
only as a matter of convenience and in no way define, limit or extend the scope
or intent of this Second Amendment or any provision hereof.
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IN WITNESS WHEREOF, this Second Amendment has been executed effective as
of the date and year first set forth above.
COMMUNITIES INVESTOR CORP.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
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Its: Senior Vice President
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HARTSEL RANCH CORPORATION
By: /s/ Xxxxxx Xxxxx
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Its: Vice President
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KAMEHAMEHA ACTIVITIES ASSOCIATION
By: /s/ Xxxxxxx Xxxx
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Its: President
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CCT Partners II, L.P.
Natasha Partnership
63 BR Partnership
Xxxxxx Xxxxxxxx, as Trustee of Xxxxxx X. XxXxxxxxxx
Flint Trust dated October 27, 1998
Alchemy L.P.
Xxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
By: Court Square Capital Limited,
as Attorney-In-Fact
/s/ Xxxxxx X. XxXxxxxxxx
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CITICORP VENTURE CAPITAL, LTD.
By: /s/ Xxxxxx X. XxXxxxxxxx
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Its: Managing Director
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COMMUNITIES INVESTOR LIMITED PARTNERSHIP.
a Delaware limited partnership
By: COMMUNITIES INVESTOR CORP.
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
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Its: Senior Vice President
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XXXX X. AND XXXXXXXXX X. XXXXXXXXX
FOUNDATION
By: /s/ Xxxxx X. Xxxxx
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Its:
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BANCBOSTON INVESTMENTS, INC.
By:
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Its:
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WATERMARK COMMUNITIES INC.
By: /s/ Xxxxx Xxxxxxx
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Its: Senior Vice President
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/s/ Xxxxxx Xxxxxxx, Xx.
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Xxxxxx Xxxxxxx, Xx. as Trustee of the Xxxxxx Xxxxxxx, Xx.
Trust Dated May 25, 1995
/s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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/s/ Xxxxxxxxx Xxxxxxx
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Xxxxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
/s/ Xxxxxxxxx Xxxxxxx
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Xxxxxxxxx Xxxxxxx, as Personal Representative
of the Estate of Xxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, as Trustee for the Sprinkling
Trust under the Will of Xxxxx X. Xxxxxxx for
the Benefit of Our Children and as trustee
for: Trust f/b/o Xxxxx X. Xxxxxxx, u/w/o
Xxxxx X. Xxxxxxx; Trust f/b/o Xxxxx X.
Xxxxxxx, u/w/o Xxxxx X. Xxxxxxx; Trust f/b/o
Xxxxx X. Xxxxxxx, u/w/o Xxxxx X. Xxxxxxx;
Trust f/b/o Xxxx X. Xxxxxxx u/w/o Xxxxx X.
Xxxxxxx; Trust f/b/o Xxxxxxx X. Xxxxxxx u/w/o
Xxxxx X. Xxxxxxx; Trust f/b/o Xxxxxxx X.
Xxxxxxxxxx u/w/o Xxxxx X. Xxxxxxx
/s/ E. Xxxxxx Xxxxx by (Signature illegible),
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E. Xxxxxx Xxxxx attorney-in-fact
Xxxxxxxx Family Limited Partnership, by its
General Partner, Chandelle Ventures, Inc.
By: /s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx, its President
/s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx, as Trustee of the Xxx X.
Xxxxxxxx Trust U/T/A dated 12/14/96
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