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PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant /X/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/ / Preliminary Proxy Statement
/X/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to sec. 240.14a-11(c) or sec. 240.14a-12
J.M. PETERS COMPANY, INC.
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(Name of Registrant as Specified in its Charter)
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(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
/X/ $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(j)(2).
/ / $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
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4) Proposed maximum aggregate value of transaction:
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Set forth the amount on which the filing fee is calculated and state how it
was determined.
/ / Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
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2) Form, Schedule or Registration Statement No.:
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3) Filing Party:
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4) Date Filed:
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J.M. PETERS COMPANY, INC.
3501 JAMBOREE ROAD
SUITE 200
NEWPORT BEACH, CALIFORNIA 92660
November 15, 1994
DEAR STOCKHOLDER:
The Board of Directors of J.M. Peters Company, Inc., a Delaware corporation
(the "Company") is soliciting written consents from stockholders with respect to
an Agreement and Plan of Merger (the "Agreement") which provides for the merger
with and into the Company of Capital Pacific Homes, Inc., a Delaware
corporation, which owns more than 80% of the issued and outstanding shares of
stock of the Company.
Following this letter is a Proxy Statement which contains information with
respect to the proposed merger. We encourage you to read the Proxy Statement and
the attached Agreement carefully. Only holders of record of the Company's common
stock at the close of business on November 12, 1994, will be entitled to vote on
the proposed Agreement.
A written consent proxy solicited by the Board of Directors is enclosed
herewith. Please mark, sign, date and return the enclosed proxy promptly. If
your proxy is not returned to the Company by the close of business on December
12, 1994, it will have the same effect as a vote against the Agreement.
Thank you for your cooperation and prompt attention to this matter.
THE BOARD OF DIRECTORS OF
J.M. PETERS COMPANY, INC.
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J.M. PETERS COMPANY, INC.
3501 JAMBOREE ROAD
SUITE 200
NEWPORT BEACH, CALIFORNIA 92660
PROXY STATEMENT
FOR SOLICITATION OF WRITTEN CONSENT
GENERAL INFORMATION
This Proxy Statement is furnished in connection with the solicitation by
the Board of Directors of J.M. Peters Company, Inc., a Delaware corporation (the
"Company") of the written consent of stockholders for the purposes set forth
herein.
The Board of Directors has established November 12, 1994 as the record date
for determining stockholders entitled to vote for the purposes set forth herein.
At the close of business on the record date, there were outstanding and entitled
to vote 14,995,000 shares of the Company's common stock, $.10 par value per
share (the "Common Stock"), with each share being entitled to one vote.
To be effective, a proxy must be received by the Secretary of the Company
by the close of business on December 12, 1994 (the "Termination Date"). Properly
completed and returned proxies will be voted in the manner specified therein,
and if no choice is specified the proxy will be voted to approve the proposal
set forth herein. Any proxy given pursuant to this solicitation may be revoked
prior to the Termination Date by delivering an instrument revoking it or by
delivering a duly executed proxy bearing a later date to the Secretary of the
Company.
Completed proxies may be returned using the enclosed envelope addressed to
the Company for which no postage is required if mailed in the United States. The
principal place of business of the Company is located at 3501 Jamboree Road,
Suite 200, Newport Beach, California 92660. This Proxy Statement and the
accompanying form of proxy were first mailed to stockholders on or about
November 15, 1994.
Proxies may be solicited on behalf of the Company by its officers and
employees, who will receive no additional compensation for such services,
through the mail, in person, and by telephone and by other telecommunication
methods. The cost of such solicitation will be borne by the Company. Brokers,
custodians, and other fiduciaries will be required to forward the Company's
proxy solicitation materials to the beneficial owners of Common Stock held in
their names, and the Company will reimburse such fiduciaries for the out-
of-pocket expenses incurred by them in connection with such activities.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth, as of November 2, 1994, the number of
shares of Common Stock beneficially owned by each person known to the Company to
own more than five percent (5%) of the outstanding shares of Common Stock, by
each director and executive officer of the Company who owned shares on such
date, and by all directors and officers of the Company as a group.
<TABLE>
<CAPTION>
PERCENT
COMMON STOCK OF CLASS
NAME AND ADDRESS BENEFICIALLY OWNED(1) (1)
------------------------------------------ --------------------- -----------
<S> <C> <C>
Capital Pacific Homes, Inc. 12,000,000 80.0%
3501 Jamboree Road, Suite 200,
Newport Beach, California 92660
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Hadi Makarechian 9,946,800(2) 66.3%
3501 Jamboree Road, Suite 200,
Newport Beach, California 92660
Dale Dowers 2,053,200(3) 13.7%
3501 Jamboree Road, Suite 200,
Newport Beach, California 92660
</TABLE>
<TABLE>
<S> <C> <C>
------------------------
Roger Nix 1,015,000 6.8%
3501 Jamboree Road, Suite 200,
Newport Beach, California 92660
Robert J. Trapp 10,000 0.1%
3501 Jamboree Road, Suite 200,
Newport Beach, California 92660
Marquis L. Cummings 100 --
3501 Jamboree Road, Suite 200,
Newport Beach, California 92660
All Directors and Officers of the Company
as a Group (13 persons) 12,010,100 80.1%
</TABLE>
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(1) Unless otherwise indicated, the Company believes the beneficial owner has
sole voting and investment power over such shares. The percentage of shares
of Common Stock is calculated assuming that the beneficial owner has
exercised any options or other rights to subscribe held by such beneficial
owner that are currently exercisable or exercisable within 60 days, and that
no other options or rights to subscribe have been exercised by anyone else.
(2) Includes 9,946,800 shares of Common Stock held by Capital Pacific Homes,
Inc. ("CPH"), in which Mr. Makarechian may be deemed to have a beneficial
ownership interest due to his ownership interest in CPH. Mr. Makarechian and
Mr. Dowers as a group could be deemed beneficial owners of 12,000,000 shares
of stock in the Company.
(3) Includes 2,053,200 shares of Common Stock held by CPH, in which Mr. Dowers
may be deemed to have a beneficial ownership interest due to his ownership
interest in CPH. Mr. Dowers and Mr. Makarechian as a group could be deemed
beneficial owners of 12,000,000 shares of stock in the Company.
PROPOSED MERGER
Capital Pacific Homes, Inc., a Delaware corporation ("CPH") presently owns
12,000,000 shares (the "Shares") of Common Stock, representing more than 80% of
the issued and outstanding shares of Common Stock. The Board of Directors has
proposed that the stockholders of the Company approve, by written consent in
lieu of a stockholders' meeting, the merger of CPH into the Company (the
"Merger") pursuant to the Agreement and Plan of Merger attached as Exhibit A
hereto (the "Agreement"). The Board of Directors unanimously approved the
Agreement on November 2, 1994.
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The principal purposes of the Merger are to consolidate management,
operations, and the public image of CPH and the Company, to reduce
administrative burdens and to facilitate future equity investment in the
Company. The Merger will also satisfy a condition of the Indenture, dated May
13, 1994, among the Company, United States Trust Company of New York, and
certain others, with respect to the Company's recent $100 million bond offering,
requiring the Company to affect the Merger. The general nature of the business
historically conducted by CPH is substantially similar to that conducted by the
Company.
Pursuant to the Agreement, on the effective date of the Merger, CPH will
cease to exist and the Company will continue to operate the business of CPH
under the name J.M. Peters Company, Inc. At such time, the Shares will be
cancelled and all of the issued and outstanding shares of stock of CPH will be
converted into 12,000,000 shares of stock of the Company. Each share of stock of
JMP issued and outstanding other than those held by CPH will remain issued and
outstanding in the Merger.
Pursuant to the Delaware General Corporation Law, upon the Merger becoming
effective, the Company will possess all property, rights, privileges, powers and
franchises of CPH and will assume all debts, liabilities, restrictions,
disabilities and duties of CPH. A condition to the consummation of the Merger is
that, upon such consummation, CPH have no assets other than shares of stock of
the Company, have no liabilities and have conducted no material active business
operations for a period of at least one year. Prior to consummation of the
Merger, CPH is to deliver to the Company a certificate confirming satisfaction
of such condition. However, if any unknown CPH liabilities exist, the Company
will assume such liabilities in the Merger.
The Merger will not result in any change in the Certificate of
Incorporation, Bylaws, Board of Directors, officers or fiscal year of the
Company or the location of the Company's principal facilities. Pursuant to the
Agreement, the Merger may be abandoned and the Agreement terminated by the
Boards of Directors of the Company and CPH at any time prior to the effective
date thereof, whether or not stockholder approval has been obtained.
Hadi Makarechian and Dale Dowers, who are directors and officers of the
Company, are also directors and the sole officers of CPH, and as of the date of
this Proxy Statement own all of the issued and outstanding shares of stock of
CPH. The shareholders of CPH may change between the date of this Proxy Statement
and the consummation of the Merger.
The Merger is intended to qualify as tax-free reorganization under the
Internal Revenue Code of 1986, as amended. Accordingly, it is expected that
under present federal income tax laws, no gain or loss will be recognized by the
Company or the holders of Common Stock of the Company (based upon statutory
dissenters' rights not being available). The Company has not secured, nor does
it intend to secure, any ruling from the Internal Revenue Service on the
nontaxable nature of the transaction.
The holders of Common Stock of the Company do not have appraisal rights
under Section 262 of the Delaware General Corporation Law in connection with the
Merger because such shares are listed on a national securities exchange.
Stockholders may, however, vote against the Merger in the manner set forth in
the last paragraph of this Proxy Statement.
The Company has obtained the consent of the American Stock Exchange to
solicit written stockholder consents with respect to the Agreement. The American
Stock Exchange requires that if a contest develops or a controversy arises after
this Proxy Statement is mailed to stockholders, the Company must terminate its
solicitation and convene a meeting of stockholders with a formal proxy
solicitation. If no such contest or controversy develops before the Termination
Date, then the Company will determine, as of the Termination Date, whether the
Company has received consents representing a sufficient number of votes to
approve the Agreement.
To be adopted, the Agreement must be approved by an affirmative vote of a
majority of the outstanding shares of Common Stock entitled to vote thereon.
Pursuant to Section 228 of the Delaware General Corporation Law, any action
required or permitted to be taken at a meeting of the stockholders may be taken
without a meeting if written consents setting forth the action to be taken are
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted. CPH
has
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advised the Company that it intends to vote to approve the Agreement. CPH holds
more than the number of votes required to approve the Agreement.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE TO
APPROVE THE AGREEMENT. PROPERLY COMPLETED AND RETURNED PROXIES WILL BE VOTED IN
THE MANNER SPECIFIED THEREIN, AND IF NO CHOICE IS SPECIFIED THE PROXY WILL BE
VOTED TO APPROVE THE AGREEMENT. TO VOTE AGAINST THE AGREEMENT, A STOCKHOLDER MAY
MARK THE PROXY TO VOTE AGAINST AGREEMENT OR MAY FAIL TO RETURN THE PROXY. THE
EFFECT OF A FAILURE TO RETURN THE PROXY PRIOR TO THE TERMINATION DATE IS THE
SAME AS A VOTE AGAINST THE AGREEMENT.
By Order of the Board of Directors,
November 15, 1994 GREGORY R. PETERSEN
Secretary
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made this day
of November, 1994 between Capital Pacific Homes, Inc., a Delaware corporation
("CPH") and J.M. Peters Company, Inc., a Delaware corporation ("JMP").
This Agreement contemplates the merger of CPH with and into JMP pursuant to
Section 251 of the Delaware General Corporation Law on a tax-free basis pursuant
to Section 368(a)(1)(A) of the Internal Revenue Code. The CPH shareholders will
receive stock in JMP in exchange for their stock in CPH. The parties expect that
the merger will further their business objectives, including without limitation
consolidating management, operations and public image, reducing administrative
burdens and facilitating equity investment. The respective Boards of Directors
of JMP and CPH have approved this Agreement and directed that this Agreement be
submitted to votes by written consent of the respective shareholders of JMP and
CPH. CPH owns 12,000,000 shares of common stock of JMP, representing more than
80% of the issued and outstanding shares of stock of JMP.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. Merger. On and subject to the terms and conditions of this
Agreement, pursuant to Section 251 of the Delaware General Corporation Law,
CPH shall be merged with and into JMP, with JMP surviving the merger (the
"Merger").
2. Effective Time. The Merger shall become effective at the time JMP
and CPH file this Agreement with the Secretary of State of Delaware (the
"Effective Time").
3. Restated Certificate of Incorporation. The Restated Certificate
of Incorporation and Bylaws, as amended, of JMP in effect at and as of the
Effective Time shall remain the Restated Certificate of Incorporation and
Bylaws of JMP as the surviving corporation without any modification or
amendment in the Merger. The directors and officers of JMP at and as of the
Effective Time shall remain the officers and directors of JMP as the
surviving corporation (retaining their respective positions and terms of
office).
4. Conversion of CPH Shares. At and as of the Effective Time, (i)
all of the then issued and outstanding shares of stock of CPH (the "CPH
Shares") shall be converted into 12,000,000 shares of stock of JMP by
converting each share of CPH stock then outstanding into a number of shares
of stock of JMP equal to 12,000,000 divided by the number of CPH Shares and
(ii) each share of stock of JMP then held by CPH shall be cancelled. After
the Effective Time (i) no share of CPH stock shall be deemed outstanding or
to have any rights other than as set forth in this Section and (ii) no
share of JMP stock held by CPH at and as of the Effective Time shall be
deemed outstanding or to have any rights. Each share of stock of JMP issued
and outstanding at and as of the Effective Time other than those held by
CPH will remain issued and outstanding. Immediately after the Effective
Time, JMP will furnish to each shareholder of CPH a stock certificate
representing the number of shares of common stock of JMP to which such
shareholder is entitled hereunder, against surrender by each such
shareholder of a stock certificate representing the shares of CPH stock
held by such shareholder at and as of the Effective Time.
5. Succession. The Merger shall have the effect set forth in the
Delaware General Corporation Law, including without limitation, the
following:
(a) JMP shall possess all the rights, privileges, powers and
franchises of a public as well as of a private nature, and be subject to
all the restrictions, disabilities and duties, of CPH;
(b) all of the rights, privileges, powers and franchises of CPH,
and all property, real, personal and mixed, and all debts due to CPH, on
whatever account, shall be vested in JMP;
A-1
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(c) all property, rights, privileges, powers and franchises and all
and every other interest of CPH shall be thereafter as effectually the
property of JMP as they were of CPH, and the title to any real estate
vested by deed or otherwise in CPH shall not revert or be in any way
impaired; and
(d) all rights of creditors and all liens upon any property of CPH
shall be preserved unimpaired, and all debts, liabilities and duties of
CPH shall thenceforth attach to JMP, and may be enforced against it to
the same extent as if said debts, liabilities and duties had been
incurred or contracted by it.
6. Conditions. Consummation of the Merger is subject to the
satisfaction of the following conditions:
(a) this Agreement shall have been approved by the written consent
of the holders of a majority of the issued and outstanding shares of
common stock of JMP entitled to vote thereon;
(b) this Agreement shall have been approved by the unanimous
written consent of the shareholders of CPH;
(c) all authorizations, consents, filings, waivers, approvals or
other action required by law, by agreement of CPH or otherwise, in
connection with the execution, delivery and performance of this
Agreement, shall have been duly made or obtained and shall be in form
and substance satisfactory to CPH;
(d) all authorizations, consents, filings, waivers, approvals or
other action required by law, by agreement of JMP or otherwise, in
connection with the execution, delivery and performance of this
Agreement, shall have been duly made or obtained and shall be in form
and substance satisfactory to JMP; and
(e) at and as of the Effective Time, CPH shall have no assets other
than shares of stock of JMP, shall have no liabilities and shall have
conducted no material active business operations for a period of at
least one year, and CPH shall deliver to JMP a certificate, duly
executed by an officer of CPH, confirming satisfaction of such
condition.
7. Further Assurances. At any time after the Effective Time, JMP as
the surviving corporation may take any action (including executing and
delivering any document) in the name and on behalf of JMP or CPH in order
to carry out and effectuate the transactions contemplated by this
Agreement, and the officers and directors of JMP are hereby authorized in
the name and on behalf of CPH to take any and all such action and to
execute and deliver any and all such documents.
8. Amendment. This Agreement may be amended by the Boards of
Directors of JMP and CPH and the Shareholders prior to the Effective Time
in any manner not prohibited by Section 251 of the Delaware General
Corporation Law.
9. Abandonment. At any time before the Effective Time, this
Agreement may be terminated and the Merger may be abandoned by the Boards
of Directors of JMP and CPH, notwithstanding approval of this Agreement by
the shareholders of JMP and CPH.
10. Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of Delaware.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which together shall constitute the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
ATTEST:
By:
Dale Dowers
President
ATTEST:
By:
Dale Dowers
President
CAPITAL PACIFIC HOMES, INC.
By:
Hadi Makarechian
Chairman of the Board
J.M. PETERS COMPANY, INC.
By:
Hadi Makarechian
Chairman of the Board
A-3
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J.M. PETERS COMPANY, INC.
WRITTEN CONSENT PROXY
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS OF J.M. PETERS COMPANY, INC.
The undersigned hereby votes as follows with respect to the Agreement and
Plan of Merger between J.M. Peters Company, Inc., a Delaware corporation and
Capital Pacific Homes, Inc., a Delaware corporation attached as Exhibit A to the
accompanying Proxy Statement:
APPROVE the Agreement
DISAPPROVE the Agreement
ABSTAIN from voting with respect to the Agreement
IF THIS PROXY CARD IS SIGNED AND RETURNED TO THE COMPANY BUT NO PREFERENCE
IS INDICATED, THIS PROXY WILL BE VOTED TO APPROVE THE AGREEMENT.
IF THIS PROXY CARD IS NOT RETURNED TO THE COMPANY, THE EFFECT WILL BE THE
SAME AS THAT OF A VOTE AGAINST THE AGREEMENT.
DATED: , 1994
Signature of Stockholder
Signature of Stockholder
IMPORTANT: Please sign this proxy
card exactly as your name or names
appear hereon. If shares are held
by more than one owner, each must
sign. Executors, administrators,
trustees, guardians, and others
signing in a representative
capacity should give their full
titles.
BE SURE TO DATE THIS PROXY CARD
