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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)*
CAPITAL PACIFIC HOLDINGS, INC. (formerly J.M. Peters Company, Inc.)
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, $.10 PAR VALUE
- --------------------------------------------------------------------------------
(Title of Class of Securities)
14040M/10/4 (formerly 716035/10/0)
- --------------------------------------------------------------------------------
(CUSIP Number)
Hadi Makarechian
4100 MacArthur Boulevard
Newport Beach, California 92660 (714) 622-8400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 7, 1997
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 1 of 9
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 14040M/10/4 (formerly 716035/10/0) PAGE 2 OF 9 PAGES
-----------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CPH 2, L.L.C.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
4,113,656.4
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY EACH -----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
REPORTING
4,113,656.4
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,113,656.4
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.43%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
00
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
SCHEDULE 13D
CUSIP NO. 14040M/10/4 (formerly 716035/10/0) PAGE 3 OF 9 PAGES
-----------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CPH 3, L.L.C.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
4,640,693.6
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY EACH -----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
REPORTING
4,640,693.6
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,640,693.6
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.95%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
00
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 4
SCHEDULE 13D
CUSIP NO. 14040M/10/4 (formerly 716035/10/0) PAGE 4 OF 9 PAGES
-----------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hadi Makarechian
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
4,640,693.6
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
4,113,656.4
OWNED BY EACH -----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
REPORTING
4,640,693.6
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
4,113,656.4
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,754,350
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
58.38%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 5
SCHEDULE 13D
CUSIP NO. 14040M/10/4 (formerly 716035/10/0) PAGE 5 OF 9 PAGES
-----------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dale Dowers
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
4,113,656.4
OWNED BY EACH -----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
REPORTING
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
4,113,656.4
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,113,656.4
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.43%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 6
SCHEDULE 13D
CUSIP NO. 14040M/10/4 (formerly 716035/10/0) PAGE 6 OF 9 PAGES
-----------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Barbara Makarechian
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
4,113,656.4
OWNED BY EACH -----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
REPORTING
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
4,113,656.4
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,113,656.4
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.43%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 7
STATEMENT ON SCHEDULE 13D/A
This Amendment No. 2 to Schedule 13D ("Amendment No. 2") amends the
original Schedule 13D (as amended, the "Schedule 13D") filed by the reporting
persons on January 10, 1995, as amended by Amendment No. 1 ("Amendment No. 1")
filed on September 30, 1997. All defined terms used but not otherwise defined
herein have the meanings assigned to those terms in the Schedule 13D.
Item 5. Interest in Securities of the Issuer
Item 5 of the Schedule 13D is hereby amended in its entirety by
inserting the following in lieu thereof:
On October 7, 1997 with effect as of October 1, 1997, CPH 2, L.L.C.
("LLC") and CPH 3, L.L.C. ("CPH3") sold to California Housing Finance, L.P.
("CHF"), in a privately negotiated transaction described in detail in Item 6 of
Amendment No. 1, an aggregate of 2,484,340 shares of Common Stock of CPH for an
aggregate purchase price of $10,000,000. LLC sold to CHF 525,000 of such
shares. As of the date of this Amendment No. 2, LLC is the beneficial owner of
4,113,654.4 shares of Common Stock of CPH representing approximately 27.43 per
cent of the 14,995,000 shares of Common Stock issued and outstanding. LLC has
the sole power to vote or direct the vote, and to dispose or direct the
disposition of all such shares.
As set forth above, on October 7, 1997 with effect as of October 1,
1997, CPH3 and LLC sold to CHF, in a privately negotiated transaction described
in detail in Item 6 of Amendment No. 1, an aggregate of 2,484,340 shares of
Common Stock of CPH for an aggregate purchase price of $10,000,000. CPH3 sold
to CHF 1,959,340 of such shares. As of the date of this Amendment No. 2, CPH3
is the beneficial owner of 4,640,693.6 shares of Common Stock of CPH
representing approximately 30.95 per cent of the 14,995,000 shares of Common
Stock issued and outstanding. CPH3 has the sole power to vote or direct the
vote, and to dispose or direct the disposition of all such shares.
Hadi Makarechian, as a member of LLC, beneficially owns, has shared
power to vote or direct the vote, and to dispose or direct the disposition of,
the 4,113,656.4 shares of Common Stock of CPH held by LLC. Mr. Makarechian, as
the owner of 100 per cent of the membership interest of CPH3, has the sole
power to vote or direct the vote, and to dispose or direct the disposition of
the 4,640,693.6 shares of Common Stock of CPH held by CPH3.
Dale Dowers, as a member of LLC, beneficially owns, has shared power
to vote or direct the vote, and to dispose or direct the disposition of, the
4,113,656.4 shares held by LLC.
Page 7 of 9
<PAGE> 8
Barbara Makarechian, as a member of LLC, beneficially owns, has shared
power to vote or direct the vote, and to dispose or direct the disposition of,
the 4,113,656.4 shares held by LLC.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
Item 6 of Amendment No. 1 is amended by adding the following
information to the end thereof:
The transactions described in detail in Item 6 of Amendment No. 1 were
consummated on October 7, 1997 effective as of October 1, 1997. As more fully
set forth in Amendment No. 1, LLC and CPH3 agreed to sell to CHF, pursuant to a
Stock Purchase Agreement, Escrow Agreement, Investment and Stockholder
Agreement, Registration Rights Agreement and Indirect Stockholder Agreement
(collectively, the "Agreements"), a total of 2,484,340 shares of Common Stock
of CPH for an aggregate purchase price of $10,000,000. LLC sold to CHF 525,000
of such shares and CPH3 sold to CHF 1,959,340 of such shares. The sale was
consummated pursuant to the terms of the Agreements, including but not limited
to the Registration Rights Agreement and the Investment and Stockholder
Agreement which were executed on October 1, 1997. The final form of the
Registration Rights Agreement and the Indirect Stockholder Agreement are filed
herewith as Exhibits 2 and 3, respectively. The Stock Purchase Agreement,
Escrow Agreement and Investment and Stockholder Agreement were filed as
Exhibits 2, 3 and 4, respectively, to Amendment No. 1.
Item 7. Material to be Filed as Exhibits
Exhibit 1: Written agreement pursuant to Rule 13d-1(f)(1)(iii).
Exhibit 2: Registration Rights Agreement.
Exhibit 3: Indirect Stockholder Agreement.
[SIGNATURES ON FOLLOWING PAGE]
Page 8 of 9
<PAGE> 9
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief,
we certify that the information set forth in this statement is true, complete
and correct.
Dated as of the 10th day of October, 1997.
CPH 2, L.L.C.
By: /s/ Hadi Makarechian
Hadi Makarechian, Member
CPH 3, L.L.C.
By: /s/ Hadi Makarechian
Hadi Makarechian, Member
/s/ Hadi Makarechian
Hadi Makarechian
/s/ Dale Dowers
Dale Dowers
/s/ Barbara A. Makarechian
Barbara A. Makarechian
Page 9 of 9
<PAGE> 1
EXHIBIT 1
Written Agreement Pursuant to Rule 13d-1(f)(1)(iii)
Pursuant to Rule 13d-1(f)(1)(iii) of the Securities Exchange Act of
1934, as amended, the undersigned hereby agree that the preceding Amendment No.
2 of CPH 2, L.L.C., CPH 3, L.L.C., Hadi Makarechian, Dale Dowers, and Barbara
A. Makarechian is filed with the Securities and Exchange Commission on behalf
of each of them.
CPH 2, L.L.C.
By: /s/ Hadi Makarechian
Hadi Makarechian, Member
CPH 3, L.L.C.
By: /s/ Hadi Makarechian
Hadi Makarechian, Member
/s/ Hadi Makarechian
Hadi Makarechian
/s/ Dale Dowers
Dale Dowers
/s/ Barbara A. Makarechian
Barbara A. Makarechian
<PAGE> 1
Exhibit 2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of October 1, 1997, is
among CALIFORNIA HOUSING FINANCE L.P., a Delaware limited partnership, (the
"Purchaser"), and CAPITAL PACIFIC HOLDINGS, INC. (the "Company").
WHEREAS, the Purchaser is the beneficial owner of 2,484,340 shares of
common stock, per value $0.10 per share (the "Common Stock") of the Company
(the "Securities").
NOW THEREFORE, the parties hereto do hereby agree as follows:
SECTION 1. DEMAND REGISTRATION.
(a) The Purchaser may at any time after the date one year from the
date hereof request in writing that the Company register under the Securities
Act of 1933, as amended (the "Securities Act") all or any portion of the
Registrable Stock (as defined below) for sale in the manner specified in such
notice; and provided, that the aggregate purchase price to the public of such
public offering of the shares of Registrable Stock for which registration has
been requested shall reasonably be anticipated to exceed $1 million; and
provided, further that (i) the Company shall not be obligated to register
Purchaser's Registrable Stock pursuant to this paragraph (a) on more than one
occasion, and (ii) the Company shall not be obligated to effect a shelf
registration as such is defined in Rule 415 under the Securities Act.
(b) Following receipt of any notice delivered in compliance with
paragraph (a) of this Section 1 (a "Demand"), the Company shall use its best
efforts to register under the Securities Act, for public sale in accordance
with the method of disposition specified in such Demand, the number of shares
of Registrable Stock specified in such Demand. Purchaser may request a
specific managing underwriter or underwriters, which shall be of national
standing, subject to the approval of the Company, which approval shall not
unreasonably be withheld or unreasonably delayed. The Company shall be deemed
to have satisfied an obligation to register Registrable Stock pursuant to a
Demand when a registration statement covering at least 90% of the shares of
Registrable Stock specified in the Demand for sale in accordance with the
method of disposition specified in the Demand shall have become effective and
the period of distribution of the registration contemplated thereby has been
completed (determined as hereinafter provided).
(c) The Company shall be entitled to include in any registration
statement filed in response to a Demand made in accordance with this Section 1,
for sale in accordance with the method of disposition specified by the
Purchaser in such Demand, shares of Common Stock to be sold by the Company for
its own account or that of other security holders, except as and to the extent
that, in the opinion of the managing underwriters, such inclusion would
adversely affect the marketing of the Registrable Stock, or the price thereof
or the number of shares to be included for which registration has been
requested in connection with such Demand. Except for registration statements
on From S-4, S-8 or any successor forms thereto, the Company will not file with
the Securities and Exchange Commission (the "Commission") any other
registration statement with respect to its Common Stock, whether for its own
account or that of other security holders, from the date of receipt of a Demand
pursuant to this Section 1 until 45 days following the completion of the period
of distribution of the registration contemplated thereby (determined as
hereinafter provided).
(d) The Company may at its option elect that any requested
registration pursuant to Section 1(a) be delayed for a period not in excess of
90 days from the date of such Demand but only if, at the time of such request,
the Company is engaged in a transaction which is material to the Company and
the disclosure of which would have a material adverse effect on the Company.
<PAGE> 2
(e) Notwithstanding anything to the contrary contained in Section 1,
no Demand may be made within 90 days after the effective date of a registration
statement filed by the Company covering a firm commitment underwritten public
offering in which the Purchaser shall have been entitled to join pursuant to
Section 2 hereof and in which there shall have been effectively registered at
least 50% of the shares of Registrable Stock as to which registration shall, if
any, have been requested.
SECTION 2. INCIDENTAL REGISTRATION.
(a) If the Company at any time proposes to register any of its Common
Stock under the Securities Act for sale to the public, whether for its own
account or for the account of security holders or both, (excluding any
registration statement on Form S-4, S-8 or another form not available for
registering the Registrable Stock for sale to the public), it will each such
time give written notice to the Purchaser. Upon the written request received
by the Company within 20 days after the giving of any such notice by the
Company, to register any of the Registrable Stock, the Company will use its
best efforts to cause the Registrable Stock as to which registration shall have
been so requested to be included in the registration statement proposed to be
filed by the Company, all to the extent requisite to permit the sale or other
disposition (in accordance with its written request) of such Registrable Stock.
Alternatively, the Company may include the Registrable Stock as to which
registration shall have been requested by the Purchaser under this paragraph
2(a) in a separate registration statement to be filed concurrently with the
registration statement proposed to be filed by the Company. In the event any
registration statement filed pursuant to this Section 2 shall be, in whole or
in part, in connection with any underwritten public offering, the number of
shares of Registrable Stock to be included in such registration statement may
be reduced or may be excluded from such registration, to the extent that the
managing underwriter(s)shall give their written opinion that such inclusion
would adversely affect the number of shares to be included or the marketing or
price of the securities to be sold thereby the Company or by any security
holder other than Purchaser but for whose account such securities are to be
sold pursuant to the exercise of demand registration rights granted in
accordance with any separate agreement with the Company not in violation of
this Agreement. Such reduction or exclusion shall be pro rata among those
security holders "piggybacking" on such registration period. Notwithstanding
the foregoing provisions of this Section 2, the Company may withdraw any
registration statement referred to in this Section 2 without thereby incurring
any liability to the holders of Registrable Stock. Except as set forth above,
there shall be no limit to the number of registrations that may be requested
pursuant to this Section 2.
(b) In the event that a distribution of Registrable Stock covered by
a registration statement referred to in paragraph (a) above is to be
underwritten, then the distribution of Registrable Stock for the account of the
Purchase shall be underwritten by the same underwriters who are underwriting
the distribution of the securities for the account of the Company and/or any
other persons whose securities are covered by such registration statement, and
the holders of Registrable Stock that are selling shares of Registrable Stock
pursuant to such registration statement shall enter into the agreement with
such underwriters contemplated under Section 3.
(c) Purchaser agrees, if reasonably requested by the managing
underwriters in an underwritten offering to which the provision of this Section
2 apply, not to effect any public sale or distribution of securities of the
Company of the same class as the securities included in the registration
statement relating to such underwritten offering, including a sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
offering), during the 10 day period prior to the filing of such registration
statement, and during the period required by such underwriters, not to exceed
the 180 day period beginning on the closing date of each underwritten offering
made pursuant to such registration statement, to the extent timely notified in
writing by the Company or the managing underwriters.
SECTION 3. REGISTRATION PROCEDURES.
If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any shares of
Registrable Stock under the Securities Act, the Company will:
-2-
<PAGE> 3
(a) prepare and file with the Commission a registration statement
(which (i) in the case of an underwritten public offering pursuant to Section
1, shall be on Form S-1 or other form of general applicability reasonably
satisfactory to the managing underwriter selected as therein provided and (ii)
shall be filed within 75 days after receipt of requisite requests from holders
of Registrable Stock for registration) with respect to the Registrable Stock
and use its best efforts to cause such registration statement to become and
remain effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for the period of distribution (determined as hereafter provided) and
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Stock covered by such registration statement in
accordance with the requesting holders' intended method of disposition set
forth in such registration statement for such period;
(c) furnish to each seller of Registrable Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Registrable Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as each seller of Registrable Stock or, in the case of an
underwritten public offering, the managing underwriter shall reasonably request
to the extent required by applicable law, and do any and all other acts and
things which may be necessary under such securities or blue sky laws to enable
such seller to consummate the public sale or other distribution in such
jurisdiction to be sold by such seller, except that the Company shall not for
any such purpose be required to qualify generally to transact business as a
foreign corporation or qualify as a dealer in securities in any jurisdiction
where it is not so qualified or to consent to general service of process or
subject itself to taxation in any such jurisdiction;
(e) use its best efforts to list the Registrable Stock covered by
such registration statement with any securities exchange or automated quotation
system on which any security of the Company is then listed;
(f) immediately notify each seller of Registrable Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(g) enter into such reasonable agreements (including an underwriting
agreement, if applicable) which shall be customary in form, substance and scope
for such an arrangement between such underwriter and companies of the Company's
size and investment stature and take all such other reasonable actions in
connection therewith in order to expedite and facilitate the disposition of the
Registrable Stock to be registered;
(h) whether or not the offering is underwritten and at the request of
any seller of Registrable Stock, (i) furnish such reasonable representations
and warranties to such seller and the underwriters, if any, as are customary in
primary underwritten offerings and (ii) use best efforts to obtain (A) an
opinion of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to such seller in form
and substance as is customarily given to underwriters in an underwritten public
offering and to such other effects as reasonably may be requested by counsel
for the underwriters or by such seller or its counsel and (B) a letter dated
such date from the independent public accountants retained by the Company,
addressed to the underwriters, if any, and to such seller, in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, and such letter to
additionally cover such other financial matters
-3-
<PAGE> 4
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
(i) make available upon reasonable notice for inspection at a
reasonable time and in a reasonable manner by each seller of Registrable Stock,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or agent retained by such seller of
Registrable Stock or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company reasonably requested by such
Seller, underwriter, attorney, accountant or agent, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent for
use solely in connection with such registration statement and its due diligence
efforts relating thereto; provided, however, that any records, information or
documents that are designated by the Company in writing as confidential shall
be kept confidential by such seller and such seller shall inform such other
persons of the confidential nature of such information or documents unless
disclosure of such records, information or documents is required by court or
administrative order or such information or document becomes generally
available to the public through no breach of this provision; provided, further,
if such seller, underwriter, attorney, accountant or agent is ordered to
disclosure any of such records, documents or information, such seller will and
request such underwriter, attorney, accountant or agent to provide the Company
with prompt written notice of such requirement so that the Company at its
expense may seek a protective order or other appropriate remedy and/or waive
compliance with this provision; and in the event that such protective order or
other remedy is not obtained, or that the Company waives compliance with this
proviso, such seller agrees and will request such underwriter, attorney,
accountant or agent to agree to furnish only that portion of such records,
documents or information which such seller, underwriter, attorney, accountant
or agent is legally required to disclose in the opinion of the special counsel
or counsel representing such seller, underwriter, accountant or agent;
provided, further, the Company shall have no obligation to provide or make
available information to the extent such disclosure shall materially interfere
with the business or operations of the Company; and
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practical, but not later than 18 months after
the effective date of the registration statement, an earning statement covering
the period of at least 12 months beginning with the first full fiscal quarter
after the effective date of such registration statement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission's regulations thereunder.
For purposes of Sections 1 and 2, the period of distribution of
Registrable Stock in a firm commitment underwritten public offering shall be
deemed to extend until such underwriter has completed the distribution of all
securities purchased by it but in no event in excess of 120 days, and the
period of distribution of Registrable Stock in any other registration shall be
deemed to extend until the earlier of the sale of all Registrable Stock covered
thereby or 120 days after the effective date thereof.
In connection with each registration pursuant to this Agreement, the
sellers of Registrable Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them as
shall be reasonably requested by the Company in order to assure compliance with
federal and applicable state securities laws.
In connection with each registration pursuant to Section 1 or 2
covering an underwritten public offering, the Company and each seller of
Registrable Stock agree to enter into an underwriting agreement as contemplated
by paragraph (g) above. Without limiting the generality of the foregoing, if
such underwriting agreement contains restrictions upon the sale of securities
of the Company, other than the securities which are to be included in the
proposed distribution, then such restrictions shall be binding upon the sellers
of Registrable Stock, but not for a period exceeding 180 days from the
effective date of the registration statement and, if requested by the Company,
such sellers shall enter into a written agreement to that effect.
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<PAGE> 5
SECTION 4. EXPENSES.
(a) All expenses incurred by the Company in complying with Sections 1
through 3, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including reasonable counsel
fees) incurred in connection with complying with state securities or "blue sky"
laws, fees of the National Association of Securities Dealers, Inc., fees of a
national securities exchange, transfer taxes, fees of transfer agents and
registrars, costs of insurance of Registrable Stock and all other secondary
shares, but excluding any Selling Expenses, are called "Registration Expenses."
"Selling Expenses" as used herein means all underwriting discounts and selling
commissions applicable to the sale of Registrable Stock.
(b) Except as set forth in the next sentence, all Registration
Expenses and Selling Expenses in connection with each registration statement
prepared or filed under Section 1 shall be borne by Purchaser. All
Registration Expenses and Selling Expenses incurred in connection with each
registration statement prepared or filed under Sections 1 (only in the event
the Company elects to include other Common Stock pursuant to Section 1(c)) and
2 shall be borne by the Purchaser and the Company (and any other participating
sellers) as they are incurred (including their proportionate share of the
reasonable fees and expenses of counsel to the Company) in proportion to the
number of shares to be sold by each.
SECTION 5. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of a registration of any of the Registrable Stock
under the Securities Act pursuant to Section 1 or 2, the Purchaser shall
indemnify and hold harmless the Company, each person, if any, who controls the
Company within the meaning of the Securities Act, each officer of the Company
who signs the registration statement, each director of the Company, each
underwriter and each person who controls any underwriter within the meaning of
the Securities Act, against all losses, claims, damages or liabilities, joint
or several, to which the Company or such officer, director, underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement under
which such Registrable Stock was registered under the Securities Act pursuant
to Sections 1 or 2, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and shall pay or reimburse the Company and each such officer,
director, underwriter and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
Purchaser shall be liable hereunder in any such case if and only to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to
Purchaser, furnished to the Company by Purchaser in writing and stated
specifically for use in such registration statement or prospectus, amendment or
supplement; provided, however, that the obligation of the Purchaser hereunder
shall be limited to an amount equal to the net proceeds received by the
Purchaser from such securities sold in such registration.
(b) In the event of a registration of any of the Registrable Stock
under the Securities Act pursuant to Section 1 or 2, the Company shall
indemnify and hold harmless, to the full extent permitted by law, Purchaser,
each member, partner, officer, trustee or director of the Purchaser, each
underwriter of such Registrable Stock thereunder and each other person, if any,
who controls such Purchaser or underwriter within the meaning of the Securities
Act or the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), against any losses, claims, damages, liabilities or expenses, joint or
several, to which such Purchaser, person, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such Registrable Stock
was registered under the Securities Act pursuant to Sections 1 or 2, any
preliminary prospectus or final prospectus contained therein, or any
-5-
<PAGE> 6
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
pay or reimburse Purchaser, and each member, partner, officer, trustee or
director thereof, each such underwriter and each such controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such case if and
to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished in writing by
Purchaser, any such underwriter or any such controlling person, as the case may
be, and stated to be specifically for use in such registration statement,
prospectus, amendment or supplement.
(c) Promptly after receipt of an indemnified party hereunder or
written notice of any claim or the commencement of any action or proceeding,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party hereunder, notify the indemnifying party in
writing thereof, but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to such indemnified party other
than under this Section 5 and shall only relieve it from any liability which it
may have to such indemnified party under this Section 5 if an to the extent the
indemnifying party is prejudiced by such omission. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 5 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that if the defendants in such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
materially conflict with the interests of the indemnified party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action, with the reasonable expenses and fees of such separate counsel and
other expenses related to such participation to be reimbursed by the
indemnifying party as incurred. No indemnifying party, in the defense of any
such claim or litigation against an indemnified party, shall consent to entry
of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation, unless such indemnified party shall otherwise consent in writing.
An indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim shall not be obligated to pay the fees and expenses of more
than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless any indemnified party reasonably concludes that
there may be legal defenses reasonably available to such indemnified party with
respect to such claim which are different from or additional to those available
to any other such indemnified parties or that a material conflict of interest
may exist between such indemnified party and any other such indemnified parties
with respect to such claim, in which event the indemnifying party shall be
obligated to pay the reasonable fees and expenses of such additional counsel or
counsels.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder
of Registrable Stock exercising registration rights under Sections 1 or 2, or
any controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 5 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling holder or any such controlling person in circumstances for which
indemnification is provided under this Section 5; then, and in each such case,
the Company and such holder shall contribute to the aggregate losses, claims,
damages or liabilities including legal fees
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<PAGE> 7
and expenses incurred by such party to which they may be subject (after
contribution from others) in such proportion as is appropriate to reflect both
the relative benefit received by such holder and the relative fault of the
Company and each holder; provided, however, that, in any such case, no person
or entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
or entity who was not guilty of such fraudulent misrepresentation. For
purposes of the preceding sentence, the relative benefit received by such
holder shall be deemed to be in the same proportion as the public offering
price of such holder's Registrable Stock offered by the registration statement
bears to the public offering price of all securities offered by such
registration statement; and the relative fault of the Company and such holder
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission of a material fact
relates to information supplied by the Company, by such holder or by any
controlling person of any such holder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The indemnity obligations herein shall survive the transfer of
the Registrable Stock by the Purchaser.
SECTION 6. DEFINITIONS.
"Person" shall mean an individual, corporation, trust, partnership,
joint venture, unincorporated organization, government agency or any agency or
political subdivision thereof, or other entity.
an "Affiliate" of a person shall mean someone that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such person.
"Registrable Stock" means (a) any of the Securities and any other
securities of the Company of the same class, and (b) any securities (of the
Company or any other Person) issued or issuable with respect to any of the
Securities by way of stock dividend or stock split, a dividend or other
distribution, in connection with a combination of shares, recapitalization,
reclassification, merger, consolidation or other reorganization or otherwise.
Any Registrable Stock will cease to be Registrable Stock when (i) a
registration statement covering such Registrable Stock has been declared
effective by the SEC and the Registrable Stock has been disposed of pursuant to
such effective registration statement, or (ii) the Registrable Stock is sold
under circumstances in which all of the applicable conditions of Rule 144 (or
any similar provisions then in force) under the Securities Act are met if, as a
result of or following any sale referred to in this clause (ii), such
securities are freely transferable without restriction under the Securities
Act.
SECTION 7. MISCELLANEOUS.
(a) Parties in Interest: Assignment. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether expressed or not. No party may assign its rights
hereunder without the prior written consent of the other parties hereto, except
the Purchaser may assign all of such rights to a single Affiliate.
(b) Waiver. Any of the terms or conditions of this Agreement may be
waived at any time and from time to time in writing by the party entitled to
the benefits thereof without affecting any other terms or conditions of this
Agreement.
(c) Notices, Etc. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given, if delivered in person or by courier, telegraphed, telexed or by
facsimile transmission or mailed by certified or registered mail, postage
prepaid:
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<PAGE> 8
If to the Company: Capital Pacific Holdings, Inc.
4100 MacArthur Blvd., Suite 200
Newport Beach, California 92660
Telecopy No. (714) 622-8410
Attention: Hadi Makarechian
with a copy to:
Dag Wilkinson, Esq.
Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, D.C. 20006
Telecopy No. (202) 429-7049
If to the Purchaser:
c/o Farallon Capital Management, L.L.C.
One Maritime Plaza
Suite 1325
San Francisco, California 94111
Telecopy No.: (415) 421-2133
Attention: Steve Millham
with a copy to:
Richards Spears Kibbe & Orbe
One Chase Manhattan Plaza
57th Floor
New York, New York 10005
Attention: William Q. Orbe, Esq.
Telecopy No. (212) 530-1801
Any party may, by written notice to the other parties, change the address or
telecopy number to which notices to such party are to be delivered or mailed or
sent by facsimile transmission.
All such notices or other communications shall be effective and be deemed to
have been given as of the date on which so hand-delivered or on the third
business day following the date on which so mailed, or if delivered by
facsimile transmission, when sent and the sender receives evidence of complete
transmission without error.
(d) Entire Agreement: Amendment. This Agreement sets forth the
entire agreement and understanding of the parties in respect of the subject
matter hereof and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof, both oral and written.
No representation, promise, inducement or statement of intention has been made
by either of the parties hereto which is not embodied in this Agreement, or in
the written statements, certificates or other documents delivered pursuant
hereto and neither of the parties hereto shall be bound by or liable for any
alleged representation, promise, inducement or statement of intention not to
set forth. This Agreement may be amended or modified only by a written
instrument executed by the parties hereto or by their successors and assigns.
(e) General. This Agreement (i) shall be construed and enforced in
accordance with the laws of the State of Delaware without giving effect to the
choice of law principles thereof; and (ii) 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
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<PAGE> 9
instrument. The Section and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Severability. To the extent that any provision of this Agreement
which does not materially affect the intent of the parties hereto shall be
invalid or unenforceable, it shall be considered deleted therefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect.
[SIGNATURE PAGE FOLLOWS]
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<PAGE> 10
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and the Purchaser have executed this Agreement
as of the day and year first above written.
CAPITAL PACIFIC HOLDINGS, INC.
By: /s/ Hadi Makarechian
--------------------------------
Name: Hadi Makarechian
Title: Chairman
CALIFORNIA HOUSING FINANCE, L.P.
By: CALIFORNIA HOUSING FINANCE L.L.C.,
its General Partner
By: FARALLON CAPITAL MANAGEMENT L.L.C.,
its Manager
By: /s/ Steve Millham
----------------------------
Name: Steve Millham
Title: Managing Member
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<PAGE> 1
Exhibit 3
AGREEMENT
THIS AGREEMENT (as amended or otherwise modified from time to time
pursuant to the terms hereof, the "Agreement"), dated October 1, 1997, is among
California Housing Finance L.P., a Delaware limited partnership, (the
"Purchaser"), Capital Pacific Holdings, Inc., a Delaware corporation (the
"Company"), Capital Pacific Holdings L.L.C., a Delaware limited liability
company (the "New L.L.C."), and Hadi Makarechian, a natural person ("the
Indirect Stockholder").
WHEREAS, CPH2, L.L.C. and CPH3, L.L.C., each a Delaware limited
liability company (collectively, the "Stockholders"), and the Purchaser have
entered into a Stock Purchase Agreement dated as of September 29, 1997 (the
"Stock Purchase Agreement"), pursuant to which the Stockholders shall sell, and
the Purchaser shall buy, 2,484,340 shares (the "Shares") of Common Stock, $.10
par value, of the Company (the "Common Stock") for $10,000,000 (the "Purchase
Price") and the Purchasers, the Stockholders and Nationsbank, N.A. as escrow
agent have entered into an Escrow Agreement dated as of September 29, 1997 (the
"Escrow Agreement") pursuant to which the Stock and the Purchase Price are
escrowed pending the consummation of the transactions contemplated by this
Agreement;
WHEREAS, the Indirect Stockholder owns a majority of the membership
interests in CPH2, L.L.C. and CPH3, L.L.C.;
WHEREAS, simultaneously with the execution of this Agreement, the
Company, the Subsidiaries and the Purchaser have entered into an Investment and
Stockholder Agreement (the "Investment Agreement"), pursuant to which the
Company and the Subsidiaries shall transfer substantially all of their
respective assets to the New L.L.C. and the Purchaser shall contribute
$30,000,000 to the capital of the New L.L.C. and execute a counterpart of the
Amended and Restated Limited Liability Company Agreement of the New L.L.C. in
return for a 32.07% membership interest in the New L.L.C. and other rights.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:
SECTION 1. RESTRICTIVE COVENANTS.
(a) The Indirect Stockholder hereby agrees that he will from and
after the Closing Date during the Restrictions Period (as defined in the
Investment Agreement):
(i) not directly or indirectly (whether through an
affiliate or otherwise) conduct or invest in tract
homebuilding or production homebuilding activity
(provided any land development activity (x)
undertaken by the Indirect Stockholder at a time when
he is not the beneficial owner of more than ten
percent (10%) of
<PAGE> 2
the common equity of the Company or (y) which the
Company is unable to undertake or which the Company
and the Purchaser shall have declined to undertake
shall not be restricted hereby even if the ultimate
purpose is homebuilding) within a 100 mile radius of
any current or future project of the Company, the New
L.L.C. or any Future Affiliate or Mirror Company or
of any real property which is the subject of any
purchase agreement or option agreement to which any
such entity is a party, provided however, that in the
event any land development activity by the Indirect
Stockholder was commenced prior to the acquisition of
any such project or the entering into of such
purchase agreement or option contract by the Company,
the New L.L.C. or any Mirror Company or Future
Affiliate, the continuation of such activity of the
Indirect Stockholder shall not be in breach of this
Agreement;
(ii) not directly or indirectly hire or solicit the hiring
of any current or future employee (other than any
person related by blood or marriage to the Indirect
Stockholder) of the Company, the Subsidiaries, the
new L.L.C. or any Future Affiliate or Mirror Company;
and
(b) The Indirect Stockholder acknowledges that the breach of this
Section 1 shall cause irreparable harm to the Purchaser, which harm cannot be
reasonably, adequately or fully redressed by the payment of damages.
Accordingly, the Purchaser shall be entitled, in addition to any other right it
may have in law or in equity, to an injunction enjoining the Indirect
Stockholder from any breach or threatened breach of this Agreement. The
Indirect Stockholder hereby waives the defense in any equitable proceeding that
there is an adequate remedy at law for any such breach.
SECTION 2. REPRESENTATIONS. The Indirect Stockholder hereby represents
and warrants to the Purchaser as of the date hereof and as of the Closing Date
that:
SECTION 2.01 Legal Capacity. He has full power, legal capacity and
authority to execute, deliver and perform this Agreement and this Agreement (i)
has been duly executed and delivered, (ii) is legal, valid and binding and
enforceable against the Indirect Stockholder, and (iii) is not in contravention
of any law, order or agreement by which the Indirect Stockholder is bound.
SECTION 2.02 Organization, Qualifications and Corporate Power. Each
of CPH2, LLC and CPH3, LLC is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is duly licensed or qualified to transact business as a foreign company and
is in good standing in each jurisdiction in which the nature of the business
transacted by it or the character of the properties owned or leased by it
requires such licensing or qualification, except where the failure to be so
licensed or qualified and in good standing would not, individually or in the
aggregate, have a material adverse effect on the business, financial condition,
results of operations, prospects, properties, assets or affairs of CPH2, LLC or
CPH3, LLC, respectively, or the ability of CPH2, LLC or CPH3, LLC, to perform
and comply in all material respects with all of its respective covenants and
agreements
-2-
<PAGE> 3
contained in the Stock Purchase Agreement (a "Material Adverse Effect"). Each
of the Stockholders has full power and authority (i) to own and hold its
properties and to carry on its business as now conducted, and (ii) to execute,
deliver and perform its obligations under the Stock Purchase Agreement.
SECTION 2.03 Common Stock Ownership. The Stockholders are the
beneficial and record owner of the Shares in the respective amounts set forth
on Schedule A to the Stock Purchase Agreement, free and clear of any lien,
claim, encumbrance or security interest of any kind (each a "Lien"), and at the
Closing under the Stock Purchase Agreement will transfer to the Purchaser good
and marketable title to such Shares, free and clear of any Lien.
SECTION 2.04 Authorization of Agreement, Etc. The execution and
delivery by the Stockholders and the performance by the Stockholders of their
respective obligations under the Stock Purchase Agreement, and the sale and
delivery of the Shares by the Stockholders, have been duly authorized by the
relevant proceedings of each Stockholder and will not (i) violate any provision
of law or regulatory agency (including any stock exchange rules or
requirements), or any order of any court or other agency of government, (ii)
conflict with or result in a breach of any provision of the limited liability
company agreement of either Stockholder, (iii) conflict with, result in a
violation or breach of or constitute (with due notice or lapse of time or both)
a default under, any note, bond, mortgage, indenture, deed of trust, license,
lease, joint venture agreement, collaborative arrangement or relationship or
other contract, commitment or agreement or other instrument or obligation to
which either Stockholder or any of its properties or assets may be bound or
(iv) result in the creation or imposition of any lien, claim, encumbrance or
security interest of any kind upon any of the properties or assets of either
Stockholder.
SECTION 2.05 Validity. The Stock Purchase Agreement has been duly
executed and delivered by the Stockholders and constitutes the legal, valid and
binding obligations of the Stockholders, enforceable against the Stockholders
in accordance with its terms, except as the enforceability hereof may be
limited (i) by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and (ii) by general
equitable principles regardless of whether considered in a proceeding in equity
or at law.
SECTION 2.06 Governmental Approvals. Subject to the accuracy of the
representations and warranties of the Purchaser set forth in Section 3.04 of
the Stock Purchase Agreement, no registration or filing with, or consent or
approval of or other action by, any Federal, state or other governmental agency
or instrumentality or regulatory body is or will be necessary for the valid
execution, delivery and performance by the Stockholders of the Stock Purchase
Agreement, or the delivery, sale and transfer of the Shares to the Purchaser
thereunder other than any filings necessary pursuant to Sections 13 and 16 of
the Securities Exchange Act of 1934 and the associated regulations.
SECTION 2.07 Capitalization.
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<PAGE> 4
(a) The authorized capital stock of the Company consists of (1)
30,000,000 shares of Common Stock, and (2) 5,000,000 shares of Preferred Stock.
As of the date of this Agreement, 14,995,000 shares of Common Stock and no
shares of Preferred Stock (together with the Common Stock, the "Company Stock")
are outstanding. All of the Shares have been duly authorized, validly issued
and are fully paid and nonassessable. Except for the Company Stock, there are
no shares of capital stock or other equity securities of the Company
outstanding.
(b) Except for the warrants to purchase 790,000 shares of Common
Stock and as contemplated by the Related Agreements, (i) there are no
preemptive or similar rights on the part of any holder of any class of
securities of the Company, and (ii) no options, warrants, conversion or other
rights, agreements or commitments of any kind are outstanding that obligate the
Company, contingently or otherwise, to issue, sell, purchase, return or redeem
any shares of its capital stock of any class or any securities convertible into
or exchangeable for any such shares, and no authorization therefor has been
given. No shares of capital stock of the Company are held in the Company's
treasury and except in respect of the warrants described above no shares of
capital stock of the Company are reserved for issuance. There are no voting
trusts, stockholder agreements, proxies or other agreements or understandings
in effect with respect to the voting or transfer of any of the Shares.
(c) Notwithstanding anything to the contrary set forth herein, the
sole remedy for any breach of the representations and warranties set forth in
subparagraph (b) above shall be a purchase price adjustment (the "Purchase
Price Adjustment") on a retrospective basis so that either (i) the number of
Shares transferred to the Purchaser is increased or (ii) the Purchase Price is
decreased so that, in either such event, the Purchaser shall have as of the
Closing Date the economic equivalent of 15.74% of the capital stock of the
Company (on a fully diluted basis) in consideration of the Purchase Price. The
Indirect Stockholder shall cause the Stockholders to effect the Purchase Price
Adjustment in any such event, and the parties agree that an interest factor of
ten percent (10%) from the Closing Date until the effective date of any such
Purchase Price Adjustment shall be included in the Purchase Price Adjustment to
compensate the Purchaser for the delay in obtaining such economic equivalent.
SECTION 3. MISCELLANEOUS.
SECTION 3.01 Definitions. Capitalized terms not otherwise defined
herein shall have their respective meanings set forth in the Investment
Agreement.
SECTION 3.02 Survival. Any representation and warranty made herein
shall survive the execution and delivery of this Agreement, and the sale,
transfer and delivery of the Shares pursuant to the Stock Purchase Agreement
for a period of eighteen (18) months.
SECTION 3.03 Parties in Interest; Assignment. All representations,
warranties, covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties
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hereto whether so expressed or not. No party may assign its rights hereunder
without the prior written consent of the other parties hereto.
SECTION 3.04 Waiver. Any of the terms or conditions of this
Agreement may be waived at any time and from time to time in writing by the
party entitled to the benefits thereof without affecting any other terms or
conditions of this Agreement.
SECTION 3.05 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given, if delivered in person or by courier, telegraphed, telexed or by
facsimile transmission or mailed by certified or registered mail, postage
prepaid:
If to the Indirect Stockholder: Hadi Makarechian
c/o Capital Pacific Holdings, Inc.
4100 MacArthur Blvd., Suite 200
Newport Beach, California 92660
Telecopy No.: (714) 622-8410
If to the Stockholders: CPH2, L.L.C. or CPH3, L.L.C.
Attention: Hadi Makarechian
c/o Capital Pacific Holdings, Inc.
4100 MacArthur Blvd., Suite 200
Newport Beach, California 92660
Telecopy No.: (714) 622-8410
If to the Company: Hadi Makarechian
Chairman of the Board
Capital Pacific Holdings, Inc.
4100 MacArthur Blvd., Suite 200
Newport Beach, California 92660
Telecopy No.: (714) 622-8410
with a copy to: Dag Wilkinson, Esq.
Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, DC 20006
Telecopy No.: (202) 429-7049
If to the Purchaser: c/o Farallon Capital Management, L.L.C.
One Maritime Plaza
Suite 1325
San Francisco, California 94111
Attention: Steve Millham
Telecopy No.: (415) 421-2133
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<PAGE> 6
with a copy to: Richards Spears Kibbe & Orbe
One Chase Manhattan Plaza
57th Floor
New York, New York 10005
Attention: William Q. Orbe, Esq.
Telecopy No.: (212) 530-1801
Any party may, by written notice to the other parties, change the address or
telecopy number to which notices to such party are to be delivered or mailed or
sent by facsimile transmission. All such notices or other communications shall
be effective and be deemed to have been given as of the date on which such
notices are actually received.
SECTION 3.06 Entire Agreement; Amendment. This Agreement and the
Related Agreements set forth the entire agreement and understanding of the
parties in respect of the transactions contemplated hereby and supersede all
other agreements, arrangements and understandings relating to the subject
matter hereof, both oral and written. No representation, promise, inducement
or statement of intention has been made by any of the parties hereto which is
not embodied in this Agreement, or the written statements, certificates or
other documents delivered pursuant hereto or the Related Agreements referred to
above, and none of the parties hereto shall be bound by or liable for any
alleged representation, promise, inducement or statement of intention not so
set forth. This Agreement and the Related Agreements may be amended or
modified only by a written instrument executed by the parties hereto or by
their successors and assigns.
SECTION 3.07 General. This Agreement (i) shall be construed and
enforced in accordance with the laws of the State of Delaware without giving
effect to the choice of law principles thereof; and (ii) may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The Section and other
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
SECTION 3.08 Severability. To the extent that any provision of this
Agreement which does not materially affect the intent of the parties hereto
shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect.
[SIGNATURE PAGE FOLLOWS]
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<PAGE> 7
SIGNATURE PAGE TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CAPITAL PACIFIC HOLDINGS, INC.,
By: /s/ Hadi Makarechian
----------------------------------
Hadi Makarechian
Chairman
CALIFORNIA HOUSING FINANCE, L.P.
By: California Housing Finance L.L.C.
Its General Partner
By: Farallon Capital Management, L.L.C.
Its Manager
By: /s/ Steve Millham
----------------------------------
Steve Millham
Managing Member
CAPITAL PACIFIC HOLDINGS, L.L.C.
By: Capital Pacific Holdings, Inc.
Managing Member
By: /s/ Hadi Makarechian
----------------------------------
Hadi Makarechian
Chairman
/s/ Hadi Makarechian
--------------------------------------
Hadi Makarechian, personally
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