UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Capital Pacific Holdings, Inc. (CPH)
(Name of Issuer)
Common Stock, par value $0.10
(Title of Class of Securities)
CUSIP No. 14040M104
(CUSIP Number)
Thomas F. Steyer
Farallon Capital Management, L.L.C.
One Maritime Plaza, Suite 1325
San Francisco, California 94111
(415) 421-2132
(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 .
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 that Act but shall be subject to all other provisions
of the Act (however, see the Notes).
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
California Housing Finance, L.P.
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
WC, AF, OO
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each Report-
ing Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
California Housing Finance, L.L.C.
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
WC, AF
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each Report-
ing Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
00
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Farallon Capital Management, L.L.C.
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each
Reporting Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IA, 00
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Enrique H. Boilini
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
5 Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(d) or 2(e)
6 Citizenship or Place of Organization
Argentina
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each
Reporting Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
David I. Cohen
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
5 Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(d) or 2(e)
6 Citizenship or Place of Organization
South Africa
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each
Reporting Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Joseph F. Downes
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each
Reporting Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
PAGE
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Jason M. Fish
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each
Reporting Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Andrew B. Fremder
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each
Reporting Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
William F. Mellin
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each
Reporting Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Stephen L. Millham
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each
Reporting Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Meridee A. Moore
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each
Reporting Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 14040M104
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Thomas F. Steyer
2 Check the Appropriate Box if a Member of a Group*
(a)
(b) /x/
3 SEC Use Only
4 Source of Funds*
AF
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
Number of Shares Beneficially Owned By Each
Reporting Person With
7 Sole Voting Power
-0-
8 Shared Voting Power
2,484,340
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,484,340
11 Aggregate Amount Beneficially Owned By Each Report-
ing Person
2,484,340
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares*
13 Percent of Class Represented by Amount in Row (11)
16.6%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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This Amendment No. 1 to Schedule 13D
amends the Schedule 13D initially filed on
September 30, 1997 (collectively, with all
amendments thereto, the "Schedule 13D").
Item 2. Identity and Background.
Item 2 of the Schedule 13D is amended and restated in its
entirety as follows:
(a) This statement is filed by: (i) California
Housing Finance, L.P., a Delaware limited
partnership ("CHF"), with respect to the Shares
held by it; (ii) California Housing Finance, L.L.C.,
a Delaware limited liability company ("CHFLLC"),
with respect to the Shares held by CHF; (iii)
Farallon Capital Management, L.L.C., a Delaware
limited liability company ("FCMLLC"), with respect
to the Shares held by CHF; and (iv) each of Enrique
H. Boilini ("Boilini"), David I. Cohen ("Cohen"),
Joseph F. Downes ("Downes"), Jason M. Fish ("Fish"),
Andrew B. Fremder ("Fremder"), William F. Mellin ("Mellin"),
Stephen L. Millham ("Millham"), Meridee A. Moore ("Moore") and
Thomas F. Steyer ("Steyer"), with respect to the Shares
held by CHF (CHF, CHFLLC, FCMLLC, Boilini, Cohen, Downes,
Fish, Fremder, Mellin, Millham, Moore and Steyer shall
collectively be referred to hereafter as the "Reporting
Persons").
As stated above, CHF is a Delaware limited partnership.
Its general partner is CHFLLC and its limited partners are
Farallon Capital Partners, L.P., a California limited partnership
("FCP"), a discretionary account managed by FCMLLC (the
"Managed Account"), RR Capital Partners, L.P., a Delaware
limited partnership ("RR") and Farallon Special Situation
Partners,
L.P., a Delaware limited partnership ("FSSP").
As stated above, CHFLLC is a Delaware limited liability
company. Its manager is FCMLLC. The members of CHFLLC
are FCP, the Managed Account, RR and FSSP.
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The Shares reported hereby for CHF are owned directly
by it. CHFLLC, as general partner of CHF, may be deemed to be
the beneficial owner of all Shares owned by CHF. FCMLLC, as
manager of CHFLLC, may be deemed to be the beneficial owner
of all Shares owned by CHF. Each of Boilini, Cohen, Downes,
Fish, Fremder, Mellin, Millham, Moore and Steyer may be
deemed, as managing members of FCMLLC, to be the beneficial
owner of all Shares owned by CHF. Each of CHFLLC, FCMLLC,
Boilini, Cohen, Downes, Fish, Fremder, Mellin, Millham, Moore
and Steyer hereby disclaim any beneficial ownership of any such
Shares.
The name, address, principal business, state of
organization, executive officers, directors and
controlling persons of CHF, CHFLLC, FCMLLC are set forth on
Annex 1 hereto.
(b) The address of the principal business and
principal office of CHF, CHFLLC and FCMLLC
is One Maritime Plaza, Suite 1325, San Francisco,
California 94111.
(c) The principal business of CHF is to invest in
and engage in certain financial transactions with the
Company and its affilialtes. The principal business
of CHFLLC is to act as the general partner of CHF.
The principal business of FCMLLC is that of a registered
investment adviser. FCMLLC also acts as the manager
of CHFLLC.
(d) None of CHF, CHFLLC, FCMLLC
or any of the persons listed on Annex 1 hereto
has, during the last five years, been convicted in a
criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) None of CHF, CHFLLC, FCMLLC
or any of the persons listed on Annex 1 hereto
has, during the last five years, been party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and, as a result of such proceeding, was, or
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is subject to, a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding
any violation with respect to such laws.
Item 4. Purpose of the Transaction.
Item 4 of the Schedule 13D is amended and restated in its
entirety as follows:
The Shares were acquired as an investment in the Company made
in conjunction with the Transaction. Each Reporting Person at
any time and from time to time may acquire additional Shares or
dispose of any or all of its Shares depending upon an ongoing
evaluation of the investment in the Shares, prevailing market
conditions, other investment opportunities, liquidity
requirements of the Reporting Person and/or other
investment considerations. No Reporting Person has
made a determination regarding a maximum or minimum number of
Shares which it may hold at any point in time. In addition, no
Reporting Person has made a determination whether or how it may
exercise its rights under the "tag-along" or "buy-sell"
provisions discussed below.
The Transaction consists of the following: (i) the Company
and its subsidiaries have contributed substantially all of their
assets and liabilities to a newly-formed limited liability
company (the "New LLC") which is wholly-owned by the Company and
its subsidiaries and (ii) immediately after such contribution,
and simultaneously with the acquisition of the Shares by CHF, CHF
has contributed $30 million to the New LLC in exchange for 32.07%
of the equity interests in the New LLC. The Company and its
subsidiaries retained the remaining 67.93% of the equity
interests of the New LLC and the Company is the sole manager
of the New LLC. In addition, as part of the Transaction, the
operations of the Company are being restructured such that the
present business of the
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Company will be conducted through the New LLC and future business
of the Company will, unless CHF otherwise consents, be conducted
through one or more separate limited liability companies or
limited partnerships which will be established for such purpose.
In connection with the Transaction, CHF, the Company, the
New LLC and two of the Company's stockholders (namely, CPH2, LLC
and CPH3, LLC) (the "Stockholders") have entered into several
agreements relating to the Shares in addition to the Investment
and Stockholder Agreement, which agreements are detailed below
and attached hereto.
CHF, the Company, the New LLC and the Stockholders have
entered into the Investment and Stockholder Agreement. Pursuant
to Section 6.05 of the Investment and Stockholder Agreement, CHF
is granted several minority protections with respect to
the Company which gives CHF the right to prevent certain
transactions and actions by the Company, including the ability to
veto the annual business plan of the Company. For a complete
description of such protections see Section 6.05 of Exhibit B to
the Schedule 13D filed by the Reporting Persons on September 30,
1997. (Section 6.05(2)). These minority protections are intended
to protect CHF's investment in the Company and the New LLC. CHF
intends to use such minority protections to maximize and protect
the value ofCHF's investment in the Company and the New LLC.
The Investment and Stockholder Agreement also contains in
Section 7.03 a "buy-sell" arrangement pursuant to which, from and
after the date which is 36 months after the date of consummation
of the Transaction, either CHF or the Stockholders may make an
offer to buy all of the other party's shares of Company stock and
interests in the New LLC, or sell all of their shares of Company
stock and interests in the New LLC to the other party, at an
offer price. The party receiving such offer has the right either
to buy the
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other party's shares of Company stock and interests
in the New LLC, or to sell their shares of Company stock and
interests in the New LLC to the offering party, at the offer
price. If CHF were to buy the Stockholders' shares of Company
stock pursuant to such arrangement, it would own more than 50% of
the outstanding shares of the Company at that time.
Section 7.01 of the Investment and Stockholder Agreement
provides a "tag-along" right of CHF and the Stockholders. This
provision provides that if CHF or the Stockholders wish to sell
any of their shares of Company stock to a third party, the non-
selling party has the right to sell a pro rata portion of their
shares of Company stock to such third party on the same terms and
conditions.
Section 7.02 of the Investment and Stockholder Agreement
provides that if at any time either (a) CHF or any of its
affiliates acquires any shares of Company stock, CHF will offer
to purchase twice as many shares from the Stockholders for the
same price, or (b) any of the Stockholders acquires any shares of
Company stock, the Stockholders will offer to purchase twice as
many shares from CHF for the same price.
CHF and the Company have also entered into a Registration
Rights Agreement substantially in the form attached hereto as
Exhibit A (the "Registration Rights Agreement") pursuant to which
the Company has agreed, upon the request of CHF, to publicly
register the Shares held by CHF under the Securities Act of 1933,
as amended.
In order to maximize and protect the value of CHF's
investment in the Company and the New LLC and to exercise its
minority protections and other rights, the Reporting Persons
intend to engage in communications with one or more shareholders
of the Company, one or more officers of the Company and/or one or
more members of the
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board of directors of the Company regarding the Company and its
affiliates and subsidiaries, including but not limited to their
operations.
Except to the extent any of the foregoing may be deemed a
plan or proposal, none of the Reporting Persons has any plans or
proposals which relate to, or could result in, any of the matters
referred to in paragraphs (a) through (j), inclusive, of the
instructions to Item 4 of Schedule 13D. The Reporting Persons
may, at any time and from time to time, review or reconsider
their position and/or change their purpose and/or formulate plans
or proposals with respect thereto.
Item 5. Interest in Securities of the Issuer.
Item 5 of the Schedule 13D is amended and
restated in its entirety as follows:
A. California Housing Finance, L.P.
(a), (b) The information set forth in
Rows 7, 8, 9, 10, 11 and 13 of the cover page hereto for
CHF is incorporated herein by reference. The percentage
amount set forth in Row 13 of such cover page and of each
other cover page filed herewith is calculated based upon the
14,995,000 Shares outstanding as of July 15, 1997 as reported by
the Company in its Form 10Q for the period ended May 31, 1997.
(c) There have been no transactions in the Shares
since the filing of the prior Schedule 13D. Prior transactions
are restated in Schedule A hereto to report the removal of
conditions to closing reported in t he original Schedule 13D.
(d) CHFLLC, as general partner of CHF, has the
power to direct the affairs of CHF, including the disposition of
the proceeds of the sale of the Shares owned by CHF. FCMLLC,
as manager of CHFLLC, has the power to direct the affairs
of CHFLLC, including the disposition of the proceeds of the sale
of the Shares. Steyer is the
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senior managing member of FCMLLC, and Boilini, Cohen, Downes,
Fish, Fremder, Mellin, Millham and Moore are managing members of
FPLLC.
(e) Not applicable.
B. California Housing Finance, L.L.C.
(a), (b) The information set forth in Rows 7, 8, 9, 10,
11 and 13 of the cover page hereto for CHFLLC is incorporated
herein by reference.
(c) None.
(d) FCMLLC, as manager of CHFLLC, has the power
to direct the affairs of CHFLLC, including the disposition of the
proceeds of the sale of the Shares. Steyer is the senior
managing member of FCMLLC, and Boilini, Cohen, Downes, Fish,
Fremder, Mellin, Millham and Moore are managing members of
FCMLLC.
(e) Not applicable.
C. Farallon Capital Management, L.L.C.
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for
FCMLLC is incorporated herein by reference.
(c) None.
(d) Steyer is the senior managing member of
FCMLLC and Boilini, Cohen, Downes, Fish, Fremder,
Mellin, Millham and Moore are managing members of FCMLLC.
(e) Not applicable.
D. Enrique H. Boilini
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for
Boilini is incorporated herein by reference.
(c) None.
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(d) Boilini is a managing member of FCMLLC.
(e) Not applicable.
E. David I. Cohen
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for Cohen
is incorporated herein by reference.
(c) None.
(d) Cohen is a managing member of FCMLLC.
(e) Not applicable.
F. Joseph F. Downes
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for
Downes is incorporated herein by reference.
(c) None.
(d) Downes is a managing member of FCMLLC.
(e) Not applicable.
G. Jason M. Fish
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for Fish
is incorporated herein by reference.
(c) None.
(d) Fish is a managing member of FCMLLC.
(e) Not applicable.
H. Andrew B. Fremder
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for
Fremder is incorporated herein by reference.
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(c) None.
(d) Fremder is a managing member of FCMLLC.
(e) Not applicable.
I. William F. Mellin
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for
Mellin is incorporated herein by reference.
(c) None.
(d) Mellin is a managing member of FCMLLC.
(e) Not applicable.
J. Stephen L. Millham
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for
Millham is incorporated herein by reference.
(c) None.
(d) Millham is a managing member of FCMLLC.
(e) Not applicable.
K. Meridee A. Moore
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for Moore
is incorporated herein by reference.
(c) None.
(d) Moore is a managing member of FCMLLC.
(e) Not applicable.
PAGE
<PAGE>
L. Thomas F. Steyer
(a), (b) The information set forth in Rows
7, 8, 9, 10, 11 and 13 of the cover page hereto for
Steyer is incorporated herein by reference.
(c) None.
(d) Steyer is the senior managing member of
FCMLLC.
(e) Not applicable.
The Shares reported hereby for
CHF are owned directly by it. CHFLLC, as general
partner of CHF, may be deemed to be the beneficial
owner of all Shares owned by CHF. FMCLLC, as
manager of CHFLLC, may be deemed to be the
beneficial owner of all Shares owned by CHF.
Each of Boilini, Cohen, Downes, Fish, Fremder,
Mellin, Millham, Moore and Steyer may be deemed,
as managing members of FCMLLC, to be the beneficial
owner of all Shares owned by CHF. Each of CHFLLC,
FCMLLC, Boilini, Cohen, Downes, Fish, Fremder,
Mellin, Millham, Moore and Steyer hereby disclaim
any beneficial ownership of any such Shares.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
Item 6 of the Schedule 13D is amended and restated
in its entirety as follows:
In connection with the Transaction, CHF and the
Stockholders have entered into an Investment and Stockholder
Agreement and have entered into a Registration Rights Agreement.
The terms of such agreements are described in Item 4 of this
Schedule 13D, and such agreements are attached as exhibits to
the Schedule 13D pursuant to Item 7.
In addition, CHF and the Stockholders have entered into
a Stock Purchase Agreement substantially in the form
attached as Exhibit D of the schedule 13D filed by the
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<PAGE>
Reporting Person on September 30, 1997(the "Stock Purchase
Agreement")containing customary representations,
warranties, covenants and indemnities. CHF and the manager
of the Stockholders have also enter into an agreement
substantially in the form attached hereto as Exhibit E (the
"Agreement") pursuant to which such manager made certain
representations and warranties with respect to the Shares. CHF,
the Stockholders and NationsBank, N.A. (the "Escrow Agent") have
also enter into an Escrow Agreement substantially in the form
attached as Exhibit F of the schedule 13D filed by the
Reporting Person on September 30, 1997. (the "Escrow Agreement")
pursuant to which CHF will deposit the purchase price for the
Shares, and the Stockholders will deposit the Shares, with the
Escrow Agent.
Except as described above, there are no contracts,
arrangements, understandings or relationships (legal or
otherwise) among the Reporting Persons or between such persons
and any other person with respect to any securities of the
Company, including but not limited to transfer or voting of any
securities of the Company, finder's fees, joint ventures, loan or
option arrangements, puts or calls, guarantees of profits,
divisions of profits or loss, or the giving or withholding of
proxies.
Item 7. Materials to be Filed as Exhibits.
Item 7 of the Schedule 13D is amended and restated in its
entirety as follows:
There is filed herewith as Exhibits A the Registration
Rights Agreement and as B the Agreement as described in Items 4
and 6 above.
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<PAGE>
SIGNATURES
After reasonable inquiry and to the best of our
knowledge and belief, the undersigned certify that the
information set forth in this statement is true, complete
and correct.
Dated: October 9, 1997
CALIFORNIA HOUSING FINANCE, L.P.
By: California Housing Finance, L.L.C.,
its General Partner
By: Farallon Capital Management, L.L.C.
its Manager
/s/ Thomas F. Steyer
by: Thomas F. Steyer,
Senior Managing Member
CALIFORNIA HOUSING FINANCE, L.L.C.
By: Farallon Capital Management, L.L.C.
its Manager
/s/Thomas F. Steyer
by: Thomas F. Steyer,
Senior Managing Member
FARALLON CAPITAL MANAGEMENT, L.L.C.
/s/Thomas F. Steyer
by: Thomas F. Steyer
Senior Managing Member
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(Continued from previous page)
/s/ Thomas F. Steyer
Thomas F. Steyer,
individually and as
attorney-in-fact for each
of Enrique H. Boilini, David I.
Cohen, Joseph F. Downes,
Jason M. Fish, Andrew B. Fremder,
William F. Mellin, Stephen L.
Millham, and Meridee A. Moore.
The Powers of Attorney each executed by Boilini, Cohen,
Fish, Fremder, Mellin, Millham and Moore authorizing Steyer
to sign and file this Schedule 13D on each such person's behalf
was filed with Amendment No. 1 to the Schedule 13D filed with
the SEC on September 26, 1997 by such Reporting Persons with
respect to the Common Stock of Sphere Drake Holdings Limited
is hereby incorporated by reference.
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<PAGE>
SCHEDULE A
CALIFORNIA HOUSING FINANCE, L.P.
NO. OF SHARES PRICE
TRADE DATE PURCHASED PER SHARE
(Including
commission)
9/29/97 2,484,340 $4.03
PAGE
<PAGE>
EXHIBIT INDEX
EXHIBIT A Registration Rights Agreement
EXHIBIT B Agreement
PAGE
<PAGE>
EXHIBIT A
PAGE
<PAGE>
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
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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.
(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.
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(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:
(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;
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(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 (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;
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(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.
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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.
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
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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 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, andeach 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
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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 holderor 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 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
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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.
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(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:
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
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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 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.
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<PAGE>
(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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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>
EXHIBIT B
PAGE
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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 theStock and the Purchase Price are escrowed
pending the consummation of the transactions contemplated by
thisAgreement;
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
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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
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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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(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 CPH2, L.L.C. or CPH3, L.L.C.
Stockholders: 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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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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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
By: /s/ Hadi Makarechian
Hadi Makarechian,
personally
524200v6
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