AS FILED WITH SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 31, 1997
REGISTRATION NO. 333-35671
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
PACIFIC GREYSTONE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1521 95-4337490
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NO.)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
6767 FOREST LAWN DRIVE, SUITE 300
LOS ANGELES, CALIFORNIA 90068-1027
(213) 436-6300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JACK R. HARTER
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
6767 FOREST LAWN DRIVE, SUITE 300
LOS ANGELES, CALIFORNIA 90068-1027
(213) 436-6300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
STEPHANIE J. SELIGMAN RICHARD BOEHMER DAVID W. BERNSTEIN
WACHTELL, LIPTON, O'MELVENY & MYERS LLP ROBERT E. KING, JR.
ROSEN & KATZ 400 SOUTH HOPE STREET ROGERS & WELLS
51 WEST 52ND STREET LOS ANGELES, 200 PARK AVENUE
NEW YORK, NEW YORK CALIFORNIA 90071 NEW YORK, NEW YORK 10166
10019 (212) 403-1000 (213) 669-6000 (212) 878-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the Registration Statement becomes effective
and all other conditions to the Merger of Lennar Corporation with Pacific
Greystone Corporation pursuant to the Plan and Agreement of Merger
described in the enclosed Joint Proxy Statement/Prospectus have been
satisfied or waived.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. [ ]<PAGE>
CALCULATION OF REGISTRATION FEE
TITLE OF PROPOSED PROPOSED AMOUNT OF
EACH CLASS OF MAXIMUM MAXIMUM AGGREGATE
SECURITIES TO AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE(2) PRICE(2) FEE(3)(4)
Common Stock,
$.10 par value 26,097,675 $18.125 $473,020,359 $50,173.00
shares(1)
Class B Common
Stock, $.10
par value 9,966,631 $20.61 $205,412,266 $21,163.00
shares(1)
(1) This Registration Statement covers the maximum number of shares of
Common Stock and Class B Common Stock of the registrant that are
expected to be issued in connection with the transactions
described herein.
(2) Determined pursuant to Rule 457(f)(1) and (2). (Based on the
high/low sales price of the Common Stock on September 11, 1997 and
the most recently available book value for the Class B Common
Stock.)
(3) Pursuant to Rule 457(b), the fee is after deduction of $134,250.00
paid with respect to the transaction pursuant to Section 14(g) of
the Securities Exchange Act of 1934.
(4) Fee has been previously paid.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the Delaware General
Corporation Law (the "DGCL") empowers a corporation to
indemnify any director or officer, or former director or
officer, who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or
proceeding provided that such director or officer acted in good
faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, provided that
such director or officer had no cause to believe his or her
conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a
corporation to indemnify any director or officer, or former
director or officer, who was or is a party or is threatened to
be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person
acted in any of the capacities set forth above, against
expenses actually and reasonably incurred in connection with
the defense or settlement of such action or suit provided that
such director or officer acted in good faith and in a manner
reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification
may be made in respect of any claim, issue or matter as to
which such director or officer shall have been adjudged to be
liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action was
brought shall determine that despite the adjudication of
liability such director or officer is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem
proper.
Section 145 of the DGCL further provides that to the
extent a director or officer of a corporation has been
successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith; that
indemnification provided for in Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party
may be entitled; and that the corporation shall have power to
purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted
against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or
not the corporation would have the power to indemnify him or
her against such liabilities under Section 145.
Article Nine of Greystone's Certificate of
Incorporation provides that no director shall be personally
liable to Greystone or to its stockholders for monetary damages
for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty
II-1<PAGE>
to Greystone or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL
or (iv) for any transaction from which the director derived an
improper personal benefit. In addition, Greystone maintains
director and officer liability insurance policies.
II-2<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
The following Exhibits are filed as part of this
Registration Statement:
EXHIBIT
NO. DESCRIPTION
2.1 Plan and Agreement of Merger, dated as of June 10,
1997, between Pacific Greystone Corporation and Lennar
Corporation (included as Annex I to the Joint Proxy
Statement/Prospectus).
5.1 Opinion of O'Melveny & Myers LLP regarding legality of
securities to be issued.**
8.1 Opinion of Rogers & Wells regarding federal income tax
matters.**
8.2 Opinion of Wachtell, Lipton, Rosen & Katz regarding
federal income tax matters.**
8.3 Opinion of Wachtell, Lipton, Rosen & Katz, dated
October 31, 1997, regarding federal income tax matters.
23.1 Consent of O'Melveny & Myers LLP (contained in Exhibit
5.1).
23.2 Consent of Rogers & Wells (contained in Exhibit 8.1).
23.3 Consent of Wachtell, Lipton, Rosen & Katz (contained in
Exhibit 8.2 and Exhibit 8.3).
23.4 Consent of Ernst & Young LLP (relating to financial
statements of Pacific).**
23.5 Consent of Deloitte & Touche LLP.**
99.1 Consent of Smith Barney Inc.**
99.2 Form of Greystone's Proxy Card.**
99.3 Form of Lennar's Proxy Card.**
(b) Financial Statement Schedules:
Independent Auditors' Report on Schedules**
Schedule II -- Valuation and Qualifying Accounts for fiscal
years 1994, 1995 and 1996 of Lennar Corporation.*
Schedule III -- Real Estate and Accumulated Depreciation for
Lennar Corporation.*
* Incorporated by reference to Lennar Corporation's Annual
Report on Form 10-K for the fiscal year ended November 30, 1996
(File No. 6643).
** Previously filed.
II-3<PAGE>
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration,
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(c) The undersigned Registrant hereby undertakes as
follows: that prior to any public reoffering of the securities
registered hereunder through use of a prospectus which is a
part of this registration statement, by any person or party who
is deemed to be an underwriter within the meaning of Rule
145(c), the issuer undertakes that such reoffering prospectus
will contain the
II-4<PAGE>
information called for by the applicable registration form with
respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the
other items of the applicable form.
(d) The Registrant undertakes that every prospectus: (i)
that is filed pursuant to paragraph (b) immediately preceding
or (ii) that purports to meet the requirements of Section
10(a)(3) of the Securities Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as
a part of an amendment to the Registration Statement and will
not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the provisions described in Item 20 hereof, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless, in the opinion of its counsel, the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
(f) The undersigned registrant hereby undertakes to
respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11 or
13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date
of the registration statement through the date of responding to
this request.
(g) The undersigned registrant hereby undertakes to
supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in
the registration statement when it became effective.
(h) The undersigned registrant hereby undertakes that it
will not waive the condition to its obligations to complete the
Merger that the undersigned receive the favorable opinion of
Wachtell, Lipton, Rosen & Katz with regard to the matters
described in the Prospectus contained in this Registration
Statement under the heading "Certain Federal Income Tax
Consequences" without seeking further stockholder approval
before consummating the Merger.
II-5<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, Pacific Greystone Corporation has duly caused
this Amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Los Angeles, State of
California, on the 31st day of October, 1997.
PACIFIC GREYSTONE CORPORATION
By: /s/ Jack R. Harter
-------------------------------------
Jack R. Harter
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Jack R. Harter Chairman, President, October 31, 1997
------------------- Chief Executive
Jack R. Harter Officer and Director
(Principal Executive
Officer)
* Vice Chairman, October 31, 1997
------------------- Chief Financial
Antonio B. Mon Officer and Director
(Principal Financial
Officer)
* Senior Vice President, October 31, 1997
------------------- Controller and
Bruce E. Gross Treasurer (Principal
Accounting Officer)
* Director October 31, 1997
-------------------
Sidney Lapidus
* Director October 31, 1997
-------------------
Reuben S. Leibowitz
* Director October 31, 1997
-------------------
John D. Santoleri
*By: /s/ Jack R. Harter
--------------------
Jack R. Harter
Attorney-In-Fact
II-6<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
8.3 Opinion of Wachtell, Lipton, Rosen & Katz, dated
October 31, 1997, regarding federal income tax matters.
23.3 Consent of Wachtell, Lipton, Rosen & Katz (contained in
Exhibit 8.3).
Exhibit 8.3
[Letterhead of Wachtell, Lipton, Rosen & Katz]
October 31, 1997
Pacific Greystone Corporation
6767 Forest Lawn Dr.
Suite 300
Los Angeles, CA 90068
Re: Federal Income Tax Consequences of the Merger of
Lennar Corporation with and into Pacific Greystone
Corporation
Dear Sirs:
You have requested our opinion as to certain federal
income tax consequences arising out of the merger (the
"Merger") pursuant to the Plan and Agreement of Merger, dated
as of June 10, 1997 (the "Merger Agreement"), by and between
Lennar Corporation, a Delaware corporation ("Lennar") and
Pacific Greystone Corporation, a Delaware corporation ("Pacific
Greystone"). Pursuant to the Merger Agreement, Lennar will
merge with and into Pacific Greystone and the separate
corporate existence of Lennar will cease. Prior to the Merger,
Pacific Greystone will pay a special dividend of .138 of a
share of common stock, par value $.01 per share, of Pacific
Greystone ("Greystone Common Stock") for each share of
Greystone Common Stock (the "Stock Dividend"). After the
Merger, each share of Greystone Common Stock outstanding at the
Effective Time of the Merger (including the shares issued in
the Stock Dividend) will continue to be one share of common
stock, $.10 par value per share, of the Surviving Corporation
("Surviving Corporation Common Stock"). Therefore, after the
Merger, Pacific Greystone stockholders will hold 1.138 shares
of Surviving Corporation Common Stock for each currently
outstanding share of Greystone Common Stock. As a result of
the Merger, each share of common stock, $.10 par value per
share, of Lennar ("Lennar Common Stock") will be converted into
one share of Surviving Corporation Common Stock and each share
of Class B common stock, $.10 par value per share, of Lennar
("Lennar Class B Common Stock") will be converted into one
share of the Class B common stock of the Surviving Corporation
("Surviving Corporation Class B Common Stock"). No fractional
shares of Surviving Corporation Common Stock will be issued in
the Merger. Capitalized terms not defined in this letter have
the meaning given them in the Merger Agreement.
Prior to the Merger, Lennar will distribute to its
stockholders all of the stock of LNR Property Corporation
("LNR"), to which Lennar will have transferred its real estate
investment and management business (the "Spin-Off"). Pacific
Greystone stockholders will not receive any interest in LNR or
its subsidiaries as a result of the Merger. The tax
consequences of the Spin-Off have been ruled upon by the
Internal Revenue Service, therefore we express no opinion about
the tax consequences of the Spin-Off.
In rendering the opinions stated below, we have
examined and relied, with your consent upon the following:<PAGE>
Pacific Greystone 2 October 31, 1997
(i) The Merger Agreement;
(ii) The Joint Proxy Statement/Prospectus, dated
September 30, 1997 (the "Joint Proxy Statement/
Prospectus");
(iii) The Registration Statement of Pacific Greystone
on Form S-4, dated September 30, 1997 (the
"Registration Statement");
(iv) The Certificates of Representations made by
Lennar and Pacific Greystone; and
(v) Such other documents, records and instruments as
we have deemed necessary in order to enable us
to render the opinions referred to in this
letter.
In our examination of the foregoing documents, we
have assumed, with your consent, that (i) all documents
reviewed by us are original documents, or true and accurate
copies of original documents, and have not been subsequently
amended, (ii) the signatures of each original document are
genuine, (iii) each party who executed the document had proper
authority and capacity, (iv) all representations and statements
set forth in such documents are true and correct, (v) all
obligations imposed by any such documents on the parties
thereto have been or will be performed or satisfied in
accordance with their terms, and (vi) Lennar and Pacific
Greystone at all times have been and will continue to be
organized and operated in accordance with the terms of such
documents. We have further assumed, with your consent, the
accuracy of the statements and descriptions of Lennar's and
Pacific Greystone's intended activities as described in the
Merger Agreement, the Proxy Statement/Prospectus, and the
Registration Statement and that Lennar and Pacific Greystone
have operated and will continue to operate in accordance with
the method of operation described in the Merger Agreement, the
Registration Statement, and the Proxy Statement/Prospectus.
For purposes of rendering the opinions stated below, we have
also assumed, with your consent, the accuracy of the
representations contained in the Certificate of Representations
of even date herewith provided to us by Lennar ("Lennar
Certificate") and Pacific Greystone ("Pacific Greystone
Certificate").
Based upon and subject to the foregoing, we are of
the opinion that:
1. The Merger of Lennar with and into Pacific
Greystone, as described above, will qualify as a
"reorganization" within the meaning of Section 368(a)(1)(A) of
the Internal Revenue Code of 1986, as amended (the "Code").
2. No gain or loss will be recognized by Pacific
Greystone or its stockholders, on the receipt by Pacific
Greystone of substantially all of Lennar's assets in exchange
for Surviving Corporation Common Stock and the assumption by
Pacific Greystone of Lennar's liabilities.
3. No gain or loss will be recognized by the
stockholders of Pacific Greystone upon the receipt of the Stock
Dividend (as defined in the Joint Proxy Statement/Prospectus).<PAGE>
Pacific Greystone 3 October 31, 1997
The opinions stated above represent our conclusion as
to the application of federal income tax laws existing as of
the date of this letter to the transactions contemplated in the
Merger Agreement, and the Proxy Statement/Prospectus and we can
give no assurance that legislative enactments, administrative
changes or court decisions may not be forthcoming that would
modify or supersede our opinion. An opinion of counsel merely
represents counsel's judgement with respect to the probable
outcome on the merits and is not binding on the Internal
Revenue Service ("IRS") or any court. There can be no
assurance that positions contrary to our opinion will not be
taken by the IRS, or that a court considering the issues would
not hold contrary to such opinion.
The opinions set forth above represent our
conclusions based upon the documents, facts and representations
referred to above. Any material amendments to such documents,
changes in any significant facts or inaccuracy of such
representations could affect the opinions referred to herein.
Although we have made such inquiries and performed such
investigations as we have deemed necessary to fulfill our
professional responsibilities as counsel, we have not
undertaken an independent investigation of all of the facts
referred to in this letter, the Lennar Certificate and the
Pacific Greystone Certificate.
The opinions set forth in this letter: (i) are
limited to those matters expressly covered; no opinion is to be
implied in respect of any other matter; (ii) are as of the date
hereof; and (iii) we consent to the reference to our firm under
the caption "Certain Federal Income Tax Consequences" in the
Registration Statement and to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
