SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-
1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
LENNAR CORPORATION
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(Name of issuer)
CLASS B COMMON STOCK
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(Title of class of securities)
525057104
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(CUSIP number)
LEONARD MILLER, 700 NORTHWEST 107TH AVENUE, MIAMI, FLORIDA 33172
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(Name, address and telephone number of person
authorized to receive notices and communications)
OCTOBER 31, 1997
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(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
<square>.
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.
(Continued on following pages)
(Page 1 of 10 Pages)
NH2608.1
<PAGE>
CUSIP NO. 525057104 13D PAGE 2 OF 10 PAGES
<TABLE>
<CAPTION>
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Leonard Miller
<S> <C>
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
<square>
(b)
<checked-box>
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
<square>
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
</TABLE>
<TABLE>
<CAPTION>
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY 9,897,930
EACH REPORTING PERSON
WITH
<S> <C> <C>
8 SHARED VOTING POWER
30,000
9 SOLE DISPOSITIVE POWER
9,897,930
10 SHARED DISPOSITIVE POWER
30,000
</TABLE>
<TABLE>
<CAPTION>
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,927,930
<S> <C>
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
<square>
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.31% of Common Stock
14 TYPE OF REPORTING PERSON*
PN
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 525057104 13D PAGE 3 OF 10 PAGES
ITEM 1. SECURITY AND ISSUER.
This Statement relates to the Common Stock of Lennar Corporation
("Common Stock"). The executive offices of Lennar Corporation
("Lennar") are located at 700 Northwest 107th Avenue, Miami, Florida
33172.
ITEM 2. IDENTITY AND BACKGROUND.
Leonard Miller
The person filing this Statement is Leonard Miller. Mr. Miller's
business address is 700 Northwest 107th Avenue, Miami, Florida 33172.
His principal occupation is as Chairman of the Board of Lennar at 700
Northwest 107th Avenue Miami, Florida 33172.
Mr. Miller is the sole shareholder and chief executive officer of LMM
Family Corporation (the "Corporation"), a Delaware corporation, which
is the general partner of MFA Limited Partnership ("MFA") and the
general partner of LMM Family Partnership, L.P. ("LMM"). Mr. Miller
is also President of Miller Family Foundation, Inc. (the
"Foundation").
Leonard Miller has not been convicted in a criminal proceeding in the
last five years.
Leonard Miller has not been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction which
resulted in his being subject to a judgment, decree or final order
enjoining future violations of, or which prohibited or mandated
activities subject to Federal or state securities laws or found any
violation with respect to such laws during the last five years.
Leonard Miller is a U.S. citizen.
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CUSIP NO. 525057104 13D PAGE 4 OF 10 PAGES
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Leonard Miller
Leonard Miller acquired 3,315,710 shares of Class B Common Stock in
1987 (which, by reason of stock splits, became 9,947,130 shares) in
exchange for an equal number of shares of Common Stock. Of these
shares acquired in 1987, Mr. Miller (a) transferred 6,444,130 shares
of Class B Common Stock, which may be converted into 6,444,130 shares
of Common Stock, in 1994 to MFA as a capital contribution and (b) Mr.
Miller also transferred 3,500,000 shares to LMM, of which 3,325,000
were transferred to LMM in exchange for a limited partnership interest
in LMM and the remaining 175,000 shares were transferred to the
Corporation, which in turn transferred them to LMM in return for a 5%
general partnership interest in LMM. Mr. Miller subsequently
transferred his limited partnership interest in LMM to L.M. GRAT (a
grantor retained annuity trust) (the "Trust"). After 1991, MFA
transferred a total of 2,000,000 shares to Mr. Miller, who immediately
retransferred them to LMM, and transferred 30,000 shares to Mr.
Miller, who immediately contributed them to the Foundation, of which
he is the President. On October 31, 1997, Lennar Corporation was
merged with Pacific Greystone Corporation, and the outstanding Lennar
Corporation shares, including those owned by MFA, LMM and the
Foundation, became shares of the corporation which survived that
merger.
ITEM 4. PURPOSE OF TRANSACTION.
Leonard Miller
The purpose of the creation of MFA, LMM, the Corporation, the Trust
and the Foundation and the transfers of shares of Class B Common Stock
by Leonard Miller to MFA, LMM and the Foundation was tax planning.
The acquisition of the Shares of Class B Common Stock by MFA, LMM and
the Foundation will not:
a) result in the acquisition by any person of additional securities
of Lennar, or the disposition of securities of Lennar.
b) result in an extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving Lennar or any of its
subsidiaries.
c) result in the sale or transfer of a material amount of assets of
Lennar or of any of its subsidiaries.
d) result in any change in the present board of directors or
management of Lennar, including any plans or proposals to change the
number or term of directors or to fill any existing vacancies on the
board.
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CUSIP NO. 525057104 13D PAGE 5 OF 10 PAGES
e) result in any material change in the present capitalization or
dividend policy of Lennar.
f) result in any other material change in Lennar's business or
corporate structure.
g) result in changes in Lennar's certificate of incorporation or
bylaws or other actions which may impede the acquisition of control of
Lennar by any person.
h) result in causing a class of securities of Lennar to be delisted
from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association.
i) result in a class of equity securities of Lennar becoming
eligible for termination of registration pursuant to Section 12(g)(4)
of the Securities and Exchange Act of 1934, as amended.
j) result in any action similar to those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF ISSUER.
a) Leonard Miller has beneficial ownership of 9,927,930 shares of
Class B Common Stock, which are convertible into 9,927,930 shares of
Common Stock, which would be 18.31% of the Common Stock.
MFA owns 4,397,930 shares of Class B Common Stock, which are
convertible into 4,397,930 shares of Common Stock, which would be
equal to 8.11% of the Common Stock.
LMM owns 5,500,000 shares of Class B Common Stock, which are
convertible into 5,500,000 shares of Common Stock, which would be
equal to 10.14% of the Common Stock.
The Corporation has a 5% interest in MFA and as a result is deemed to
have an indirect interest in 5% of the 4,397,930 shares of Common
Stock issuable upon conversion of the Class B Common Stock held by
MFA. The Corporation also has a 5% interest in LMM, and as a result
is deemed to have an indirect interest in 5% of the 5,500,000 shares
of Common Stock held by LMM. Therefore, the Corporation has an
indirect interest in 494,897 shares of Common Stock, which would be
equal to 0.91% of the Common Stock.
Leonard Miller, as the sole shareholder of the Corporation, has a 100%
interest in the Corporation's 5% interest in the 4,397,930 shares of
Common Stock issuable upon conversion of the Class B Common Stock
owned by MFA. In addition, Mr. Miller, as a limited partner of MFA,
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CUSIP NO. 525057104 13D PAGE 6 OF 10 PAGES
has a 94%, and his wife has the remaining 1%, pecuniary interest in
the 4,397,930 shares of Common Stock issuable upon conversion of the
Class B Common Stock held by MFA. Therefore, Mr. Miller is deemed to
be the beneficial owner of the entire 4,397,930 shares of Class B
Common Stock held by MFA. However, Mr. Miller's beneficial ownership
in those shares is indirect, rather than direct.
In September 1994, Mr. Miller transferred 3,500,000 shares of Class B
Common Stock, which are convertible into 3,500,000 shares of Common
Stock, to LMM, of which the Corporation is the sole general partner
(with a 5% interest) and Mr. Miller, as a limited partner, had
virtually the entire remaining pecuniary interest. In October 1994,
Mr. Miller transferred his limited partnership interest in LMM to the
Trust. On December 29, 1995, MFA transferred 2,000 shares of Class B
Common Stock to Susan Miller, who gave these shares as gifts to
relatives of Leonard Miller and Susan Miller. On September 13, 1996,
MFA transferred 1,000,000 shares of Class B Common Stock, which are
convertible into 1,000,000 shares of Common Stock, to Mr. Miller, who
immediately transferred those shares to LMM. On May 29, 1997, MFA
transferred 1,000,000 shares of Class B Common Stock, which are
convertible into 1,000,000 shares of Common Stock, to Mr. Miller, who
immediately retransferred them to LMM and transferred 30,000 shares of
Class B Common Stock, which are convertible into 30,000 shares of
Common Stock, to Mr. Miller, who immediately contributed them to the
Foundation, of which Mr. Miller is the President. During the term of
the Trust, Mr. Miller is to receive annually an amount equal to
39.244% of the fair market value of the Trust assets at the time of
the Trust's creation out of the Trust's income, and to the extent
income is insufficient, out of the Trust's principal. Although the
Trust is irrevocable, Mr. Miller has the right to substitute other
assets for the limited partnership interest in LMM as an asset of the
Trust. The transfer of the limited partnership interest to the Trust
did not, for purposes of the Securities Exchange Act of 1934, affect
Mr. Miller's beneficial ownership of the shares of Class B Common
Stock owned by LMM. Accordingly, Mr. Miller is the beneficial owner
of the 5,500,000 shares of Class B Common Stock owned by LMM, as well
as of the 4,397,930 shares of Class B Common Stock owned by MFA. In
addition, as the President of the Foundation, Mr. Miller may be deemed
to have indirect beneficial ownership of the 30,000 shares of Class B
Common Stock owned by the Foundation. Therefore, Mr. Miller has
beneficial ownership in 9,927,930 shares of Class B Common Stock,
which are convertible into 9,927,930 shares of Common Stock, which
would be 18.31% of the Common Stock.
On October 31, 1997, Lennar Corporation was merged with Pacific
Greystone Corporation, and the outstanding Lennar Corporation shares,
including those owned by MFA, LMM and the Foundation, became shares of
the corporation that survived that merger.
b) Leonard Miller, as the sole shareholder and chief executive
officer of the Corporation, which is the general partner of MFA and
<PAGE>
CUSIP NO. 525057104 13D PAGE 7 OF 10 PAGES
LMM, has the sole power to direct the vote and disposition of the
4,397,930 shares of Class B Common Stock held by MFA and of the
5,500,000 shares of Class B Common Stock held by LMM. Mr. Miller, as
the President of the Foundation, has the power to direct the vote and
disposition of the 30,000 shares of Class B Common Stock held by the
Foundation.
c) On December 20, 1994, Leonard Miller contributed to MFA 6,444,130
shares of Class B Common Stock, which are convertible at any time into
6,444,130 shares of Common Stock. Of those 6,444,130 shares of Class
B Common Stock, 322,307 shares are deemed to have been contributed by
the Corporation.
On September 13, 1996, MFA transferred 1,000,000 shares of Class B
Common Stock, which are convertible into 1,000,000 shares of Common
Stock, to Mr. Miller, who immediately transferred those shares to LMM.
On May 29, 1997, MFA transferred 1,000,000 shares of Class B Common
Stock, which are convertible into 1,000,000 shares of Common Stock, to
Mr. Miller, who immediately transferred those shares to LMM and
transferred 30,000 shares of Class B Common Stock, which are
convertible into 30,000 shares of Common Stock, to Mr. Miller, who
immediately contributed those shares to the Foundation, of which Mr.
Miller is the President.
On June 10, 1997, Lennar entered into a Plan and Agreement of Merger
(the "Merger Agreement") with Pacific Greystone Corporation
("Greystone") providing for the merger of Lennar with and into
Greystone (the "Merger"). On October 31, 1997, the Merger was
approved by the shareholders of Lennar and Greystone. The Merger
became effective on October 31, 1997. The surviving corporation of
the Merger was Greystone, which was renamed Lennar Corporation when
the Merger became effective. Pursuant to the Merger Agreement, all
holders of Lennar Class B Common Stock on the record date of September
2, 1997 received one share of Class B Common Stock of the surviving
corporation for each share of Lennar Class B Common Stock. MFA
received 4,397,930 shares, LMM received 5,500,000 shares and the
Foundation received 30,000 shares, of surviving corporation Class B
Common Stock upon consummation of the Merger.
d) No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from
the sale of, the securities.
e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
On June 10, 1997, MFA, LMM and Leonard Miller individually
(collectively, the "Miller Entities") entered into an Agreement (the
<PAGE>
CUSIP NO. 525057104 13D PAGE 8 OF 10 PAGES
"Agreement") with Greystone and Warburg, Pincus Investors, L.P.
("Warburg") pursuant to which the Miller Entities have agreed to vote
all of the outstanding shares of Class B Common Stock owned by them
(the "Miller Shares") (i) in favor of the Merger, the adoption by
Lennar of the Merger Agreement, other matters relating to the approval
of the terms of the Merger Agreement and each of the other
transactions contemplated by the Merger Agreement; and (ii) against
certain specified types of transactions which would in any manner
impede, frustrate, prevent or nullify the Merger, the Merger Agreement
or any of the other transactions contemplated by the Merger Agreement
or would reasonably be likely to result in any of the conditions to
Lennar's obligations under the Merger Agreement not being fulfilled.
In the Agreement, the Miller Entities also have agreed that they will
not (i) sell, transfer, pledge, assign or otherwise dispose of, or
enter into any contract, option or other arrangement with respect to
the sale, transfer, pledge, assignment or other disposition of, any
Miller Shares to any person other than pursuant to the Merger and the
Merger Agreement, unless such transferee would be a "Permitted
Transferee" under Lennar's Certificate of Incorporation and agrees in
writing to be bound by the terms of the Agreement with respect to the
Miller Shares transferred to it or (ii) enter into any voting
arrangement, whether by proxy, voting arrangement, voting agreement or
otherwise, other than for the purpose of voting the Miller Shares as
required by the Agreement.
The Miller Entities have further agreed that for as long as Warburg is
entitled, pursuant to the Agreement dated as of June 10, 1997 by and
between Warburg, Lennar and Greystone (the "Warburg Agreement"), to
nominate two persons (or one in certain cases) ("Warburg Nominees") to
serve as directors on the Board of Directors of the surviving
corporation of the Merger (the "Company"), at any meeting of
stockholders of the Company called to vote upon the election of a
Warburg Nominee to the Company's Board of Directors or a Warburg
Nominee's removal therefrom, or at any adjournment or postponement
thereof or in any other circumstances upon which such a vote, consent
or other approval is sought, each Miller Entity will vote (or cause to
be voted) all of the equity securities of the Company owned by it in
favor of the election of the Warburg Nominees and against their
removal from the Board of Directors of the Company. Each Miller
Entity has also agreed to vote (or cause to be voted) all of the
equity securities of the Company owned by it in favor of, consent to,
and take any and all other actions reasonably necessary to insure that
for as long as Warburg owns 5% or more of the Company's outstanding
common stock, the Company's Board of Directors will consist of no more
than nine persons, at least five of whom will not be officers or
employees of the Company and its affiliates.
The Agreement additionally provides that (i) prior to the first to
occur of the second anniversary of the Merger or the effectiveness of
the Amendment (as such term is defined in the Agreement), none of the
Miller Entities will vote any equity securities of the Company owned
by them in favor of any merger, consolidation or other business
<PAGE>
CUSIP NO. 525057104 13D PAGE 9 OF 10 PAGES
combination that, if the Amendment were effective, would require the
Minority Vote (as defined in the Agreement; and (ii) each Miller
Entity will vote all of its shares of common stock or Class B Common
Stock of the Company in favor of the Amendment. For purposes of the
Agreement, "Amendment" means an amendment to the Company's Certificate
of Incorporation to provide that, in addition to any other vote
required by the certificate of incorporation, by law, by any rule of
any securities exchange or otherwise, any merger, consolidation or
other business combination involving the Company shall require the
affirmative vote of the holders of at least a majority of the issued
and outstanding shares of common stock (other than the Class B Common
Stock of the Company) of the Company, voting as a single class (the
"Minority Vote"), unless the type and amount of the consideration
received by the holder of a share of Common Stock of the Company in
such transaction is the same as that received by a holder of, a share
of Class B Common Stock of the Company; provided, however that if
shareholders are given the right to elect among differing kinds of
consideration in such business combination, the foregoing requirement
will be deemed satisfied if the holders of shares of Common Stock are
given the same rights of election (including without limitation
proration rights) as the holders of shares of Class B Common Stock of
the Company.
Finally, each Miller Entity has agreed that until November 30, 1999,
it shall not sell or otherwise dispose of any shares of stock of the
Company which the Miller Entity receives as a result of the Merger
with regard to Miller Shares unless (i) the transferee agrees to be
bound by the provisions of the Agreement or (ii) after the sale, the
Miller Entities hold in aggregate shares entitled to more than 50% of
the votes in an election of directors of the Company.
The Agreement will be terminated if at any time (i) the Warburg
Agreement is not enforceable against the holders of shares of
Greystone common stock party thereto or covered thereby, (ii) the
Merger Agreement is terminated in accordance with its terms or (iii)
the Merger has occurred, the Miller Entities have no further
obligations to vote in favor of Warburg Nominees and the Miller
Entities have voted all of their shares of Company common stock in
favor of the Amendment.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Agreement dated June 10, 1997 between MFA Limited
Partnership, LMM Family Partnership, L.P., Leonard Miller, Pacific
Greystone Corporation and Warburg, Pincus Investors, L.P.
<PAGE>
CUSIP NO. 525057104 13D PAGE 10 OF 10 PAGES
SIGNATURE
After reasonable inquiry and to the best of knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
NOVEMBER 10, 1997
------------------------------------
(Date)
/S/ LEONARD MILLER
---------------------------------------
Leonard Miller
<PAGE>
EXHIBIT 1
AGREEMENT
This is an agreement dated June 10, 1997 between MFA Limited
Partnership, a Delaware limited partnership ("MFA"), LMM Family Partnership,
L.P. ("LMM"), Leonard Miller, an individual ("MILLER," and together with MFA
and LMM, the "MILLER ENTITIES"), Pacific Greystone Corporation, a Delaware
corporation ("GREYSTONE") and Warburg, Pincus Investors, L.P. ("WARBURG").
Whereas, Lennar Corporation ("LENNAR") and Greystone propose to
enter into a Plan and Agreement of Merger on the date of this Agreement (as it
may be amended or supplemented, the "MERGER AGREEMENT") providing for the
merger of Lennar into Greystone (the "MERGER");
Whereas, the Miller Entities collectively own in the aggregate
9,944,130 shares of Class B Common Stock, par value $0.10 per share, of Lennar
(the "LENNAR CLASS B STOCK"); those shares of Lennar Class B Stock, as they may
be adjusted by any stock dividend, stock split, recapitalization, combination
or exchange of shares, merger, consolidation, reorganization or other change or
transaction of or by Lennar, are referred to in this Agreement as the "MILLER
SHARES";
Whereas, as a condition to its willingness to enter into the Merger
Agreement, Greystone has requested that the Miller Entities enter into this
Agreement;
Now, therefore, to induce Lennar to enter into, and in consideration
of its entering into, the Merger Agreement, and in consideration of the mutual
covenants and agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE MILLER ENTITIES
1.1 MFA and LMM each represents and warrants as to itself to Greystone
and Warburg as follows:
(a) AUTHORITY. It is a limited partnership, duly organized validly
existing and in good standing under the laws of the State of Delaware. It has
all power and authority necessary to enable it to enter into this Agreement and
to carry out the transactions contemplated by this Agreement. This Agreement
has been duly and validly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
(b) NON-CONTRAVENTION. Neither its execution and delivery of this
Agreement nor consummation of the transactions contemplated by this Agreement
<PAGE>
or by any document to be delivered in accordance with this Agreement will
violate, result in a breach of, or constitute a default (or an event which,
with notice or lapse of time or both would constitute a default) under, its
limited partnership agreement, any agreement or instrument to which it is a
party or by which it is bound, any law, or any order, rule or regulation of any
court or governmental agency or other regulatory organization having
jurisdiction over it.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or consents, or other governmental action is required
for the execution and delivery of this Agreement by it, the performance by it
of its obligations under this Agreement or the consummation by it of the
transactions contemplated by this Agreement.
1.2 Miller represents and warrants to Greystone and Warburg as follows:
(a) AUTHORITY. Miller has full capacity and authority to enter
into this Agreement and to carry out the transactions contemplated by this
Agreement. This Agreement has been duly executed and delivered by Miller and
constitutes a legal, valid and binding obligation of Miller enforceable against
Miller in accordance with its terms. The representations and warranties in
Section 1.1 are true and correct.
(b) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or consents, or other governmental action is
necessary or required for the execution and delivery of this Agreement by
Miller, the performance by Miller of its obligations under this Agreement or
the consummation of the transactions contemplated hereby.
1.3 Each of the Miller Entities represents and warrants to
Greystone that (a) the Miller Shares constitute more than 98% of the
outstanding shares of Lennar Class B Stock and have more than 50% of the voting
power of all the outstanding stock of Lennar of all classes; (b) the Miller
Entities own the Miller Shares, free and clear of any liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
which would in any way restrict or impair the Miller Entities' right to vote
the Miller Shares in their sole discretion or could require the Miller Entities
to sell or transfer any of the Miller Shares (whether upon default on a loan or
otherwise) before December 31, 1997; (c) the Miller Entities have the sole
voting power and sole power to issue instructions with respect to the Miller
Shares and (d) the obligations of the Miller Entities hereunder shall survive
the death, disability or incapacity of Miller.
1.4 Greystone hereby represents and warrants to the Miller Entities
and Warburg as follows:
(a) AUTHORITY. Greystone is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Greystone has all power and authority necessary to enable it to enter into this
Agreement and to carry out the transactions contemplated by this Agreement.
This Agreement has been duly and validly authorized, executed and delivered by
Greystone and constitutes a legal, valid and binding obligation of Greystone
enforceable against Greystone in accordance with its terms.
(b) NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement by Greystone nor the consummation of the transactions
contemplated by this Agreement or by any document to be delivered in accordance
with this Agreement will violate, result in a breach of, or constitute a
default (or an event which, with notice or lapse of time or both would
2
<PAGE>
constitute a default) under, the certificate of incorporation or by-laws of
Greystone, any agreement or instrument to which Greystone is a party or by
which it is bound, any law, or any order, rule or regulation of any court or
governmental agency or other regulatory organization having jurisdiction over
Greystone.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or consents, or other governmental action is required
for the execution and delivery of this Agreement by Greystone, the performance
by Greystone of its obligations under this Agreement or the consummation by
Greystone of the transactions contemplated by this Agreement.
ARTICLE II
COVENANTS OF THE MILLER ENTITIES
Each of the Miller Entities hereby covenants and agrees as to itself with
Greystone and Warburg as follows:
2.1 VOTE FOR MERGER. At any meeting of stockholders of Lennar
called to vote upon the Merger and the Merger Agreement or any of the
transactions contemplated thereby (including the Spin Off, as defined in the
Merger Agreement) or at any adjournment or postponement thereof or in any other
circumstances upon which a vote, consent or other approval with respect to the
Merger and the Merger Agreement is sought, each Miller Entity shall vote (or
cause to be voted) all of the outstanding shares of Lennar Class B Stock owned
by it in favor of the Merger, the adoption by Lennar of the Merger Agreement,
other matters relating to the approval of the terms of the Merger Agreement and
each of the other transactions contemplated by the Merger Agreement (including
the Spin Off).
2.2 VOTE AGAINST ALTERNATIVE PROPOSALS. At any meeting of
stockholders of Lennar or at any adjournment or postponement thereof or in any
other circumstances upon which the Miller Entity's vote, consent or other
approval is sought, each Miller Entity shall vote (or cause to be voted) all of
the outstanding shares of Lennar Class B Stock owned by it against (i) any
proposal or offer with respect to any direct or indirect (A) acquisition or
purchase of what would be 15% or more of the outstanding common stock of
Lennar, (B) acquisition or purchase of any equity securities of any significant
subsidiary of Lennar (as the term "significant subsidiary is defined in
Securities and Exchange Commission Regulation S-X), (C) acquisition or purchase
of all or any significant portion of the assets of Lennar or any subsidiary of
Lennar, or (D) any merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving
Lennar or any of its subsidiaries, (ii) any change in the persons who
constitute the Board of Directors of Lennar or (iii) any change in the present
capitalization of Lennar or any amendment of Lennar's certificate of
incorporation or by-laws or other proposal or transaction involving Lennar or
any of its subsidiaries, if in the case of clause (i), (ii) or (iii) such
transaction, change, amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement
or any of the other transactions contemplated by the Merger Agreement
(including the Spin Off) or would reasonably be likely to result in any of the
conditions to Lennar's obligations under the Merger Agreement not being
fulfilled.
2.3 TRANSFERS. Prior to the Effective Time (as defined in the
Merger Agreement), no Miller Entity will (i) sell, transfer, pledge, assign or
otherwise dispose of, or enter into any contract, option or other arrangement
3
<PAGE>
with respect to the sale, transfer, pledge, assignment or other disposition of,
any Miller Shares to any person other than pursuant to the Merger and the
Merger Agreement, unless such transferee would be a "Permitted Transferee"
under Lennar's Certificate of Incorporation (a "PERMITTED TRANSFEREE") and
agrees in writing to be bound by the terms of this Agreement with respect to
the Miller Shares transferred to it or (ii) enter into any voting arrangement,
whether by proxy, voting arrangement, voting agreement or otherwise, other than
for the purpose of voting the Miller Shares as required by this Agreement.
2.4 NO SOLICITATIONS. Prior to the Effective Time (as defined in
the Merger Agreement), no Miller Entity nor any of its affiliates nor any of
their respective officers, partners or directors shall, and each Miller Entity
will direct, and use its best efforts to cause, its employees, agents and
representatives (including any investment banker, attorney or accountant
retained by it or any of its affiliates) not to, directly or indirectly,
initiate, solicit, encourage or otherwise facilitate any inquiries or the
making of any proposal or offer with respect to a merger, reorganization, share
exchange, consolidation or similar transaction involving Lennar, or any
purchase of, or tender offer for, all or any significant portion of any equity
securities of Lennar or of all or any significant portion of the assets of
Lennar on a consolidated basis (any such proposal or offer being hereinafter
referred to as an "ACQUISITION PROPOSAL"); provided however that nothing in
this Agreement shall prevent any person from taking any action permitted or
required pursuant to the Merger Agreement to be taken by such person in his
capacity as a director of Lennar and all such actions taken by any person who
is a director of Lennar shall be deemed to be taken by such person in his
capacity as a director. Each Miller Entity agrees that it will promptly advise
Greystone of the receipt of any Acquisition Proposal.
2.5 VOTE FOR WARBURG NOMINEES. For as long as Warburg is entitled,
pursuant to the Agreement dated as of the date hereof by and between Warburg,
Lennar and Greystone (the "WARBURG VOTING AGREEMENT"), to nominate one or more
persons ("WARBURG NOMINEES") to serve as directors on the Board of Directors of
the surviving corporation of the Merger (the "COMPANY"), at any meeting of
stockholders of the Company called to vote upon the election of a Warburg
Nominee to the Company's Board of Directors or a Warburg Nominee's removal
therefrom, or at any adjournment or postponement thereof or in any other
circumstances upon which such a vote, consent or other approval is sought, each
Miller Entity shall vote (or cause to be voted) all of the equity securities of
the Company owned by it in favor of the election of the Warburg nominees and
against their removal from the Board of Directors of the Company. Each Miller
Entity shall also vote (or cause to be voted) all of the equity securities of
the Company owned by it in favor of, consent to, and take any and all other
actions reasonably necessary to effect, the changes to the structure of the
Company's Board of Directors set forth in Paragraph 4.1 of the Warburg Voting
Agreement.
2.6 VOTE ON AMENDMENT. (a) Prior to the first to occur of the
second anniversary of the Merger or the effectiveness of the Amendment (as such
term is defined below), none of the Miller Entities will vote any equity
securities of the Company owned by them in favor of any merger, consolidation
or other business combination that, if the Amendment were effective, would
require the Minority Vote (as defined below).
(b) Each Miller Entity will vote all of its shares of common
stock or Class B Common Stock of the Company in favor of the Amendment.
For purposes of this Agreement, "Amendment" means an amendment to
the Company's Certificate of Incorporation to provide that, in addition to any
other vote required by the certificate of incorporation, by law, by any rule of
any securities exchange or otherwise, any merger, consolidation or other
business combination involving the Company shall require the affirmative vote
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of the holders of at least a majority of the issued and outstanding shares of
common stock (other than the Class B Common Stock of the Company) of the
Company (the "COMMON STOCK"), voting as a single class (the "MINORITY VOTE"),
unless the type and amount of the consideration received by the holder of a
share of Common Stock of the Company in such transaction is the same as that
received by a holder of, a share of Class B Common Stock of the Company;
provided, however that if shareholders are given the right to elect among
differing kinds of consideration in such business combination, the foregoing
requirement will be deemed satisfied if the holders of shares of Common Stock
are given the same rights of election (including without limitation proration
rights) as the holders of shares of Class B Common Stock of the Company.
2.7 RESTRICTION ON SALE. Each Miller Entity agrees that until
November 30, 1999, it shall not sell or otherwise dispose of any shares of
stock of the Company which the Miller Entity receives as a result of the Merger
with regard to Miller Shares unless (i) the transferee agrees to be bound by
the provisions of this Agreement or (ii) after the sale, the Miller Entities
hold in aggregate shares entitled to more than 50% of the votes in an election
of directors of the Company. Any sale or other disposition in violation of the
terms hereof shall be null and void.
ARTICLE III
COVENANT OF COMPANY
3.1 VOTE ON AMENDMENT. No later than the first annual meeting of
shareholders of the Company following the Merger, the Company will recommend
the Amendment to its shareholders and shall take or cause to be taken all
reasonable actions within its respective power and authority to cause the
Amendment to be approved by its shareholders.
ARTICLE IV
TERMINATION
4.1 TERMINATION. The covenants and agreements contained in Article
II and Article III of this Agreement shall be of no further force or effect in
the event that at any time (i) the Warburg Voting Agreement shall not be
enforceable against the holders of shares of Common Stock of Greystone party
thereto or covered thereby, (ii) the Merger Agreement is terminated in
accordance with its terms or (iii) the Merger has occurred, the Miller Entities
no longer have any obligations under Paragraph 2.5 and the Miller Entities have
voted all of their shares of Common Stock in favor of the Amendment. The
covenants and agreements contained in this Agreement shall survive the Merger
and after the Merger shall be binding upon and inure to the benefit of the
Company.
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ARTICLE V
GENERAL PROVISIONS
5.1 EXPENSES. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring the expense.
5.2 ENTIRE AGREEMENT. This Agreement, the Merger Agreement and the
documents to be delivered in accordance with this Agreement and the Merger
Agreement contain the entire agreement among the parties relating to the
transactions which are the subject of this Agreement and all prior
negotiations, understandings and agreements among the parties with regard to
the subject matter of this Agreement are superseded by this Agreement and the
Merger Agreement, and there are no representations, warranties, understandings
or agreements concerning the transactions which are the subject of this
Agreement or those other documents other than those expressly set forth in this
Agreement and the Merger Agreement.
5.3 CAPTIONS. The captions of the articles and paragraphs of this
Agreement are for reference only, and do not affect the meaning or
interpretation of this Agreement.
5.4 PROHIBITION AGAINST ASSIGNMENT. Neither this Agreement nor any
right or obligations of any party under it may be assigned (except that after
the Merger, this Agreement shall be binding upon and inure to the benefit of
the surviving corporation of the Merger).
5.5 NOTICES AND OTHER COMMUNICATIONS. Any notice or other
communication under this Agreement must be in writing and will be deemed given
when delivered in person or sent by facsimile (with proof of receipt at the
number to which it is required to be sent), or on the third business day after
the day on which mailed by first class mail from within the United States of
America, to the following addresses (or such other address as may be specified
after the date of this Agreement by the party to which the notice or
communication is sent):
If to Greystone:
Pacific Greystone Corporation
6767 Forest Lawn Drive
Los Angeles, California 90068-1027
Attention: Jack Harter
Facsimile No.: (213) 876-3866
with a copy to:
Andrew Brownstein, Esq.
Wachtell, Lipton, Rosen & Katz
New York, New York 10019
Facsimile No.: (212) 403-2000
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If to Warburg:
Warburg, Pincus Investors, L.P.
466 Lexington Avenue
New York, New York 10017
Attention: Reuben Leibowitz
Facsimile No.: (212) 878-0861
with a copy to:
Andrew Brownstein, Esq.
Wachtell, Lipton, Rosen & Katz
New York, New York 10019
Facsimile No.: (212) 403-2000
If to any Miller Entity:
Leonard Miller
700 Northwest 107th Avenue
Miami, Florida 33172
Facsimile No.: (305) 227-7115
with a copy to:
David W. Bernstein, Esq.
Rogers & Wells
200 Park Avenue
New York, New York 10166
Facsimile No.: (212) 878-8375
5.6 GOVERNING LAW. This Agreement will be governed by, and
construed under, the substantive laws of the State of Delaware.
5.7 AMENDMENTS. This Agreement may be amended only by a document
in writing signed by Lennar, Warburg, Greystone and each Miller Entity, and no
amendment to Paragraph 2.6 or 3.1 shall be effective unless it has been
approved by both (i) the unanimous vote of the members of the Company's Board
who are not Miller Entities, relatives of any Miller Entity or affiliates of
the Miller Entities and (ii) the affirmative vote of the holders of at least a
majority of the then outstanding shares of Common Stock of the Company, and
those holders shall be deemed to be third party beneficiaries of the agreements
contained in Paragraph 2.6 and 3.1 solely for the purpose of enforcing those
agreements.
5.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, some of which may contain the signatures of some, but not all,
the parties. Each of those counterparts will be deemed an original, but all of
them together will constitute one and the same agreement.
5.9 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
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materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal,
invalid or unenforceable provision, there will be added automatically as a part
of this Agreement a legal, valid and enforceable provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible.
5.10 ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of Delaware or in a Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to the personal jurisdiction of any Federal
court located in the State of Delaware or any Delaware state court in any
action or proceeding relating to or arising out of this Agreement or any of the
transactions contemplated hereby, (ii) agrees that such party will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, (iii) agrees that such parties will not seek to
change the venue of any such action or proceeding or otherwise to move any such
action or proceeding to another court, whether because of inconvenience of the
forum or otherwise (provided that nothing in this Section will prevent a party
from removing an action or proceeding from a Delaware state court to a Federal
Court located in the State of Delaware), (iv) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court and (v) waives any right to trial
by jury with respect to any claim or proceeding related to or arising out of
this Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to
be signed by its officer thereunto duly authorized as of the date in the first
paragraph of this Agreement.
PACIFIC GREYSTONE CORPORATION
By: /S/ JACK HARTER
------------------------------------
Name: Jack Harter
Title: President
LMM FAMILY PARTNERSHIP, L.P.
By LMM Family Corp., its general
partner
By: /S/ LEONARD MILLER
------------------------------------
Name: Leonard Miller
Title: President
MFA LIMITED PARTNERSHIP
By LMM Family Corp., its general
partner
By: /S/ LEONARD MILLER
------------------------------------
Name: Leonard Miller
Title: President
Leonard Miller
/S/ LEONARD MILLER
---------------------------------------
WARBURG, PINCUS INVESTORS, L.P.
By Warburg, Pincus & Co., its general
partner
By: /S/ REUBEN S. LEIBOWITZ
-----------------------------------
Name: Reuben S. Leibowitz
Title: Partner
