FORM 10-K
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2004
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to ___________
Commission file number: 1-10153
HOMEFED CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 33-0304982
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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(760) 918-8200
(Address, Including Zip Code, and Telephone Number,Including Area Code,
of Registrant's Principal Executive Offices)
Securities registered pursuant to Section 12(b) of the Act: None.
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
(Title of Class)
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [x] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statement incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K [x].
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Act). Yes [x] No [ ]
Based on the average bid and asked prices of the Registrant's Common Stock as published by the OTC Bulletin Board Service as of June 30, 2004, the aggregate market value of the Registrant's Common Stock held by non-affiliates was approximately $140,134,000 on that date.
As of March 1, 2005, there were 8,260,059 outstanding shares of the Registrant's Common Stock, par value $.01 per share.
DOCUMENTS INCORPORATED BY REFERENCE
PART I
THE COMPANY
Introduction
HomeFed Corporation ("HomeFed") was incorporated in Delaware in 1988. As used herein, the term "Company" refers to HomeFed and its subsidiaries, except as the context may otherwise require. The Company is currently engaged, directly and through subsidiaries, in the investment in and development of residential real estate projects in the State of California. The Company also investigates the acquisition of new real estate projects, both residential and commercial and within and outside the State of California, although no assurance can be given that the Company will find new investments providing a satisfactory return or, if found, that the Company will have access to the capital necessary to make new real estate investments. The executive office of the Company is located at 1903 Wright Place, Suite 220, Carlsbad, California 92008.
The Company's current development projects consist of two master-planned communities located in San Diego County, California: San Elijo Hills, and a portion of the larger Otay Ranch planning area. As discussed below, the Company acquired the San Elijo Hills project in October 2002 and as a result, the San Elijo Hills project has been included in the Company's consolidated financial statements since the date of acquisition. The Company also owns the Rampage property, a 2,159 acre grape vineyard located in southern Madera County, California, which is not currently entitled for commercial or residential development.
As the owner of development projects, the Company is responsible for the completion of a wide range of activities, including design engineering, grading raw land, constructing public infrastructure such as streets, utilities and public facilities, and finishing individual lots for home sites or other facilities. Prior to commencement of development of a project, the Company may engage in incidental activities to maintain the value of the project. The Company develops and markets its communities in phases to allow itself the flexibility to sell finished lots to suit market conditions and to enable it to create stable and attractive neighborhoods. Consequently, at any particular time, the various phases of a project will be in different stages of land development and construction. In addition, from time to time the Company will receive expressions of interest from buyers of multiple phases of a project, or the remaining undeveloped land of an entire project. The Company evaluates these proposals when it receives them, but no assurance can be given that the Company will sell all or any portion of its development projects in such a manner.
For any master-planned community, plans must be prepared that provide for infrastructure, neighborhoods, commercial and industrial areas, educational and other institutional or public facilities, as well as open space. Once preliminary plans have been prepared, numerous governmental approvals, licenses, permits and agreements, referred to as "entitlements," must be obtained before development and construction may commence. These often involve a number of different governmental jurisdictions and agencies, challenges through litigation, considerable risk and expense, and substantial delays. Unless and until the requisite entitlements are received and substantial work has been commenced in reliance upon such entitlements, a developer generally does not have full "vested rights" to develop a project, and as a result, allocation of acreage between developable and non-developable land may change. In addition, as a precondition to receipt of building-related permits, master-planned communities such as San Elijo Hills typically are required in California to pay impact and capacity fees, or to otherwise satisfy mitigation requirements.
Current Development Projects
San Elijo Hills
In October 2002, the Company purchased from Leucadia National Corporation (together with its subsidiaries, "Leucadia") all of the issued and outstanding shares of capital stock of CDS Holding Corporation ("CDS"), which
through its majority-owned subsidiaries is the owner of the San Elijo Hills project. The $25,000,000 purchase price consisted of $1,000,000 in cash and 2,474,226 shares of the Company's common stock, representing approximately 30% of the Company's outstanding shares. The San Elijo Hills project, a master-planned community located in the City of San Marcos in San Diego County, California, at completion is expected to be a community of approximately 3,500 homes and apartments, as well as commercial properties; the San Elijo Hills project is expected to be completed before the end of this decade. Since August 1998, the Company has been the development manager for this project, with responsibility for the overall management of the project, including, among other things, preserving existing entitlements and obtaining any additional entitlements required for the project, arranging financing for the project, coordinating marketing and sales activity, and acting as the construction manager. The development management agreement provided that the Company would participate in the net cash flow of the project through the payment of a success fee, and that the Company receive fees for the field overhead, management and marketing services it provides ("development management fees"), based on the revenues of the project. No success fee had been paid prior to the Company's acquisition of CDS. Through its majority owned subsidiaries, CDS has an effective 68% indirect equity interest in the San Elijo Hills project, after considering minority interests held by former owners of the project before CDS acquired its interest. However, CDS has the right to the return of funds advanced to the project and to receive a preferred return on its investment before any amounts are distributed to the minority shareholders. In 2004, dividends of $71,000,000 were paid by the Company's subsidiary that owns the San Elijo Hills project, of which $54,800,000 was ultimately received by the Company and the balance was paid to the minority interests. As a result, all amounts advanced to the project were repaid and the preferred return was fully satisfied. For more information on the minority interests, see Note 6 of Notes to Consolidated Financial Statements.
Sales Activity. The table below summarizes sales activity at the San Elijo Hills project subsequent to the acquisition of CDS. At closing, a portion of the sales proceeds is deferred and not immediately recognized as revenue in the Company's consolidated statements of operations. The Company recognizes deferred revenue upon completion of required improvements to the property sold, including costs related to common areas, under the percentage of completion method of accounting. Amounts shown below as development management fees earned are intercompany payments, which are eliminated in consolidation and therefore not reflected in the Company's consolidated statements of operations after the acquisition of CDS, but which are a source of liquidity for the parent company.
Year Ended Year Ended October 21, 2002 to
December 31, 2004 December 31, 2003 December 31, 2002
----------------- ----------------- -----------------
(Dollars in thousands)
Number of units sold (1) 139 739 92
School site 1 -- --
Aggregate sales proceeds from sales of residential
and school sites, net of closing costs (2) $ 53,200 $133,400 $ 24,700
Development management fees earned $ 3,300 $ 8,100 $ 1,400
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(1) Units are comprised of single family lots, multi-family units and very low
income apartment units.
(2) Excludes profit participation and consent fees described elsewhere in this
Report which are received subsequent to the closing of the land sales.
Prior to the Company's acquisition of CDS, sales activity at the San Elijo Hills project consisted of the sale of 1,584 residential and non-residential units for aggregate sales proceeds of $182,700,000, net of closing costs. Since the Company was not the owner of the project, it did not reflect these sales in its consolidated statements of operations. However, the Company did earn development management fees from these sales, which were reflected in its consolidated statements of operations. Development management fees earned were approximately $1,600,000 for the period from January 1, 2002 to October 21, 2002, and $4,800,000 and $3,500,000 for the years ended December 31, 2001 and 2000, respectively.
As of December 31, 2004, the Company estimates that it will spend approximately $8,900,000 to complete the required improvements to sold properties, which results in a deferred revenue balance of $39,100,000. The Company will recognize the deferred revenue in its consolidated statements of operations as the required improvements are completed under the percentage of completion method of accounting.
As of March 1, 2005, the Company has entered into agreements to sell 241 single family lots for aggregate cash proceeds of $103,900,000 (of which $8,000,000 has been received as a non-refundable deposit), and 131 multi-family units for aggregate cash proceeds of $36,000,000 (of which $3,700,000 has been received as a non-refundable deposit). After considering this land under contract for sale, the remaining land at the San Elijo Hills project to be developed and sold or leased consists of the following:
Single family lots to be developed and sold 429 Multi-family units 40 Square footage of commercial space 135,000 |
The Company's current plans are to construct the multi-family units rather than sell them to another developer, after which the units will be sold or leased. Assuming the Company's development is not delayed, it expects to close the sales of the remaining residential units during 2005 and 2006; however, development activity on units sold is expected to continue into 2006 and on common areas into 2007.
With respect to the commercial space, the Company's current plan is to construct some of the commercial space rather than sell it to a builder. The commercial lots are substantially developed; however, with the exception of the visitors' center, the Company has not yet constructed buildings on the commercial lots. The Company's plan for the town center includes a supermarket, gas station, office space and other stores, and discussions have begun with prospective users of the commercial space. The Company expects it will begin commercial space construction during 2005.
Although these development plans are based on the Company's current intentions, these plans could change, including as a result of actions of local regulatory authorities.
In order for the City of San Marcos to issue building permits to the Company's prospective lot purchasers for lot sales above certain thresholds, improvements to two off site roads need to be under construction. Pursuant to the project development agreement with the City of San Marcos/Redevelopment Agency of San Marcos (the "City"), the Company is required to contribute $11,000,000 to fund a portion of the cost of building these roads, including the acquisition of land, rights of way and/or environmental permits prior to the commencement of construction. The City will fund any costs in excess of this amount. During 2004, the Company commenced construction of one of the roads which it expects to complete during 2005. The City has agreed to impose a special tax which would be levied against future property owners of a portion of the San Elijo Hills project that would give homebuilders the right to receive funds from the City related to the cost of public infrastructure improvements which were made at the Company's expense; a benefit which the Company believes would enable it to recover all or a portion of these road construction costs by charging homebuilders a price in excess of the market price. However, there is no assurance that the Company will be successful in recovering its expenses through higher prices to homebuilders.
In February 2005, the Company received the remaining environmental permit and commenced construction of the second off site road referred to above. The commencement of construction of this road removes the last significant limitation to the issuance of building permits at the San Elijo Hills project. Absent unforeseen developments, the removal of this restriction should enable the Company to complete the development of this project in accordance with its plans.
Since 1999, the San Elijo Hills project has carried $50,000,000 of general liability and professional liability insurance under a policy issued by the Kemper Insurance Companies ("Kemper"). The policy covered a thirteen-year term from the initial date of coverage, and the entire premium for the life of the policy was paid in 1999. This policy is specific to the San Elijo Hills project; the Company has general and professional liability insurance for other matters with different insurance companies.
Kemper has ceased underwriting operations and has submitted a voluntary run-off plan to its insurance regulators. Although Kemper is not formally in liquidation or under the supervision of insurance regulators, it is uncertain whether they will have sufficient assets at such time, if ever, the Company makes a claim under the policy or, if they are insolvent, whether state insurance guaranty funds would be available to pay the claim. In May 2004, the Company purchased an excess policy with another insurance carrier that provides up to $10,000,000 of coverage for general liability claims, but not professional liability claims, relating to homes sold through May 31, 2004. The Company continues to investigate whether insurance coverage for future home sales at the San Elijo Hills project is available at acceptable prices; however, the Company has not yet found insurance coverage at an acceptable price.
Otay Ranch
In October 1998, the Company and Leucadia formed Otay Land Company, LLC ("Otay Land Company") to purchase approximately 4,850 non-adjoining acres of land located within the larger 22,900 acre Otay Ranch master-planned community south of San Diego, California. Otay Land Company acquired this land for $19,500,000. When Otay Land Company was formed, Leucadia contributed $10,000,000 as a preferred capital interest, and the Company contributed all other funds as non-preferred capital. In April 2003, Otay Land Company sold 1,445 acres to an unrelated third party and used a portion of the proceeds from the sale to fully redeem Leucadia's preferred capital interest. As a result, Otay Land Company became a wholly-owned subsidiary of the Company.
In 1993, the City of Chula Vista and the County of San Diego approved a General Development Plan for the larger planning area. Although there is no specified time within which implementation of the General Development Plan must be completed, it is expected that full development of the larger planning area will take decades. This General Development Plan establishes land use goals, objectives and policies within the larger planning area. The General Development Plan for the larger planning area contemplates home sites, a golf-oriented resort and residential community, commercial retail centers, a proposed university site and a network of infrastructure, including roads and highways, a public transportation system, park systems and schools. Any development within the larger Otay Ranch master-planned community must be consistent with this General Development Plan. While the General Development Plan can be amended, subject to approval by either or both of the City of Chula Vista and the County of San Diego, Otay Land Company has certain vested and contractual rights, pursuant to a development agreement, that protect its development interests in Chula Vista, covering substantially all of its developable land. However, actual land development will require that further entitlements and approvals be obtained.
In April 2003, at the urging of the City of Chula Vista, the developers within Otay Ranch (including Otay Land Company) entered into a three year agreement to limit the number of annual building permits they would utilize to an aggregate of 2,210 per year for all developers, with certain exceptions. The City has requested that this agreement be extended for another three years after it expires in April 2006. If the developers do not agree to extend the restriction, the City has the right to unilaterally impose a restriction on the number of building permits that can be issued. The current draft allocation for Otay Land Company is acceptable to the Company. However, there is no guaranty that this agreement will be extended or, if it is, that the proposed permit allocation will not change.
In August 2002, Otay Land Company reached an agreement with the City of Chula Vista and another party whereby the City agreed to acquire 439 acres of mitigation land from Otay Land Company by eminent domain proceedings. On January 15, 2004, these proceedings were concluded and the mitigation land was sold to the City for aggregate proceeds of approximately $5,800,000, substantially all of which had been received as of December 31, 2003. A pre-tax gain of approximately $4,800,000 was recognized in 2004.
After considering the above transactions, Otay Land Company owns approximately 2,900 acres, of which the total developable area is approximately 700 acres, including approximately 170 acres of land designated as "Limited Development Area and Common Use Area." The remaining approximately 2,200 acres are designated as various qualities of non-developable open space mitigation land. Under the General Development Plan, 1.188 acres of open space mitigation land from within the Otay Ranch project must be dedicated to the government for each 1.0 acre of land that is developed, excluding land designated Limited Development Area and Common Use Area.
Some owners of development land have adequate or excess mitigation land, while other owners lack sufficient acreage of mitigation land to cover their inventory of development land. Otay Land Company currently has substantially more mitigation land than it would need to develop its property at this project. Based upon the General Development Plan conditions, a market for this land could develop within the larger Otay Ranch development area as development progresses; however, such a market is partially dependent upon other parties with developable land fully developing their land. Should other owners choose not to develop their developable land, it is unlikely that Otay Land Company's mitigation land can be sold to other owners within the larger Otay Ranch planning area to meet their mitigation requirements. A sporadic market for Otay Land Company's excess mitigation land may be developing among buyers of such land in the San Diego County region. However, it is unclear whether the County of San Diego would determine that Otay Ranch mitigation land is acceptable for development unrelated to Otay Ranch.
The Company continues to evaluate how to maximize the value of this investment while pursuing land sales and processing further entitlements on portions of its property. The Company has been working with the City of Chula Vista and other developers on a General Development Plan Amendment for the overall Otay Ranch area. The City has incorporated the Company's proposed designs for Otay Land Company's holdings, and has stated it intends to consider approval of the General Development Plan Amendment in March 2005. If adopted, this amendment would increase Otay Land Company's approved residential units from 2,880 to 5,500, and leave in place its existing approval for 1.8 million square feet of commercial space. However, even if the General Development Plan Amendment is approved, significant design and processing will be required in order to fully entitle the property before development and sale of finished neighborhoods to builders can begin.
Even if Otay Land Company receives its entitlements to develop its property, it is uncertain whether it will fully develop or sell its developable land. As a result, the Company is unable to predict when revenues will be derived from this project. As indicated above, the ultimate development of projects of this type is subject to significant governmental and environmental regulation and approval and is likely to take many years. For additional information concerning governmental and environmental matters, see "Government Regulation" and "Environmental Compliance" below.
Other Projects
Rampage Property
In November 2003, the Company purchased a 2,159 acre grape vineyard located in southern Madera County, California. The purchase price for the property was $5,700,000, excluding expenses, of which $1,700,000 was paid in cash and the balance was financed. The Company has leased the farming rights to approximately one-half of the property to one of its former owners for a fifteen year period; however, the lease can be cancelled by the Company, in whole or in part, after five years (providing two years notice are given), or can be cancelled earlier upon the occurrence of certain other specified events. The lease provides that annual rent payments will be based upon the revenue received by the tenant from selling the grapes produced, but the amount is not expected to be material.
Although this property is not currently entitled for residential development, it is located in a growing residential area northeast of Fresno, California. The Company purchased this land with the intention of obtaining the necessary entitlements to develop the property as a master-planned community; however, approvals from various government agencies will be required, including the acquisition of a water supply that meets regulatory requirements. The Company expects the entitlement process will take several years and no assurance can be given that such entitlements will be obtained. In the interim, the Company is engaged in farming activities necessary to maintain the vineyard.
On January 6, 2005, an owner of adjacent property purported to exercise options to purchase 600 acres of the Rampage property for approximately $5,000,000. The party also filed a complaint against the Company and the former owners of the Rampage property. The complaint alleges the property has been devalued by approximately $3,000,000 due to poor farming practices since approximately 2001. The Company is presently evaluating the validity of the option, the notice of exercise, the claimed option price and the allegations of the complaint.
Competition
Real estate development is a highly competitive business. There are numerous residential real estate developers and development projects operating in the same geographic area in which the Company operates. Competition among real estate developers and development projects is determined by the location of the real estate, the market appeal of the development master plan, and the developer's ability to build, market and deliver project segments on a timely basis. Many of the Company's competitors may have greater financial resources and/or access to cheaper capital than the Company. Residential developers sell to homebuilders, who compete based on location, price, market segmentation, product design and reputation.
Government Regulation
The residential real estate development industry is subject to substantial environmental, building, construction, zoning and real estate regulations that are imposed by various federal, state and local authorities. In developing a community, the Company must obtain the approval of numerous governmental agencies regarding such matters as permitted land uses, housing density, the installation of utility services (such as water, sewer, gas, electric, telephone and cable television) and the dedication of acreage for open space, parks, schools and other community purposes. Regulations affect homebuilding by specifying, among other things, the type and quality of building materials that must be used, certain aspects of land use and building design and the manner in which homebuilders may conduct their sales, operations, and overall relationships with potential home buyers. Furthermore, changes in prevailing local circumstances or applicable laws may require additional approvals, or modifications of approvals previously obtained.
Timing of the initiation and completion of development projects depends upon receipt of necessary authorizations and approvals. Because of the provisional nature of these approvals and the concerns of various environmental and public interest groups, the approval process can be delayed by withdrawals or modifications of preliminary approvals and by litigation and appeals challenging development rights. The ability of the Company to develop projects could be delayed or prevented due to litigation challenging previously obtained governmental approvals. The Company may also be subject to periodic delays or may be precluded entirely from developing in certain communities due to building moratoriums or "slow-growth" or "no-growth" initiatives that could be implemented in the future. Such delays could adversely affect the Company's ability to complete its projects, significantly increase the costs of doing so or drive potential customers to purchase competitors' products.
Environmental Compliance
Environmental laws may cause the Company to incur substantial compliance, mitigation and other costs, may restrict or prohibit development in certain areas and may delay completion of the Company's development projects. Delays arising from compliance with environmental laws and regulations could adversely affect the Company's ability to complete its projects, significantly increase the costs of doing so or cause potential customers to purchase competitors' products.
Under various federal, state and local environmental laws, an owner or operator of real property may become liable for the costs of the investigation, removal and remediation of hazardous or toxic substances at that property. These laws often impose liability without regard to whether the owner or operator knew of, or was responsible for, the presence of the hazardous or toxic substances. The presence of hazardous or toxic substances, or the failure to remediate these substances when present, may adversely affect the owner's ability to sell or rent that real property or to borrow funds using that real property as collateral. It may impose unanticipated costs and delays on projects. Persons who arrange for the disposal or treatment of hazardous or toxic wastes may also be liable for the costs of the investigation, removal and remediation of those wastes at the disposal or treatment facility, regardless of whether that facility is owned or operated by that person. In addition to remediation actions brought by federal, state and local agencies, the presence of hazardous substances on a property could result in personal injury, contribution or other claims by private parties. These claims could result in costs or liabilities that could exceed the value of that property. We are not aware of any notification by any private party or governmental authority of any claim in connection with environmental conditions at any of our properties that we believe will involve any material expenditure other than as disclosed herein.
The Company obtained a preliminary remediation study concerning approximately 30 acres of undeveloped land in the Otay Ranch master-planned community that is owned by a subsidiary of Otay Land Company, Flat Rock Land Company, LLC ("Flat Rock"). Flat Rock owns approximately 265 acres of the Company's total holdings in the Otay Ranch area, including 100 developable acres. The need for remediation results from activities conducted on the land prior to Otay Land Company's ownership. Based upon the preliminary findings of this study, in 2002 the Company estimated that the cost to implement the most likely remediation alternative would be approximately $11,200,000, and accrued that amount as an operating expense. The estimated liability is neither discounted nor reduced for potential claims for recovery from previous owners and users of the land who may be liable, and may increase or decrease based upon the actual extent and nature of the remediation required, the type of remedial process approved, the expenses of the regulatory process, inflation and other items. The Company periodically adjusts its liability to reflect its current best estimate; however, no assurance can be given that the actual amount of environmental liability will not exceed the amount of reserves for this matter or that it will not have a material adverse effect on the Company's financial position, results of operations or cash flows. During 2004, the Company increased its estimate of remediation costs by approximately $1,300,000, primarily due to increases in site investigation and remediation costs, and during 2003 by approximately $300,000, primarily for consulting costs.
During 2003, Otay Land Company developed an investigation plan, which the San Diego Department of Environmental Health ("DEH") approved, to further determine the nature and extent of contamination on the property. In January 2004, the State Department of Toxic Substance Control ("DTSC") approved DEH as the overseeing agency for the site investigation and the remediation. Flat Rock selected an environmental consultant to implement the investigation plan, which has been conducted under the San Diego County Voluntary Cleanup Program and under the oversight of the DEH. Flat Rock expects to complete the investigation during 2005, after which it will submit its remediation plan to and seek approval from the DEH. However, the Company is unable to predict when the remediation will commence and there is no current regulatory requirement to commence remediation by a fixed date. Further, Otay Land Company and Flat Rock have filed a lawsuit in Federal Court in the Southern District of California seeking compensation from the parties which it believes are responsible for the contamination. However, the Company can give no assurances that this lawsuit will be successful or that it will be able to recover any of the costs incurred in investigating and/or remediating the contamination.
Employees
At December 31, 2004, the Company and its consolidated subsidiaries had 21 full-time employees.
Investor Information
The Company is subject to the informational requirements of the Securities Exchange Act of 1934 (the "Exchange Act"). Accordingly, the Company files periodic reports, proxy statements and other information with the Securities and Exchange Commission (the "SEC"). Such reports, proxy statements and other information may be obtained by visiting the Public Reference Room of the SEC at 450 Fifth Street, NW, Washington, D.C. 20549 or by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains an Internet site (http://www.sec.gov) that contains reports, proxy and information statements and other information regarding the Company and other issuers that file electronically.
The Company does not maintain a website. The Company will
provide without charge upon written request copies of its annual report on Form
10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments
to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the
Exchange Act. Requests for such copies should be directed to: HomeFed
Corporation, 1903 Wright Place, Suite 220, Carlsbad, CA 92008 (telephone number
(760) 918-8200), Attention: Corporate Secretary.
The Company currently develops two real estate properties, the San Elijo Hills project and the Otay Land Company project, and owns the Rampage property, all of which are described under Item 1, Business. Real estate had an aggregate book value of approximately $47,100,000 at December 31, 2004.
The Company leases 8,944 square feet for its corporate headquarters which is located at 1903 Wright Place, Suite 220, Carlsbad, California 92008. A portion of this space was sub-leased to Leucadia for a monthly base rental of $4,100 in 2004.
The Company is not a party to legal proceedings other than ordinary, routine litigation, incidental to its business or not material to the Company's consolidated financial position or results of operations.
Not applicable.
PART II
The Company's common stock is traded in the over-the-counter market under the symbol "HOFD." The Company's common stock is not listed on any stock exchange, and price information for the common stock is not regularly quoted on any automated quotation system. All common share and per share amounts in this Report have been restated to give retroactive effect to a reverse/forward stock split of the Company's common stock, the net effect of which was a reverse 1-for-10 stock split effected on July 14, 2003 following shareholder approval.
The following table sets forth the high and low bid price of the Company's common stock for each quarterly period within the two most recent fiscal years. The prices below are based on the high and low bid price per share, as published by the National Association of Securities Dealers OTC Bulletin Board Service, as adjusted to give retroactive effect to the reverse/forward stock split.
High Low
------- ------
Year ended December 31, 2003
First Quarter $ 15.30 $ 13.50
Second Quarter 29.00 13.70
Third Quarter 28.40 22.50
Fourth Quarter 30.00 24.30
Year ended December 31, 2004
First Quarter $ 34.60 $ 29.25
Second Quarter 35.00 32.00
Third Quarter 44.20 33.25
Fourth Quarter 52.50 42.00
Year ending December 31, 2005
First quarter (through March 1, 2005) $ 56.50 $ 49.75
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The over-the-counter quotations reflect inter-dealer prices, without retail mark up, markdown or commission, and may not represent actual transactions. On March 1, 2005, the closing bid price for the Company's common stock was $54.65 per share. As of that date, there were 1,109 stockholders of record. The Company did not declare dividends on its common stock during 2003 or 2004.
The Company does not currently meet certain requirements for listing on a national securities exchange or inclusion on the Nasdaq Stock Market.
The Company and certain of its subsidiaries have net operating
loss carryforwards ("NOLs") and other tax attributes, the amount and
availability of which are subject to certain qualifications, limitations and
uncertainties. In order to reduce the possibility that certain changes in
ownership could impose limitations on the use of its tax attributes, the
Company's certificate of incorporation contains provisions which generally
restrict the ability of a person or entity from accumulating five percent or
more of the common stock and the ability of persons or entities now owning five
percent or more of the common stock from acquiring additional common stock. The
restrictions will remain in effect until the earliest of (a) December 31, 2010,
(b) the repeal of Section 382 of the Internal Revenue Code (or any comparable
successor provision) and (c) the beginning of a taxable year of the Company to
which certain tax benefits may no longer be carried forward.
The transfer agent for the Company's common stock is American Stock Transfer & Trust Company, 59 Maiden Lane, New York, New York 10038.
The following selected financial data have been summarized from the Company's consolidated financial statements and are qualified in their entirety by reference to, and should be read in conjunction with, such consolidated financial statements and "Management's Discussion and Analysis of Financial Condition and Results of Operations," contained in Item 7 of this Report. The results of CDS are included in the Company's consolidated results of operations from the date of acquisition (October 21, 2002), and is the primary reason for the significant increase in revenues, expenses and profitability as compared to earlier periods. As indicated above, all common share and per share amounts have been restated to give retroactive effect to the reverse/forward stock split.
Year Ended December 31,
--------------------------------------------------------------------------
2004 2003 2002 2001 2000
----------- ------------- ------------ --------- ----------
(In thousands, except per share amounts)
SELECTED INCOME STATEMENT DATA:
Revenues (1) $ 81,671 $ 148,285 $ 13,111 $ 6,523 $ 5,175
Expenses (2) 26,490 50,575 22,418 6,932 7,754
Income (loss) before minority interest 47,633 85,237 (9,375) (377) (2,409)
Net income (loss) 36,792 74,076 (11,086) (1,377) (3,409)
Basic income (loss) per share $ 4.46 $ 9.08 $ (1.80) $ (0.24) $ (0.60)
Diluted income (loss) per share $ 4.45 $ 8.99 $ (1.80) $ (0.24) $ (0.60)
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Year Ended December 31,
--------------------------------------------------------------------------
2004 2003 2002 2001 2000
----------- ------------- ------------ --------- ----------
(In thousands, except per share amounts)
SELECTED BALANCE SHEET DATA:
Cash and cash equivalents $ 34,634 $ 43,503 $ 33,601 $ 1,454 $ 1,631
Investments 82,249 88,519 -- -- --
Real estate 47,126 37,612 31,108 23,890 22,979
Total assets 211,487 217,010 117,043 25,804 24,818
Note payable to Leucadia Financial Corporation -- 24,716 23,628 22,508 21,474
Other notes payable 16,620 13,580 16,704 -- --
Stockholders' equity (deficit) 113,751 76,330 1,650 (11,623) (10,421)
Shares outstanding 8,260 8,155 8,155 5,680 5,680
Book value per share $ 13.77 $ 9.36 $ .20 $ (2.05) $(1.83)
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(1) Prior to the acquisition of CDS, includes development management fee income
from San Elijo Hills of $1,600,000 for the period from January 1, 2002 to
October 21, 2002, and $4,800,000 and $3,500,000 for the years ended
December 31, 2001 and 2000, respectively. After the acquisition, these
payments are no longer reflected as revenues since they are eliminated in
consolidation.
(2) Includes provisions for environmental remediation of $1,300,000, $300,000
and $11,200,000 for the years ended December 31, 2004, 2003 and 2002,
respectively, which is more fully discussed in Results of Operations below.
The purpose of this section is to discuss and analyze the Company's consolidated financial condition, liquidity and capital resources and results of operations. This analysis should be read in conjunction with the consolidated financial statements and related notes which appear elsewhere in this Report.
Liquidity and Capital Resources
Net cash provided by operating activities, principally from the proceeds from the sale of real estate, was $22,500,000, $119,000,000 and $16,600,000 for the years ended December 31, 2004, 2003 and 2002, respectively. The large fluctuations in operating cash flows from year to year result from the timing of real estate sales, principally at the San Elijo Hills project. The San Elijo Hills project is being sold in phases, and the quantity of lot inventory available for sale can vary greatly from period to period. During 2003, the Company closed on the sales of substantially more lot inventory than any other period, the timing of which reflects both the strong residential real estate market at San Elijo Hills and the planned phasing of the project. Information about the remaining real estate to be sold at the San Elijo Hills project is provided below. Operating cash flows in 2003 also reflect the sale of a relatively large piece of land at the Otay Ranch project. Because of the nature of its real estate projects, the Company does not expect operating cash flows will be consistent from year to year.
The parent company's principal sources of funds are proceeds from the sale of real estate, its $10,000,000 line of credit with Leucadia, fee income from the San Elijo Hills project, dividends and tax sharing payments from its subsidiaries and borrowings from or repayment of advances by its subsidiaries. As of December 31, 2004, the Company had consolidated cash and cash equivalents and marketable securities aggregating $116,900,000. The Company's investment portfolio and cash equivalents are comprised entirely of highly rated investment grade securities issued by agencies of the U.S. government that all mature within one year. During 2004, dividends of $71,000,000 were paid by the Company's subsidiary that owns the San Elijo Hills project, of which $16,200,000 was paid to the minority interests in the San Elijo Hills project, and the Company retained the balance. The dividends retained by the Company did not increase the amount of consolidated liquidity reflected on the Company's consolidated balance sheet; however, they did increase the liquidity of the parent company. As of December 31, 2004, the parent company has approximately $73,400,000 of liquid assets to satisfy its needs, the needs of its subsidiaries and for future investment opportunities.
The Company expects that its cash on hand, together with the sources described above, will be sufficient for both its short and long term liquidity needs. Residential sales at the San Elijo Hills project are expected to be a continuing source of funds to the Company through 2006 if project development continues as planned, and if economic conditions remain favorable for the local housing market. Thereafter, cash flow from the San Elijo Hills project will principally result from the sale or lease of the commercial space. Until the Company is reasonably assured it will be able to sell or lease developed property for an adequate return, the San Elijo Hills project will not require significant funds for development. The Company is not relying on receipt of funds from Otay Land Company for the foreseeable future, since the timing of sales of undeveloped property, development activity and sales of developable and undevelopable property cannot be predicted with any certainty. However, except for the environmental remediation matter discussed below, Otay Land Company is not expected to require material funds in the short term, and long term needs will not be determined until a development plan is established. The Company does not anticipate that the Rampage property will require any significant funding or be the source of significant funds for the next few years. The Company is not currently committed to acquire any new real estate projects, but it does have sufficient liquidity to take advantage of appropriate acquisition opportunities if they are presented.
In March 2004, the Company prepaid its $26,462,000 borrowing from Leucadia in full, using its available cash. Although the Company has no current plans or intentions to replace this debt, the Company believes that it will have access to financing on acceptable terms should the need arise. Since the note was reflected in the consolidated balance sheet net of a discount of $1,606,000, the entire discount was reflected as an expense in the Company's 2004 consolidated statement of operations.
The Company currently has an unsecured $10,000,000 line of credit agreement with Leucadia, which has a maturity date of February 28, 2007. Loans outstanding under this line of credit bear interest at 10% per year. As of March 1, 2005, no amounts were outstanding under this facility.
When the Company acquired the Rampage property in 2003, $4,300,000 of the purchase price was to be paid to the seller by the end of 2004 and was reflected in the balance sheet as an other liability as of December 31, 2003. To secure its obligation to the seller, the Company gave the seller a letter of credit that was fully collateralized by cash. The property was encumbered by a mortgage lien granted by the seller and, although the Company was not obligated to satisfy the mortgage, it did agree to make interest payments due under the mortgage during 2004; in addition, any principal payments made by the Company to the mortgagee reduced the balance owed by the Company to the seller. If the seller had provided the mortgagee with replacement collateral and obtained a release of the mortgage lien before the end of 2004, the Company would have been obligated to pay the balance due to the seller. However, because the seller did not obtain a release of the mortgage lien, the Company is no longer obligated to pay any further amounts to the seller, but is now obligated to make all debt service payments to the mortgagee. In addition, as of December 31, 2004, the letter of credit expired and the cash collateral was released. At December 31, 2004, the principal amount of the mortgage is $3,700,000, it bears interest at 7 1/4% and requires an annual payment of interest and principal of $424,000 that fully amortizes the loan by its maturity in January 2018.
During 2004, two neighborhoods at the San Elijo Hills project consisting of 94 single family lots and 45 multi-family units were sold for an aggregate purchase price of $33,000,000, net of closing costs. Of this amount, $3,100,000 related to non-refundable options payments that were received in 2003. In addition, the Company sold a school site for a purchase price of $20,200,000, net of closing costs. At December 31, 2004, $18,500,000 of revenue related to these sales was deferred since the Company is required to complete certain improvements under the purchase agreements.
As of December 31, 2004, the aggregate balance of deferred revenue for all real estate sales (including the 2004 sales) was $39,100,000, which the Company estimates will be substantially recognized as revenue by the end of 2006. The Company estimates that it will spend approximately $8,900,000 to complete the required improvements, including costs related to common areas. The Company will recognize revenues previously deferred and the related cost of sales in its statements of operations as the improvements are completed under the percentage of completion method of accounting.
As of December 31, 2004, the remaining land at the San Elijo Hills project to be developed and sold or leased consisted of the following (including real estate under contract for sale):
Single family lots to be developed and sold 670 Multi-family units 171 Square footage of commercial space 135,000 |
In October 2004, the school district relinquished its option to acquire a ten acre school site within the project. Once the Company received notice from the school district, underlying zoning regulations permitted the construction of 135 multi-family units on the site, 67 of which were previously allocated to single family lots. These changes are reflected in the table above.
As of March 1, 2005, the Company has entered into agreements with homebuilders to sell 241 single family lots for aggregate cash proceeds of $103,900,000, pursuant to which it had received non-refundable option payments of $8,000,000, which were received in 2004. In addition, the Company has entered into an agreement with a builder to sell 131 multi-family units at a sales price of $36,000,000, pursuant to which it received a non-refundable option payment of $3,700,000 in 2004. These option payments are non-refundable if the Company completes site improvement work and fulfills its other obligations under the agreements, and will be applied to reduce the amount due from the purchasers at closing. Although these agreements are binding on the purchasers, should the Company fulfill its obligations under the agreements within the specified timeframes and a purchaser decides not to close, the Company's recourse will be primarily limited to retaining the option payment. The Company is also currently marketing for sale 79 single family lots which are luxury estate lots which may, by their nature, take more time to sell.
The Company is currently developing lots that are under
contract for sale or being marketed for sale. The Company believes it will sell
all of its remaining single family residential sites during 2005 and 2006, after
which the remaining activity at the San Elijo Hills project will be primarily
concentrated on multi-family and commercial sites. These estimates of future
property available for sale and the timing of the sales are based upon current
development plans for the project and could change based on actions of
regulatory agencies and other factors that are not within the control of the
Company.
During 2004, the Company recorded $4,500,000 of revenues related to revenue or profit sharing payments received from homebuilders who purchased lots in the San Elijo Hills project. Certain of the Company's lot purchase agreements with homebuilders include provisions that entitle the Company to a share of the revenues or profits realized by the homebuilders upon their sale of the homes. Since the future plans and potential profits of the Company's homebuilders are uncertain, the Company is unable to predict whether additional payments will be received in the future.
Since 1999, the San Elijo Hills project has carried $50,000,000 of general liability and professional liability insurance under a policy issued by the Kemper Insurance Companies ("Kemper"). The policy covered a thirteen year term from the initial date of coverage, and the entire premium for the life of the policy was paid in 1999. This policy is specific to the San Elijo Hills project; the Company has general and professional liability insurance for other matters with different insurance companies. To date, the Company has not made any material claims under the policy.
Kemper has ceased underwriting operations and has submitted a voluntary run-off plan to its insurance regulators. Although Kemper is not formally in liquidation or under the supervision of insurance regulators, it is uncertain whether they will have sufficient assets at such time, if ever, the Company makes a claim under the policy or, if they are insolvent, whether state insurance guaranty funds would be available to pay the claim. In May 2004, the Company purchased an excess policy with another insurance carrier that provides up to $10,000,000 of coverage for general liability claims, but not professional liability claims, relating to homes sold through May 31, 2004. The Company continues to investigate whether insurance coverage for future home sales at the San Elijo Hills project is available at acceptable prices; however, the Company has not yet found insurance coverage at an acceptable price.
In August 2002, Otay Land Company reached an agreement with the City of Chula Vista and another party whereby the City agreed to acquire 439 acres of mitigation land from Otay Land Company by eminent domain proceedings. In January 2004, these proceedings were concluded and the mitigation land was sold to the City for aggregate proceeds of approximately $5,800,000, substantially all of which had been received as of December 31, 2003. A pre-tax gain of approximately $4,800,000 was recognized in 2004.
In July 2004, the Board of Directors approved the repurchase of up to 500,000 shares of the Company's common stock, representing approximately 6% of the Company's outstanding stock. Repurchased shares would be available, among other things, for use in connection with the Company's stock option plans. The shares may be purchased from time to time, subject to prevailing market conditions, in the open market, in privately negotiated transactions or otherwise. Any such purchases may be commenced or suspended at any time without prior notice. No shares have been purchased to date.
As indicated in the table below, at December 31, 2004, the Company's contractual cash obligations totaled $21,491,000. The notes payable to trust deed holders are collateralized by the San Elijo Hills project. The Rampage note payable is collateralized by the Rampage property. For additional information, see Note 5 of Notes to Consolidated Financial Statements.
Payments Due by Period (in thousands)
------------------------------------------------------------------------
Total Amounts Less Than 1 After 5
Contractual Obligations Committed Year 1-3 Years 4-5 Years Years
----------------------- --------- ---- --------- --------- -----
Notes payable to trust deed holders $ 14,339 $ -- $ 161 $ 538 $13,640
Rampage note payable, including interest 5,941 424 849 849 3,819
Operating lease, net of sublease income 1,211 214 460 493 44
-------- ------ -------- ------- --------
Total Contractual Cash Obligations $ 21,491 $ 638 $ 1,470 $ 1,880 $ 17,503
======== ====== ======== ======= ========
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Pursuant to an agreement with the City of San Marcos, the Company is contractually obligated to contribute up to $11,000,000 towards the cost of improving two off site roads to the San Elijo Hills project, which is not reflected in the table above. The City of San Marcos is obligated to fund the balance of the cost of the roads. The Company expects it will substantially complete its road construction obligation by the end of 2005.
As of December 31, 2004, the Company had NOLs of $143,000,000 available to reduce its future federal income tax liabilities and $7,400,000 of alternative minimum tax credit carryovers. The federal NOLs are not available to reduce federal alternative minimum taxable income, which is currently taxed at the rate of 20%. As a result, the Company expects to pay federal income tax at a rate of 20% during future periods. For more information, see Note 10 of Notes to Consolidated Financial Statements.
Off-Balance Sheet Arrangements
The Company is required to obtain infrastructure improvement bonds primarily for the benefit of the City of San Marcos prior to the beginning of lot construction work and warranty bonds upon completion of such improvements at the San Elijo Hills project. These bonds provide funds primarily to the City in the event the Company is unable or unwilling to complete certain infrastructure improvements in the San Elijo Hills project. Leucadia has obtained these bonds on behalf of CDS and its subsidiaries both before and after the acquisition of CDS by the Company. CDS is responsible for paying all third party fees related to obtaining the bonds. Should the City or others draw on the bonds for any reason, certain of the Company's subsidiaries would be obligated to reimburse Leucadia for the amount drawn. As of December 31, 2004, the amount of outstanding bonds was approximately $28,200,000, none of which has been drawn upon.
Results of Operations
Critical Accounting Estimates
The Company's discussion and analysis of its financial condition and results of operations are based upon its consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these financial statements requires the Company to make estimates and assumptions that affect the reported amounts in the financial statements and disclosures of contingent assets and liabilities. On an on-going basis, the Company evaluates all of these estimates and assumptions. Actual results could differ from those estimates.
Profit Recognition on Sales of Real Estate - When the Company has an obligation to complete improvements on property subsequent to the date of sale, it utilizes the percentage of completion method of accounting to record revenues and cost of sales. Under percentage of completion accounting, the Company recognizes revenues and cost of sales based upon the ratio of development costs completed as of the date of sale to an estimate of total development costs which will ultimately be incurred, including an estimate for common areas. Revenues which cannot be recognized as of the date of sale are reported as deferred revenue on the consolidated balance sheets. As of December 31, 2004, the Company's deferred revenue balance aggregated $39,100,000.
The Company believes it can reasonably estimate its future costs and profit allocation in order to determine how much revenue should be deferred. However, such estimates are based on numerous assumptions and require management's judgment. For example, the estimate of future development costs includes an assumption about the cost of construction services for which the Company has no current contractual arrangement. If the estimate of these future costs proves to be too low, then the Company will have recognized too much profit as of the date of sale resulting in less profit to be reported as the improvements are completed. However, to date the Company's estimates of future development costs that have been used to determine the amount of revenue to be deferred at the date of sale have subsequently been proven to be reasonably accurate estimates.
Income Taxes - The Company records a valuation allowance to
reduce its deferred tax asset to an amount that the Company expects is more
likely than not to be realized. If the Company's estimate of the realizability
of its deferred tax asset changes in the future, an adjustment to the valuation
allowance would be recorded which would either increase or decrease income tax
expense in such period. The valuation allowance is determined after considering
all relevant facts and circumstances, but is significantly influenced by the
Company's projection of taxable income in the future. The Company calculated the
allowance based on the assumption that it would be able to generate future
taxable income of approximately $205,000,000, which is sufficient to fully
utilize the Company's NOLs, but not all of its alternative minimum tax credit
carryovers.
The calculation of the valuation allowance recognizes that the Company's NOLs will not be available to offset alternative minimum taxable income, which is currently taxed at a federal tax rate of 20%. When the Company pays alternative minimum tax, it generates an alternative minimum tax credit carryover, which can be used to reduce its future federal income tax rate once it has used all of its NOLs. Assuming the Company realizes its projected taxable income in the future and fully utilizes its NOLs, it will have approximately $36,000,000 of minimum tax credit carryovers to reduce future federal income taxes payable. However, the minimum tax credit carryovers are only able to reduce the Company's federal income tax rate to 20% in any given year, which means the Company would have to generate an additional $175,000,000 of taxable income above its current estimate to fully use them. As a result, the Company has reserved for a substantial portion of this benefit in its valuation allowance.
The projection of future taxable income is based upon numerous assumptions about the future, including future market conditions where the Company's projects are located, regulatory requirements, estimates of future real estate revenues and development costs, the ability of the Company to realize taxable profits prior to the expiration of its NOLs, future interest expense, operating and overhead costs and other factors. To the extent the Company's actual taxable income in the future exceeds its estimate, the Company will recognize additional tax benefits; conversely, if the actual taxable income is less than the amounts projected, an addition to the valuation allowance would be recorded that would increase tax expense in the future.
In each of the last two years, the Company has reduced its valuation allowance and federal income tax expense as a result of increases in its projected taxable income. During this period, the Company has entered into lot sale agreements at the San Elijo Hills project for prices that continue to increase, at a rate greater than had been expected. The increase in projected income results from the continued strong residential housing market in the San Elijo Hills area and the Company's management applying a conservative approach to estimating future results. Further, since the Company's plans for development at the Otay Ranch and Rampage properties are uncertain, the Company has not included estimates of future revenues from these projects in its taxable income projections. The Company believes that real estate markets and demand can change quickly, and that projecting profits for these projects at this time is not appropriate. Adjustments to the valuation allowance in the future should be expected.
Provision for Environmental Remediation - The Company records environmental liabilities when it is probable that a liability has been incurred and the amount or range of the liability is reasonably estimable. During 2002, the Company recorded a charge of $11,200,000 representing its estimate of the cost (including legal fees) to implement the most likely remediation alternative with respect to approximately 30 acres of undeveloped land owned by the Company's subsidiary, Flat Rock Land Company. The estimated liability was neither discounted nor reduced for potential claims for recovery from previous owners and users of the land who may be liable, and may increase or decrease based upon the actual extent and nature of the remediation required, the type of remedial process approved, the expenses of the regulatory process, inflation and other items. During 2004, the Company increased its estimate of remediation costs by approximately $1,300,000, primarily due to increases in site investigation and remediation costs, and during 2003 by approximately $300,000, primarily for consulting costs. The Company may begin remediation during 2005, although it has no obligation to do so. The Company does not currently know when the funds for remediation activities will be spent.
Flat Rock is currently performing an investigation and is preparing the required documentation in order to obtain approval of a remediation plan from the appropriate regulatory authority. Flat Rock expects that it will be able to submit its remediation plan by the end of 2005. As it continues its investigation and develops its remediation plan, the Company may conclude that the current estimate of its liability needs to be adjusted. A change to the current estimate could result from, among other things, a conclusion that a different remediation alternative is more appropriate (which could increase or decrease the estimate), that the cost to implement any remediation alternative is different than the Company's current estimate and/or requirements imposed by regulatory authorities that the Company did not anticipate but is nevertheless required to implement. The Company periodically adjusts its liability to reflect its current best estimate; however, no assurance can be given that the actual amount of environmental liability will not exceed the amount of reserves for this matter or that it will not have a material adverse effect on the Company's financial position, results of operations or cash flows.
Provision for Losses on Real Estate - The Company's real estate is carried at cost. Whenever events or changes in circumstances suggest that the carrying amount may not be recoverable, management assesses the recoverability of its real estate by comparing the carrying amount with its fair value. The process involved in the determination of fair value requires estimates as to future events and market conditions. This estimation process may assume that the Company has the ability to complete development and dispose of its real estate properties in the ordinary course of business based on management's present plans and intentions. If management determines that the carrying value of a specific real estate investment is impaired, a write-down is recorded as a charge to current period operations. The evaluation process is based on estimates and assumptions and the ultimate outcome may be different. The Company has not recorded any such provisions du ring the three year period ended December 31, 2004.
Statement of Operations
The Company currently has two significant real estate development projects, the San Elijo Hills project and the Otay Ranch project. The Company acquired the San Elijo Hills project in October 2002, and this acquisition accounts for the significant increase in revenues, cost of sales and profitability as compared to earlier periods. The San Elijo Hills project is a master-planned community that, when completed, will contain approximately 2,364 single family lots, 830 multi-family units, 272 very low income apartment units, two school sites and commercial space which will be sold or leased. As of March 1, 2005, the remaining land at the San Elijo Hills project to be developed and sold or leased (including real estate under contract for sale) consisted of 670 single family lots, 171 multi-family units and 135,000 square feet of commercial space. The Company currently plans to complete its development of residential sites during 2005 and 2006, after which remaining activity at the San Elijo Hills project will be primarily concentrated on the commercial sites. These estimates of future property available for sale and the timing of the sales are derived from the current plans for the project, and could change based upon the actions of the project's homebuilders or regulatory agencies.
While the San Elijo Hills project is a development community with significant sales activity, sales at the Otay Ranch project have been limited to three individual transactions for relatively large amounts of land. Individual lot development at the Otay Ranch project has not yet begun, as the Company continues to evaluate how to maximize the value of this investment while pursuing land sales and processing further entitlements on portions of the property. If and when the Company determines to commence lot development at the Otay Ranch project, it is expected to last several years. Similarly, the Rampage property is not expected to have sales activity for several years. Approximately one-half of the Rampage property has been leased to another party for a minimum of five years (the net lease income is not expected to be significant), and any residential development can only commence after approvals are obtained from several government agencies.
Real Estate Sales Activity
San Elijo Hills Project:
The Company has closed on sales of real estate and recognized
revenues as follows:
Year Ended Year Ended October 21, 2002 to
December 31, 2004 December 31, 2003 December 31, 2002
----------------- ----------------- -----------------
(Dollars in thousands)
Single family units 94 535 92
Multi-family units 45 -- --
Very low income apartment units -- 204 --
School sites 1 -- --
Purchase price, net of closing costs $ 53,200 $ 133,400 $ 24,700
Revenues recognized on closing date $ 28,800 $ 77,100 $ 3,600
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As discussed above, a portion of the revenue from these sales was deferred, and is recognized as revenues upon the completion of the required improvements to the property, including costs related to common areas, under the percentage of completion method of accounting. In addition to revenues recognized on the closing date reflected in the table above, revenues include previously deferred amounts of $38,800,000, $35,500,000 and $1,400,000 for 2004, 2003 and 2002, respectively, which were recognized upon completion of certain required improvements.
Revenues from sales of real estate also include amounts received pursuant to profit sharing agreements with homebuilders of $4,500,000, and $5,500,000 during 2004 and 2003, respectively. Additionally, revenues from sales of real estate in 2003 include approximately $3,000,000 paid by one of San Elijo's homebuilders for the Company's consent to allow the homebuilder to re-sell his lots to another homebuilder.
During 2004, 2003 and 2002, cost of sales of real estate aggregated $16,000,000, $29,100,000 and $2,000,000, respectively. Cost of sales is recognized in the same proportion to the amount of revenue recognized under the percentage of completion method of accounting.
During 2004, sales of real estate were $5,800,000 relating to an agreement with the City of Chula and another party whereby the City agreed to acquire 439 acres of mitigation land by eminent domain proceedings. Sales of real estate during 2003 consist of $22,500,000 from the sale of 1,445 acres. For 2002, sales of real estate consist of $4,300,000 from the sale of 85 acres of developable land.
During 2004, 2003 and 2002, cost of sales of real estate aggregated $1,000,000, $4,800,000 and $800,000, respectively. Cost of sales is based upon the allocation of project costs to individual parcels, based upon their relative fair values, in addition to closing costs and commissions, if any.
During 2003, the Company disposed of all of its remaining interest in the Paradise Valley project and recognized pre-tax income of $1,500,000, net of $300,000 that was allocated to the minority interest. There were no sales relating to this project in 2002.
Other Results of Operations Activity
The Company recorded co-op marketing and advertising fees of approximately $3,700,000, $1,300,000 and $1,900,000 for the years ended December 31, 2004, 2003 and 2002, respectively. The Company records these fees when the San Elijo Hills project builders sell homes, and are generally based upon a fixed percentage of the homes' selling price. These fees provide the Company with funds to conduct its marketing activities.
Prior to the acquisition of CDS, the Company recognized development management fee income in its consolidated statements of operations. While development management fees have continued to be a source of liquidity to the parent company since the acquisition of CDS, they are no longer reflected in the consolidated statements of operations since they are intercompany payments from a subsidiary and are eliminated in consolidation. Development management fee income from the San Elijo Hills project was approximately $1,600,000 for the period from January 1, 2002 to October 21, 2002.
Income from options on real estate properties reflects non-refundable fees of approximately $300,000 in 2002. Payments received were to extend the closing date on the sale of the 85 acres of developable land at the Otay Ranch project, which closed in June 2002.
As more fully discussed above, in 2002, the Company recorded a provision of approximately $11,200,000, representing its estimated cost of environmental remediation. During 2004, the Company revised its estimate and recorded approximately $1,300,000 of additional expense, primarily due to higher site investigation and remediation costs. In 2003, the Company recorded approximately $300,000 of additional expense, primarily for consulting costs.
Interest expense reflects the interest due on indebtedness to Leucadia of approximately $400,000, $1,600,000 and $1,700,000 for 2004, 2003 and 2002, respectively. Interest expense also includes amortization of debt discount related to the indebtedness to Leucadia of $300,000, $1,100,000, and $1,100,000 for 2004, 2003 and 2002, respectively. As described above, the borrowing from Leucadia was fully repaid in March 2004; as a result these interest costs ceased at the date of repayment. In addition, interest expense includes $300,000 for 2004 and was not material for 2003, with respect to the Rampage property.
Interest expense excludes capitalized interest of $1,200,000 and $1,400,000 for the years ended December 31, 2004 and 2003, respectively, and $200,000 for the period from October 21, 2002 to December 31, 2002. Interest is capitalized for the notes payable to trust deed holders on the San Elijo Hills project.
General and administrative expenses decreased by $1,500,000 during 2004 as compared to 2003 due to decreases in salaries expense of $2,600,000 and stock compensation expense of $600,000. The decrease in salaries expense related to reduced bonus expense and the resignation of two executive officers in March 2004 who have not been replaced. Stock compensation expense declined because the performance stock options (granted in 2000) became fully vested in 2003. General and administrative expenses also reflect an increase in farming and other expenses at the Rampage property, which was acquired in November 2003, and legal fees. The increase in expenses at the Rampage property of $1,200,000 primarily represents the cost of restoring approximately 310 acres of vines for future production. Restoration involves the application of farming practices including grafting to put the vineyard back into production. Farming related activities at the Rampage property are expected to continue while the Company seeks to have the land entitled as a master-planned community. The Company has just begun the process to obtain the necessary entitlements to develop the Rampage property as a master-planned community; a process that will require numerous regulatory approvals and is expected to take several years to complete. Legal fees increased by $500,000 due to costs associated with pursuing claims against previous owners of undeveloped land that is undergoing environmental remediation at the Otay Ranch project.
General and administrative expenses increased by $6,500,000 during 2003 as compared to 2002 due to expenses of $1,500,000 related to CDS, greater expenses related to employee compensation of $3,200,000 and legal and professional fees. The increase in employee compensation is due to higher bonuses attributable to better Company performance in 2003 compared to 2002. The increase in legal and professional fees of $1,400,000 principally reflects costs associated with the Otay Ranch project, including costs incurred in connection with the eminent domain proceedings by the City of Chula Vista discussed above, and expenses of $120,000 related to the Company's reverse/forward split. In addition, general and administrative expenses increased by $300,000 in 2003 as compared to 2002 for previously deferred stock compensation expense due to a charge related to certain performance options that were no longer subject to forfeiture and greater appreciation of the Company's stock price.
The decrease in other income, net for 2004 as compared to 2003 primarily relates to $1,600,000 for the remaining unamortized discount and related deferred costs on the indebtedness to Leucadia, which was fully repaid in March 2004. Other income in 2004 also reflects an increase in investment income of $600,000 due to greater interest income resulting from a larger amount of invested assets. Other income in 2003 includes income of $200,000 from the reimbursement for improvement costs that were previously expensed at the San Elijo Hills project, proceeds of $200,000 from an easement at the Otay Ranch project and cash received of $300,000 to settle a dispute with one of the Company's vendors.
The increase in other income, net for 2003 as compared to 2002 primarily relates to greater interest income of $800,000 resulting from a larger amount of invested assets, and the aforementioned income from the reimbursement for improvement costs that were previously expensed at the San Elijo Hills project, proceeds from an easement at the Otay Ranch project and cash received to settle a dispute with one of the Company's vendors. These increases were partially offset by the gain on a sale of a foreclosed property in 2002 for $100,000.
The decrease in minority expense in 2004 as compared to 2003 relates to lower sales at the San Elijo Hills project. The increase in minority interest expense for 2003 as compared to 2002 is primarily due to the minority interest related to CDS (which was acquired in October 2002) and increased preferred capital interest related to Otay Ranch (prior to its redemption in 2003).
As a result of an increase in the Company's estimates of future taxable income that exceeded its earlier estimates, the Company reduced its income tax valuation allowance to recognize additional benefits from its NOLs and minimum tax credit carryovers and recorded a credit to its income tax provision of $15,000,000 and $26,065,000 for the years ended December 31, 2004 and 2003, respectively. Income taxes paid for 2002 principally relate to state income taxes, reduced by a refund of prior year federal alternative minimum tax payments. In 2002, the Company did not recognize income tax benefits for its losses due to the uncertainty of sufficient future taxable income which is required in order to recognize such tax benefits. For more information, see Note 10 of Notes to Consolidated Financial Statements.
Recently Issued Accounting Standards
In December 2004, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards No. 123R, "Share-Based Payment" ("SFAS 123R"), which replaces SFAS 123 and supersedes APB Opinion No. 25, "Accounting for Stock Issued to Employees". SFAS 123R requires that the cost of all share-based payments to employees, including grants of employee stock options, be recognized in the financial statements based on their fair values. That cost will be recognized as an expense over the vesting period of the award. The pro forma disclosures previously permitted under SFAS 123 no longer will be an alternative to financial statement recognition. In addition, the Company will be required to determine fair value in accordance with SFAS 123R. SFAS 123R is effective for reporting periods beginning with the first interim or annual period after June 15, 2005, with early adoption encouraged, and requires the application of a transition methodology for stock options that have not vested as of the date of adoption. The Company is currently evaluating the impact of SFAS 123R on its consolidated financial statements.
In December 2004, the FASB issued Statement of Financial Accounting Standards No. 153, "Exchanges of Nonmonetary Assets--An Amendment of APB Opinion No. 29" ("SFAS 153"), which is effective for fiscal periods beginning after June 15, 2005. SFAS 153 eliminates the exception from fair value measurement for nonmonetary exchanges of similar productive assets in paragraph 21(b) of APB Opinion No. 29, "Accounting for Nonmonetary Transactions," and replaces it with an exception for exchanges that do not have commercial substance. SFAS 153 specifies that a nonmonetary exchange has commercial substance if the future cash flows of the entity are expected to change significantly as a result of the exchange. The adoption of SFAS 153 will not have any material effect on the consolidated financial statements; however, SFAS 153 could impact the accounting for future transactions, if any, within its scope.
Inflation
The Company, as well as the real estate development and homebuilding industry in general, may be adversely affected by inflation, primarily because of either reduced rates of savings by consumers during periods of low inflation or higher land and construction costs during periods of high inflation. Low inflation could adversely affect consumer demand by limiting growth of savings for down payments, ultimately adversely affecting demand for real estate and the Company's revenues. High inflation increases the Company's costs of labor and materials. The Company would attempt to pass through to its customers any increases in its costs through increased selling prices. To date, high or low rates of inflation have not had a material adverse effect on the Company's results of operations. However, there is no assurance that high or low rates of inflation will not have a material adverse impact on the Company's future results of operation.
Interest Rates
The Company's operations are interest-rate sensitive. The Company has indirectly benefited from the prevailing low mortgage interest rate environment, since low rates made housing more affordable for the home buyer, thereby increasing demand for homes. The Company can not predict whether interest rates will remain low and what impact an increase in interest rates and mortgage rates would have on the Company's operations, although any significant increase in these rates could have a chilling effect on the housing market, which could adversely affect the Company's results of operations.
Cautionary Statement for Forward-Looking Information
Statements included in this Report may contain forward-looking statements. Such statements may relate, but are not limited, to projections of revenues, income or loss, plans for growth and future operations, competition and regulation as well as assumptions relating to the foregoing. Such forward-looking statements are made pursuant to the safe-harbor provisions of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements are inherently subject to risks and uncertainties, many of which cannot be predicted or quantified. When used in this Report, the words "estimates," "expects," "anticipates," "believes," "plans," "intends" and variations of such words and similar expressions are intended to identify forward-looking statements that involve risks and uncertainties. Future events and actual results could differ materially from those set forth in, contemplated by or underlying the forward-looking statements.
The factors that could cause actual results to differ materially from those suggested by any of these statements or which may materially and adversely affect the Company's actual results include, but are not limited to, those discussed or identified from time to time in our public filings, including:
o Changes in prevailing interest rate levels, including mortgage rates. Any significant increase in the prevailing low mortgage interest rate environment could reduce consumer demand for housing.
o Changes in domestic laws and government regulations or requirements and in implementation and/or enforcement of governmental rules and regulations. The Company's plans for its development projects require numerous governmental approvals, licenses, permits and agreements, which must be obtained before development and construction may commence. The approval process can be delayed by withdrawals or modifications of preliminary approvals, by litigation and appeals challenging development rights and by changes in prevailing local circumstances or applicable laws that may require additional approvals or as a result of additional time required to obtain government approvals.
o Changes in real estate pricing environments. Any significant decrease in the prevailing price of real estate in the geographic areas in which the Company owns, develops and sells real estate may adversely affect the Company's results of operations.
o Regional or general increases in cost of living. Any significant increases in the prevailing prices of goods and services that result in increased costs of living, particularly in the regions in which the Company is currently developing properties, may adversely affect consumer demand for housing.
o Demographic and economic changes in the United States generally and California in particular. The Company's operations are sensitive to demographic and economic changes. Any economic downturn in the United States in general, and California in particular, may adversely affect consumer demand for housing by limiting the ability of people to save for down payments and purchase homes. In addition, if the current trend of population increases in California were not to continue, or in the event of any significant reduction in job creation, demand for real estate in California may not be as robust as current levels indicate.
o Increases in real estate taxes and other local government fees. Any such increases may make it more expensive to own the properties that the Company is currently developing, which would increase the carrying costs to the Company of owning the properties and decrease consumer demand for them.
o Significant competition from other real estate developers and homebuilders. There are numerous residential real estate developers and development projects operating in the same geographic area in which the Company operates. Many of the Company's competitors may have advantages over the Company, such as more favorable locations which may provide better schools and easier access to roads and shopping, or amenities that the Company may not offer, as well as greater financial resources and/or access to cheaper capital.
o Decreased consumer spending for housing. Any decrease in consumer spending for housing may directly affect the Company's results of operations.
o Delays in construction schedules and cost overruns. Any material delays could adversely affect the Company's ability to complete its projects, significantly increasing the costs of doing so, including interests costs, or drive potential customers to purchase competitors' products. Cost overruns, if material, could have a direct adverse impact on the Company's results of operations.
o Availability and cost of land, materials and labor and increased development costs, many of which the Company would not be able to control. The Company's current and future development projects require the Company to purchase significant amounts of land, materials and labor. If the costs of these items increase, it will increase the costs to the Company of completing its projects; if the Company is not able to recoup these increased costs, its results of operations could be adversely affected.
o Damage to or condemnation of properties and occurrence of significant natural disasters and fires. Damage to or condemnation of any of the Company's properties, whether by natural disasters and fires or otherwise, may either delay or preclude the Company's ability to develop and sell its properties, or affect the price at which it may sell such properties.
o Imposition of limitations on the Company's ability to develop its properties resulting from environmental laws and regulations and developments in or new applications thereof. The residential real estate development industry is subject to increasing environmental, building, construction, zoning and real estate regulations that are imposed by various federal, state and local authorities. Environmental laws may cause the Company to incur additional costs, and adversely affect its ability to complete its projects in a timely and profitable manner.
o Property in California is at risk from earthquakes. Although research on earthquake prediction has increased in recent years, it cannot be predicted when and where an earthquake will occur. We do not intend to obtain earthquake insurance for our projects. An earthquake could cause structural damage or destroy our projects, which could have an adverse financial impact on us.
o Under California law we could be liable for some construction defects in homes we build or that are built on land that we develop. California law imposes some liabilities on developers of land on which homes are built as well as on builders. Future construction defect litigation could be based on a strict liability theory based on our involvement in the project or it could be related to infrastructure improvements or grading, even if we are not building homes ourselves.
o The inability to insure certain risks economically. The Company cannot be certain that it will be able to insure all risks that it desires to insure, that it can insure risks economically or that all of its insurers will be financially viable if a claim is made by the Company.
o The availability of adequate water resources and reliable energy sources in the areas where the Company owns real estate projects. Any shortage of reliable water and energy resources or a drop in consumer confidence in the dependability of such resources in areas where the Company owns land may adversely affect the values of properties owned by the Company and curtail development projects.
o Changes in the composition of the Company's assets and liabilities through acquisitions or divestitures. The Company may make future acquisitions or divestitures of assets. Any change in the composition of the Company's assets and liabilities as a result thereof could significantly affect the financial position of the Company and the risks that it faces.
o The actual cost of environmental liabilities concerning land owned in San Diego County, California exceeding the amount reserved for such matter. The actual cost of remediation of undeveloped land owned by a subsidiary could exceed the amount reserved for such matter.
o The Company's ability to generate sufficient taxable income to fully realize the deferred tax asset, net of the valuation allowance. The Company and certain of its subsidiaries have NOLs and other tax attributes, but may not be able to generate sufficient taxable income to fully realize the deferred tax assets.
o The impact of inflation. The Company, as well as the real estate development and homebuilding industry in general, may be adversely affected by inflation, primarily because of either reduced rates of savings by consumers during periods of low inflation or higher land and construction costs during periods of high inflation.
Undue reliance should not be placed on these forward-looking statements, which are applicable only as of the date hereof. The Company undertakes no obligation to revise or update these forward-looking statements to reflect events or circumstances that arise after the date of this Report or to reflect the occurrence of unanticipated events.
The Company's market risk arises principally from interest rate risk related to its investment portfolio and borrowing activities.
At December 31, 2004, the Company had investments of approximately $82,200,000 in securities issued by the U.S. government and its agencies. The Company's investment portfolio is classified as available for sale, and is reflected in the balance sheet at fair value with unrealized gains and losses reflected in shareholders' equity. The securities in the portfolio are rated "AAA" and "Aaa" by Standard & Poor's and Moody's, respectively. All of these fixed income securities mature in 2005; the estimated weighted average remaining life of these fixed income securities was approximately 0.2 years at December 31, 2004. At December 31, 2003, the Company's investments consisted of fixed income securities with an estimated weighted average remaining life of approximately 0.2 years and a weighted average interest rate of 1.1%. The Company's fixed income securities, like all fixed income instruments, are subject to interest rate risk and will fall in value if market interest rates increase.
The Company is subject to interest rate risk on its long-term fixed interest rate debt. Generally, the fair market value of debt securities with a fixed interest rate will increase as interest rates fall, and the fair market value will decrease as interest rates rise. For additional information with respect to the Company's indebtedness, see Note 5 of Notes to Consolidated Financial Statements.
Expected Maturity Date
----------------------
2005 2006 2007 2008 2009 Thereafter Total Fair Value
---- ---- ---- ---- ---- ---------- ----- ----------
(Dollars in thousands)
Rate Sensitive Assets:
Available for Sale Fixed
Income Securities
U.S. Government
Securities $ 82,249 $ -- $ -- $ -- $ -- $ -- $ 82,249 $ 82,249
Weighted Avg.
Interest Rate 1.99%
Rate Sensitive Liabilities:
Fixed Interest Rate
Borrowings $ 3,828 $ 7,039 $ 2,618 $ 197 $ 211 $ 2,727 $ 16,620 $ 16,620
Weighted Average
Interest Rate 6.81% 6.80% 6.82% 7.25% 7.25% 7.25%
Off-Balance Sheet Items:
Unused Lines of Credit $ -- $ -- $ 10,000 $ -- $ -- $ -- $ 10,000 $ 10,000
Weighted Average
Interest Rate -- 10.0%
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Financial Statements and supplementary data required by this Item 8 are set forth at the pages indicated in Item 15(a) below.
Item 9. Changes and Disagreements with Accountants on Accounting and
Financial Disclosure.
------ -------------------------------------------------------------
Not applicable.
Item 9A. Controls and Procedures.
------- -----------------------
(a) The Company's management evaluated, with the participation of the
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Company's principal executive and principal financial officers, the effectiveness of the Company's disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), as of December 31, 2004. Based on their evaluation, the Company's principal executive and principal financial officers concluded that the Company's disclosure controls and procedures were effective as of December 31, 2004.
(b) There has been no change in the Company's internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that occurred during the Company's fiscal quarter ended December 31, 2004, that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting.
Management's Report on Internal Control Over Financial Reporting
Management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) or 15d-15(f) promulgated under the Securities Exchange Act of 1934. Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that:
o Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and disposition of the assets of the Company;
o Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and
o Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company's assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
The Company's management assessed the effectiveness of the Company's internal control over financial reporting as of December 31, 2004. In making this assessment, the Company's management used the criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
Based on our assessment and those criteria, management concluded that, as of December 31, 2004, the Company's internal control over financial reporting is effective.
The Company's independent registered public accounting firm has audited management's assessment of the effectiveness of the Company's internal control over financial reporting as of December 31, 2004 as stated in the report which appears on page F-1 of this Report.
Not applicable.
PART III
As of March 1, 2005, the directors and executive officers of the Company, their ages, the positions held by them and the periods during which they have served in such positions are as follows:
Name Age Position with the Company Office Held Since
---- --- ------------------------- -----------------
Paul J. Borden 56 Director and President May 1998
Curt R. Noland 48 Vice President October 1998
Erin N. Ruhe 39 Vice President, Treasurer and Vice President since April 2000;
Controller Treasurer since March 2004;
Controller since January 1999
Patrick D. Bienvenue 50 Director August 1998
Timothy M. Considine 64 Director January 1992
Ian M. Cumming 64 Director May 1999
Michael A. Lobatz 56 Director February 1995
Joseph S. Steinberg 61 Chairman of the Board and Director Chairman of the Board since
December 1999; Director since
August 1998
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The officers serve at the pleasure of the board of directors of the Company.
The recent business experience of our executive officers and directors is summarized as follows:
Paul J. Borden. Mr. Borden has served as a director and President of the Company since May 1998. Mr. Borden had been a Vice President of Leucadia National Corporation from August 1988 through October 2000, responsible for overseeing many of Leucadia's real estate investments.
Curt R. Noland. Mr. Noland has served as Vice President of the Company since October 1998. He spent the last 25 years in the land development industry in San Diego County as a design consultant, merchant builder and a master developer. From November 1997 until joining the Company, Mr. Noland was employed by the prior development manager of San Elijo Hills and served as Director of Development for San Elijo Hills. Prior to November 1997, Mr. Noland was employed for eight years by Aviara Land Associates, LP, a 1,000 acre master-planned resort community in Carlsbad, California. He is also a licensed civil engineer and real estate broker.
Erin N. Ruhe. Ms. Ruhe has served as Vice President of the Company since April 2000, Treasurer since March 2004 and has been employed by the Company as Controller since January 1999. Previously, Ms. Ruhe was Vice President since December 1995 and Controller since November 1994 of HSD Venture, a real estate subsidiary of Leucadia.
Patrick D. Bienvenue. Mr. Bienvenue has served as a director of the Company since August 1998. Since January 1996, Mr. Bienvenue has served in a variety of executive capacities with real estate related subsidiaries of Leucadia National Corporation and, from 1992 until December 1995, was President and Chief Executive Officer of Torwest Inc., a privately held property development and investment company.
Timothy M. Considine. Mr. Considine has served as a director of the Company since January 1992, serving as Chairman of the Board from 1992 to December 1999, and is employed by Considine and Considine, an accounting firm in San Diego, California where he was a partner from 1969 to 2002.
Ian M. Cumming. Mr. Cumming has served as a director of the Company since May 1999. He has been a director and Chairman of the Board of Leucadia National Corporation since June 1978 and a director and Chairman of the Board of The FINOVA Group Inc. ("FINOVA"), a middle market lender in which Leucadia has an indirect 25% equity interest, since August 2001. Mr. Cumming has also been a director of Skywest, Inc., a Utah-based regional air carrier, since June 1986.
Michael A. Lobatz. Dr. Lobatz has served as a director of the Company since February 1995 and has been a practicing physician in San Diego, California since 1981.
Joseph S. Steinberg. Mr. Steinberg has served as a director of the Company since August 1998 and as Chairman of the Board since December 1999. Mr. Steinberg has been President of Leucadia National Corporation since January 1979 and a director of Leucadia National Corporation since December 1978. In addition, he has served as a director of Jordan Industries Inc., a public company that owns and manages manufacturing companies, of which approximately 10.1% of the common stock is beneficially owned by Leucadia, since June 1988, FINOVA since August 2001 and White Mountains Insurance Group, Ltd., a publicly traded insurance holding company in which Leucadia has a less than 5% equity interest, since June 2001.
Audit Committee
The Board of Directors has a standing Audit Committee. The Board of Directors has adopted a charter for the Audit Committee, which was filed with the Company's proxy statement for its 2004 Annual Meeting of Shareholders. The Audit Committee consists of Messrs. Considine (Chairman) and Lobatz. Applying the Nasdaq criteria, the Board has determined that each of Messrs. Considine and Lobatz is independent. In addition, the Board has determined that Mr. Considine is qualified as an audit committee financial expert within the meaning of regulations of the Securities and Exchange Commission.
Code of Practice
The Company has a Code of Business Practice, which is applicable to all directors, officers and employees of the Company, and includes a Code of Practice applicable to the Company's principal executive officers and senior financial officers. Both the Code of Business Practice and the Code of Practice are available without charge upon request. Requests should be addressed to Corporate Secretary, HomeFed Corporation, 1903 Wright Place, Suite 220, Carlsbad, California 92008. The Company intends to file with the Securities and Exchange Commission amendments to or waivers from our Code of Practice applicable to our principal executive officers and senior financial officers.
Compliance with Section 16(a) of the Securities Exchange Act of 1934
Section 16(a) of the Securities Exchange Act of 1934 requires the Company's executive officers and directors, and persons who beneficially own more than 10% of a registered class of the Company's equity securities, to file reports of ownership and changes in ownership with the Securities and Exchange Commission. Based solely upon a review of the copies of such forms furnished to the Company and written representations from the Company's executive officers, directors and greater than 10% beneficial shareholders, the Company believes that during the year ended December 31, 2004, all persons subject to the reporting requirements of Section 16(a) filed the required reports on a timely basis.
Summary Compensation Table
Set forth below is certain information with respect to the cash compensation paid by the Company for services in all capacities to the Company and its subsidiaries during the years ended 2004, 2003 and 2002 to (i) the Company's President and chief executive officer, Paul J. Borden, and (ii) the other executive officers of the Company whose total annual salary and bonus exceeded $100,000 during these periods.
Long-term
Annual Compensation Compensation
-------------------------------------- -------------
Name and Principal Other Annual Options All Other
Position(s) Year Salary Bonus Compensation (2) (# of shares) Compensation (3)
----------- ---- ------ ----- ---------------- ------------- ---------------
Paul J. Borden, 2004 $ 246,200(1) $ 356,751 $ 84,662 $ 1,000 $ 8,200
President 2003 232,635(1) 1,006,619 89,780 100 8,000
2002 226,189(1) 231,426 117,397 100 8,000
Curt R. Noland, 2004 $ 115,995 $ 303,477 $ -- -- $ 8,200
Vice President 2003 113,620 603,409 -- -- 8,000
2002 110,318 153,309 -- -- 7,545
Erin N. Ruhe, 2004 $ 95,472 $ 253,300 $ -- -- $ 8,200
Vice President, 2003 78,805 302,364 -- -- 6,247
Treasurer 2002 76,493 77,295 -- -- 5,552
& Controller
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(1) Included for 2004 is $21,000 and for 2003 and 2002 is $12,000 of director fees Mr. Borden received from the Company.
(2) The executive maintains his primary residence in New Jersey. The information reflected above includes the incremental cost to the Company (valued in accordance with the disclosure rules of the Securities and Exchange Commission) of providing the executive with a temporary residence in California ($35,839, $36,830 and $35,343 in 2004, 2003 and 2002), airfare for travel to and from his primary residence ($38,715, $42,515 and $67,154 in 2004, 2003 and 2002) and transportation costs including the use of a company car while in California.
(3) Represents the contribution made by the Company to a defined contribution 401(k) plan on behalf of the named person.
Option Grants in 2004
The following table shows all grants of options to the named executive officers of the Company in 2004.
Potential Realizable Value
At Assumed Annual Rates
of Stock Price Appreciation
Individual Grants for Option Term (2)
------------------------------------------------------------- -----------------------------
Securities % of Total
Underlying Options
Options Granted to Exercise
Granted Employees Price Expiration
Name (# of shares) in 2004 ($/Share) Date 5%($) 10%($)
------------- ------------- -------- ---------- --------- --------
Paul J. Borden 1,000 (1) 100.0% $44.50 8/24/09 $12,295 $27,168
--------------
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(1) The options were granted pursuant to the Company's 1999 Stock Incentive Plan to all Directors of the Company at an exercise price equal to the fair market value of the shares of Common Stock on the date of grant. The grant date of the options is August 24, 2004. These options become exercisable at the rate of 25% per year commencing one year after the date of grant.
(2) The potential realizable values represent future opportunity and have not been reduced to reflect the time value of money. The amounts shown under these columns are the result of calculations at the 5% and 10% rates required by the Securities and Exchange Commission, and are not intended to forecast future appreciation of the shares of Common Stock and are not necessarily indicative of the values that may be realized by the named executive officer.
Aggregate Option Exercises in 2004 and Option Values at Year End 2004
The following table provides information as to options exercised by each of the named executives in 2004 and the value of options held by these executives at year end measured in terms of the last reported sale price for the Common Stock as of December 31, 2004, $50.01.
Number of Value of
Unexercised Unexercised In-the-
Options at Money Options at
December 31, 2004 December 31, 2004
----------------- ------------------
Number of shares
Underlying Value Exercisable/ Exercisable/
Name Options Exercised Realized Unexercisable Unexercisable
---- ----------------- -------- ------------- -------------
Paul J. Borden -- -- 4,250/2,150 $179,985/$52,759
Curt R. Noland 2,000 $85,500 --/ 500 $ -- /$21,255
Erin N. Ruhe -- -- 2,000/ 500 $ 85,020/$21,255
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Compensation of Directors
In 2004, each Director received a retainer of $21,000 for serving on the Board of Directors. In addition, Mr. Considine was paid $23,500 for serving as Chairman of the Audit Committee, and Mr. Lobatz was paid $15,750 for serving on the Audit Committee. In addition, under the terms of the Company's 1999 Stock Incentive Plan, each director is automatically granted options to purchase 1,000 shares on the date on which the annual meeting of stockholders of the Company is held each year. The purchase price of the shares covered by such options is the fair market value of such shares on the date of grant.
Set forth below is certain information as of March 1, 2005
with respect to the beneficial ownership determined in accordance with Rule
13d-3 under the Securities Exchange act of 1934, as amended, of Common Stock by
(i) each person who, to the knowledge of the Company, is the beneficial owner of
more than 5% of the outstanding Common Stock (the Company's only class of voting
securities), (ii) each Director, (iii) the current executive officers named in
the Summary Compensation Table under "Executive Compensation," (iv) a trust for
the benefit of Mr. Steinberg's children and private charitable foundations
established by Mr. Cumming and Mr. Steinberg and (v) all executive officers and
Directors of the Company as a group.
Number of Shares
Name and Address and Nature of Percent
of Beneficial Owner Beneficial Ownership of Class
------------------- -------------------- --------
Leucadia National Corporation ...................................... 2,474,226 (a) 30.0%
Patrick D. Bienvenue................................................ 1,250 (b) *
Paul J. Borden...................................................... 6,828 (c) *
Timothy M. Considine................................................ 1,750 (d) *
Ian M. Cumming...................................................... 773,409 (e)(f) 9.4%
Michael A. Lobatz................................................... 1,250 (b) *
Curt R. Noland...................................................... 5,000 (g) *
Erin N. Ruhe........................................................ 5,000 (h) *
Joseph S. Steinberg................................................. 781,870 (f)(i) 9.5%
The Steinberg Children Trust........................................ 27,532 (j) 0.3%
Cumming Foundation.................................................. 7,329 (k) *
The Joseph S. and Diane H. Steinberg
1992 Charitable Trust.......................................... 2,381 (l) *
All Directors and executive officers as a group (8 persons)......... 1,576,357 (m) 19.1%
-------------------
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* Less than .1%.
(a) The business address of this beneficial owner is 315 Park Avenue South, New York, New York 10010.
(b) Includes 250 common shares that may be acquired upon the exercise of currently exercisable stock options.
(c) Includes 5,250 common shares that may be acquired upon the exercise of currently exercisable stock options.
(d) Includes 500 shares held by the Seeseeanoh Inc. Retirement Plan. Mr. Considine and his wife are the sole owners of Seeseeanoh, a real estate company in San Diego, California. Also includes 1,250 shares held by The Considine Family 1981 Trust, of which Mr. Considine and his wife are trustees.
(e) Includes (i) 9,530 shares of Common Stock (.1%) beneficially owned by Mr. Cumming's wife (directly and through trusts for the benefit of Mr. Cumming's children of which Mr. Cumming's wife is trustee) as to which Mr. Cumming may be deemed to be the beneficial owner and (ii) 250 shares that may be acquired upon the exercise of currently exercisable stock options. Does not include 2,474,226 shares held by Leucadia which Mr. Cumming may be deemed to beneficially own as a result of his beneficial ownership of Leucadia common shares. See Item 13, "Certain Relationships and Related Transactions."
(f) Messrs. Cumming and Steinberg have an oral agreement pursuant to which they will consult with each other as to the election of a mutually acceptable Board of Directors of the Company. The business address for Messrs. Cumming and Steinberg is c/o Leucadia National Corporation, 315 Park Avenue South, New York, New York 10010.
(g) Includes 500 common shares that may be acquired upon the exercise of currently exercisable stock options.
(h) Includes 2,500 common shares that may be acquired upon the exercise of currently exercisable stock options.
(i) Includes (i) 3,676 shares of Common Stock (less than .1%) beneficially owned by Mr. Steinberg's wife and daughter as to which Mr. Steinberg may be deemed to be the beneficial owner, (ii) 61,793 shares of Common Stock owned by a trust for the benefit of Mr. Steinberg's children and (iii) 250 shares that may be acquired upon the exercise of currently exercisable stock options. Does not include 2,474,226 shares held by Leucadia which Mr. Steinberg may be deemed to beneficially own as a result of his beneficial ownership of Leucadia common shares. See Item 13, "Certain Relationships and Related Transactions."
(j) Mr. Steinberg disclaims beneficial ownership of the Common Stock held by the Steinberg Children Trust.
(k) Mr. Cumming is a trustee and President of the foundation and disclaims beneficial ownership of the Common Stock held by the foundation.
(l) Mr. Steinberg and his wife are trustees of the trust. Mr. Steinberg disclaims beneficial ownership of the Common Stock held by the trust.
(m) Includes 9,250 shares of Common Stock that may be acquired upon the exercise of currently exercisable stock options.
As of March 1, 2005, Cede & Co. held of record 4,755,776 shares of Common Stock (approximately 57.6% of the total Common Stock outstanding). Cede & Co. held such shares as a nominee for broker-dealer members of The Depository Trust Company, which conducts clearing and settlement operations for securities transactions involving its members.
Equity Compensation Plan Information
The following table summarizes information regarding the Company's equity compensation plans as of December 31, 2004. All outstanding awards relate to the Company's Common Stock.
Number of securities
remaining available
for future issuance
Number of Securities Weighted-average under equity
to be issued upon exercise price of compensation plans
exercise of outstanding options, outstanding options, (excluding securities
warrants and rights warrants and rights reflected in column (a))
Plan Category (a) (b) (c)
---------------------- ------------------------------- --------------------- ------------------------
Equity compensation
plans approved by
security holders 20,850 $18.78 493,900
Equity compensation
plans not approved
by security holders -- -- --
----------- --------- ---------
Total 20,850 $ 18.78 493,900
=========== ========= =========
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Relationship with Leucadia and Various Agreements
In 1995, Leucadia funded the Company's bankruptcy plan by purchasing common stock and a secured promissory note of the Company, which was prepaid in full in March 2004. In 1999, Leucadia distributed all of the HomeFed common stock that it owned to shareholders of Leucadia. In October 2002, Leucadia again acquired an equity interest in the Company when it received 2,474,226 shares of the Company's common stock, representing approximately 30% of the Company's outstanding shares, as partial consideration for its sale to the Company of CDS. For additional information, see Note 2 of Notes to Consolidated Financial Statements.
As a result of the distribution of HomeFed common stock to Leucadia's shareholders in 1999, Joseph S. Steinberg, Chairman of the Board of HomeFed, and Ian M. Cumming, a director of HomeFed, together with their respective family members (excluding a trust for the benefit of Mr. Steinberg's children) beneficially own, at March 1, 2005, approximately 9.5% and 9.4%, respectively, of the Company's outstanding common stock, before consideration of the common shares owned by Leucadia. In addition, the Cumming foundation, a private charitable foundation independently established by Mr. Cumming, beneficially owns 7,329 (less than 0.1%) shares of the Company's outstanding common stock. Mr. Cumming disclaims beneficial ownership of the Company's common stock held by the Cumming foundation. Mr. Steinberg is also President and a director of Leucadia and Mr. Cumming is Chairman of the Board of Leucadia. At March 1, 2005, Mr. Steinberg and Mr. Cumming beneficially owned (together with their respective family members but excluding a trust for the benefit of Mr. Steinberg's children) approximately 11.6% and 11.5%, respectively, of Leucadia's outstanding common shares. The Cumming foundation also beneficially owns 211,146 (0.2%) of Leucadia outstanding common shares. Mr. Cumming disclaims beneficial ownership of Leucadia's common shares held by the Cumming foundation. In addition to their ownership of HomeFed common stock (directly and through family members), as a result of their beneficial ownership of Leucadia common shares, Messrs. Cumming and Steinberg each may be deemed to be the beneficial owner of the shares of HomeFed common stock owned by Leucadia.
In 2003, the Company paid Leucadia approximately $12,900,000 in redemption of Leucadia's preferred capital interest in Otay Land Company and in full satisfaction of the preferred return related thereto.
The Company is required to obtain infrastructure improvement bonds primarily for the benefit of the City of San Marcos prior to the beginning of lot construction work and warranty bonds upon completion of such improvements in the San Elijo Hills project. These bonds provide funds primarily to the City in the event the Company is unable or unwilling to complete certain infrastructure improvements in the San Elijo Hills project. Leucadia has obtained these bonds on behalf of CDS and its subsidiaries both before and after the acquisition of CDS by the Company. CDS is responsible for paying all third party fees related to obtaining the bonds. Should the City or others draw on the bonds for any reason, one of CDS's subsidiaries would be obligated to reimburse Leucadia for the amount drawn. As of December 31, 2004, the amount of outstanding bonds was approximately $28,200,000.
Since 1995, Leucadia has been providing administrative and accounting services to the Company. Under the current administrative services agreement, Leucadia provides services to the Company for a monthly fee of $15,000. The cost of services provided by Leucadia during 2004 aggregated $120,000. Pursuant to this agreement, Leucadia provides the services of Ms. Corinne A. Maki, the Company's Secretary, in addition to various administrative functions. Ms. Maki is an officer of subsidiaries of Leucadia.
In December 2004, the term of the administrative services agreement was extended to December 31, 2005, and thereafter for successive annual periods unless terminated in accordance with its terms. Leucadia has the right to terminate the agreement by giving the Company not less than one year's prior notice, in which event the then monthly fee will remain in effect until the end of the notice period. The Company has the right to terminate the agreement, without restriction or penalty, upon 30 days prior written notice to Leucadia.
In March 2001, the Company entered into an unsecured $3,000,000 line of credit agreement with Leucadia. Loans outstanding under this line of credit bear interest at 10% per year; in 2004, the Company paid $38,000 in commitment fees and incurred no interest expense. Effective March 1, 2002, this agreement was amended to extend the maturity to February 28, 2007, although Leucadia had the right to terminate the line of credit on an annual basis. In October 2002, the line of credit was increased to $10,000,000 and Leucadia's ability to terminate the line of credit prior to maturity was removed, unless the Company is in default. As of March 1, 2005, no amounts were outstanding under this facility.
The Company rents office space at its corporate headquarters and furnishings to Leucadia for a monthly rental equal to Leucadia's pro rata share of the Company's cost for such space and furnishings. In 2004, the rent paid by Leucadia to the Company totaled $68,000.
The Audit Committee has adopted policies and procedures effective May 2003 for pre-approving all audit and non-audit work performed by the Company's independent registered public accounting firm, PricewaterhouseCoopers LLP. Specifically, the Audit Committee has pre-approved certain specific categories of work and an annual amount for each category. For additional services or services in an amount above the annual amount that has been pre-approved, additional authorization from the audit committee is required. The Audit Committee has delegated to the Committee chair the ability to pre-approve both general pre-approvals (where no specific, case-by-case approval is necessary) and specific pre-approvals. Any pre-approval decisions made by the Committee chair under this delegated authority will be reported to the full Audit Committee. All requests for services to be provided by PricewaterhouseCoopers LLP that do not require specific approval by the audit committee must be submitted to the Controller of the Company, who determines that such services are in fact within the scope of those services that have been pre-approved by the Audit Committee. The Controller reports to the Audit Committee periodically.
The following table sets forth the aggregate fees incurred by us for the following periods relating to our independent registered public accounting firm, PricewaterhouseCoopers LLP:
Fiscal Year Ended
December 31,
--------------
2004 2003
---- ----
Audit Fees $ 85,800 $ 87,500
Audit Related Fees 190,000 4,000
--------- --------
$ 275,800 $ 91,500
========= ========
|
In the table above, in accordance with the SEC's definitions and rules, "audit fees" are fees paid to PricewaterhouseCoopers LLP for professional services for the audit of the Company's consolidated financial statements included in the Company's Form 10-K and review of financial statements included in the Company's Form 10-Qs, and for services that are normally provided by the accountants in connection with statutory and regulatory filings or engagements; and "audit-related fees" are fees for assurance and related services that are reasonably related to the performance of the audit or review of our financial statements and in 2004 consist of compliance with regulatory matters, including the Sarbanes-Oxley Act, and consulting with respect to technical accounting and disclosure rules. All such services were approved by the Audit Committee.
PART IV
(a)(1) Financial Statements. Report of Independent Registered Public Accounting Firm F-1 Consolidated Balance Sheets at December 31, 2004 and 2003 F-3 Consolidated Statements of Operations for the years ended December 31, 2004, 2003 and 2002 F-4 Consolidated Statements of Changes in Stockholders' Equity (Deficit) for the years ended December 31, 2004, 2003 and 2002 F-5 Consolidated Statements of Cash Flows for the years ended December 31, 2004, 2003 and 2002 F-6 Notes to Consolidated Financial Statements F-8 |
(a)(2) Financial Statement Schedules.
Schedules are omitted because they are not required or are not applicable or the required information is shown in the financial statements or notes thereto.
(a)(3) Executive Compensation Plans and Arrangements. See item 15(b) below for a complete list of exhibits to this Report.
1999 Stock Incentive Plan (filed as Annex A to the Company's Proxy Statement dated November 22, 1999).
Form of Grant Letter for 1999 Stock Incentive Plan.
See also Item 15(b) below.
(b) Exhibits.
We will furnish any exhibit upon request made to our Corporate Secretary, 1903 Wright Place, Suite 220, Carlsbad, CA 92008. We charge $.50 per page to cover expenses of copying and mailing.
3.1 Restated Certificate of Incorporation, as restated July 3, 1995 of the Company (incorporated by reference to Exhibit 3.1 to the Company's quarterly report on Form 10-Q for the quarter ended September 30, 1995).
3.2 By-laws of the Company as amended through December 14, 1999 (incorporated by reference to Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year ended December 31, 1999 (the "1999 10-K")).
3.3 Amendment to Amended and Restated Bylaws of the Company, dated July 10, 2002 (incorporated by reference to Exhibit 3.3 to the Company's quarterly report on Form 10-Q for the quarter ended September 30, 2002).
3.4 Certificate of Amendment of the Certificate of Incorporation of the
Company, dated July 10, 2002 (incorporated by reference to Exhibit 3.4
to the Company's quarterly report on Form 10-Q for the quarter ended
September 30, 2002).
3.5 Certificate of Amendment of the Certificate of Incorporation of the
Company, dated July 10, 2003 (incorporated by reference to Exhibit 3.5
to the Company's Annual Report on Form 10-K for the year ended December
31, 2003 (the "2003 10-K")).
3.6 Certificate of Amendment of the Certificate of Incorporation of the
Company, dated July 10, 2003 (incorporated by reference to Exhibit 3.6
to the Company's 2003 10-K).
10.1 Security Agreement and Stock Pledge by and between HomeFed Corporation
and Leucadia Financial Corporation dated as of July 3, 1995
(incorporated by reference to Exhibit 10.1 to the Company's 2003 10-K).
10.2 Development Management Agreement between the Company and Provence Hills
Development Company, LLC, dated as of August 14, 1998 (incorporated by
reference to Exhibit 10.3 to the Company's current report on Form 8-K
dated August 14, 1998).
10.3 Amended and Restated Limited Liability Company Agreement of Otay Land
Company, LLC, dated as of September 20, 1999, between the Company and
Leucadia National Corporation (incorporated by reference to Exhibit
10.16 to the Company's Registration Statement on Form S-2 (No.
333-79901)).
10.4 Administrative Services Agreement, dated as of March 1, 2000, between
Leucadia Financial Corporation ("LFC"), the Company, HomeFed Resources
Corporation and HomeFed Communities, Inc. (incorporated by reference to
Exhibit 10.1 to the Company's quarterly report on Form 10-Q for the
quarter ended June 30, 2000).
10.5 Amendment No. 1 dated as of November 1, 2000 to the Administrative
Services Agreement dated as of March 1, 2000 (incorporated by reference
to Exhibit 10.21 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 2000 (the "2000 10-K")).
10.6 Amendment No. 2 dated as of February 28, 2001 to the Administrative
Services Agreement dated as of March 1, 2000 (incorporated by reference
to Exhibit 10.22 to the Company's 2000 10-K).
10.7 Amendment No. 3 dated as of December 31, 2001 to the Administrative
Services Agreement dated as of March 1, 2000 (incorporated by reference
to Exhibit 10.26 to the Company's Annual Report on Form 10-K/A for the
fiscal year ended December 31, 2001).
10.8 Third Amendment to Option and Purchase Agreement and Escrow
Instructions, dated as of June 21, 2002, by and between Otay Land
Company, LLC and Lakes Kean Argovitz Resorts - California, LLC
(incorporated by reference to Exhibit 10.27 to the Company's quarterly
report on Form 10-Q for the quarter ended June 30, 2002).
10.9 Stock Purchase Agreement dated as of October 21, 2002, by and between
HomeFed Corporation and Leucadia National Corporation (incorporated by
reference to Exhibit 10.1 to the Company's current report on Form 8-K
dated October 22, 2002).
10.10 Registration Rights Agreement dated as of October 21, 2002, by and
between HomeFed Corporation and Leucadia National Corporation
(incorporated by reference to Exhibit 10.2 to the Company's current
report on Form 8-K dated October 22, 2002).
10.11 Second Amendment and Restated Loan Agreement dated as of October 9,
2002, by and between HomeFed Corporation and Leucadia Financial
Corporation (incorporated by reference to Exhibit 10.3 to the Company's
current report on Form 8-K dated October 22, 2002).
33
|
10.12 Second Amendment and Restated Variable Rate Secured Note dated as of
October 9, 2002 (incorporated by reference to Exhibit 10.4 to the
Company's current report on Form 8-K dated October 22, 2002).
10.13 Amended and Restated Line Letter dated as of October 9, 2002, by and
between HomeFed Corporation and Leucadia Financial Corporation
(incorporated by reference to Exhibit 10.5 to the Company's current
report on Form 8-K dated October 22, 2002).
10.14 Amended and Restated Term Note dated as of October 9, 2002
(incorporated by reference to Exhibit 10.6 to the Company's current
report on Form 8-K dated October 22, 2002).
10.15 Amendment No. 4 dated as of May 28, 2002 to the Administrative Services
Agreement dated as of March 1, 2000 (incorporated by reference to
Exhibit 10.34 to the Company's Annual Report on Form 10-K/A for the
fiscal year ended December 31, 2002 (the "2002 10-K/A")).
10.16 Amendment No. 5 dated as of November 15, 2002 to the Administrative
Services Agreement dated as of March 1, 2000 (incorporated by reference
to Exhibit 10.35 of the 2002 10-K/A).
10.17 Amendment dated as of October 21, 2002 to the Development Management
Agreement dated as of August 14, 1998 (incorporated by reference to
Exhibit 10.36 of the 2002 10-K/A).
10.18 Contribution Agreement between the Company and San Elijo Hills
Development Company, LLC, dated as of October 21, 2002 (incorporated by
reference to Exhibit 10.37 of the 2002 10-K/A).
10.19 Agreement and Guaranty, dated as of October 1, 2002, between Leucadia
National Corporation and CDS Holding Corporation (incorporated by
reference to Exhibit 10.38 of the 2002 10-K/A).
10.20 Obligation Agreement, dated as of October 1, 2002, between Leucadia
National Corporation and San Elijo Ranch, Inc. (incorporated by
reference to Exhibit 10.39 of the 2002 10-K/A).
10.21 Tax Allocation Agreement between the Company and its subsidiaries dated
as of November 1, 2002 (Incorporated by reference to Exhibit 10.21 to
the Company's 2003 10-K).
10.22 Amendment No. 1 to the First Amended and Restated Development Agreement
and Owner Participation Agreement between the City of San Marcos, the
San Marcos Redevelopment Agency and the San Elijo Hills Development
Company, LLC dated as of February 11, 2004 (incorporated by reference
to Exhibit 10.22 to the Company's 2003 10-K).
10.23 Amendment No. 6 dated as of December 31, 2003 to the Administrative
Services Agreement dated as of March 1, 2000 (incorporated by reference
to Exhibit 10.23 to the Company's 2003 10-K).
10.24 Amendment No. 7 dated as of December 31, 2004 to the Administrative
Services Agreement dated as of March 1, 2000.
10.25 1999 Stock Incentive Plan (incorporated by reference to Annex A to the
Company's Proxy Statement dated November 22, 1999).
10.26 Form of Grant Letter for the 1999 Stock Incentive Plan.
21 Subsidiaries of the Company.
23 Consent of PricewaterhouseCoopers LLP with respect to the incorporation
by reference into the Company's Registration Statement on Form S-8
(File No. 333-97079).
31.1 Certification of Principal Executive Officer pursuant to Section 302 of
the Sarbanes-Oxley Act of 2002.
31.2 Certification of Principal Financial Officer pursuant to Section 302 of
the Sarbanes-Oxley Act of 2002.
32.1 Certification of Principal Executive Officer pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.*
32.2 Certification of Principal Financial Officer pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.*
|
* Furnished herewith pursuant to Item 601(b) (32) of Regulation S-K.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
HOMEFED CORPORATION
Date: March 8, 2005 By /s/ Erin N. Ruhe
---------------------------------
Erin N. Ruhe
Vice President, Treasurer and Controller
|
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Date: March 8, 2005 By /s/ Joseph S. Steinberg
---------------------------------
Joseph S. Steinberg, Chairman
of the Board and Director
Date: March 8, 2005 By /s/ Paul J. Borden
---------------------------------
Paul J. Borden, President and Director
(Principal Executive Officer)
Date: March 8, 2005 By /s/ Erin N. Ruhe
-------------------------------
Erin N. Ruhe, Vice President, Treasurer
and Controller (Principal Financial and
Accounting Officer)
Date: March 8, 2005 By /s/ Patrick D. Bienvenue
---------------------------------
Patrick D. Bienvenue, Director
Date: March 8, 2005 By /s/ Timothy Considine
---------------------------------
Timothy Considine, Director
Date: March 8, 2005 By /s/ Ian M. Cumming
--------------------------------
Ian M. Cumming, Director
Date: March 8, 2005 By /s/ Michael A. Lobatz
------------------------
Michael A. Lobatz, Director
|
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders of HomeFed Corporation
We have completed an integrated audit of HomeFed Corporation's 2004 consolidated financial statements and of its internal control over financial reporting as of December 31, 2004 and audits of its 2003 and 2002 consolidated financial statements in accordance with the standards of the Public Company Accounting Oversight Board (United States). Our opinions, based on our audits, are presented below.
In our opinion, the consolidated financial statements listed in the accompanying index present fairly, in all material respects, the financial position of HomeFed Corporation and its subsidiaries at December 31, 2004 and 2003, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2004 in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit of financial statements includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
Also, in our opinion, management's assessment, included in Management's Report on Internal Control Over Financial Reporting appearing in Part II, Item 9A, that the Company maintained effective internal control over financial reporting as of December 31, 2004 based on criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO), is fairly stated, in all material respects, based on those criteria. Furthermore, in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2004, based on criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company's management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting. Our responsibility is to express opinions on management's assessment and on the effectiveness of the Company's internal control over financial reporting based on our audit. We conducted our audit of internal control over financial reporting in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. An audit of internal control over financial reporting includes obtaining an understanding of internal control over financial reporting, evaluating management's assessment, testing and evaluating the design and operating effectiveness of internal control, and performing such other procedures as we consider necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinions.
A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
PricewaterhouseCoopers LLP
Irvine, CA
March 1, 2005
HOMEFED CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
December 31, 2004 and 2003
(Dollars in thousands, except par value)
2004 2003
---- ----
ASSETS
Real estate $ 47,126 $ 37,612
Cash and cash equivalents 34,634 43,503
Restricted cash -- 4,609
Investments-available for sale (aggregate cost of $82,272 and $88,503) 82,249 88,519
Deposits and other assets 3,321 995
Deferred income taxes 44,157 41,772
--------- ---------
TOTAL $ 211,487 $ 217,010
========= =========
LIABILITIES
Note payable to Leucadia Financial Corporation $ -- $ 24,716
Other notes payable 16,620 13,580
Deferred revenue 39,079 53,491
Accounts payable and accrued liabilities 7,752 10,985
Non-refundable option payments 11,669 3,126
Liability for environmental remediation 11,392 10,785
Income taxes payable -- 503
Other liabilities 3,464 10,383
--------- ---------
Total liabilities 89,976 127,569
========= =========
COMMITMENTS AND CONTINGENCIES
MINORITY INTEREST 7,760 13,111
--------- ---------
STOCKHOLDERS' EQUITY
Common stock, $.01 par value; 25,000,000 shares authorized; 8,260,059 and
8,155,159 shares outstanding 83 82
Additional paid-in capital 381,192 380,545
Deferred compensation pursuant to stock incentive plans -- (4)
Accumulated other comprehensive income (loss) (14) 9
Accumulated deficit (267,510) (304,302)
--------- ---------
Total stockholders' equity 113,751 76,330
--------- ---------
TOTAL $ 211,487 $ 217,010
========= =========
|
The accompanying notes are an integral part of these consolidated financial statements.
HOMEFED CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
For the years ended December 31, 2004, 2003 and 2002
(In thousands, except per share amounts)
2004 2003 2002
---- ---- ----
REVENUES
Sales of real estate $ 77,982 $ 147,028 $ 9,259
Co-op marketing and advertising fees 3,689 1,257 1,942
Development management fee income from San Elijo Hills -- -- 1,610
Income from options on real estate properties -- -- 300
--------- --------- ---------
81,671 148,285 13,111
--------- --------- ---------
EXPENSES
Cost of sales 13,626 35,508 2,815
Provision for environmental remediation 1,320 270 11,160
Interest expense relating to Leucadia Financial Corporation 913 2,676 2,780
General and administrative expenses 10,511 12,001 5,543
Administrative services fees to Leucadia Financial Corporation 120 120 120
--------- --------- ---------
26,490 50,575 22,418
--------- --------- ---------
Income (loss) from operations 55,181 97,710 (9,307)
--------- --------- ---------
Other income, net 102 1,706 311
--------- --------- ---------
Income (loss) before income taxes and minority interest 55,283 99,416 (8,996)
Income tax provision (7,650) (14,179) (379)
--------- --------- ---------
Income (loss) before minority interest 47,633 85,237 (9,375)
Minority interest (10,841) (11,161) (1,711)
--------- --------- ---------
Net income (loss) $ 36,792 $ 74,076 $ (11,086)
========= ========= =========
Basic income (loss) per common share $ 4.46 $ 9.08 $ (1.80)
========= ========= =========
Diluted income (loss) per common share $ 4.45 $ 8.99 $ (1.80)
========= ========= =========
|
The accompanying notes are an integral part of these consolidated financial statements.
HOMEFED CORPORATION AND SUBSIDIARIES
Consolidated Statements of Changes in Stockholders' Equity (Deficit)
For the years ended December 31, 2004, 2003 and 2002
(Dollars in thousands, except par value)
Deferred
Common Compensation Accumulated Total
Stock Additional Pursuant to Other Stockholders'
$.01 Par Paid-in Stock Incentive Comprehensive Accumulated Equity
Value Capital Plans Income (Loss) Deficit (Deficit)
----- ------- ----- ------------- ------- ---------
Balance, January 1, 2002 $ 57 $ 355,888 $ (276) $ -- $ (367,292) $(11,623)
--------
Comprehensive loss:
Net loss (11,086) (11,086)
--------
Issuance of 2,474,226 shares of
common stock 25 23,975 24,000
Amortization of restricted stock grants 63 63
Amortization related to stock options 295 295
Change in value of performance-based
stock options 500 (500) --
Exercise of options to purchase common
shares 1 1
------ --------- ------- ------ ---------- --------
Balance, December 31, 2002 82 380,364 (418) -- (378,378) 1,650
--------
Comprehensive income:
Net change in unrealized gain (loss)
on investments, net of tax provision of $7 9 9
Net income 74,076 74,076
--------
Comprehensive income 74,085
--------
Amortization of restricted stock grants 11 11
Amortization related to stock options 583 583
Change in value of performance-based
stock options 180 (180) --
Exercise of options to purchase common
shares 1 1
------ --------- ------- ------ --------- --------
Balance, December 31, 2003 82 380,545 (4) 9 (304,302) 76,330
--------
Comprehensive income:
Net change in unrealized gain (loss)
on investments, net of tax benefit of $16 (23) (23)
Net income 36,792 36,792
--------
Comprehensive income 36,769
--------
Amortization of restricted stock grants 4 4
Exercise of options to purchase common
shares 1 647 648
------ ---------- ------- ------ --------- --------
Balance, December 31, 2004 $ 83 $ 381,192 $ -- $ (14) $(267,510) $113,751
====== ========== ======= ====== ========= ========
|
The accompanying notes are an integral part of these consolidated financial statements.
HOMEFED CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
For the years ended December 31, 2004, 2003 and 2002
(In thousands)
2004 2003 2002
---- ---- ----
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ 36,792 $ 74,076 $ (11,086)
Adjustments to reconcile net income (loss) to net cash provided by
operating activities:
Minority interest 10,841 11,161 1,711
Provision (benefit) for deferred income taxes (2,369) 2,963 363
Provision for environmental remediation 1,320 270 11,160
Net securities gains (5) -- --
Amortization of deferred compensation pursuant to stock incentive plans 4 594 358
Loss on prepayment of Leucadia Financial Corporation note 1,606 -- --
Amortization of the debt discount on note payable to Leucadia
Financial Corporation 276 1,088 1,120
Other amortization related to investments (939) (369) --
Changes in operating assets and liabilities:
Real estate (8,278) (542) (6,855)
Deposits and other assets (1,104) (242) 169
Note receivable -- 6,566 (6,566)
Other notes payable (683) (1,268) (185)
Deferred revenue (14,412) 20,870 19,792
Accounts payable and accrued liabilities (3,233) 4,662 183
Non-refundable option payments 8,543 1,308 1,818
Liability for environmental remediation (713) (301) (344)
Income taxes receivable/payable (1,861) (2,372) 286
Other liabilities (3,269) 575 4,662
------- --------- ---------
Net cash provided by operating activities 22,516 119,039 16,586
------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of investments (other than short-term) (184,146) (152,132) --
Proceeds from maturities of investments-available for sale 144,385 60,600 --
Proceeds from sales of investments 46,936 3,398 --
Net cash received in acquisition of CDS -- -- 18,979
Decrease (increase) in restricted cash 4,609 (4,336) --
------- --------- ---------
Net cash provided by (used for) investing activities 11,784 (92,470) 18,979
------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payment of Leucadia Financial Corporation note (26,462) -- --
Borrowings under credit agreement with Leucadia Financial Corporation -- -- 2,150
Payments related to credit agreement with Leucadia Financial Corporation -- -- (2,150)
Contribution from minority interest -- 43 --
Distributions to minority interest (16,192) (13,469) (2,524)
Principal payments to trust deed note holders (1,163) (3,242) (895)
Exercise of options to purchase common shares 648 1 1
------- --------- ---------
Net cash used for financing activities (43,169) (16,667) (3,418)
------- --------- ---------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (8,869) 9,902 32,147
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 43,503 33,601 1,454
------- --------- ---------
CASH AND CASH EQUIVALENTS, END OF PERIOD $34,634 $ 43,503 $ 33,601
======= ========= =========
|
(continued)
The accompanying notes are an integral part of these consolidated financial statements.
HOMEFED CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows, continued
For the years ended December 31, 2004, 2003 and 2002
(In thousands)
2004 2003 2002
---- ---- ----
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest $ 410 $ 1,588 $ 1,660
======= ========= =========
Cash paid (refunded) for income taxes $ 8,713 $ 10,976 $ (279)
======= ========= =========
NON-CASH INVESTING ACTIVITIES:
Common stock issued for acquisition of CDS $ -- $ -- $ 24,000
======= ========= =========
NON-CASH FINANCING ACTIVITIES:
Liabilities assumed from acquisition of real estate $ -- $ 4,332 $ --
Contribution of real estate from minority interest -- 244 --
------- --------- ---------
$ -- $ 4,576 $ --
======= ========= =========
|
The accompanying notes are an integral part of these consolidated financial statements.
HOMEFED CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation - The accompanying consolidated financial statements include the accounts of HomeFed Corporation (the "Company"), Otay Land Company, LLC and its wholly-owned subsidiaries ("Otay Land Company"), HomeFed Communities, Inc., HomeFed Resources Corporation, CDS Holding Corporation and its majority owned subsidiaries ("CDS") and Rampage Vineyard, LLC ("Rampage"). The Company is currently engaged, directly and through its subsidiaries, in the investment in and development of residential real estate properties in the state of California. All significant intercompany balances and transactions have been eliminated in consolidation.
The Company's business, real estate development, is highly competitive, and there are numerous residential real estate developers and development projects operating in the same geographic area in which the Company operates. In addition, the residential real estate development industry is subject to increasing environmental, building, zoning and real estate regulations that are imposed by various federal, state and local authorities. Timing of the initiation and completion of development projects depends upon receipt of necessary authorizations and approvals. Furthermore, changes in prevailing local circumstances or applicable laws may require additional approvals, or modifications of approvals previously obtained. Delays could adversely affect the Company's ability to complete its projects, significantly increase the costs of doing so or drive potential customers to purchase competitors' products. Environmental laws may cause the Company to incur substantial compliance, mitigation and other costs, may restrict or prohibit development in certain areas and may delay completion of the Company's development projects. Delays arising from compliance with environmental laws and regulations could adversely affect the Company's ability to complete its projects, significantly increase the costs of doing so or cause potential customers to purchase competitors' products. The Company's business may also be adversely affected by inflation and is interest-rate sensitive.
Certain amounts for prior periods have been reclassified to be consistent with the 2004 presentation.
Critical Accounting Estimates - The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires the Company to make estimates and assumptions that affect the reported amounts in the financial statements and disclosures of contingent assets and liabilities. On an on-going basis, the Company evaluates all of these estimates and assumptions. Actual results could differ from those estimates.
Profit Recognition on Sales of Real Estate - Profit from the sale of real estate is recognized in full at the time title is conveyed to the buyer if the profit is determinable, collectibility of the sales price is reasonably assured (demonstrated by meeting minimum down payment and continuing investment requirements), and the earnings process is virtually complete, such that the seller is not obligated to perform significant activities after the sale and has transferred to the buyer the usual risks and rewards of ownership. If it is determined that all the conditions for full profit recognition have not been met, revenue and profit is deferred using the deposit, installment, cost recovery or percentage of completion method of accounting, as appropriate depending upon the specific terms of the transaction.
When the Company has an obligation to complete improvements on property subsequent to the date of sale, it utilizes the percentage of completion method of accounting to record revenues and cost of sales. Under percentage of completion accounting, the Company recognizes revenues and cost of sales based upon the ratio of development costs completed as of the date of sale to an estimate of total development costs which will ultimately be incurred, including an estimate for common areas. Unearned revenues resulting from applying the percentage of completion accounting are reported as deferred revenue in the liabilities section of the consolidated balance sheets.
Income Taxes - The Company provides for income taxes using the liability method. The Company records a valuation allowance to reduce its deferred tax asset to an amount that the Company expects is more likely than not to be realized. If the Company's estimate of the realizability of its deferred tax asset changes in the future, an adjustment to the valuation allowance would be recorded which would either increase or decrease income tax expense in such period. The valuation allowance is determined after considering all relevant facts and circumstances, but is significantly influenced by the Company's projection of taxable income in the future. Since any projection of future profitability is inherently unreliable, changes in the valuation allowance should be expected.
Provision for Environmental Remediation - The Company records environmental liabilities when it is probable that a liability has been incurred and the amount or range of the liability is reasonably estimable. During 2002, the Company recorded a charge of $11,200,000 representing its estimate of the cost (including legal fees) to implement the most likely remediation alternative with respect to approximately 30 acres of undeveloped land owned by a subsidiary of Otay Land Company. The estimated liability was neither discounted nor reduced for potential claims for recovery from previous owners and users of the land who may be liable, and may increase or decrease based upon the actual extent and nature of the remediation required, the type of remedial process approved, the expenses of the regulatory process, inflation and other items. During 2004, the Company increased its estimate of remediation costs by approximately $1,300,000, primarily due to increases in site investigation and remediation costs, and during 2003 by approximately $300,000, primarily for consulting costs. The Company may begin remediation during 2005, although it has no obligation to do so. The Company does not currently know when the funds for remediation activities will be spent.
Provision for Losses on Real Estate - The Company's real estate is carried at cost. Whenever events or changes in circumstances suggest that the carrying amount may not be recoverable, management assesses the recoverability of its real estate by comparing the carrying amount with its fair value. The process involved in the determination of fair value requires estimates as to future events and market conditions. This estimation process may assume that the Company has the ability to complete development and dispose of its real estate properties in the ordinary course of business based on management's present plans and intentions. If management determines that the carrying value of a specific real estate investment is impaired, a write-down is recorded as a charge to current period operations. The evaluation process is based on estimates and assumptions and the ultimate outcome may be different. The Company has not recorded any such provisions during the three year period ended December 31, 2004.
Real Estate - Real estate, which consists of land held for development and sale, includes all expenditures incurred in connection with the acquisition, development and construction of the property, including interest and property taxes. Land costs are allocated to lots based on relative fair values prior to development and are charged to cost of sales at the time that revenue is recognized.
Cash and Cash Equivalents - Cash equivalents are money market accounts and short-term, highly liquid investments that have maturities of less than three months at the time of acquisition.
Investments - Securities with maturities equal to or greater than three months at the time of acquisition are classified as investments available for sale, and are carried at fair value with unrealized gains and losses reflected as a separate component of shareholders' equity, net of taxes. The cost of securities sold is based on specific identification.
Recognition of Fee Income - The Company receives co-op marketing and advertising fees from the San Elijo Hills project that are paid at the time builders sell homes, are generally based upon a fixed percentage of the homes' selling price, and are recorded as revenue when the home is sold. Prior to its acquisition of CDS, the Company recognized fee income for field overhead and management services from the San Elijo Hills project in its consolidated statements of operations when contractually earned. Subsequent to the acquisition of CDS, such amounts are eliminated in consolidation.
Revenue and Profit Sharing Arrangements - Certain of the Company's lot purchase agreements with homebuilders include provisions that entitle the Company to a share of the revenues or profits realized by the homebuilders upon their sale of the homes, after certain thresholds are achieved. The actual amount which could be received by the Company is generally based on a formula and other specified criteria contained in the lot purchase agreements, and is generally not payable and cannot be determined with reasonable certainty until the builder has completed the sale of a substantial portion of the homes covered by the lot purchase agreement. The Company's policy is to accrue revenue earned pursuant to these agreements when amounts are payable pursuant to the lot purchase agreements, which is classified as sales of real estate.
Option payments - Option payments received from prospective buyers are recognized as liabilities until the title of the real estate is transferred, or in the case of refundable deposits, the prospective buyer decides not to purchase the real estate and the deposit is returned.
Capitalization of Interest and Real Estate Taxes - Interest and real estate taxes attributable to land and property construction are capitalized and added to the cost of those properties while the properties are being actively developed.
Stock-Based Compensation - Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation", ("SFAS 123"), establishes a fair value method for accounting for stock-based compensation plans, either through recognition in the statements of operations or disclosure. As permitted, the Company applies APB Opinion No. 25 and related Interpretations in accounting for its plans. Accordingly, no compensation cost has been recognized in the statements of operations related to employees and directors under its stock compensation plans. Had compensation cost for the Company's fixed stock options been recorded in the statements of operations consistent with the provisions of SFAS 123, the Company's net income (loss) would not have been materially different from that reported in 2004, 2003 and 2002.
Recently Issued Accounting Standards - In December 2004, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards No. 123R, "Share-Based Payment" ("SFAS 123R"), which replaces SFAS 123 and supersedes APB Opinion No. 25, "Accounting for Stock Issued to Employees". SFAS 123R requires that the cost of all share-based payments to employees, including grants of employee stock options, be recognized in the financial statements based on their fair values. That cost will be recognized as an expense over the vesting period of the award. The pro forma disclosures previously permitted under SFAS 123 no longer will be an alternative to financial statement recognition. In addition, the Company will be required to determine fair value in accordance with SFAS 123R. SFAS 123R is effective for reporting periods beginning with the first interim or annual period after June 15, 2005, with early adoption encouraged, and requires the application of a transition methodology for stock options that have not vested as of the date of adoption. The Company is currently evaluating the impact of SFAS 123R on its consolidated financial statements.
In December 2004, the FASB issued Statement of Financial Accounting Standards No. 153, "Exchanges of Nonmonetary Assets--An Amendment of APB Opinion No. 29" ("SFAS 153"), which is effective for fiscal periods beginning after June 15, 2005. SFAS 153 eliminates the exception from fair value measurement for nonmonetary exchanges of similar productive assets in paragraph 21(b) of APB Opinion No. 29, "Accounting for Nonmonetary Transactions," and replaces it with an exception for exchanges that do not have commercial substance. SFAS 153 specifies that a nonmonetary exchange has commercial substance if the future cash flows of the entity are expected to change significantly as a result of the exchange. The adoption of SFAS 153 will not have any material effect on the consolidated financial statements; however, SFAS 153 could impact the accounting for future transactions, if any, within its scope.
2. ACQUISITIONS
In October 2002, the Company purchased from Leucadia National Corporation (together with its subsidiaries, "Leucadia") all of the issued and outstanding shares of capital stock of CDS which, through its majority-owned indirect subsidiary, San Elijo Hills Development Company, LLC ("San Elijo"), is the owner of the San Elijo Hills project, a master-planned community located in the City of San Marcos, in San Diego County, California. Since August 1998, the Company has been the development manager for the San Elijo Hills project, for which it was entitled to participate in the net cash flow of the project through the payment of a success fee, and receive fees for the field overhead, management and marketing services it provides, based on the revenues of the project. No success fee had been paid prior to the Company's acquisition of CDS. The purchase price of $25,000,000 consisted of $1,000,000 in cash and 2,474,226 shares of the Company's common stock, which represented approximately 30% of the Company's outstanding common shares. Prior to the acquisition, Leucadia had also committed to continue to provide to San Elijo project improvement bonds which are required prior to the commencement of any project development (see Note 12, below). The results of CDS have been included in the Company's consolidated results of operations from the date of acquisition.
In November 2003, the Company purchased Rampage, a 2,159 acre grape vineyard located in southern Madera County, California, for $6,000,000, excluding expenses, of which $1,700,000 was paid in cash and the balance was financed by the seller. In addition, the Company furnished to the seller a letter of credit (which was fully collateralized by cash) in the amount of $4,300,000, which secured the Company's obligation to the seller. The amount due to the seller was reflected in other liabilities in the Company's December 31, 2003 consolidated balance sheet. At the date of acquisition, the Rampage property was encumbered by a mortgage lien of $3,800,000 that was originally granted by the seller and which the Company was not obligated to satisfy. Although the amount owed to the seller did not bear interest, the Company was obligated to make interest payments due under the mortgage during 2004, and any principal payments made by the Company to the mortgagee would have reduced the balance owed by the Company to the seller. If the seller had provided the mortgagee with replacement collateral and obtained a release of the mortgage lien before the end of 2004, the Company would have been obligated to pay the balance due to the seller. However, because the seller did not obtain a release of the mortgage lien, the Company is no longer obligated to pay any further amounts to the seller, but is now obligated to make all debt service payments to the mortgagee. The letter of credit that had collateralized the Company's obligation to the seller expired in December 2004 and the cash collateral was released. The excess of the liability due to the seller over the remaining face amount of the mortgage, approximately $300,000, was applied to reduce the purchase price of the land.
3. INVESTMENTS
At December 31, 2004 and 2003, the Company's investments consisted of fixed income securities issued by the U.S. government and its agencies, which were classified as available for sale and recorded at an aggregate fair value of $82,249,000 and $88,519,000, respectively. At December 31, 2004 and 2003, these investments had an aggregate amortized cost of $82,272,000 and $88,503,000, respectively, and the Company had recognized gross unrealized gains (losses) of $(23,000) and $16,000, respectively, for these securities. All of the Company's investments mature in one year or less.
4. REAL ESTATE
A summary of real estate carrying values by project is as follows (in thousands):
December 31,
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2004 2003
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Otay Ranch $ 21,962 $ 21,555
San Elijo Hills 18,811 9,664
Rampage 6,353 6,393
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Total $ 47,126 $ 37,612
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The San Elijo Hills and Otay Ranch projects are considered to be land under development while the Rampage project is not currently being developed. Interest totaling $1,236,000 and $1,386,000, related to the San Elijo Hills project, was incurred and capitalized in real estate during 2004 and 2003, respectively. All of the San Elijo Hills project land is pledged as collateral for the notes payable to trust deed holders described in Note 5, below.
5. INDEBTEDNESS
In March 2004, the Company prepaid in full the $26,462,000 borrowing from Leucadia Financial Corporation ("LFC"), a subsidiary of Leucadia, using its available cash. As a result, the Company expensed the remaining unamortized discount on the note and related deferred costs in the amount of $1,606,000, which is included in the caption "Other income, net" in the consolidated statement of operations.
In March 2001, the Company entered into an unsecured $3,000,000 line of credit agreement with LFC. Loans outstanding under this line of credit bear interest at 10% per annum. Effective March 1, 2002, this agreement was amended to extend the maturity to February 28, 2007, although LFC had the right to terminate the line of credit on an annual basis. On October 9, 2002, the line of credit was increased from $3,000,000 to $10,000,000 and LFC's ability to terminate the line of credit prior to maturity was removed, unless the Company is in default. At December 31, 2004 and 2003, no amounts were outstanding under this facility. There was no interest expense for the line of credit during the years ended December 31, 2004 and 2003. Interest expense includes approximately $72,000 for the line of credit during the year ended December 31, 2002.
Other notes payable includes a mortgage payable in the amount of $3,650,000 that is collateralized by the Rampage property. The mortgage bears interest at 7 1/4%, and requires an annual payment of interest and principal of $424,000 that fully amortizes the loan by its maturity in January 2018. If the mortgage is prepaid prior to its maturity, the Company is obligated to pay a pre-payment penalty that is calculated based on a formula that considers the principal amount outstanding and the lender's cost of capital. The current pre-payment penalty would amount to approximately $250,000.
In addition, other notes payable includes non-recourse promissory notes to trust deed holders that mature on December 31, 2010, are non-interest bearing and are collateralized by the San Elijo Hills project land. When a portion of the San Elijo Hills project is sold, a specified amount is required to be paid to the note holder in order to obtain a release of their security interest in the land. Such amount is specified in the note agreements and takes into consideration prior note payments. In addition, depending upon the amount of payments made to release their security interest for prior sales, the notes may require minimum annual payments. The minimum annual payments are currently $269,000 for annual periods subsequent to 2004. The sum of all payments made under these notes, whether denominated as interest, principal or otherwise, cannot exceed approximately $42,100,000. As of December 31, 2004, $27,800,000 had been paid.
The notes payable to trust deed holders were recorded at fair value at the date of acquisition of CDS, based on the estimated future payments discounted at 6.5%. The activity for the years ended December 31, 2004 and 2003 is as follows (in thousands):
2004 2003
---- ----
Beginning balance $ 13,580 $ 16,704
Principal payments (1,163) (3,242)
Interest added to principal 553 118
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Ending balance $ 12,970 $ 13,580
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At the end of each quarterly reporting period, the carrying amounts of the notes are compared to the most recent estimate of future payments. The difference is amortized prospectively using the effective interest rate method. The effective interest rate for the years ended December 31, 2004 and 2003 was 9.9% and 9.3%, respectively. Effective January 1, 2005, the effective interest rate was 6.8%. Based on the Company's cash flow forecast, the expected payments to the trust deed holders that will be allocated to principal are as follows (in thousands): 2005 - $3,668; 2006 - $6,868 and 2007 - $2,434.
6. MINORITY INTEREST
Through its ownership of CDS, the Company owns 80% of the common stock of CDS Devco, Inc. ("Devco"), which in turns owns 85% of the common stock of San Elijo Ranch, Inc., ("SERI"). Pursuant to a stockholders' agreement with the holder of the minority interest in Devco, the Company is entitled to a 15% return on all funds advanced to Devco, compounded annually, plus the return of its capital, prior to the payment of any amounts to the minority shareholder. Once those amounts are paid, the minority shareholder is entitled to 20% of future cash flows, if any, distributed to shareholders. Pursuant to a stockholders' agreement with the holders of the minority interests in SERI, Devco loans funds to SERI and charges a 12% annual rate. Once this loan is fully repaid, the minority shareholders of SERI are entitled to 15% of future cash flows, if any, distributed to shareholders. As of December 31, 2004, approximately $7,700,000 has been accrued for the Devco and SERI minority interests. Amounts accrued for minority interests have been reduced for income taxes calculated pursuant to tax sharing agreements.
During 2004, dividends of $71,000,000 were paid by the Company's subsidiary that owns the San Elijo Hills project, of which $54,800,000 was ultimately received by the Company and the balance was paid to the minority interests. As a result, all amounts advanced to the project were repaid and the preferred return was fully satisfied. Amounts paid to the minority interests were applied to reduce the minority interest balance on the Company's consolidated balance sheet.
7. STOCK INCENTIVE PLANS
Under the Company's 1999 Stock Incentive Plan (the "Plan"), the Company may grant options, stock appreciation rights and restricted stock to non-employee directors, certain non-employees and employees up to a maximum grant of 30,000 shares to any individual in a given taxable year. Pursuant to the Plan, each director of the Company is automatically granted options to purchase 1,000 shares on the date on which the annual meeting of stockholders is held. In August 2004, following shareholder approval, the Plan was amended to, among other things, increase the number of shares of common stock available for issuance by 300,000 shares. The Plan provides for the issuance of options and rights at not less than 100% of the fair market value of the underlying stock at the date of grant. Options generally become exercisable in five equal instalments starting one year from the date of grant. No stock appreciation rights have been granted. During 2000, 25,000 shares of restricted common stock were issued to eligible participants, subject to certain forfeiture provisions. In connection with this issuance of restricted stock, the Company recorded deferred compensation of $188,000 representing the value of stock on the date of issuance based upon market price. This amount was amortized over the three year vesting period of the restricted stock. In addition, during 2000, options to purchase an aggregate of 2,500 shares of Common Stock were granted to non-employees at an exercise price of $7.50 per share (market price). In connection with this issuance, the Company recorded deferred compensation of $18,000 based upon the estimated fair value of these options at the time of grant, using the modified Black-Scholes model. This amount is being amortized over the five year vesting period of the options.
A summary of activity with respect to the Company's 1999 Stock Incentive Plan for employees and directors for 2004, 2003 and 2002 is as follows:
Common Weighted Available
Shares Average Options for Future
Subject to Exercise Exercisable Option
Option Price at Year End Grants
------ ----- ----------- ------
Balance at January 1, 2002 16,675 $ 7.50 3,225 55,800
Granted 600 $ 9.50 ======= =======
Exercised (50) $ 8.15
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Balance at December 31, 2002 17,225 $ 7.60 6,575 55,200
Granted 600 $ 27.40 ======= =======
Exercised (75) $ 8.60
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Balance at December 31, 2003 17,750 $ 8.28 10,050 199,400
Granted 6,000 $ 44.50 ======= =======
Exercised (4,900) $ 7.62
Cancelled (500) $ 7.50
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Balance at December 31, 2004 18,350 $20.32 8,850 493,900
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The weighted-average fair value of the options granted was $15.10 per share for 2004, $17.21 per share for 2003 and $6.50 per share for 2002 as estimated on the date of grant using the Black-Scholes option-pricing model with the following assumptions: (1) expected volatility of 37.7% for 2004, 86.1% for 2003 and 95.5% for 2002; (2) risk-free interest rate of 3.2% for 2004, 2.3% for 2003 and 3.5% for 2002; (3) expected lives of 4.0 years for all years; and (4) dividend yield of 0% for all years.
The following table summarizes information about fixed stock options outstanding at December 31, 2004.
Options Outstanding Options Exercisable
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Common Weighted Weighted Common Weighted
Shares Average Average Shares Average
Range of Subject to Remaining Exercise Subject Exercise
Exercise Prices Option Contractual Life Price to Option Price
--------------- ------ ---------------- ----- --------- -----
$7.00 - $9.50 11,775 1.2 years $ 7.65 8,725 $ 7.61
$27.40 575 3.5 years $ 27.40 125 $ 27.40
$44.50 6,000 4.6 years $ 44.50 -- $ --
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In July 2004, the Board of Directors approved the repurchase of up to 500,000 shares of the Company's common stock, representing approximately 6% of the Company's outstanding stock. Repurchased shares would be available, among other things, for use in connection with the Company's stock option plans. The shares may be purchased from time to time, subject to prevailing market conditions, in the open market, in privately negotiated transactions or otherwise. Any such purchases may be commenced or suspended at any time without prior notice. No shares have been purchased to date.
In 2000, under the Company's 2000 Stock Incentive Plan (the "2000 Plan"), the Company granted to two key employees options to purchase an aggregate of 100,000 shares of common stock at an exercise price of $6.10 per share, the then current market price per share. No additional options are available to be granted under the 2000 Plan. These options were subject to forfeiture provisions if performance criteria were not met by April 27, 2003. Upon the closing of a sale at Otay Land Company in April 2003, the options were no longer subject to forfeiture. As a result, the Company expensed the remaining deferred compensation related to the performance options of approximately $600,000 in 2003. These options were exercised during 2004.
8. SALES OF REAL ESTATE
Revenues from sales of real estate for each of the three years in the period ended December 31, 2004 is comprised of the following (in thousands):
2004 2003 2002
---- ---- ----
Developed lots at San Elijo Hills project $ 72,175 $ 121,062 $ 4,974
Undeveloped land at the Otay Ranch project 5,807 22,500 4,285
Other -- 3,466 --
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Total $ 77,982 $ 147,028 $ 9,259
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At the time the Company closes on sales of real estate at the San Elijo Hills project, a portion of the revenue is initially deferred since the Company is required to make significant improvements to the property. For each of the three years in the period ended December 31, 2004, the activity in the deferred revenue account is as follows (in thousands):
2004 2003 2002
---- ---- ----
Deferred revenue balance at January 1, $ 53,491 $ 32,621 $ --
Amount recorded upon acquisition of CDS -- -- 12,830
Revenue deferred on the date of sale 24,426 56,348 21,179
Deferred revenue recognized in operations (38,838) (35,478) (1,388)
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Deferred revenue balance at December 31, $ 39,079 $ 53,491 $ 32,621
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As of December 31, 2004, the Company estimates that it will spend approximately $8,900,000 to complete the required improvements, including costs related to common areas. The Company estimates these improvements will be substantially complete by the end of 2006.
9. OTHER RESULTS OF OPERATIONS
Other income, net for each of the three years in the period ended December 31, 2004, consists of the following (in thousands):
2004 2003 2002
---- ---- ----
Interest income $ 1,451 $ 883 $ 96
Proceeds from settlements -- 346 --
Easement fees -- 172 --
Reimbursement for fees and improvements for
previously sold property -- 198 --
Gain (loss) on sale of fixed assets (4) -- 113
Rental income from Leucadia 68 72 21
Loss on prepayment of loan (1,606) -- --
Cable trench fees 180 74 23
Other 13 (39) 58
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Total $ 102 $ 1,706 $ 311
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Proceeds from sales of investments classified as available for sale were $46,900,000 and $3,400,000 during 2004 and 2003, respectively. Realized gross gains were not material during 2004 and 2003. The Company did not have any investments classified as available for sale during 2002.
Advertising costs were $1,172,000, $966,000 and $159,000 for 2004, 2003 and 2002, respectively.
10. INCOME TAXES
The (provision) benefit for income taxes for each of the three years in the period ended December 31, 2004 was as follows (in thousands):
2004 2003 2002
---- ---- ----
State income taxes - current $ (3,820) $ (8,977) $ (471)
State income taxes - deferred (1,094) -- --
Federal income taxes - current (6,199) (2,239) 455
Federal income taxes - deferred 3,463 (2,963) (363)
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$ (7,650) $ (14,179) $ (379)
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Current income taxes for all years principally relate to federal alternative minimum tax and state income tax.
The table below reconciles the expected statutory federal income tax to the actual income tax (provision) (in thousands):
2004 2003 2002
---- ---- ----
Expected federal income tax $ (19,349) $ (34,796) $ 3,149
State income taxes, net of federal income
tax benefit (3,194) (5,835) (306)
Federal alternative minimum tax refund -- -- 455
Otay Land Company taxable income
allocated to Leucadia -- 429 1,024
(Increase) decrease in valuation allowance 15,000 26,065 (4,701)
Other (107) (42) --
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Actual income tax (provision) $ (7,650) $ (14,179) $ (379)
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F-15
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As a result of an increase in the Company's estimates of future taxable income that exceeded its earlier estimates, the Company reduced its income tax valuation allowance to recognize additional benefits from its NOLs and minimum tax credit carryovers and recorded a credit to its income tax provision of $15,000,000 and $26,065,000 for the years ended December 31, 2004 and 2003, respectively. There was no other material activity in the deferred tax valuation allowance during the years ended December 31, 2004 and 2003.
The Company and its wholly-owned subsidiaries have net operating loss carryforwards ("NOLs") available for federal income tax purposes of $143,000,000 as of December 31, 2004. The NOLs were generated during 1991 to 1999 and expire in 2006 to 2019 as follows (in thousands):
Year of Expiration Loss Carryforwards
------------------ ------------------
2006 $ 79,017
2007 17,406
2008 2,347
2009 2,107
Thereafter 42,131
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$ 143,008
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These NOLs are not available to reduce federal alternative minimum taxable income, which is currently taxed at the rate of 20%. As a result, the Company will pay federal income tax at a rate of 20% during future periods (resulting in additional minimum tax credit carryovers), until such time as all of its NOLs are used or expire and all minimum tax credit carryovers are used. Alternative minimum tax credit carryovers have no expiration date.
At December 31, 2004 and 2003 the net deferred tax asset consisted of the following (in thousands):
2004 2003
---- ----
NOL carryforwards $ 50,053 $ 59,013
Land basis 7,247 9,153
Minimum tax credit carryovers 7,350 2,239
Other, net 6,788 13,452
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71,438 83,857
Valuation allowance (27,281) (42,085)
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$ 44,157 $ 41,772
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The valuation allowance has been provided on the deferred tax asset due to the uncertainty of future taxable income necessary for realization of the deferred tax asset. The calculation of the valuation allowance recognizes that the Company's NOLs will not be available to offset alternative minimum taxable income, which is currently taxed at a federal tax rate of 20%. When the Company pays alternative minimum tax, it generates an alternative minimum tax credit carryover, which can be used to reduce its future federal income tax rate once it has used all of its NOLs. Assuming the Company realizes its projected taxable income in the future and fully utilizes its NOLs, it will have approximately $36,000,000 of minimum tax credit carryovers to reduce future federal income taxes payable. However, the minimum tax credit carryovers are only able to reduce the Company's federal income tax rate to 20% in any given year, which means the Company would have to generate an additional $175,000,000 of taxable income above its current estimate to fully use them. As a result, the Company has reserved for a substantial portion of this benefit in its valuation allowance.
11. EARNINGS PER SHARE
Income (loss) per share of common stock was calculated by dividing net income (loss) by the sum of the weighted average number of common shares outstanding and, for diluted earnings (loss) per share, the incremental weighted average number of shares issuable upon exercise of outstanding options for the periods they were outstanding. The treasury stock method is used for these calculations. The number of shares used to calculate basic earnings (loss) per share amounts was 8,248,203, 8,155,111 and 6,168,891 for 2004, 2003 and 2002, respectively. The number of shares used to calculate diluted earnings (loss) per share was 8,271,670, 8,238,164 and 6,168,891 for 2004, 2003 and 2002, respectively. Options to purchase 42,135 weighted average shares for 2002 were not included in the computation of diluted loss per share as those options were antidilutive.
12. COMMITMENTS AND CONTINGENCIES
Prior to its acquisition by the Company, a subsidiary of CDS entered into a non-cancelable operating lease for its office space, a portion of which was sublet to the Company and a portion of which was sublet to Leucadia. Effective October 2002, as a result of the acquisition of CDS, the Company has recorded sublease income from Leucadia for a monthly amount equal to Leucadia's share of the Company's cost for such space and furniture, and reflected such amounts in other income. Such amount aggregated $68,000 in 2004, $72,000 in 2003 and $21,000 for the period from October 21, 2002 to December 31, 2002. Rental expense (net of sublease income) was $174,000, $209,000 and $227,000 for 2004, 2003 and 2002, respectively. During 2004, the lease term was extended until February 2010 for a slightly lower minimum rent; however, the agreement includes rent escalation charges over its term.
On January 6, 2005, an owner of adjacent property purported to exercise options to purchase 600 acres of the Rampage property for approximately $5,000,000. The party also filed a complaint against the Company and the former owners of the Rampage property. The complaint alleges the property has been devalued by approximately $3,000,000 due to poor farming practices since approximately 2001. The Company is presently evaluating the validity of the option, the notice of exercise, the claimed option price and the allegations of the complaint.
The Company is required to obtain infrastructure improvement bonds primarily for the benefit of the City of San Marcos (The "City") prior to the beginning of lot construction work and warranty bonds upon completion of such improvements in the San Elijo Hills project. These bonds provide funds primarily to the City in the event the Company is unable or unwilling to complete certain infrastructure improvements in the San Elijo Hills project. Leucadia has obtained these bonds on behalf of CDS and its subsidiaries both before and after the acquisition of CDS by the Company. CDS is responsible for paying all third party fees related to obtaining the bonds. Should the City or others draw on the bonds for any reason, one of CDS's subsidiaries would be obligated to reimburse Leucadia for the amount drawn. As of December 31, 2004, the amount of outstanding bonds was approximately $28,200,000, none of which has been drawn upon.
Pursuant to an agreement with the City of San Marcos, the Company is contractually obligated to contribute up to $11,000,000 towards the cost of improving two off site roads to the San Elijo Hills project. The City of San Marcos is obligated to fund the balance of the cost of the roads. The Company expects it will substantially complete its road construction obligation by the end of 2005.
Since 1999, the San Elijo Hills project has carried $50,000,000 of general liability and professional liability insurance under a policy issued by the Kemper Insurance Companies ("Kemper"). The policy covered a thirteen year term from the initial date of coverage, and the entire premium for the life of the policy was paid in 1999. This policy is specific to the San Elijo Hills project; the Company has general and professional liability insurance for other matters with different insurance companies. Kemper has ceased underwriting operations and has submitted a voluntary run-off plan to its insurance regulators. Although Kemper is not formally in liquidation or under the supervision of insurance regulators, it is uncertain whether they will have sufficient assets at such time, if ever, the Company makes a claim under the policy or, if they are insolvent, whether state insurance guaranty funds would be available to pay the claim. In May 2004, the Company purchased an excess policy with another insurance carrier that provides up to $10,000,000 of coverage for general liability claims, but not professional liability claims, relating to homes sold through May 31, 2004. The Company continues to investigate whether insurance coverage for future home sales at the San Elijo Hills project is available at acceptable prices; however, the Company has not yet found insurance coverage at an acceptable price.
The Company is subject to various litigation which arise in the course of its business. Based on discussions with counsel, management is of the opinion that such litigation is not likely to have any material adverse effect on the consolidated financial position of the Company, its consolidated results of operations or liquidity.
13. OTHER RELATED PARTY TRANSACTIONS
The Company has entered into the following related party transactions with Leucadia and LFC not otherwise described in these Notes to Consolidated Financial Statements.
(a) Development Management Agreement. In August 1998, the Company entered into a development management agreement with an indirect subsidiary of Leucadia that owned the San Elijo Hills project. The development management agreement provided that the Company would act as the development manager with responsibility for the overall management of the project, including arranging financing for the project, coordinating marketing and sales activity, and acting as the construction manager. The development management agreement also provided that the Company would participate in the net profits of the project through the payment of a success fee and fee income for field overhead, management and marketing services based on the revenues derived from the project. As a result of the acquisition of CDS in October 2002, the Company acquired this indirect subsidiary of Leucadia. Subsequently, the development management agreement was amended to eliminate the success fee provisions. While development management fees have continued to be a source of liquidity for the parent company since the acquisition of CDS, they are no longer reflected in the consolidated statements of operations since they are intercompany payments from a subsidiary and are eliminated in consolidation.
(b) Otay Land Company, LLC. In October 1998, the Company and Leucadia formed Otay Land Company to purchase approximately 4,850 acres of land, which is part of a 22,900 acre project located south of San Diego, California, known as Otay Ranch. Otay Land Company acquired this land for $19,500,000. When Otay Land Company was formed, Leucadia contributed $10,000,000 as a preferred capital interest, and the Company contributed all other funds as non-preferred capital. The Company is the managing member of Otay Land Company. In 2003, Otay Land Company paid approximately $12,900,000 due to Leucadia to fully redeem the preferred capital interest and preferred return. All future proceeds from this project will be distributable solely to the Company.
(c) Administrative Services Agreement. Pursuant to administrative services agreements, Leucadia provides administrative and accounting services to the Company, including providing the services of the Company's Secretary. Administrative fees paid to Leucadia were $120,000 in 2004, 2003 and 2002. In December 2004, the administrative services agreement was amended to provide for an annual fee of $180,000, and the term was extended to December 31, 2005, and thereafter for successive annual periods unless terminated in accordance with its terms. Leucadia has the right to terminate the agreement by giving the Company not less than one year's prior notice, in which event the then monthly fee will remain in effect until the end of the notice period. The Company has the right to terminate the agreement, without restriction or penalty, upon 30 days prior written notice to Leucadia.
14. FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's material financial instruments include cash and cash equivalents, certificate of deposits, investments available for sale, and notes payable. In all cases, the carrying amounts of such financial instruments approximate their fair values. In cases where quoted market prices are not available, fair values are based on estimates using present value techniques.
15. SELECTED QUARTERLY FINANCIAL DATA (unaudited)
First Second Third Fourth
Quarter Quarter Quarter Quarter
------- ------- ------- -------
(In thousands, except per share amounts)
2004:
----
Sales of real estate $ 43,406 $ 12,396 $ 16,366 $ 5,814
========== ========== ========== ========
Co-op marketing and advertising fees $ 186 $ 964 $ 1,290 $ 1,249
========== ========== ========== ========
Cost of sales $ 9,654 $ 502 $ 2,886 $ 584
========== ========== ========== ========
Income from operations (a) $ 30,725 $ 10,251 $ 11,683 $ 2,522
========== ========== ========== ========
Net income (a) (b) $ 13,801 $ 4,778 $ 2,399 $ 15,814
========== ========== ========== ========
Basic income per share (a) (b) $ 1.68 $ 0.58 $ 0.29 $ 1.91
========== ========== ========== ========
Diluted income per share (a) (b) $ 1.67 $ 0.58 $ 0.29 $ 1.91
========== ========== ========== ========
2003:
----
Sales of real estate $ 7,016 $ 78,444 $ 29,667 $ 31,901
========== ========== ========== ========
Co-op marketing and advertising fees $ 380 $ 203 $ 249 $ 425
========== ========== ========== ========
Cost of sales $ 2,340 $ 14,792 $ 8,002 $ 10,374
========== ========== ========== ========
Income from operations $ 2,565 $ 60,524 $ 18,184 $ 16,437
========== ========== ========== ========
Net income (c) $ 1,245 $ 33,743 $ 8,325 $ 30,763
========== ========== ========== ========
Basic income per share (c) $ 0.15 $ 4.14 $ 1.02 $ 3.77
========== ========== ========== ========
Diluted income per share (c) $ 0.15 $ 4.10 $ 1.01 $ 3.73
========== ========== ========== ========
|
(a) During the fourth quarter of 2004, the Company recorded a provision of $1,320,000 relating to environmental remediation.
(b) The fourth quarter of 2004 reflects a reduction to the income tax provision of $15,000,000, resulting from a decrease to the valuation allowance for deferred tax assets, in order to recognize additional tax benefits for the expected use of NOLs and minimum tax credit carryovers.
(c) The fourth quarter of 2003 reflects a reduction to the income tax provision of $26,065,000, resulting from a decrease to the valuation allowance for deferred tax assets, in order to recognize additional tax benefits for the expected use of NOLs.
Exhibit 10.24
AMENDMENT
to the
ADMINISTRATIVE SERVICES AGREEMENT
THIS AMENDMENT NO. 7 dated as of December 31, 2004 to the ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") dated as of March 1, 2000 (such agreement as amended is referred to herein as the "Agreement") between Leucadia Financial Corporation, a Utah corporation ("Leucadia"), HomeFed Corporation, a Delaware corporation ("HomeFed"), HomeFed Resources Corporation, a California corporation ("HomeFed Resources") and HomeFed Communities, Inc., a California corporation ("HomeFed Communities").
The following new paragraph shall replace in its entirety paragraph 3 of the Agreement:
"3. Compensation. As compensation for the services provided under this Agreement, Leucadia shall be paid at an annual rate of $180,000, payable monthly in installments of $15,000 on the first day of each month, plus any additional amounts that may be agreed upon by HomeFed and Leucadia."
The following new paragraph shall replace in its entirety paragraph 4 of the Agreement:
"4. Term and Termination. The term of this Agreement shall continue until December 31, 2005 and thereafter for successive annual periods ending on December 31 of any year; provided, however that (i) Leucadia shall have the right to terminate this Agreement by giving to HomeFed not less than one year's prior notice, in which event this Agreement will continue in effect at the rate of compensation in effect at the time the notice of termination is given by Leucadia, until the December 31 at the expiration of such one year notice, unless earlier terminated by HomeFed and (ii) HomeFed shall have the right to terminate this Agreement, without restriction or penalty, upon 30 days prior written notice to Leucadia. In all events, the provisions of Section 7. "Indemnification" shall survive the termination of this Agreement."
In all other respects, the Agreement shall remain unchanged.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first hereinabove written.
LEUCADIA FINANCIAL CORPORATION
Address: 529 East South Temple
Salt Lake City, UT 84102
By: /s/ Joseph A. Orlando
----------------------
Name: Joseph A. Orlando
Title: Vice President
|
HOMEFED CORPORATION
Address: 1903 Wright Place, Suite 220
Carlsbad, CA 92008
By: /s/ Paul J. Borden
-----------------------
Name: Paul J. Borden
Title: President
|
HOMEFED RESOURCES CORPORATION
Address: 1903 Wright Place, Suite 220
Carlsbad, CA 92008
By: /s/ Paul J. Borden
------------------------
Name: Paul J. Borden
Title: President
|
HOMEFED COMMUNITIES, INC.
Address: 1903 Wright Place, Suite 220
Carlsbad, CA 92008
By: /s/ Paul J. Borden
--------------------------
Name: Paul J. Borden
Title: President
|
Exhibit 10.26
[On HomeFed Corporation Letterhead]
----------------,-----
[Name and Address of Grantee]
Dear [Name of Grantee]:
On December 14, 1999, the stockholders of HomeFed Corporation (the "Company") approved the Company's 1999 Stock Incentive Plan (the "Plan"). The Plan provides the Company with a means of incentivizing its directors and key officers and employees, and certain officers and key employees of subsidiary corporations, parent corporations and affiliated corporations who are responsible for the continued growth of the Company ("Eligible Persons") by permitting Eligible Persons to acquire a proprietary interest in the Company. A copy of the Plan is annexed to this Letter Agreement and is considered to be a part of this Letter Agreement as if fully set forth in this Letter Agreement. Unless the context otherwise requires, all terms defined in the Plan will have the same meaning when used in this Letter Agreement.
Subject to the provisions of this Letter Agreement and the provisions of the Plan, the Company hereby grants to you, as of ____, ____ (the "Award Date"), ____ shares (the "Restricted Stock") of common stock, par value $.01 per share ("Common Stock") of the Company. This Award is not in lieu of salary or other compensation for your services.
The Restricted Stock shall vest immediately upon grant. Notwithstanding the foregoing, if your service to the Company is terminated during the Restricted Period (as defined in this Letter Agreement), for any reason other than your death or permanent disability, shares of Restricted Stock will be forfeited according to the following schedule, unless waived by the Committee:
Termination Prior To % Forfeited -------------------- ----------- First anniversary of Award Date 100% Second anniversary of Award Date 50% Third anniversary of Award Date 25% |
Restricted Stock will not be forfeited as a result of your death or termination of service to the Company resulting from permanent disability, as determined by the Committee.
The period during which Restricted Stock is subject to forfeiture is known as the "Restricted Period" with respect to such shares. During the Restricted Period, you may not sell, transfer, pledge or assign the Restricted Stock.
As soon as practicable after the Award Date, the Company will issue to you one or more stock certificates for the Restricted Stock, which will be registered in your name and held by the Company. The certificates will bear the following legend:
"The transferability of this certificate and the shares of stock represented hereby are subject to the terms and conditions (including forfeiture) of the HomeFed Corporation 1999 Stock Incentive Plan and a Restricted Stock Letter Agreement. Copies of such Plan and Letter Agreement are on file at the offices of HomeFed Corporation."
Except as otherwise specifically provided in this Letter Agreement, during the Restricted Period, you shall have all the rights of a stockholder with respect to the Restricted Stock, including, without limitation, the right to vote the Restricted Stock, and the right to receive dividends with respect thereto (except that dividends paid in Common Stock shall be subject to the same restrictions as those imposed upon the Restricted Stock).
In the event of an "Extraordinary Event" (as defined in the Plan) with respect to the Company (including a change in control of the Company), all shares of Restricted Stock still subject to forfeiture will become free of such restrictions.
[If the grant of shares of Restricted Stock causes you (or any person) to become a "5 percent stockholder" (as defined in the Plan), such grant shall only be effective with respect to the number of shares of Restricted Stock that you may acquire without causing you (or any person) to become a 5 percent stockholder, and any grant in excess of such amount shall be void.]
To protect the Company's significant tax loss carryforwards, the Restricted Stock will be subject to certain transfer restrictions contained in the Company's Restated Certificate of Incorporation designed to regulate transfers to a person or group of persons who are or would become as a result of such transfers a "5 percent stockholder." All Certificates for the Company's Common Stock, including the Restricted Stock, bear a legend with respect to such transfer restrictions.
No later than the date as of which an amount first becomes includible in your gross income for federal income tax purposes with respect to any Restricted Stock, you shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, all federal, state, local and foreign taxes that are required by applicable laws and regulations to be withheld by the Company with respect to such amount. The obligations of the
Company under this Agreement shall be conditioned on compliance by you with this paragraph, and the Company shall, to the extent permitted by law, have the right to deduct any such taxes for any payment otherwise due you, including from the delivery of the Restricted Stock that gives rise to the withholding requirement. You may also make withholding tax payments by tendering shares of Common Stock, valued as of the date tendered.
The Company agrees to pay any and all original issue taxes and stock transfer taxes that may be imposed on the issuance of shares received by you in connection with the Restricted Stock, together with any and all other fees and expenses necessarily incurred by the Company in connection therewith.
You hereby covenant and agree with the Company that if, at the time you wish to sell the Restricted Stock (which shall not be during the Restricted Period for such Restricted Stock), there does not exist a Registration Statement on an appropriate form under the Securities Act of 1933, as amended (the "Act"), which Registration Statement shall have become effective and shall include a prospectus which is current with respect to the Restricted Stock (i) that you are acquiring the Restricted Stock for your own account and not with a view to the resale or distribution thereof and (ii) unless waived by the Board of Directors of the Company, that any subsequent offer for sale or sale of any such shares shall be made either pursuant to (x) a Registration Statement on an appropriate form under the Act, which Registration Statement shall have become effective and shall be current with respect to the shares being offered and sold, or (y) a specific exemption from the registration requirements of the Act, but in claiming such exemption, you shall, prior to any offer for sale or sale of such shares, obtain a favorable written opinion from counsel for or approved by the Company as to the applicability of such exemption.
Restricted Stock shall become free of all restrictions upon the expiration of the Restricted Period and, at such point, the Company will deliver to you a new certificate evidencing such stock with the Restricted Stock legend deleted.
In the event of any conflict between this Letter Agreement and the Plan, the Plan shall control. In the event of any ambiguity in this Letter Agreement, or any matters as to which this Letter Agreement is silent, the Plan shall govern including, without limitation, the provisions thereof pursuant to which the Committee has the power, among others, to (i) interpret the Plan, (ii) prescribe, amend and rescind rules and regulations relating to the Plan, and (iii) make all other determinations deemed necessary or advisable for the administration of the Plan.
Please indicate your acceptance of all the terms and conditions of this Award and the Plan by signing and returning a copy of this Letter Agreement.
Very truly yours,
HomeFed Corporation
Accepted:
[On HomeFed Corporation Letterhead]
----------, ----
[Name and Addresss of Grantee]
Dear {Name]:
On December 14, 1999, the stockholders of HomeFed Corporation (the "Company") approved the 1999 Stock Option Plan (the "Plan"). The Plan provides the Company with a means of incentivizing its salaried key employees and certain salaried key employees of subsidiary corporations or parent corporations ("Eligible Persons") by permitting Eligible Persons to acquire a proprietary interest in the Company. A copy of the Plan is annexed to this Letter Agreement and is considered to be a part of this Letter Agreement as if fully set forth herein. Unless the context otherwise requires, all terms defined in the Plan will have the same meaning when used in this Letter Agreement.
Subject to the provisions of this Letter Agreement and the provisions of the Plan, the Company hereby grants to you, as a matter of separate inducement and not in lieu of any salary or other compensation for your services, the right and option (the "Option") to purchase, an aggregate of _____ shares of common stock, par value $.01 per share (the "Common Stock"), of the Company, at a price of $_____ per share, such option price being, in the judgment of the Committee, not less than one hundred percent (100%) of the fair market value of shares of Common Stock at the date hereof. The option is intended to qualify as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), but it is specifically understood that no warranty is made to you as to such qualification.
Subject to the provisions and limitations of Articles VI,VIII and XVIII of the Plan, this Option may be exercised by you, on a cumulative basis, during a period of five (5) years commencing one (1) year from the date hereof and terminating at the close of business on ____________ as follows:
(a) this Option may not be exercised by you during the first year following the date hereof;
(b) up to twenty percent (20%) of the total number of shares subject to this Option may be purchased by you during the second year following the date hereof;
(c) up to an additional twenty percent (20%) of the total number of shares subject to this Option may be purchased by you during the third year following the date hereof;
(d) up to an additional twenty percent (20% of the total number of shares subject to this Option may be purchased by you during the fourth year following the date hereof;
(e) up to an additional twenty percent (20%) of the total number of shares subject to this Option may be purchased by you during the fifth year following the date hereof; and
(f) the balance of the total number of shares subject to this Option may be purchased by you during the sixth year following the date hereof.
The unexercised portion of the Option granted herein will automatically and without notice terminate and become null and void upon the expiration of six (6) years from the date of the grant of this Option. If, however, prior to the expiration of six (6) years from the date hereof, your employment with the Company and any parent or subsidiary corporation terminates, unless otherwise provided by the Committee, this Option will terminate on the applicable date as described below; provided, however, that none of the events described below shall extend the period of exercisability of this Option beyond six (6) years from the date hereof:
(a) the date of termination, if your employment is terminated other than by reason of death, disability or retirement or if you are discharged for cause (as defined by the Plan);
(b) the expiration of one (1) year after your death if your death occurs either during your employment or within the three-month or one-year period after the termination of your employment specified in clauses (c) and (d) below, except that your Option will be exercisable during such one-year period only to the extent that it would have been exercisable on the date of your death;
(c) the expiration of three (3) months from the date of termination of your employment by reasons of your retirement or dismissal other than for cause (as defined in the Plan), except that your option will be exercisable during such three-month period only to the extent that it would have been exercisable immediately prior to the termination of your employment;
(d) the expiration of one (1) year after the termination of your employment by reason of your disability (as defined by the Plan), except that your Option will be exercisable during such one-year period only to the extent that it would have been exercisable immediately prior to the termination of your employment.
Except to the extent otherwise provided under the Code, to the extent that the aggregate fair market value of Options (under all stock options plans of the Company and of any parent corporation or subsidiary corporation of the Company) exercisable for the first time by an employee during
any calendar year exceeds one hundred thousand dollars ($100,000), such Options shall be treated as Non-Qualified Options.
In no event may you exercise this Option for a fraction of a share.
In the event of an "Extraordinary Event" (as defined in the Plan) with respect to the Company (including a change in control of the Company), all then outstanding Options that have not vested or become exercisable at the time of the Extraordinary Event will immediately become exercisable. The Committee may, in its discretion determine that upon the occurrence of an Extraordinary Event each outstanding Option shall terminate within a specified number of days after notice to the holder. In such event, your rights will be as specified in Article XVIII of the Plan.
If the grant or exercise of an Option causes you (or any person) to become a "5 percent stockholder" (as defined in the Plan), such grant or exercise shall only be effective with respect to the number of shares of Common Stock that you may acquire without causing you (or any person) to become a 5 percent stockholder, and any grant in excess of such amount shall be void.
To protect the Company's significant tax loss carryforwards, the shares issuable upon exercise of an Option will be subject to certain transfer restrictions contained in the Company's Restated Certificate of Incorporation designed to regulate transfers to a person or group of persons who are or would become as a result of such transfers a "5 percent stockholder".. All Certificates for the Company's Common Stock, including shares issuable pursuant to this Option, bear a legend with respect to such transfer restrictions.
In the event of any change in corporate capitalization (including, but not limited to, a change in the number of shares of Common Stock outstanding), such as a stock split or a corporate transaction such as a merger, consolidation, reorganization, spin-off (or other distribution of stock or property of the Company), the number and kind of shares subject to the Option and/or the exercise price per share shall be equitably adjusted by the Committee as it may deem appropriate in its sole discretion. The determination of the Committee regarding any adjustment will be final and conclusive.
The Option shall be subject to the requirement that, if at any time the Committee shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, or (iii) an agreement by you with respect to the disposition of shares of Common Stock is necessary or desirable as a condition of, or in connection with, the sale or purchase of shares pursuant thereto, then in any such event, the issuance or delivery of shares issuable pursuant to Option shall be delayed until such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Committee.
This Option is not transferable by you otherwise than by will or the laws of descent and distribution, and is exercisable, during your lifetime, only by you. This Option may not be assigned, transferred (except by will or the laws of descent and distribution), pledged or hypothecated in any way (whether by operation of the law or otherwise) and shall not be subject to execution, attachment or similar proceeding. Any attempted assignment, transfer, pledge, hypothecation or other disposition of this Option contrary to the provisions hereof, and the levy of any attachment or similar proceeding upon the Option, shall be null and void and without effect.
Any exercise of this Option shall be in writing addressed to the Corporate Secretary of the Company at the principal place of business of the Company and shall be accompanied by a certified or bank cashier's check to the order of the Company in the full amount of the purchase price of the shares so purchased; provided, however, that in lieu of cash you may, to the extent permitted by applicable law, exercise this Option in whole or in part, by delivering to the Company shares of the Company (in proper form for transfer and accompanied by all requisite stock transfer tax stamps or cash in lieu thereof) owned by you having a fair market value equal to the cash exercise price applicable to that portion of the Option being exercised by the delivery of such shares.
If the Company, in its sole discretion, shall determine that it is necessary, to comply with applicable securities laws, the certificate or certificates representing the shares purchased pursuant to the exercise of this Option shall bear an appropriate legend in form and substance, as determined by the Company, giving notice of applicable restrictions on transfer under or in respect of such laws.
You hereby covenant and agree with the Company that if, at the time of exercise of this Option, there does not exist a Registration Statement on an appropriate form under the Securities Act of 1933, as amended (the "Act"), which Registration statement shall have become effective and shall include a prospectus which is current with respect to the shares subject to this Option (i) that you are purchasing shares for your own account and not with a view to the resale or distribution thereof or (ii) that any subsequent offer for sale or sale of any such shares shall be made either pursuant to (x) a Registration Statement on an appropriate form under the Act, which Registration Statement shall have become effective and shall be current with respect to the shares being offered and sold, or (y) a specific exemption from the registration requirements of the Act, but in claiming such exemption, you shall, prior to any offer for sale or sale of such shares, obtain a favorable written opinion from counsel for or approved by the Company as to the applicability of such exemption.
You hereby acknowledge that the Company may endorse a legend upon the certificate evidencing the Common Shares as the Company, in its sole discretion, determines to be necessary and appropriate to implement the terms of the Plan.
The Company agrees to pay any and all original issue taxes and stock transfer taxes that may be imposed on the issuance of shares acquired pursuant to exercise of the Option, together with any and all fees and expenses necessarily incurred by the Company in connection therewith.
In the event of any conflict between this Letter Agreement and the Plan, the Plan shall control. In the event of any ambiguity in this Letter Agreement, or any matters as to which this Letter Agreement is silent, the Plan shall govern including, without limitation, the provisions thereof pursuant to which the Committee has the power, among others, to (i) interpret the Plan, (ii) prescribe, amend and rescind rules and regulations relating to the Plan, and (iii) make all other determinations deemed necessary or advisable for the administration of the Plan.
[Remainder of page intentionally left blank.]
Please indicate your acceptance of all the terms and conditions of this Option and the Plan by signing and returning a copy of this letter.
Very truly yours,
HOMEFED CORPORATION
Accepted:
[On HomeFed Corporation Letterhead]
----------, -----
[Name of Grantee]
Dear [Name of Grantee]:
On December 14, 1999, the stockholders of HomeFed Corporation (the "Company") approved the 1999 Stock Option Plan (the "Plan"). The Plan provides the Company with a means of incentivizing its directors and key officers and employees, and certain officers and key employees of subsidiary corporations, parent corporations and affiliated corporations who are responsible for the continued growth of the Company ("Eligible Persons") by permitting Eligible Persons to acquire a proprietary interest in the Company. A copy of the Plan is annexed to this Letter Agreement and is considered to be a part of this Letter Agreement as if fully set forth herein. Unless the context otherwise requires, all terms defined in the Plan will have the same meaning when used in this Letter Agreement.
Subject to the provisions of this Letter Agreement and the provisions of the Plan, the Company hereby grants to you, as a matter of separate inducement and not in lieu of any compensation for your services, the right and option (the "Option") to purchase, an aggregate of _____ shares of common stock, par value $.01 per share (the "Common Stock"), of the Company, at a price of $_____ per share. The Option shall be a Non-Qualified Stock Option.
Subject to the provisions and limitations of Articles VI, VIII, XIV and XVIII of the Plan, this Option may be exercised by you, on a cumulative basis, during a period of five (5) years commencing one (1) year from the date hereof and terminating at the close of business on ____________ as follows:
(a) this Option may not be exercised by you during the first year following the date hereof;
(b) up to twenty percent (20%) of the total number of shares subject to this Option may be purchased by you during the second year following the date hereof;
(c) up to an additional twenty percent (20%) of the total number of shares subject to this Option may be purchased by you during the third year following the date hereof;
(d) up to an additional twenty percent (20% of the total number of shares subject to this Option may be purchased by you during the fourth year following the date hereof;
(e) up to an additional twenty percent (20%) of the total number of shares subject to this Option may be purchased by you during the fifth year following the date hereof; and
(f) the balance of the total number of shares subject to this Option may be purchased by you during the sixth year following the date hereof.
The unexercised portion of the Option granted herein will automatically and without notice terminate and become null and void upon the expiration of six (6) years from the date of the grant of this Option. If, however, prior to the expiration of six (6) years from the date hereof, your service to the Company or any parent, subsidiary or affiliated corporation terminates, unless otherwise provided by the Committee, this Option will terminate on the applicable date as described in Article XII of the Plan; provided, however, that none of the events described in Article XII of the Plan shall extend the period of exercisability of this Option beyond six (6) years from the date hereof.
In no event may you exercise this Option for a fraction of a share.
In the event of an "Extraordinary Event" (as defined in the Plan) with respect to the Company (including a change in control of the Company), all then outstanding Options that have not vested or become exercisable at the time of the Extraordinary Event will immediately become exercisable. The Committee may, in its discretion determine that upon the occurrence of an Extraordinary Event each outstanding Option shall terminate within a specified number of days after notice to the holder. In such event, rights will be as specified in Article XVIII of the Plan.
If the grant or exercise of an Option causes you (or any person) to become a "5 percent stockholder" (as defined in the Plan), such grant or exercise shall only be effective with respect to the number of shares of Common Stock that you may acquire without causing you (or any person) to become a 5 percent stockholder, and any grant in excess of such amount shall be void.
To protect the Company's significant tax loss carryforwards, the shares issuable upon exercise of an Option will be subject to certain transfer restrictions contained in the Company's Restated Certificate of Incorporation designed to regulate transfers to a person or group of persons who are or would become as a result of such transfers a "5 percent stockholder".. All Certificates for the Company's Common Stock, including shares issuable pursuant to this Option, bear a legend with respect to such transfer restrictions.
In the event of any change in corporate capitalization (including, but not limited to, a change in the number of shares of Common Stock outstanding), such as a stock split or a corporate transaction such as a merger, consolidation, reorganization, spin-off (or other distribution of stock or property of the Company), the number and kind of shares subject to the Option and/or the exercise price per share shall be equitably adjusted by the Committee as it may deem appropriate in its sole discretion. The determination of the Committee regarding any adjustment will be final and conclusive.
The Option shall be subject to the requirement that, if at any time the Committee shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, or (iii) an agreement by you with respect to the disposition of shares of Common Stock is necessary or desirable as a condition of, or in connection with, the sale or purchase of shares pursuant thereto, then in any such event, the issuance or delivery of shares issuable pursuant to Option shall be delayed until such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Committee.
This Option is not transferable by you otherwise than by will or the laws of descent and distribution, and is exercisable, during your lifetime, only by you. This Option may not be assigned, transferred (except by will or the laws of descent and distribution), pledged or hypothecated in any way (whether by operation of the law or otherwise) and shall not be subject to execution, attachment or similar proceeding. Any attempted assignment, transfer, pledge, hypothecation or other disposition of this Option contrary to the provisions hereof, and the levy of any attachment or similar proceeding upon the Option, shall be null and void and without effect.
Any exercise of this Option shall be in writing addressed to the Corporate Secretary of the Company at the principal place of business of the Company and shall be accompanied by a certified or bank cashier's check to the order of the Company in the full amount of the purchase price of the shares so purchased; provided, however, that in lieu of cash you may, to the extent permitted by applicable law, exercise this Option in whole or in part, by delivering to the Company shares of the Company (in proper form for transfer and accompanied by all requisite stock transfer tax stamps or cash in lieu thereof) owned by you having a fair market value equal to the cash exercise price applicable to that portion of the Option being exercised by the delivery of such shares.
If the Company, in its sole discretion, shall determine that it is necessary, to comply with applicable securities laws, the certificate or certificates representing the shares purchased pursuant to the exercise of this Option shall bear an appropriate legend in form and substance, as determined by the Company, giving notice of applicable restrictions on transfer under or in respect of such laws.
You hereby covenant and agree with the Company that if, at the time of exercise of this Option, there does not exist a Registration Statement on an appropriate form under the Securities Act of 1933, as amended (the "Act"), which Registration statement shall have become effective and shall
include a prospectus which is current with respect to the shares subject to this Option (i) that you are purchasing shares for your own account and not with a view to the resale or distribution thereof, (ii) that any subsequent offer for sale or sale of any such shares shall be made either pursuant to (x) a Registration Statement on an appropriate form under the Act, which Registration Statement shall have become effective and shall be current with respect to the shares being offered and sold, or (y) a specific exemption from the registration requirements of the Act, but in claiming such exemption, you shall, prior to any offer for sale or sale of such shares, obtain a favorable written opinion from counsel for or approved by the Company as to the applicability of such exemption.
You hereby acknowledge that the Company may endorse a legend upon the certificate evidencing the Common Shares as the Company, in its sole discretion, determines to be necessary and appropriate to implement the terms of the Plan.
As provided in the Plan, the Company may withhold from the sums due or to become due to you from the Company an amount necessary to satisfy its obligation to withhold taxes imposed in connection with this Option, including in connection with your exercise hereof, or may require you to reimburse the Company in such amount. The Company may hold the stock certificate to which you are entitled upon the exercise of this Option as security for the payment of withholding tax liability, until cash sufficient to pay such liability has been accumulated, collected or received by the Company. The Committee may permit you to (i) direct the Company to satisfy the withholding tax obligation through the withholding of shares of Common Stock that would otherwise be issuable to you, or (ii) tender to the Company other shares of Common Stock owned by you.
The Company agrees to pay any and all original issue taxes and stock transfer taxes that may be imposed on the issuance of shares acquired pursuant to exercise of the Option, together with any and all fees and expenses necessarily incurred by the Company in connection therewith.
In the event of any conflict between this Letter Agreement and the Plan, the Plan shall control. In the event of any ambiguity in this Letter Agreement, or any matters as to which this Letter Agreement is silent, the Plan shall govern including, without limitation, the provisions thereof pursuant to which the Committee has the power, among others, to (i) interpret the Plan, (ii) prescribe, amend and rescind rules and regulations relating to the Plan, and (iii) make all other determinations deemed necessary or advisable for the administration of the Plan.
Please indicate your acceptance of all the terms and conditions of this Option and the Plan by signing and returning a copy of this letter.
Very truly yours,
HOMEFED CORPORATION
Accepted:
[On HomeFed Corporation Letterhead]
----------, ----
[Name of Grantee]
Dear [Name of Grantee]:
On December 14, 1999, the stockholders of HomeFed Corporation (the "Company") approved the 1999 Stock Option Plan (the "Plan"). The Plan provides the Company with a means of incentivizing its directors and key officers and employees, and certain officers and key employees of subsidiary corporations, parent corporations and affiliated corporations who are responsible for the continued growth of the Company ("Eligible Persons") by permitting Eligible Persons to acquire a proprietary interest in the Company. A copy of the Plan is annexed to this Letter Agreement and is considered to be a part of this Letter Agreement as if fully set forth herein. Unless the context otherwise requires, all terms defined in the Plan will have the same meaning when used in this Letter Agreement.
Subject to the provisions of this Letter Agreement and the provisions of the Plan, the Company hereby grants to you, as a matter of separate inducement and not in lieu of any salary or other compensation for your services, the right and option (the "Option") to purchase, an aggregate of 1,000 shares of common stock, par value $.01 per share (the "Common Stock"), of the Company, at a price of $_____ per share. The Option shall be a Non-Qualified Stock Option.
Subject to the provisions and limitations of Articles VI, XII and XVIII of the Plan, this Option may be exercised by you, on a cumulative basis, during a period of five (5) years commencing one (1) year from the date hereof and terminating at the close of business on ____________ as follows:
(a) this Option may not be exercised by you during the first year following the date hereof;
(b) up to twenty-five percent (25%) of the total number of shares subject to this Option may be purchased by you during the second year following the date hereof;
(c) up to an additional twenty-five percent (25%) of the total number of shares subject to this Option may be purchased by you during the third year following the date hereof;
(d) up to an additional twenty-five percent (25% of the total number of shares subject to this Option may be purchased by you during the fourth year following the date hereof;
(e) the balance of the total number of shares subject to this Option may be purchased by you during the fifth year following the date hereof.
The unexercised portion of the Option granted herein will automatically and without notice terminate and become null and void upon the expiration of five (5) years from the date of the grant of this Option. If, however, prior to the expiration of five (5) years from the date hereof, your service to the Company as a Director terminates, unless otherwise provided by the Committee, this Option will terminate on the applicable date as described in Article XIV of the Plan; provided, however, that none of the events described in Article XIV of the Plan shall extend the period of exercisability of this Option beyond five (5) years from the date hereof.
In no event may you exercise this Option for a fraction of a share.
In the event of an "Extraordinary Event" (as defined in the Plan) with respect to the Company (including a change in control of the Company), all then outstanding Options that have not vested or become exercisable at the time of the Extraordinary Event will immediately become exercisable. The Committee may, in its discretion determine that upon the occurrence of an Extraordinary Event each outstanding Option shall terminate within a specified number of days after notice to the holder. In such event, your rights will be as specified in Article XVIII of the Plan.
[If the grant or exercise of this Option causes you (or any person) to become a "5 percent stockholder" (as defined in the Plan), such grant or exercise shall only be effective with respect to the number of shares of Common Stock that you may acquire without causing you (or any person) to become a 5 percent stockholder, and any grant in excess of such amount shall be void. ]
To protect the Company's significant tax loss carryforwards, the shares issuable upon exercise of an Option will be subject to certain transfer restrictions contained in the Company's Restated Certificate of Incorporation designed to regulate transfers to a person or group of persons who are or would become as a result of such transfers a "5 percent stockholder". All Certificates for the Company's Common Stock, including shares issuable pursuant to this Option, bear a legend with respect to such transfer restrictions.
In the event of any change in corporate capitalization (including, but not limited to, a change in the number of shares of Common Stock outstanding), such as a stock split or a corporate transaction such as a merger, consolidation, reorganization, spin-off (or other distribution of stock or property of the Company), the number and kind of shares subject to the Option and/or the exercise price per share shall be equitably adjusted by the Committee as it may deem appropriate in its sole discretion. The determination of the Committee regarding any adjustment will be final and conclusive.
The Option shall be subject to the requirement that, if at any time the Committee shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, or (iii) an agreement by you with respect to the disposition of shares of Common Stock is necessary or desirable as a condition of, or in connection with, the sale or purchase of shares pursuant thereto, then in any such event, the issuance or delivery of shares issuable pursuant to Option shall be delayed until such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Committee.
This Option is not transferable by you otherwise than by will or the laws of descent and distribution, and is exercisable, during your lifetime, only by you. This Option may not be assigned, transferred (except by will or the laws of descent and distribution), pledged or hypothecated in any way (whether by operation of the law or otherwise) and shall not be subject to execution, attachment or similar proceeding. Any attempted assignment, transfer, pledge, hypothecation or other disposition of this Option contrary to the provisions hereof, and the levy of any attachment or similar proceeding upon the Option, shall be null and void and without effect.
Any exercise of this Option shall be in writing addressed to the Corporate Secretary of the Company at the principal place of business of the Company and shall be accompanied by a certified or bank cashier's check to the order of the Company in the full amount of the purchase price of the shares so purchased; provided, however, that in lieu of cash you may, to the extent permitted by applicable law, exercise this Option in whole or in part, by delivering to the Company shares of the Company (in proper form for transfer and accompanied by all requisite stock transfer tax stamps or cash in lieu thereof) owned by you having a fair market value equal to the cash exercise price applicable to that portion of the Option being exercised by the delivery of such shares.
If the Company, in its sole discretion, shall determine that it is necessary, to comply with applicable securities laws, the certificate or certificates representing the shares purchased pursuant to the exercise of this Option shall bear an appropriate legend in form and substance, as determined by the Company, giving notice of applicable restrictions on transfer under or in respect of such laws.
You hereby covenant and agree with the Company that if, at the time of exercise of this Option, there does not exist a Registration Statement on an appropriate form under the Securities Act of 1933, as amended (the "Act"), which Registration statement shall have become effective and shall
include a prospectus which is current with respect to the shares subject to this Option (i) that you are purchasing shares for your own account and not with a view to the resale or distribution thereof or (ii) that any subsequent offer for sale or sale of any such shares shall be made either pursuant to (x) a Registration Statement on an appropriate form under the Act, which Registration Statement shall have become effective and shall be current with respect to the shares being offered and sold, or (y) a specific exemption from the registration requirements of the Act, but in claiming such exemption, you shall, prior to any offer for sale or sale of such shares, obtain a favorable written opinion from counsel for or approved by the Company as to the applicability of such exemption.
You hereby acknowledge that the Company may endorse a legend upon the certificate evidencing the Common Shares as the Company, in its sole discretion, determines to be necessary and appropriate to implement the terms of the Plan.
As provided in the Plan, the Company may withhold from the sums due or to become due to you from the Company an amount necessary to satisfy its obligation to withhold taxes imposed in connection with this Option, including in connection with your exercise hereof, or may require you to reimburse the Company in such amount. The Company may hold the stock certificate to which you are entitled upon the exercise of this Option as security for the payment of withholding tax liability, until cash sufficient to pay such liability has been accumulated, collected or received by the Company. The Committee may permit you to (i) direct the Company to satisfy the withholding tax obligation through the withholding of shares of Common Stock that would otherwise be issuable to you, or (ii) tender to the Company other shares of Common Stock owned by you.
The Company agrees to pay any and all original issue taxes and stock transfer taxes that may be imposed on the issuance of shares acquired pursuant to exercise of the Option, together with any and all fees and expenses necessarily incurred by the Company in connection therewith.
In the event of any conflict between this Letter Agreement and the Plan, the Plan shall control. In the event of any ambiguity in this Letter Agreement, or any matters as to which this Letter Agreement is silent, the Plan shall govern including, without limitation, the provisions thereof pursuant to which the Committee has the power, among others, to (i) interpret the Plan, (ii) prescribe, amend and rescind rules and regulations relating to the Plan, and (iii) make all other determinations deemed necessary or advisable for the administration of the Plan.
Please indicate your acceptance of all the terms and conditions of this Option and the Plan by signing and returning a copy of this letter.
Very truly yours,
HOMEFED CORPORATION
Accepted:
Exhibit 21
HomeFed Corporation
List of Subsidiaries
Name State of Incorporation/Organization ---- ----------------------------------- Bird Ranch Development Company, LLC Delaware CDS Devco California CDS Holding Corporation Delaware Flat Rock Land Company, LLC Delaware HomeFed Communities, Inc. California HomeFed Communities LLC Delaware HomeFed Realty, Inc. California HomeFed Resources Corporation California Paradise Glen Development Company, LLC Delaware Paradise Valley LLC Delaware Paradise Valley Communities No.1 California Otay Land Company, LLC Delaware Otay Valley Development Company, LLC Delaware Northfork Communities California Rampage Vineyard, LLC Delaware SEH F1, LLC Delaware SEH R, LLC California San Elijo Hills Construction Company California San Elijo Hills Development Company, LLC Delaware San Elijo Ranch, Inc. California |
Exhibit 23
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (No. 333-97079) of HomeFed Corporation of our report dated March 1, 2005 relating to the financial statements, which appear in this Form 10-K.
/s/ PricewaterhouseCoopers LLP ------------------------------ PricewaterhouseCoopers LLP Irvine, CA March 1, 2005 |
Exhibit 31.1
CERTIFICATIONS
I, Paul J. Borden, certify that:
1. I have reviewed this annual report on Form 10-K of HomeFed Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's fourth fiscal quarter of 2004 that has materially affected, or is reasonably likely to materially affect the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: March 8, 2005
By:/s/ Paul J. Borden
---------------------------
Paul J. Borden
President
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Exhibit 31.2
CERTIFICATIONS
I, Erin N. Ruhe, certify that:
1. I have reviewed this annual report on Form 10-K of HomeFed Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's fourth fiscal quarter of 2004 that has materially affected, or is reasonably likely to materially affect the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: March 8, 2005
By: /s/ Erin N. Ruhe
-------------------------------
Erin N. Ruhe
Vice President, Treasurer and
Controller
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Exhibit 32.1
CERTIFICATION
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED BY SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Paul J. Borden, as President of HomeFed Corporation (the "Company") certify, pursuant to 18 U.S.C. ss. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1) the accompanying Form 10-K report for the period ending December 31, 2004 as filed with the U.S. Securities and Exchange Commission (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: March 8, 2005
By: /s/ Paul J. Borden
----------------------
Paul J. Borden
President
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Exhibit 32.2
CERTIFICATION
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED BY SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Erin N. Ruhe, as Vice President and Controller of HomeFed Corporation (the "Company") certify, pursuant to 18 U.S.C. ss. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1) the accompanying Form 10-K report for the period ending December 31, 2004 as filed with the U.S. Securities and Exchange Commission (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: March 8, 2005
By: /s/ Erin N. Ruhe
-------------------------
Erin N. Ruhe
Vice President, Treasurer and
Controller
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