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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): October 31, 1997
LENNAR CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 1-11749 59-1281887
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification Number)
Incorporation)
700 Northwest 107th Avenue
Miami Florida 33172
(Address of Principal Executive Offices)(Zip Code)
Registrant's telephone number, including area code:
(305) 559-4000
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT
On October 31, 1997, Lennar Corporation, a Delaware
corporation, ("Lennar") was merged with Pacific Greystone
Corporation, a Delaware corporation ("Greystone"), with Greystone as
the surviving corporation. Although Greystone is the surviving
corporation, immediately after the merger former Lennar stockholders
will own approximately 68% of the fully diluted outstanding capital
stock of the surviving corporation, the surviving corporation will
be named Lennar Corporation, six of its eight directors will be
pre-merger Lennar directors and the principal executive officers of
Lennar before the merger will become the principal executive
officers of the surviving corporation. For accounting and
consolidated tax reporting purposes, the merger will be treated as
an acquisition of Greystone by Lennar. The surviving corporation's
common stock is traded on the New York Stock Exchange under the
symbol "LEN."
After the merger, each share of common stock, $.01 par value
per share, of Greystone will remain outstanding as one share of
common stock, $.10 par value per share, of the surviving
corporation, and each share of common stock, $.10 par value per
share, of Lennar and each share of class B common stock, $.10 par
value per share, of Lennar will become one share of the common
stock, or class B common stock, of the surviving corporation,
respectively. However, before the effective time of the merger,
Greystone declared a stock dividend of .138 shares of Greystone
common stock upon each share of Greystone common stock outstanding
at the close of business on October 31, 1997. Therefore, after the
merger, Greystone stockholders will hold 1.138 shares of common
stock of the surviving corporation for each share of Greystone
common stock outstanding immediately prior to the merger.
The merger was approved at special meetings of Greystone's
stockholders and Lennar's stockholders held on October 31, 1997.
Greystone issued 26,097,675 shares of its common stock and 9,966,675
shares of its newly created class B common stock to the common
stockholders and class B common stockholders of Lennar in the
merger.
As a result of the merger, Leonard Miller (Lennar's Chairman),
through family partnerships, owns 9,930,300 shares of the surviving
corporation's class B stock. Because the class B stock is entitled
to 10 votes per share, and Mr. Miller's holdings are more than 99%
of the surviving corporation's class B stock, Mr. Miller will be
entitled to cast 69.6% of all the votes which may be cast with
regard to matters presented for a vote of the surviving
corporation's stockholders.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
See Item 1.
ITEM 5. OTHER EVENTS.
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The name of the corporation which survived the merger of
Greystone with Lennar is Lennar Corporation.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Businesses Acquired.
It is impracticable to file with this Form 8-K the financial
statements and proforma financial information required by this Item
7 with regard to the merger. Those financial statements and that
proforma financial information will be filed by amendment to this
Form 8-K as soon as practicable and, in any event, within 60 days
after the required filing date for this Form 8-K.
(b) Pro Forma Financial Information.
See Item 7(a).
(c) Exhibits.
2.1 Plan and Agreement of Merger, dated as of June 10, 1997,
between Lennar and Greystone--incorporated by reference to
Registration Statement on Form S-4, File No. 333- 35671.
2.2 Amendment No. 1, dated as of October 31, 1997, to Plan and
Agreement of Merger, dated as of June 10, 1997.
3.1 Restated Certificate of Incorporation of surviving
corporation.
3.2 By-Laws of surviving corporation.
SIGNATURES
Pursuant to the requirements 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.
LENNAR CORPORATION
Date: November 17, 1997 By: /s/ STUART A. MILLER
------------------------
Name: Stuart A. Miller
Title: President
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EXHIBIT 2.2
AMENDMENT NUMBER 1
TO PLAN AND AGREEMENT OF MERGER
This is Amendment Number 1 (the "Amendment Agreement"), dated as of
October 31, 1997, to the Plan and Agreement of Merger dated as of June 10, 1997
between Pacific Greystone Corporation and Lennar Corporation (the "Merger
Agreement"). The Merger Agreement is amended, effective immediately, as follows:
1. The Restated Certificate of Incorporation of the Surviving Corporation
which is attached as Exhibit 2.1 to the Merger Agreement is replaced by the
revised Restated Certificate of Incorporation which is attached to this
Amendment Agreement.
2. The list of Directors of the Surviving Corporation which is attached as
Exhibit 2.3 to the Merger Agreement is replaced by the revised Exhibit 2.3 which
is attached to this Amendment Agreement.
3. The description of assets to be transferred to the Land Joint Venture
in Exhibit 4.1-J(2) to the Merger Agreement is replaced by the revised Exhibit
4.1-J(2) which is attached to this Amendment Agreement.
4. The description of Option Prices which is contained in Exhibit 6.1-M(1)
to the Merger Agreement is replaced by the revised Exhibit 6.1-M(1) which is
attached to this Amendment Agreement.
5. All references in the Merger Agreement to "Agreement" are hereby
amended and shall be deemed to refer to the Merger Agreement as amended by this
Amendment Agreement.
Except as expressly provided in this Amendment Agreement, the Merger
Agreement shall remain in full force and effect and unmodified.
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IN WITNESS WHEREOF, the parties have executed this Amendment Agreement,
intending to be legally bound by it, on the day shown in the first paragraph of
this Amendment Agreement.
LENNAR CORPORATION
By: /s/ Stuart A. Miller
------------------------------
Title: President
PACIFIC GREYSTONE CORPORATION
By: /s/ Jack R. Harter
------------------------------
Title: President
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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
PACIFIC GREYSTONE CORPORATION
ARTICLE I.
NAME
The name of this Corporation shall be Lennar Corporation.
ARTICLE II.
REGISTERED OFFICE AND REGISTERED AGENT
The name and address of this Corporation's registered agent in the State
of Delaware, County of New Castle, is The Corporation Trust Company, Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware.
ARTICLE III.
NATURE OF BUSINESS
The general nature of the business and activities to be transacted
and carried on by this Corporation are as follows:
(a) to purchase or otherwise acquire, or obtain the use of and to
hold, own, maintain, develop, sell, lease, exchange, hire, convey, mortgage or
otherwise dispose of or turn to account lands and leaseholds and any interest,
estates and rights in real property and any personal or mixed property, and any
rights, licenses and privileges appurtenant to such property; to erect,
construct, make, improve and operate or aid or subscribe toward the erection,
construction, making, improvement and operation of any and all plants,
factories, buildings, warehouses, agencies, depots, offices, houses, equipment
and facilities whatsoever in connection with its property or which may appertain
to or appear necessary, useful, convenient
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or appropriate in connection with any of its business or the business of any
corporation, association, co-partnership or individual in which the Corporation
shall be in any manner interested.
(b) To acquire by purchase, gift, devise, bequest or otherwise, to
manufacture or construct, to own, use, hold and develop, to dispose of by sale,
exchange or otherwise, to lease, mortgage, pledge, assign and generally to deal
in and with real and personal property of every sort and description, services,
goodwill, franchises, inventions, patents, copyrights, trademarks, trade names
and licenses, and interests of any sort in any such property.
(c) To enter into and perform contracts of every sort and
description, with any person, firm, association, corporation, municipality,
county, state, nation or other body politic, or with any colony, dependency or
agency of any of the foregoing.
(d) To issue, execute, deliver, endorse, buy, sell, draw, accept and
discount notes, drafts, letters of credit, checks and other bills of exchange
and other evidences of indebtedness.
(e) To borrow money, to lend money and extend credit, without limit
in either case as to amount, in such amounts as the Board of Directors may from
time to time determine, to guarantee and act as surety with respect to the debts
of any other person, firm, association or corporation without regard to the
interest of this Corporation in any debt so guaranteed or assured or in such
other person, firm, association or corporation; and to secure any direct or
contingent indebtedness of the Corporation by the execution and delivery of
mortgages, pledges, assignments, transfers in trust or other instruments
appropriate for encumbering any or all of the property of the Corporation, or
any interest therein.
(f) To acquire, by purchase, merger or otherwise, all or any part of
the goodwill, rights, property and business of any person, firm, association or
corporation, in connection therewith to assume liabilities of any person, firm,
association, or corporation, and,
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in consideration of any such acquisition, to pay cash, to deliver stock, bonds,
other securities, or property of any other kind.
(g) to issue, execute, deliver, guarantee, endorse, purchase, hold,
sell, transfer, mortgage, pledge, assign and otherwise deal in and with shares
of capital stock, bonds, debentures, other evidences of indebtedness and any and
all other securities of any description created, issued or delivered by this
Corporation or by any other corporation, association, person or firm of the
State of Delaware or of any other state or nation, and, while owner thereof, to
exercise, to the extent permitted by law, all the rights, powers and privileges
of ownership including, without limitation, the right to vote stock or other
securities having voting rights as attributes.
(h) In general, to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
(i) To perform every act necessary or proper for the accomplishment
of the objects and purposes enumerated or for the protection and benefit of the
Corporation.
(j) The objects and purposes specified in the foregoing clauses of
this Article shall, unless expressly limited, not be limited or restricted by
reference to, or inference from, any provision in this or any other Article of
this Certificate of Incorporation, shall be regarded as independent objects and
purposes and shall be construed as powers as well as objects and purposes.
ARTICLE IV.
STOCK
The total authorized number of shares of stock of the Corporation is
130,500,000 shares. Of these, 100,000,000 shares are classified as Common Stock,
par value $.10 per share, 30,000,000 shares are classified as Class B Common
Stock, par value $.10 per share and
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500,000 shares are classified as Preferred Stock, par value $10.00 per share,
except that if at any time after shares of Class B Common Stock are issued,
there no longer are any outstanding shares of Class B Common Stock, the
authorization to issue Class B Common Stock will terminate and after that time
the shares of stock the Corporation is authorized to issue will be 130,000,000
shares of Common Stock, par value $.10 per share, and 500,000 shares of
Preferred Stock, par value $10.00 per share, and the Company will file a
Certificate of Amendment to its Certificate of Incorporation or a restated
Certificate of Incorporation showing the change in the authorized stock.
The description of the classes of stock and the relative rights,
voting power, preferences and restrictions of the shares of each class which are
fixed by the Certificate of Incorporation and the express grant of authority to
the Board of Directors of the Corporation (hereinafter referred to as the "Board
of Directors") to fix by resolution or resolutions the dividend rate, the
redemption price, the liquidation price, the conversion rights, if any, and the
sinking or purchase fund rights of shares of any class or of any series of any
class or the number of shares constituting any series of any class are as
follows:
PREFERRED STOCK
(a) The 500,000 shares of Preferred Stock may be issued from time to
time in one or more series, each of such series to have such relative rights,
voting power, preferences and restrictions as are stated herein and in the
resolution or resolutions providing for the issuance of such series adopted by
the Board of Directors as hereinafter provided.
(b) Authority is hereby expressly granted to the Board of Directors,
subject to the provisions of this Article, to authorize from time to time the
issuance of one or more series of Preferred Stock, and with respect to each
series to fix or alter from time to time as to shares then unallotted, by
resolution or resolutions providing for the issuance of such series:
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(1) The distinctive designation of such series and the number
of shares which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors in
creating such series) or decreased (but not below the number of shares
thereof then outstanding) from time to time by action of the Board of
Directors;
(2) The dividend rate or rates to which shares of such series
shall be entitled; the restrictions, conditions and limitations upon the
payment of such dividends; whether such dividends shall be cumulative and,
if cumulative, the date or dates from which such dividends shall be
cumulative and the dates on which such dividends if declared shall be
payable;
(3) The manner of selecting shares for redemption, the
redemption price and the manner of redemption and the effect thereof;
(4) The amount payable on shares of such series in the event
of any liquidation, dissolution or winding up of the Corporation, which
amount may vary at different dates and may vary depending upon whether
such liquidation, dissolution or winding up is voluntary or involuntary;
(5) The obligation, if any, of the Corporation to maintain a
purchase, retirement or sinking fund for shares of such series and the
provisions with respect thereto;
(6) The terms and conditions of the rights, if any, of the
holders of such series to convert such shares into shares of Common Stock
of the Corporation;
(7) The terms and conditions of the rights, if any, of the
holders of shares of such series to vote such shares;
(8) Any other rights, preferences, powers and restrictions not
inconsistent with applicable law or the provisions hereof.
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(c) All shares of any one series of Preferred Stock shall be
identical with each other in all respects, except that shares of any one series
issued at different times may differ as to the dates from which dividends
thereon shall be cumulative. All series of Preferred Stock shall be of equal
rank and be identical in all respects, except as permitted by the foregoing
provisions of paragraph (b) of this Article.
(d) The holders of the Preferred Stock of each series shall be
entitled to receive such dividends in cash, when and as declared by the Board of
Directors, to be paid out of earned surplus or out of paid-in surplus or out of
net earnings legally available for the payment thereof, as they may be entitled
to in accordance with the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such series, payable on such dates as
may be fixed in such resolution or resolutions. No dividends, whether in cash or
property, shall be paid or declared, nor shall any distribution be made, in any
year on the Common Stock unless and until all the full dividends on the
Preferred Stock of all series required to be paid in that year have been paid or
declared, and if declared, a sum sufficient for the payment thereof has been set
apart. In addition so long as there shall be outstanding any shares of Preferred
Stock of any series entitled to cumulative dividends pursuant to the resolution
or resolutions providing for the issuance of such series, no dividends, whether
in cash or property shall be paid or declared, nor shall any distribution be
made on the Common Stock, nor shall any shares of Common Stock be purchased,
redeemed or otherwise acquired for value by the Corporation, unless the full
cumulative dividends on the Preferred Stock of all series entitled to cumulative
dividends for all past dividend periods and for the then current dividend period
shall have been paid or declared, and if so declared, a sum sufficient for the
payment thereof set apart, and the Corporation shall have set aside all amounts,
if any, theretofore required to be set aside as and for a purchase, retirement
or sinking fund, if any, for the Preferred Stock of all series for the then
current year and all defaults, if any, in complying with any such purchase,
retirement or sinking fund
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requirements in respect of previous years shall have been made good. The
foregoing provisions of this Paragraph shall not, however, apply to a dividend
payable in Common Stock or to the acquisition of shares of Common Stock in
exchange for, or through application of the proceeds of the sale of, shares of
Common Stock. Accruals of dividends shall not bear interest.
(e) The holders of the Preferred Stock of each series shall be
entitled in the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, to be paid as a liquidating
dividend, before any distribution or payment is made to the holders of any
Common Stock, the amount per share provided for in the resolution or resolutions
adopted by the Board of Directors providing for the issuance of such series.
When such payments shall have been made in full to the holders of the Preferred
Stock, they shall have no further rights in respect of their shares or the
assets of the Corporation. If upon any liquidation or dissolution or winding up
of the Corporation the assets available for distribution shall be insufficient
to pay the holders of all outstanding shares of Preferred Stock the full amounts
to which they respectively shall be entitled, the holders of the shares of
Preferred Stock of all series shall share ratably in any distribution of assets
according to the respective amounts which would be payable in respect of the
shares held by them upon such distribution if all amounts payable in respect of
the Preferred Stock of all series were paid in full. Neither the statutory
merger nor consolidation of the Corporation into or with any other corporation,
nor the statutory merger or consolidation of any other corporation into or with
the Corporation, nor a sale transfer or lease of all or any part of the assets
of the Corporation shall be deemed a liquidation, dissolution or winding up of
the Corporation within the meaning of this paragraph.
(f) The Corporation at the option of the Board of Directors may at
any time redeem the whole or from time to time may redeem any part of any series
of Preferred Stock for the consideration provided in and in accordance with the
terms and conditions of the resolution or resolutions of the Board of Directors
authorizing such series.
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(g) At all meetings of Stockholders of the Corporation, each holder
of record of Preferred Stock shall have such voting rights, if any, as may be
provided in resolutions adopted by the Board of Directors providing for the
issuance of each series.
COMMON STOCK AND CLASS B COMMON STOCK
(a) Voting Rights and Powers.
With respect to all matters upon which stockholders are entitled to
vote or to which stockholders are entitled to give consent, (1) the holders of
the outstanding shares of the Common Stock and the holders of the outstanding
shares of Class B Common Stock will vote together without regard to class, (2)
each holder of record of Common Stock will be entitled to one vote for each
share of Common Stock held in his name, and (3) each holder of record of Class B
Common Stock will be entitled to ten votes for each share of Class B Common
Stock held in his name, except that (4) any amendment to this Certificate of
Incorporation which would change the number of authorized shares, the par value
or the voting rights of, the restriction on dividends upon, or any other
provision of this Certificate of Incorporation relating to, the Common Stock or
the Class B Common Stock, in addition to being adopted as required by law, must
be approved by holders of a majority of the shares of Common Stock which vote
with regard to the amendment.
(b) Dividends and Distributions.
(1) Cash Dividends. The cash dividends paid with regard to a
share of Class B Common Stock in a calendar year may not be more than 90%
of the cash dividends paid with regard to a share of Common Stock in that
calendar year.
(2) Other Dividends and Distributions. Each dividend or
distribution made to the holders of Common Stock or Class B Common Stock
(other than cash dividends) will be distributable to the holders of the
Common Stock and the Class B
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Common Stock without regard to class, except that in the case of dividends
or other distributions payable in stock of the Corporation other than
Preferred Stock, the stock distributed with respect to the Common Stock
will be additional shares of Common Stock and the stock distributed with
respect to the Class B Common Stock will be additional shares of Class B
Common Stock.
(c) Restrictions on Transfer of the
Class B Common Stock.
(1) Permitted Transferees. No beneficial owner of shares of
Class B Common Stock (a "Class B Stockholder") may transfer shares of
Class B Common Stock, whether by sale, assignment, gift, bequest or
otherwise, except to a Permitted Transferee of that Class B Stockholder. A
"Permitted Transferee" of a Class B Stockholder is (i) the Class B
Stockholder's spouse; (ii) a parent or lineal descendant (including an
adopted child) of a parent of the Class B Stockholder, or the spouse of a
lineal descendant of a parent of the Class B Stockholder; (iii) a trustee,
guardian or custodian for, or an executor, administrator or other legal
representative of the estate of, the Class B Stockholder, or a trustee,
guardian or custodian for a Permitted Transferee of the Class B
Stockholder; (iv) the trustee of a trust (including a voting trust) for
the benefit of the Class B Stockholder and (v) a corporation, partnership
or other entity of which the Class B Stockholder and Permitted Transferees
of the Class B Stockholder are the beneficial owners of a majority in
voting power of the equity. For the purpose of this Paragraph a
"beneficial owner" of Class B Common Stock is a person who, or entity
which, has or shares the power to direct the voting or disposition of the
Class B Common Stock.
(2) Impermissible Transfer Void. Any purported transfer of
Class B Common Stock other than to a Permitted Transferee will be void and
will not be recognized by the Corporation. The Corporation may, as a
condition to the registration of a transfer of Class B Common Stock to a
purported Permitted Transferee, require such
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affidavits or other proof as the Corporation deems necessary to establish
that the transferee is a Permitted Transferee.
(3) Legend on Stock Certificates. Each certificate
representing Class B Common Stock will bear a legend referring to the
restrictions on transfer of the Class B Common Stock.
(4) Registered Owner. Each share of Class B Common Stock will
be registered in the name of the beneficial owner of the share and not in
"street name" or the name of a nominee.
(d) Issuance of Class B Common Stock.
(1) Initial Issuance. Upon the merger of Lennar Corporation
("Old Lennar") with and into the Corporation (the "Merger") in accordance
with a Plan and Agreement of Merger dated June 10, 1997, (the "Merger
Agreement") between the Corporation (the name of which at that date was
Pacific Greystone Corporation) and Old Lennar, each share of Class B
Common Stock, par value $.10 per share, of Old Lennar which is outstanding
immediately before the Merger becomes effective is being converted into
and becoming one share of Class B Common Stock of the Corporation.
(2) Subsequent Issuance. The Corporation may not issue any
shares of Class B Common Stock, except (i) as provided in Paragraph (d)(1)
or (ii) as a dividend or distribution as provided in Paragraph (b)(2).
(e) Conversion of Class B Common
Stock into Common Stock.
A Class B Stockholder may at any time convert shares of Class B
Common Stock into a like number of shares of Common Stock by surrendering the
certificates representing the shares of Class B Common Stock to be converted (or
representing a greater number of shares of Class B Common Stock) to the Company
accompanied by a request that all or a specified number of the shares of Class B
Common Stock represented by the certificates be converted
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into Common Stock. Once Class B Common Stock has been converted into Common
Stock, the Common Stock may not be reconverted into Class B Common Stock.
(f) Termination of Class Rights and Powers.
If at any time the number of outstanding shares of Class B Common
Stock is less than 10% of the outstanding shares of Common Stock and Class B
Common Stock taken together, the Class B Common Stock will automatically be
converted into, and become for all purposes, shares of Common Stock. After the
Class B Common Stock is converted into Common Stock as provided in this
paragraph, the Company may issue certificates which represent Common Stock in
exchange for certificates which represented Class B Common Stock. However, the
automatic conversion of Class B Common Stock into Common Stock will be effective
whether or not certificates are exchanged.
(g) Other Rights.
Except as otherwise provided in this Certificate of Incorporation,
or provided by law, each share of Common Stock and each share of Class B Common
Stock will have identical powers, preferences and rights, including rights in
liquidation, and copies of all reports and other communications which are sent
by the Corporation to the holders of the Common Stock must also be sent to the
holders of the Class B Common Stock.
ARTICLE V.
NUMBER OF DIRECTORS
The business of this Corporation shall be managed by a Board of
Directors consisting of not fewer than three, and not more than fifteen,
persons, the exact number to be determined from time to time in accordance with
the By-Laws. The Board of Directors will be divided into three classes, each of
which will have the highest whole number of directors
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obtained by dividing the number of directors constituting the whole Board by
three, with any additional directors allocated, one to a class, to the classes
designated by the Board of Directors.
The directors of each class will serve for a term of three years,
and until their successors are elected and qualified, or with regard to any
director until that director's earlier death or resignation, except that as to
directors elected at the first annual meeting of stockholders at which directors
are elected in classes, the term of directors of one class will expire at the
annual meeting of Stockholders following the first annual meeting at which
directors are elected in classes and the term of directors of a second class ill
expire at the second annual meeting of stockholders following the first annual
meeting at which directors are elected in classes. If there is a vacancy in any
class of directors, including a vacancy because of a newly created directorship,
the person elected to fill that vacancy will serve until the next election of
the directors of that class and until that person's successor is elected and
qualified.
No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. In addition to the circumstances in which a director of the Corporation
is not personally liable as set forth in the preceding sentence, a director of
the Corporation shall not be liable to the fullest extent permitted by any
amendment to the Delaware General Corporation Law hereafter enacted that further
limits the liability of a director.
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ARTICLE VI.
OFFICERS
The Corporation shall have a President, a Vice-President, a
Secretary and a Treasurer, and may have such other officers and agents as are
prescribed by the By-Laws or determined by the Board of Directors. A person may
hold more than one office except that the President may not also be the
Secretary or an Assistant Secretary.
ARTICLE VII.
BY-LAWS
The Board of Directors shall adopt By-Laws for the Corporation. The
By-Laws may be amended, altered or repealed by the stockholders or Directors in
any manner permitted by the By-Laws.
ARTICLE VIII.
AMENDMENT
The Certificate of Incorporation may be amended in any manner now or
hereafter provided for by law and all rights conferred upon stockholders
hereunder are granted subject to this reservation.
ARTICLE IX.
TRANSACTIONS IN WHICH DIRECTORS
OR OFFICERS ARE INTERESTED
(a) No contract or transaction between the Corporation and one or
more of its Directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its Directors or officers are Directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the Director or officer is present at or participates in the meeting of the
Board of
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Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by
the affirmative vote of a majority of the disinterested Directors,
even though the disinterested Directors be less than a quorum; or
(2) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board
of Directors, a committee thereof, or the stockholders.
(b) Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE X.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) The Corporation shall indemnify any person who is made a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
Director,
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officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees)
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best interest
of the corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a Director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the Corporation unless and only to the extent that the Court in
which such action was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person
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is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) To the extent that a Director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections (a) and (b) of this Article
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
(d) Any indemnification under Sections (a) and (b) of this Article
(unless ordered by a Court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the Director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in said Sections (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of Directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable
and a quorum of disinterested Directors so directs, by independent legal counsel
(compensated by the Corporation) in a written opinion, or (3) by the
Stockholders.
(e) Expenses incurred in defending a civil, criminal, administrative
or investigative action, suit or proceeding, or threat thereof, may be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the manner provided in
Section (d) of this Article upon receipt of an undertaking by or on behalf of
the Director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article.
(f) The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any agreement, vote of
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stockholders or disinterested Directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(g) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article.
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EXHIBIT 3.2
LENNAR CORPORATION
-------------------
BY-LAWS
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ARTICLE I
Offices
Section 1. Principal Office. The principal office of the Corporation shall
be located in the City of Wilmington, County of New Castle, State of Delaware,
and the name of the resident agent in charge thereof shall be The Corporation
Trust Company.
Section 2. Other Offices. The Corporation may also have offices at such
other places, within or without the State of Delaware, as the Board of Directors
may from time to time appoint or the business of the Corporation may require.
ARTICLE II
Seal
The corporate seal shall be circular in form and shall contain the name of
the Corporation, the year of its organization and the words "Corporate Seal,
Delaware".
ARTICLE III
Meetings of Stockholders
Section 1. Place of Meeting. All meetings of the stockholders for the
election of Directors shall be held at Miami, Florida, provided that at least
ten (10) days' notice must be given to the
EXHIBIT 2.2
<PAGE> 2
stockholders entitled to vote thereat of the place so fixed. All other meetings
of the stockholders shall be held at such place or places, within or without the
State of Delaware, as may from time to time be fixed by the Board of Directors,
or as shall be specified in the respective notices or waivers of notice thereof.
Section 2. Annual Meetings. The Annual Meeting of Stockholders shall be
held on the first Tuesday after the first Monday in the month of April of each
year after 1997 if not a legal holiday, and if a legal holiday then on the next
day following, at 11:00 o'clock A.M., at which meeting the holders of shares of
Common Stock shall elect Directors and transact such other business as may
properly be brought before the meeting. Stockholders shall not be entitled to
vote cumulatively in the election of Directors.
The Board of Directors shall have the authority to postpone the Annual
Meeting of Stockholders, subject, however, to the requirements of Section 3 of
Article VIII of these By-Laws.
Section 3. Special Meetings. Special meetings of the stockholders for any
purpose or purposes may be called by the President, or by the Directors (either
by written instrument signed by a majority or by resolution adopted by a vote of
the majority), and special meetings shall be called by the President or the
Secretary whenever stockholders owning a majority of any class of capital stock
issued, outstanding and entitled to vote at such meeting so request in writing.
Such request shall state the purpose or purposes of the proposed meeting.
Section 4. Notice. Written or printed notice of every meeting of
stockholders, annual or special, stating the time and place thereof, and, if a
special meeting, the purpose or purposes in general terms for which the meeting
is called, shall not less than ten (10) days before such meeting be served upon
or mailed to each stockholder entitled to vote thereat, at his address as it
appears upon the books of the Corporation, or, if such stockholder shall have
filed with the Secretary of the Corporation a written request that notices
intended for him be mailed to some other address, then to the address designated
in such request.
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Notice of the time, place and/or purpose of any meeting of stockholders
may be dispensed with if every stockholder entitled to vote thereat shall attend
either in person or by proxy, or if every absent stockholder entitled to such
notice shall in writing, filed with the records of the meeting, either before or
after the holding thereof, waive such notice.
Section 5. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation or by these By-Laws, the presence in person or by
proxy at any meeting of stockholders of the holders of a majority in voting
power, but not less than one-third in number, of the shares of the capital stock
of the Corporation issued and outstanding and entitled to vote thereat, shall be
requisite and shall constitute a quorum. In the event that any business to be
transacted at such meeting requires the affirmative vote of any class of stock
of the Corporation, the presence in person or by proxy at such meeting of the
holders of a majority in voting power of the issued and outstanding shares of
stock of such class shall be requisite and shall constitute a quorum of the
shares of that class, except where otherwise provided by law or the Certificate
of Incorporation. If, however, such majority in voting power or one-third in
number of the shares of the capital stock of the Corporation or such majority in
voting power of the shares of a class, as the case may be, shall not be
represented at any meeting of the stockholders regularly called, the holders of
a majority in voting power of the shares, or a majority in voting power of the
shares of the class, as the case may be, present or represented and entitled to
vote thereat shall have the power to adjourn the meeting to another time, or to
another time and place, without notice other than announcement of adjournment at
the meeting, and there may be successive adjournments for like cause and in like
manner until the requisite amount of shares entitled to vote at such meeting
shall be represented. At such adjourned meeting at which the requisite amount of
shares entitled to vote thereat shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
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Section 6. Votes, Proxies. Except as otherwise provided in the Certificate
of Incorporation, at each meeting of stockholders every holder of record of
shares of Common Stock at the closing of the transfer books, if closed, or on
the date set by the Board of Directors for the determination of stockholders
entitled to vote at such meeting, shall have one vote for each share of Common
Stock registered in his name on the books of the Corporation. At each such
meeting every stockholder entitled to vote may vote in person, or by proxy
appointed by an instrument in writing subscribed by such stockholder and bearing
a date not more than three years prior to the meeting in question, unless said
instrument provides for a longer period during which it is to remain in force.
All elections of Directors shall be held by ballot. If the Chairman of the
meeting shall so determine a vote may be taken upon any other matter by ballot
and shall be so taken upon the request of any stockholder entitled to vote on
such matter.
At elections of Directors the Chairman shall appoint two inspectors of
election, who shall first take and subscribe an oath or affirmation faithfully
to execute the duties of inspector at such meeting with strict impartiality and
according to the best of their ability and who shall take charge of the polls
and after the balloting shall make a certificate of the result of the vote
taken; but no Director or candidate for the office of Director shall be
appointed as such inspector.
Section 7. Organization. The Chairman of the Board or, in his absence or
at his request, the President or, in the absence or at the request of both the
Chairman of the Board and the President, a Vice President shall call meetings of
the stockholders to order and shall act as chairman thereof. The Secretary of
the Corporation, if present, shall act as secretary of all meetings of
stockholders and, in his absence, the presiding officer may appoint a secretary.
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<PAGE> 5
ARTICLE IV
Directors
Section 1. Number. The business and property of the Corporation shall be
conducted and managed by a Board consisting of not less than three, and not more
than fifteen, Directors, none of whom need be a stockholder. The Board of
Directors of the Corporation shall initially be composed of nine Directors, but
the Board may at any time by resolution increase or decrease the number of
Directors, although the number may never be decreased to less than three, nor
increased to more than fifteen, and the vacancies resulting from any such
increase shall be filled as provided in Section 3 of this Article IV.
Section 2. Term of Office. The Board of Directors will be divided into
three classes, each of which will have the highest whole number of directors
obtained by dividing the number of directors constituting the whole Board by
three, with any additional Directors allocated, one to a class, to the classes
designated by the Board of Directors. The Directors of each class will serve for
a term of three years, and until their successors are elected and qualified, or,
with regard to any Director until that Director's earlier death or resignation,
except that as to Directors elected at the first annual meeting of stockholders
at which Directors are elected in classes, the term of Directors of one class
will expire at the annual meeting of stockholders following the first annual
meeting at which Directors are elected in classes and the term of Directors of a
second class will expire at the second annual meeting of stockholders following
the first annual meeting at which Directors are elected in classes. If at any
time the number of Directors constituting the entire Board is increased and that
increased number of directors is not evenly divisible by three, the Board of
Directors may at the time of the increase determine to which class or classes to
allocate the newly created directorships in excess of the number which makes the
number of directors constituting the entire board evenly divisible by three.
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Section 3. Vacancies. If any vacancy shall occur among the Directors,
other than a vacancy resulting from removal of a Director, or if the number of
Directors shall at any time be increased, the Directors in office, although less
than a quorum, by a majority vote may fill the vacancy or newly created
Directorships, or any such vacancy or newly created Directorships may be filled
by the stockholders at any meeting. If a vacancy shall occur among the Directors
because of the removal of a Director, that vacancy may only be filled by the
stockholders at an annual meeting of stockholders. A person elected to fill a
vacancy or newly created Directorship in any class of Directors will serve until
the next election of the Directors of that class and until the person's
successor is elected and qualified.
Section 4. Removal by Stockholders. The holders of record of the common
Stock of the Corporation may in their discretion at any meeting duly called for
the purpose, by a majority vote, remove for cause any Director or Directors
originally elected by them or remove for cause any Director or Directors who
filled a vacancy or vacancies created by the death or resignation of any
Director or Directors originally elected by them.
Section 5. Meetings. Meetings of the Board of Directors shall be held at
such place, within or without the State of Delaware, as may from time to time be
fixed by resolution of the Board or by the Chairman of the Board or the
President and as may be specified in the notice or waiver of notice of any
meeting. Meetings may be held at any time upon the call of the Chairman of the
Board or of the President or of the Secretary or any two (2) of the Directors in
office by oral, telegraphic, or written notice, duly served or sent or mailed to
each Director not less than two days before such meeting. Meetings may be held
at any time and place without notice if all the Directors are present or if
those not present shall, in writing or by telegram, waive notice thereof. A
regular meeting of the Board may be held without notice immediately following
the annual meeting of stockholders at the place where such annual meeting is
held. Regular
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meetings of the Board may also be held without notice at such time and place as
shall from time to time be determined by resolution of the Board.
Section 6. Quorum. A majority of the Directors shall constitute a quorum
for the transaction of business. If at any meeting of the Board there shall be
less than a quorum present, a majority of those present may adjourn the meeting
from time to time without notice other than announcement of the adjournment at
the meeting, and at such adjourned meeting at which a quorum is present any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 7. Compensation. In the discretion of the Board of Directors, the
Directors may be paid compensation for their services as Directors on an annual
or other periodic basis or may be paid a fixed sum for attendance at meetings.
The Board of Directors also may allow expenses of attendance, if any, at any
regular or special meeting thereof. Nothing in this Section shall be construed
to preclude a Director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE V
Executive Committee
Section 1. Executive Committee. The Board of Directors may appoint an
Executive Committee of three or more members, to serve during the pleasure of
the Board, to consist of such Directors as the Board may from time to time
designate. The Chairman of the Executive Committee shall be designated by the
Board of Directors.
Section 2. Procedure. The Executive Committee, by a vote of a majority of
its members, shall fix its own times and places of meeting, shall determine the
number of its members constituting a quorum for the transaction of business, and
shall prescribe its own rules of procedure; no change in which shall be made
save by a majority vote of its members.
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Section 3. Powers. Except as otherwise provided by the Certificate of
Incorporation or by law, during the intervals between the meetings of the Board
of Directors, the Executive Committee shall possess and may exercise all the
powers of the Board in the management and direction of the business and affairs
of the Corporation, except that it shall not have the power (1) to declare
dividends or other distributions to stockholders, (2) to elect officers of the
Corporation, (3) to amend the By-Laws, (4) to increase or decrease the number of
Directors, (5) to fill vacancies in the Board of Directors or newly created
Directorships, (6) to authorize the sale or issuance of any stock of the
Corporation, or (7) to negative any action of the Board of Directors.
Section 4. Reports. The Executive Committee shall keep regular minutes of
its proceedings and all action by the Executive Committee shall be reported to
the Board of Directors at its next meeting. Such action shall be subject to
review, by the Board, provided that no rights of third parties shall be affected
by such review.
ARTICLE VI
Independent Directors Committee
Section 1. Independent Directors Committee. The Board of Directors shall
appoint an Independent Directors Committee consisting of three or more
Directors, none of whom is an officer or employee of the Corporation or of a
subsidiary of the Corporation, and none of whom is a director, officer or
employee of LPC, Inc. or a subsidiary of LPC, Inc. (each, an "Independent
Director"). The Chairman of the Independent Directors Committee shall be
selected by the Committee.
Section 2. Procedure. All actions of the Independent Directors Committee
will require the vote of a majority of the members present at a meeting at which
a quorum is present. A quorum of the Independent Directors Committee will be a
majority of its members. The
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<PAGE> 9
Independent Directors Committee, by a vote of a majority of its members, shall
fix its own times and places of meeting, and shall prescribe its own rules of
procedure; no change in which shall be made save by a majority vote of its
members.
Section 3. Powers. The Corporation may not take any of the following
actions, and the Board of Directors may not approve or authorize any of the
following actions (if its approval or authorization is required), unless the
action has been approved by the Independent Directors Committee:
(i) Instruct or permit the representatives of its subsidiary on the
Executive Committee of Lennar Land Partners to vote or consent with
regard to any item which requires the unanimous vote of that
Executive Committee as provided in the Partnership Agreement of
Lennar Land Partners without approval of the Independent Directors
Committee.
(ii) Contribute, or permit any of its subsidiaries to contribute, any
assets to Lennar Land Partners without the approval of the
Independent Directors Committee (however, a recommendation by the
Corporation or a subsidiary that Lennar Land Partners acquire a
property from an unrelated person will not be deemed a contribution
of that property by the Corporation or by the subsidiary and will
not require the approval of the Independent Directors Committee) as
provided in this section.
(iii) Exercise any option to purchase property from Lennar Land Partners
unless the form of the option was approved by the Independent
Directors Committee or reset the exercise price of any such option
unless the re-set exercise price was approved by the Independent
Directors Committee.
(iv) Purchase any property or other assets from Lennar Land Partners
(whether an exercise of an option or otherwise) in a transaction or
series of related
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transactions as to which the purchase price to be paid by the
Corporation or its subsidiary exceeds $10 million.
(v) Incur, or permit any of its subsidiaries to incur, guarantee or
otherwise become obligated with regard to any indebtedness which
will cause the Corporation and its subsidiaries to have a
consolidated ratio of debt to tangible net worth which is more than
2.5:1 (computed as provided in the agreements governing the
Corporation's principal borrowing facility) or a ratio of earnings
to fixed charges for the most recent twelve month period (computed
as provided in Item 503 of Securities and Exchange Commission
Regulation S-K, or any successor to that Item) which is less than
2:1.
(vi) Enter into, or permit any of its subsidiaries to enter into, any
transactions with LPC, Inc. or any of its subsidiaries.
(vii) Agree to any amendment of, or give any waiver or consent under, a
Separation and Distribution Agreement dated June 10, 1997, between
the Corporation and LPC, Inc.
In order to enable the Independent Directors Committee to evaluate transactions
which are subject to clause (iv), the President of the Corporation will report
to the Independent Directors Committee with regard to exercises by the
Corporation of options to purchase properties or other assets from Lennar Land
Partners not less frequently than once each fiscal quarter, and in any event
whenever the aggregate paid or to be paid by the Corporation or its subsidiaries
with regard to exercises which were not previously reported exceeds $25 million.
Section 4. Minutes. The Independent Directors Committee shall keep regular
minutes of its proceedings, which will be filed with the minutes of the meetings
of the Board of Directors.
ARTICLE VII
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Officers
Section 1. Officers. The Board of Directors shall elect, as executive
officers, a President, a Vice President, a Secretary and a Treasurer, and in
their discretion a Chairman of the Board, additional Vice Presidents and one or
more Assistant Secretaries and Assistant Treasurers. Such officers shall be
elected annually by the Board of Directors at its first meeting following the
annual meeting of stockholders, and each shall hold office until the
corresponding meeting of the Board in the next year and until his successor
shall have been duly elected and qualified or until he shall have died or
resigned or shall have been removed, in the manner provided herein. The powers
and duties of Secretary and Treasurer may be exercised and performed by the same
person, and a Vice President may at the same time hold any other single office
except that of President.
Section 2. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors, at any regular or
special meeting.
Section 3. Chairman of the Board. The Chairman of the Board, if elected,
shall be a member of the Board of Directors and shall preside at its meetings.
He shall keep in close touch with the administration of the affairs of the
Corporation, shall advise and counsel with the President, and, in his absence,
with other executives of the Corporation, and shall perform such other duties as
may from time to time be assigned to him by the Board of Directors.
Section 4. President. The President shall be a member of the Board of
Directors and the chief executive officer of the Corporation. Subject to the
directions of the Board of Directors, he shall have and exercise direct charge
of and general supervision over the business and affairs of the Corporation and
shall perform all duties incident to the office of a president of a corporation,
and such other duties as from time to time may be assigned to him by the Board
of Directors.
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Section 5. Vice Presidents. Each Vice President shall have and exercise
such powers and shall perform such duties as from time to time may be conferred
upon or assigned to him by the Board of Directors, or as may be delegated to him
by the Chairman of the Board or by the President.
Section 6. Secretary. The Secretary shall keep the minutes of all meetings
of the stockholders and of the Board of Directors in books provided for the
purpose; he shall see that all notices are duly given in accordance with the
provisions of law and these By-Laws; he shall be custodian of the records and of
the corporate seal or seals of the Corporation; he shall see that the corporate
seal is affixed to all documents, the execution of which, on behalf of the
Corporation, under its seal, is duly authorized and when the seal is so affixed
he may attest the same; he may sign, with the President or a vice President,
certificates of stock of the Corporation; and in general, he shall perform all
duties incident to the office of a secretary of a corporation, and such other
duties as from time to time may be assigned to him by the Board of Directors.
Section 7. Assistant Secretaries. The Assistant Secretaries in order of
their seniority shall, in the absence or disability of the Secretary, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties as the Board of Directors shall prescribe.
Section 8. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks, trust companies
or other depositories as shall, from time to time, be selected by the Board of
Directors; he may endorse for collection on behalf of the Corporation checks,
notes and other obligations; he may sign receipts and vouchers for payments made
to the Corporation; singly or jointly with another person as the Board of
Directors may authorize, he may sign checks of the Corporation and pay out and
dispose of the proceeds under the direction of the Board; he shall
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render to the President and to the Board of Directors, whenever requested, an
account of the financial condition of the Corporation; he may sign, with the
President or a Vice President, certificates of stock of the Corporation; and in
general, shall perform all the duties incident to the office of a treasurer of a
corporation, and such other duties as from time to time may be assigned to him
by the Board of Directors.
Section 9. Assistant Treasurers. The Assistant Treasurers in order of
their seniority shall, in the absence or disability of the Treasurer, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties as the Board of Directors shall prescribe.
Section 10. Subordinate Officers. The Board of Directors may appoint such
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the Board
of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
Section 11. Compensation. The Board of Directors shall have power to fix
the compensation of all officers of the Corporation. It may authorize any
officer, upon whom the power of appointing subordinate officers may have been
conferred, to fix the compensation of such subordinate officers.
Section 12. Removal. Any officer of the Corporation may be removed, with
or without cause, by a majority vote of the Board of Directors at a meeting
called for that purpose.
Section 13. Bonds. The Board of Directors may require any officer of the
Corporation to give a bond to the Corporation, conditional upon the faithful
performance of his duties, with one or more sureties and in such amount as may
be satisfactory to the Board of Directors.
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ARTICLE VIII
Certificates of Stock
Section 1. Form and Execution of Certificates. The interest of each
stockholder of the Corporation shall be evidenced by a certificate or
certificates for shares of stock in such form as the Board of Directors may from
time to time prescribe. The certificates of stock of each class shall be
consecutively numbered and signed by the President or a Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer of the Corporation, and may be countersigned and registered in such
manner as the Board of Directors may by resolution prescribe, and shall bear the
corporate seal or a printed or engraved facsimile thereof. Where any such
certificate is signed by a transfer agent or transfer clerk acting on behalf of
the Corporation and by a registrar, the signatures of any such President, Vice
President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may
be facsimiles, engraved or printed. In case any officer or officers who shall
have signed, or whose facsimile signature or signatures shall have been used on
any such certificate or certificates shall cease to be such officer or officers,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered by the Corporation as
though the person or persons who signed such certificate or certificates or
whose facsimile signature or signatures shall have been used thereon had not
ceased to be such officer or officers.
Section 2. Transfer of Shares. The shares of the stock of the Corporation
shall be transferred on the books of the Corporation by the holder thereof in
person or by his attorney lawfully constituted, upon surrender for cancellation
of certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof or
guaranty of the authenticity of the signature as the Corporation or its agents
may reasonably require. The Corporation shall be entitled to treat the holder of
record
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of any share or shares of stock as the holder in fact thereof and accordingly
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person whether or not it shall
have express or other notice thereof, save as expressly provided by law.
Section 3. Dates of Record. If deemed expedient, the Board of Directors
may fix in advance a date for such length of time (not exceeding fifty (50)
days) as the Board may determine, preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or the date for the
allotment of rights or the date when any issuance, change, conversion or
exchange of capital stock shall go into effect, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting or entitled to receive payment of any such dividend or to any such
allotment of rights, or to exercise the rights in respect of any such issuance,
change, conversion or exchange of capital stock, as the case may be, and in such
case only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to such notice of, and to vote at, such meeting, or to
receive payment of such dividend, or to receive such allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation after any record date fixed as aforesaid.
Section 4. Lost or Destroyed Certificates. In case of the loss or
destruction of any certificate of stock, a new certificate may be issued upon
the following conditions:
The owner of said certificate shall file with the Secretary of the
Corporation an affidavit giving the facts in relation to the ownership, and in
relation to the loss or destruction of said certificate, stating its number and
the number of shares represented thereby; such affidavit to be in such form and
contain such statements as shall satisfy the President and Secretary that said
certificate has been accidentally destroyed or lost, and that a new certificate
ought to be issued in lieu thereof. Upon being so satisfied, the President and
Secretary shall, unless
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otherwise approved by the Board of Directors, require such owner to file with
the Secretary a bond in such penal sum and in such form as they may deem
advisable, and with a surety or sureties approved by them, to indemnify and save
harmless the Corporation and any transfer agent or registrar of the
Corporation's stock from any claim, loss, damage or liability which may be
occasioned by the issuance of a new certificate in lieu thereof. Upon such bond
being so filed, if required, a new certificate for the same number of shares
shall be issued to the owner of the certificate so lost or destroyed; and the
transfer agent and registrar of stock shall countersign and register such new
certificate upon receipt of a written order signed by the said President and
Secretary, and thereupon the Corporation will save harmless said transfer agent
and registrar in the premises. A Vice President may act hereunder in the stead
of the President, and an Assistant Secretary in the stead of the Secretary. In
case of the surrender of the original certificate, in lieu of which a new
certificate has been issued, or the surrender of such new certificate, for
cancellation, the bond of indemnity given as a condition of the issue of such
new certificate may be surrendered.
ARTICLE IX
Checks, Notes, etc.
Section 1. Execution of Check, Notes, etc. All checks and drafts on the
Corporation's bank accounts and all bills of exchange and promissory notes, and
all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers, agent or agents, as shall be
thereunto authorized from time to time by the Board of Directors.
Section 2. Execution of Contracts, Assignments, etc. All contracts,
agreements, endorsements, assignments, transfers, stock powers, or other
instruments shall be signed by the President or any Vice President and by the
Secretary or any Assistant Secretary or the Treasurer
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or any Assistant Treasurer, or by such other officer or officers, agent or
agents, as shall be thereunto authorized from time to time by the Board of
Directors.
Section 3. Voting of Shares Owned by Corporation. The President of the
Corporation, or in his absence or disability a Vice President of the
Corporation, may authorize from time to time the signature and issuance of
proxies to vote upon shares of stock of other companies standing in the name of
the Corporation, which proxies may run to the person who executes the same. All
such proxies shall be signed in the name of the Corporation by the President or
a Vice President and by the Secretary or an Assistant Secretary. The President
or a Vice President and the Secretary or an Assistant Secretary are authorized
to sign all ballots, consents and/or waivers of notice for shares of stock of
other companies standing in the name of the Corporation.
ARTICLE X
Waivers and Consents
Whenever any notice is required to be given by law, or under the
provisions of the Certificate of Incorporation or of these By-Laws, such notice
may be waived, in writing, signed by the person or persons entitled to such
notice, or by his attorney or attorneys thereunto authorized, whether before or
after the event or action to which such notice relates.
Whenever the vote of stockholders at a meeting thereof is required or
permitted to be taken in connection with any corporate action by any provision
of law or of the Certificate of Incorporation or of these By-Laws, the meeting
and vote of stockholders may be dispensed with if all the stockholders who would
have been entitled to vote upon the action if such meeting were held shall
consent in writing to such action being taken.
Any action required or permitted to be taken at any meeting of the Board
of Directors or of any committee thereof may be taken without a meeting, if
prior to such action a written
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consent thereto is signed by all members of the Board or of such committee as
the case may be, and such written consent is filed with the minutes of
proceedings of the Board or committee.
ARTICLE XI
Dividends
Except as otherwise provided by law or by the Certificate of
Incorporation, the Board of Directors may declare dividends out of the surplus
of the Corporation at such times and in such amounts as it may from time to time
designate.
Before crediting net profits to the surplus in any year, there may be set
aside out of the net profits of the Corporation for that year such sum or sums
as the Directors from time to time in their absolute discretion may deem proper
as a reserve fund or funds to meet contingencies or for equalizing dividends or
for repairing or maintaining any property of the Corporation or for such other
purpose as the Directors shall deem conducive to the interests of the
Corporation.
ARTICLE XII
Inspection of Books
The Directors shall determine from time to time whether, and if allowed
when and under what conditions and regulations, the accounts and books of the
Corporation (except such as may by statute be specifically open to inspection)
or any of them, shall be open to the inspection of the stockholders and the
stockholders' rights in this respect are and shall be restricted and limited
accordingly.
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ARTICLE XIII
Fiscal Year
The fiscal year of the Corporation shall end on November 30 or on such
other date as shall be fixed by resolution of the Board of Directors. After such
date is fixed it may be changed for future fiscal years at any time or from time
to time by further resolution of the Board of Directors.
ARTICLE XIV
Amendments
These By-Laws may be altered, amended or repealed and new By-Laws adopted
by the holders of the Common Stock and Class B Common Stock of the Corporation
voting as provided in the Corporation's Certificate of Incorporation, or by the
Board of Directors by a majority vote at any meeting called for that purpose,
except that (a) Section 1, 2, 3 or 4 of Article VII, or this Article XIV, of
these By-Laws may only be altered, amended or repealed with the affirmative vote
of a majority of the outstanding stock entitled to vote on the election of
directors, (b) Article VI of these By-Laws may only be altered, amended or
repealed with the approval of the Independent Directors Committee or with the
affirmative vote of the holders of a majority of the shares of Common Stock
(voting separate and apart from the Class B Common Stock) which are voting with
respect to the alteration, amendment or repeal, (c) clause (iii) of Section 3 of
Article VI will automatically be deleted from that Section on November 30, 1999,
and (d) Article VI, in its entirety, will be automatically repealed on November
30, 2002, in each case without action of the Board of Directors or the
Independent Directors Committee.
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