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FORM 8-B
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR
ISSUERS
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CLAYTON HOMES, INC.
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(Exact name of Registrant as specified in its charter)
DELAWARE 62-0794407
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
623 MARKET STREET, KNOXVILLE, TENNESSEE 37902
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act and Name of
exchange on which class is to be registered:
COMMON STOCK, $.10 PAR VALUE PER SHARE
NEW YORK STOCK EXCHANGE
Securities to be registered pursuant to Section 12(g) of the Act: NONE
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ITEM 1. GENERAL INFORMATION.
(a) Clayton Homes, Inc., a Delaware corporation (the "Registrant" or the
"Company") was incorporated on December 19, 1996 under the laws of the
state of Delaware.
(b) The Registrant's current fiscal year ends on June 30, 1997.
ITEM 2. TRANSACTION OF SUCCESSION.
(a) The Registrant's predecessor corporation, Clayton Homes, Inc., a
Tennessee corporation ("Clayton Homes Tennessee"), had securities
registered pursuant to section 12(b) of the Securities and Exchange
Act, as amended (the "Act"), at the time of succession.
(b) Clayton Homes Tennessee changed its state of incorporation from
Tennessee to Delaware by merging Clayton Homes Tennessee into the
Registrant, with the Registrant being the corporation surviving the
merger (the "Merger"). The Registrant was organized on December 19,
1996 as a wholly owned subsidiary of Clayton Homes Tennessee. Pursuant
to the Merger, the Articles of Incorporation of the Registrant were
amended to change the name of the corporation to Clayton Homes, Inc.
The effective time of the Merger was December 31, 1996, at 5:00 p.m.
(the "Effective Time"), at which time, each share of Clayton Homes
Tennessee's issued and outstanding common stock, par value $.10 per
share ("Clayton Tennessee Common Stock") was converted into one share
of fully paid and nonassessable common stock, par value $.10 per
share, of the Registrant ("Common Stock").
ITEM 3. SECURITIES TO BE REGISTERED.
The Registrant has 200,000,000 shares of Common Stock authorized under
its Certificate of Incorporation. As of January 10, 1997, 118,500,408
shares of Common Stock were issued and outstanding.
ITEM 4. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The total amount of authorized capital stock of the Registrant is
200,000,000 shares of common stock, par value $0.10 per share (the
"Common Stock"). The following summary of certain provisions of the
Registrant's capital stock describes certain material provisions of,
but does not purport to be complete and is subject to, and qualified
in its entirety by, the Certificate of Incorporation and the Bylaws of
the Registrant and by the provisions of applicable law.
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The issued and outstanding shares of Common Stock are validly issued,
fully paid and nonassessable. The holders of outstanding shares of
Common Stock are entitled to receive dividends out of assets legally
available therefor at such times and in such amounts as the Board of
Directors may from time to time determine. The shares of Common Stock
are not redeemable or convertible, and the holders thereof have no
preemptive or subscription rights to purchase any securities of the
registrant. Upon liquidation, dissolution or winding up of the
Registrant, the holders of Common Stock are entitled to receive pro
rata the assets of the Registrant which are legally available for
distribution, after payment of all debts and other liabilities. Each
outstanding share of Common Stock is entitled to vote on all matters
submitted to a vote of stockholders.
The Common Stock is listed for trading on the New York Stock Exchange
under the symbol "CMH."
ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements.
The capital structure and balance sheet of the Registrant immediately
after the succession were substantially the same as those of the
predecessor, Clayton Homes Tennessee; and, therefore, no financial
statements are filed.
(b) Exhibits.
Exhibit Number
2. (a) Agreement and Plan of Merger dated November 14, 1996. (F)
3. (a) Certificate of Incorporation.
(b) Bylaws.
4. (a) Specimen stock certificate.
(b) The Company agrees to furnish to the Commission, upon request,
instruments relating to the long term debt of the Company or its
subsidiaries.
10. (a) Form of Shareholders' agreement between Clayton Homes, Inc. and
Progressive Partners. (A)
2
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(b) Lease Agreement, dated June 29, 1972, as amended, between Clayton
Homes, Inc. and Dean Planters warehouse, Inc. (A) (subsequently
assigned to CLF, a limited partnership which includes a related
party).
(c) Clayton Homes, Inc. 1983 Stock Option Plan. (A)
(d) Clayton Homes, Inc. 1985 Stock Option Plan. (B)
(e) 1991 employee Stock Incentive Plan. (C)
(f) Directors' Equity Plan. (C)
(g) Directors' Equity Plan. (D)
(h) Directors' Equity Plan. (E)
(i) 1996 Outside Directors' Equity Plan. (F)
(j) Description of Clayton Homes, Inc. bonus arrangement for key
executives. (E)
22. List of Subsidiaries of the Registrant. (G)
28. Proxy Statement for 1996 Annual Meeting (F)
(A) Filed as Exhibits to Registration statement on Form S-1 (SEC File No.
2-83705) and incorporated herein by reference thereto.
(B) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders held November 4, 1985, and incorporated herein by reference
thereto.
(C) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders held November 12, 1991, and incorporated herein by reference
thereto.
(D) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders held November 11, 1992, and incorporated herein by reference
thereto.
(E) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders to be held November 10, 1993, and incorporated herein by
reference thereto.
(F) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders to be held November 14, 1996, and incorporated herein by
reference thereto.
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(G) Filed with the Company's Annual Report on Form 10-K for the year ended June
30, 1996, and incorporated herein by reference thereto.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
CLAYTON HOMES, INC.
Date: March 25, 1997 By: /s/Joseph H. Stegmayer
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Title:President
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INDEX TO EXHIBITS
Exhibit Number
2. (a) Agreement and Plan of Merger dated November 14, 1996. (F)
3. (a) Certificate of Incorporation.
(b) Bylaws.
4. (a) Specimen stock certificate.
(b) The Company agrees to furnish to the Commission, upon request,
instruments relating to the long term debt of the Company or its
subsidiaries.
10. (a) Form of Shareholders' agreement between Clayton Homes, Inc. and
Progressive Partners. (A)
(b) Lease Agreement, dated June 29, 1972, as amended, between Clayton
Homes, Inc. and Dean Planters warehouse, Inc. (A) (subsequently
assigned to CLF, a limited partnership which includes a related
party).
(c) Clayton Homes, Inc. 1983 Stock Option Plan. (A)
(d) Clayton Homes, Inc. 1985 Stock Option Plan. (B)
(e) 1991 employee Stock Incentive Plan. (C)
(f) Directors' Equity Plan. (C)
(g) Directors' Equity Plan. (D)
(h) Directors' Equity Plan. (E)
(i) 1996 Outside Directors' Equity Plan. (F)
(j) Description of Clayton Homes, Inc. bonus arrangement for key
executives. (E)
22. List of Subsidiaries of the Registrant. (G)
28. Proxy Statement for 1996 Annual Meeting (F)
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(A) Filed as Exhibits to Registration statement on Form S-1 (SEC File No.
2-83705) and incorporated herein by reference thereto.
(B) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders held November 4, 1985, and incorporated herein by reference
thereto.
(C) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders held November 12, 1991, and incorporated herein by reference
thereto.
(D) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders held November 11, 1992, and incorporated herein by reference
thereto.
(E) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders to be held November 10, 1993, and incorporated herein by
reference thereto.
(F) Filed with the Company's Proxy Statement for the Annual Meeting of
Shareholders to be held November 14, 1996, and incorporated herein by
reference thereto.
(G) Filed with the Company's Annual Report on Form 10-K for the year ended June
30, 1996, and incorporated herein by reference thereto.
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Exhibit 3(a)
STATE OF DELAWARE
CERTIFICATE OF INCORPORATION
OF
CLAYTON HOMES OF DELAWARE, INC.
1. The name of the Corporation is Clayton Homes of Delaware, Inc.
2. The name of the registered agent and the address of the Corporation's
registered office in the State of Delaware shall be: Delaware Corporate
Management, 1105 North Market Street, Suite 1300, Wilmington, Delaware 19899.
3. The purpose for which the Corporation is organized, either directly or
indirectly through subsidiaries, is: to take, purchase, exchange, lease, or
otherwise acquire vehicles including but not limited to mobile homes,
automobiles, trucks, motorcycles, trailers, and any interest or right therein;
to hold, own, operate, control, maintain, manage, sell, and develop these
interests, and to improve for purposes of sale, lease, or otherwise and to do
and perform all things needful and lawful for their development for residence,
trade, and business; to construct, maintain, alter, manage and control directly
or through ownership of stock in any other corporation and through ownership or
control of any and all kinds of buildings, stores, offices, warehouses, mills,
shops, factories, machinery and plants, and any and all other structures and
erections which may at any time be necessary, useful or advantageous for the
purpose of this corporation; to manufacture, produce, purchase, lease, rent,
repair, finance, or otherwise acquire, trade, sell, distribute, disburse,
dispose of, import, export, service or in any manner to deal in and with,
whether as principal or agent, vehicles of all types and descriptions, including
but not limited to mobile homes, automobiles, trucks, motorcycles and trailers
and all accessories and parts related thereto, and to offer, engage in, and make
available all and every type of financing and insurance services, whether
principal or agent as well as goods, wares, merchandise, furnishings, furniture,
appliances, and services of any and every description, properties, securities,
certificates of indebtedness, and materials and personal property of every kind
and description, whether now known or hereafter to be discovered or invented, so
long as such activity shall be lawful in the place in which it is performed;
said corporation shall, in addition, have the power to purchase, sell, and
otherwise deal in its own stock, to lend money to other corporations and
individuals and to mortgage, encumber, and pledge any or all of the real or
personal property or other assets of the corporation, to act as agent for any
other corporation, partnership, or individual, and to carry on any lawful
business purpose connected with these powers; to establish, own and conduct
separate or branch establishments for all of its lawful business in places other
than the principal office of the corporation in this State or elsewhere.
4. The maximum number of shares which the Corporation shall have the
authority to issue is:
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(a) TWO HUNDRED MILLION (200,000,000) shares of common stock, $.10
par value.
5. The name and address of the Incorporator is Brett N. Blackwood, 623
Market Street, 8th Floor, Knoxville, Tennessee 37902.
6. The powers of the Incorporator will terminate upon filing of this
certificate.
7. (a) The Corporation's Board of Directors shall be composed of the
following directors until such time as their successors are elected: James L.
Clayton, Joseph H. Stegmayer, B. Joe Clayton, C. Warren Neal, Dan W. Evins,
James D. Cockman, Wallace C. Doud and Wilma H. Jordan.
(b) The address for each of the Corporation's Directors is 623 Market
Street, 8th Floor, Knoxville, Tennessee 37902.
8. No shareholder shall be entitled to preemptive rights with respect to
any shares of capital stock issued by the Corporation.
9. (a) The Board of Directors may take, on written consent without a
meeting, any action which it could take by means of a regularly called and held
meeting, provided that such written consent sets forth the action so taken and
is signed by all the directors.
(b) The Board of Directors is expressly authorized to:
(i) Adopt, amend or repeal any of the Corporation's bylaws; and
(ii) Distribute to the shareholders of the Corporation, out of
its capital surplus, a portion of the Corporation's assets,
in cash or property, without the vote of the shareholders.
10. To the fullest extent permitted by the Delaware General Corporation Law
as is currently effective or may hereafter be amended from time to time, a
director of the Corporation shall not be liable to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director. If
after filing of this Certificate of Incorporation, the Delaware General
Corporation Law is amended or a successor statute is enacted further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law or any successor statute, as
so amended from time to time. Any repeal or modification of this paragraph 10 by
the shareholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification or with respect to events occurring prior to such time.
11. The duration of the Corporation is perpetual.
12. The Corporation shall have all of the powers, privileges, and
authorities, which are not contrary to the laws and constitution of the State of
Delaware or the United States, which are
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necessary, incidental or required for the conduct, development, or establishment
of the business, or the regulation, extension, dissolution, or termination of
its affairs or existence.
I, the undersigned, being the sole incorporator hereinbefore named, for the
purpose of forming this corporation pursuant to the Delaware General Corporation
Law, do hereby declare and certify that this is my act and that the facts stated
are true and correct and facts be reinstated and accordingly have set forth my
hand this 19th day of December, 1996.
Brett N. Blackwood
Incorporator
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Exhibit 3(b)
BYLAWS
OF
CLAYTON HOMES, INC.
OFFICE
1. The principal office of the Corporation shall be in Delaware, and the
Corporation shall have such other offices at such other places within or without
the State of Delaware as the Board of Directors may from time to time determine
or as the business of the Corporation may require.
SHAREHOLDERS' MEETINGS
2. ANNUAL MEETING.
An annual meeting of the shareholders of the Corporation shall be held on
such date as may be determined by the Board of Directors. The business to be
transacted at such meeting shall be the election of directors and such other
business as shall be properly brought before the meeting. If the election of
directors shall not be held on the day designated by the Board of Directors for
any annual meeting, or at any adjournment of such meeting, the Board of
Directors shall call a special meeting of the shareholders as soon as
conveniently possible thereafter. At such special meeting the election of
directors shall take place and such election and any other business transacted
thereat shall have the same force and effect as if transacted at an annual
meeting duly called and held.
3. SPECIAL MEETING.
Special meetings of the shareholders, unless otherwise required by law, may
be called at any time by the Chairman, President or Secretary and shall be
called by the Chairman President or Secretary at the request in writing of a
majority of the Board of Directors or of shareholders owning 10% or more of the
entire capital stock of the Corporation issued and outstanding and entitled to
vote at such meeting. Such request must state the purpose or purposes for which
the meeting is called and the person or persons calling the meeting.
4. PLACE OF MEETING.
Annual and special meetings of the shareholders shall be held at the
Corporation's principal office or at such other place within or without the
State of Delaware as may be designated by the Board of Directors.
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5. NOTICE OF MEETINGS; WAIVER.
(a) ANNUAL MEETINGS. Written or printed notice stating the place, day and
hour of the annual meeting of shareholders shall be given in person or by mail
to each shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be delivered not less than ten (10) days nor more than sixty (60)
days before the meeting. Mailed notice shall be deemed to be delivered when
deposited, with postage prepaid, in the United States mail addressed to the
shareholder at his address as it appears on the records of the Corporation at
the close of business on the record date established for such meeting. If
delivered personally, such notice shall be delivered not less than five (5) nor
more than sixty (60) days before the date of the meeting and shall be deemed
delivered when actually received by the shareholder.
(b) SPECIAL MEETINGS. Written or printed notice of every special meeting of
shareholders shall be given in person or by mail to each shareholder of record
entitled to vote at such meeting. Such notice shall state the place, day, hour,
purpose or purposes for which the meeting is called, and the person or persons
calling the meeting. If mailed, such notice shall be delivered not less than ten
(10) days nor more than sixty (60) days before the meeting. Mailed notice shall
be deemed to be delivered when deposited, postage prepaid, in the United States
mail addressed to the shareholder at his address as it appears on the records of
the Corporation at the close of business on the record date established for such
meeting. If delivered personally, such notice shall be delivered not less than
five (5) nor more than sixty (60) days before the date of the meeting and shall
be deemed delivered when actually received by the shareholder.
(c) WAIVER. A shareholder may waive the notice of either an annual or a
special meeting by the submission by the shareholder or his proxy holder of a
written waiver of notice either before or after such meeting.
6. QUORUM.
Except as otherwise required by law or provided in these Bylaws, a quorum
at any meeting of shareholders shall consist of the holders of record of a
majority of the shares issued and outstanding and entitled to vote thereat,
present in person of by proxy. If, however, such majority shall not be present
or represented at any meeting of the shareholders, the shareholders present in
person or by proxy and entitled to vote thereat shall have power to adjourn the
meeting from time to time, and to any other place, without notice other than
announcement at the meeting of the time and place to which the meeting is
adjourned. At any adjourned meeting at which the requisite amount of voting
stock to constitute a quorum shall be represented, any business may be
transacted which might have been transacted at the meeting as originally called.
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7. RECORD DATE.
The record date for the determination of shareholders entitled to notice of
and entitled to vote at any meeting of shareholders or any adjournment thereof,
shall be such date as shall be determined by the Board of Directors, but which
in any event shall not be less than ten (10) days prior to the date of such
meeting. If the Board of Directors does not fix such record date, the record
date for the determination of shareholders entitled to notice of and entitled to
vote at any meeting of shareholders or any adjournment thereof shall be the
close business on the day next preceding the day on which notice is given.
8. VOTING OF SHARES.
Unless otherwise provided in the Charter, each shareholder of the
Corporation shall be entitled, at each meeting of the shareholders and upon each
proposal presented at such meeting, to one vote of each share of the capital
stock having voting power registered in his name on the books of the Corporation
on the record date. Each shareholder having the right to vote shall be entitled
to vote in person or by proxy appointed by an instrument in writing executed by
such shareholder or his duly authorized attorney-in-fact and bearing a date not
more than eleven (11) months prior to said meeting, unless said instrument
provides for a longer period. Unless the Charter, these bylaws or applicable law
specifically provide otherwise, the affirmative vote at a meeting at which a
quorum is present shall be the act of the shareholders, except that directors
shall be elected by plurality of the votes cast in the election. At each
election of directors, every shareholder shall have the right to vote the number
of shares which he is entitled to vote at such meeting for as many persons as
there are directors to be elected at said meeting, but cumulative voting for
such nominees shall not be permitted unless the Charter otherwise provides.
9. PRESIDING OFFICERS.
Meetings of the shareholders shall be presided over by the Chairman, or if
he is not present, by the President, or if he is not present, by a Vice
President, or if neither the Chairman, President, nor a Vice President is
present, by a chairman to be chosen by a majority of the shareholders entitled
to vote at such meeting. The Secretary of the Corporation or, in his absence, an
Assistant Secretary shall act as secretary of every meeting, but if neither the
Secretary nor an Assistant Secretary is present, the shareholders entitled to
vote at such meeting shall choose any person present to act as secretary of the
meeting.
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DIRECTORS
10. POWERS AND DUTIES.
The business and affairs of the Corporation shall be managed by the Board
of Directors. In addition to the powers and authority expressly conferred upon
them by these Bylaws, the Board may exercise all the powers of the Corporation
and do lawful acts and things as are applicable law, by the Charter of the
corporation or by these Bylaws directed or required to be exercised or done by
the shareholders.
11. NUMBER, TERM, QUALIFICATIONS AND VACANCIES.
(a) NUMBER. The Board of Directors shall consist of not less than three (3)
nor more than eight (8) members, unless all of the outstanding stock of the
Corporation is owned of record by less than (3) three shareholders, in which
case the number of directors may be less than (3), but not less than the number
of directors of record. Subject to the provisions of paragraph 11(b), the exact
number within such maximum and minimum numbers shall be determined from time to
time by resolution adopted by a majority of the entire Board of Directors.
Except as hereinafter provided, directors shall be elected at the first meeting
of shareholders and each director shall serve a term not to exceed three (3)
years and until his successor shall be elected and qualified.
(b) INCREASE IN NUMBER. The number of members of the Board of Directors may
be increased from time to time by either the directors or the shareholders. The
number of directors may be increased by the Board of Directors upon the
affirmative vote of a majority of the Board. If the number of directors is
increased by the Board, a vacancy or vacancies caused by such increase shall be
filled by the vote of a majority of the directors than in office although less
than a quorum exists. The number of directors may also be increased by the
shareholders at any meeting thereof by a majority vote of the shares represented
and entitled to vote. If the number of directors be increased by action of the
shareholders, a vacancy or vacancies caused by such increase shall be filled by
the shareholders in the same manner as at an annual meeting. Directors elected
to fill vacancies caused by increase in number of members of the Board shall
hold office until the next annual meeting of the shareholders and thereafter
until their successors are elected and qualified.
(c) DECREASE IN NUMBERS. The number of members of the Board of Directors
may be decreased by either the directors or the shareholders at any time there
is an unfilled vacancy of there are unfilled vacancies on the Board of
Directors, provided that the number of members may be decreased only to the
extent of the number of vacancies on the Board of Directors existing at that
time. If the number of directors is decreased by the Board, such action shall be
taken by the vote of a majority of the directors then in office although less
than a quorum exists. If the number of directors is decreased by the
shareholders, such action shall be taken by a majority vote of the shares
represented at any meeting and entitled to vote thereat.
(d) VACANCIES. In case there are vacancies on the Board of Directors, other
than vacancies created by the removal of a director of a director or directors
(which shall be governed by paragraph 1 5(c)) and other than vacancies created
by an increase in the number of directors
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(which shall be governed by paragraph 11 (b)), the remaining directors may by a
majority vote of the directors then in office elect a successor or successors
who hold office until the next annual meeting of shareholders and until his or
their successors are elected and qualified.
(e) QUALIFICATION. Directors need not be shareholders of the Corporation or
residents of Delaware, but must be of legal age.
12. QUORUM.
A majority of the total number of directors in office shall constitute a
quorum for the transaction of business. If, at any meeting of the Board of
Directors, there shall be less than a quorum present, a majority of those
present may adjourn the meeting, without further notice, from time to time until
a quorum shall have been obtained.
13. MANNER OF ACTING.
The act of a majority of the directors present at a meeting at which a
quorum is present shall, unless otherwise provided by applicable law or these
Bylaws, be the act of the Board of Directors. Any action required or permitted
to be taken at a meeting of the directors may be taken without a meeting if a
consent in writing, setting forth the action so taken, is signed by all the
directors. Such written consent shall have the same force and effect as a
unanimous vote at a meeting of the Board of Directors.
14. MEETINGS; NOTICE.
Meetings of the Board of Directors may be held either within or without the
State of Delaware. Notice of a meeting of the Board of Directors need not state
the purpose of, nor the business to be transacted at, such meeting.
(a) REGULAR MEETINGS. Regular meetings of the Board of Directors shall be
held at such times as are fixed from time to time by resolution of the Board,
and may be held without notice of the time or place therefor.
(b) SPECIAL MEETING. Special meetings may be held at any time upon call of
the Chairman, the President or a Vice President. Notice of the time and place of
each special meeting shall be given to each director at either his business or
residence address, as shown by the records of the Corporation, at least
forty-eight (48) hours prior thereto if mailed and on the day prior thereto if
delivered or given in person or by telephone or telegraph. If mailed, such
notice shall be deemed to be delivered when deposited, so addressed and with
postage prepaid, in the United States mail. If notice is given by telegram, such
notice shall be deemed to be delivered when the telegram, so addressed, is
delivered to the telegraph company. If notice is given in person, such notice
shall be deemed to have been given when it is hand delivered to the director at
his business or residence address. Any director may waive notice of any meeting
before, at or after such meeting and the attendance of a director at a meeting
shall constitute a waiver of notice of such meeting except when a director
attends for the sole express purpose of objecting to the
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transaction of business thereat, on the ground that the meeting is not lawfully
called or convened, and so states in writing prior to the conduct at any
business at the meeting.
15. REMOVAL.
(a) BY SHAREHOLDERS. Unless the Charter otherwise provides, at any meeting
of the shareholders, the entire Board of Directors or any number of directors
may be removed from office with or without cause, by a majority vote of the
shares represented and entitled to vote thereat.
(b) BY DIRECTIORS. At any meeting of the Board of Directors, any director
or directors may be remove from office for cause, as that term is defined by
applicable law, by a majority of the entire Board of Directors.
(c) REPLACEMENT. When any director or directors are removed, new directors
may be elected to fill the vacancies created thereby at the same meeting of the
shareholders or Board of Directors. as the case may be, for the unexpired term
or terms of the director or directors removed by them, such unexpired terms
shall be considered vacancies on the Board to be filled by the remaining
directors as provided in paragraph 11(d).
16. COMPENSATION.
Directors, and members of any committee of the Board of Directors, shall be
entitled to such reasonable compensation for their service as directors and
members of any such committee as shall be fixed from time to time by resolution
of the Board of Directors, and shall also be entitled to reimbursement for any
reasonable expenses incurred in attending such meetings. Any director receiving
compensation under these provisions shall not be barred from serving the
Corporation in any other capacity and receiving reasonable compensation for such
other services.
COMMITTEES
17. EXECUTIVE COMMITTEE.
There may be, if so determined by a resolution adopted by a majority of
the entire Board of Directors, an Executive Committee of the Board consisting of
two (2) or more directors. The Board of Directors may delegate to such Executive
committee all power and authority of the board that it deems desirable, except
for any matters which cannot by law be delegated by the Board of Directors.
Unless specifically authorized by the Board, the Executive Committee shall not
have the power to adopt, amend, or repeal these Bylaws, to submit to
shareholders any matter that by law requires their authorization, to fill
vacancies in the Board of Directors or in any committee or to declare dividends
or the make other corporate distributions.
18. OTHER COMMITTEES.
The Board of Directors may create such other committee as if may determine
to be helpful in discharging its responsibilities for the management and
administration of the Corporation. Each
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such committee shall consist of such persons, whether directors, officers of
others, as may be elected thereto by the Board of Directors, and each committee
shall perform such functions as may be lawfully assigned to it by the Board of
Directors.
OFFICERS
19. NUMBER.
The officers of the Corporation shall be a chairman, a President, a
Secretary and such other officers as may be from time to time elected by the
Board of Directors. One person may hold more than one office except the
President may not hold the office of secretary.
20. ELECTION AND TERM OF OFFICE.
The principal officers shall be elected annually by the Board of Directors
at the first meeting of the Board following the shareholders' annual meeting, or
as soon thereafter as is conveniently possible. Subordinate officers may be
elected from time to time. Each officer shall serve at the pleasure of the Board
for such term as the Board of Directors may set and until his successor shall
have been elected and qualified, or until his death, resignation or removal.
21. REMOVAL.
Any officer may be removed from office by the Board of Directors whenever
in its judgment the best interests of the Corporation will be served thereby,
but such removal shall not prejudice the contract rights, if any, of the persons
so removed.
22. VACANCIES.
Any vacancy in an office from any cause may be filled for the unexpired
portion of the term of the Board of Directors.
23. DUTIES.
(a) CHAIRMAN. The Chairman shall preside at all meetings of the
shareholders and the Board of Directors, shall be the Chief Executive Officer if
the Corporation, and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
(b) PRESIDENT. The President shall be the Chief Operating Officer of the
Corporation and shall have general supervision over the active management of the
business of the Corporation. He shall have the general powers and duties of
supervision and management usually vested in the office of the President of a
Corporation and shall perform such other duties as the Board of Directors may
form time to time prescribe.
(c) VICE PRESIDENT. The Vice President or Vice Presidents (if any) shall be
active executive officers of the Corporation, shall assist the Chairman and the
President in the active
<PAGE> 8
management of the business, and shall perform such other duties as the Board of
directors may form time to time prescribe.
(d) SECRETARY. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the shareholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose; he shall
perform like duties foe any committee when required. The Secretary shall give,
or cause to be given, notice of all meetings of the shareholders and of the
Board of Directors when required, and unless directed otherwise by the Board of
Directors, shall keep a stock record containing the names of all persons who are
shareholders of the Corporation, showing their place of residence and the number
of shares held by them respectively. the Secretary shall perform such other
duties as may be prescribe from time to time by the Board of Directors.
(e) TREASURER. The Treasurer shall have the custody of the Corporation's
funds and securities, shall keep or cause to be kept full and accurate account
of receipts and disbursements in books belonging to the Corporation, and shall
deposit or cause to be deposited all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse or cause to
be disbursed the funds of the Corporation as require in the ordinary course of
business or as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the Chairman, the President and directors at
the regular meetings of the Board, or whenever they may require it, and account
of all of his transactions as Treasurer and the financial condition of the
Corporation. He shall perform such other duties as may be incident to his office
or as prescribed from time to time by the Board of Directors. The Treasurer
shall give the Corporation a bond, if required by the Board of Directors; in a
sum and with one or more sureties satisfactory to the Board for the faithful
performance of the duties of his office and for the restoration to the
Corporation in case of his death, resignation, retirement, or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
(f) OTHER OFFICERS. Other officers appointed by the Board of Directors
shall exercise such powers and perform such duties as may be delegated to them.
(g) DELEGATION OF DUTIES. In case of the absence of disability of any
officer of the Corporation or of any person authorized to act in his place, the
Board of Directors may from time to time delegate the powers and duties of such
officer to any officer, or any director, or any other person whom it may select,
during such period of absence or disability.
24. INDEMNIFICATION.
(a) Third Party Actions. 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, suit, or proceeding, whether civil, criminal, administrative,
or investigative, including all appeals (other than an action, suit or
proceeding by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, or employee of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, or employee of
another Corporation, partnership,
<PAGE> 9
joint venture, trust, or other enterprise, against expenses (including
attorney's fees), judgments decrees, fines, penalties, 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 which 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 of 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) DERIVATIVE ACTIONS. 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, including all appeals, 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, or employee of the Corporation, or is or was serving
at the request of the Corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorney's 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, except that no
indemnification shall be made with respect of any claim, issue or matter as to
which such person shall have been finally adjudged to be liable to the
Corporation unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as such court
shall deem proper.
(c) IMPROPER PERSONAL BENEFIT. The Corporation may not indemnify a director
in connection with any proceeding charging improper personal benefit to him,
whether or not involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly received by
him; provided, however, that the provision of Subsection (f) hereof shall be
applicable prior to any adjudications.
(d) RIGHTS AFTER SUCCESFUL DEFENSE. To the extent that a director, officer
or employee has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in Subsection (a) or (b), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorney's fees) actually and reasonably incurred by him in
connection therewith.
(e) OTHER DETERMINATION OF RIGHTS. Except in a situation governed by
Subsection (c), any indemnification under Subsection (a) or (b) (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, or
employee is proper in the circumstances because he has met the applicable
standard of conduct set forth in Subsection (a) or (b). Such determination shall
be made (a) by a majority vote consisting of directors acting at a meeting at
which a quorum consisting of directors who were not parties to such action, suit
or proceeding is present, or (b) if such a quorum is not obtainable (or even if
obtainable), and a majority of disinterested directors so
<PAGE> 10
directs, by independent counsel (compensated by the Corporation) in a written
opinion, or (c) by the affirmative vote in person or by proxy of the holders of
a majority of the shares entitled to vote in the election of directors, without
regard to voting power which may thereafter exist upon default, failure, or
other contingency.
(f) ADVANCES OF EXPENSE. Expenses, including attorney fees, of each person
indemnified hereunder incurred in defending a civil, criminal, administrative,
or investigative action, suit, or proceeding (including all appeals), 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,
whether a disinterested quorum exists or not, upon receipt of an undertaking by
or on behalf of the director, officer, or employee, to repay such expenses in
accordance with the terms of and agreement between the Corporation and such
director, officer or employee.
(g) NONEXLUSIVENESS; HEIRS. The indemnification provided by this Article
shall not be deemed exclusive of any rights to which those seeking
indemnification may be entitled as a matter of law or under the Articles, these
Regulations, any agreement, vote of shareholders, any insurance purchased by the
Corporation, of otherwise, both as to action in his official capacity and as to
action in another capacity while holding office, and shall continue as to a
person, who has ceased to be director, officer, or employee and shall inure to
the benefit of the heirs, executors, and administrators of such person.
(h) PURCHASE OF INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, or employee
of the Corporation, or is or was serving at the request of the Corporation, as a
director, officer, or employee of another corporation, partnership, joint
venture, trust, of 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 these Articles or of the Delaware
Business Corporation Act.
(i) MACULINE AND FEMININE, SINGULAR AND PLURAL. In construing the test of
the Agreement, the masculine shall include the feminine and the singular shall
include the plural, and the plural the singular wherever the context shall
plainly so require.
CERTIFICATES FOR SHARES OF STOCK
25. FORM.
(a) STOCK CERTIFICATES. The interest of each shareholder of the Corporation
shall be evidenced by a certificate or certificates for shares of stock. The
certificate include the following on its face: (i) the Corporation's name, (ii)
the fact that the Corporation is organized under the laws of the State of
Delaware, (iii) the name of the owner of the shares represented thereby, (iv)
the number of shares represented thereby, (v) the class of shares and the
designation of the series, if any, which the certificate represents, (vi) the
par value of each share or a statement that the shares are without par value,
and (vii) such other information as applicable law may require or as may be
lawful.
<PAGE> 11
(b) SIGNATURES. The certificates for stock shall be signed by the Chairman,
the President or a Vice President, and by the Secretary, an Assistant Secretary,
the Treasurer, or an Assistant Treasurer. Where any certificate is manually
countersigned by a transfer agent or registered by a registrar who is not an
officer or employee of the Corporation, the signatures of the Chairman,
President, Vice President, Secretary, Assistant Secretary, and/or Treasurer upon
such certificate may be a facsimiles, engraved or printed. In case any officer
who has signed, or whose facsimile signature has been place upon, any
certificate shall have ceased to be such before the certificate is issued, it
may be issued by the Corporation with the same effect as if such officer had not
ceased to be such at the time of its issue.
26. SUBSCRIPTION FOR SHARES.
Subscriptions for shares of the Corporation shall be valid only if they are
in writing, signed and delivered by the subscriber. Unless the subscription
agreement provides otherwise, subscriptions for shares, regardless of the time
when they are made, shall be paid in full at such time, or in such installments
and at such periods, as shall be determined by the Board of Directors. All calls
for payments on subscriptions shall be uniform as to all shares of the same
class or of the same series.
27. TRANSFERS.
Transfers of shares of the capital stock of the Corporation shall be made
only on the books of the Corporation by (i) the holder of record thereof, (ii)
by his legal representative, who shall furnish proper evidence of authority to
transfer, or (iii) his attorney, authorized by power of attorney duly executed
and filed with the Secretary of the Corporation or duly appointed transfer
agent. Such transfers shall be made only upon surrender of the certificate or
certificates for such shares properly endorsed and with all taxes thereon paid.
28. LOST. DESTROYED, OR STOLEN CERTIFICATES.
No certificate for shares of stock of the Corporation shall be issued in
place of any certificate alleged to have been lost, destroyed, or stolen except
on production of evidence, satisfactory to the Board of Directors, of such loss,
destruction or theft, and, if the Board of Directors so requires, upon the
furnishing of an indemnity bond in such amount (but not to exceed twice the
value of the shares represented by the certificate) and with such terms and such
surety as the Board of Directors may in its discretion require.
CORPORATE ACTIONS
29. CONTACTS.
Unless otherwise required by the Board of Directors, the Chairman, the
President or any Vice President shall execute contracts or other instruments on
behalf of and in the name of the Corporation. The Board of Directors may from
time to time authorize any other officer or officers or agent or agents to enter
into any contract or execute any instrument in the name of and on
<PAGE> 12
behalf of the Corporation as it may deem appropriate, and such authority may be
general of confined to specific instances.
30. LOANS.
No loans shall be contracted on behalf of the Corporation and no evidence
of indebtedness shall be issued in its name unless authorized by the Chairman,
the President or the Board of Directors. Such authority may be general of
confined to specific instances.
31. CHECKS. DRAFTS, ETC.
Unless otherwise required by the Board of Directors, all checks, drafts,
bills of exchange and other negotiable instruments of the Corporation shall be
signed by either the Chairman, the President, a Vice President or such other
officer or agent of the Corporation as may be authorized so to do by the Board
of Directors. Such authority may be general of confined to specific business,
and, if so directed by the Board, the signatures of two or more such officers
may be required.
32. DEPOSITS.
All funds of the Company not otherwise employed shall be deposited from
time to time to the credit of the Corporation in such banks or other
depositories as the Board of Directors may authorize.
33. VOTING SECURITIES HELD BY THE CORPORATION.
Unless otherwise required by the Board of Directors, the Chairman or the
President shall have full power and authority on behalf of the Corporation to
attend any meeting as a security holder, of the corporations in which the
Corporation may hold securities. In connection therewith the Chairman or the
President shall possess and may exercise any and all rights and powers incident
to the ownership of such securities which the Corporation possesses. The Board
of Directors may, from time to time, confer like powers upon any person or
persons.
34. DIVIDENDS.
The Board of Directors may, from time to time, declare, and the Corporation
may pay, dividends on its outstanding shares of capital stock in the manner and
terms and conditions provided by applicable law. The record date for the
determination of shareholders entitled to receive the payment of any dividend
shall be determined by the Board of Directors, but which in any event shall not
be less than ten (10) days prior to the date of such payment.
FISCAL YEAR
35. The fiscal year of the Corporation shall be determined by the Board of
Directors, and in the absence of such determination, shall be the calendar year.
<PAGE> 13
CORPORATE SEAL
36. The Corporation shall have a corporate seal, which seal shall have the
Letters CHI in the middle and the words Clayton Homes, Inc. on the border.
AMENDMENT OF BYLAWS
37. These Bylaws may be altered, amended or repealed, and new Bylaws may be
adopted at any meeting of the shareholders by the affirmative vote of a majority
of the stock represented at such meeting, or by the affirmative vote of a
majority of the members of the Board of Directors who are present at any regular
or special meeting; provided, however, that any amendment to these Bylaws
changing the number of directors, if adopted by the Board of Directors, shall
require the affirmative vote of a majority of the members of the entire Board of
Directors.
<PAGE> 1
Exhibit 4(a)
Specimen Stock Certificate
COMMON STOCK
PAR VALUE
$.10 PER SHARE
Incorporated under the laws of the State of Delaware
CLAYTON HOMES, INC. CUSIP 184190 10 6
See Reverse Side for Certain Definitions
This Certificate is transferable in New York, NY, Nashville, TN, or Atlanta, GA.
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Clayton Homes, Inc. transferable on the books of the Corporation by the holder
hereof in person or by duly authorized Attorney upon surrender of this
certificate properly endorsed. This Certificate is not valid until countersigned
by the Transfer Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
Countersigned and Registered
SunTrust Bank, Nashville, N.A.
Transfer Agent
and Registrar
By /s/ Joseph H. Stegmayer
President
/s/ Kevin J. Clayton
Authorized Signature Secretary
<PAGE> 2
CLAYTON HOMES, INC.
The Corporation will furnish without charge to each who so requests a copy
of the statement of the rights, preferences, privileges and restrictions granted
to or imposed upon each class or series of shares authorized to be issued and
upon the holders thereof. Such request may be directed to the Secretary of the
Corporation at its principal office in the City of Knoxville, Tennessee.
The Board of Directors of the Corporation has authority to fix or alter the
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), redemption price or
prices and liquidation preferences of any wholly unissued series of preferred
stock of the Corporation, the number of shares constituting such series, and the
designation of such series. The following abbreviations, when used in the
inscription on the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
..............Custodian...............
TEN ENT - as tenants by the entireties (Cust)
(Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to
Minors
survivorship and not as tenants Act...................
in common (State)
COM PROP - as community property UNIF TRF MIN ACT -
.........Custodian (until age........)
(Cust)
under Uniform
Transfers
(Minor)
to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _______________________ hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
<PAGE> 3
- -----------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Shares
- ----------------------------------------------------------------------
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
- --------------------------------------------------------------------
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated,
---------------------------
X
------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
- --------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
