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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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): May 30, 1996
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BEAZER HOMES USA, INC.
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(Exact Name of Registrant as specified in its charter)
DELAWARE 001-12822 58-2086934
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(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
5775 PEACHTREE DUNWOODY ROAD, SUITE C-550, ATLANTA, GEORGIA 30342
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (404) 205-3420
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NOT APPLICABLE
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(Former name or former address, if changed since last report)
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Item 5. Other Events
On May 30, 1996 the Board of Directors of Beazer Homes USA, Inc. (the
"Registrant") amended the by-laws of the Registrant. See Exhibits 3.1 and 3.2
attached hereto.
Item 7. Exhibits.
3.1 Amended and Restated By-laws of Beazer Homes USA, Inc. dated as
of December 31, 1994
3.2 Amendments to Amended and Restated By-laws of Beazer Homes USA,
Inc. dated as of May 30, 1996.
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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 hereunto duly authorized.
BEAZER HOMES USA, INC.
By: /s/ Ian J. McCarthy
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Name: Ian J. McCarthy
Title: President, CEO
Date: May 31, 1996
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EXHIBIT INDEX
Sequentially
Exhibit Numbered
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No. Description Page
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3.1 Amended and Restated By-laws of Beazer Homes USA, Inc. dated as of
December 31, 1994.
3.2 Amendments to Amended and Restated By-laws of Beazer Homes USA, Inc.
dated as of May 30, 1996.
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EXHIBIT 3.1
AMENDED AND RESTATED BY-LAWS
OF
BEAZER HOMES USA, INC.
(a Delaware corporation)
December 1994 Revisions
ARTICLE I
STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. (a) All meetings of the stockholders
for the election of directors shall be held in the County of New Castle, State
of Delaware, at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. Meetings of Stockholders for any other purpose may
be held at such time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
(b) Annual meetings of Stockholders shall be held on such date and at
such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a Board of Directors, and transact such other business as may properly be
brought before the meeting.
(c) Written notice of the annual meeting stating the place, date, and
hour of the meeting shall be given to each Stockholder entitled to vote at such
meeting not less than ten days nor more than sixty days prior to the date of the
meeting.
(d) The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten days before every meeting of Stockholders,
a complete list of the Stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each Stockholder and the number
of shares registered in the name of each Stockholder. Such list shall be open
to the examination of any Stockholder, for any purpose germane to
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the meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any Stockholder who is present. The stock
ledger shall be the only evidence as to the Stockholders entitled to examine the
stock ledger, the list required by this section or the books of the Corporation,
or to vote in person or by proxy at any meeting of Stockholders.
SECTION 2. SPECIAL MEETINGS. (a) Special meetings of the
Stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation of the Corporation, may be called
by the President and shall be called by the President or Secretary at the
request in writing of a majority of the Board of Directors, or at the request in
writing of a Stockholder or Stockholders owning a majority in amount of the
entire capital stock of the Corporation issued and outstanding and entitled to
vote. Such request shall state the purpose or purposes of the proposed meeting.
(b) Written notice of a special meeting stating the place, date, and
hour of the meeting and, in general terms, the purpose or purposes for which the
meeting is called, shall be given not less than ten days nor more than sixty
days prior to the date of the meeting, to each Stockholder entitled to vote at
such meeting. Whenever the directors shall fail to fix such place, the meeting
shall be held at the principal executive offices of the Corporation.
(c) Business transacted at any special meeting of the Stockholders
shall be limited to the purpose or purposes stated in the notice.
SECTION 3. QUORUMS. (a) The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
Stockholders for the transaction of business except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum shall
not be present or represented at any meeting of the Stockholders, the
Stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than
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announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting, at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each Stockholder of record
entitled to vote at the meeting. When a quorum is once present it is not broken
by the subsequent withdrawal of any Stockholder.
(b) When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one on which by express provision of the Delaware General
Corporation Law, the Certificate of Incorporation or these By-laws, a different
vote is required in which case such express provision shall govern and control
the decision of such question.
SECTION 4. ORGANIZATION. Meetings of Stockholder shall be presided
over by the Chairman, if any, or if none or in the Chairman's absence the
President, if any, or if none or in the President's absence, by a Chairman to be
chosen by the Stockholders entitled to vote who are present in person or by
proxy at the meeting. The Secretary of the Corporation, or in the Secretary's
absence an Assistant Secretary, shall act as Secretary of every meeting, but if
neither the Secretary nor an Assistant Secretary is present, the presiding
officer of the meeting shall appoint any person present to act as Secretary of
the meeting.
SECTION 5. VOTING; PROXIES; REQUIRED VOTE. (a) At each meeting of
Stockholders, every Stockholder shall be entitled to vote in person or by proxy
appointed by an instrument in writing, subscribed by such Stockholder or by such
Stockholder's duly authorized attorney-in-fact (but no such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period), and, unless the Certificate of Incorporation provides otherwise,
shall have one vote for each share of stock entitled to vote registered in the
name of such Stockholder on the books of the Corporation on the applicable
record date fixed pursuant to these By-laws. At all elections of directors the
voting may but need not be by ballot and the affirmative vote of holders of a
plurality of the stock present in person or represented by proxy and
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entitled to vote on such election shall elect. Except as otherwise required by
law or the Certificate of Incorporation, any other action shall be authorized by
the affirmative vote of holders of a majority of the stock present in person or
represented by proxy and entitled to vote on such matter.
(b) Any action required or permitted to be taken at any meeting of
Stockholders may, except as otherwise required by law or the Certificate of
Incorporation, be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted, and the writing or writings are
filed with the permanent records of the Corporation. Prompt notice of the
taking of corporate action without a meeting by less than unanimous written
consent shall be given to those Stockholders who have not consented in writing.
(c) Where a separate vote by a class or classes is required, a
majority of the outstanding shares of such class or classes, present in person
or represented by proxy, shall constitute a quorum entitled to vote on the
matter and the affirmative vote of the majority of shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class, unless otherwise provided in the Corporation's Certificate of
Incorporation.
SECTION 6. The Board of Directors, in advance of any meeting, may,
but need not, appoint one or more inspectors of election to act at the meeting
or any adjournment thereof. If an inspector or inspectors are not so appointed,
the person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the Board of
Directors in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector, if any, before entering upon the discharge of his or
her duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors, if any, shall determine the number of shares of
stock outstanding and the voting power of each, the shares of stock represented
at the meeting, the existence of a quorum, and the validity and effect of
proxies, and shall
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receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all Stockholders. On request
of the person presiding at the meeting, the inspector or inspectors, if any,
shall make a report in writing of any challenge, question or matter determined
by such inspector or inspectors and execute a certificate of any fact found by
such inspector or inspectors.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business, property and affairs of the
Corporation shall be managed by, or under the direction of, the Board of
Directors.
SECTION 2. QUALIFICATION; NUMBER; TERM; REMUNERATION. (a) Each
director shall be at least 18 years of age. A director need not be a
Stockholder, a citizen of the United States, or a resident of the State of
Delaware. The number of directors constituting the entire Board shall be one or
such other number as may be fixed from time to time by the Board of Directors or
the Stockholders. One of the directors may be selected by the Board of
Directors to be its Chairman, who shall preside at meetings of the Stockholders
and the Board of Directors and shall have such other duties, if any, as may from
time to time be assigned by the Board of Directors. In the absence of formal
selection, the President of the Corporation shall serve as Chairman. The use of
the phrase "entire Board" herein refers to the total number of directors which
the Corporation would have if there were no vacancies.
(b) Directors who are elected at an annual meeting of Stockholders,
and directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of Stockholders
and until their successors are elected and qualified or until their earlier
resignation or removal.
(c) Directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of
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the Board of Directors or a stated salary for serving as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
Committees may be allowed like compensation for attending Committee meetings.
SECTION 3. QUORUM AND MANNER OF VOTING. Except as otherwise provided
by law, a majority of the entire Board of Directors shall constitute a quorum.
A majority of the directors present, whether or not a quorum is present, may
adjourn a meeting from time to time to another time and place without notice.
The vote of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors.
SECTION 4. PLACES OF MEETINGS. Meetings of the Board of Directors
may be held at any place within or without the State of Delaware, as may form
time to time be fixed by resolution of the Board of Directors, or as may be
specified in the notice of meeting.
SECTION 5. ANNUAL MEETING. Following the annual meeting of
Stockholders, the newly elected Board of Directors shall meet for the purpose of
the election of officers and the transaction of such other business as may
properly come before the meeting. Such meeting may be held without notice
immediately after the annual meeting of Stockholders at the same place at which
such Stockholders' meeting is held.
SECTION 6. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as the Board of Directors shall
from time to time by resolution determine.
SECTION 7. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, President,
or by a majority of the directors then in office.
SECTION 8. NOTICE OF MEETINGS. A notice of the place, date and time
and the purpose or purposes of each meeting of the Board of Directors shall be
given to each director by mailing the same at least two days before the meeting,
or by telephoning or faxing the same or by delivering the same personally not
later than the day before the day of the meeting.
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SECTION 9. ORGANIZATION. At all meetings of the Board of
Directors, the Chairman or in the Chairman's absence or inability to act, the
President, or in the President's absence, a Chairman chosen by the directors,
shall preside. The Secretary of the Corporation shall act as secretary at all
meetings of the Board of Directors when present, and, in the Secretary's
absence, the presiding officer may appoint any person to act as Secretary.
SECTION 10. RESIGNATION. Any director may resign at any time upon
written notice to the Corporation and such resignation shall take effect upon
receipt thereof by the President or Secretary, unless otherwise specified in the
resignation. Any or all of the directors may be removed, with or without cause,
by the holders of a majority of the shares of stock outstanding and entitled to
vote for the election of directors.
SECTION 11. VACANCIES. Unless otherwise provided in these By-Laws,
vacancies on the Board of Directors, whether caused by resignation, death,
disqualification, removal, an increase in the authorized number of directors or
otherwise, may be filled by the affirmative vote of a majority of the remaining
directors, although less than a quorum, or by a sole remaining director, or at a
special meeting of the Stockholders, by vote of the Stockholders required for
the election of directors generally.
SECTION 12. ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all directors consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board of Directors.
SECTION 13. ELECTRONIC COMMUNICATION. Any member or members of the
Board of Directors may participate in a meeting of the Board by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear and speak to each other.
ARTICLE III
COMMITTEES
SECTION 1. APPOINTMENT. The Board of Directors may, by resolution
passed by a majority of the whole board,
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designate one or more Committees, each Committee to consist of two or more of
the directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any Committee, who may replace any absent
or disqualified member at any meeting of the Committee. Any such Committee, to
the extent provided in the resolution, shall have and may exercise the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it. Such Committee or Committees shall have such name
or names as may be determined from time to time by resolution adopted by the
Board of Directors.
SECTION 2. PROCEDURES; QUORUM AND MANNER OF ACTING. Each Committee
shall fix its own rules of procedure, and shall meet where and as provided by
such rules or by resolution of the Board of Directors. Except as otherwise
provided by law, the presence of a majority of the then appointed members of a
Committee shall constitute a quorum for the transaction of business by that
Committee, and in every case where a quorum is present the affirmative vote of a
majority of the members of the Committee present shall be the act of the
Committee. Each Committee shall keep minutes of its proceedings, and actions
taken by a Committee shall be reported to the Board of Directors.
SECTION 3. ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at any meeting of any Committee by the Board of Directors
may be taken without a meeting if all the members of the Committee consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Committee.
SECTION 4. ELECTRONIC COMMUNICATION. Any member or members of a
Committee of the Board of Directors may participate in a meeting of a Committee
by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear and speak to each other.
SECTION 5. TERMINATION. In the event any person shall cease to be a
director of the Corporation, such person shall simultaneously therewith cease to
be a member of any Committee appointed by the Board of Directors.
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ARTICLE IV
OFFICERS
SECTION 1. ELECTION AND QUALIFICATIONS. The Board of Directors at
its first meeting held after each annual meeting of Stockholders shall elect the
officers of the Corporation, which shall include a President and a Secretary,
and may include, by election or appointment, one or more Vice-Presidents (any
one or more of whom may be given an additional designation of rank or function),
a Treasurer and such Assistant Secretaries, such Assistant Treasurers and such
other officers as the Board of Directors may from time to time deem proper.
Each officer shall have such powers and duties as may be prescribed by these By-
Laws and as may be assigned by the Board of Directors or the President. Any two
or more offices may be held by the same person.
SECTION 2. TERM OF OFFICE AND REMUNERATION. The term of office of
all officers shall be one year and until their respective successors have been
elected and qualified, but any officer may be removed from office, either with
or without cause, at any time by the Board of Directors. Any vacancy in any
office arising from any cause may be filled for the unexpired portion of the
term by the Board of Directors. The remuneration of all officers of the
Corporation may be fixed by the Board of Directors or in such manner as the
Board of Directors shall provide.
SECTION 3. RESIGNATION; REMOVAL. Any officer may resign at any time
upon written notice to the Corporation and such resignation shall take effect
upon receipt thereof by the President or Secretary, unless otherwise specified
in the resignation. Any officer shall be subject to removal, with or without
cause, at any time by the Board of Directors.
SECTION 4. POWERS AND DUTIES OF OFFICERS. (a) The Chairman of the
Board of Directors, if there be one, shall preside at all meetings of the Board
of Directors and shall have such other powers and duties as may from time to
time be assigned by the Board of Directors.
(b) The President shall be the chief executive officer of the
Corporation and shall preside at all meetings of the Stockholders and, if there
is no Chairman, of the Board of Directors and shall have general management of
and supervisory authority over the property, business and
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affairs of the Corporation and its other officers. The President may execute
and deliver in the name of the Corporation powers of attorney, contracts, bonds
and other obligations and instruments, and shall have such other authority and
perform such other duties as from time to time may be assigned by the Board of
Directors. The President shall see that all orders and resolutions of the Board
of Directors are carried into effect and shall perform such additional duties
that usually pertain to this office.
(c) A Vice President may execute and deliver in the name of the
Corporation powers of attorney, contracts, bonds and other obligations and
instruments pertaining to the regular course of such Vice President's duties,
and shall have such other authority and perform such other duties as from time
to time may be assigned by the Board of Directors or the President.
(d) The Treasurer shall in general have all duties and authority
incident to the position of Treasurer and such other duties and authority as may
be assigned by the Board of Directors or the President. The Treasurer shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by or at the direction of the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors or the President, and shall render, upon request, an account of all
such transactions.
(e) The Secretary shall in general have all the duties and authority
incident to the position of Secretary and such other duties and authority as may
be assigned by the Board of Directors or the President. The Secretary shall
attend all meetings of the Board of Directors and all meetings of the
Stockholders and record all the proceedings thereat in a book or books to be
kept for that purpose. The Secretary shall give, or cause to be given, notice
of all meetings of the Stockholders and special meetings of the Board of
Directors. The Secretary shall have custody of the seal of the Corporation and
any officer of the Corporation shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary or any other officer.
(f) Any assistant officer shall have such duties and authority as the
officer such assistant officer assists
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and, in addition, such other duties and authority as the Board of Directors or
President shall from time to time assign.
ARTICLE V
CONTRACTS, ETC.
SECTION 1. CONTRACTS. The Board of Directors may authorize any
person or persons, in the name an on behalf of the Corporation, to enter into or
execute and deliver any and all deeds, bonds, mortgages, contracts and other
obligations or instruments, and such authority may be general or confined to
specific instances.
SECTION 2. PROXIES; POWERS OF ATTORNEY; OTHER INSTRUMENTS. (a) The
Chairman, the President, any Vice President, the Treasurer or any other person
designated by any of them shall have the power and authority to execute and
deliver proxies, powers of attorney and other instruments on behalf of the
Corporation in connection with the execution of contracts, the purchase of real
or personal property, the rights and powers incident to the ownership of stock
by the Corporation and such other situations as the Chairman, the President,
such Vice President or the Treasurer shall approve, such approval to be
conclusively evidenced by the execution of such proxy, power of attorney or
other instrument on behalf of the Corporation.
(b) The Chairman, the President, any Vice President, the Treasurer or
any other person authorized by proxy or power of attorney executed and delivered
by any of them on behalf of the Corporation may attend and vote at any meeting
of stockholders of any company in which the Corporation may hold stock, and may
exercise on behalf of the Corporation any and all of the rights and powers
incident to the ownership of such stock at any such meeting, or otherwise as
specified in the proxy or power of attorney so authorizing any such person. The
Board of Directors, from time to time, may confer like powers upon any other
person.
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ARTICLE VI
BOOKS AND RECORDS
SECTION 1. LOCATION. The books and records of the Corporation may be
kept at such place or places within or outside the State of Delaware as the
Board of Directors or the respective officers in charge thereof may from time to
time determine. The record books containing the names and addresses of all
Stockholders, the number and class of shares of stock held by each and the dates
when they respectively became the owners of record thereof shall be kept by the
Secretary as prescribed in the By-Laws or by such officer or agent as shall be
designated by the Board of Directors.
SECTION 2. ADDRESSES OF STOCKHOLDERS. Notices of meetings and all
other corporate notices may be delivered personally or mailed to each
Stockholder at the Stockholder's address as it appears on the records of the
Corporation.
SECTION 3. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
(a) In order that the Corporation may determine the Stockholders entitled to
notice of or to vote at any meeting of Stockholders or any adjournment thereof,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors and which record date shall not be more than sixty days
nor less than ten days before the date of such meeting. If no record date is
fixed by the Board of Directors, the record date for determining Stockholders
entitled to notice of or to vote at a meeting of Stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held. A determination of Stockholders of record
entitled to notice of or to vote at a meeting of Stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the Stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and which date shall not be more
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than ten days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. If no record date has been fixed by the
Board of Directors, the record date for determining Stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
Stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining
Stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the Stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the Stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action not contemplated by paragraph (a) or (b) of this Section 3, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted and which
record date shall be not more than sixty days prior to such action. If no
record date is fixed, the record date for determining Stockholders for any such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
ARTICLE VII
CERTIFICATES REPRESENTING STOCK
SECTION 1. CERTIFICATES; SIGNATURES. The shares of the Corporation
shall be represented by certificates, provided that the Board of Directors of
the Corporation may provide by resolution or resolutions that some or all of any
or all classes or series of its stock shall be
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uncertificated shares shall be entitled to have a certificate, signed by or in
the name of the Corporation by the Chairman or Vice Chairman of the Board of
Directors, of the President or Vice-President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, representing the number of shares registered in certificate form.
Any and all signatures on any such certificate may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue. The name of the holder of record of
the shares represented thereby, with the number of such shares and the date of
issue, shall be entered on the books of the Corporation. The Board of Directors
shall have power and authority to make all such rules and regulations as it may
deem expedient concerning the issue, transfer and registration of certificates
representing shares of the Corporation.
SECTION 2. TRANSFERS OF STOCK. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of stock, if any,
shares of capital stock shall be transferrable on the books of the Corporation
only by the holder of record thereof in person, or by duly authorized attorney,
upon surrender and cancellation of certificates for a like number of shares,
properly endorsed, and the payment of all taxes due thereon.
SECTION 3. FRACTIONAL SHARES. The Corporation may, but shall not
be required to, issue certificates for fractions of a share where necessary to
effect authorized transactions, or the Corporation may pay in cash the fair
value of fractions of a share as of the time when those entitled to receive such
fractions are determined, or it may issue scrip in registered or bearer form
over the manual or facsimile signature of an officer of the Corporation or of
its agent, exchangeable as therein provided for full shares, but such scrip
shall not entitle the holder to any rights of a Stockholder except as therein
provided.
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SECTION 4. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation
may issue a new certificate of stock in place of any certificate, theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the Board of
Directors may require the owner of any lost, stolen or destroyed certificate, or
his legal representative, to give the Corporation a bond sufficient to indemnify
the Corporation against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
any such new certificate.
ARTICLE VIII
DIVIDENDS
Subject to the provisions of applicable law and the Certificate of
Incorporation, the Board of Directors shall have sole power to determine whether
any, and, if any, what part of any, funds legally available for the payment of
dividends shall be declared as dividends and paid to Stockholders; the division
of the whole or any part of such funds of the Corporation shall rest wholly
within the lawful discretion of the Board of Directors, and it shall not be
required at any time, against such discretion, to divide or pay any part of such
funds among or to the Stockholders as dividends or otherwise; and before payment
of any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve. Stockholders shall receive
dividends pro rata in proportion to the number of shares of Common Stock
respectively held by them. A holder of Common Stock shall be deemed to share
pro rata in all dividends declared by the Board of Directors within the meaning
of the preceding sentence if such Stockholder receives assets (whether
consisting of cash, securities, real property, equipment, inventory or other
assets) the fair market value of which is in the same proportion to the fair
market value of the total assets of the Corporation available for distribution
as a dividend as the number of shares of Common Stock held by such holder of
Common Stock is to the total number of issued and outstanding shares of Common
Stock of the Corporation. A Stockholder shall not have the right to receive a
pro rata
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share of each or any such asset available for distribution as a dividend,
however, the Corporation shall not be prohibited hereby for making a pro rata
distribution of each or any such asset available for distribution as a dividend.
The fair market value of any and all assets of the Corporation distributed as a
dividend shall be determined in the sole discretion of the Corporation's Board
of Directors.
ARTICLE IX
RATIFICATION
Any transaction, questioned in any lawsuit on the ground of lack of
authority, defective or irregular execution, adverse interest of any director,
officer or Stockholder, non disclosure, miscomputation, or the application of
improper principles or practices of accounting, may be ratified before or after
judgment, by the Board of Directors or by the Stockholders, as appropriate, and
if so ratified shall have the same force and effect as if the questioned
transaction had been originally duly authorized. Such ratification shall be
binding upon the Corporation and its Stockholders and shall constitute a bar to
any claim or execution of any judgment in respect of such questioned
transaction.
ARTICLE X
CORPORATE SEAL
The corporate seal shall contain the words "Corporate Seal" and such
additional information as the officer inscribing such seal shall determine in
such officer's sole discretion. The corporate seal may be used by causing it or
a facsimile thereof to be impressed or affixed or reproduced or otherwise
displayed or it may be manually inscribed.
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be
subject to change, by the Board of Directors. Unless otherwise fixed by the
Board of Directors, the fiscal year of the Corporation shall end on September
30.
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ARTICLE XII
WAIVER OF NOTICE
Whenever notice is required to be given by these By-Laws or by the
Certificate of Incorporation or by law, a written waiver thereof, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE XIII
AMENDMENTS
The Board of Directors shall have power to adopt, amend or repeal By-
Laws. By-Laws adopted by the Board of Directors may be repealed or changed, and
new By-Laws made, by the Stockholders, and the Stockholders may prescribe that
any By-Law made by them shall not be altered, amended or repealed by the Board
of Directors.
ARTICLE XIV
INDEMNIFICATION
SECTION 1. POWER TO INDEMNIFY IN ACTION, SUITS OR PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this
Article XIV, 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 contemplated
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 such person is or was a director, officer, employee or
agent of the Corporation, or is or was servicing at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' and other professionals' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
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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 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 reasonable cause to believe that the conduct was unlawful.
SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR
IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article XIV, 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 procedure 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 a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' and
other professionals' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the Corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to the extent
that the Court of Chancery or the court in which such action 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 which the Court of Chancery
or such other court shall deem proper.
SECTION 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification
under this Article XIV (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 such person has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article XIV, as the case may be. Such
determination shall be made (i) 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 (ii) if such a quorum is not obtainable, or, even if obtainable,
a quorum of disinterested directors so directs, by independent
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legal counsel in a written opinion, or (iii) if the Board of Directors so
directs, by the Stockholders. To the extent, however, 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 described above, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' and other professionals' fees) actually
and reasonably incurred by such person in connection therewith, without the
necessity of authorization in the specific case.
SECTION 4. GOOD FAITH DEFINED. For purposes of any determination
under Section 3 of this Article XIV, a person shall be deemed to have acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe the conduct was unlawful,
if the action is based on (a) the records or books of account of the Corporation
or another enterprise (as defined below in this Section 4), or on information
supplied to such person by the officers of the Corporation or another enterprise
in the course of their duties, unless such person had reasonable cause to
believe that reliance thereon would not be justifiable, or on (b) the advice of
legal counsel for the Corporation or another enterprise, or on information or
records given or reports made to the Corporation or another enterprise by an
independent certified public accountant, independent financial adviser,
appraiser or other expert, as to matters reasonably believed to be within such
other person's professional or expert competence. The term "another enterprise"
as used in this Section 4 shall mean any other corporation or any partnership,
joint venture, trust or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent.
The provisions of this Section 4 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 1 or 2 of this Article XIV,
as the case may be.
SECTION 5. INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article XIV, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article XIV. The basis of such
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indemnification by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set forth
in Sections 1 or 2 of this Article XIV, as the case may be. Notice of any
application for indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application.
SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses (including
attorneys' and other professionals' fees) incurred by an officer or director in
defending any threatened or pending civil, criminal, administrative or
investigative action, suit or proceeding may, but shall not be required to, be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such director or
officer, to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article XIV. Such expenses (including attorneys' and other professionals'
fees) incurred by other employees and agents may be paid upon such terms and
conditions, if any, as the Board of Directors deem appropriate.
SECTION 7. NON-EXCLUSIVITY AND SURVIVAL OF INDEMNIFICATION. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article XIV shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any By-Law, agreement, contract, vote of Stockholders or of disinterested
directors, or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, it being the policy of the Corporation that
indemnification of the persons specified in Section 1 and 2 of this Article XIV
(as distinguished from advancement of funds pursuant to Section 6 of this
Article XIV) shall be made to the fullest extent permitted by law. The
provisions of this Article XIV shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 and 2 of this
Article XIV but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of Delaware, or
otherwise. The indemnification provided by this Article XIV 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, administrators and other
comparable legal representatives of such person. The rights conferred in
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this Article XIV shall be enforceable as contract rights, and shall continue to
exist after any rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 8. MEANING OF "OTHER ENTERPRISES" IN CONNECTION WITH EMPLOYEE
BENEFIT PLANS, ETC. For purposes of this Article XIV (including Sections 1, 2,
4 and 9 hereof), references to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; references to "serving at the
request of the Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who has
acted in good faith and in a manner reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the Corporation"
as referred to in this Article XIV.
SECTION 9. INSURANCE. The Corporation may, but shall not be required
to, 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 such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power or the obligation to indemnify such
person against such liability under the provisions of this Article XIV.
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EXHIBIT 3.2
BEAZER HOMES USA, INC.
AMENDMENTS TO BY-LAWS
---------------------
Limitations on the Ability to Call Special Meetings
---------------------------------------------------
Article I, Section 2, Subsection (a) is hereby deleted and replaced in its
entirety with the following:
"SECTION 2. SPECIAL MEETINGS. (a) Special meetings of the stockholders,
unless otherwise prescribed by statute, may be called by the Chairman of the
Board, the President or by resolution of the Board of Directors. Notice of each
special meeting shall be given in accordance with Subsection (b) of Section 2 of
this Article I. Unless otherwise required by law, business transacted at any
special meeting of stockholders shall be limited to the purpose stated in the
notice."
<PAGE>
Notice of Stockholder Business
- ------------------------------
The following new Section 7 is hereby added to Article I:
"SECTION 7. NOTICE OF STOCKHOLDER BUSINESS. (a) At an annual meeting of
the stockholders, only such business shall be conducted as shall have been
brought before the meeting (i) pursuant to the Corporation's notice of meeting;
(ii) by or at the direction of the Board of Directors; or (iii) by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of the notice provided for in this Section 7, who shall be entitled to
vote at such meeting and who complies with the notice procedures set forth in
this Section 7.
(b) For business to be properly brought before an annual meeting by a
stockholder pursuant to clause (a)(iii) of this Section 7, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation not less than 120 days nor
more than 150 days prior to the first anniversary of the date of the Company's
notice of annual meeting for the preceding year's annual meeting; provided,
however, that in the event that the date of the meeting is changed by more than
30 days from the anniversary date of the preceding year's annual meeting, notice
by the stockholder to be timely must be received no later than the close of
business on the 10th day following the earlier of the day on which notice of the
date of the meeting was mailed or public disclosure was made. A stockholder's
notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the meeting (i) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting; (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, and the name
and address of the beneficial owner, if any, on whose behalf the proposal is
made; (iii) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder of record and by the beneficial
owner, if any, on whose behalf the proposal is made; and (iv) any material
interest of such stockholder of record and the beneficial owner, if any, on
whose behalf the proposal is made in such business.
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(c) Notwithstanding anything in these By-laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 7. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the procedures prescribed by
these By-laws, and if he should so determine, he shall so declare to the meeting
and such business shall not be transacted. Notwithstanding the foregoing
provisions of this Section 7, a stockholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Section 7."
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Setting a Record Date for Determining Stockholders Entitled to Act by Written
- -----------------------------------------------------------------------------
Consent
- -------
The following new Section 8 is hereby added to Article I:
"SECTION 8. RECORD DATE FOR ACTION BY WRITTEN CONSENT. In order that the
Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than ten days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within ten days after the date on which such a request is received,
adopt a resolution fixing the record date (unless a record date has previously
been fixed by the Board of Directors pursuant to the first sentence of this
Section 8). If no record date has been fixed by the Board of Directors pursuant
to the first sentence of this Section 8 or otherwise within ten days of the date
on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in Delaware, its principal
place of business, or to any officer or agent of stockholders are recorded.
Delivery shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by applicable law, the record date
for determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action."
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Notice of Director Nomination by Stockholders
- ---------------------------------------------
The following new Section 14 is hereby added to Article II:
"SECTION 14. NOMINATION OF DIRECTORS. (a) Only persons who are
nominated in accordance with the procedures set forth in these By-laws
shall be eligible to serve as directors. Nominations of persons for
election to the Board of Directors of the Corporation may be made at a
meeting of stockholders (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this
Section 14, who shall be entitled to vote for the election of directors at
the meeting and who complies with the notice procedures set forth in this
Section 14.
(b) Nominations by stockholders shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation (i) in the case of an annual
meeting, not less than 120 days nor more than 150 days prior to the first
anniversary of the date of the Company's notice of annual meeting for the
preceding year's annual meeting; provided however, that in the event that
the date of the annual meeting is changed by more than 30 days from the
anniversary date of the preceding year's annual meeting, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the earlier of the day on which notice
of the date of the meeting was mailed or public disclosure was made and
(ii) in the case of a special meeting at which Directors are to be elected,
not later than the close of business on the 10th day following the earlier
of the day on which notice of the date of the meeting was mailed or public
disclosure was made. Such stockholder's notice shall set forth (i) as to
each person whom the stockholder proposes to nominate for election or
reelection as a Director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of
Directors, or is otherwise required, in each case pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (including such
person's written consent to being named in the proxy
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statement as a nominee and to serving as a director if elected); (ii) as to
the stockholder giving the notice (x) the name and address, as they appear
on the Corporation's books, of such stockholder, (y) the class and number
of shares of the Corporation which are beneficially owned by such
stockholder and also which are owned of record by such stockholder; and
(iii) as to the beneficial owner, if any, on whose behalf the nomination is
made, (x) the name and address of such person, and (y) the class and number
of shares of the Corporation which are beneficially owned by such person.
At the request of the Board of Directors, any person nominated by the Board
of Directors for election as a Director shall furnish to the Secretary of
the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee.
(c) No person shall be eligible to serve as a Director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 14. The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these By-laws, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions
of this Section 14, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder with respect to the matters set forth in
this Section 14."
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