<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 2000
REGISTRATION NO. 333-94843
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BEAZER HOMES USA, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
DELAWARE 58-2086934
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
</TABLE>
5775 PEACHTREE DUNWOODY ROAD, SUITE B-200
ATLANTA, GA 30342
(404) 250-3420
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
------------------------------
See Table of Additional
Registrants Below
------------------------
<TABLE>
<S> <C>
IAN J. MCCARTHY COPIES TO:
PRESIDENT AND WILLIAM F. SCHWITTER, ESQ.
CHIEF EXECUTIVE OFFICER PAUL, HASTINGS, JANOFSKY & WALKER LLP
5775 PEACHTREE DUNWOODY ROAD, SUITE 399 PARK AVENUE
B-200 NEW YORK, NEW YORK 10022
ATLANTA, GA 30342 (212) 318-6000
(404) 250-3420
(Name, Address, Including Zip Code,
and
Telephone Number,
Including Area Code, of Agent For
Service)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
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- --------------------------------------------------------------------------------
<PAGE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
------------------------
BEAZER HOMES USA, INC.
TABLE OF ADDITIONAL REGISTRANTS
<TABLE>
<CAPTION>
IRS EMPLOYER STATE OF
NAME IDENTIFICATION NO. INCORPORATION/FORMATION
- --------------------------------- ------------------ -----------------------
<S> <C> <C>
Beazer Homes Corp. 62-0880780 Tennessee
Beazer/Squires Realty, Inc. 56-1807308 North Carolina
Beazer Homes Sales Arizona Inc. 86-0728694 Delaware
Beazer Realty Corp. 58-1200012 Georgia
Panitz Homes Realty, Inc. 59-2639673 Florida
Beazer Mortgage Corporation 58-2203537 Delaware
Beazer Homes Holdings Corp. 58-2222637 Delaware
Beazer Homes Texas Holdings, Inc. 58-2222643 Delaware
Beazer Homes Texas, L.P. 76-0496353 Delaware
</TABLE>
------------------------
The address, including zip code, and telephone number, including area code
of the principal offices of the additional registrants listed above (the
"Additional Registrants") is: c/o Beazer Homes USA, Inc., 5775 Peachtree
Dunwoody Road, Suite B-200, Atlanta, GA 30342 and the telephone number at that
address is (404) 250-3420.
<PAGE>
PROSPECTUS
$300,000,000
BEAZER HOMES USA, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
------------------
Beazer Homes USA, Inc. may offer to the public from time to time:
debt securities, which may be senior or subordinated debt securities,
preferred stock
common stock
The aggregate public offering price of these securities may be up to a
maximum of $300,000,000. We will issue these securities in amounts, at prices
and on terms to be determined at the time of each offering.
The specific terms of the securities for which this prospectus is being
delivered will be set forth in the applicable prospectus supplement and will
include, where applicable:
- -- Maturity
- -- Interest rate
- -- Sinking fund terms
- -- Currency of payments
- -- Redemption terms
- -- Listing on a securities exchange
- -- Amount payable at maturity
- -- Certain United States federal income tax
considerations
In addition, such specific terms may include limitations on direct or
beneficial ownership and restrictions on transfer of the securities.
INVESTING IN THE SECURITIES MAY INVOLVE MATERIAL RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 2.
------------------------
Neither the Securities Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus or the accompanying prospectus supplement is truthful or complete.
Any representation to the contrary is a criminal offense.
------------------------
THE DATE OF THIS PROSPECTUS IS , 2000.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf process, we may sell any combination of the securities described in
this prospectus in one or more offerings for proceeds in the aggregate not to
exceed $300,000,000. This prospectus provides you with a general description of
the securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update, or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described
under the heading "Where You Can Find More Information."
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION CONTAINED IN, OR INCORPORATED BY
REFERENCE IN, THIS PROSPECTUS, YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING
FACTORS BEFORE PURCHASING ANY OF OUR SECURITIES.
THE HOMEBUILDING INDUSTRY IS CYCLICAL AND IS SIGNIFICANTLY AFFECTED BY MACRO
ECONOMIC AND OTHER FACTORS OUTSIDE OF OUR CONTROL SUCH AS CONSUMER CONFIDENCE,
INTEREST RATES AND EMPLOYMENT LEVELS. Because of the long-term financial
commitment involved in purchasing a home, general economic uncertainties tend to
result in more caution on the part of homebuyers and consequently fewer home
purchases. While we believe the overall demand for new housing over time should
remain stable, these uncertainties could periodically have an adverse affect on
our operating performance and the market price of our securities.
In addition, homebuilders are subject to various risks, many of which are
outside the control of the homebuilder. These conditions include:
- conditions of supply and demand in local markets;
- weather conditions and natural disasters, such as hurricanes, earthquakes
and wildfires;
- delays in construction schedules;
- cost overruns on land development and home construction;
- changes in government regulations;
- increases in real estate taxes and other local government fees; and
- availability and cost of land, materials and labor.
Although the principal raw materials used in the homebuilding industry
generally are available from a variety of sources, such materials are subject to
periodic price fluctuations. There can be no assurance that the occurrence of
any of the foregoing will not have a material adverse effect on the Company.
OUR QUARTERLY RESULTS MAY FLUCTUATE, WHICH COULD CAUSE OUR STOCK PRICE TO
FALL. While we have reported positive annual net income for each of the past
five fiscal years, our quarterly results of operations have varied significantly
and may continue to do so in the future as a result of a variety of factors both
nationally and locally, many of which are outside our control. These factors
include:
- the timing of home closings and land sales;
- our ability to continue to acquire additional land or secure option
contracts to acquire land on acceptable terms;
- land development and construction delays;
2
<PAGE>
- seasonal home buying patterns;
- delays in the opening of new active subdivisions by us or our competitors,
or market acceptance of the products and services provided in those
communities;
- changes in our pricing policies or those of our competitors; and
- other changes in operating expenses, personnel and general economic
conditions.
As a result, we believe that quarter-to-quarter comparisons of our operating
results are not necessarily meaningful, and you should not rely on them as an
indication of our future performance. In addition, our operating results in a
future quarter or quarters may fall below expectations of securities analysts or
investors and, as a result, the price of our common stock may fluctuate.
WE ARE DEPENDENT ON THE AVAILABILITY OF MORTGAGE FINANCING AND HOMEOWNERS'
INSURANCE FOR OUR CUSTOMERS. Virtually all purchasers of our homes finance their
acquisitions through lenders providing mortgage financing. A substantial
increase in mortgage interest rates would affect the ability of prospective
first time and move up homebuyers to obtain financing for our homes, as well as
affect the ability of prospective move up homebuyers to sell their current
homes.
Any significant natural disaster will impact our business and the entire
homebuilding industry. Any significant restrictions by insurance companies in
any of the states in which we operate on the availability or substantial
increases in the cost of homeowners insurance will also adversely affect our
industry.
THE HOMEBUILDING INDUSTRY IS HIGHLY COMPETITIVE AND FRAGMENTED. The
competition in the homebuilding industry is intense. Some of our competitors
have substantially greater financial resources and lower costs of funds than we
do. Many of these competitors also have longstanding relationships with
subcontractors and suppliers in the markets in which we operate. There can be no
assurance that we will be able to compete successfully in our markets against
these competitors.
THE BARRIERS TO ENTRY INTO OUR BUSINESS ARE CURRENTLY LOW. There are
relatively low barriers to entry into our business. We do not own any
technologies that preclude or inhibit competitors from entering our markets. Our
competitors may independently develop land and construct housing units that are
superior or substantially similar to our products. We currently build in several
of the top markets in the nation and, therefore, we expect to continue to face
additional competition from new entrants into our markets.
OUR LEVEL OF INDEBTEDNESS COULD ADVERSELY AFFECT THE FINANCIAL HEALTH OF THE
COMPANY AND PREVENT US FROM FULFILLING OUR OBLIGATIONS UNDER ANY NEW DEBT
SECURITIES. We currently have a significant amount of indebtedness. Our ability
to make payments of principal or interest on, or to refinance our indebtedness
will depend on:
- our future operating performance; and
- our ability to enter into additional debt and/or equity financings.
Both of these factors are subject, to a certain extent, to economic,
financial, competitive and other factors beyond our control. If we are unable to
generate sufficient cash flow in the future to service our debt, we may be
required to refinance all or a portion of our existing debt or to obtain
additional financing. There can be no assurance that any such refinancing would
be possible or that any additional financing could be obtained. The inability to
obtain additional financing could have a material adverse effect on us. Our
substantial indebtedness could have important consequences to the holders of
securities, including:
- we may be unable to satisfy our obligations under the existing or new debt
agreements;
- we may be more vulnerable to adverse general economic and industry
conditions;
3
<PAGE>
- we may find it more difficult to fund future working capital, land
purchases, acquisitions, general corporate purposes or other purposes; and
- we will have to dedicate a substantial portion of our cash resources to
the payments on our indebtedness, thereby reducing the funds available for
operations and future business opportunities.
BEAZER HOMES USA, INC. IS A HOLDING COMPANY WITH NO SIGNIFICANT ASSETS OTHER
THAN THE STOCK OF OUR SUBSIDIARIES. In order to meet our financial needs,
including to make payments on any debt securities or preferred stock issued
under this prospectus, we will rely exclusively on repayments of interest and
principal on intercompany loans made by us to our operating subsidiaries and
income from dividends and other cash flow from our subsidiaries. We cannot
assure you that our operating subsidiaries will generate sufficient net income
to pay upstream dividends or cash flow to make payments of interest and
principal to us in respect of our intercompany loans. In addition, if our
subsidiaries enter into credit facilities to fund their operations, those
facilities may restrict the ability of our subsidiaries to pay dividends to us.
FAILURE TO IMPLEMENT OUR BUSINESS STRATEGY COULD ADVERSELY AFFECT OUR
OPERATIONS. Our financial position and results of operations depend on our
ability to execute our business strategy. Our ability to execute our business
strategy depends on our ability:
- to continue to improve profitability;
- to identify and acquire attractive parcels of land on which to build our
homes;
- to expand our market share in regions where we are not currently a top
five builder;
- to identify, acquire and successfully integrate new business acquisitions;
and
- to attract and retain skilled employees.
Our failure or inability to execute our business strategy could materially
adversely affect our financial position, liquidity and results of operations.
OUR BUSINESS WOULD BE ADVERSELY AFFECTED IF FUTURE, MORE ONEROUS GOVERNMENT
REGULATIONS WERE ENACTED. We and our competitors are subject to local, state and
federal statutes and rules regulating:
- certain developmental matters;
- building and site design;
- matters concerning the protection of health and the environment; and
- mortgage origination procedures.
These regulations vary greatly by community and consist of items such as:
- impact fees, some of which may be substantial, which may be imposed to
defray the cost of providing certain governmental services and
improvements;
- "no growth" or "slow growth" initiatives, which may be adopted in
communities which have developed rapidly;
- building permit allocation ordinances;
- building moratoriums; or
- similar governmental regulations that could be imposed in the future.
We believe we are in substantial compliance with current laws and
regulations. We further believe that these laws and regulations have had no
material adverse effect on our ability to operate our
4
<PAGE>
business. Changes in existing laws or regulations, or in their interpretation,
or the adoption of any additional laws or regulations, could have a material
adverse effect on our business.
IF WE ARE UNABLE TO RETAIN SKILLED PERSONNEL, OUR BUSINESS COULD BE
ADVERSELY AFFECTED. Our future success depends upon our ability to attract,
train, assimilate and retain skilled personnel and subcontractors. Competition
for qualified personnel and subcontractors in all of our operating markets is
intense. A significant increase in the number of our active communities would
necessitate the hiring of a significant number of additional construction
managers and subcontractors, each of which is in short supply in our markets. We
cannot assure you that we will be able to retain our key employees or that we
can attract, train, assimilate or retain other skilled personnel in the future.
ANTI-TAKEOVER PROVISIONS IN OUR ORGANIZATIONAL DOCUMENTS AND DELAWARE LAW
MAKE ANY CHANGE IN THE CONTROL OF OUR COMPANY MORE DIFFICULT. Our organizational
documents allow us to issue preferred stock with rights senior to those of our
common stock without any further vote or action by our stockholders. The
issuance of preferred stock could decrease the amount of earnings and assets
available for distribution to the holders of our common stock or could adversely
affect the rights and powers, including voting rights, of the holders of our
common stock. In some circumstances, the issuance of preferred stock could have
the effect of decreasing the market price of our common stock. We are also
subject to provisions of the Delaware corporation law that, in general, prohibit
any business combination with a beneficial owner of 15% or more of our common
stock for five years unless the holder's acquisition of our stock was approved
in advance by our board of directors. Further, we have adopted a stockholder
rights plan which is designed to prevent, or make more expensive, a hostile
takeover of the Company. Under our plan, once an acquirer acquires more than 20%
of our common stock, rights to purchase shares of preferred stock become
exercisable by all stockholders other than the acquirer, diluting substantially
the value of the stock previously purchased by the acquiror.
THERE IS NO PUBLIC MARKET FOR CERTAIN OF THE SECURITIES THAT MAY BE ISSUED
UNDER THIS PROSPECTUS. Debt securities and preferred stock issued under this
prospectus will be new securities for which there is currently no public market.
The Company may, but will not be required to, list any debt securities or
preferred stock on any national securities exchange or quotation system.
Accordingly, there can be no assurance as to the development of any market or
the liquidity of any market that may develop for these securities.
THE COMPANY
The Company's principal executive offices are located at 5775 Peachtree
Dunwoody Road, Suite B-200, Atlanta, Georgia 30342, telephone (404) 250-3420. We
also provide information about our active communities and mortgage financing
through our internet web site located at www.beazer.com.
5
<PAGE>
Beazer Homes USA, Inc. designs, builds and sells single family homes in the
following locations within the United States:
<TABLE>
<CAPTION>
REGION/STATE MARKET(S)/YEAR ENTERED
- ------------ ----------------------
<S> <C>
SOUTHEAST REGION:
Florida Jacksonville (1993), Fort Meyers/Naples (1996), Tampa/St.
Petersburg (1996), Treasure Coast (1995), Orlando (1997)
Georgia Atlanta (1985)
North Carolina Charlotte (1987), Raleigh (1992)
South Carolina Charleston (1987), Columbia (1993), Myrtle Beach (1996),
Greenville (1998)
Tennessee Knoxville (1995), Nashville (1987)
SOUTHWEST REGION:
Arizona Phoenix (1993)
California Los Angeles County (1993), Orange County (1993), Riverside &
San Bernadino Counties (1993), San Diego County (1992),
Ventura County (1993), Sacramento (1993)
Nevada Las Vegas (1993), Reno/Sparks (1996)
CENTRAL REGION:
Texas Dallas (1995), Houston (1995)
MID-ATLANTIC REGION:
Maryland Metro-Baltimore (1998), Laurel County (1998),
Metro-Washington DC (1998)
New Jersey/Pennsylvania Burlington (1998), Mercer (1998), Middlesex (1998),
Gloucester (1998), Northampton, PA (1998)
Virginia Loudoun County (1998), Prince William County (1998), Metro-
Washington DC (1998)
</TABLE>
We design our homes to appeal primarily to entry-level and first time
move-up home buyers. Our objective is to provide our customers with homes that
incorporate quality and value while seeking to maximize our return on invested
capital. To achieve this objective, we have developed a business strategy which
focuses on the following elements:
GEOGRAPHIC DIVERSITY AND GROWTH MARKETS. We compete in a large number of
geographically diverse markets in an attempt to reduce our exposure to any
particular regional economy. Virtually all of the markets in which we
operate have experienced significant population growth in recent years.
Within these markets, we build homes in a variety of projects, typically
with fewer than 150 homesites.
QUALITY HOMES FOR ENTRY-LEVEL AND FIRST TIME MOVE-UP HOME BUYERS. We seek to
maximize customer satisfaction by offering homes which incorporate quality
materials, distinctive design features, convenient locations and competitive
prices. We focus on entry-level and first move-up home buyers because we
believe they represent the largest segment of the homebuilding market.
During fiscal year 1999, the average sales price of our homes sold was
approximately $181,400.
ADDITIONAL PRODUCTS AND SERVICES FOR HOMEBUYERS. In order to maximize our
profitability and provide our homebuyers with the additional products and
services that they desire, we have incorporated design centers and mortgage
origination operations into our business. Recognizing that homebuyers want
to choose certain components of their new home, we began offering limited
customization through the use of design centers in most of our markets.
These design centers allow the homebuyer to select certain non-structural
customizations for their homes such as
6
<PAGE>
cabinetry, flooring, fixtures, appliances and wallcoverings. Additionally,
recognizing the homebuyer's desire to simplify the financing process, we
began originating mortgages on behalf of our customers through Beazer
Mortgage Corp.
DECENTRALIZED OPERATIONS WITH EXPERIENCED MANAGEMENT. We believe our
in-depth knowledge of our local markets enables us to better serve our
customers. Our local managers, who have significant experience in both the
homebuilding industry and the markets they serve, are responsible for
operating decisions regarding design, construction and marketing. We combine
these decentralized operations with a centralized corporate-level management
which controls decisions regarding overall strategy, land acquisitions and
financial matters.
CONSERVATIVE LAND POLICIES. We seek to maximize our return on capital by
limiting our investment in land and by focusing on inventory turnover. To
implement this strategy and to reduce the risks associated with investments
in land, we use options to control land whenever possible. In addition, we
do not speculate in unentitled land.
RECENT DEVELOPMENTS
The Company had revenues and net income of $308.7 million and $7.5 million,
respectively, for the quarter ended December 31, 1999 compared to revenues and
net income of $242.1 million and $4.7 million, respectively, for the quarter
ended December 31, 1998. This resulted in diluted earnings per share of $.85 for
the quarter ended December 31, 1999, compared to $.53 for the quarter ended
December 31, 1998.
7
<PAGE>
USE OF PROCEEDS
Except as otherwise set forth in the accompanying prospectus supplement, the
Company intends to use the net proceeds from the sale of the securities for
general corporate purposes, which may include the repayment, redemption or
repurchase of existing indebtedness, additions to working capital, the
acquisition of, or investment in, new or existing properties and the financing
of capital expenditures. Funds not required immediately for such purposes may be
invested temporarily in short-term investment grade securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges and ratio of earnings to combined fixed charges and preferred stock
dividends for the periods shown. Prior to August 7, 1995, we had not issued any
preferred stock and therefore the ratios of earnings to combined fixed charges
and preferred stock dividends for prior periods do not differ from the ratios of
earnings to fixed charges for such periods.
These ratios have been calculated by dividing (i) income before income taxes
and minority interest plus fixed charges (adjusted for capitalized interest) by
(ii) fixed charges and, in the case of the ratio of earnings to combined fixed
charges and preferred stock dividends, fixed charges plus total preferred stock
dividend requirements. Fixed charges consist of interest incurred (expensed or
capitalized) and the portion of rent expense which is deemed representative of
interest.
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
----------------------------------------------------
1999 1998 1997 1996 1995
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges (unaudited).............. 3.05 2.55 1.99 3.01 2.13
==== ==== ==== ==== ====
Ratio of earnings to combined fixed charges and preferred
stock dividends (unaudited)............................... 2.84 2.32 1.80 2.60 2.09
==== ==== ==== ==== ====
</TABLE>
DESCRIPTION OF DEBT SECURITIES
GENERAL
Any debt securities issued will be direct obligations of the Company and may
be secured or unsecured. Debt securities may be either senior debt securities or
subordinated debt securities. The debt securities will be issued under one or
more indentures in the form filed as an exhibit to the registration statement of
which this prospectus is a part. The indentures will be subject to and governed
by the Trust Indenture Act of 1939, as amended. Senior securities and
subordinated securities may be issued under separate indentures, in each case
between the Company and a trustee. The statements made under this heading
relating to the debt securities and the indentures are summaries of the
provisions and should be read in conjunction with the information provided in
the prospectus supplement.
TERMS
Except as set forth in any prospectus supplement, the debt securities may be
issued without limits as to aggregate principal amount, in one or more series.
We are not required to issue all debt securities of one series at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the holders of the debt securities of such series, for issuance of additional
debt securities of such series.
8
<PAGE>
Each prospectus supplement will set forth additional information regarding
the debt securities being offered, including:
- the title of the debt securities;
- whether the debt securities are secured or unsecured, senior or
subordinated securities;
- whether the debt securities will be guaranteed by any subsidiaries of the
Beazer;
- the aggregate principal amount of such debt securities and any limit on
the amount that may be issued;
- the price and, if other than the full principal amount, the portion of the
principal amount payable upon declaration of the maturity;
- if convertible, the terms on which such debt securities are convertible,
including the initial conversion price or rate and the conversion period
and any applicable limitations on the ownership or transferability of the
common stock or preferred stock receivable on conversion;
- the date or dates on which the principal of the debt securities will be
payable;
- the rate at which the debt securities will bear interest, if any;
- the date from which interest will accrue, the dates on which this interest
will be payable, the record dates for interest, the persons to whom the
interest will be payable, and the basis upon which interest will be
calculated;
- the place where payments will be made, where the debt securities may be
surrendered for conversion or registration of transfer or exchange and
where notices or demands to or upon the Company with respect to the debt
securities and the applicable Indenture may be served;
- the period or periods, if any, within which the price or prices at which
and the other terms and conditions upon which such debt securities may,
pursuant to any optional or mandatory redemption provisions, be redeemed,
as a whole or in part, at the option of the Company;
- the obligation, if any, of the Company to redeem, repay or purchase debt
securities pursuant to any sinking fund or analogous provision or at the
option of a holder thereof, and the period or periods within which the
price or prices at which and the other terms and conditions upon which
such debt securities will be redeemed, repaid or purchased, as a whole or
in part, pursuant to such obligation;
- if other than U.S. dollars, the currency or currencies in which debt
securities are denominated and payable, which may be a foreign currency or
units of two or more foreign currencies or a composite currency or
currencies, and the terms and conditions relating thereto;
- whether the amount of payments of principal (and premium, if any) or
interest, if any, on such debt securities may be determined with reference
to an index, formula or other method and the manner in which such amounts
shall be determined;
- whether the debt securities will be issued in certificated or book-entry
form and, if so, the identity of the depository for the debt securities;
- whether the debt securities will be in registered or bearer form or both
and, if in registered form, the denominations thereof if other than $1,000
and any integral multiple thereof and, if in bearer form, the
denominations thereof and terms and conditions relating thereto;
- the applicability, if any, of the defeasance and covenant defeasance
provisions described in this prospectus or set forth in the applicable
Indenture, or any modification thereof;
9
<PAGE>
- whether and under what circumstances the Company will pay any additional
amounts on such debt securities in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the option
to redeem such debt securities instead of making such payment;
- any deletions from, modifications of or additions to the events of default
or covenants of the Company described in this prospectus, and any change
in the right of any trustee or any of the holders to declare the principal
amount of any of such debt securities due and payable;
- The provisions, if any, relating to the security provided for the debt
securities; and
- Any other terms of the debt securities not inconsistent with the
provisions of the applicable Indenture.
Debt securities may be issued at a discount below their principal amount and
provide for less than the entire principal amount to be paid upon declaration of
acceleration of their maturity. These debt securities are often called Original
Issue Discount Securities. Any special U.S. federal income tax, accounting and
other considerations applicable to Original Issue Discount Securities will be
described in the applicable prospectus supplement.
Except as may be set forth in any prospectus supplement, neither the debt
securities nor the Indenture will contain any provisions that would limit the
ability of the Company to incur indebtedness or that would give holders of debt
securities protection in the event of a highly leveraged or similar transaction
involving the Company or in the event of any change of control.
REGISTRATION
Subject to certain limitations imposed upon debt securities issued in
book-entry form, the debt securities of any series will be exchangeable for any
authorized denomination of other debt securities of the same series and the same
principal amount upon surrender of such debt securities at the corporate trust
office of the trustee or at the office of any transfer agent designated by the
Company for such purpose. In addition, subject to certain limitations imposed
upon debt securities issued in book-entry form, the debt securities of any
series may be surrendered for conversion or registration of transfer or exchange
at the corporate trust office of the trustee or at the office of any transfer
agent designated by the Company. Every debt security surrendered for conversion,
registration of transfer or exchange must be duly endorsed or accompanied by a
written instrument of transfer, and the person requesting such action must
provide evidence of title and identity satisfactory to the trustee or transfer
agent. No service charge will be made for any registration of transfer or
exchange of any debt securities, but the Company may require payment to cover
any related tax or other governmental charge. If the applicable prospectus
supplement refers to any transfer agent (in addition to the trustee) initially
designated by the Company with respect to any series of debt securities, the
Company may at any time rescind the designation of any such transfer agent or
approve a change in the location through which any such transfer agent acts,
except that the Company will be required to maintain a transfer agent in each
place of payment for such series. The Company may at any time designate
additional transfer agents with respect to any series of debt securities.
TRANSFER
Neither the Company nor any trustee shall be required
- to issue, register the transfer of or exchange debt securities of any
series during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of any debt securities that
may be selected for redemption and ending at the close of business on the
day of such mailing;
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- to register the transfer of or exchange any debt security, or portion
thereof, so selected for redemption, in whole or in part, except the
unredeemed portion of any debt security being redeemed in part; or
- to issue, register the transfer of or exchange any debt security that has
been surrendered for repayment at the option of the holder, except the
portion, if any, of such debt security not to be so repaid.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Indentures will provide that the Company may, without the consent of the
holders of any outstanding debt securities, be combined with any other entity or
sell or lease all or substantially all of its assets to any other entity so long
as
- the Company shall be the continuing entity; or
- the new entity formed by or resulting from any combination or which shall
have received the transfer of assets, is organized under the laws of any
domestic jurisdiction and assumes the Company's obligations to pay all
amounts owed on and all other obligations under the debt securities; and
- immediately after giving effect to such transaction, no event of default
under the Indentures, and no event which, after notice or the lapse of
time, or both, would become such an event of default, shall have occurred
and be continuing; and
- an officers' certificate and legal opinion covering such conditions shall
be delivered to each trustee.
COVENANTS
The prospectus supplement will describe any material covenants of each
series of debt securities.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Unless otherwise provided in the applicable prospectus supplement, each
Indenture will provide that the following events are "Events of Default" with
respect to any series of debt securities issued:
- failure to pay required interest for 30 days;
- failure to pay principal, or premium, if any, when due;
- failure to make any sinking fund payment as required;
- failure to perform or the breach of any other covenant or warranty of the
Company contained in the Indenture, continuing for 60 days after written
notice;
- certain events of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee of the Company or any
significant subsidiary of the Company; and
- any other event of default provided with respect to a particular series of
debt securities.
The term significant subsidiary has the meaning given in Regulation S-X
promulgated under the Securities Act.
If an event of default occurs and is continuing, the trustee or the holders
of not less than 25% in principal amount of the debt securities of that series
will have the right to declare the principal amount (or, if the debt securities
of that series are Original Issue Discount Securities or indexed securities,
such portion of the principal amount as may be specified in the terms) of all
the debt securities of that series to be due and payable immediately by written
notice thereof to the Company and the trustee.
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However, at any time after a declaration of acceleration has been made, but
before a judgment or decree for payment of the money due has been obtained by
the trustee, the holders of not less than a majority in principal amount of
outstanding debt securities of such series may rescind and annul such
declaration and its consequences if:
- the Company shall have deposited with the trustee all required payments of
the principal of (and premium, if any) and interest on the debt securities
of such series, plus certain fees, expenses, disbursements and advances of
the trustee and
- all events of default, other than the non-payment of accelerated
principal, with respect to debt securities of such series have been cured
or waived as provided in such Indenture.
The Indentures will also provide that the holders of not less than a
majority in principal amount of the outstanding debt securities of any series
may waive any past default with respect to such series and its consequences,
except a default in the payment of the principal of (or premium, if any) or
interest on any debt security of such series. The holders of debt securities
also cannot waive a default under a covenant or other provision in an Indenture
that cannot be modified or amended without the consent of the holder of each
outstanding debt security affected thereby.
The Indentures will provide that no holder of debt securities of any series
may institute any proceeding, judicial or otherwise, with respect to such
Indenture or for any remedy thereunder, except in the case of failure of the
trustee, to act for 60 days after it has received a written request to institute
proceedings in respect of an event of default from the holders of not less than
25% in principal amount of the outstanding debt securities of such series, as
well as an offer of indemnity reasonably satisfactory to it. This provision will
not prevent, however, any holder of debt securities from instituting suit for
the enforcement of payment of the principal of (and premium, if any) and
interest on such debt securities at the due date.
The Indentures will provide that, subject to provisions in each Indenture
relating to its duties in case of default, a trustee will be under no obligation
to exercise any of its rights or powers under an Indenture at the request or
direction of any holders of any series of debt securities then outstanding under
such Indenture, unless such holders shall have offered to the trustee thereunder
reasonable security or indemnity. The holders of not less than a majority in
principal amount of the outstanding debt securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or of exercising any trust or power conferred
upon the trustee. However, a trustee may refuse to follow any direction
- which is in conflict with any law or the applicable Indenture,
- which may involve such trustee in personal liability or
- which may be unduly prejudicial to the holders of debt securities of such
series not joining therein.
Within 120 days after the close of each fiscal year, the Company will be
required to deliver to each trustee a certificate, signed by one of several
specified officers of the Company, stating whether or not such officer has
knowledge of any default under the applicable Indenture. Each notice must
specify the nature and status of each default.
MODIFICATION OF THE INDENTURES
The Company and the trustee may modify or amend an Indenture only with the
consent of the holders of not less than a majority in principal amount of all
outstanding debt securities issued under such Indenture affected by such
modification or amendment. However, no such modification or amendment may,
without the consent of the holder of each such debt security affected thereby,
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- change the payment date of the principal of, or any installment of
interest (or premium, if any);
- reduce the principal amount of, or the rate or amount of interest on, or
any premium payable on redemption of, any debt security;
- reduce the amount of principal of an Original Issue Discount Security that
would be due and payable upon declaration of acceleration of maturity or
would be provable in bankruptcy, or adversely affect any right of
repayment of the holder of any debt security;
- change the place of payment, or the coin or currency, for payment of
principal of, premium, if any, or interest on any debt security;
- impair the right to institute suit for the enforcement of any payment on
any debt security;
- reduce the percentage of outstanding debt securities of any series
necessary to modify or amend the applicable Indenture, to waive compliance
with certain provisions thereof or certain defaults and consequences
thereunder or to reduce the quorum or voting requirements set forth in the
applicable Indenture; or
- modify any of the foregoing provisions or any of the provisions relating
to the waiver of certain past defaults or certain covenants, except to
increase the required percentage to effect such action or to provide that
certain other provisions may not be modified or waived without the consent
of the holder of such debt security.
The holders of a majority in aggregate principal amount of the outstanding
debt securities of each series may, on behalf of all holders of debt securities
of that series, waive compliance by the Company with certain restrictive
covenants of the applicable Indenture.
Modifications and amendments of an Indenture will be permitted to be made by
the Company and the trustee without the consent of any holder of debt securities
for any of the following purposes:
- to replace the Company as obligor under such Indenture;
- to add to the covenants of the Company for the benefit of the holders of
all or any series of debt securities or to delete any right or power
conferred upon the Company in such Indenture;
- to add events of default for the benefit of the holders of all or any
series of debt securities;
- to add or change any provisions of an Indenture to facilitate the issuance
of, or to liberalize certain terms of, debt securities in bearer form, or
to permit or facilitate the issuance of debt securities in uncertificated
form; PROVIDED that such action shall not adversely affect the interest of
the holders of the debt securities of any series in any material respect;
- to change or eliminate any provisions of an Indenture; PROVIDED that any
such change or elimination shall be effective only when there are no debt
securities outstanding of any series created prior thereto which are
entitled to the benefit of such provision;
- to secure the debt securities;
- to establish the form or terms of debt securities of any series, including
the provisions and procedures, if applicable, for the conversion of such
debt securities into common stock or preferred stock;
- to provide for the acceptance of appointment of a successor trustee or
facilitate the administration of the trusts under an Indenture by more
than one trustee;
- to cure any ambiguity, defect or inconsistency in an Indenture; PROVIDED
that such action shall not adversely affect the interests of holders of
debt securities of any series issued under such Indenture; or
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- to supplement any of the provisions of an Indenture to the extent
necessary to permit or facilitate defeasance and discharge of any series
of such debt securities; PROVIDED that such action shall not adversely
affect the interests of the holders of the outstanding debt securities of
any series.
The Indentures will provide that, in determining whether the holders of the
required principal amount of outstanding debt securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver or
whether a quorum is present at a meeting of holders of debt securities,
- the principal amount of an Original Issue Discount Security considered
outstanding shall be the amount of the principal that would be due and
payable as of the date of such determination upon declaration of
acceleration of maturity,
- the principal amount of any debt security denominated in a foreign
currency considered outstanding shall be the U.S. dollar equivalent,
determined on the issue date for the debt security, of the principal
amount,
- the principal amount of an indexed security considered outstanding shall
be the principal face amount of such indexed security at original
issuance, unless otherwise provided with respect to such indexed security
pursuant to such Indenture, and
- debt securities owned by the Company or any affiliate of the Company shall
be disregarded.
The Indentures will contain provisions for convening meetings of the holders
of debt securities of each series. A meeting may be called at any time by the
trustee, and also, upon request, by the Company or the holders of at least 25%
in principal amount of the outstanding debt securities of such series, in any
such case upon notice given as provided in such Indenture. Except for any
consent that must be given by the holder of each debt security, any resolution
presented at a meeting or adjourned meeting duly reconvened at which a quorum is
present may be adopted by the affirmative vote of the holders of a majority in
principal amount of the outstanding debt securities of that series. However, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
holders of a specified percentage, which is less than a majority, in principal
amount of the outstanding debt securities of a series may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding debt securities of that series. Any resolution passed or
decision taken at any meeting of holders of debt securities of any series duly
held in accordance with an Indenture will be binding on all holders of debt
securities of that series. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the outstanding debt securities
of a series. However, if any action is to be taken at such meeting with respect
to a consent or waiver which may be given by the holders of not less than a
specified percentage in principal amount of the outstanding debt securities of a
series, the persons holding or representing such specified percentage in
principal amount of the outstanding debt securities of such series will
constitute a quorum.
SUBORDINATION
Unless otherwise provided in the applicable prospectus supplement,
subordinated debt securities will be subject to the following subordination
provisions.
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
any subordinated securities will be subordinated to the extent provided in the
applicable Indenture in right of payment to the prior payment in full of all
senior debt. However, the obligation of the Company to make payments of the
principal of and interest on such subordinated securities will not otherwise be
affected. No payment of principal or interest will
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be permitted to be made on subordinated securities at any time if a default on
senior debt exists that permits the holders of such senior debt to accelerate
its maturity and the default is the subject of judicial proceedings or the
Company receives notice of the default. After all senior debt is paid in full
and until the subordinated securities are paid in full, holders will be
subrogated to the rights of holders of senior debt to the extent that
distributions otherwise payable to holders have been applied to the payment of
senior debt. The subordinated Indenture will not restrict the amount of senior
debt or other indebtedness of the Company and its subsidiaries. As a result of
these subordination provisions, in the event of a distribution of assets upon
insolvency, holders of subordinated debt may recover less, ratably, than senior
creditors of the Company.
Senior debt will be defined in the applicable Indenture as the principal of
and interest on the following, whether outstanding at the date of execution of
the applicable Indenture or thereafter incurred, created or assumed:
- indebtedness of the Company for money borrowed or represented by
purchase-money obligations,
- indebtedness of the Company evidenced by notes, debentures, or bonds, or
other securities issued under the provisions of an indenture, fiscal
agency agreement or other agreement,
- obligations of the Company as lessee under leases of property made as part
of any sale and leaseback transaction to which the Company is a party or
otherwise,
- indebtedness of partnerships and joint ventures which is included in the
consolidated financial statements of the Company,
- indebtedness, obligations and liabilities of others in respect of which
the Company is liable contingently or otherwise to pay or advance money or
property or as guarantor, endorser or otherwise or which the Company has
agreed to purchase or otherwise acquire, and
- any binding commitment to make a real estate investment.
Indebtedness will not be considered senior debt even if listed above it by
its terms it is specified to be subordinate or is specified to be of the same
rank as other subordinated debt. If this prospectus is being delivered in
connection with a series of subordinated securities, the accompanying prospectus
supplement or the information incorporated herein by reference will set forth
the approximate amount of senior debt outstanding as of the end of the Company's
most recent fiscal quarter.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company will be permitted, at its option, to discharge certain obligations to
holders of any series of debt securities issued under any Indenture by
irrevocably depositing with the trustee, funds in an amount sufficient to pay
the entire indebtedness on such debt securities with respect to principal (and
premium, if any) and interest to the date of such deposit (if such debt
securities have become due and payable) or to the stated maturity or redemption
date, as the case may be. No discharge will apply to debt securities that have
already been delivered to the trustee for cancellation and that are due or will
become due within one year.
The Indentures will provide that, unless otherwise indicated in the
applicable prospectus supplement, the Company may elect either
- to defease and be discharged from any and all obligations with respect to
such debt securities ("defeasance") or
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- to be released from its covenant obligations with respect to such debt
securities under the applicable Indenture and any omission to comply with
such obligations shall not constitute an event of default with respect to
such debt securities ("covenant defeasance"),
in either case, upon the irrevocable deposit by the Company with the trustee, in
trust, of an amount, at stated maturity, or certain types of government
obligations, or both, applicable to such debt securities, which through the
scheduled payment of principal and interest in accordance with their terms will
provide money in an amount sufficient to pay the principal of (and premium, if
any) and interest on such debt securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor.
Discharge of obligations under an Indenture by payment as described above,
will not release the Company from any obligation to
- pay additional amounts, if any, upon the occurrence of certain events of
tax assessment or governmental charge,
- register the transfer exchange of debt securities,
- replace temporary or mutilated, destroyed, lost or stolen debt securities,
- maintain an office or agency in respect of debt securities,
- hold monies for payment in trust and
- with respect to subordinated debt securities which are convertible or
exchangeable, convert or exchange such securities.
The Company may establish a trust only if, among other things, the Company
has delivered to the trustee an opinion of counsel stating that the holders of
debt securities will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such defeasance or covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred. In the case of defeasance, the opinion must refer
to and be based upon a ruling received from or published by the Internal Revenue
Service or a change in applicable United States federal income tax law occurring
after the date of the Indenture. In the event of defeasance, the holders of debt
securities would thereafter be able to look only to such trust fund for payment
of principal (and premium, if any) and interest.
If the Company effects covenant defeasance with respect to any debt
securities and such debt securities are declared due and payable because of the
occurrence of any event of default, the amounts on deposit with the trustee,
will be sufficient to pay amounts due on such debt securities at the time of
their stated maturity but may not be sufficient to pay amounts due on such debt
securities at the time of the acceleration resulting from such event of default.
However, the Company would remain liable to make payment of such amounts due at
the time of acceleration.
The applicable prospectus supplement may further describe the provisions, if
any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above.
CONVERSION RIGHTS
The terms and conditions, if any, upon which debt securities are convertible
into common stock or preferred stock will be set forth in the applicable
prospectus supplement. Such terms will include whether such debt securities are
convertible into shares of common stock or preferred stock, the conversion price
(or manner of calculation thereof),
- the conversion period,
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- provisions as to whether conversion will be at the option of the holders
or the Company,
- the events requiring an adjustment of the conversion price,
- provisions affecting conversion in the event of the redemption of such
debt securities and
- any restrictions on conversion.
PAYMENT
Unless otherwise specified in the applicable prospectus supplement, the
principal of (and applicable premium, if any) and interest on any series of debt
securities will be payable at the corporate trust office of the trustee, the
address of which will be stated in the applicable Prospectus Supplement.
However, at the option of the Company, payment of interest may be made by check
mailed to the address of the person entitled thereto as it appears in the
applicable register for such debt securities or by wire transfer of funds to
such person at an account maintained within the United States.
All payment by the Company to a paying agent or a trustee for the payment of
the principal of or any premium or interest on any debt security which remain
unclaimed at the end of one year after the due date will be repaid to the
Company. The holder of such debt security thereafter may look only to the
Company for payment.
GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, a depositary identified in the applicable prospectus supplement. Global
securities may be issued in either registered or bearer form and in either
temporary or permanent form. The specific terms of the depositary arrangement
with respect to a series of debt securities will be described in the applicable
prospectus supplement.
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DESCRIPTION OF PREFERRED STOCK
The following is only a summary of the Company's preferred stock. You should
read the Company's Amended and Restated Articles of Incorporation (the "Articles
of Incorporation") and Amended Restated Bylaws (the "Bylaws") and each
prospectus supplement relating to preferred stock.
GENERAL
Under the Articles of Incorporation, the Company has authority to issue
5,000,000 shares of preferred stock, from time to time, in one or more series,
as authorized by the Board of Directors of the Company. Prior to the date of
this prospectus, the Company authorized the issuance of up to 2,000,000 shares
of preferred stock, denominated Series A Cumulative Convertible Exchangeable
preferred stock (the "Series A"). Of the 2,000,000 shares issued, 1,997,836 have
been converted into common stock and 2,164 shares have been redeemed by Beazer.
As of the date of this prospectus, the Company has also adopted a Shareholder
Rights Plan and distributed a dividend of one preferred share purchase right to
purchase one one-hundredth of a share of preferred stock, denominated Junior
Participating preferred stock, Series B (the "Series B") of the Company. The
Company has authorized the issuance of up to 300,000 shares of Series B. The
rights are redeemable and may be amended at the Company's option before they
become exercisable. Until a right is exercised, the holder of a right has no
rights as a shareholder of the Company. The rights expire on June 24, 2006.
Complete descriptions of the Series A, Series B and the rights are incorporated
herein by reference.
Prior to the issuance of shares of any series, the Board of Directors is
required by the General Corporation Law of the State of Delaware (the "DGCL")
and the Articles of Incorporation to adopt resolutions and file a Certificate of
Designation with the Secretary of State of the State of Delaware. The
Certificate of Designation fixes for each such class or series the designations,
powers, preferences and rights of the shares of each class or series and the
qualifications, limitations or restrictions of that series. The terms included
in the Certificate of Designation include dividend rights, dividend rate or
rates, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, and the
liquidation preferences as are permitted by the DGCL. The Board of Directors
could authorize the issuance of shares of preferred stock with terms and
conditions which could have the effect of discouraging a takeover or other
transaction which holders of some, or a majority, of such shares might believe
to be in their best interests or in which holders of some, or a majority, of
such shares might receive a premium for their shares over the then-market price
of such shares.
Subject to limitations required by the DGCL, the Articles of Incorporation
and Bylaws, the Board of Directors is authorized to fix the number of shares in
each class or series of preferred stock and the designations and powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including such provisions
as may be desired concerning voting, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and such other subjects or
matters as may be fixed by resolution of the Board of Directors or duly
authorized committee thereof. The preferred stock offered will, when issued, be
fully paid and non-assessable and will not have, or be subject to, any
preemptive or similar rights.
TERMS
Reference is made to the prospectus supplement relating to the preferred
stock then offered for specific terms, including:
- the title and stated value of such preferred stock;
- the number of shares of preferred stock offered;
- the liquidation preference per share;
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- the offering price of such preferred stock;
- the dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation of dividends applicable to such preferred stock;
- the date from which dividends on preferred stock shall accumulate, if
applicable;
- the provision for a sinking fund, if any, for such preferred stock;
- the provision for redemption, if applicable, of such preferred stock;
- any listing of such preferred stock on any securities exchange;
- the terms and conditions, if applicable, upon which such preferred stock
will be convertible into common stock, including the conversion price (or
manner of calculation thereof);
- any other specific terms, preferences, rights, limitations or restrictions
of such preferred stock;
- a discussion of federal income tax considerations applicable to the
preferred stock;
- the relative ranking and preference of the preferred stock as to dividend
rights and rights upon liquidation, dissolution or winding-up of the
affairs of the Company;
- any limitations on issuance of any series of preferred stock ranking
senior to or on the same rank as such series of preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding-up of
the affairs of the Company; and
- any limitations on direct or beneficial ownership and restrictions on
transfer.
The transfer agent and registrar for the preferred stock will be identified
in the prospectus supplement.
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DESCRIPTION OF COMMON STOCK
The description of the Company's common stock set forth below is only a
summary. You should read the Company's Articles of Incorporation and Bylaws to
understand all rights of holders of common stock.
GENERAL
Under the Articles of Incorporation, the Company has authority to issue
30,000,000 shares of common stock, par value $.01 per share. At January 17,
2000, the Company had outstanding 8,793,122 shares of common stock. Under the
Company's Shareholder Rights Plan, a right attaches to each outstanding share of
Common Stock. The Rights trade with the Common Stock until the rights become
exercisable. See "Preferred Stock."
TERMS
Subject to the preferential rights of any other shares or series of stock,
holders of shares of Common Stock are entitled to receive dividends on shares of
common stock when authorized and declared by the Board of Directors of the
Company out of assets legally available for the payment of dividends. Common
stockholders also share ratably in the assets of the Company legally available
for distribution to its stockholders in the event of its liquidation,
dissolution or winding-up after payment of all known debts and liabilities of
the Company and the amount to which holders of any class of stock classified or
reclassified or having a preference on distributions in liquidation, dissolution
or winding-up of the Company have a right.
Each outstanding share of common stock entitles the holder to one vote on
all matters submitted to a vote of Shareholders, including the election of
Directors. Except as otherwise required by law or except as provided with
respect to any other class or series of stock, the holders of common stock will
possess the exclusive voting power. There is no cumulative voting in the
election of Directors, which means that the holders of a majority of the
outstanding shares of common stock can elect all of the Directors then standing
for election, and the holders of the remaining shares of common stock will not
be able to elect any Directors.
Holders of common stock have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any securities of the Company.
The Company furnishes its stockholders with annual reports containing
audited consolidated financial statements and an opinion thereon by an
independent public accounting firm.
All shares of common stock will have equal dividend, distribution,
liquidation and other rights, and will have no preference, appraisal or exchange
rights.
DELAWARE GENERAL CORPORATION LAW SECTION 203
As a corporation organized under the laws of the State of Delaware, the
Company is subject to Section 203 of the DGCL, which restricts certain business
combinations between the Company and an "interested stockholder" (in general, a
stockholder owning 15% or more of the Company's outstanding voting stock) or
such stockholder's affiliates or associates for a period of three years
following the date on which the stockholder becomes an "interested stockholder."
The restrictions do not apply if
- prior to an interested stockholder becoming such, the Board of Directors
approves either the business combination or the transaction in which the
stockholder becomes an interested stockholder,
- upon consummation of the transaction in which such stockholder becomes an
interested stockholder, such interested stockholder owns at least 85% of
the voting stock of the Company
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outstanding at the time the transaction commenced (excluding shares owned
by certain employee stock ownership plans and persons who are both
directors and officers of the Company) or
- on or subsequent to the date an interested stockholder becomes such, the
business combination is both approved by the Board of Directors and
authorized at an annual or special meeting of the Company's stockholders
(and not by written consent) by the affirmative vote of at least 66% of
the outstanding voting stock not owned by the interested stockholder.
TRANSFER AGENT
The transfer agent and registrar for the Common Stock is First Chicago Trust
Company of New York.
BOOK-ENTRY ISSUANCE
Unless otherwise specified in the applicable prospectus supplement, DTC will
act as depositary for securities issued in the form of global securities. The
securities will be issued only as fully-registered securities registered in the
name of Cede & Co., DTC's nominee. One or more fully-registered global
securities will be issued for the securities representing in the aggregate the
total number of the securities, and will be deposited with or on behalf of DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered under the provisions of Section 17A of the Exchange Act. DTC holds
securities that its participants deposit with DTC. DTC also facilitates the
settlement among participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in participants' accounts. This eliminates the need for physical
movement of securities certificates. Direct participants include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. DTC is owned by a number of its direct participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships with direct
participants, either directly or through others. The rules applicable to DTC and
its participants are on file with the SEC.
Purchases of securities within the DTC system must be made by or through
direct participants, which will receive a credit for the securities on DTC's
records. The beneficial ownership interest of each actual purchaser of each
security is in turn recorded on the direct and indirect participants' records.
Beneficial owners will not receive written confirmation from DTC of their
purchases. However, beneficial owners are expected to receive written
confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the direct or indirect participants through
which the beneficial owners purchased securities. Transfers of ownership
interests in securities issued in the form of global securities are to be
accomplished by entries made on the books of participants acting on behalf of
beneficial owners. Beneficial owners will not receive certificates representing
their ownership interests in the securities, except if use of the book-entry
system for the securities is discontinued.
DTC has no knowledge of the actual beneficial owners of the securities
issued in the form of global securities. DTC's records reflect only the identity
of the direct participants to whose accounts the securities are credited, which
may or may not be the beneficial owners. The participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants, and by direct
participants and indirect participants to beneficial
21
<PAGE>
owners will be governed by arrangements among them, subject to any statutory or
regulatory requirements.
Redemption notices will be sent to Cede & Co. as the registered holder of
securities issued in the form of global securities. If less than all of a series
of the securities are being redeemed, DTC's current practice is to determine by
lot the amount of the interest of each direct participant to be redeemed.
Although voting with respect to securities issued in the form of global
securities is limited to the holders of record of the securities, in those
instances in which a vote is required, neither DTC nor Cede & Co. will itself
consent or vote with respect to the securities. Under its usual procedures, DTC
would mail an omnibus proxy to the issuer of the securities as soon as possible
after the record date. The omnibus proxy assigns Cede & Co.'s consenting or
voting rights to those direct participants to whose accounts the securities are
credited on the record date, identified in a listing attached to the omnibus
proxy.
Payments for securities issued in the form of global securities will be made
by the issuer of the securities to DTC. DTC's practice is to credit direct
participants' accounts on the payment date in accordance with their holdings
shown on DTC's records unless DTC has reason to believe that it will not receive
payments on the payment date. Payments by participants to beneficial owners will
be governed by standing instructions and customary practices and will be the
responsibility of the participant and not of DTC, the trustee or the Company,
subject to any statutory or regulatory requirements. Payments to DTC are the
responsibility of the issuer of the securities, disbursements of the payments to
direct participants are the responsibility of DTC, and disbursements of the
payments to the beneficial owners are the responsibility of direct and indirect
participants.
DTC may discontinue providing its services as depository with respect to any
securities at any time by giving reasonable notice to the issuer of the
securities. In the event that a successor depositary is not obtained, individual
security certificates representing the securities are required to be printed and
delivered. The Company may decide to discontinue use of the system of book-entry
transfers through DTC or a successor depositary.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be accurate, but the
Company assumes no responsibility for the accuracy of the information. The
Company has no responsibility for the performance by DTC or its participants of
their respective obligations as described in this prospectus or under the rules
and procedures governing their operations.
PLAN OF DISTRIBUTION
Any one of the securities being offered may be sold through underwriters or
dealers, directly to one or more purchasers, through agents or through a
combination of any such methods of sale.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices, at market prices prevailing at
the time of sale, at prices related to such prevailing market prices, or at
negotiated prices. Prices may change over time.
In connection with the sale of securities, underwriters or agents may
receive compensation from the Company or from purchasers of securities, for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers, and agents that participate in the distribution
of securities may be deemed to be underwriters under the Securities Act. Any
discounts or commissions they receive from the Company and any profit on the
resale of securities they realize may be deemed to be underwriting discounts and
commissions
22
<PAGE>
under the Securities Act. Any underwriter or agent will be identified, and any
compensation received from the Company will be described, in the applicable
prospectus supplement.
Unless otherwise specified in the related prospectus supplement, each series
of securities will be a new issue with no established trading market, other than
the common stock which is listed on the NYSE. Any shares of common stock sold
pursuant to a prospectus supplement will be listed on the NYSE, subject to
official notice of issuance. The Company may elect to list any series of debt
securities or preferred stock on an exchange, but is not obligated to do so. It
is possible that one or more underwriters may make a market in a series of
securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. Therefore, no assurance can be given as to
the liquidity of, or the trading market for, the securities.
Under agreements into which the Company may enter, underwriters, dealers and
agents who participate in the distribution of securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, or be tenants of, the Company in the ordinary course of business.
In order to comply with the securities laws of certain states, if
applicable, the securities offered hereby will be sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain
states Securities may not be sold unless they have been registered or qualified
for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference from the Company's Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
LEGAL MATTERS
Certain legal matters, including the validity of the securities, will be
passed upon for the Company by Paul, Hastings, Janofsky & Walker LLP, 399 Park
Avenue, New York, New York 10022.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission in accordance with the
Securities Exchange Act of 1934. You may read and copy this information at the
following locations of the SEC:
<TABLE>
<S> <C> <C>
Judiciary Plaza, Room 10024 Citicorp Center Seven World Trade Center,
450 Fifth Street, NW Street 500 West Madison Street Suite 1300
Washington, DC 20549 Suite 1400 New York, New York 10048
Chicago, Illinois 60661
</TABLE>
You can also obtain copies of such material from the Public Reference
Section of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The SEC maintains a web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with it, like Beazer Homes USA, Inc. The SEC's web site can be accessed at
http://www.sec.gov.
23
<PAGE>
You can also inspect reports, proxy and information statements, and other
information concerning the Company can at the offices of the New York Stock
Exchange at 20 Broad Street, New York, New York 10005.
The Company has filed with the SEC a registration statement on Form S-3, of
which this prospectus forms a part, under the Securities Act of 1933, as amended
(the "Securities Act"). As permitted by the rules and regulations of the SEC,
this prospectus omits certain information, exhibits and undertakings contained
in the registration statement. Such additional information, exhibits and
undertakings may be inspected and obtained from the SEC's principal office in
Washington, D.C. The summaries or descriptions of documents in this prospectus
are not necessarily complete. Reference is made to the copies of such documents
attached hereto or otherwise filed as a part of the registration statement for a
full and complete statement of their provisions, and such summaries and
descriptions are, in each case, qualified in their entirety by such reference.
The SEC allows us to "incorporate by reference" the information we file with
the SEC. This permits us to disclose important information to you by referencing
these filed documents. Any information referenced in this way is considered part
of this prospectus, and any information filed with the SEC subsequent to this
prospectus will automatically update and supersede this information. We
incorporate by reference the following documents which have been filed with the
SEC:
- The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999.
- The description of the Company's capital stock contained in the Company's
Registration Statements on Form 8-A under Section 12 of the Exchange Act,
filed on January 28, 1994 and June 21, 1996, respectively, including any
amendment or report filed for the purpose of updating those descriptions.
We incorporate by reference the documents listed above and any future filing
made with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of this prospectus and prior to the termination of the
offering of all securities covered by this prospectus. Further, all filings made
with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of the initial registration statement and prior to effectiveness
of the registration statement are also incorporated by reference. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this prospectus to the extent that a
statement contained herein modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
WE WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF THIS
PROSPECTUS HAS BEEN DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON
TO THE COMPANY AT 5775 PEACHTREE DUNWOODY ROAD, SUITE B-200, ATLANTA, GEORGIA
30342, ATTENTION: DIRECTOR OF INVESTOR RELATIONS (TELEPHONE: (404) 250-3420),
ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS) WHICH HAVE BEEN INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
24
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT. IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS AND ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IS GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MAY NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS AND ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT, NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN ANY CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS AND ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE ANY OFFER OF SOLICITATION
BY ANY ONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
About this Prospectus.................. 2
Risk Factors........................... 2
The Company............................ 5
Use of Proceeds........................ 8
Ratio of Earnings to Fixed Charges..... 8
Description of Debt Securities......... 8
Description of Preferred Stock......... 18
Description of Common Stock............ 20
Plan of Distribution................... 22
Experts................................ 23
Legal Matters.......................... 23
Where You Can Find More Information.... 23
</TABLE>
$300,000,000
BEAZER HOMES USA, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
---------------------
PROSPECTUS
---------------------
, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the distribution of the securities being
registered are set forth in the following table (all amounts except the
registration fee, the NASD fee and the NYSE fee are estimated):
<TABLE>
<S> <C>
Registration fee............................................ $79,200
NASD fee.................................................... *
NYSE fee.................................................... *
Printing expenses........................................... *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Blue Sky fees and expenses (including attorneys' fees)...... *
Transfer agent fee.......................................... *
Miscellaneous............................................... *
-------
TOTAL................................................... $
=======
</TABLE>
* To be supplied by amendment.
All expenses in connection with the issuance and distribution of the
securities being offered will be borne by the Company (other than selling
commissions).
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(7) of the Delaware General Corporation Law (the "DGCL") enables
a corporation incorporated in the State of Delaware to eliminate or limit,
through provisions in its original or amended articles of incorporation, the
personal liability of a director for violations of the director's fiduciary
duties, except (i) for any breach of the director's duty of loyalty to the
corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) any
liability imposed pursuant to Section 174 of the DGCL (providing for liability
of directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Section 145 of the DGCL provides that a corporation incorporated in the
State of Delaware may indemnify any person or persons, including officers and
directors, who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such officer, director, employee, or agent acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the corporation's best interests and, for criminal proceedings, had no
reasonable cause to believe that the challenged conduct was unlawful. A
corporation incorporated in the State of Delaware may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must provide
indemnification against the expenses that such officer or director actually and
reasonably incurred.
II-1
<PAGE>
The Bylaws of the Company provide for indemnification of directors and
officers of the Company to the fullest extent permitted by the DGCL.
Section 145(g) of the DGCL authorizes a corporation incorporated in the
State of Delaware to provide liability insurance for directors and officers for
certain losses arising from claims or charges made against them while acting in
their capacities as directors or officers of the corporation. The Company
maintains a policy insuring its directors and officers and directors and
officers of its subsidiary companies, to the extent they may be required or
permitted to indemnify such directors or officers, against certain liabilities
arising from acts or omission in the discharge of their duties that they shall
become legally obligated to pay.
ITEM 16. EXHIBITS.
There are filed with the Registration Statement the following exhibits:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- --------------------- -----------
<C> <S>
3.1* Amended and Restated Certificate of Incorporation of the
Company.
3.2* Amended and Restated Bylaws of the Company.
3.3(a)** Certificate of Incorporation of Beazer Homes Corp. (f/k/a
Phillips Builders, Inc.)
3.3(b)*** Articles of Amendment to the Charter of Beazer Homes Corp.
3.3(c)*** Certificate of Incorporation of Beazer Homes Holdings Corp.
3.3(d)*** Certificate of Amendment to the Certificate of Incorporation
of Beazer Homes Holdings Corp.
3.3(e)*** Certificate of Amendment to the Certificate of Incorporation
of Beazer Homes Holdings Corp.
3.3(f)** Amended Articles of Incorporation of Beazer Realty Corp.
(f/k/a Beazer-Cohn Realty Corp.)
3.3(g)*** Articles of Amendment to Articles of Incorporation of Beazer
Realty Corp.
3.3(h)*** Certificate of Incorporation of Beazer Mortgage Corporation.
3.3(i)** Certificate of Incorporation of Beazer Homes Sales Arizona
Inc.
3.3(j)** Articles of Incorporation of Beazer/Squires, Inc.
3.3(k)*** Articles of Incorporation of Panitz Homes Realty, Inc.
3.3(l)*** Certificate of Incorporation of Beazer Homes Texas Holdings,
Inc.
3.3(m)*** Certificate of Amendment of Certificate of Incorporation of
Beazer Homes Texas Holdings, Inc.
3.3(n)*** Certificate of Limited Partnership of Beazer Homes Texas,
L.P.
3.4(a)** Bylaws of Beazer Homes Corp. (f/k/a Phillips Builders Inc.)
3.4(b)*** Bylaws of Beazer Homes Holdings Corp.
3.4(c)** Bylaws of Beazer Realty Corp. (f/k/a Beazer-Cohn Realty
Corp.)
3.4(d)*** Bylaws of Beazer Mortgage Corporation
3.4(e)** Bylaws of Beazer Homes Sales Arizona Inc.
3.4(f)** Bylaws of Beazer/Squires Realty, Inc.
3.4(g)*** Bylaws of Panitz Homes Realty, Inc.
3.4(h)*** Bylaws of Beazer Homes Texas Holdings, Inc.
3.4(i)*** Agreement of Limited Partnership of Beazer Homes Texas, L.P.
4.1**** Form of Indenture.
5.1**** Opinion of Paul, Hastings, Janofsky & Walker LLP as to the
validity of the securities being registered.
12**** Computation of Ratios of Earnings to Fixed Charges
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- --------------------- -----------
<C> <S>
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included
in Exhibit 5.1).
24.1 Power of Attorney (included in Part II of this Registration
Statement).
</TABLE>
- ------------------------
* Incorporated herein by reference to the exhibits to the Company's Current
Report on Form 8-K filed on May 30, 1996.
** Incorporated herein by reference to the exhibits to the Company's
Registration Statement on Form S-1 (Registration No. 33-72982) initially
filed on December 15, 1993.
*** Incorporated herein by reference to the exhibits to the Company's
Registration Statement on Form S-4 (Registration No. 333-51087) initially
filed on April 27, 1998.
****Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any acts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee
II-3
<PAGE>
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933, as amended, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of the Trust Indenture Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on January 27, 2000.
<TABLE>
<S> <C> <C>
BEAZER HOMES USA, INC.
By: /s/ IAN J. MCCARTHY
-----------------------------------------
Ian J. McCarthy
President and Chief Executive Officer
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<C> <S> <C>
*
------------------------------------------- Director and Non-Executive January 27, 2000
Brian C. Beazer Chairman of the Board
Director, President and
* Chief Executive Officer
------------------------------------------- (Principal Executive January 27, 2000
Ian J. McCarthy Officer)
Director, Secretary,
Executive Vice President
/s/ DAVID S. WEISS and Chief Financial
------------------------------------------- Officer (Principal January 27, 2000
David S. Weiss Financial and Accounting
Officer)
*
------------------------------------------- Director January 27, 2000
Thomas B. Howard
*
------------------------------------------- Director January 27, 2000
George W. Mefferd
*
------------------------------------------- Director January 27, 2000
D.E. Mundell
*
------------------------------------------- Director January 27, 2000
Larry T. Solari
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on the 27 day of January, 2000.
<TABLE>
<S> <C> <C>
BEAZER HOMES CORP.
BY: /S/ IAN J. MCCARTHY
---------------------------------------
Ian J. McCarthy
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, President and Chief January 27, 2000
------------------------------------------- Executive Officer (Principal
Ian J. McCarthy Executive Officer)
/s/ DAVID S. WEISS Vice President and Chief January 27, 2000
------------------------------------------- Financial Officer (Principal
David S. Weiss Financial Officer)
* Director January 27, 2000
-------------------------------------------
Brian C. Beazer
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on the 27 day of January, 2000.
<TABLE>
<S> <C> <C>
BEAZER HOMES HOLDINGS CORP.
BY: /S/ IAN J. MCCARTHY
-----------------------------------------
Ian J. McCarthy
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Ian J. McCarthy and David S. Weiss, or any one or more of them, his true and
lawful attorney-in-fact, for him and in his name, place and stead, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement and to cause the same to be filed with the Securities and Exchange
Commission, hereby granting to said attorneys-in-fact full power and authority
to do and perform all and every act and thing whatsoever requisite or desirable
to be done in and about the premises as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
acts and things that said attorneys-in-fact may do or cause to be done by virtue
of these presents.
Pursuant to the requirements of the Securities Act of 1933, the Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, President and January 27, 2000
------------------------------------------- Chief Executive Officer
Ian J. McCarthy (Principal Executive
Officer)
/s/ DAVID S. WEISS Vice President and Chief January 27, 2000
------------------------------------------- Financial Officer
David S. Weiss (Principal Financial
Officer)
*
------------------------------------------- Director January 27, 2000
Brian C. Beazer
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on the 27 day of January, 2000.
<TABLE>
<S> <C> <C>
BEAZER REALTY CORP.
BY: /S/ IAN J. MCCARTHY
-----------------------------------------
Ian J. McCarthy
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, President and January 27, 2000
------------------------------------------- Chief Executive Officer
Ian J. McCarthy (Principal Executive
Officer)
/s/ DAVID S. WEISS Vice President and Chief January 27, 2000
------------------------------------------- Financial Officer
David S. Weiss (Principal Financial
Officer)
* Director January 27, 2000
-------------------------------------------
Brian C. Beazer
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on the 27 day of January, 2000.
<TABLE>
<S> <C> <C>
BEAZER MORTGAGE CORPORATION
BY: /S/ IAN J. MCCARTHY
-----------------------------------------
Ian J. McCarthy
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, President and January 27, 2000
------------------------------------------- Chief Executive Officer
Ian J. McCarthy (Principal Executive
Officer)
/s/ DAVID S. WEISS Vice President and Chief January 27, 2000
------------------------------------------- Financial Officer
David S. Weiss (Principal Financial
Officer)
*
------------------------------------------- Director January 27, 2000
Brian C. Beazer
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on the 27 day of January, 2000.
<TABLE>
<S> <C> <C>
BEAZER HOMES SALES ARIZONA INC.
BY: /S/ IAN J. MCCARTHY
-----------------------------------------
Ian J. McCarthy
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, President and January 27, 2000
------------------------------------------- Chief Executive Officer
Ian J. McCarthy (Principal Executive
Officer)
/s/ DAVID S. WEISS Vice President and Chief January 27, 2000
------------------------------------------- Financial Officer
David S. Weiss (Principal Financial
Officer)
*
------------------------------------------- Director January 27, 2000
Brian C. Beazer
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on the 27 day of January, 2000.
<TABLE>
<S> <C> <C>
BEAZER/SQUIRES REALTY, INC.
BY: /S/ IAN J. MCCARTHY
-----------------------------------------
Ian J. McCarthy
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, President and January 27, 2000
------------------------------------------- Chief Executive Officer
Ian J. McCarthy (Principal Executive
Officer)
/s/ DAVID S. WEISS Vice President and Chief January 27, 2000
------------------------------------------- Financial Officer
David S. Weiss (Principal Financial
Officer)
*
------------------------------------------- Director January 27, 2000
Brian C. Beazer
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on the 27 day of January, 2000.
<TABLE>
<S> <C> <C>
PANITZ HOMES REALTY, INC.
BY: /S/ IAN J. MCCARTHY
-----------------------------------------
Ian J. McCarthy
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, President and January 27, 2000
------------------------------------------- Chief Executive Officer
Ian J. McCarthy (Principal Executive
Officer)
/s/ DAVID S. WEISS Vice President and Chief January 27, 2000
------------------------------------------- Financial Officer
David S. Weiss (Principal Financial
Officer)
*
------------------------------------------- Director January 27, 2000
Brian C. Beazer
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on the 27 day of January, 2000.
<TABLE>
<S> <C> <C>
BEAZER HOMES TEXAS HOLDINGS, INC.
BY: /S/ IAN J. MCCARTHY
-----------------------------------------
Ian J. McCarthy
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, President and January 27, 2000
------------------------------------------- Chief Executive Officer
Ian J. McCarthy (Principal Executive
Officer)
/s/ DAVID S. WEISS Vice President and Chief January 27, 2000
------------------------------------------- Financial Officer
David S. Weiss (Principal Financial
Officer)
*
------------------------------------------- Director January 27, 2000
Brian C. Beazer
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on the 27 day of January, 2000.
<TABLE>
<S> <C> <C>
BEAZER HOMES TEXAS, L.P.
a Delaware Limited Partnership
By: Beazer Homes Texas Holdings, Inc.
as General Partner
By: /s/ IAN J. MCCARTHY
-----------------------------------------
Ian J. McCarthy
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, President and January 27, 2000
------------------------------------------- Chief Executive Officer
Ian J. McCarthy (Principal Executive
Officer)
/s/ DAVID S. WEISS Vice President and Chief January 27, 2000
------------------------------------------- Financial Officer
David S. Weiss (Principal Financial
Officer)
*
------------------------------------------- Director January 27, 2000
Brian C. Beazer
</TABLE>
*By: /s/ DAVID S. WEISS
- -----------------------------------------------------------------------------
David S. Weiss
Attorney-in-Fact
II-14
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE NO.
- ----------- ----------- --------
<C> <S> <C>
23.1 Consent of Deloitte & Touche LLP.
</TABLE>
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Beazer Homes USA, Inc. on Form S-3 of our report dated November 3, 1999,
incorporated by reference in the Annual Report on Form 10-K of Beazer Homes
USA, Inc. for the year ended September 30, 1999 and to the reference to us under
the heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
- -------------------------------------------
DELOITTE & TOUCHE LLP
Atlanta, Georgia
January 28, 2000
