Quarterly Report — Form 10-Q Filing Table of Contents
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1: 10-Q Quarterly Report HTML 404K
2: EX-3.9 Articles of Incorporation/Organization or By-Laws HTML 71K
3: EX-10.28 Material Contract HTML 25K
4: EX-10.29 Material Contract HTML 27K
5: EX-10.30 Material Contract HTML 19K
6: EX-31.1 Certification per Sarbanes-Oxley Act (Section 302) HTML 14K
7: EX-31.2 Certification per Sarbanes-Oxley Act (Section 302) HTML 14K
8: EX-32.1 Certification per Sarbanes-Oxley Act (Section 906) HTML 9K
9: EX-32.2 Certification per Sarbanes-Oxley Act (Section 906) HTML 8K
EX-3.9 — Articles of Incorporation/Organization or By-Laws
KB HOME, a corporation organized and existing under and by virtue of the General Corporation
Law of the State of Delaware (the “Corporation”), hereby certifies as follows:
1. That at a meeting of the Board of Directors of the Corporation, resolutions were duly
adopted setting forth a proposed amendment of the Amended Certificate of Incorporation of the
Corporation, declaring said amendment to be advisable and calling for the proposal to be presented
to the stockholders of the Corporation at its Annual Meeting of Stockholders. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Amended Certificate of Incorporation of the
Corporation be amended to decrease the authorized Common Stock and for
this purpose Paragraph (a) of Article Fourth thereof shall be struck out
in its entirety and shall be replaced with the following new Paragraph (a)
of Article Fourth:
FOURTH: (a) The total number of shares of stock which the
Corporation shall have authority to issue is 325,000,000 consisting of
290,000,000 shares of Common Stock, par value $1.00 per share (the “Common
Stock”), 25,000,000 shares of Special Common Stock, par value $1.00 per
share (the “Special Common Stock”) 10,000,000 shares of Preferred Stock,
par value $1.00 per share (the “Preferred Stock”).
2. That thereafter, an Annual Meeting of the Stockholders of the Corporation was duly called
and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of
Delaware on April 6, 2006, at which Annual Meeting the necessary number of shares as required by
statute were voted in favor of the amendment of the Certificate of Incorporation herein certified.
3. That said amendment was duly adopted in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, said Corporation has caused this certificate to be executed by an
authorized officer on the 6th day of April 2006.
Vice President, Deputy General Counsel
and Corporate Secretary
State of California
)
)
County of Los Angeles
)
Subscribed and sworn to before me
on
this 6th day of April, 2006,
by Charles F. Carroll, personally
known
to me to be the person who
appeared before me.
KB HOME, a corporation organized and existing under and by virtue of the General Corporation
Law of the State of Delaware (the “Corporation”), hereby certifies as follows:
1. That at a meeting of the Board of Directors of the Corporation, resolutions were duly
adopted setting forth a proposed amendment of the Certificate of Incorporation of the Corporation,
declaring said amendment to be advisable and calling for the proposal to be presented to the
stockholders of the Corporation at its Annual Meeting of the Stockholders. The resolution setting
forth the proposed amendment is as follows:
RESOLVED, That the Amended Certificate of Incorporation of the Corporation be amended
to increase the authorized Common Stock and for this purpose Paragraph (a) of Article
Fourth thereof shall be struck out in its entirety and shall be replaced with the
following new Paragraph (a) of Article Fourth:
FOURTH: (a) The total number of shares of stock which the Corporation
shall have authority to issue is 335,000,000 consisting of 300,000,000
shares of Common Stock, par value $1.00 per share (the “Common Stock”),
25,000,000 shares of Special Common Stock, par value $1.00 per share (the
“Special Common Stock”) and 10,000,000 shares of Preferred Stock, par value
$1.00 per share (the “Preferred Stock”).
2. That thereafter, an Annual Meeting of the Stockholders of the Corporation was duly called
and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of
Delaware on April 7, 2005, at which Annual Meeting the necessary numbers of shares as required by
statute were voted in favor of the amendment of the Certificate of Incorporation herein certified.
3. That said amendment was duly adopted in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, said Corporation has caused this certificate to be executed by an
authorized officer on this 7th day of April 2005.
(Pursuant to Section 263 of the
General Corporation Law of Delaware)
Kaufman and Broad Home Corporation, a corporation organized and existing under the laws of
Delaware (the “Corporation”), does hereby certify:
FIRST: That the Corporation owns all of the outstanding shares of each class of stock
of KB Home, Inc. a Delaware corporation.
SECOND: That the Corporation, by the following resolutions of its Board of Directors,
duly adopted at a meeting held on December 6, 2000, determined to and did merge into itself
said KB Home, Inc., by the adoption thereof:
RESOLVED, that the Corporation merge, and it hereby does merge, into
itself KB Home, Inc. and assumes all of its obligations.
RESOLVED, that said merger shall become effective upon the filing of a
Certificate of Ownership and Merger with the Secretary of State of the State
of Delaware or at such later time set forth therein.
RESOLVED, that upon effectiveness of said merger, the name of the
Corporation shall be changed to KB HOME and Article FIRST of the Certificate
of Incorporation of the Corporation shall be amended to read as follows:
FIRST. The name of the corporation (hereinafter called
the “Corporation”) is KB HOME.
RESOLVED, that the proper officers of the Corporation be, and they
hereby are, directed to make and execute a Certificate of Ownership and
Merger setting forth a copy of the resolutions to so merge KB Home, Inc.
into the Corporation and to assume its obligations, and to so change the
name of the Corporation, and the date of adoption thereof, and to cause the
same to be filed with the Secretary of State of the State of Delaware and to
do all acts and things whatsoever, whether within or without the
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State of Delaware, which may be necessary or proper to effect said
merger and change of name.
THIRD: This Certificate shall be effective at 12:01 a.m., E.S.T. on January 17, 2001.
In Witness Whereof, the Corporation has caused this certificate to be signed by the duly
authorized officer, this 9th day of January, 2001.
Kaufman and Broad Home Corporation, a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation held on December 5,
1988, resolutions were duly adopted setting forth a proposed amendment of the Certificate of
Incorporation of said Corporation, declaring said amendment to be advisable and calling a meeting
of the stockholders of said Corporation for consideration thereof. The resolution setting forth
the proposed amendment is as follows:
RESOLVED, that subject to the adoption of the KBH Proposal by the shareholders of the
Corporation at the Special Meeting, the Amended Certificate of Incorporation of the Corporation, as
heretofore amended, shall be further amended as follows:
“I. Section (a) of Article Fourth will be amended in its entirety, to read:
FOURTH: (a) The total number of shares of stock which the Corporation
shall have authority to issue is 135,000,000 consisting of 100,000,000
shares of Common Stock, par value $1.00 per share (the “Common Stock”),
25,000,000 shares of Special Common Stock, par value $1.00 per share (the
“Special Common Stock”) and 10,000,000 shares of Preferred Stock, par value
$1.00 per share (the “Preferred Stock”).
II. Former sections (b) and (c) of Article Fourth will be designated sections (c) and (d),
respectively, of Article Fourth, and the following new section (b) will be added to Article Fourth:
(b)(i) Except as otherwise provided by this section (b), the powers,
preferences and dividend and other rights the Common Stock and Special
Common Stock shall be identical in all respects.
(2) Subject to the rights of the holders of Preferred Stock, and
subject to any other provisions of this Certificate of Incorporation,
holders of Common Stock and Special Common Stock shall be entitled to
receive such dividends and other distributions in cash, stock of any
corporation other than the Corporation or property of the Corporation as may
be declared thereon by the Board of Directors from time to time out of
assets or funds of the Corporation legally available therefor and shall
share equally on a per share basis in all such dividends and other
distributions. In the case of dividends or other distributions payable in
stock of the Corporation other than Preferred Stock, including distributions
pursuant to
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stock splits or divisions of stock of the Corporation, other than
Preferred Stock which occur after the initial issuance of shares of Special
Common Stock by the Corporation, only shares of Common Stock shall be paid
or distributed with respect to Common Stock and only shares of Special
Common Stock shall be paid or distributed with respect to Special Common
Stock in each case in an amount per share equal to the amount per share paid
or distributed with respect to the Common Stock or the Special Common Stock,
as the case may be. In the case of any combination or reclassification of
the Common Stock or Special Common Stock, the shares of each class shall be
combined or reclassified so that the number of shares of such class
outstanding immediately following such combination or reclassification shall
bear the same relationship to the number of shares of such class outstanding
immediately prior to such combination or reclassification as the number of
shares of the other class outstanding immediately following such combination
or reclassification bears to the number of shares of such other class
outstanding immediately prior to such combination or reclassification.
(3)(A) At every meeting of the stockholders every holder of Common
Stock shall be entitled to one vote in person or by proxy for each share of
Common Stock standing in his or her name on the transfer books of the
Corporation, and every holder of Special Common Stock shall be entitled to
one-tenth of one vote in person or by proxy for each share of Special Common
Stock standing in his or her name on the transfer books of the Corporation.
(B) The provisions of this Certificate of Incorporation shall not be
modified, revised, altered or amended, repealed or rescinded in whole or in
part, without the approval of a majority of votes entitled to be cast by the
holders of the Common Stock and the Special Common Stock, voting together as
a single class; provided, however, that with respect to any
proposed amendment to this Certificate of Incorporation which would alter or
change the powers, preferences, relative voting power or dividend or other
rights of the shares of Common Stock or Special Common Stock so as to affect
them adversely, the approval of a majority of votes entitled to be cast by
the holders of the class affected by the proposed amendment, voting
separately as a class, shall be obtained in addition to the approval of a
majority of the votes entitled to be cast by the holders of the Common Stock
and the Special Common Stock voting together as a single class as
hereinbefore provided.
(C) Every reference in this Certificate of Incorporation to a majority
or other proportion of shares of stock shall refer to such majority or other
proportion of the votes to which such shares of stock are entitled.
(D) Except as may be otherwise required by law or by this Article
Fourth, the holders of Common Stock and Special Common Stock
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shall vote together as a single class, subject to any voting rights
which may be granted to holders of Preferred Stock, on all matters submitted
to a vote of the holders of Common Stock.
(4) In the event of any dissolution, partial or complete liquidation or
winding up of the affairs of the Corporation, whether voluntary or
involuntary, after payment in full of the amounts required to be paid to the
holders of Preferred Stock, the remaining assets and funds of the
Corporation shall be divided among and paid ratably to the holders of Common
Stock and Special Common Stock as a single class. For the purposes of this
paragraph 4, the voluntary sale, conveyance, lease, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all or
substantially all of the assets of the Corporation or a consolidation or
merger of the Corporation with one or more other corporations (whether or
not the Corporation is the corporation surviving such consolidation or
merger) shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary.
(5) In case of any reorganization or any consolidation of the
Corporation with one or more other corporations or a merger of the
Corporation with another corporation, each holder of a share of Common Stock
shall be entitled to receive with respect to such share the same kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reorganization, consolidation or merger by a holder of
a share of Special Common Stock and each holder of a share of Special Common
Stock shall be entitled to receive with respect to such share the same kind
and amount of shares of stock and other securities and property (including
cash) receivable upon such reorganization, consolidation or merger by a
holder of a share of Common Stock.
(6)(A) Subject to the terms and conditions of this paragraph 6, each
share of Special Common Stock shall be convertible at the option of the
holder thereof into one fully paid and nonassessable share of Common Stock
if (i) the Corporation shall make an offer to holders of Common Stock to
purchase shares of Common Stock for cash or a combination of cash and other
securities or property or to exchange shares of Common Stock for other
securities of the Corporation or (ii) any other person shall make an offer
to all holders of Common Stock to purchase shares of Common Stock for cash
or a combination of cash and other securities or property. The Corporation
covenants to give prompt notice in writing to all holders of Special Common
Stock or any offer referred to in the foregoing clauses (i) and (ii). The
Special Common Stock shall be convertible under this paragraph 6 solely for
the purpose of enabling such shares to be tendered pursuant to such offer as
long as such offer shall remain in effect and shall not be terminated,
rescinded or completed. Notwithstanding the foregoing, each share of
Special Common Stock converted into a share of Common Stock pursuant to this
paragraph 6 and
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not purchased pursuant to such offer prior to the termination,
recission or completion thereof shall automatically be reconverted into
Special Common Stock.
(B) The Special Common Stock shall be convertible in accordance with
the terms of this paragraph 6 at the office of any transfer agent for the
Special Common Stock and at such other place or places, if any, as the Board
of Directors of the Corporation may designate or, if the Board of Directors
shall fail to so designate, the principal office of the Corporation
(attention of the Secretary of the Corporation). Upon conversion, the
Corporation shall make no payment or adjustment on account of dividends
accrued or in arrears on Special Common Stock surrendered for conversion or
on account of any dividends on the Common Stock issuable on such conversion.
Before any holder of Special Common Stock shall be entitled to convert the
same into Common Stock, such holder shall surrender the certificate or
certificates for such Special Common Stock at the office of said transfer
agent (or other place as provided above), which certificate or certificates,
if the Corporation shall so request, shall be duly endorsed to the
Corporation or in blank or accompanied by proper instruments of transfer to
the Corporation or in blank (such endorsements or instruments of transfer to
be in form satisfactory to the Corporation), and shall give written notice
to the Corporation at said office that such holder elects to convert such
Special Common Stock in accordance with the terms of this paragraph 6 and
such holder shall state in writing therein the name or names of the person
or persons making the offer entitling such holder to convert his Special
Common Stock. The Corporation will, as soon as practicable after such
deposit of a certificate or certificates for Special Common Stock
accompanied by the written notice and the statement above prescribed, issue
and deliver at the office of said transfer agent (or other place as provided
above) to the person for whose account such Special Common Stock was so
surrendered, or to his nominee or nominees, a certificate or certificates
for the number of shares of Common Stock to which he shall be entitled as
aforesaid, provided that until such certificate or certificates shall be
transferred to the person or persons identified in the statement above
prescribed or the nominee or nominees of such person, such certificate or
certificates shall bear a legend substantially to the effect of the last
sentence of the foregoing subparagraph (A). Subject to the provisions of
subparagraph (D) of this paragraph 6, such conversion shall be deemed to
have been made as of the date of such surrender of the Special Common Stock
to be converted; and the person or persons entitled to receive the Common
Stock issuable upon conversion of such Special Common Stock shall be treated
for all purposes as the record holder or holders of such Common Stock on
such date.
(C) The issuance of certificates for shares of Common Stock upon
conversion of shares of Special Common Stock shall be made
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without charge for any stamp or other similar tax in respect of such
issuance. However, if any such certificate is to be issued in a name other
than that of the holder of the share or shares of Special Common Stock
converted, the person or persons requesting the issuance thereof shall pay
to the Corporation the amount of any tax which may be payable in respect of
any transfer involved in such issuance or shall establish to the
satisfaction of the Corporation that such tax has been paid.
(D) The Corporation shall not be required to convert Special Common
Stock, and no surrender of Special Common Stock shall be effective for that
purpose, while the stock transfer books of the Corporation are closed for
any purpose; but the surrender of Special Common Stock for conversion during
any period while such books are so closed shall be deemed effective for
conversion immediately upon the reopening of such books, as if the
conversion had been made on the date such Special Common Stock was
surrendered.
(E) The Corporation will at all times reserve and keep available,
solely for the purpose of issue upon conversion of the outstanding shares of
Special Common Stock, such number of shares of Common Stock as shall be
issuable upon the conversion of all such outstanding shares, provided that
nothing contained herein shall be construed to preclude the Corporation from
satisfying its obligations in respect of the conversion of the outstanding
shares of Special Common Stock by delivery of shares of Common Stock which
are held in the treasury of the Corporation. The Corporation covenants that
all shares of Common Stock which shall be issued upon conversion of the
shares of Special Common Stock, will, upon issue, be fully paid and
nonassessable and not entitled to any preemptive rights.
III. New Paragraphs (c) and (d) will be added to Article Fifth and will read as follows:
(c)(i) The directors shall be divided, with respect to the terms for
which they severally hold office, into three classes, as nearly equal in
number as the then total number of directors constituting the whole Board of
Directors permits, as determined by the Board of Directors, with the term of
office of one class expiring each year. At the annual meeting of
stockholders in 1989, at which directors shall initially be classified,
directors of the first class shall be elected to hold office for a term
expiring at the annual meeting of stockholders in 1990, directors of the
second class shall be elected to hold office for a term expiring at the
annual meeting of stockholders in 1991 and directors of the third class
shall be elected to hold office for a term expiring at the annual meeting of
stockholders in 1992, with each class of directors to hold office until
their successors are duly elected and qualified. At each annual meeting of
stockholders following such initial classification and election, directors
elected to succeed those directors whose terms shall then expire, other
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than those directors elected as provided in paragraph (c)(ii) by a
separate class vote of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation of the
Corporation, shall be elected to hold office for a term expiring at the
third succeeding annual meeting of stockholders after such election. In the
event of any increase in the number of directors of the Corporation, the
additional director or directors shall be so classified that all classes of
directors shall be as nearly equal in number as may be possible, as
determined by the Board of Directors. In the event of any decrease in the
number of directors of the Corporation, all classes of directors shall be
decreased in number as nearly equally as may be possible, as determined by
the Board of Directors. No decrease in the number of directors shall
shorten the term of any incumbent director.
(ii) If at any time the holders of any class or series of stock of the
Corporation having a preference over the Common Stock as to dividends or
upon liquidation of the Corporation are entitled, by a separate class vote,
to elect directors pursuant to the terms of this Certificate of
Incorporation (as it may be amended from time to time), then the provisions
of the Certificate of Incorporation with respect to their rights shall
apply. Except as otherwise expressly provided in the Certificate of
Incorporation (including any Certificate of Designation hereto) the
directors that may be so elected by the holders of any such class or series
of stock shall be elected for terms expiring at the next annual meeting of
stockholders and, without regard to the classification of the remaining
members of the Board of Directors, vacancies among directors so elected by
the separate class vote of any such class or series of stock shall be filled
by the remaining directors elected by such class or series, or, if there are
no such remaining directors, by the holders of such class or series in the
same manner in which such class or series initially elected directors.
(iii) If at any meeting for the election of directors, more than one
class of stock, voting separately as classes, shall be entitled to elect one
or more directors and there shall be a quorum of only one such class of
stock, that class of stock shall be entitled to elect its quota of directors
notwithstanding the absence of a quorum of the other class or classes of
stock.
(d) In addition to any requirements of law and any other provisions of
this Certificate of Incorporation or any resolution or resolutions of the
Board of Directors adopted pursuant to this Certificate of Incorporation
(and notwithstanding the fact that a lesser percentage may be specified by
law, this Certificate of Incorporation or any such resolutions), the
affirmative vote of the holders of 80% of the combined voting power of the
then outstanding capital stock of the Corporation shall be required to
amend, alter or repeal, or adopt any provision inconsistent with the
requirements of, this Article Fifth.
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IV. A new Paragraph (f) will be added to Article Sixth and will read as follows:
(f) Special meetings of stockholders may be called only by the Board of
Directors or the Chairman of the Board.
V. Section (2)(f) of Article Eighth will be amended to read as follows:
(f) The term “Voting Stock” shall mean all outstanding Common Stock,
Special Common Stock and all other outstanding capital stock of the
Corporation, if any, entitled to vote on each matter on which the holders of
record of Common Stock shall be entitled to vote, and each reference to a
proportion of shares of Voting Stock shall refer to such proportion of the
votes entitled to be cast by the holders of such Common Stock, Special
Common Stock and other capital stock, if any.
VI. Former Article Ninth will be designated Article Tenth and the following new Article Ninth will
read in its entirety:
NINTH: The Corporation shall be governed by the provisions of Section
203 of the General Corporation Law of the State of Delaware, as such section
may be amended from time to time.”
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting
of the stockholders of said Corporation was duly called and held on February 21, 1989, upon notice
in accordance with Section 222 of the General Corporation Law of the State of Delaware at which
meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Bruce Karatz,
its President and Alan R. Markizon, its Secretary, this 21st day of February, 1989.
This is to certify that on June 10, 1986 the sole shareholder of Kaufman and Broad Capital
Corporation (the “Corporation”), Kaufman and Broad, Inc., consented to the amendment, in its
entirety, as set forth in Exhibit A attached hereto, of the Corporation’s Certificate of
Incorporation.
The aforementioned amendment was duly adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
FIRST: The name of the corporation (hereinafter called the “Corporation”) is Kaufman and
Broad Home Corporation.
SECOND: The address of the registered office of the Corporation in the State of Delaware is
229 South State Street, City of Cover, County of Kent, Delaware. The name of its registered agent
at such address is Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may now or hereafter be organized under the General Corporation Law of the State of
Delaware.
FOURTH: (a) The total number of shares of stock which the Corporation shall have authority
to issue is 110,000,000 consisting of 100,000,000 shares of Common Stock, par value $1.00 per share
(the “Common Stock”), and 10,000,000 shares of Preferred Stock, par value $1.00 per share (the
“Preferred Stock”).
(b) Preferred Stock may be issued from time to time in one or more series with such
distinctive designations as may be stated in the resolution or resolutions providing for the issue
of such stock from time to time adopted by the Board of Directors. The resolution or resolutions
providing for the issue of shares of a particular series shall fix, subject to applicable laws and
provisions of this Article FOURTH, the designation, rights, preferences and limitations of the
shares of each such series. The authority of the Board of Directors in respect to each series
shall include, but not limited to, determination of the following:
(i) the consideration for which such Preferred Stock shall be issued;
(ii) the number of shares constituting such series, including the authority to increase or
decrease such number, and the distinctive designation of such series;
(iii) the dividend rate of the shares of such series, whether the
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dividends shall be cumulative and, if so, the date from which they shall be cumulative and, if
so, the date from which they shall be cumulative, and the relative rights of priority, if any, of
payment of dividends on shares of such series;
(iv) the right, if any, of the Corporation to redeem shares of such series and the terms and
conditions of such redemption;
(v) the rights of the shares in case of a voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of
such series;
(vi) the obligation, if any, of the Corporation to retire shares of such series pursuant to a
retirement or sinking fund or funds of a similar nature or otherwise and the terms and conditions
of such obligations;
(vii) the terms and conditions, if any, upon which shares of such series shall be convertible
into or exchangeable for share of stock of any other class or classes, including the price or
prices or the rate or rates of conversion of exchange and the terms of adjustment, if any;
(viii) the voting rights and requirements, if any, of the shares of such series, in addition
to any voting rights required by law; and
(ix) any other rights, preferences or limitations of shares of such series.
(c) No holder of any of the shares of any class or series of stock or of options, warrants or
other rights to purchase shares of any class or series of stock or other securities of the
Corporation shall have any preemptive right to purchase or subscribe for any unissued stock or
security of any class or series or any additional shares of any class or series to be issued by
reason of increase in the authorized capital stock of the Corporation of any class or series,
bonds, certificates of indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series. However, any such unissued
stock, additional authorized issue of shares of any class or series of stock or securities
convertible into or exchangeable for stock or carrying any right to purchase stock, may be issued
and disposed of pursuant to resolution of the Board of Directors to such Persons, whether such
holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
FIFTH: (a) The business and affairs of the Corporation shall be managed by or under the
direction of a Board of Directors consisting of not less than three nor more than twelve directors,
the exact number of directors to be fixed in the Bylaws.
(b) There shall be no cumulative voting in the election of directors.
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SIXTH: The following provisions are inserted for the management of the business and the
conduct of the affairs of the Corporation and for the further definition of the powers of the
Corporation and of its directors and stockholders:
(a) The directors shall have concurrent power with the stockholders to adopt, emend or repeal
the Bylaws of the Corporation.
(b) Elections of directors need not be by written ballot unless the Bylaws of the Corporation
so provide.
(c) To the full extent permitted by the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended, a director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a
director. No amendment or repeal of this paragraph shall affect the liability of any director of
the Corporation with respect to, arising out of or related to any event that occurred prior to such
amendment or repeal.
(d) The Corporation shall indemnify its directors and officers and may indemnify any other
employees or agents, in each case, to the full extent permitted by the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended. No amendment or repeal of
this paragraph shall affect the obligations of the Corporation to indemnify any director or officer
of the Corporation with respect to, arising out of or related to any event that occurred prior to
such amendment or repeal.
(e) The Corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity or arising out of his status as such, whether
or not the Corporation would have the power to indemnify him against any such liability under the
provisions of the General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended.
SEVENTH: No action required or permitted to be taken at an Annual Meeting of stockholders or
at a special meeting of stockholders may be taken without a meeting. The power of stockholders to
consent in writing, without a meeting, to the taking of any action is expressly denied hereby.
EIGHTH: 1. In addition to any affirmative vote required by law or this Certificate of
Incorporation, the affirmative vote of the holders of not less than 80% of the outstanding shares
of “Voting Stock” of the Corporation held by stockholders other than a “Related Person” shall be
required for the approval or authorization of any “Business Combination” of the Corporation with
any Related
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Person; provided, however, that such 80% voting requirement shall not be applicable if:
(a) The “Continuing Directors” of the Corporation by at least a
two-thirds vote of such Continuing Directors have expressly approved such
Business Combination either in advance of or subsequent to such Related
Person’s having become a Related Person; or
(b) the cash or fair market value (as determined by at least two-thirds
of the Continuing Directors) of the property, securities or other
consideration to be received per share by holders of Voting Stock of the
Corporation in the Business Combination is not less than the “Highest Per
Share Price” or the “Highest Equivalent Price” paid by the Related Person in
acquiring any of its holdings of the Corporation’s Voting Stock.
2. For purposes of this Article:
(a) The term “Business Combination” shall mean (i) any merger or
consolidation of the Corporation or a subsidiary of the Corporation with
or into a Related Person, (ii) any sale, lease, exchange, transfer or
other disposition, including without limitation a mortgage or any other
security device, of all or any “Substantial Part” of the assets either of
the Corporation (including without limitation any voting securities of a
subsidiary) or of a subsidiary of the Corporation to a Related Person,
(iii) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any Related
Person, (iv) any sale, lease, exchange, transfer or other disposition,
including without limitation by way of a mortgage or other security
device, of all or any Substantial Part of the assets of a Related Person
to the Corporation or a subsidiary of the Corporation, (v) the issuance of
any securities of the Corporation or a subsidiary of the Corporation to a
Related Person other than the issuance on a pro rata basis to all holders
of stock of the same class pursuant to a stock split or stock dividend,
(vi) any reclassification of securities, recapitalization of the
Corporation or any merger or consolidation of the Corporation with any of
its subsidiaries or any other transaction that would have the effect
directly or indirectly of increasing the voting power of a Related Person,
and (vii) any agreement, contract or other arrangement providing for any
of the transactions described in this definition of Business Combination.
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(b) The term “Related Person” shall mean (x) any individual,
corporation, partnership, or other person or entity which, together with
its “Affiliates” and “Associates”, becomes the “Beneficial Owner” of an
aggregate of 20% or more of the outstanding Voting Stock of the
Corporation and (y) any “Affiliate” or “Associate” of any such individual,
corporation, partnership or other person or entity; provided, however,
that the term “Related Person” shall not include (1) a person or entity
whose acquisition of such aggregate percentage of Voting Stock was
approved in advance by at least two-thirds of the Continuing Directors,
(2) any trustee or fiduciary when acting in such capacity with respect to
any employee benefit plan of the Corporation or a wholly owned subsidiary
of the Corporation or (3) Kaufman & Broad, Inc. or any of its Affiliates
or Associates. A Related Person shall be deemed the “Beneficial Owner” of
all Voting Stock of which any “Affiliate” or “Associate” of such Related
Person is the “Beneficial Owner”.
(c) The term “Substantial Part” shall mean an amount equal to 10% or
more of the fair market value, as determined by at least two-thirds of the
Continuing Directors, of the total consolidated assets of the Corporation
and its subsidiaries as of the end of its most recent fiscal year prior to
the time the determination is being made.
(d) The term “Beneficial Owner” shall mean any person who
beneficially owns any Voting Stock within the meaning ascribed in Rule
13d-3 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on June 1, 1986, or who has the right to acquire
any such beneficial ownership (whether or not such right is exercisable
immediately) pursuant to any agreement, contract, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise.
(e) For the purposes of paragraph 1(b) of this Article, the term
“other consideration to be received” shall include, without limitation,
Common Stock or other capital stock of the Corporation retained by its
existing stockholders other than Related Persons or other parties to such
Business Combination in the event of a Business Combination in which the
Corporation is the surviving corporation.
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(f) The terms “Voting Stock” shall mean all outstanding Common Stock
and all other outstanding capital stock of the Corporation, if any,
entitled to vote on each matter on which the holders of record of Common
Stock shall be entitled to vote, and each reference to a proportion of shares of Voting Stock shall refer to such proportion of the votes
entitled to be cast by the holders of such Common Stock and other capital
stock, if any.
(g) The term “Continuing Director” shall mean a Director who was a
member of the Board of Directors of the Corporation immediately prior to
the time that the Related Person involved in a Business Combination became
a Related Person.
(h) A Related Person shall be deemed to have acquired a share of
Voting Stock at the time when such Related Person became the Beneficial
Owner thereof. The price deemed to have been paid by a Related Person for
Voting Stock of which an “Affiliate” or “Associate” is the Beneficial
Owner shall be the price, as determined by vote of at least two-thirds of
the Continuing Directors, which is the highest of (i) the price paid upon
the acquisition thereof by the relevant “Affiliate” or “Associate” (if
any, and whether or not such “Affiliate” or “Associate” was an “Affiliate”
or “Associate” at the time of such acquisition), (ii) the highest market
price of such Voting Stock at the time when the Related Person became the
Beneficial Owner thereof and (iii) the highest price previously paid by
such Related Person or an Affiliate or Associate thereof for such Voting
Stock.
(i) The terms “Highest Per Share Price” and “Highest Equivalent
Price” as used in this Article shall mean (x) if there is only one class
of capital stock of the Corporation issued and outstanding, the Highest
Per Share Price shall mean the highest price that can be determined, by
two-thirds of the Continuing Directors, to have been paid at any time by
the Related Person for any share or shares of that class of capital stock
and (y) if there is more than one class of capital stock of the
Corporation issued and outstanding, with respect to each class and series
of capital stock of the Corporation the amount determined by two-thirds of
the Continuing Directors, on whatever basis they believe is appropriate,
to be the highest per share price equivalent of the highest price that can
be determined to have been paid at any time by the Related Person for any
share or shares of any
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class or series of capital stock of the Corporation. In determining the
Highest Per Share Price and Highest Equivalent price, (x) all purchased by
the Related Person shall be taken into account regardless of whether the shares were purchased before or after the Related Person became a Related
Person and (y) the Highest Per Share Price and the Highest Equivalent
Price shall include any brokerage commissions, transfer taxes and
soliciting dealers’ fees or other value paid in connection with such
purchases. In the case of any Business Combination with a Related Person,
the Continuing Directors shall determine the Highest Equivalent Price for
each outstanding class and series of the capital stock of the Corporation.
(j) The terms “Affiliate” and “Associate” shall have the same meaning
as in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934 as in effect on June 1, 1986.
3. In addition to any requirements of law and any other provisions of this Certificate of
Incorporation or any resolution or resolutions of the Board of Directors adopted pursuant to this
Certificate of Incorporation (and notwithstanding the fat that a lesser percentage may be specified
by law, this Certificate of Incorporation or any such resolutions), the affirmative vote of the
holders of 80% of the combined voting power of the then outstanding Voting Stock held by
stockholders other than any Related Person Affiliate or Associate thereof shall be required to
amend, alter or repeal, or adopt any provision inconsistent with the requirements of, this Article.
NINTH: The Corporation reserves the right to amend this Restated Certificate of Incorporation
in any manner permitted by the General Corporation Law of the State of Delaware, as the same exists
or may hereafter be amended and all rights and powers conferred upon stockholders, directors and
officers herein are granted subject to this reservation.
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Dates Referenced Herein and Documents Incorporated by Reference
