| Item 1.01. | Entry into a Material Definitive Agreement. |
As previously reported, Beazer Homes USA, Inc. (the “Company”) is party to a Section 382 Rights Agreement (the “Old Rights Agreement”) dated November 6, 2018 between the Company and American Stock Transfer & Trust Company, LLC (the “Rights Agent”). The Old Rights Agreement expires according to its terms on November 14, 2022.
On November 3, 2021, the Company’s Board of Directors approved the adoption and execution of a new Section 382 Rights Agreement (the “New Rights Agreement”), to become effective at the close of business on November 14, 2022, in an effort to continue to protect stockholder value by preserving the Company’s ability to use its net operating loss carryforwards (“NOLs”). As previously reported, the New Rights Agreement was approved by a vote of the Company’s stockholders at the annual meeting of stockholders held on February 2, 2022.
On December 7, 2021, the Company and the Rights Agent executed the New Rights Agreement. Like the Old Rights Agreement, the New Rights Agreement is intended to act as a deterrent to any person (an “Acquiring Person”) acquiring (together with all affiliates and associates of such person) beneficial ownership of 4.95% or more of the Company’s outstanding common shares within the meaning of Section 382 of the Internal Revenue Code, as amended, and applicable Treasury Regulations (“Section 382”), other than pursuant to a Qualified Offer or with the approval of the Company’s Board of Directors. Stockholders who beneficially own 4.95% or more of the Company’s outstanding common shares as of the close of business on the effective date of the New Rights Agreement will not qualify as an Acquiring Person so long as they are not at that time considered an Acquiring Person under the Rights Agreement and do not acquire any additional common shares at a time when they still beneficially own 4.95% or more of the outstanding common shares.
A “Qualified Offer” generally means (i) a tender offer or exchange offer for all of the Company’s outstanding common shares at the same per-share consideration, (ii) an offer that has commenced under applicable law, (iii) an offer that includes a non-waivable condition requiring at least a majority of the Company’s outstanding common shares to be tendered and not withdrawn, (iv) an offer pursuant to which the offeror has announced that it intends to promptly consummate a second step transaction whereby all common shares not tendered into the offer will be acquired using the same form and amount of consideration per share actually paid pursuant to the offer, (v) an offer that remains open for not less than 60 days and (vi) an offer at a per-share consideration, and on such other terms and conditions, that in each case are adequate and fair as determined by the Board of Directors.
The Rights. On November 3, 2021, the Board of Directors authorized the issuance of one right (a “Right”) per outstanding common share payable upon the effectiveness of the New Rights Agreement to the Company’s stockholders of record as of November 14, 2022. Subject to the terms, provisions and conditions of the New Rights Agreement, if the Rights become exercisable, each Right would initially represent the right to purchase from the Company one one-thousandth of a share of the Company’s Series A Junior Participating Preferred Shares, par value $0.01 per share (the “Series A Preferred Shares”), for a purchase price of $50.00 per Right (the “Purchase Price”). If issued, each fractional Series A Preferred Share would give the stockholder approximately the same dividend, voting and liquidation rights as does one common share. However, prior to exercise, a Right does not give its holder any rights as a stockholder of the Company, including any dividend, voting or liquidation rights.
Initial Exercisability. The Rights are not exercisable until the earlier of (i) ten days after a public announcement that a person has become an Acquiring Person and (ii) ten business days (or such later date as may be determined by the Board of Directors) after the commencement of a tender or exchange offer by or on behalf of a person that, if completed, would result in such person becoming an Acquiring Person. The date that the Rights become exercisable under the New Rights Agreement is referred to as the “Distribution Date.”
Until the Distribution Date, the Company’s common share certificates or the ownership statements issued with respect to uncertificated common shares will evidence the Rights and will contain a notation to that effect. Any transfer of common shares prior to the Distribution Date will constitute a transfer of the associated Rights. After the Distribution Date, separate Rights certificates will be issued, and the Rights may be transferred apart from the transfer of the underlying common shares, unless and until the Company’s Board of Directors has determined to effect an exchange pursuant to the New Rights Agreement (as described below).
“Flip-In” Event. In the event that a person becomes an Acquiring Person, each holder of a Right, other than Rights that are or, under certain circumstances, were beneficially owned by the Acquiring Person (which will thereupon become void), will from and after the Distribution Date, have the right to receive, upon exercise of a Right and payment of the Purchase Price, a number of common shares having a market value of two times the Purchase Price. However, Rights are not exercisable following the occurrence of a person becoming an Acquiring Person until such time as the Rights are no longer redeemable by the Company (as described below).
