EXHIBIT 3(A)
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LENNAR CORPORATION
The undersigned, a Vice President of Lennar Corporation (the
"Corporation"), a Delaware corporation, certifies as follows:
1. At a duly called meeting of the Corporation's Board of Directors
held on March 4, 1999 at which a quorum was present at all times, the Board of
Directors adopted and declared advisable the amendment to the Corporation's
Certificate of Incorporation described in Paragraph 3.
2. At the Annual Meeting of Stockholders of the Corporation held on
April 6, 1999, at which a quorum was present or represented by proxy at all
times, the amendment to the Corporation's Certificate of Incorporation described
in Paragraph 3 was adopted by the vote of a majority of the shares of
outstanding stock entitled to vote on it, and by the vote of a majority of the
shares of Common Stock, and the vote of a majority of the shares of Class B
Common Stock, each voting as a separate class, which were voted on it.
Therefore, that amendment was duly adopted in accordance with Section 242 of the
General Corporation Law of the State of Delaware and in accordance with the
Corporation's Certificate of Incorporation.
3. The Amendment to the Corporation's Certificate of Incorporation
which was adopted as described in Paragraphs 1 and 2 was to amend Article IV of
the Corporation's Certificate of Incorporation so that, as amended, Article IV
reads as follows:
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"ARTICLE IV."
STOCK
The total authorized number of shares of stock of the Corporation is
230,500,000 shares. Of these, 100,000,000 shares are classified as Common Stock,
par value $.10 per share, 30,000,000 shares are classified as Class B Common
Stock, par value $.10 per share, 100,000,000 shares are classified as
Participating Preferred Stock, par value $.10 per share, and 500,000 shares are
classified as Preferred Stock, par value $10.00 per share, except that if at any
time after shares of Class B Common Stock are issued, there no longer are any
outstanding shares of Class B Common Stock, the authorization to issue Class B
Common Stock will terminate and after that time the shares of stock the
Corporation is authorized to issue will be 130,000,000 shares of Common Stock,
par value $.10 per share, 100,000,000 shares of Participating Preferred Stock,
par value $.10 per share, and 500,000 shares of Preferred Stock, par value
$10.00 per share, and the Company will file a Certificate of Amendment to its
Certificate of Incorporation or a restated Certificate of Incorporation showing
the change in the authorized stock. As used in this Certificate of
Incorporation, the term "Common Stock" refers to Common Stock, par value $.10
per share, and does not include Class B Common Stock; the term "Class B Common
Stock" refers to Class B Common Stock, par value $.10 per share; the term
"Participating Preferred Stock" refers to Participating Preferred Stock, par
value $.10 per share; and the term "Preferred Stock" refers to Preferred Stock,
par value $10 per share, and does not include Participating Preferred Stock.
The description of the classes of stock and the relative rights, voting
power, preferences and restrictions of the shares of each class which are fixed
by the Certificate of Incorporation and the express grant of authority to the
Board of Directors of the Corporation (hereinafter referred to as the "Board of
Directors") to fix by resolution or resolutions the dividend rate, the
redemption price, the liquidation price, the conversion rights, if any, and the
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sinking or purchase fund rights of shares of any class or of any series of any
class or the number of shares constituting any series of any class are as
follows:
PREFERRED STOCK
(a) The 500,000 shares of Preferred Stock may be issued from time to
time in one or more series, each of such series to have such relative rights,
voting power, preferences and restrictions as are stated herein and in the
resolution or resolutions providing for the issuance of such series adopted by
the Board of Directors as hereinafter provided.
(b) Authority is hereby expressly granted to the Board of Directors,
subject to the provisions of this Article, to authorize from time to time the
issuance of one or more series of Preferred Stock, and with respect to each
series to fix or alter from time to time as to shares then unallotted, by
resolution or resolutions providing for the issuance of such series:
(1) The distinctive designation of such series and the number
of shares which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors in
creating such series) or decreased (but not below the number of shares
thereof then outstanding) from time to time by action of the Board of
Directors;
(2) The dividend rate or rates to which shares of such series
shall be entitled; the restrictions, conditions and limitations upon
the payment of such dividends; whether such dividends shall be
cumulative and, if cumulative, the date or dates from which such
dividends shall be cumulative and the dates on which such dividends if
declared shall be payable;
(3) The manner of selecting shares for redemption, the
redemption price and the manner of redemption and the effect thereof;
(4) The amount payable on shares of such series in the event
of any liquidation, dissolution or winding up of the Corporation, which
amount may vary at
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different dates and may vary depending upon whether such liquidation,
dissolution or winding up is voluntary or involuntary;
(5) The obligation, if any, of the Corporation to maintain a
purchase, retirement or sinking fund for shares of such series and the
provisions with respect thereto;
(6) The terms and conditions of the rights, if any, of the
holders of such series to convert such shares into shares of Common
Stock of the Corporation;
(7) The terms and conditions of the rights, if any, of the
holders of shares of such series to vote such shares;
(8) Any other rights, preferences, powers and restrictions not
inconsistent with applicable law or the provisions hereof.
(c) All shares of any one series of Preferred Stock shall be identical
with each other in all respects, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon shall be
cumulative. All series of Preferred Stock shall be of equal rank and be
identical in all respects, except as permitted by paragraph (b) of this
provision regarding Preferred Stock.
(d) The holders of the Preferred Stock of each series shall be entitled
to receive such dividends in cash, when and as declared by the Board of
Directors, to be paid out of earned surplus or out of paid-in surplus or out of
net earnings legally available for the payment thereof, as they may be entitled
to in accordance with the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such series, payable on such dates as
may be fixed in such resolution or resolutions. No dividends, whether in cash or
property, shall be paid or declared, nor shall any distribution be made, in any
year on the Common Stock or the Class B Common Stock unless and until the full
dividends on the Preferred Stock of all series required to be paid in that year
have been paid or declared but not paid, and if declared, a sum sufficient for
the payment thereof has been set apart. In addition so
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long as there shall be outstanding any shares of Preferred Stock of any series
entitled to cumulative dividends pursuant to the resolution or resolutions
providing for the issuance of such series, no dividends, whether in cash or
property shall be paid or declared, nor shall any distribution be made on the
Common Stock, nor shall any shares of Common Stock or Class B Common Stock be
purchased, redeemed or otherwise acquired for value by the Corporation, unless
and until the full cumulative dividends on the Preferred Stock of all series
entitled to cumulative dividends for all past dividend periods and for the then
current dividend period shall have been paid or declared, and if declared but
not paid, a sum sufficient for the payment thereof has been set apart, and the
Corporation shall have set aside all amounts, if any, theretofore required to be
set aside as and for a purchase, retirement or sinking fund, if any, for the
Preferred Stock of all series for the then current year and all defaults, if
any, in complying with any such purchase, retirement or sinking fund
requirements in respect of previous years shall have been made good. The
foregoing provisions of this Paragraph shall not, however, apply to a dividend
payable in Common Stock or Class B Common Stock or to the acquisition of shares
of Common Stock or Class B Common Stock in exchange for, or through application
of the proceeds of the sale of, shares of Common Stock. Accruals of dividends
shall not bear interest.
(e) The holders of the Preferred Stock of each series shall be entitled
in the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, to be paid as a liquidating dividend, before
any distribution or payment is made to the holders of any Participating
Preferred Stock, Common Stock or Class B Common Stock, the amount per share
provided for in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such series. When such payments shall have been
made in full to the holders of the Preferred Stock, they shall have no further
rights in respect of their shares or the assets of the Corporation. If upon any
liquidation or dissolution or winding up of the Corporation the assets available
for distribution shall be insufficient to pay the holders of all
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outstanding shares of Preferred Stock the full amounts to which they
respectively shall be entitled, the holders of the shares of Preferred Stock of
each series shall share ratably in any distribution of assets according to the
respective amounts which would be payable in respect of the shares held by them
upon such distribution if all amounts payable in respect of the Preferred Stock
of that series were paid in full. Neither the statutory merger nor consolidation
of the Corporation into or with any other corporation, nor the statutory merger
or consolidation of any other corporation into or with the Corporation, nor a
sale, transfer or lease of all or any part of the assets of the Corporation
shall be deemed a liquidation, dissolution or winding up of the Corporation
within the meaning of this paragraph.
(f) The Corporation at the option of the Board of Directors may at any
time redeem the whole or from time to time may redeem any part of any series of
Preferred Stock for the consideration provided in and in accordance with the
terms and conditions of the resolution or resolutions of the Board of Directors
authorizing such series.
(g) At all meetings of Stockholders of the Corporation, each holder of
record of Preferred Stock shall have such voting rights, if any, as may be
provided in resolutions adopted by the Board of Directors providing for the
issuance of each series.
PARTICIPATING PREFERRED STOCK
(a) Voting Rights and Powers
With respect to all matters upon which stockholders are entitled to
vote or to which stockholders are entitled to give consent, (1) the holders of
the outstanding shares of Participating Preferred Stock, the holders of the
outstanding shares of Common Stock and the holders of the outstanding shares of
Class B Common Stock will vote together without regard to class, and (2) each
holder of record of Participating Preferred Stock will be entitled to one vote
for each share of Participating Preferred Stock held in the holder's name,
except that (i) any
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amendment to this Certificate of Incorporation which would change the number of
authorized shares, the par value or the voting rights of, the restriction on
dividends upon, or any other provision of this Certificate of Incorporation
relating to, the Common Stock, the Class B Common Stock or the Participating
Preferred Stock, in addition to being adopted as required by law, must be
approved by the affirmative vote of a majority of the shares of Participating
Preferred Stock and Common Stock, voting together without regard to class, which
are voted with regard to the amendment and (ii) in addition to any other vote
required by this Certificate of Incorporation, the Corporation's by-laws, any
rule of any securities exchange or otherwise, any merger, consolidation or other
business combination involving the Corporation (x) will require the affirmative
vote of a majority of the shares of Participating Preferred Stock which are
voted with regard to the transaction, unless the type and amount of the
consideration received by the holder of a share of Participating Preferred Stock
in the transaction is the same as that received by the holder of a share Common
Stock and (y) will require the affirmative vote of a majority of the shares of
Participating Preferred Stock and Common Stock, voting together without regard
to class, which are voted with regard to the transaction, unless the type and
amount of the consideration received by the holder of a share of Participating
Preferred Stock in the transaction is the same as that received by the holder of
a share of Class B Common Stock; provided however, that if stockholders are
given the right to elect among different kinds of consideration in a business
combination, the holder of a share of Participating Preferred Stock will be
deemed to receive the same type and amount of consideration as the holder of a
share of stock of another class if the holder of a share of Participating
Preferred Stock is given the same rights of election (including without
limitation proration rights) as the holder of a share of stock of the other
class.
(b) Dividends and Distributions.
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(1) Cash Dividends. No cash dividends may be paid in a
calendar year with regard to a share of Common Stock or with regard to a share
of Class B Common Stock until cash dividends totaling $0.0125 per share have
been paid, or declared and set aside for payment, in that year with regard to
each outstanding share of Participating Preferred Stock. After dividends
totaling $0.0125 per share have been paid, or declared and set aside for
payment, in a calendar year with regard to each outstanding share of
Participating Preferred Stock, no further cash dividends may be paid in that
year with regard to a share of Participating Preferred Stock until dividends
totaling $0.0125 per share have been paid, or declared and set aside for
payment, in that year with regard to each outstanding share of Common Stock. Any
dividends in excess of $0.0125 per share paid in a calendar year to the holders
of the Participating Preferred Stock or the holders of the Common Stock will be
paid with regard to the shares of both those classes on an equal per share basis
without regard to class.
(2) Other Dividends and Distributions. Each dividend or
distribution made to the holders of the Participating Preferred Stock, the
Common Stock or the Class B Common Stock, other than cash dividends or
distributions upon liquidation of the Corporation, will be distributable to the
holders of the Participating Preferred Stock, the Common Stock and the Class B
Common Stock without regard to class, except that in the case of dividends or
other distributions payable in stock of the Corporation, other than Preferred
Stock, the stock distributed with respect to the Participating Preferred Stock
will be additional shares of Participating Preferred Stock, the stock
distributed with regard to the Common Stock will be additional shares of Common
Stock and the stock distributed with regard to the Class B Common Stock will be
additional shares of Class B Common Stock.
(c) Stock Splits, Stock Dividends and Share Consolidations.
The Corporation may not (i) pay a dividend with regard to its
Participating Preferred Stock in additional shares of Participating Preferred
Stock, or divide or consolidate its
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outstanding Participating Preferred Stock into a greater or lesser number of
shares, unless it pays the same dividend with regard to its Common Stock (but
payable in additional shares of Common Stock instead of additional shares of
Participating Preferred Stock) or divides or consolidates its outstanding Common
Stock in the same manner in which it divides or consolidates its Participating
Preferred Stock or (ii) pay a dividend with regard to its Common Stock in
additional shares of Common Stock, or divide or consolidate its outstanding
Common Stock into a greater or lesser number of shares, unless it pays the same
dividend with regard to its Participating Preferred Stock (but payable in
additional shares of Participating Preferred Stock instead of additional shares
of Common Stock) or divides or consolidates its outstanding Participating
Preferred Stock in the same manner in which it divides or consolidates its
Common Stock.
(d) Liquidation.
No assets of the Corporation may be distributed upon liquidation of the
Corporation to the holders of shares of Common Stock or Class B Common Stock
until the holders of the Participating Preferred Stock have received liquidating
distributions totaling $10.00 per share. When the holders of the Participating
Preferred Stock have received liquidating distributions totaling $10.00 per
share, no further assets of the Corporation may be distributed to the holders of
the Participating Preferred Stock upon liquidation of the Corporation until the
holders of the Common Stock have received liquidating distributions totaling
$10.00 per share. Any liquidating distributions in excess of $10.00 per share to
the holders of the Participating Preferred Stock or the holders of the Common
Stock will be made to the holders of both those classes on an equal per share
basis without regard to class. If assets distributed upon liquidation of the
Corporation are other than cash, the amount distributed to the holders of the
Participating Preferred Stock or the Common Stock will include the value of the
non-cash assets as determined in good faith by the Board of Directors of the
Corporation.
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(e) Other Rights.
Except as otherwise provided in this Certificate of Incorporation or
provided by law, each share of Participating Preferred Stock and each share of
Common Stock will have identical rights, powers, preferences and restrictions,
and copies of all reports and other communications which are sent by the
Corporation to the holders of the Common Stock must also be sent to the holders
of the Participating Preferred Stock.
COMMON STOCK AND CLASS B COMMON STOCK
(a) Voting Rights and Powers.
With respect to all matters upon which stockholders are entitled to
vote or to which stockholders are entitled to give consent, (1) the holders of
the outstanding shares of the Common Stock, the holders of the outstanding
shares of Class B Common Stock and the holders of the outstanding shares of
Participating Preferred Stock will vote together without regard to class, (2)
each holder of record of Common Stock will be entitled to one vote for each
share of Common Stock held in the holder's name, and (3) each holder of record
of Class B Common Stock will be entitled to ten votes for each share of Class B
Common Stock held in the holder's name, except that (i) any amendment to this
Certificate of Incorporation which would change the number of authorized shares,
the par value or the voting rights of, the restriction on dividends upon, or any
other provision of this Certificate of Incorporation relating to, the Common
Stock, the Class B Common Stock or the Participating Preferred Stock, in
addition to being adopted as required by law, must be approved by holders of a
majority of the shares of Common Stock and Participating Preferred Stock, voting
together without regard to class, which are voted with regard to the amendment;
and (ii) in addition to any other vote required by this Certificate of
Incorporation, the Corporation's by-laws, by any rule of any securities exchange
or otherwise, any merger, consolidation or other business combination involving
the Corporation (x) will require the affirmative vote of a majority of the
issued and outstanding shares of
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Common Stock which are voted with regard to the transaction, unless the type and
amount of the consideration received by the holder of a share of Common Stock in
the transaction is the same as that received by the holder of a share of
Participating Preferred Stock, and (y) will require the affirmative vote of a
majority of the outstanding Participating Preferred Stock and the outstanding
Common Stock, voting together without regard to class, unless the type and
amount of consideration received by the holder of a share of Common Stock in the
transaction is the same as that received by the holder of a share of Class B
Common Stock; provided, however that if stockholders are given the right to
elect among different kinds of consideration in a business combination, the
holder of a share of Common Stock will be deemed to receive the same type and
amount of consideration as the holder of a share of stock of another class if
the holder of the share of Common Stock is given the same rights of election
(including without limitation proration rights) as the holder of a share of
stock of the other class.
(b) Dividends and Distributions.
(1) Cash Dividends. The cash dividends paid with regard to a
share of Class B Common Stock in a calendar year may not be more than
90% of the cash dividends paid with regard to a share of Common Stock
in that calendar year.
(2) Other Dividends and Distributions. Each dividend or
distribution made to the holders of the Common Stock or the Class B
Common Stock, other than cash dividends, will be distributable to the
holders of the Common Stock and Class B Common Stock without regard to
class, except that in the case of dividends or other distributions
payable in stock of the Corporation other than Preferred Stock, the
stock distributed with respect to the Participating Preferred Stock
will be additional shares of Participating Preferred Stock, the stock
distributed with respect to the Common Stock will be additional shares
of Common Stock and the stock distributed with respect to the Class B
Common Stock will be additional shares of Class B Common Stock.
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(c) Restrictions on Transfer of the
Class B Common Stock.
(1) Permitted Transferees. No beneficial owner of shares of
Class B Common Stock (a "Class B Stockholder") may transfer shares of
Class B Common Stock, whether by sale, assignment, gift, bequest or
otherwise, except to a Permitted Transferee of that Class B
Stockholder. A "Permitted Transferee" of a Class B Stockholder is (i)
the Class B Stockholder's spouse; (ii) a parent or lineal descendant
(including an adopted child) of a parent of the Class B Stockholder, or
the spouse of a lineal descendant of a parent of the Class B
Stockholder; (iii) a trustee, guardian or custodian for, or an
executor, administrator or other legal representative of the estate of,
the Class B Stockholder, or a trustee, guardian or custodian for a
Permitted Transferee of the Class B Stockholder; (iv) the trustee of a
trust (including a voting trust) for the benefit of the Class B
Stockholder and (v) a corporation, partnership or other entity of which
the Class B Stockholder and Permitted Transferees of the Class B
Stockholder are the beneficial owners of a majority in voting power of
the equity. For the purpose of this Paragraph a "beneficial owner" of
Class B Common Stock is a person who, or entity which, has or shares
the power to direct the voting or disposition of the Class B Common
Stock.
(2) Impermissible Transfer Void. Any purported transfer of
Class B Common Stock other than to a Permitted Transferee will be void
and will not be recognized by the Corporation. The Corporation may, as
a condition to the registration of a transfer of Class B Common Stock
to a purported Permitted Transferee, require such affidavits or other
proof as the Corporation deems necessary to establish that the
transferee is a Permitted Transferee.
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(3) Legend on Stock Certificates. Each certificate
representing Class B Common Stock will bear a legend referring to the
restrictions on transfer of the Class B Common Stock.
(4) Registered Owner. Each share of Class B Common Stock will
be registered in the name of the beneficial owner of the share and not
in "street name" or the name of a nominee.
(d) Issuance of Class B Common Stock.
(1) Initial Issuance. Upon the merger of Lennar Corporation
("Old Lennar") with and into the Corporation (the "Merger") in
accordance with a Plan and Agreement of Merger dated June 10, 1997,
(the "Merger Agreement") between the Corporation (the name of which at
that date was Pacific Greystone Corporation) and Old Lennar, each share
of Class B Common Stock, par value $.10 per share, of Old Lennar which
is outstanding immediately before the Merger becomes effective is being
converted into and becoming one share of Class B Common Stock of the
Corporation.
(2) Subsequent Issuance. The Corporation may not issue any
shares of Class B Common Stock, except (i) as provided in Paragraph
(d)(1) or (ii) as a dividend or distribution as provided in Paragraph
(b)(2).
(e) Conversion of Class B Common
Stock into Common Stock.
A Class B Stockholder may at any time convert shares of Class B Common
Stock into a like number of shares of Common Stock by surrendering the
certificates representing the shares of Class B Common Stock to be converted (or
representing a greater number of shares of Class B Common Stock) to the Company
accompanied by a request that all or a specified number of the shares of Class B
Common Stock represented by the certificates be converted into Common Stock.
Once Class B Common Stock has been
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converted into Common Stock, the Common Stock may not be reconverted into Class
B Common Stock.
(f) Termination of Class Rights and Powers.
If at any time the number of outstanding shares of Class B Common Stock
is less than 10% of the outstanding shares of Common Stock and Class B Common
Stock taken together, the Class B Common Stock will automatically be converted
into, and become for all purposes, shares of Common Stock. After the Class B
Common Stock is converted into Common Stock as provided in this paragraph, the
Company may issue certificates which represent Common Stock in exchange for
certificates which represented Class B Common Stock. However, the automatic
conversion of Class B Common Stock into Common Stock will be effective whether
or not certificates are exchanged.
(g) Other Rights.
Except as otherwise provided in this Certificate of Incorporation, or
provided by law, each share of Common Stock and each share of Class B Common
Stock will have identical powers, preferences and rights, including rights in
liquidation, and copies of all reports and other communications which are sent
by the Corporation to the holders of the Common Stock must also be sent to the
holders of the Class B Common Stock."
IN WITNESS WHEREOF, I have signed this Certificate on April 9, 1999.
/S/ BRUCE GROSS
----------------------------
Vice President
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