exv10w3






Exhibit 10.3




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made effective as of the
6th day of August, 2009 (the “Effective Date”) by and between BEAZER HOMES USA, INC., a Delaware
corporation (the “Company”), and MICHAEL H. FURLOW, an individual resident of the State of Georgia
(“Executive”).



WITNESSETH:




     WHEREAS, the Company and Executive have heretofore entered into an Employment Agreement dated
September 1, 2004, as amended (the “Existing Agreement”); and



     WHEREAS, the Company and Executive desire to amend certain provisions of, and to restate in
its entirety the Existing Agreement as provided herein.



     NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, the Company and Executive hereby agree as follows:



1. Employment and Duties.




     (a) The Company hereby agrees to employ Executive for the Term (as hereinafter defined) as its
Division President-Charleston/Myrtle Beach/Savannah. The parties agree that effective on the date
hereof Executive shall resign his position as Executive Vice President and Chief Operating Officer
of the Company and any other positions he has with the Company’s subsidiaries and affiliates. If
requested by the Board of Directors of the Company (the “Board”), Executive shall also serve on the
Board without additional compensation, if requested. Executive shall also serve, if requested by
the Board, as an executive officer and/or director of any subsidiaries and/or affiliated companies
and shall comply with the policy of the Compensation Committee of the Board (the “Compensation
Committee”) with regard to retention or forfeiture of any director’s fees. As used in this
Agreement, the term “affiliated companies” shall include any company controlled by, controlling or
under common control with the Company.



     (b) The Executive shall have such management and oversight responsibilities and authority as
are necessary to efficiently administer the affairs of the Division and as are customary of an
Division President. All powers herein granted to the Executive are subject to supervisory approval
of the President and Chief Executive Officer of the Company (the “CEO”), and the Executive may be
given such further reasonably related supervisory duties, powers and prerogatives as may be
delegated to him from time to time by said CEO. The Executive shall report exclusively to the CEO
and further shall render such advice to the CEO as said CEO may from time to time request.



     (c) During the Term, and excluding any periods of vacation and sick leave to which the
Executive is entitled, Executive shall devote substantially all of his business time and efforts to
the business and affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, use the Executive’s reasonable best efforts
to perform faithfully such responsibilities. In performing such duties hereunder, Executive shall
comply with the policies and procedures as adopted from time to time by the Board, shall give the
Company the benefit of his special knowledge, skills, contacts and business experience, shall
perform his duties and carry out his responsibilities hereunder in a diligent manner.



     (d) During the Employment Term, it shall not be a violation of this Agreement for the
Executive to (i) with the prior approval of the CEO in each case, serve on corporate, civic or
charitable boards or committees, (ii) with the prior approval of the Board in each case, deliver
lectures, fulfill speaking engagements or teach at educational institutions, and (iii) manage
personal investments, so long as such activities do not significantly interfere or constitute a



 









 







conflict of interest with the performance of the Executive’s responsibilities as an employee of the
Company in accordance with this Agreement.



     (e) The principal location for performance of Executive’s services hereunder shall be at the
offices of Beazer Homes USA, Inc. in Charleston, South Carolina, subject to reasonable travel
requirements during the course of such performance. Executive shall not be required, without his
consent, to regularly report to any office of the Company which is located more than thirty-five
(35) miles from the Division’s current office location set forth above, provided Executive will be
expected to travel to the extent reasonably necessary to fulfill his responsibilities.


2. Employment Term. The term of Executive’s employment hereunder (the “Term”) shall
commence effective as of the date hereof and shall end on the second anniversary thereof (the
“Expiration Date”), unless sooner terminated as provided herein.




3. Compensation and Benefits




     (a) Base Salary. During the first year of the Term, the Executive shall receive an
annual base salary (“Annual Base Salary”) in the amount of $569,800.00 and in the second year of
the Term an Annual Base Salary in the amount of $800,000.00, payable in accordance with the
Company’s normal payroll practices (but not less frequently than monthly). During the Term, the
Annual Base Salary shall be reviewed by the CEO (for purposes of increase only) at least annually.
Any increase in Annual Base Salary shall not serve to limit or reduce any other obligation to the
Executive under this Agreement. Annual Base Salary shall not be reduced after any such increase and
the term Annual Base Salary as utilized in this Agreement shall refer to Annual Base Salary as so
increased. Notwithstanding anything contained herein to the contrary, in the event that the Company
shall implement a Company-wide reduction in executive base compensation, then, solely for such
purpose and only during the continuation of such Company-wide reduction, the Company shall have the
right to reduce the Annual Base Salary then payable hereunder in a manner that is consistent with
said Company-wide reduction.



     (b) Bonuses; Stock Incentive Plans. Executive will be eligible to and shall
participate in the Company’s bonus and stock incentive plans at the discretion of the Compensation
Committee of the Board. The amount and terms of, and the targets, conditions and restrictions
applicable to each bonus or other incentive award shall be subject to the provisions of any such
plan and of the applicable award letter duly executed and delivered by the Company.



     (c) Incentive, Savings and Retirement Plans. During the Term, the Executive shall be
entitled to participate in all incentive, savings and retirement plans, practices, policies and
programs applicable generally to other Division Presidents of the Company and its affiliated
companies.



     (d) Welfare Benefit Plans. During the Term, the Executive and/or the Executive’s
family, as the case may be, shall be eligible for participation in and shall receive all benefits
under welfare benefit plans, practices, policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical, prescription, dental, disability,
employee life, group life, accidental death and travel accident insurance plans and programs) to
the extent applicable generally to other Division Presidents of the Company and its affiliated
companies.



     (e) Expenses. The Company will pay or reimburse Executive for all reasonable and
necessary out-of-pocket expenses incurred by him in the performance of his duties under this
Agreement. Executive shall keep detailed and accurate records of expenses incurred in connection
with the performance of his duties hereunder and reimbursement therefore shall be in accordance
with policies and procedures to be established from time to time by the Board.



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     (f) Office and Support Staff. During the Term, the Executive shall be entitled to an
office or offices of a size and with furnishings and other appointments, and to secretarial and
other assistance, consistent with the Executive’s position and title.



     (g) Vacation. During the Term, Executive shall be entitled to twenty (20) working
days of compensated vacation in each fiscal year, to be taken at times which do not unreasonably
interfere with the performance of Executive’s duties hereunder. Any unused vacation time from any
fiscal year shall be subject to accumulation or forfeiture in accordance with Company policy as in
effect from time to time.



     (h) Company Automobile. Executive currently has use of a Company leased automobile.
He may continue use of such car until the Expiration Date, provided however, if during the Term he
so elects, he shall be provided with a Company leased automobile generally of the same type and
cost as other Division Presidents.



4. Termination of Employment.




     (a) Death or Disability. The Executive’s employment shall terminate automatically upon
the Executive’s death during the Term. If the Disability of the Executive occurs during the Term
(pursuant to the definition of Disability set forth below), the Company may give to the Executive
written notice in accordance with Section 9(c) of this Agreement of its intention to terminate the
Executive’s employment. In such event, the Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the Executive (the “Disability Effective
Date”), provided that, within the 30 days after such receipt, the Executive shall not have returned
to full-time performance of the Executive’s duties. For purposes of this Agreement, “Disability”
shall mean the absence of the Executive from the Executive’s duties with the Company on a full-time
basis for 120 consecutive business days as a result of incapacity due to mental or physical illness
which is determined to be total and permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive’s legal representative.



     (b) Cause. The Company may terminate the Executive’s employment for Cause. For
purposes of this Agreement, “Cause” shall mean:




	 	(i)	 	any act or failure to act by Executive done with the intent
to harm in any material respect the financial interests or reputation of the
Company or any affiliated companies;
	 
	 	(ii)	 	Executive being convicted of (or entering a plea of guilty or
nolo contendere to) a felony (other than a felony involving a motor vehicle);
	 
	 	(iii)	 	Executive’s dishonesty, misappropriation or fraud with
regard to the Company or any affiliated companies (other than good faith
expense account disputes);
	 
	 	(iv)	 	a grossly negligent act or failure to act by Executive which
has a material adverse affect on the Company or any affiliated companies;
	 
	 	(v)	 	the material breach by Executive of his agreements or
obligations under this Agreement which has a material adverse effect on the
Company, which breach, if curable, is not cured by Executive within fifteen
(15) days after written notice from the Company which specifically identifies
the material breach which the Company believes that Executive has committed;
or




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	 	(vi)	 	the continued refusal to follow the directives of the CEO or
the Board or their designees which are consistent with Executive’s duties and
responsibilities identified in Section 1 hereof; provided that the foregoing
refusal shall not be “cause” if Executive in good faith believes that such
direction is illegal, unethical or immoral and promptly so notifies the CEO or
Board, as the case may be, in writing.





     (c) Notice of Termination. Any termination by the Company for Cause shall be
communicated by Notice of Termination to the Executive given in accordance with Section 9(c) of
this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice
which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive’s employment under the provision so indicated and (iii) if
the Date of Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than thirty days after the giving of
such notice). The failure by the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause shall not waive any right of the Company
hereunder or preclude the Company from asserting such fact or circumstance in enforcing the
Company’s rights hereunder.



     (d) Date of Termination. “Date of Termination” means (i) if the Executive’s employment
is terminated by the Company for Cause, the date of receipt of the Notice of Termination or,
subject to applicable cure periods, any later date specified therein, as the case may be, (ii) if
the Executive’s employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the Executive of such
termination and (iii) if the Executive’s employment is terminated by reason of death or Disability,
the Date of Termination shall be the date of death of the Executive or the Disability Effective
Date, as the case may be.


5. Obligations of the Company upon Termination.




     (a) Other Than for Cause. If, during the Term, the Company shall terminate the
Executive’s employment other than for Cause:




	 	(i)	 	the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts: (1) the Executive’s Annual Base Salary through the Date of
Termination to the extent not theretofore paid, (2) any accrued but unpaid
annual bonus (“Annual Bonus”) respecting any completed fiscal year ending
prior to the Date of Termination, (3) the product of (x) the Average Annual
Bonus (hereinafter defined) and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the Date of Termination, and
the denominator of which is 365 and (4) any compensation previously deferred
by the Executive (together with any accrued interest or earnings thereon) and
any accrued vacation pay, in each case to the extent not theretofore paid (the
sum of the amounts described in clauses (1), (2), (3) and (4) shall be
hereinafter referred to as the “Accrued Obligations”).
	 
	 	 	 	The term “Average Annual Bonus” shall mean the arithmetic average of the
Executive’s bonuses (whether paid or deferred) under the Company’s annual
incentive plans during the last three full fiscal years prior to the Date
of Termination or for such lesser period as the Executive has been
employed by the Company (annualized in the event that the Executive was
not employed by the Company for the whole of any such fiscal year).
Without limiting the generality of the foregoing definition, the




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	 	 	 	“Average
Annual Bonus” shall include the following components, if any, pursuant to
the Company’s Amended and Restated VCIP Rules (or any successor incentive
plan, for so long as any of same shall exist):






	 	(a)	 	Cash payouts from VC and
IVC awards and the “Bank” payout, subject to the Payout Cap,
all at full face value;
	 
	 	(b)	 	Any excess in the Bank
discounted at 75% of face value (which shall, for purposes
hereof, be deemed to be fully vested);
	 
	 	(c)	 	10% of the Bank contributed
to the Deferred Compensation Plan, at full face value (which
shall, for purposes hereof, be deemed to be fully vested);
and
	 
	 	(d)	 	Any deferred bonus under
the VCIP which is invested in stock under the Company’s
Corporate Management Stock Purchase Program, at full face
value of said bonus (which shall, for purposes hereof, be
deemed to be fully vested);






	 	(ii)	 	so long as the Executive is and remains in compliance in all
material respects with his obligations under Section 6 below, the Company
shall pay to the Executive an amount equal to the sum of (1) Executive’s
Annual Base Salary (at the rate in effect on the Date of Termination), and (2)
the Average Annual Bonus for a period of two years from the Date of
Termination, (the “Severance Period”), at the same time that payments of
Annual Base Salary and Annual Bonus would otherwise have become due and
payable during said period in the absence of such termination;
	 
	 	(iii)	 	so long as the Executive is and remains in compliance in all
material respects with his obligations under Section 6 below, during the
Severance Period, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company shall continue
benefits to the Executive and/or the Executive’s family at least equal to
those which would have been provided to them in accordance with the plans,
programs, practices and policies described in Section 3(d) of this Agreement
if the Executive’s employment had not been terminated, provided, however, that
if the Executive becomes reemployed with another employer and receives medical
or other welfare benefits under another employer provided plan, the medical
and other welfare benefits described herein shall cease; and
	 
	 	(iv)	 	to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which the Executive is eligible to receive
under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and benefits shall be
hereinafter referred to as the “Other Benefits”).





     (b) Death. If the Executive’s employment is terminated by reason of the Executive’s
death, this Agreement shall terminate without further obligations to the Executive’s legal
representatives under this Agreement, other than for payment of Accrued Obligations and the timely
payment or provision of Other Benefits. Accrued Obligations shall be paid to the Executive’s estate
or beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of Termination.



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     (c) Disability. If the Executive’s employment is terminated by reason of the
Executive’s Disability, this Agreement shall terminate without further obligations to the
Executive, other than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the Executive or the Executive’s legal
representative in a lump sum in cash within 30 days of the Date of Termination.



     (d) Cause. If the Executive’s employment shall be terminated for Cause, this Agreement
shall terminate without further obligations to the Executive other than the obligation to pay to
the Executive (x) his Annual Base Salary through the Date of Termination, (y) the amount of any
compensation previously deferred by the Executive, and (z) Other Benefits, in each case to the
extent theretofore unpaid. If the Executive voluntarily terminates employment during the Term, this
Agreement shall terminate without further obligations to the Executive, other than for Accrued
Obligations and the timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date of
Termination.



     (e) Payment of Deferred Compensation. Notwithstanding anything to the contrary
contained in this Section 5 and subject to Section 10 hereof, the timing of payments by the Company
of any deferred compensation which is part of the Accrued Obligations shall remain subject to the
terms and conditions of the applicable deferred compensation plan, and any payment election
previously made by the Executive.



6. Employment Covenants.




     (a) Covenant Not to Compete. Executive recognizes and acknowledges that the Company is
placing its confidence and trust in Executive. Executive, therefore, covenants and agrees that
during the Applicable Non-Compete Period (as defined below) Executive shall not, either directly or
indirectly, without the prior written consent of the Board (which may be withheld in the sole and
absolute discretion of the Board):




(i) Engage in or carry on any business or in any way become associated with any
business in the Restricted Area (as hereinafter defined) which is similar to or is
in competition with the Business of the Company (as hereinafter defined). As used
in this Section 6(a), the term (1) “Business of the Company” shall mean and include
all business activities in which the Company and/or any affiliated companies have
engaged (or have prepared written plans to engage) at any time during the Term,
including but not limited to, the purchase of land (or options therefor) for
development and the construction of residential homes for resale to consumers, and
(2) “Restricted Area” shall mean and include anywhere in the United States of
America or in any foreign country in which the Company or any affiliated companies
then engage (or have within the preceding three years engaged) in business.




(ii) in connection with any business which is similar to or is in competition with
the Business of the Company in the Restricted Area, solicit the business of any
person or entity, on behalf of himself or any other person or entity, which is or
has been at any time during the Term a customer or supplier of the Company
including, but not limited to, former or present customers or suppliers with whom
Executive has had personal contact during, or by reason of, his relationship with
the Company;




(iii) Be or become an employee, agent, consultant, representative, director or
officer of, or be otherwise in any manner associated with, any person, firm,
corporation, association or other entity which is engaged in or is carrying on any
business which is similar to or in competition with the Business of the Company in
the Restricted Area;



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(iv) Solicit for employment or employ any person employed by the Company at any
time during the twelve (12) month period immediately preceding such solicitation or
employment; or




“(v) Be or become a shareholder, joint venturer, owner (in whole or in part), or
partner, or be or become associated with or have any proprietary or financial
interest in or of any firm, corporation, association or other entity which is
engaged in or is carrying on any business which is similar to or in competition
with the Business of the Company in the Restricted Area (a “Competing Entity”).
Notwithstanding the preceding sentence, (A) passive equity investments by Executive
of $100,000 or less in any Competing Entity, or (B) investments, in any amount, in
any publicly traded mutual fund, index fund or similar investment vehicle which
fund or investment vehicle owns any proprietary or financial interest in any
Competing Entity, shall not be deemed to violate this Section 6(a)(v).”



     Executive further warrants and represents that, because of his varied skill and abilities, he
does not need to compete with the Business of the Company and that this Agreement will not prevent
him from earning a livelihood and acknowledges that the restrictions contained in this Section 6
constitute reasonable protections for the Company.



     As used in this Section 6, “Applicable Non-Compete Period” shall mean the following:




	 	(A)	 	at all times that the Executive is employed by the Company;
and
	 
	 	(B)	 	for a period of time after the Executive’s employment under
this Agreement is terminated for any reason equal to the greater of






	 	(i)	 	180 days; or
	 
	 	(ii)	 	such longer period of time that the Executive is entitled to
receive payments under Sections 5(a)(ii) or (iii) above.





     (b) Confidential Information. Executive agrees that all Confidential Information shall
be the sole property of the Company, and Executive agrees that he shall not during the Term nor
thereafter, use for his benefit or the benefit of others or disclose at any time Confidential
Information or take with him upon termination of this Agreement any records, papers, reports,
lists, computer tapes or disks or any other materials of any nature that contain any Confidential
Information. “Confidential Information” shall mean all information other than General Knowledge
(defined below) relating to the Company’s: (i) business or existing projects including all those in
various stages of research and development including all unpublished plans for new products or
services; (ii) financial information, internal business procedures and other information which
relate to the way the Company conducts its business and which are not publicly available; (iii)
data written by the Company’s employees or others, including source codes, object codes, marketing
and development plans, budgets, forecasts, forecast assumptions and future plans and potential
strategies of the Company which have been or are being discussed; (iv) unpublished pricing data;
(v) identity, buying habits and practices of the Company, its suppliers and customers to the extent
not publicly available; (vi) information regarding the skills or compensation of employees of the
Company; (vii) the Intellectual Property of the Company and any information pertaining thereto;
(viii) materials and information supplied by customers or clients to the Company that contain data
regarding any research, products, procedures or the like; and (ix) any other information deemed
confidential by the Company by marking such information with the word “Confidential” or similar
word; by orally advising the Executive that the information is confidential or by treating the
information in such a manner that the Executive should reasonably believe it to be deemed
confidential by the Company. “General Knowledge” shall mean (i) general skills or experience



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gained during Executive’s employment with, consultation for or work for the Company; and (ii)
information and data publicly available.



     (c) Records. All files, records, memoranda and other documents regarding former,
existing or prospective customers of the Company or relating in any manner whatsoever to
Confidential Information or the Business of the Company (collectively, “Records”), whether prepared
by Executive or otherwise coming into his possession, shall be the exclusive property of the
Company. All Records shall be immediately placed in the physical possession of the Company upon the
termination of Executive’s employment with the Company, or at any other time specified by the
Board. The retention and use by Executive of duplicates in any form of Records is prohibited after
the termination of Executive’s employment with the Company.



     (d) Breach. Executive hereby recognizes and acknowledges that irreparable injury or
damage shall result to the Company in the event of a breach or threatened breach by Executive of
any of the terms or provisions of this Section 6, and Executive therefore agrees that the Company
shall be entitled to an injunction restraining Executive from engaging in any activity constituting
such breach or threatened breach. Nothing contained herein shall be construed as prohibiting the
Company from pursuing any other remedies available to the Company at law or in equity for such
breach or threatened breach, including but not limited to, the recovery of damages from Executive
and, if Executive is an employee of the Company, the termination of his employment with the Company
in accordance with the terms and provisions of this Agreement.



     (e) Survival. Notwithstanding the termination of the employment of Executive or the
termination of this Agreement, the provisions of this Section 6 shall survive and be binding upon
Executive unless a written agreement which specifically refers to the termination of the
obligations and covenants of this Section 6 is executed by the Company. Notwithstanding the
foregoing, this Section 6 shall not survive the termination of this Agreement as the result of the
Change Of Control Agreement (hereinafter defined) becoming effective.



     (f) Blue-Penciling. Should any court or other legally constituted authority determine
that for any such agreement or covenant to be effective it must be modified to limit its duration
or scope, the parties hereto shall consider such agreement or covenant to be amended or modified
with respect to duration and/or scope so as to comply with the orders of any such court or other
legally constituted authority, and as to all other portions of such agreement or covenants they
shall remain in full force and effect as originally written.


7. No Mitigation. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and such amounts shall not be reduced whether or not the Executive
obtains other employment. The Company agrees to pay as incurred, to the full extent permitted by
law, all legal fees and expenses which the Executive may reasonably incur as a result of any
contest by (i) the Company, provided that the Executive prevails in at least one material issue,
(ii) the Executive or (iii) others, of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance thereof (including, without limitation,
as a result of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f) (2) (A) of the Internal Revenue Code of 1986, as amended (the
“Code”).




8. Successors.




     (a) This Agreement is personal to the Executive and without the prior written consent of the
Company shall not be assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s
legal representatives.



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     (b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.


9. Miscellaneous.




     (a) This Agreement shall be governed by and construed in accordance with the laws of the State
of Delaware, without reference to principles of conflict of laws. Any legal action, suit or
proceeding arising out of or relating to this Agreement shall be instituted in the state or federal
courts in the State of Delaware and the parties agree not to assert, in any action, suit or
proceeding by way of motion, as a defense or otherwise, any claim that either party is not
personally subject to the jurisdiction of such court, or that such action, suit or proceeding is
brought in an inconvenient forum, or that the venue is improper or that the subject matter hereof
cannot be enforced in such court. The parties hereby irrevocably submit to the jurisdiction of any
such court in any such action, suit or proceeding and agree that service of all process in any such
action, suit or proceeding in any such court may be made by registered or certified mail, return
receipt requested, to its address set forth in this Agreement, such service being hereby
acknowledged by such party to be sufficient for personal jurisdiction in any action against such
party in any such court and to be otherwise effective and binding service in every respect.



     (b) The captions of this Agreement are not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors and legal representatives.



     (c) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party, by FedEx or other commercial overnight courier or by registered
or certified mail, return receipt requested, postage prepaid, addressed as follows:



If to the Executive:




P.O. Box 422175, Atlanta, GA 30342




If to the Company:




1000 Abernathy Road

Suite 1200

Atlanta, Georgia 30328

Attention: Company Secretary



or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notice and communications shall be effective when actually received by the addressee.




     (d) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.



     (e) The Company may withhold from any amounts payable under this Agreement such Federal,
state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or
regulation.



     (f) The Company’s failure to insist upon strict compliance with any provision of this
Agreement or the failure to assert any right the Company may have hereunder shall not be deemed to
be a waiver of such provision or right or any other provision or right of this Agreement.



     (g) This Agreement supersedes any and all other prior or contemporaneous agreements, either
oral or in writing, between the parties hereto with respect to the subject matter hereof including,
without limitation, the Existing Agreement, and this Agreement contains all of the



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covenants and
agreements between the parties with respect to employment of Executive by the Company,
provided, however, that nothing contained herein shall impair Executive’s right to
(i) any salary, bonus or other payments accrued through the effective date hereof and owing to
Executive pursuant to the Existing Agreement or (ii) any award of restricted stock and grants of
options to acquire shares of the Company’s common stock referred to in the Existing Agreement and
the award letters delivered by the Company to Executive in connection therewith.



     Reference is hereby made to that certain Employment Agreement dated as of February 3, 2006, as
amended (the “Change Of Control Agreement”) by and between the Company and the Executive.
Notwithstanding anything contained herein to the contrary, (i) this Agreement shall not supersede
the Change of Control Agreement, and (ii) upon the “Effective Date” occurring under the Change of
Control Agreement, this Agreement shall be superseded by the Change of Control Agreement.



     (h) This Agreement may be executed via facsimile transmission signature and in counterparts,
each of which shall be deemed to be an original but all of which together will constitute one and
the same instrument.


10. Special Provision Regarding Section 409A of the Internal Revenue Code.




     This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”) and will be interpreted in a manner intended to comply with Section 409A of
the Code. Notwithstanding anything herein to the contrary, in the event any payments or benefits
required to be provided hereunder are deemed to constitute payments of “nonqualified deferred
compensation” that is subject to the requirements of Section 409A of the Code, then the time and
manner in which such payment or benefit is provided shall be adjusted, to the extent reasonably
possible, so that payment or distribution is made at a time and in a manner that is consistent with
the requirements of such Section 409A (and applicable proposed or final Treasury regulations or
other guidance issued or to be issued by the Internal Revenue Service). This Section 10 may, for
example, require that certain payments to Executive following his termination of employment be
delayed until the date that is six (6) months after the date of his separation from service with
the Company (the “Delay Period”) if, at the time of Executive’s termination of employment with the
Company, Executive is a “specified employee” (as that term is used for purposes of Section
409A(2)(B)(i)). Upon the expiration of the Delay Period, all payments and benefits delayed
pursuant to this Section 10 (whether they would have otherwise been payable in a single sum or in
installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump
sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.



     To the extent any reimbursements or in-kind benefits due to Executive under this Agreement
constitutes “deferred compensation” under Section 409A of the Code, any such reimbursements or
in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section
1.409A-3(i)(1)(iv). Each payment made under this Agreement shall be designated as a “separate
payment” within the meaning of Section 409A of the Code. The Executive shall be deemed to have a
“termination of employment” under this Agreement for purposes of entitling him to any “nonqualified
deferred compensation” that is subject to the requirements of Section 409A only to the extent the
Executive has a “separation from service,” as that term is defined in Section 409A and the
applicable Treasury regulations applying all of the default rules thereunder. The Company shall
consult with Executive in good faith regarding the implementation of the provisions of this Section
10.



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     IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED EMPLOYMENT
AGREEMENT effective as of the date first written above.



	 	 	 	 	 
	 	BEAZER HOMES USA, INC.

 	 
	 	By:  	/s/ Ian J. McCarthy
 	 
	 	Name:  	Ian J. McCarthy 	 
	 	Title:  	President and Chief Executive Officer 	 
	 
	 	EXECUTIVE

 	 
	 	/s/ Michael H. Furlow
 	 
	 	MICHAEL H. FURLOW 	 
	 	 	 
	 




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