Exhibit 4.3


 


BROOKFIELD HOMES CORPORATION


 






 


AMENDED AND RESTATED


CERTIFICATE
OF DESIGNATIONS

FOR

$250,000,000 8% CONVERTIBLE PREFERRED STOCK, SERIES A


 


(PURSUANT
TO DELAWARE GENERAL CORPORATION LAW,

SECTION 151(G))


 






 


The
undersigned, being the President and Chief Executive Officer and the Secretary,
respectively, of Brookfield Homes Corporation (the “Corporation”), a corporation organized and existing under
the Delaware General Corporation Law, in accordance with the provisions of the
Delaware General Corporation Law, Section 151(g), do hereby certify that:


 


1.                                       Pursuant to the authority vested in the Board
of Directors of the Corporation by the Certificate of Incorporation of the
Corporation, the Board of Directors on December 15, 2008, in accordance
with the Delaware General Corporation Law, Section 151, duly adopted a
resolution establishing a series of 10,000,000 shares of the Corporation’s
Preferred Stock, designated as its 8% Cumulative Perpetual Preferred Stock, Series A
(the “Original Preferred Stock”):


 


2.                                       No shares of Original Preferred Stock have
been issued.


 


3.                                       Pursuant to the authority vested in the Board
of Directors of the Corporation by the Certificate of Incorporation of the
Corporation, the Board of Directors on December                         ,
in accordance with the Delaware General Corporation Law, Section 151, duly
adopted the following resolution amending and restating the Original Preferred
Stock by establishing a series of 10,000,000 shares of the Corporation’s
Preferred Stock, to be designated as its $250,000,000 8% Convertible Preferred
Stock, Series A:


 


RESOLVED,
that pursuant to the authority vested in the Board of Directors of the
Corporation (the “Board of Directors”)
by the Certificate of Incorporation of the Corporation, the Board of Directors
hereby amends and restates the 8% Cumulative Perpetual Preferred Stock, Series A,
established on December 15, 2008, by establishing a series of $250,000,000
8% Convertible Preferred Stock, Series A, of the Corporation and hereby
states the number of shares, and fixes the powers, designations, preferences
and relative, participating, optional and other rights, and the qualifications,
limitations and restrictions thereof, of such series of shares as follows:


 


$250,000,000 8% CONVERTIBLE PREFERRED STOCK, SERIES A


 


Section 1.                    Designation;
Number of Shares.  The shares of such
series shall be designated as “$250,000,000 8% Convertible Preferred Stock, Series A”
(the “Convertible


 

















 


Preferred
Stock”), and the
number of shares constituting the Convertible Preferred Stock shall be
10,000,000.  Such number of shares may be
decreased by resolution of the Board of Directors adopted and filed pursuant to
the Delaware General Corporation Law, Section 151(g), or any successor
provision; provided, that no such decrease shall reduce the number of
authorized shares of Convertible Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, warrants, convertible or
exchangeable securities or other rights to acquire shares of Convertible
Preferred Stock.


 


Section 2.                                            Stated Capital.  Each
share of Convertible Preferred Stock shall have a stated value equal to $25.00,
as adjusted for any stock dividends, splits, combinations or other similar
recapitalization with respect to the shares of Convertible Preferred Stock (the
“Stated Value”), and $0.01 par
value.


 


Section 3.                                            Rank.  The Convertible Preferred
Stock shall rank prior to all of the Corporation’s Common Stock, par value
$.01 per share (the “Common Stock”),
now outstanding or hereafter issued, both as to payment of dividends and as to
distributions of assets upon the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary.


 


Section 4.                                            Dividends and Distributions.  The
holders of shares of Convertible Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for such purpose, dividends at the rate of 8% per share per annum on
the Stated Value per share of Convertible Preferred Stock, and no more.  Such dividends shall be fully cumulative,
shall accumulate without interest from the date of original issuance of the Convertible
Preferred Stock and shall be payable semi-annually in arrears, at the election
of the Corporation in (i) cash; (ii) shares of Common Stock; or (iii) a
combination of cash and shares of Common Stock; provided that if the
Corporation elects to pay all or any portion of such dividend in shares of
Common Stock, no fractional shares of Common Stock shall be issued in payment
of any such dividend, and the Corporation shall pay cash in respect of any
fraction of a share of Common Stock that would otherwise be issuable in payment
of such dividend. Such dividends shall be payable on the last calendar day of
each June and December, commencing on the last calendar day of the first June or
December following the date of original issuance of the Convertible
Preferred Stock (provided, that if any such date is a Saturday, Sunday or legal
holiday in the place where such dividend is to be paid, then such dividend
shall be payable without interest on the next day that is not a Saturday,
Sunday or legal holiday), to holders of record as they appear on the stock
books of the Corporation on such record dates as shall be fixed by the Board of
Directors.  Such record dates shall be
not more than 60 nor less than 10 days preceding the respective dividend
payment dates.  Where the Corporation
elects to pay all or any portion of dividends in shares of Common Stock, the
amount of dividends so payable shall be computed based on the average of the
Volume Weighted Closing Price (as defined in the next sentence) of the Common
Stock over the five consecutive trading days immediately preceding the
applicable declaration date.  The “Volume
Weighted Closing Price” for each trading day shall be the product of (i) the
total number of shares of Common Stock traded on such day on the New York Stock
Exchange or, if the Common Stock is not listed or


 


2

















 


admitted to trading on the New York Stock Exchange, on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading, or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, on the principal inter-dealer quotation system on
which the Common Stock is quoted; and (ii) the last reported sale price
regular way or, in case no sale takes place on such day, the average of the
closing bid and asked prices regular way on such trading day, in either case as
reported by the New York Stock Exchange, or, if the Common Stock is not listed
or admitted to trading on the New York Stock Exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange, the average of the bid and asked prices for such day on
the principal inter-dealer quotation system on which the Common Stock is
quoted, or, if the Common Stock is not quoted on any such inter-dealer
quotation system, the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm selected from time to time
by the Corporation for such purpose, or, if no such bid and asked prices can be
obtained from any such firm, the fair market value of one share of the Common
Stock on such day as determined in good faith by the Board of Directors of the
Corporation.


 


No
dividends or other distributions in respect of shares of Common Stock, other
than dividends payable solely in shares of Common Stock or other capital stock
of the Corporation ranking junior as to payment of dividends to the Convertible
Preferred Stock (such Common Stock and other capital stock being referred to
herein collectively as “Junior Dividend
Stock”), shall be paid or set apart for payment on, and no purchase,
redemption or other acquisition shall be made by the Corporation of, any shares
of Junior Dividend Stock unless and until (i) all accumulated and unpaid
dividends on the Convertible Preferred Stock, including the full dividend for
the then-current semi-annual dividend period, shall have been paid or declared
and set apart for payment, and (ii)(a) in the case of a dividend on Common
Stock or any class or series that is convertible into Common Stock, that
dividend per share of Convertible Preferred Stock as would equal the product of
(A) the dividend payable on each share of such class or series determined,
if applicable, as if all shares of such class or series had been converted into
Common Stock and (B) the number of shares of Common Stock issuable upon
conversion of a share of Convertible Preferred Stock, in each case calculated
on the applicable record date for determination of holders entitled to receive
such dividend or (b) in the case of a dividend on any class or series that
is not convertible into Common Stock, that dividend per share of Convertible
Preferred Stock determined by (A) dividing the amount of the dividend
payable on each share of such class or series of capital stock by the original
issuance price of such class or series of capital stock (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or
other similar recapitalization  with
respect to such class or series) and (B) multiplying such fraction by an
amount equal to the Convertible Preferred Original Issue Price (as defined
below), shall have been paid in respect of each share of then outstanding
Convertible Preferred Stock; provided that, if the Corporation declares, pays
or sets aside, on the same date, a dividend on shares of more than one class or
series of capital stock of the Corporation, the dividend payable to the holders
of Convertible Preferred Stock pursuant to this Section 4 shall be
calculated based upon the dividend on the class or series of capital stock that
would result in the highest Convertible Preferred Stock dividend.  The “Convertible
Preferred Original Issue Price” shall mean $25.00 per share, subject
to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization with respect to the Convertible
Preferred Stock.


 


3

















 


If
at any time any dividend on any capital stock of the Corporation ranking senior
as to payment of dividends to the Convertible Preferred Stock (such capital
stock being referred to herein as “Senior
Dividend Stock”) shall be in default, in whole or in part, no
dividend shall be paid or declared and set apart for payment on the Convertible
Preferred Stock unless and until all accumulated and unpaid dividends with
respect to the Senior Dividend Stock, including the full dividend for the
then-current dividend period, shall have been paid or declared and set apart
for payment, without interest.  No full
dividends shall be paid or declared and set apart for payment on any capital
stock of the Corporation ranking, as to payment of dividends, on a parity with
the Convertible Preferred Stock (such capital stock being referred to herein as
“Parity Dividend Stock”) for any
period unless full cumulative dividends have been, or contemporaneously are,
paid or declared and set apart for payment on the Convertible Preferred Stock
for all dividend periods terminating on or prior to the date of payment of such
full cumulative dividends.  No full
dividends shall be paid or declared and set apart for payment on the Convertible
Preferred Stock for any period unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for payment on any Parity
Dividend Stock for all dividend periods terminating on or prior to the date of
payment of such full cumulative dividends. 
When dividends are not paid in full upon the Convertible Preferred Stock
and any Parity Dividend Stock, all dividends paid or declared and set apart for
payment upon shares of Convertible Preferred Stock and Parity Dividend Stock
shall be paid or declared and set apart for payment pro rata, so that the
amount of dividends paid or declared and set apart for payment per share on the
Convertible Preferred Stock and the Parity Dividend Stock shall in all cases
bear to each other the same ratio that accumulated and unpaid dividends per
share on the shares of Convertible Preferred Stock and Parity Dividend Stock
bear to each other.


 


Any
reference to “distribution” contained in this Section 4 shall not be
deemed to include any distribution made in connection with a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary.


 


Section 5.                                            Liquidation
Preference.  In the event of a
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of Convertible Preferred Stock shall be entitled to
receive out of the assets of the Corporation, whether such assets constitute
stated capital or surplus of any nature, an amount equal to the dividends
accumulated and unpaid thereon to the date of final distribution to such
holders, whether or not declared, without interest, plus a sum equal to the
greater of (i) the Convertible Preferred Original Issue Price per share
and (ii) such amount per share as would have been payable had all shares
of Convertible Preferred Stock been converted into Common Stock pursuant to Section 7
immediately prior to such liquidation, dissolution or winding up, and no more,
before any payment shall be made or any assets distributed to the holders of
Common Stock or any other capital stock of the Corporation ranking junior as to
liquidation rights to the Convertible Preferred Stock (such Common Stock and
other capital stock being referred to herein collectively as “Junior Liquidation Stock”); provided, that
such rights shall accrue to the holders of Convertible Preferred Stock only in
the event that the Corporation’s payments with respect to the liquidation
preferences of the holders of capital stock of the Corporation ranking senior
as to liquidation rights to the Convertible Preferred Stock (such capital stock
being referred to herein as “Senior
Liquidation Stock”) are fully met. 
The entire assets of the Corporation available for distribution after
the liquidation preferences of any Senior Liquidation Stock are fully met shall


 


4

















 


be distributed ratably among the holders of the Convertible Preferred
Stock and any other capital stock of the Corporation which ranks on a parity as
to liquidation rights with the Convertible Preferred Stock in proportion to the
respective preferential amounts to which each is entitled (but only to the
extent of such preferential amounts).


 


In
the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, after the payment of all preferential amounts required
to be paid to the holders of shares of Convertible Preferred Stock the
remaining assets of the Corporation available for distribution to its
stockholders shall be distributed among the holders of the shares of Common Stock,
pro rata based on the number of shares held by each such holder.


 


Neither
a consolidation or merger of the Corporation with another corporation nor a
sale or transfer of all or part of the Corporation’s assets for cash,
securities or other property will be deemed a liquidation, dissolution or
winding up of the Corporation for purposes of this Section 5.


 


Section 6.                                            Convertible
Preferred Stock Not Redeemable at Option of Corporation.  The Convertible Preferred Stock shall not be
redeemable by the Corporation.


 


Section 7.                                            Conversion
at Option of Holders.  Holders of
Convertible Preferred Stock may, at their option upon surrender of the
certificates therefor, convert any or all of their shares of Convertible
Preferred Stock into fully paid and nonassessable shares of Common Stock (and
such other securities and property as they may be entitled to, as hereinafter
provided) at any time after issuance thereof. 
Each share of Convertible Preferred Stock shall be convertible at the
office of any transfer agent for the Convertible Preferred Stock, and at such
other office or offices, if any, as the Board of Directors may designate, into
that number of fully paid and nonassessable shares of Common Stock (calculated
as to each conversion to the nearest 1/100th of a share) as shall be equal to
the Conversion Rate, determined as hereinafter provided, in effect at the time
of conversion.  The number of shares of
Common Stock into which a share of Convertible Preferred Stock may be converted
shall equal the Convertible Preferred Original Issue Price per share being
converted divided by the Conversion Price (as defined below), subject to
adjustment from time to time as provided in Section 9 (such conversion
rate, as so adjusted from time to time, being referred to herein as the “Conversion Rate”).  The initial Conversion Rate shall be
3.571428571 shares of Common Stock issuable upon conversion of each share of
Convertible Preferred Stock.  The “Conversion Price” shall be equal to the
Convertible Preferred Original Issue Price per share divided by the Conversion
Rate in effect at the time of conversion, as adjusted for any stock dividends,
splits, combinations or other similar recapitalization with respect to the
shares of Convertible Preferred Stock. 
Except as provided in this Section 7 and Section 8, upon
conversion, no adjustment or payment shall be made in respect of accumulated
and unpaid dividends on the Convertible Preferred Stock surrendered for
conversion.


 


Upon
conversion of any share of Convertible Preferred Stock, the holder thereof
shall also be entitled to receive a sum equal to all declared and unpaid
dividends on such share (the “Conversion
Payment”).  At the election of
the Corporation, the amount of such Conversion


 


5

















 


Payment
shall be determined, and such Conversion Payment shall be payable in the forms
permitted by, Section 4.


 


The
right of holders of Convertible Preferred Stock to convert their shares shall
be exercised by surrendering for such purpose to the Corporation or its agent,
as provided above, certificates representing shares to be converted, duly
endorsed in blank or accompanied by proper instruments of transfer.  The Corporation shall not be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of Common Stock or other securities or property upon conversion of
Convertible Preferred Stock in a name other than that of the holder of the
shares of Convertible Preferred Stock being converted, nor shall the
Corporation be required to issue or deliver any such shares or other securities
or property unless and until the person or persons requesting the issuance
thereof shall have paid to the Corporation the amount of any such tax or shall
have established to the satisfaction of the Corporation that such tax has been
paid.


 


A
number of shares of the authorized but unissued Common Stock sufficient to
provide for the conversion of the Convertible Preferred Stock outstanding upon
the basis hereinbefore provided shall at all times be reserved by the
Corporation, free from preemptive rights, for such conversion, subject to the
other provisions of this Section 7. 
If the Corporation shall issue any securities or make any change in its
capital structure that would change the number of shares of Common Stock into
which each share of the Convertible Preferred Stock shall be convertible as
herein provided, the Corporation shall at the same time also make proper
provision so that thereafter there shall be a sufficient number of shares of
Common Stock authorized and reserved, free from preemptive rights, for
conversion of the outstanding Convertible Preferred Stock on the new
basis.  The Corporation shall comply with
all securities laws regulating the offer and delivery of shares of Common Stock
upon conversion of the Convertible Preferred Stock and shall use its best
efforts to list such shares on each national securities exchange on which the
Common Stock is listed.


 


Upon
the surrender of certificates representing shares of Convertible Preferred
Stock to be converted, duly endorsed or accompanied by proper instruments of
transfer as provided above, the person converting such shares shall be deemed
to be the holder of record of the Common Stock issuable upon such conversion, and
all rights with respect to the shares surrendered shall forthwith terminate
except the right to receive the Common Stock or other securities, cash or other
assets as herein provided.


 


No
fractional shares of Common Stock shall be issued upon conversion of
Convertible Preferred Stock but, in lieu of any fraction of a share of Common
Stock which would otherwise be issuable in respect of the aggregate number of
such shares surrendered for conversion at one time by the same holder, the
Corporation shall pay in cash an amount equal to the product of (a) the
Closing Price (as defined in the next sentence) of a share of Common Stock on
the last trading day before the date on which shares of Common Stock are issued
upon conversion of a share of Convertible Preferred Stock, and (b) such
fraction of a share.  The “Closing Price”
for each day shall be the last reported sale price regular way or, in case no
sale takes place on such day, the average of the closing bid and asked prices
regular way on such trading day, in either case as reported by the New York
Stock Exchange, or, if the Common Stock is not listed or


 


6
















 


admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading, or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, the average of the bid and asked
prices for such day on the principal inter-dealer quotation system on which the
Common Stock is quoted, or, if the Common Stock is not quoted on any such
inter-dealer quotation system, the average of the bid and asked prices for such
day as furnished by any New York Stock Exchange member firm selected from time
to time by the Corporation for such purpose, or, if no such bid and asked
prices can be obtained from any such firm, the fair market value of one share
of the Common Stock on such day as determined in good faith by the Board of
Directors of the Corporation.


 


Section 8.                                            Mandatory
Conversion.


 


In the event that at any time on or after June 30, 2014, the average of the Volume Weighted Closing Price of
the Common Stock over the 90 consecutive trading days immediately prior to the
date of determination is greater than $14.00 per share of Common Stock, as
adjusted for any stock dividends, splits, combinations or other similar
recapitalization with respect to the Common Stock, the Corporation may, at its
option, elect that all, but not less than all,
outstanding shares of Convertible Preferred Stock shall be automatically
converted into shares of Common Stock, at the then effective Conversion Rate
and such shares may not be reissued by the Corporation.  The date and time specified for such
automatic conversion is referred to herein as the “Mandatory Conversion Time”.


 


The Corporation shall send written notice of the
mandatory conversion (the “Mandatory Conversion Notice”) to each
holder of record of Convertible Preferred Stock not less than 30 days prior to
the Mandatory Conversion Time.  Each
Mandatory Conversion Notice shall state:


 


(a)   that all shares of Convertible
Preferred Stock are subject to such mandatory conversion;


 


(b)   the Mandatory Conversion Time
and the then current Conversion Rate; and


 


(c)   that the holder is to surrender
to the Corporation, in the manner and at the place designated, his, her or its
certificate or certificates representing the shares of Convertible Preferred
Stock to be converted.


 


Upon receipt of a Mandatory Conversion Notice, each
holder of shares of Convertible Preferred Stock shall surrender his, her or its
certificate or certificates for all such shares (or, if such holder alleges
that such certificate has been lost, stolen or destroyed, a lost certificate
affidavit and agreement reasonably acceptable to the Corporation to indemnify
the Corporation against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of such certificate) to the
Corporation at the place designated in such notice.  If so required by the Corporation,
certificates surrendered for conversion shall be endorsed or accompanied by
written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by his, her or its
attorney duly authorized in writing.  All
rights with respect to the Convertible Preferred Stock converted pursuant to
this Section 8, including the rights, if any, to receive notices and vote
(other than as a holder of


 


7

















 


Common Stock), will terminate at the
Mandatory Conversion Time (notwithstanding the failure of the holder or holders
thereof to surrender the certificates at or prior to such time), except only
the rights of the holders thereof, upon surrender of their certificate or
certificates (or lost certificate affidavit and agreement) therefor, to receive
the items provided for in the next sentence of this Section 8.  As soon as practicable after the Mandatory
Conversion Time and the surrender of the certificate or certificates (or lost
certificate affidavit and agreement) for Convertible Preferred Stock, the
Corporation shall issue and deliver to such holder, or to his, her or its
nominees, a certificate or certificates for the number of full shares of Common
Stock issuable on such conversion in accordance with the provisions hereof,
together with cash as provided in Section 7 in lieu of any fraction of a
share of Common Stock otherwise issuable upon such conversion and the payment
of any declared but unpaid dividends on the shares of Convertible Preferred
Stock converted.  Such converted
Convertible Preferred Stock shall be retired and cancelled and may not be
reissued as shares of such series, and the Corporation may thereafter take such
appropriate action (without the need for stockholder action) as may be
necessary to reduce the authorized number of shares of Convertible Preferred
Stock accordingly.


 


Section 9.               Adjustments to Conversion Rate.  Notwithstanding anything in this Section 9
to the contrary, no change in the Conversion Rate shall be made until the
cumulative effect of the adjustments called for by this Section 9 since
the date of the last change in the Conversion Rate would change the Conversion
Rate by more than 1%.  However, once the
cumulative effect would result in such a change, then the Conversion Rate shall
be changed to reflect all adjustments called for by this Section 9 and not
previously made.  Subject to the
foregoing, the Conversion Rate shall be adjusted from time to time as follows:


 


(a)   In case of any consolidation or merger of the
Corporation with any other corporation (other than a wholly owned subsidiary of
the Corporation), or in case of any sale or transfer of all or substantially
all of the assets of the Corporation, or in case of any share exchange pursuant
to which all of the outstanding shares of Common Stock are converted into other
securities or property, the Corporation shall, prior to or at the time of such
transaction, make appropriate provision or cause appropriate provision to be
made so that holders of each share of Convertible Preferred Stock then
outstanding shall have the right thereafter to convert such share of
Convertible Preferred Stock into the kind and amount of shares of stock and
other securities and property receivable upon such consolidation, merger, sale,
transfer or share exchange by a holder of the number of shares of Common Stock
into which such share of Convertible Preferred Stock could have been converted
immediately prior to the effective date of such consolidation, merger, sale,
transfer or share exchange.  If in
connection with any such consolidation, merger, sale, transfer or share
exchange, each holder of shares of Common Stock is entitled to elect to receive
either securities, cash or other assets upon completion of such transaction,
the Corporation shall provide or cause to be provided to each holder of
Convertible Preferred Stock the right to elect the securities, cash or other
assets into which the Convertible Preferred Stock held by such holder shall be
convertible after completion of any such transaction on the same terms and
subject to the same conditions applicable to holders of the Common Stock
(including, without limitation, notice of the right to elect, limitations on
the period in which such election shall be made and the effect of failing to
exercise the election).


 


8

















 


(b)   In case the Corporation shall (i) pay a
dividend or make a distribution on its Common Stock in shares of its capital
stock, (ii) subdivide its outstanding Common Stock into a greater number
of shares, (iii) combine the shares of its outstanding Common Stock into a
smaller number of shares, or (iv) issue by reclassification of its Common
Stock any shares of its capital stock, then in each such case the Conversion
Rate in effect immediately prior thereto shall be proportionately adjusted so
that the holder of any Convertible Preferred Stock thereafter surrendered for
conversion shall be entitled to receive, to the extent permitted by applicable
law, the number and kind of shares of capital stock of the Corporation that
such holder would have owned or have been entitled to receive after the
happening of such event had such Convertible Preferred Stock been converted
immediately prior to the record date for such event (or if no record date is
established in connection with such event, the effective date for such action).  An adjustment pursuant to this
subparagraph (b) shall become effective immediately after the record
date in the case of a stock dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination
or reclassification.


 


(c)   In case the Corporation shall issue rights or
warrants to all holders of the Common Stock entitling such holders on the
record date referred to below to subscribe for or purchase Common Stock at a
price per share less than the average of the daily Closing Prices (as defined
in Section 7) of the Common Stock on the 30 consecutive business days
commencing 45 business days before such record date (the “Current Market Price”), then in each such
case the Conversion Rate in effect on such record date shall be adjusted in
accordance with the formula


 




	
  C1 = C

  	
  x

  	
     O
  + N   

  
	
  O + N x P

  
	
   

  	
   

  	
                 M

  






 


where


 


C1                        =          the adjusted Conversion Rate.


C                            =          the current Conversion Rate.


O                           =          the number of shares of Common Stock
outstanding on the record date.


N                           =          the number of additional shares of
Common Stock offered.


P                             =          the offering price per share of the
additional shares.


M                        =          the Current Market Price per share of
Common Stock on the record date.


 


Such adjustment shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants.  If all of the shares of Common Stock subject
to such rights or warrants have not been issued when such rights or warrants
expire, then the Conversion Rate shall promptly be readjusted to the Conversion
Rate that would be in effect had the adjustment upon the issuance of such
rights or warrants been made on the basis of the actual number of shares of
Common Stock issued upon the exercise of such rights or warrants.


 


9

















 


(d)   In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights or
warrants to purchase securities of the Corporation referred to in
subparagraph (c) above, any dividend or distribution paid in cash out
of the retained earnings of the Corporation and any dividend or distribution
referred to in subparagraph (b) above), then in each such case the
Conversion Rate then in effect shall be adjusted in accordance with the formula


 




	
  C1 = C x

  	
     M   

  
	
  M - F

  






 


where


 


	
  C1

  	
   

  	
  =

  	
   

  	
  the adjusted Conversion Rate.

  
	
  C

  	
   

  	
  =

  	
   

  	
  the current Conversion Rate.

  
	
  M

  	
   

  	
  =

  	
   

  	
  the Current Market Price per share of Common Stock
  on the record date mentioned below.

  
	
  F

  	
   

  	
  =

  	
   

  	
  the amount of such cash dividend and/or the fair
  market value on the record date of the assets, securities, rights or warrants
  to be distributed divided by the number of shares of Common Stock outstanding
  on the record date. The Board of Directors of the Corporation shall determine
  in good faith such fair market value.

  



 


Such adjustment shall become
effective immediately after the record date for the determination of
shareholders entitled to receive such dividend or distribution.


 


(e)   All calculations hereunder shall be made to
the nearest cent or to the nearest 1/100 of a share, as the case may be.


 


(f)    In the event that at any time, as a result
of an adjustment made pursuant to subparagraph (a) or (b) above,
the holder of any Convertible Preferred Stock thereafter surrendered for
conversion shall become entitled to receive securities, cash or assets other
than Common Stock, the number or amount of such securities or property so
receivable upon conversion shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Common Stock contained in subparagraphs (a) through
(e) above.


 


Except as otherwise provided above in this Section 9, no
adjustment in the Conversion Rate shall be made in respect of any conversion
for share distributions or dividends theretofore declared and paid or payable
on the Common Stock.


 


Whenever the Conversion Rate is adjusted as herein provided, the
Corporation shall send to each transfer agent for the Convertible Preferred
Stock and the Common Stock, and to the principal securities exchange, if any,
on which the Convertible Preferred Stock and the Common Stock is traded, a
statement signed by the President or any Vice President of the Corporation and
by its Treasurer or its Secretary stating the adjusted Conversion Rate
determined as provided in this Section 9; and any adjustment so evidenced,
given in good faith, shall be binding upon all stockholders and upon the
Corporation.  Whenever the Conversion
Rate is adjusted, the


 


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Corporation shall give notice by mail at the time of,
and together with, the next dividend payment to the holders of record of
Convertible Preferred Stock, setting forth the adjustment and the new
Conversion Rate and Conversion Price. 
Notwithstanding the foregoing notice provisions, failure by the
Corporation to give such notice or a defect in such notice shall not affect the
binding nature of such corporate action of the Corporation.


 


Whenever the Corporation shall propose to take any of the actions
specified in subparagraphs (a), (b), (c) or (d) of the first
paragraph of this Section 9 that would result in any adjustment in the
Conversion Rate, the Corporation shall cause a notice to be mailed at least
30 days prior to the date on which the books of the Corporation will close
or on which a record will be taken for such action to the holders of record of
the outstanding Convertible Preferred Stock on the date of such notice.  Such notice shall specify the action proposed
to be taken by the Corporation and the date as of which holders of record of
the Common Stock shall participate in any such actions or be entitled to
exchange their Common Stock for securities or other property, as the case may
be.  Failure by the Corporation to give
such notice or any defect in such notice shall not affect the validity of the
transaction.


 


Notwithstanding any other provision of this Section 9, no
adjustment in the Conversion Rate need be made (A) for a transaction
referred to in subparagraphs (a), (b), (c) or (d) of the first
paragraph of this Section 9 if holders of Convertible Preferred Stock are
to participate in the transaction or distribution on such a basis and with such
notice as the Board of Directors determines in good faith to be fair to the
holders of the Convertible Preferred Stock and appropriate in light of the
basis and notice on which holders of Common Stock participate in the
transaction; (B) for sales of Common Stock pursuant to a plan for
reinvestment of dividends on Common Stock, provided that the purchase price in
any such sale is at least equal to 95% of the market price of the Common Stock
at the time of such sales; (C) for sales of Common Stock pursuant to any
plan adopted by the Corporation for the benefit of its employees or
consultants, provided that such plan has been approved by the Corporation’s
independent directors, or pursuant to any plan for the benefit of the
Corporation’s directors, provided that such plan has been approved by the
Corporation’s shareholders; or (D) for a change in par value of the Common
Stock not involving a subdivision or combination described in clause (ii) or
(iii) of subparagraph (b) of the first paragraph of this Section 9.


 


Section 10.     Convertible
Preferred Stock Not Redeemable at Option of Holders or Exchangeable; No Sinking
Fund.  The Convertible Preferred
Stock shall not be redeemable upon the request of holders thereof or exchangeable
for other capital stock or indebtedness of the Corporation or other
property.  The shares of Convertible
Preferred Stock shall not be subject to any mandatory redemption or the
operation of a purchase, retirement or sinking fund.  The Convertible Preferred Stock shall not
have any stated maturity date.


 


Section 11.     Voting
Rights.  The holders of Convertible
Preferred Stock shall not have any voting rights except as set forth below and
as otherwise from time to time required by law.


 


Section 12.     Certain
Actions Not to be Taken Without Vote of Holders of Convertible Preferred Stock.  Without the consent or affirmative vote of
the holders of at least a majority of the outstanding shares of Convertible
Preferred Stock, voting separately as a class, the


 


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Corporation
shall not:  (i) authorize, create or
issue any shares of any other class or series of capital stock ranking senior
to the Convertible Preferred Stock as to dividends or upon liquidation; or (ii) amend, alter or repeal any provision of the
Certificate of Incorporation or Bylaws of the Corporation in a manner that
adversely affects the powers, preferences or rights of the Convertible
Preferred Stock.


 


Section 13.     Outstanding
Shares.  For purposes of this
Certificate of Designations, all shares of Convertible Preferred Stock shall be
deemed outstanding except for (a) shares of Convertible Preferred Stock
held of record or beneficially by the Corporation or any subsidiary of the
Corporation; and (b) from the date of surrender of certificates
representing Convertible Preferred Stock for conversion pursuant to Section 7,
all shares of Convertible Preferred Stock that have been converted into Common
Stock or other securities or property pursuant to Section 7.


 


Section 14.     Status of
Convertible Preferred Stock Upon Retirement.  Shares of Convertible Preferred Stock that
are acquired by the Corporation or converted pursuant to Sections 7 or 8
shall be retired pursuant to the Delaware General Corporation Law, Section 243,
or any successor provision, and thereupon shall return to the status of
authorized and unissued shares of Preferred Stock of the Corporation without
designation as to series.  Upon the
acquisition by the Corporation or conversion pursuant to Sections 7 or 8
of all outstanding shares of Convertible Preferred stock, all provisions of
this Certificate of Designations shall cease to be of further effect.  Upon the occurrence of such event, the Board
of Directors of the Corporation shall have the power, pursuant to the Delaware
General Corporation Law, Section 151(g), or any successor provision and
without shareholder action, to cause this Certificate of Designations to be
eliminated from the Corporation’s Articles of Incorporation.


 


IN WITNESS WHEREOF,
Brookfield Homes Corporation has caused this certificate to be signed by Ian G.
Cockwell, its President and Chief Executive Officer, and attested by Shane D.
Pearson, its Secretary, this
             day of
December, 2008.


 


 


	
   

  	
   

  	
  BROOKFIELD
  HOMES CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Shane
  D. Pearson

  	
   

  	
   

  
	
  Secretary

  	
   

  	
   

  
							



 


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