Exhibit 4.3


 


BROOKFIELD
HOMES CORPORATION


 






 


AMENDED
AND RESTATED

CERTIFICATE OF DESIGNATIONS

FOR

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 8.0% 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 January 19, 2009, 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 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 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:


 


8% CONVERTIBLE PREFERRED STOCK, SERIES A


 


Section 1.       Designation;
Number of Shares.  The shares of such
series shall be designated as “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 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


 


2

















 


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.


 


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


 


3

















 


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
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


 


4

















 


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


 


5

















 


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 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


 


6

















 


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 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


 


7

















 


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).


 


(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


 


8

















 


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 16th day of February, 2009.




 




	
   

  	
  BROOKFIELD
  HOMES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian G. Cockwell

  
	
   

  	
  Name:

  	
  Ian G. Cockwell

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Shane D. Pearson

  	
   

  
	
   

  	
  Shane D. Pearson

  	
   

  
	
   

  	
  Secretary

  	
   

  
						





 


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