<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 1997
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
<TABLE>
<S> <C>
3333 HOLDING CORPORATION AND
CENTEX CORPORATION CENTEX DEVELOPMENT COMPANY, L.P.
(Exact name of registrant as specified in its charter) (Exact name of registrants as specified in their charters)
NEVADA NEVADA AND DELAWARE, RESPECTIVELY
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
75-0778259 75-2178860 and 75-2168471, RESPECTIVELY
(I.R.S. Employer (I.R.S. Employer Identification No.)
Identification No.)
2728 NORTH HARWOOD 2728 NORTH HARWOOD
DALLAS, TEXAS 75201 DALLAS, TEXAS 75201
(Address of principal executive offices, including zip code) (Address of principal executive offices including zip code)
</TABLE>
____________________
CENTEX CORPORATION AMENDED AND RESTATED 1987 STOCK OPTION PLAN
(Full title of the plan)
RAYMOND G. SMERGE
VICE PRESIDENT AND CHIEF LEGAL OFFICER
2728 NORTH HARWOOD
DALLAS, TEXAS 75201
(Name and address of agent for service)
(214) 981-5000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Proposed maximum Proposed maximum
Title of Amount to be offering price per aggregate offering Amount of
securities to be registered registered share (1) price (1) registration fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.25 par value
per share 1,500,000 shares $40.5625 $60,843,750 $18,438
- -----------------------------------------------------------------------------------------------------------------
Beneficial Interests in
1,000 shares of Common Stock --- $ --- $ --- $---
3333 Holding Corporation(2)
- -----------------------------------------------------------------------------------------------------------------
Beneficial Interests in 900
Warrants to Purchase Class B --- $ --- $ --- $---
Units of Limited Partnership
Interest in Centex
=================================================================================================================
</TABLE>
================================================================================
<PAGE> 2
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(l)(h), and computed on the basis of the average
of the high and low sales prices of the Common Stock included in the
New York Stock Exchange Composite Transactions Report for May 27, 1997
as published by The Wall Street Journal, which was $40.5625 per share.
(2) On November 30, 1987, Centex distributed as a dividend to its
stockholders (through a nominee, the "Nominee") all the issued and
outstanding shares of common stock, $0.01 par value ("Holding Common
Stock"), of 3333 Holding Corporation ("Holding"), and 900 warrants
(the "Stockholder Warrants") to purchase Class B Units of limited
partnership interest in Centex Development Company, L.P., a Delaware
limited partnership ("CDC").
The Nominee holds the Stockholder Warrants and 1,000 shares of Holding
Common Stock on behalf of and for the benefit of persons who are from
time to time the holders of the common stock, $.25 par value ("Centex
Common Stock"), of Centex ("Centex Stockholders"). Each Centex
Stockholder owns a beneficial interest in that portion of the 1,000
shares of Holding Common Stock and the Stockholder Warrants that the
total number of shares of Centex Common Stock held by such stockholder
bears to the total number of shares of Centex Common Stock outstanding
from time to time. This beneficial interest of the Holding
stockholders is not represented by a separate certificate or receipt.
Instead, each Centex Stockholder's pro rata portion of such beneficial
interest is represented by the certificate or certificates evidencing
such Centex Stockholder's Centex Common Stock, and is currently
tradeable only in tandem with, and as a part of, each such Centex
Stockholder's Common Stock.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION OF DOCUMENTS BY REFERENCE.
Pursuant to general Instruction E of Form S-8, the contents of the
Registration Statements on Form S-8 (File Nos. 33-29174 and 33-44575) filed
with the Securities and Exchange Commission (the "Commission") on June 8, 1989
and December 13, 1991, respectively, are incorporated herein by reference and
made a part hereof.
ITEM 2. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission by Centex,
Holding and CDC, as appropriate, and are incorporated herein by reference and
made a part hereof:
(a) Joint Annual Report on Form 10-K of Centex, Holding and CDC
for the fiscal year ended March 31, 1996,
(b) Joint Quarterly Report on Form 10-Q of Centex, Holding and CDC
for the quarter ended June 30, 1996,
(c) Quarterly Report on Form 10-Q of Centex, Holding and CDC for
the quarter ended September 30, 1996,
(d) Quarterly Report on Form 10-Q of Centex, Holding and CDC for
the quarter ended December 31, 1996,
(e) Current Report on Form 8-K of Centex filed with the Commission
on October 8, 1996,
(f) Description of the Centex Common Stock, $0.25 par value per
share, contained in the Registration Statement on Form 8-A
dated October 28, 1971 and Form 8 dated November 11, 1971,
(g) Description of the Holding Common Stock, $0.01 par value per
share, contained in the Registration Statement of Form 10
dated July 12, 1987, as amended by Form 8 dated October 14,
1987, Form 8 dated November 12, 1987 and Form 8 dated November
23, 1987,
(h) Description of the Warrants to purchase Class B Units of
limited partnership of CDC contained in Registration Statement
on Form 10 dated July 12, 1987, as amended by Form 8 dated
October 14, 1987, Form 8 dated November 12, 1987 and Form 8
dated November 30, 1987, and
(i) Description of the Preferred Stock Purchase Rights contained
in the Form 8-A Registration Statement of Centex dated October
8, 1996.
All documents filed by Centex, Holding and CDC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the effective date
hereof and prior to the filing of a post-effective amendment hereto that
indicates that all securities offered hereby have been sold or that deregisters
all such securities then remaining unsold, shall be deemed to be incorporated
herein by reference and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Registration Statement, except as so
modified or superseded.
<PAGE> 4
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Raymond G. Smerge has rendered a legal opinion, filed with the
Exhibits for Centex as Exhibit 5, with respect to the legality of the
securities registered hereby. Mr. Smerge is the Vice President, Chief Legal
Officer, and Secretary of Centex Corporation and the Secretary of 3333 Holding
Corporation. As of May 20, 1997, Mr. Smerge owned 2,100 shares of Common Stock
of Centex Corporation (of which 1,800 shares are held in trust for the benefit
of Mr. Smerge's children). Mr. Smerge also held options to purchase up to
43,550 shares of Common Stock (of which 15,110 shares are currently
exercisable).
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the relevant company with the Commission, each of the
following exhibits is filed herewith:
EXHIBITS OF CENTEX CORPORATION
4.1 Restated Articles of Incorporation of Centex (Incorporated herein by
reference to Exhibit 3.1 to Annual Report on Form 10-K of Centex
Corporation ("Centex") (File No. 1-6776) for fiscal year ended March
31, 1993 ("Centex 1993 Form 10-K"))
4.2 By-laws of Centex (Incorporated herein by reference to Exhibit 3.2 to
Centex 1993 Form 10-K)
4.3 Specimen Centex common stock certificate (with tandem trading legend
and Rights Agreement legend) (Filed herewith).
4.4 Nominee Agreement, dated November 30, 1987, by and between Centex,
Holding and CDC, and Chemical Bank, as successor nominee.
(Incorporated herein by reference to Exhibit 4.2 to Centex 1993 Form
10-K)
4.5 Agreement for Purchase of Warrants, dated as of November 30, 1987, by
and between Holding and Centex. (Incorporated herein by reference to
Exhibit 4.3 to Centex 1993 Form 10-K)
4.6 Rights Agreement, dated as of October 2, 1996, between Centex and
ChaseMellon Shareholder Services, L.L.C., as rights agent.
(Incorporated herein by reference Exhibit 1 to Form 8-A Registration
Statement of Centex dated October 8, 1996)
4.7 Centex Corporation Amended and Restated 1987 Stock Option Plan (Filed
herewith)
5 Opinion of Raymond G. Smerge regarding legality of shares being
issued (Filed herewith)
23.1 Consent of Independent Public Accountants (Filed herewith)
23.2 Consent of Raymond G. Smerge (Included in his opinion filed as
Exhibit 5 hereto)
24 Powers of Attorney (Filed herewith)
EXHIBITS OF 3333 HOLDING CORPORATION
4.1 Articles of Incorporation of Holding (Incorporated herein by reference
to Exhibit 3.2a to Amendment No. 1 dated October 14, 1987 ("Amendment
No. 1") to the Registration Statement of Holding on Form 10 (File No.
1-9624) dated July 12, 1987 (the "Holding Registration Statement"))
4.2 By-laws of Holding, as amended. (Incorporated herein by reference to
Exhibit 3.2 to Annual Report on Form 10-K of Holding (File No. 1-9624)
for fiscal year ended March 31, 1993 (the "Holding Form 10-K"))
<PAGE> 5
4.3 Specimen Holding common stock certificate (Incorporated herein by
reference to Exhibit 4.1 to Amendment No. 1)
4.4 Specimen Centex Corporation ("Centex") common stock certificate (with
tandem trading legend and Rights Agreement legend) (Exhibit 4.3 of
Centex Exhibits filed herewith)
4.5 Nominee Agreement, dated as of November 30, 1987 by and between
Centex, Holding and CDC, and Chemical Bank, as successor nominee
(Incorporated herein by reference to Exhibit 4.3 to Holding Form 10-K)
4.6 Agreement for Purchase of Warrants, dated as of November 30, 1987, by
and between Holding and Centex (Incorporated herein by reference to
Exhibit 4.4 to Holding Form 10-K)
5 Opinion of Raymond G. Smerge regarding legality of shares being issued
(Exhibit 5 of Centex Exhibits filed herewith)
23.1 Consent of Independent Public Accountants (Exhibit 23.1 of Centex
Exhibits filed herewith)
23.2 Consent of Raymond G. Smerge (Exhibit 5 of Centex Exhibits filed
herewith)
24 Powers of Attorney (Filed herewith)
EXHIBITS OF CENTEX DEVELOPMENT COMPANY, L.P.
4.1 Articles of Incorporation, as amended, of 3333 Development
Corporation ("Development") as currently in effect. (Incorporated
herein by reference to Exhibit 3.2a to Amendment No. 1 dated October
14, 1987 ("CDC Amendment No. 1") to the Registration Statement of CDC
on Form 10 (File No. 1-9625) dated July 12, 1987 (the "CDC
Registration Statement"))
4.2 By-laws of Development, as amended. (Incorporated herein by
reference to Exhibit 3.2 to Annual Report on Form 10-K of CDC (File
No. 1-9625) for fiscal year ended March 31, 1993 (the "CDC Form
10-K"))
4.3 Certificates of Limited Partnership of CDC (Incorporated herein by
reference to Exhibit 4.1 to the CDC Registration Statement)
4.4 Amended and Restated Agreement of Limited Partnership of CDC
(Incorporated herein by reference to Exhibit 4.2 to Amendment No. 3
dated November 24, 1987 ("CDC Amendment No. 3") to the CDC
Registration Statement)
4.5 Specimen certificate for Class A limited partnership units
(Incorporated herein by reference to Exhibit 4.3 to the CDC
Registration Statement)
4.6 Specimen certificate for Class B limited partnership units
(Incorporated herein by reference to Exhibit 4.4 to the CDC
Registration Statement)
4.7 Warrant Agreement, dated as of November 30, 1987, by and between CDC
and Centex Corporation (Exhibit 4.5 to CDC Form 10-K)
4.8 Specimen warrant certificate (Incorporated herein by reference to
Exhibit 4.6 to CDC Amendment No. 3)
4.9 Specimen Centex common stock certificate (with tandem trading legend
and Rights Agreement legend) (Exhibit 4.3 of Centex Exhibits filed
herewith)
4.10 Nominee Agreement, dated as of November 30, 1987, by and between
Centex, Holding and CDC, and Chemical Bank, as successor nominee
(Incorporated herein by reference to Exhibit 4.8 to CDC Form 10-K)
<PAGE> 6
4.11 Agreement for Purchase of Warrants, dated as of November 30, 1987, by
and between CDC and Centex (Incorporated herein by reference to
Exhibit 4.9 to CDC Form 10-K)
4.12 Form of Operating Partnership Agreement (Incorporated herein by
reference to Exhibit 4.9 to the CDC Registration Statement)
5 Opinion of Raymond G. Smerge (Incorporated herein by reference to
Exhibit 5 of Centex Exhibits filed herewith)
23.1 Consent of Independent Public Accountants (Incorporated herein by
reference to Exhibit 23.1 of Centex Exhibits filed herewith)
23.2 Consent of Raymond G. Smerge (Incorporated herein by reference to
Exhibit 5 of Centex Exhibits filed herewith.)
24 Powers of Attorney (Filed herewith)
ITEM 9. UNDERTAKINGS.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrants
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
<PAGE> 7
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Exchange Act) that is incorporated by reference in
the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on May 30, 1997.
CENTEX CORPORATION
By: /s/ DAVID W. QUINN
----------------------------------
David W. Quinn
Vice Chairman of the Board and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C> <C>
/s/ LAURENCE E. HIRSCH Chairman of the Board, Chief Executive May 30, 1997
---------------------------------------------- Officer and Director (Principal
Laurence E. Hirsch Executive Officer)
/s/ DAVID W. QUINN Vice Chairman of the Board and Chief May 30, 1997
---------------------------------------------- Financial Officer and Director
David W. Quinn (Principal Financial Officer)
/s/ WILLIAM J GILLILAN III President, Chief Operating Officer and May 30, 1997
---------------------------------------------- Director
William J Gillilan III
/s/ MICHAEL S. ALBRIGHT Vice President-Finance and May 30, 1997
---------------------------------------------- Administration (Principal Accounting
Michael S. Albright Officer)
Majority of the Board of Directors: May 30, 1997
By: /s/ LAURENCE E. HIRSCH Juan L. Elek, Laurence E. Hirsch,
------------------------------------------ Clint W. Murchison III, Charles H.
Laurence E. Hirsch Pistor, Paul R. Seegers and Paul T.
Individually and as Attorney in Fact* Stoffel
</TABLE>
- --------------
* Pursuant to authority granted by powers of attorney, copies of which are filed
herewith
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on May 30, 1997.
3333 HOLDING CORPORATION
By: /s/ J. STEPHEN BILHEIMER
-----------------------------------
J. Stephen Bilheimer
President
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title
<S> <C> <C>
/s/ J. STEPHEN BILHEIMER President May 30, 1997
---------------------------------------------- (Principal Executive Officer)
J. Stephen Bilheimer
/s/ KIMBERLY A. PINSON Vice President and Treasurer May 30, 1997
---------------------------------------------- (Principal Financial Officer and
Kimberly A. Pinson Accounting Officer)
Majority of the Board of Directors: May 30, 1997
By: /s/ J. STEPHEN BILHEIMER J. Stephen Bilheimer and David M.
------------------------------------------ Sherer
J. Stephen Bilheimer
Individually and as Attorney in Fact*
</TABLE>
- ----------------
*Pursuant to authority granted by powers of attorney, copies of which are filed
herewith
<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on May 30, 1997.
CENTEX DEVELOPMENT COMPANY, L.P.
By: /s/ J. STEPHEN BILHEIMER
-------------------------------------
J. Stephen Bilheimer
President
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title
<S> <C> <C>
/s/ J. STEPHEN BILHEIMER President May 30, 1997
---------------------------------------------- (Principal Executive Officer)
J. Stephen Bilheimer
/s/ KIMBERLY A. PINSON Vice President and Treasurer May 30, 1997
---------------------------------------------- (Principal Financial Officer and
Kimberly A. Pinson Accounting Officer)
Majority of the Board of Directors: May 30, 1997
By: /s/ J. STEPHEN BILHEIMER J. Stephen Bilheimer and David M.
------------------------------------------ Sherer
J. Stephen Bilheimer
Individually and as Attorney in Fact*
</TABLE>
- -----------------
*Pursuant to authority granted by powers of attorney, copies of which are filed
herewith
<PAGE> 11
INDEX TO EXHIBITS
CENTEX CORPORATION
AND SUBSIDIARIES
<TABLE>
<CAPTION>
EXHIBIT FILED HEREWITH OR
NUMBER EXHIBIT INCORPORATED BY REFERENCE
------- ------- -------------------------
<S> <C> <C>
4.1 Restated Articles of Incorporation of Exhibit 3.1 to Annual Report on Form 10-K of Centex
Centex. Corporation ("Centex") (File No. 1-6776) for fiscal
year ended March 31, 1993 ("Centex 1993 Form 10-K")
4.2 By-laws of Centex. Exhibit 3.2 to Centex 1993 Form 10-K
4.3 Specimen Centex common stock certificate Filed herewith.
(with tandem trading legend and Rights
Agreement legend).
4.4 Nominee Agreement, dated November 30, Exhibit 4.2 to Centex 1993 Form 10-K
1987, by and between Centex, 3333 Holding
Corporation and CDC, and Chemical Bank, as
successor nominee.
4.5 Agreement for Purchase of Warrants, dated Exhibit 4.3 to Centex 1993 Form 10-K
as of November 30, 1987, by and between
Holding and Centex.
4.6 Rights Agreement, dated as of October 2, Exhibit 1 to Form 8-A Registration Statement of Centex
1996, between Centex and ChaseMellon dated October 8, 1997
Shareholder Services, as Rights Agent
4.7 Centex Corporation Amended and Restated Filed herewith.
1987 Stock Option Plan
5 Opinion of Raymond G. Smerge regarding Filed herewith.
legality of shares being issued.
23.1 Consent of Independent Public Accountants. Filed herewith.
23.2 Consent of Raymond G. Smerge (included in Filed herewith.
his opinion filed as Exhibit 5 hereto)
24 Powers of Attorney Filed herewith.
</TABLE>
<PAGE> 12
INDEX TO EXHIBITS
3333 HOLDING CORPORATION
AND SUBSIDIARY
<TABLE>
<CAPTION>
EXHIBIT FILED HEREWITH OR
NUMBER EXHIBIT INCORPORATED BY REFERENCE
------ ------- -------------------------
<S> <C> <C>
4.1 Articles of Incorporation of 3333 Holding Exhibit 3.2a to Amendment No. 1 dated October 14, 1987
Corporation. ("Amendment No. 1") to the Registration Statement of
Holding on Form 10 (File No. 1-9624) dated July 12,
1987 (the "Holding Registration Statement").
4.2 By-laws of Holding, as amended. Exhibit 3.2 to Annual Report on Form 10-K of Holding
(File No. 1-9624) for fiscal year ended March 31, 1993
(the "Holding Form 10-K")
4.3 Specimen Holding common stock Exhibit 4.1 to Amendment No. 1.
certificate.
4.4 Specimen Centex Corporation ("Centex") Exhibit 4.3 to Centex Exhibits filed herewith.
common stock certificate (with tandem
trading legend and Rights Agreement
legend).
4.5 Nominee Agreement, dated as of November Exhibit 4.3 to Holding Form 10-K.
30, 1987 by and between Centex, Holding
and Centex Development Company, L.P.
("CDC"), and Chemical Bank, as successor
nominee.
4.6 Agreement for Purchase of Warrants, dated Exhibit 4.4 to Holding Form 10-K.
as of November 30, 1987, by and between
Holding and Centex.
5 Opinion of Raymond G. Smerge regarding Exhibit 5 of Centex Exhibits filed herewith.
legality of shares being issued.
23.1 Consent of Independent Public Accountants. Exhibit 23.1 of Centex Exhibits filed herewith.
23.2 Consent of Raymond G. Smerge. Exhibit 5 of Centex Exhibits filed herewith.
24 Powers of Attorney. Filed herewith.
</TABLE>
<PAGE> 13
INDEX TO EXHIBITS
CENTEX DEVELOPMENT COMPANY, L.P.
<TABLE>
<CAPTION>
EXHIBIT FILED HEREWITH OR
NUMBER EXHIBIT INCORPORATED BY REFERENCE
------ ------- -------------------------
<S> <C> <C>
4.1 Articles of Incorporation, as amended, of Exhibit 3.2a to Amendment No. 1 dated
3333 Development Corporation October 14, 1987 ("CDC Amendment No. 1")
("Development") as currently in effect. to the Registration Statement of CDC on
Form 10 (File No. 1-9625) dated July 12,
1987 (the "CDC Registration Statement").
4.2 By-laws of Development, as amended. Exhibit 3.2 to Annual Report on Form 10-K
of CDC (File No. 1-9625) for fiscal year
ended March 31, 1993 (the "CDC Form
10-K").
4.3 Certificates of Limited Partnership of Exhibit 4.1 to the CDC Registration
CDC. Statement.
4.4 Amended and Restated Agreement of Limited Exhibit 4.2 to Amendment No. 3 dated
Partnership of CDC. November 24, 1987 ("CDC Amendment No. 3")
to the CDC Registration Statement.
4.5 Specimen certificate for Class A limited Exhibit 4.3 to the CDC Registration
partnership units. Statement.
4.6 Specimen certificate for Class B limited Exhibit 4.4 to the CDC Registration
partnership units. Statement.
4.7 Warrant Agreement, dated as of November Exhibit 4.5 to CDC Form 10-K
30, 1987, by and between CDC and Centex
Corporation ("Centex").
4.8 Specimen warrant certificate. Exhibit 4.6 to CDC Amendment No. 3.
4.9 Specimen Centex common stock certificate Exhibit 4.3 to Centex Exhibits filed herewith.
(with tandem trading legend and Rights
Agreement legend).
4.10 Nominee Agreement, dated as of November Exhibit 4.8 to CDC Form 10-K.
30, 1987, by and between Centex, 3333
Holding Corporation and CDC, and Chemical
Bank, as successor nominee.
4.11 Agreement for Purchase of Warrants, dated Exhibit 4.9 to CDC Form 10-K.
as of November 30, 1987, by and between
CDC and Centex.
4.12 Form of Operating Partnership Agreement. Exhibit 4.9 to the CDC Registration
Statement.
</TABLE>
<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT FILED HEREWITH OR
NUMBER EXHIBIT INCORPORATED BY REFERENCE
------ ------- -------------------------
<S> <C> <C>
5 Opinion of Raymond G. Smerge. Exhibit 5 of Centex Exhibits filed
herewith.
23.1 Consent of Independent Public Accountants. Exhibit 23.1 of Centex Exhibits filed
herewith.
23.2 Consent of Raymond G. Smerge. Exhibit 5 of Centex Exhibits filed
herewith.
24 Powers of Attorney. Filed herewith.
</TABLE>
<PAGE> 1
CENTEX EXHIBIT 4.3
SHARES
COMMON STOCK COMMON STOCK
INCORPORATED UNDER THE
LAWS OF THE STATE OF NEVADA SEE REVERSE SIDE
CENTEX CORPORATION FOR LEGEND
THIS CERTIFICATE IS TRANSFERABLE IN THE CITY OF NEW YORK, NEW YORK,
OR IN DALLAS, TEXAS
CUSIP 152312 10 4
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS IS TO CERTIFY THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Centex Corporation (hereinafter called the Corporation), transferable upon the
books of the Corporation by the holder hereof in person or by duly
authorized attorney upon surrender of this certificate properly endorsed.
This certificate is not valid unless countersigned by the Transfer Agent and
registered by the Registrar. Witness the seal of the Corporation and the
signatures of its duly authorized officers.
[SEAL]
DATED:
/S/ RAYMOND G. SMERGE /S/ LAURENCE E. HIRSCH
SECRETARY CHAIRMAN OF THE BOARD
CHIEF EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
TRANSFER AGENT AND REGISTRAR
BY
SECRETARY AUTHORIZED SIGNATURE
<PAGE> 2
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between Centex Corporation
("Centex") and ChaseMellon Shareholder Services, L.L.C. (the "Rights Agent")
dated as of October 2, 1996 (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which is on file at the
principal offices of Centex. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Centex will mail the holder of
this certificate a copy of the Rights Agreement, as in effect on the date of
mailing, without charge promptly after receipt of a written request therefor.
Under certain circumstances set forth in the Rights Agreement, Rights issued
to, or held by, any Person who is, was, or becomes an Acquiring Person or any
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement), whether currently held by or on behalf of such Person or by any
subsequent holder, may become null and void.
CENTEX CORPORATION
KEY TO ABBREVIATIONS
The following abbreviations shall be construed as though the words set
forth below opposite each abbreviation were written out in full where such
abbreviation appears:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common (Name) CUST (Name) UNIF - (Name) as Custodian for (Name)
TEN ENT - as tenants by the GIFT MIN ACT (State) under the (State) Uniform
entireties Gifts to Minors Act
JT TEN - as joint tenants with
right of survivorship
and not as tenants
in common
</TABLE>
Additional abbreviations may also be used though not in the above list.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS THE DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE
CORPORATION, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS. SUCH REQUEST MAY BE MADE TO THE CORPORATION IN
DALLAS, TEXAS OR TO THE TRANSFER AGENT.
For value received, hereby sell, assign and transfer unto
--------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
----------------------------------------------------------------------------
----------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Shares
----------------------------------------------------------------------
represented by the within Certificate, and do hereby irrevocably constitute
and appoint
---------------------------------------------------------------------------
Attorney to transfer the said shares on the books of the within-named
Corporation with full power of substitution in the premises.
Dated
---------------------------------
NOTICE: THE SIGNATURE(S)
TO THIS ASSIGNMENT MUST -------------------------------------------
CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR -------------------------------------------
WITHOUT ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
SIGNATURE(S) MUST BE GUARANTEED BY A MEMBER FIRM OF THE NEW YORK
STOCK EXCHANGE OR BY A COMMERCIAL BANK OR TRUST COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE PRESENTLY TRADED IN TANDEM
AND CONSIST OF (i) THE SHARES OF COMMON STOCK, $25 PAR VALUE, OF CENTEX
CORPORATION, A NEVADA CORPORATION ("CENTEX"), STATED ON THE FACE OF THIS
CERTIFICATE (ii) A BENEFICIAL INTEREST IN SHARES OF COMMON STOCK OF 3333
HOLDING CORPORATION, A NEVADA CORPORATION ("HOLDING"), HELD BY CHASE MANHATTAN
BANK OR ITS SUCCESSOR, AS NOMINEE (THE "NOMINEE"), UNDER A NOMINEE AGREEMENT
(THE "NOMINEE AGREEMENT"), AND (iii) A BENEFICIAL INTEREST IN WARRANTS HELD BY
THE NOMINEE AND EXERCISABLE, AS SPECIFIED IN A WARRANT AGREEMENT (THE "WARRANT
AGREEMENT"), FOR CLASS B UNITS OF LIMITED PARTNERSHIP INTEREST IN CENTEX
DEVELOPMENT COMPANY, L.P., A DELAWARE LIMITED PARTNERSHIP OF WHICH THE GENERAL
PARTNER IS 3333 DEVELOPMENT CORPORATION, A NEVADA CORPORATION THAT IS A
SUBSIDIARY OF HOLDING. TERMINATION OF THE NOMINEE AGREEMENT WILL CAUSE THE
HOLDING COMMON STOCK AND WARRANTS HELD BY THE NOMINEE TO BE DETACHED FROM THE
COMMON STOCK OF CENTEX. IN THE EVENT OF A TERMINATION OF THE NOMINEE AGREEMENT
(i) FOLLOWING THE RECORD DATE SET FOR THE RESULTANT DETACHMENT, THIS
CERTIFICATE WILL NO LONGER EVIDENCE A BENEFICIAL INTEREST IN THE SECURITIES TO
BE DETACHED IN SUCH DETACHMENT AND (ii) SEPARATE CERTIFICATES EVIDENCING THE
SECURITIES TO BE DETACHED WILL BE ISSUED TO THE REGISTERED HOLDER OF THIS
CERTIFICATE AS OF SUCH RECORD DATE AND SUCH SECURITIES WILL BECOME SEPARATELY
TRADEABLE. THE NOMINEE AGREEMENT MAY BE TERMINATED BY CENTEX AT ANY TIME AND
WILL TERMINATE AUTOMATICALLY AS TO THE WARRANTS ON NOVEMBER 30, 2007 (UNLESS
EXTENDED BY THE STOCKHOLDERS OF CENTEX). COPIES OF THE NOMINEE AGREEMENT AND
THE WARRANT AGREEMENT WILL BE FURNISHED BY CENTEX TO THE REGISTERED HOLDER OF
THIS CERTIFICATE WITHOUT CHARGE UPON RECEIPT BY CENTEX AT ITS REGISTERED OFFICE
OR PRINCIPAL PLACE OF BUSINESS OF A WRITTEN REQUEST THEREFOR.
<PAGE> 1
CENTEX EXHIBIT 4.7
CENTEX CORPORATION
AMENDED AND RESTATED 1987 STOCK OPTION PLAN
1. PURPOSE
The purpose of this Plan is to assist Centex Corporation, a Nevada
corporation, in attracting and retaining as officers and key employees of the
Company and its Affiliates, and as non-employee directors of the Company,
individuals of training, experience and ability and to furnish additional
incentive to such individuals by encouraging them to become owners of Shares of
the Company's capital stock, by granting to such individuals Incentive Options,
Nonqualified Options, Restricted Stock, or any combination of the foregoing.
2. DEFINITIONS
Unless the context otherwise requires, the following words as used
herein shall have the following meanings:
(a) "Plan" -- This Centex Corporation 1987 Stock Option Plan.
(b) "Company" -- Centex Corporation, a Nevada corporation.
(c) "Board" -- The Board of Directors of the Company as the
same may be constituted from time to time.
(d) "Committee" -- The Committee provided for in Section 3 of
this Plan, as such Committee may be constituted from time to time.
(e) "Share" -- A share of the Company's present twenty-five
cents ($0.25) par value common stock and any share or shares of
capital stock or other securities of the Company hereafter issued or
issuable upon, in respect of or in substitution or in exchange for
each present share. Such Shares may be unissued or reacquired Shares,
as the Board, in its sole and absolute discretion, shall from time to
time determine.
(f) "Option" -- An option to purchase one or more Shares of
the Company granted under and pursuant to the Plan. Such Option may be
either an Incentive Option or a Nonqualified Option.
(g) "Optionee" -- An individual who has been granted an Option
under this Plan and who has executed a written option Agreement with
the Company.
(h) "Affiliates" -- Any corporation (other than the Company)
in any unbroken chain of corporations beginning with the Company if,
at the time of the granting of the Option, each of the corporations
other than the last corporation in the unbroken chain, owns stock
possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain, and
(b) any corporation (other than the Company) in any unbroken chain of
corporations ending with the Company if, at the time of the granting
of the Option, each of the corporations, other than the Company, owns
stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain.
(i) "Fair Market Value" -- If a Share is traded on one or more
established market or exchanges, the mean of the opening and closing
price of the Share in the primary market or exchange on which the
Share is traded, and if the Share is not so traded or the Share does
not trade on the relevant date, the value determined in good faith
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<PAGE> 2
by the Board. For purposes of valuing Shares to be made subject to
Incentive Options, the Fair Market Value of stock shall be determined
without regard to any restriction other than one which, by its terms,
will never lapse.
(j) "Agreement" -- The written agreement between the Company
and the Optionee evidencing the Option granted by the Company and the
understanding of the parties with respect thereto.
(k) "Incentive Option" -- Stock Options that are intended to
satisfy the requirements of Section 422 of the Code and Section 16 of
this Plan.
(l) "Nonqualified Options" -- Stock Options which do not
satisfy the requirements of Section 422 of the Code.
(m) "Code" -- The Internal Revenue Code of 1986, as amended
from time to time.
(n) "Restricted Stock" -- Shares issued pursuant to Section 19
of the Plan.
(o) "Act" -- The Securities Exchange Act of 1934, as amended.
(p) "Disinterested Person" -- An individual who satisfies the
requirements of Rule 16b-3 promulgated under the Act.
3. ADMINISTRATION
Except as is herein expressly provided otherwise, the Plan shall be
administered by the Board. The selection of individuals who shall receive
grants of Options or awards of Restricted Stock shall be made by the Committee.
The Committee shall consist of three or more individuals who shall be appointed
by and shall serve at the pleasure of the Board and may be comprised of the
entire Board. When the Committee is so comprised of the entire Board, the
terms "Board" and "Committee", as used herein, shall be deemed synonymous.
Notwithstanding the provisions of the immediately preceding sentence, unless
the Board provides otherwise by resolution, the Committee shall be composed
only of individuals who are Disinterested Persons, and until and unless the
Board provides or has provided that individuals who are not Disinterested
Persons may be members of the Committee, no individual appointed to the
Committee shall have been eligible at any time within one year prior to his
appointment to the Committee for the grant of an option, stock allocation, or
stock appreciation right under the Plan or any other plan of the Company or its
affiliates (within the meaning of Rule 12b-2 promulgated under the Act), nor
shall such individual be eligible to receive an option, allocation of stock, or
stock appreciation right under any such plan while a member of the Committee.
The Board may by resolution at any time and from time to time provide that the
Committee shall be comprised only of individuals who are Disinterested Persons
or that the Committee may be comprised of individuals some or all of whom are
not Disinterested Persons, all as the Board may deem from time to time
appropriate. ln making grants or awards, the Committee shall take into
consideration the contribution the individual has made or may make to the
success of the Company or its Affiliates and such other considerations as the
Board may from time to time specify.
The Committee shall elect one of its members as its chairman and shall
hold its meetings at such times and places as it may determine. All decisions
and determinations of the Committee shall be made by the majority vote or
decision of all of its members present at a meeting; provided, however, that
any decision or determination reduced to writing and signed by all of the
members of the Committee shall be as fully effective as if it had been made at
a meeting duly called and held. The Committee may make any rules and
regulations for the conduct of its business that are not inconsistent with the
provisions hereof, the bylaws of the Company or any resolutions of the Board.
All questions of interpretation and application of the Plan shall be subject to
the determination of a majority of the whole Board, which determination shall
be final and binding upon all parties.
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<PAGE> 3
All questions of interpretation and application of the Plan shall be
subject to the determination of a majority of the whole Board, which
determination shall be final and binding upon all parties. All questions of
interpretation and application of an Option grant or an award of Restricted
Stock, including questions of interpretation and application of an Agreement,
shall be subject to the determination of a majority of the Committee, which
determination shall be final and binding upon all parties.
Subject to the express provisions hereof, the Board shall have the
authority, in its sole and absolute discretion, (a) to adopt, amend, and
rescind administrative and interpretive rules and regulations relating to the
Plan, (b) to construe the Plan, and (c) to make all other determinations
necessary or advisable for administering the Plan. The Board may correct any
defect or supply any omission or reconcile any inconsistency in the Plan in the
manner and to the extent it shall deem expedient to carry it into effect, and
it shall be the sole and final judge of such expediency. Subject to the
express provisions hereof, the Committee shall have the authority, in its sole
and absolute discretion, (a) to determine the terms and provisions of the
respective Agreements (which need not be identical), including provisions
defining or otherwise relating to (i) subject to the specific provisions of the
Plan, the term and the period or periods and extent of exercisability of the
Options, (ii) the extent to which the transferability of Shares issued upon
exercise of Options is restricted, (iii) the effect of termination of
employment or directorship upon the exercisability of the Options, and (iv) the
effect of approved leaves of absence (consistent with any applicable
regulations of the Internal Revenue Service), (b) subject to Sections 8 and 10,
to accelerate, for any reason, regardless of whether the Agreement so provides,
the time of exercisability of any Option that has been granted, (c) to construe
the respective Agreements, and (d) to exercise the powers conferred on the
Committee under Section 19. The determinations of the Board or Committee, as
the case may be, on the matters referred to in this Section 3 shall be final
and conclusive.
4. SHARES SUBJECT TO PLAN
(a) A maximum of 7,065,139 Shares shall be subject to grants of
Options and awards of Restricted Stock under the Plan; provided that such
maximum shall be increased or decreased as provided below in Section 12.
(b) At any time and from time to time after the Plan takes effect, the
Committee, pursuant to the provisions herein set forth, may grant Options and
award Restricted Stock until the maximum number of Shares shall be exhausted or
the Plan shall be sooner terminated; provided, however, that no Option shall be
granted and no Restricted Stock shall be awarded after May 19, 2001.
(c) Should any Option expire or be cancelled without being fully
exercised, or should any Restricted Stock previously awarded be reacquired by
the Company, the number of Shares with respect to which such Option shall not
have been exercised prior to its expiration or cancellation and the number of
Shares of such Restricted Stock so reacquired may again be optioned or awarded
pursuant to the provisions hereof.
(d) Any Shares withheld pursuant to subsection 18(c) shall not be
available after such withholding for being optioned or awarded pursuant to the
provisions hereof.
5. ELIGIBILITY
Eligibility for the receipt of the grant of Options under the Plan
shall be confined to (a) a limited number of persons who are employed by the
Company, or one or more of its Affiliates and who are officers of or who, in
the opinion of the Board, hold other key positions in or for the Company or one
or more of its Affiliates and (b) directors of the Company, including directors
who are not employees of the Company or its Affiliates; provided that only
employees of the Company or its Affiliates shall be eligible for the grant of
Incentive Options. In addition, an individual who becomes a director of the
Company, but who is not at the time he becomes a director also an employee of
the Company, shall not be eligible for a grant of Options or an award of
Restricted Stock, and shall not be eligible for the grant of an option, stock
allocation, or stock appreciation right under any other plan of the Company or
its affiliates (within the meaning of Rule
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<PAGE> 4
12b-2 promulgated under the Act) until the Board expressly declares such person
eligible by resolution. In no event may an Option be granted to an individual
who is not an employee of the Company or an Affiliate or a director of the
Company. In addition, to provide for Disinterested Persons to serve on the
Committee, the Board may from time to time specify individuals described in the
first sentence of this Section 5 who shall not be eligible for the grant of
Options or the award of Restricted Stock or the grant of options or stock
appreciation rights or allocations of stock under any plan of the Company or
its affiliates (within the meaning of Rule 12b-2 promulgated under the Act);
provided however, that the Board may at any time determine that any individual
who has been so excluded from eligibility shall become eligible for grants of
Options or awards of Restricted Stock.
6. GRANTING OF OPTIONS
(a) From time to time while the Plan is in effect, the Committee may
in its absolute discretion, select from among the persons eligible to receive a
grant of Options under the Plan (including persons who have already received
such grants of Options) such one or more of them as in the opinion of the
Committee should be granted Options. The Committee shall thereupon, likewise in
its absolute discretion, determine the number of Shares to be allotted for
option to each person so selected; provided, however, that the total number of
Shares subject to Options granted to any one person, including directors of the
Company, when aggregated with the number of Shares of Restricted Stock awarded
to such person, shall not exceed 706,513 Shares.
(b) Each person so selected shall be offered an Option to purchase the
number of Shares so allotted to him, upon such terms and conditions, consistent
with the provisions of the Plan, as the Committee may specify. Options granted
to directors of the Company at such times as the Committee is not composed
solely of Disinterested Persons shall provide that such Options may not be
exercised until the first anniversary of their grant and then may be exercised
in full at any time on or after such first anniversary date until the date that
is ten (10) years from the date when the Option was originally granted. Each
such person shall have a reasonable period of time, to be fixed by the
Committee, within which to accept or reject the proffered Option. Failure to
accept within the period so fixed may be treated as a rejection.
(c) Each person who accepts an Option offered to him shall enter into
an Agreement with the Company, in such form as the Committee may prescribe,
setting forth the terms and conditions of the Option, whereupon such person
shall become a participant in the Plan. In the event an individual is granted
both one or more Incentive Options and one or more Nonqualified Options, such
grants shall be evidenced by separate Agreements, one each for the Incentive
Option grants and one each for the Nonqualified Options grants. The date which
the Committee specifies to be the grant date of an Option to an individual
shall constitute the date on which the Option covered by such Agreement is
granted. In no event, however, shall an Optionee gain any rights in addition
to those specified by the Committee in its grant, regardless of the time that
may pass between the grant of the Option and the actual signing of the
Agreement by the Company and the Optionee.
7. OPTION PRICE
The option price for each Share covered by each Incentive Option shall
not be less than the greater of (a) the par value of each such Share or (b) the
Fair Market Value of the Share at the time such Option is granted, except as
provided hereinafter. The option price for each Share covered by each
Nonqualified Option shall not be less than the greater of (a) the par value of
each such Share or (b) 85% of the Fair Market Value of the Share at the time
the Option is granted; provided, however, that the number of Shares covered by
Nonqualified Options granted under this Plan that have an option price less
than the Fair Market Value of a Share at the time the respective Option is
granted shall not exceed 10% of the total number of Shares authorized to be
issued under this Plan. If the Company or an Affiliate agrees to substitute a
new Option under the Plan for an old Option, or to assume an old Option, by
reason of a corporate merger, consolidation, acquisition of property or stock,
separation, reorganization, or liquidation (any of such events being referred
to herein as a "Corporate Transaction"), the option price of the Shares covered
by each such new Option or assumed Option may be other than the Fair Market
Value of the stock at the time the Option is granted as determined by reference
to a formula,
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<PAGE> 5
established at the time of the Corporate Transaction, which will give effect to
such substitution or assumption; provided, however, in no event shall --
(a) the excess of the aggregate Fair Market Value of the Share
subject to the Option immediately after the substitution or assumption
over the aggregate option price of such Shares be more than the excess
of the aggregate Fair Market Value of all Shares subject to the Option
immediately prior to the substitution or assumption over the aggregate
option price of such Shares
(b) in the case of an Incentive Option, the new Option or the
assumption of the old Option give the Optionee additional benefits
which he would not have under the old Option; or
(c) the ratio of the option price to the Fair Market Value of
the stock subject to the Option immediately after the substitution or
assumption be more favorable to the Optionee than the ratio of the
option price to the Fair Market Value of the stock subject to the old
Option immediately prior such substitution or assumption, on a Share
by Share basis.
Notwithstanding the above, the provisions of this Section 7 with
respect to the Option price in the event of a Corporate Transaction shall, in
case of an Incentive Option, be subject to the requirements of Section 25(a) of
the Code and the Treasury regulations and revenue rulings promulgated
thereunder. In the case of an Incentive Option, in the event of a conflict
between the terms of this Section 7 and the above cited statute, regulations,
and rulings, or in the event of an omission in this Section 7 of a provision
required by said laws, the latter shall control in all respects and are hereby
incorporated herein by reference as if set out at length.
8. OPTION PERIOD
(a) Each Option shall run for such period of time as the Committee may
specify, but in no event for longer than ten (10) years from the date when the
Option is granted, including the period of time provided in subsections (i) and
(ii) of this subsection (a); and subject to such limits, and the further
condition that, unless designated otherwise by the Committee, no Incentive
Option shall become exercisable prior to one year from the date of its grant,
(i) Except as provided below in this subsection (i), all
rights to exercise an Option shall terminate within three months after
the date the Optionee ceases to be an employee of at least one of the
employers in the group of employers consisting of the Company and its
Affiliates, or after the date the Optionee ceases to be a director of
the Company, whichever may occur later, for any reason other than
death, except that, (x) in the case of a Nonqualified Option which is
held by an Optionee who is, on the date of cessation referred to in
this clause, an officer or director of the Company (within the
meanings thereof under Section 16b) of the Act), all rights to
exercise such Option shall terminate within seven months after the
date the Optionee ceases to be an employee of at least one of the
employers in the group of employers consisting of the Company and its
Affiliates, or, if later, after the date the Optionee ceases to be a
director of the Company, for any reason other than death; and, except
that, (y) the Committee, in its discretion, may provide in new Option
grants or amend outstanding Options to provide an extended period of
time during which an Optionee can exercise a Nonqualified Option to
the maximum permissible period for which such Optionee's Option would
have been exercisable in the absence of the Optionee's ceasing to be
an employee of the Company and its Affiliates or ceasing to be a
director of the Company; and, except that (z) in case the employment
of the Optionee is terminated for cause, the Option shall thereafter
be null and void for all purposes.
(ii) If the Optionee ceases to be employed by at least one of
the employers in the group of employers consisting of the Company and
its Affiliates, or ceases to be a director of the Company, whichever
may occur later, by reason of his death, all rights to exercise such
Option shall terminate fifteen (15) months thereafter.
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<PAGE> 6
(iii) If an Option is granted with a term shorter than ten
(10) years, the Committee may extend the term of the Option, but for
not more than ten (10) years from the date when the Option was
originally granted.
9. OPTIONS NOT TRANSFERABLE
No Option or interest therein shall be transferable by the person to
whom it is granted otherwise than by will or by the applicable laws of descent
and distribution. Notwithstanding the foregoing, the Committee may, in its
sole discretion, provide in the Agreement relating to the grant of an Option
that the Optionee may transfer such Option, without consideration, to members
of the Optionee's immediate family or to one or more trusts for the benefit of
such immediate family members or partnerships in which such immediate family
members are the only partners. For purposes of this Section 9, "immediate
family" shall mean the Optionee's spouse, parents, children (including adopted
children) and grandchildren.
10. EXERCISE OF OPTIONS
(a) During the lifetime of an Optionee only he or his guardian or
legal representative may exercise an Option granted to him. In the event of his
death, any then exercisable portion of his Option may, within fifteen (15)
months thereafter, or earlier date of termination of the Option, be exercised
in whole or in part by any person empowered to do so under the deceased
Optionee's will or under the applicable laws of descent and distribution.
(b) At any time, and from time to time, during the period when any
Option, or a portion thereof, is exercisable, such Option, or portion thereof,
may be exercised in whole or in part; provided, however, that the Committee may
require any Option which is partially exercised to be so exercised with respect
to at least a stated minimum number of Shares.
(c) Each exercise of an Option or portion or part thereof shall be
evidenced by a notice in writing to the Company accompanied by payment in full
of the option price of the Shares then being purchased. Payment in full shall
mean payment of the full amount due, either in cash, by certified check or
cashier's check or, with the consent of the Committee, with Shares owned by the
Optionee, including an actual or deemed multiple series of exchanges of such
Shares. Options granted to directors of the Company at such times as the
Committee is not composed solely of Disinterested Persons shall be paid for in
cash, by certified check or cashier's check, or with Shares owned by the
director, including an actual or deemed multiple series of exchanges of such
Shares, as elected by the director.
(d) No Shares shall be issued until full payment therefor has been
made, and an Optionee shall have none of the rights of a stockholder until
Shares are issued to him.
(e) Nothing herein or in any Agreement executed or Option granted
hereunder shall require the Company to issue any Shares upon exercise of an
Option if such issuance would, in the opinion of counsel for the Company,
constitute a violation of the Securities Act of 1933, as amended, or any
similar or superseding statute or statutes, or any other applicable statute or
regulation, as then in effect. Upon the exercise of an Option or portion or
part thereof, the Optionee shall give to the Company satisfactory evidence that
he is acquiring such Shares for the purpose of investment only and not with a
view to their distribution; provided, however, if or to the extent that the
Shares subject to the Option shall be included in a registration statement
filed by the Company, or one of its Affiliates, such investment representation
shall be abrogated.
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<PAGE> 7
11. DELIVERY OF STOCK CERTIFICATES
As promptly as may be practicable after an Option, or a portion or
part thereof, has been exercised as hereinabove provided, the Company shall
make delivery of one or more certificates for the appropriate number of Shares.
In the event that an Optionee exercises both an Incentive Option, or a portion
thereof, and a Nonqualified Option, or a portion thereof, separate stock
certificates shall be issued, one for the Shares subject to the Incentive
Option and one for the Shares subject to the Nonqualified Option.
12. CHANGES IN COMPANY'S SHARES AND CERTAIN CORPORATE TRANSACTIONS
(a) If at any time while the Plan is in effect there shall be an
increase or decrease in the number of issued and outstanding Shares of the
Company effected without receipt of consideration therefor by the Company,
through the declaration of a stock dividend or through any recapitalization or
merger or otherwise in which the Company is the surviving corporation,
resulting in a stock split-up, combination or exchange of Shares of the
Company, then and in each such event:
(i) An appropriate adjustment shall be made in the maximum
number of Shares then subject to being optioned or awarded as
Restricted Stock under the Plan, to the end that the same proportion
of the Company's issued and outstanding Shares shall continue to be
subject to being so optioned and awarded;
(ii) Appropriate adjustment shall be made in the number of
Shares and the option price per Share thereof then subject to purchase
pursuant to each Option previously granted, to the end that the same
proportion of the Company's issued and outstanding Shares in each such
instance shall remain subject to purchase at the same aggregate option
price: and
(iii) In the case of Incentive Options, any such adjustments
shall in all respects satisfy the requirements of Section 424(a) of
the Code and the Treasury regulations and revenue rulings promulgated
thereunder.
Except as is otherwise expressly provided herein, the issue by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with a direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number of or option price of Shares then
subject to outstanding Options granted under the Plan. Furthermore, the
presence of outstanding Options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate (i)
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt securities
or preferred or preference stock which would rank above the Shares subject to
outstanding Options granted under the Plan; (iv) the dissolution or liquidation
of the Company; (v) any sale, transfer or assignment of all or any part of the
assets or business of the Company; or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(b) Notwithstanding anything to the contrary above, a dissolution or
liquidation of the Company, a merger (other than a merger effecting a
reincorporation of the Company in another state) or consolidation in which the
Company is not the surviving corporation (or survives only as a subsidiary of
another corporation in a transaction in which the stockholders of the parent of
the Company and their proportionate interests therein immediately after the
transaction are not substantially identical to the stockholders of the Company
and their proportionate interests therein immediately prior to the
transaction), a transaction in which another corporation becomes the owner of
50% or more of the total combined voting power of all classes of stock of the
Company, or a change in control (as specified below), shall cause every Option
then outstanding to become exercisable in full, subject to the limitation on
the aggregate Fair Market Value of Shares that may become first
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<PAGE> 8
exercisable during any calendar year set forth in Section 16, immediately prior
to such dissolution, liquidation, merger, consolidation, transaction, or change
in control, to the extent not theretofore exercised, without regard to the
determination as to the periods and installments of exercisability contained in
the Agreements if (and only if) such Options have not at that time expired or
been terminated. For purposes of this paragraph, a change in control shall be
deemed to have taken place if: (i) a third person, including a "group" as
defined in Section 13(d)(3) of the Act, becomes the beneficial owner of Shares
of the Company having 50% or more of the total number of votes that may be cast
for the election of directors of the Company; or (ii) as a result of, or in
connection with, a contested election for directors, the persons who were
directors of the Company immediately before such election shall cease to
constitute a majority of the Board. Notwithstanding the foregoing provisions of
this paragraph, in the event of any such dissolution, merger, consolidation,
transaction, or change in control, the Board may completely satisfy all
obligations of the Company and its Affiliates with respect to any Option
outstanding on the date of such event by delivering to the Optionee cash in an
amount equal to the difference between the aggregate exercise price for Shares
under the Option and the Fair Market Value of such Shares on the date of such
event, such payment to be made within a reasonable time after such event.
13. EFFECTIVE DATE
The Plan shall be effective on May 20, 1987, the date of its adoption
by the Board, but shall be submitted to the stockholders of the Company for
ratification at the next regular or special meeting thereof to be held within
twelve (12) months after the Board shall have adopted the Plan. If at such a
meeting of the stockholders of the Company a quorum is present, the Plan shall
be presented for ratification, and unless at such a meeting the Plan is
ratified by the affirmative vote of a majority of the outstanding $0.25 par
value common stock of the Company, then and in such event, the Plan and all
Options granted under the Plan and all awards of Restricted Stock under the
Plan shall become null and void and of no further force or effect.
14. AMENDMENT, SUSPENSION OR TERMINATION
(a) Subject to the other terms and condition of this Plan and the
limitations set forth in subsection 14(b) below, the Board may at any time
amend, suspend or terminate the Plan; provided, however, that after the
stockholders have ratified the Plan, the Board may not, without approval of the
stockholders of the Company, amend the Plan so as to:
(i) Increase the maximum number of Shares subject thereto, as
specified above in Sections 4(a) and 12; or
(ii) Increase the proportionate number of Shares which may be
purchased pursuant to Option by any one person or awarded as
Restricted Stock to any one person, as specified above in Section 6(a)
or below in Section 19(a).
(b) Neither the Board nor the Committee may amend the Plan or any
Agreement to reduce the option price of an outstanding Option or modify, impair
or cancel any existing Option without the consent of the holder thereof.
15. REQUIREMENTS OF LAW
Notwithstanding anything contained herein to the contrary, the Company
shall not be required to sell or issue Shares under any Option if the issuance
thereof would constitute a violation by the Optionee or the Company of any
provisions of any law or regulation of any governmental authority or any
national securities exchange; and as a condition of any sale or issuance of
Shares under Option the Company may require such agreements or undertakings, if
any, as the Company may deem necessary or advisable to assure compliance with
any such law or regulation.
8
<PAGE> 9
16. INCENTIVE STOCK OPTIONS
The Committee, in its discretion, may designate any Option granted
under the Plan as an Incentive Option intended to qualify under Section 422 of
the Code. Any provision of the Plan to the contrary notwithstanding, (i) no
Incentive Option shall be granted to any person who, at the time such Incentive
Option is granted, owns stock possessing more than 10 percent of the total
combined voting power of all classes of stock of the Company or any Affiliate
unless the purchase price under such Incentive Option is at least 110 percent
of the Fair Market Value of the Shares subject to an Incentive Option at the
date of its grant and such Incentive Option is not exercisable after the
expiration of five years from the date of its grant, and (ii) the aggregate
Fair Market Value of the Shares subject to such Incentive Option and the
aggregate Fair Market Value of the shares of stock of any Affiliate (or a
predecessor of the Company or an Affiliate) subject to any other incentive
stock option (within the meaning of Section 422 of the Code) of the Company and
its Affiliates (or a predecessor corporation of any such corporation), that may
become first exercisable in any calendar year, shall not (with respect to any
Optionee) exceed $100,000, determined as of the date the Incentive Option is
granted. For purposes of this Section 16, "predecessor corporation" means a
corporation that was a party to a transaction described in Section 424(a) of
the Code (or which would be so described if a substitution or assumption under
such section had been effected) with the Company, or a corporation which, at
the time the new incentive stock option (within the meaning of Section 422 of
the Code) is granted, is an Affiliate of the Company or a predecessor
corporation of any such corporations.
17. MODIFICATION OF OPTIONS
Subject to the terms and conditions of and within the limitations of
the Plan, the Committee may modify, extend or renew outstanding Options granted
under the Plan, or accept the surrender of Options outstanding hereunder (to
the extent not theretofore exercised) and authorize the granting of new Options
hereunder in substitution therefor (to the extent not theretofore exercised).
Notwithstanding the foregoing provisions of this Section 17, no modification of
an Option granted hereunder shall, without the consent of the Optionee, alter
or impair any rights or obligations under any Option theretofore granted
hereunder to such Optionee under the Plan, except as may be necessary, with
respect to Incentive Options, to satisfy the requirements of Section 422 of the
Code.
18. AGREEMENT PROVISIONS
(a) Each Agreement shall contain such provisions (including, without
limitation, restrictions or the removal of restrictions upon the exercise of
the Option and the transfer of shares thereby acquired) as the Committee shall
deem advisable. Each Agreement shall identify the Option evidenced thereby as
an Incentive Option or Nonqualified Option, as the case may be. Incentive
Options and Nonqualified Options may not both be covered by a single Agreement.
Each such Agreement relating to Incentive Options granted hereunder shall
contain such limitations and restrictions upon the exercise of the Incentive
Option as shall be necessary for the Incentive Option to which such Agreement
related to constitute an incentive stock option, as defined in Section 422 of
the Code.
(b) The Plan shall be annexed to each Agreement and each Agreement
shall recite that it is subject to the Plan and that the Plan shall govern
where there is any inconsistency between the Plan and the Agreement.
(c) Each Agreement shall contain an agreement and covenant by the
Optionee, in such form as the Committee may require in its discretion, that he
consents to and will take whatever affirmative actions are required, in the
opinion of the Board or Committee, to enable the Company or appropriate
Affiliate to satisfy its Federal income tax and FICA withholding obligations.
An Agreement may contain such provisions as the Committee deems appropriate to
enable the Company or its Affiliates to satisfy such withholding obligations,
including provisions permitting the Company, on exercise of an Option, to
withhold Shares otherwise issuable to the Optionee exercising the Option to
satisfy the applicable withholding obligations.
9
<PAGE> 10
(d) Each Agreement relating to an Incentive Option shall contain a
covenant by the Optionee immediately to notify the Company in writing of any
disqualifying disposition (within the meaning of section 421(b) of the Code) of
an Incentive Option.
19. RESTRICTED STOCK
(a) Shares of Restricted Stock may be awarded by the Committee to
such individuals as are eligible for grants of Options, as the Committee may
determine at any time and from time to time before the termination of the Plan.
The total number of Shares of Restricted Stock awarded to any one person,
including directors of the Company, when aggregated with the number of Shares
subject to Options in favor of such person, shall not exceed shall not exceed
706,513 Shares.
(b) A Share of Restricted Stock is a Share that does not irrevocably
vest in the holder or that may not be sold, exchanged, pledged, transferred,
assigned or otherwise encumbered or disposed of until the terms and conditions
set by the Committee at the time of the award of the Restricted Stock have been
satisfied. A Share of Restricted Stock shall be subject to a minimum
three-year vesting period and shall contain such other restrictions, terms and
conditions as the Committee may establish, which may include, without
limitation, the rendition of services to the Company or its Affiliates for a
specified time or the achievement of specific goals. The Committee may, when
it deems it appropriate, require the recipient of an award of Restricted Stock
to enter into an agreement with the Company evidencing the understanding of the
parties with respect to such award.
If an individual receives Shares of Restricted Stock, whether or not
escrowed as provided below, the individual shall be the record owner of such
Shares and shall have all the rights of a stockholder with respect to such
Shares (unless the escrow agreement, if any, specifically provides otherwise),
including the right to vote and the right to receive dividends or other
distributions made or paid with respect to such Shares. Any certificate or
certificates representing Shares of Restricted Stock shall bear a legend
similar to the following:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
PURSUANT TO THE TERMS OF THE CENTEX CORPORATION 1987 STOCK OPTION PLAN
AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED OR OTHERWISE
ENCUMBERED IN ANY MANNER EXCEPT AS SET FORTH IN THE TERMS OF SUCH
AWARD DATED , 19 .
In order to enforce the restrictions, terms and conditions that may be
applicable to an individual's Shares of Restricted Stock, the Committee may
require the individual, upon the receipt of a certificate or certificates
representing such Shares, or at any time thereafter, to deposit such
certificate or certificates, together with stock powers and other instruments
of transfer, appropriately endorsed in blank, with the Company or an escrow
agent designated by the Company under an escrow agreement in such form as shall
be determined by the Committee.
After the satisfaction of the terms and conditions set by the
Committee at the time of an award of Restricted Stock to an individual, which
award is not subject to a non-lapse feature, a new certificate, without the
legend set forth above, for the number of Shares that are no longer subject to
such restrictions, terms and conditions shall be delivered to the individual.
If an individual to whom Restricted Stock has been awarded dies after
satisfaction of the terms and conditions for the payment of all or a portion of
the award but prior to the actual payment of all or such portion thereof, such
payment shall be made to the individual's beneficiary or beneficiaries at the
time and in the same manner that such payment would have been made to the
individual.
The Committee may cancel all or any portion of any outstanding
restrictions prior to the expiration of such restrictions with respect to any
or all of the Shares of Restricted Stock awarded to an individual hereunder
only upon the individual's death, disability or retirement on or after the
earlier of (i) age 65 or (ii) such time as the sum of the individual's
10
<PAGE> 11
age and years of service equals 70, provided such individual is at least 55.
With respect to the occurrence of any event specified in the last paragraph of
Section 12, the restrictions, if any, applicable to any outstanding Shares
awarded as Restricted Stock shall lapse immediately prior to the occurrence of
the event.
(c) Subject to the provisions of subsection19(b) above, if an
individual to whom Restricted Stock has been awarded ceases to be employed by
at least one of the employers in the group of employers consisting of the
Company and its Affiliates, or ceases to be a director of the Company,
whichever may occur later, for any reason prior to the satisfaction of any
terms and conditions of an award, any Restricted Stock remaining subject to
restrictions shall thereupon be forfeited by the individual and transferred to,
and reacquired by, the Company or an Affiliate at no cost to the Company or the
Affiliate. In such event, the individual, or in the event of his death, his
personal representative, shall forthwith deliver to the Secretary of the
Company the certificates for the Shares of Restricted Stock remaining subject
to such restrictions, accompanied by such instruments of transfer, if any, as
may reasonably be required by the Secretary of the Company.
(d) In case of any consolidation or merger of another corporation into
the Company in which the Company is the surviving corporation and in which
there is a reclassification or change (including a change to the right to
receive cash or other property) of the Shares (other than a change in par
value, or from par value to no par value, or as a result of a subdivision or
combination, but including any change in such shares into two or more classes
or series of shares), the Committee may provide that payment of Restricted
Stock shall take the form of the kind and amount of shares of stock and other
securities (including those of any new direct or indirect parent of the
Company), property, cash or any combination thereof receivable upon such
reclassification, change, consolidation or merger.
20. GENERAL
(a) The proceeds received by the Company from the sale of Shares
pursuant to Options shall be used for general corporate purposes.
(b) Nothing contained in the Plan, or in any Agreement, shall confer
upon any Optionee or recipient of Restricted Stock the right to continue in the
employ of the Company or any Affiliate, or interfere in any way with the rights
of the Company or any Affiliate to terminate his employment at any time.
(c) Neither the members of the Board nor any member of the Committee
shall be liable for any act, omission, or determination taken or made in good
faith with respect to the Plan or any Option or Restricted Stock granted under
it; and the members of the Board and the Committee shall be entitled to
indemnification and reimbursement by the Company in respect of any claim, loss,
damage or expense (including counsel fees) arising therefrom to the full extent
permitted by law and under any directors and officers liability or similar
insurance coverage that may be in effect from time to time.
(d) As partial consideration for the granting of each Option or award
of Restricted Stock hereunder, the Optionee or recipient shall agree with the
Company that he will keep confidential all information and knowledge which he
has relating to the manner and amount of his participation in the Plan;
provided, however, that such information may be disclosed as required by law or
given in confidence to the individual's spouse, tax or financial advisors, or
to a financial institution to the extent that such information is necessary to
secure a loan. In the event any breach of this promise comes to the attention
of the Committee, it shall take into consideration such breach, in determining
whether to grant any future Option or award any future Restricted Stock to such
individual, as a factor militating against the advisability of granting any
such future Option or awarding any such future Restricted Stock to such
individual.
(e) Participation in the Plan shall not preclude an individual from
eligibility in any other stock option plan of the Company or any Affiliate or
any old age benefit, insurance, pension, profit sharing, retirement, bonus, or
other extra compensation plans which the Company or any Affiliate has adopted,
or may, at any time, adopt for the benefit of its employees or directors.
11
<PAGE> 12
(f) Any payment of cash or any issuance or transfer of Shares to the
Optionee, or to his legal representative, heir, legatee, or distributee, in
accordance with the provisions hereof, shall, to the extent thereof, be in full
satisfaction of all claims of such persons hereunder. The Board or Committee
may require any Optionee, legal representative, heir, legatee, or distributee,
as a condition precedent to such payment, to execute a release and receipt
therefor in such form as it shall determine.
(g) Neither the Committee nor the Board nor the Company guarantees the
Shares from loss or depreciation.
(h) All expenses incident to the administration, termination, or
protection of the Plan, including, but not limited to, legal and accounting
fees, shall be paid by the Company or its Affiliates.
(i) Records of the Company and its Affiliates regarding an
individual's period of employment, termination of employment and the reason
therefor, leaves of absence, re-employment, tenure as a director and other
matters shall be conclusive for all purposes hereunder, unless determined by
the Board or Committee to be incorrect.
(j) The Company and its Affiliates shall, upon request or as may be
specifically required hereunder, furnish or cause to be furnished, all of the
information or documentation which is necessary or required by the Board or
Committee to perform its duties and functions under the Plan.
(k) The Company assumes no obligation or responsibility to an Optionee
or recipient of Restricted Stock or his personal representatives, heirs,
legatees, or distributees for any act of, or failure to act on the part of, the
Board or Committee.
(l) Any action required of the Company shall be by resolution of its
Board or by a person authorized to act by resolution of the Board. Any action
required of the Committee shall be by resolution of the Committee or by a
person authorized to act by resolution of the Committee.
(m) If any provision of this Plan or any Agreement is held to be
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining provisions of the Plan or the Agreement, as the case may
be, but such provision shall be fully severable and the Plan or the Agreement,
as the case may be, shall be construed and enforced as if the illegal or
invalid provision had never been included herein or therein.
(n) Whenever any notice is required or permitted hereunder, such
notice must be in writing and personally delivered or sent by mail. Any notice
required or permitted to be delivered hereunder shall be deemed to be delivered
on the date on which it is personally delivered, or, whether actually received
or not, on the third business day after it is deposited in the United States
mail, certified or registered, postage prepaid, addressed to the person who is
to receive it at the address which such person has theretofore specified by
written notice delivered in accordance herewith. The Company, an Optionee or a
recipient of Restricted Stock may change, at any time and from time to time, by
written notice to the other, the address which it or he had theretofore
specified for receiving notices. Until changed in accordance herewith, the
Company and each Optionee and recipient of Restricted Stock shall specify as
its and his address for receiving notices the address set forth in the
Agreement pertaining to the shares of Stock to which such notice relates.
(o) Any person entitled to notice hereunder may waive such notice.
(p) The Plan shall be binding upon the Optionee or recipient of
Restricted Stock, his heirs, legatees, and legal representatives, upon the
Company, its successors, and assigns, and upon the Board and Committee, and
their successors.
(q) The titles and headings of Sections and paragraphs are included
for convenience of reference only and are not to be considered in construction
of the provisions hereof.
12
<PAGE> 13
(r) All questions arising with respect to the provisions of the Plan
shall be determined by application of the laws of the State of Nevada except to
the extent Nevada law is preempted by federal law. The obligation of the
Company to sell and deliver Shares hereunder is subject to applicable laws and
to the approval of any governmental authority required in connection with the
authorization, issuance, sale, or delivery of such Shares.
(s) Words used in the masculine shall apply to the feminine where
applicable, and wherever the context of this Plan dictates, the plural shall be
read as the singular and the singular as the plural.
21. WITHHOLDING TAXES
Federal, state, or local law may require the withholding of taxes
applicable to gains resulting from the exercise of Nonqualified Options granted
hereunder. Unless otherwise prohibited by the Committee, each participant may
satisfy any such withholding tax obligation by electing (i) to tender a cash
payment to the Company, (ii) to authorize the Company to withhold from the
shares of stock of the Company otherwise issuable to the participant as a
result of the exercise of the Nonqualified Option a number of shares having a
fair market value, as of the date the withholding tax obligation arises, equal
to the withholding obligations, or, at the election of the participant, up to
the maximum of taxes due (the "Share Withholding Alternative"), (iii) to
deliver to the Company previously acquired shares of common stock of the
Company having a fair market value, as of the date the withholding tax
obligation arises, equal to the amount to be withheld, or at the election of
the participant, up to the maximum of taxes due, or (iv) any combination of the
foregoing, provided the combination permits the payment of all withholding
taxes attributable to the exercise of the Nonqualified Option. Any withholding
election may not be made within six months after the grant of the stock option
(except in the event of death or disability of the optionee). A participant's
election to pay the withholding tax obligation must be made (a) in the case of
officers or directors of the Company, (i) during the period beginning on the
third business day following the date of release of the Company's quarterly or
annual summary statement of sales and earnings and ending on the twelfth
business day following such date (but in no event later than the Tax Date, as
hereinafter defined), or (ii) at least six months less one day prior to the Tax
Date, and (b) in the case of other participants, at any time; provided however,
that if any participant (whether or not he is an officer or director) elects to
have his withholding tax obligation satisfied (in whole or in part) through the
Share Withholding Alternative, then such election shall be void and of no legal
effect unless it is made in writing delivered to the Company before the time of
exercise, or simultaneously with the exercise, of such participant's
Nonqualified Option. A valid and binding written election of the Share
Withholding Alternative shall be irrevocable. A participant's failure to elect
a withholding alternative prior to the time such election is required to be
made shall be deemed to be an election to pay the withholding tax by tendering
a cash payment to the Company. For purposes of this Section 21, the fair market
value of the shares used to pay withholding taxes is the mean between the
highest and lowest price quoted on the New York Stock Exchange for one share of
common stock of the Company on the Tax Date. Also, as used in this Section 21,
"Tax Date" shall mean the date on which a withholding tax obligation arises in
connection with an exercise of a nonqualified stock option, which date shall be
presumed to be the date of exercise, unless shares subject to a substantial
risk of forfeiture (as defined in section 83(c)(1) or (c)(3) of the Code) are
issuable on exercise of the option and the participant does not make a timely
election under section 83(b) of the Code with respect thereto, in which case
the Tax Date for such shares is the date on which the substantial risk of
forfeiture lapses. Fractional shares remaining after payment of the
withholding taxes shall be paid to the participant in cash.
13
<PAGE> 1
CENTEX EXHIBIT 5
May 30, 1997
Securities and Exchange Commission
450 5th Street, N. W., Judiciary Plaza
Washington, DC 20549
Re: Centex Corporation Registration of 1,500,000 Shares of Common
Stock of Centex Corporation under the Centex Corporation
Amended and Restated 1987 Stock Option Plan
Ladies and Gentlemen:
As Vice President and Chief Legal Officer for Centex Corporation (the
"Corporation"), I am familiar with the Centex Corporation Amended and Restated
1987 Stock Option Plan (the "Plan") and the proposed offer and sale of an
additional 1,500,000 shares (the "Shares") of Common Stock, $0.25 par value per
share, of the Corporation pursuant to the Plan, which shares trade in tandem
with beneficial interests in 1,000 shares (the "Holding Shares") of Common
Stock of 3333 Holding Corporation and beneficial interests in 900 warrants (the
"CDC Warrants") to purchase Class B units of limited partnership of Centex
Development Company, L.P.
I have also made such further investigations as I have deemed
necessary to express the opinions herein stated.
I am of the opinion that the Shares (and the beneficial interest in
the Holding Shares and the CDC Warrants) which are hereafter issued upon
exercise of options duly granted under and in accordance with the terms of the
Plan will, upon the payment of the consideration therefor required by the terms
of the Plan, be duly and validly issued, fully paid and non-assessable.
I consent to the use of this opinion as an Exhibit to the Registration
Statement on Form S-8 being filed with the Securities and Exchange commission
under the Securities Act of 1933, as amended, with respect to the Shares and
the beneficial interests in the Holding Shares and the CDC Warrants issuable
thereunder, and to any references to me in such Registration Statement.
Very truly yours,
/s/ RAYMOND G. SMERGE
Raymond G. Smerge
Vice President and
Chief Legal Officer
<PAGE> 1
CENTEX EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Registration Statement on Form S-8 of Centex Corporation, 3333
Holding Corporation ("Holding") and Centex Development Company, L.P. ("CDC")
registering the issuance and sale of up to 1,500,000 shares of the common stock
of Centex Corporation (and corresponding beneficial interests in the 1,000
outstanding shares of Holding common stock and the 900 outstanding warrants to
purchase Class B Units of limited partnership interest in CDC, as described in
the Registration Statement on Form S-8) pursuant to the Centex Corporation
Amended and Restated 1987 Stock Option Plan of our reports which are
incorporated by reference in the Joint Annual Report on Form 10-K of Centex,
Holding and CDC for their fiscal years ended March 31, 1996 filed with the
Securities and Exchange Commission.
ARTHUR ANDERSEN LLP
Dallas, Texas,
May 29, 1997
<PAGE> 1
CENTEX EXHIBIT 24
CENTEX CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Laurence E. Hirsch and
David W. Quinn, or either of such individuals, with full power of substitution
in the premises, as the undersigned's true and lawful agents and
attorneys-in-fact (the "Attorneys-in-Fact"), with full power and authority in
the name and on behalf of the undersigned, in his capacity as a Director of
Centex Corporation (the "Company"), to execute and file with the Securities and
Exchange Commission the Company's Registration Statement on Form S-8
registering the issuance and sale of up to 1,500,000 shares of the Company's
Common Stock, together with any and all amendments thereto.
This Power of Attorney and all authority granted and conferred hereby
shall continue indefinitely and, unless waived by the Attorneys-in-Fact, may
not be revoked until the Attorneys-in-Fact have received five days' written
notice of such revocation.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 29th day of May, 1997.
/s/ JUAN L. ELEK
---------------------------------------
Juan L. Elek
Director
Centex Corporation
<PAGE> 2
CENTEX EXHIBIT 24
CENTEX CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Laurence E. Hirsch and
David W. Quinn, or either of such individuals, with full power of substitution
in the premises, as the undersigned's true and lawful agents and
attorneys-in-fact (the "Attorneys-in-Fact"), with full power and authority in
the name and on behalf of the undersigned, in his capacity as a Director of
Centex Corporation (the "Company"), to execute and file with the Securities and
Exchange Commission the Company's Registration Statement on Form S-8
registering the issuance and sale of up to 1,500,000 shares of the Company's
Common Stock, together with any and all amendments thereto.
This Power of Attorney and all authority granted and conferred hereby
shall continue indefinitely and, unless waived by the Attorneys-in-Fact, may
not be revoked until the Attorneys-in-Fact have received five days' written
notice of such revocation.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 27th day of May, 1997.
/s/ ALAN B. COLEMAN
---------------------------------------
Alan B. Coleman
Director
Centex Corporation
<PAGE> 3
CENTEX CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Laurence E. Hirsch and
David W. Quinn, or either of such individuals, with full power of substitution
in the premises, as the undersigned's true and lawful agents and
attorneys-in-fact (the "Attorneys-in-Fact"), with full power and authority in
the name and on behalf of the undersigned, in his capacity as a Director of
Centex Corporation (the "Company"), to execute and file with the Securities and
Exchange Commission the Company's Registration Statement on Form S-8
registering the issuance and sale of up to 1,500,000 shares of the Company's
Common Stock, together with any and all amendments thereto.
This Power of Attorney and all authority granted and conferred hereby
shall continue indefinitely and, unless waived by the Attorneys-in-Fact, may
not be revoked until the Attorneys-in-Fact have received five days' written
notice of such revocation.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 29th day of May, 1997.
/s/ CLINT W. MURCHISON, III
---------------------------------------
Clint W. Murchison, III
Director
Centex Corporation
<PAGE> 4
CENTEX CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Laurence E. Hirsch and
David W. Quinn, or either of such individuals, with full power of substitution
in the premises, as the undersigned's true and lawful agents and
attorneys-in-fact (the "Attorneys-in-Fact"), with full power and authority in
the name and on behalf of the undersigned, in his capacity as a Director of
Centex Corporation (the "Company"), to execute and file with the Securities and
Exchange Commission the Company's Registration Statement on Form S-8
registering the issuance and sale of up to 1,500,000 shares of the Company's
Common Stock, together with any and all amendments thereto.
This Power of Attorney and all authority granted and conferred hereby
shall continue indefinitely and, unless waived by the Attorneys-in-Fact, may
not be revoked until the Attorneys-in-Fact have received five days' written
notice of such revocation.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 29th day of May, 1997.
/s/ CHARLES H. PISTOR
---------------------------------------
Charles H. Pistor
Director
Centex Corporation
<PAGE> 5
CENTEX CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Laurence E. Hirsch and
David W. Quinn, or either of such individuals, with full power of substitution
in the premises, as the undersigned's true and lawful agents and
attorneys-in-fact (the "Attorneys-in-Fact"), with full power and authority in
the name and on behalf of the undersigned, in his capacity as a Director of
Centex Corporation (the "Company"), to execute and file with the Securities and
Exchange Commission the Company's Registration Statement on Form S-8
registering the issuance and sale of up to 1,500,000 shares of the Company's
Common Stock, together with any and all amendments thereto.
This Power of Attorney and all authority granted and conferred hereby
shall continue indefinitely and, unless waived by the Attorneys-in-Fact, may
not be revoked until the Attorneys-in-Fact have received five days' written
notice of such revocation.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 29th day of May, 1997.
/s/ PAUL R. SEEGERS
---------------------------------------
Paul R. Seegers
Director
Centex Corporation
<PAGE> 6
CENTEX CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Laurence E. Hirsch and
David W. Quinn, or either of such individuals, with full power of substitution
in the premises, as the undersigned's true and lawful agents and
attorneys-in-fact (the "Attorneys-in-Fact"), with full power and authority in
the name and on behalf of the undersigned, in his capacity as a Director of
Centex Corporation (the "Company"), to execute and file with the Securities and
Exchange Commission the Company's Registration Statement on Form S-8
registering the issuance and sale of up to 1,500,000 shares of the Company's
Common Stock, together with any and all amendments thereto.
This Power of Attorney and all authority granted and conferred hereby
shall continue indefinitely and, unless waived by the Attorneys-in-Fact, may
not be revoked until the Attorneys-in-Fact have received five days' written
notice of such revocation.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 29th day of May, 1997.
/s/ PAUL T. STOFFEL
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Paul T. Stoffel
Director
Centex Corporation
<PAGE> 7
3333 HOLDING
EXHIBIT 24
3333 HOLDING CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints J. Stephen Bilheimer
as the undersigned's true and lawful agent and attorney-in-fact (the
"Attorney-in-Fact") as the undersigned's true and lawful agent and
attorney-in-fact (the "Attorney-in-Fact"), with full power and authority in the
name and on behalf of the undersigned, in his capacity as a Director of 3333
Holding Corporation (the "Company"), to execute and file with the Securities
and Exchange Commission the Company's Registration Statement on Form S-8
registering the issuance and sale of up to 1,500,000 shares of the Common Stock
of Centex Corporation and corresponding beneficial interests in the Company's
Common Stock as described therein, together with any and all amendments
thereto.
This Power of Attorney and all authority granted and conferred hereby
shall continue indefinitely and, unless waived by the Attorney-in-Fact, may not
be revoked until the Attorney-in-Fact has received five days' written notice of
such revocation.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 29th day of May, 1997.
/s/ DAVID M. SHERER
---------------------------------------
David M. Sherer
Director
3333 Holding Corporation
<PAGE> 8
CENTEX DEVELOPMENT
EXHIBIT 24
CENTEX DEVELOPMENT COMPANY, L.P.
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints J. Stephen Bilheimer
as the undersigned's true and lawful agent and attorney-in-fact (the
"Attorney-in-Fact") as the undersigned's true and lawful agent and
attorney-in-fact (the "Attorney-in-Fact"), with full power and authority in the
name and on behalf of the undersigned, in his capacity as a Director of Centex
Development Company, L.P. (the "Company"), to execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 registering the issuance and sale of up to 1,500,000 shares of the Common
Stock of Centex Corporation and corresponding beneficial interests in 900
warrants to purchase Class B units of limited partnership interest in the
Company as described therein, together with any and all amendments thereto.
This Power of Attorney and all authority granted and conferred hereby
shall continue indefinitely and, unless waived by the Attorney-in-Fact, may not
be revoked until the Attorney-in-Fact has received five days' written notice of
such revocation.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 29th day of May, 1997.
/s/ DAVID M. SHERER
---------------------------------------
David M. Sherer
Director
Centex Development Company, L.P.
