<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 26, 1999
Registration Nos. 333-28229; 333-28229-01; 333-28229-02 and 2-95271
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT
REGISTRATION NOS. 333-28229; 333-28229-01; 333-28229-02
AND
POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT
REGISTRATION NO. 2-95271
UNDER
THE SECURITIES ACT OF 1933
-----------------
<TABLE>
<S> <C>
3333 HOLDING CORPORATION AND
CENTEX CORPORATION CENTEX DEVELOPMENT COMPANY, L.P.(1)
(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 Identification No.) (I.R.S. Employer Identification No.)
2728 NORTH HARWOOD 3100 MCKINNON, SUITE 370
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
CENTEX CORPORATION STOCK OPTION PLAN
(Full title of the plan)
RAYMOND G. SMERGE
EXECUTIVE VICE PRESIDENT, CHIEF LEGAL OFFICER AND SECRETARY
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)
(1) On November 30, 1987, Centex Corporation distributed 1,000 shares of common
stock of 3333 Holding Corporation and 900 warrants to purchase Class B Units of
limited partnership interest in Centex Development Company, L.P. to its
stockholders as a dividend. The 3333 Holding Corporation Common Stock and the
Centex Development Company Warrants were distributed to a nominee, who holds the
3333 Holding Corporation Common Stock and the Centex Development Company
Warrants for the benefit of the Centex Corporation stockholders. The 3333
Holding Corporation Common Stock and the Centex Development Company Warrants
currently trade only in tandem with the Centex Corporation Common Stock. Each
Centex Corporation stockholder's beneficial interest in the 3333 Holding
Corporation Common Stock and the Centex Development Company Warrants may be
determined by multiplying the percentage of the stockholder's ownership of
Centex Corporation Common Stock by the number of shares of 3333 Holding
Corporation Common Stock and by the number of Centex Development Company
Warrants held by the nominee. For ease of reference, the Centex Corporation
Common Stock, the 3333 Holding Corporation Common Stock and the Centex
Development Company Warrants are collectively referred to as the "Offered
Securities", and Centex Corporation, 3333 Holding Corporation and Centex
Development Company, L.P. are collectively referred to as the "Companies".
EXPLANATORY NOTE
This Amendment No. 1 is being filed to (a) register the reoffer and
resale of the Offered Securities by affiliates of the Companies who have or may
acquire Offered Securities upon the exercise of stock options pursuant to the
Centex Corporation Amended and Restated 1987 Stock Option Plan or the Centex
Corporation Stock Option Plan, (b) add 3333 Holding Corporation and Centex
Development Company, L.P. as registrants under Registration Statement No.
2-95271 relating to the Centex Corporation Stock Option Plan to reflect the
dividend and beneficial interests described above, (c) add the 3333 Holding
Corporation Common Stock and the Centex Development Company Warrants as
registered securities under Registration Statement No. 2-95271 and (d) add
information relative to 3333 Holding Corporation (and the 3333 Holding
Corporation Common Stock) and Centex Development Company, L.P. (and the Centex
Development Company Warrants) to Registration Statement No. 2-95271.
<PAGE> 2
PROSPECTUS - RESALE
2,806,783 Shares of Centex Corporation Common Stock and
Corresponding Beneficial Interests in 3333 Holding Corporation
Common Stock and Centex Development Company Warrants
3333 HOLDING CORPORATION
CENTEX CORPORATION CENTEX DEVELOPMENT COMPANY, L.P.
2728 NORTH HARWOOD 3100 MCKINNON, SUITE 370
DALLAS, TEXAS 75201 DALLAS, TEXAS 75201
=================================
EXPLANATORY NOTE
On November 30, 1987, Centex Corporation distributed 1,000 shares of
common stock of 3333 Holding Corporation and 900 warrants to purchase Class B
Units of limited partnership interest in Centex Development Company, L.P. to its
stockholders as a dividend. The 3333 Holding Corporation Common Stock and the
Centex Development Company Warrants were distributed to a nominee, who holds the
3333 Holding Corporation Common Stock and the Centex Development Company
Warrants for the benefit of the Centex Corporation stockholders. The 3333
Holding Corporation Common Stock and the Centex Development Company Warrants
currently trade only in tandem with the Centex Corporation Common Stock. Each
Centex Corporation stockholder's beneficial interest in the 3333 Holding
Corporation Common Stock and the Centex Development Company Warrants may be
determined by multiplying the percentage of the stockholder's ownership of
Centex Corporation by the number of shares of 3333 Holding Corporation Common
Stock and by the number of Centex Development Company Warrants held by the
nominee. For ease of reference, the Centex Corporation Common Stock, the 3333
Holding Corporation Common Stock and the Centex Development Company Warrants are
collectively referred to as the "Offered Securities", and Centex Corporation,
3333 Holding Corporation and Centex Development Company, L.P. are collectively
referred to as the "Companies".
=================================
The Selling Stockholders listed on page P-4 and page P-5 of this
Prospectus are offering up to 2,806,783 shares of Centex Corporation Common
Stock (and corresponding beneficial interests in the 3333 Holding Corporation
Common Stock and the Centex Development Company Warrants as described above)
which have been or may be acquired by the Selling Stockholders upon the exercise
of options granted pursuant to the Centex Corporation Amended and Restated 1987
Stock Option Plan or the Centex Corporation Stock Option Plan (collectively, the
"Plans"). None of the Companies will receive any of the proceeds from the sale
of the Offered Securities.
The Centex Corporation Common Stock (and corresponding beneficial
interests in the 3333 Holding Corporation Common Stock and the Centex
Development Company Warrants as described above) are listed on the New York
Stock Exchange (the "NYSE") under the symbol "CTX". On February 25, 1999, the
closing sales price of the Centex Corporation Common Stock (and corresponding
beneficial interests in the 3333 Holding Corporation Common Stock and the Centex
Development Company Warrants as described above) as reported on the NYSE was
$36.125 per share.
=================================
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the contrary is a
criminal offense.
=================================
The date of this Prospectus is February 26, 1999.
=================================
P - 1
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ABOUT THIS PROSPECTUS.....................................................................P - 2
WHERE YOU CAN FIND MORE INFORMATION.......................................................P - 2
PLAN OF DISTRIBUTION......................................................................P - 3
USE OF PROCEEDS...........................................................................P - 3
SELLING STOCKHOLDERS......................................................................P - 3
EXPERTS .................................................................................P - 5
</TABLE>
ABOUT THIS PROSPECTUS
This Prospectus is part of several registration statements on Form S-8
(File Nos. 333-28229, 333-28229-01, 333-28229-02 and 2-95271), each as amended
by Post-Effective Amendment No. 1 thereto (the "Registration Statements"), which
the Companies have filed with the Securities and Exchange Commission (the
"SEC"). This Prospectus is a part of the Registration Statements and does not
contain all the information set forth in the Registration Statements, certain
parts of which have been omitted as permitted by the rules and regulations of
the SEC. This Prospectus does not contain all of the information you should
review before purchasing Offered Securities. You should obtain and read the
information contained in the Registration Statements and in the materials
referred to below under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
Centex Corporation and 3333 Holding Corporation file annual, quarterly
and special reports, proxy statements and other information with the SEC. Centex
Development Company, L.P. files annual, quarterly and special reports and other
information with the SEC. You may read and copy any document filed by the
Companies at the SEC's public reference rooms at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's Regional Offices at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511, and at 7 World Trade Center, Suite 1300, New York, New York 10048.
Our SEC filings are also available to the public over the Internet at the SEC's
web site at http:www/sec/gov. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this Prospectus, and information that we file later with
the SEC will automatically update and supersede this Prospectus. We incorporate
by reference the documents listed below (including any amendment or report filed
for the purpose of updating such information) and future filings made with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934:
o Joint Annual Report on Form 10-K of the Companies for the fiscal year
ended March 31, 1998;
o Joint Quarterly Report on Form 10-Q of the Companies for the quarter
ended June 30, 1998;
o Joint Quarterly Report on Form 10-Q of the Companies for the quarter
ended September 30, 1998;
o Joint Quarterly Report on Form 10-Q of the Companies for the quarter
ended December 31, 1998;
o Current Report on Form 8-K of Centex Corporation dated October 30,
1998.
o Current Report on Form 8-K of Centex Corporation dated December 9,
1998.
o Description of the Centex Corporation Common Stock contained in the
Registration Statement of Centex Corporation on Form 8-A dated October
28, 1971 and Form 8 dated November 11, 1971;
o Description of the 3333 Holding Corporation Common Stock contained in
the Registration Statement of 3333 Holding Corporation 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 23, 1987;
o Description of the Centex Development Company Warrants contained in the
Registration Statement of Centex Development Company, L.P. 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
o Description of the Centex Corporation Preferred Stock Purchase Rights
contained in the Registration Statement of Centex Corporation on Form
8-A dated October 8, 1996.
P - 2
<PAGE> 4
You may request a copy of these filings at no cost, by writing or
telephoning us at the following addresses:
Corporate Secretary Corporate Secretary
Centex Corporation 3333 Holding Corporation
2728 North Harwood Centex Development Company, L.P.
Dallas, Texas 75201 3100 McKinnon, Suite 370
214-981-5000 Dallas, Texas 75201
214-981-6770
You should rely only on the information incorporated by
reference or provided in this Prospectus. We have not authorized anyone else to
provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this Prospectus is accurate as of any date other than
the date on the front page of this Prospectus.
PLAN OF DISTRIBUTION
The Companies are registering the Offered Securities on behalf of the
Selling Stockholders. As used herein, "Selling Stockholders" includes donees and
pledgees selling Offered Securities received from a named Selling Stockholder
after the date of this prospectus. All costs, expenses and fees in connection
with the registration of the Offered Securities will be borne by Centex
Corporation. Brokerage commissions and similar selling expenses, if any,
attributable to the sale of the Offered Securities will be borne by the Selling
Stockholders. Sales of Offered Securities may be effected by Selling
Stockholders from time to time in one or more types of transactions (which may
include block transactions) on the NYSE, in the over-the-counter market, in
negotiated transactions, through put or call option transactions relating to the
Offered Securities, through short sales of Offered Securities, or a combination
of such methods of sale, at market prices prevailing at the time of sale, or at
negotiated prices. Such transactions may or may not involve brokers or dealers.
The Selling Stockholders have advised the Companies that they have not entered
into any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their securities, nor is there an
underwriter or coordinating broker acting in connection with the proposed sale
of Offered Securities by the Selling Stockholders.
The Selling Stockholders may effect such transactions by selling
Offered Securities directly to purchasers or to or through broker-dealers, which
may act as agents or principals. Such broker-dealers may receive compensation in
the form of discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of Offered Securities for whom such broker-dealers may act
as agents or to whom they sell as principal, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions).
The Selling Stockholders and any broker-dealers that act in connection
with the sale of Offered Securities might be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act and any commissions received
by such broker-dealers and any profit on the resale of the Offered Securities
sold by them while acting as principals might be deemed to be underwriting
discounts or commissions under the Securities Act. The Companies have agreed to
indemnify each Selling Stockholder against certain liabilities, which may
include liabilities arising under the Securities Act under certain
circumstances. The Selling Stockholders may agree to indemnify any agent, dealer
or broker-dealer that participates in transactions involving sales of the
Offered Securities against certain liabilities, including liabilities arising
under the Securities Act.
Because Selling Stockholders may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act, the Selling Stockholders
will be subject to the prospectus delivery requirements of the Securities Act,
which may include delivery through the facilities of the NYSE pursuant to Rule
153 under the Securities Act. The Companies have informed the Selling
Stockholders that the anti-manipulative provisions of Regulation M promulgated
under the Exchange Act may apply to their sales in the market.
Selling Stockholders also may resell all or a portion of the Offered
Securities in open market transactions in reliance upon Rule 144 under the
Securities Act, provided they meet the criteria and conform to the requirements
of such rule.
Upon the Companies being notified by a Selling Stockholder that any
material arrangement has been entered into with a broker-dealer for the sale of
Offered Securities through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer, a
supplement to this Prospectus will be filed, if required, pursuant to Rule
424(b) under the Act, disclosing, (i) the name of each such Selling Stockholder
and of the participating broker-dealer(s), (ii) the number of Offered Securities
involved, (iii) the price at which such Offered Securities were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
the Prospectus and (vi) other facts material to the transaction. In addition,
upon the Companies being notified by a Selling Stockholder that a donee or
pledgee intends to sell more than 500 shares, a supplement to this Prospectus
will be filed.
P - 3
<PAGE> 5
USE OF PROCEEDS
None of the Companies will receive any of the proceeds from the sale of
the Offered Securities by the Selling Stockholders.
SELLING STOCKHOLDERS
The Centex Selling Stockholders are certain officers and directors of
Centex Corporation who may be deemed to be affiliates of Centex Corporation
under the Securities Act. The Holding Selling Stockholder is an officer and
director of 3333 Holding Corporation and 3333 Development Corporation, the
general partner of Centex Development Company, L.P., who may be deemed to be an
affiliate of 3333 Holding Corporation and Centex Development Company, L.P. under
the Securities Act. Under the Securities Act, an "affiliate" of an entity
includes a person who directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with
such entity.
Officers and directors of the Companies who (i) in the future acquire
Offered Securities pursuant to the Plans and (ii) may be deemed to be affiliates
of the Companies, may be added to this Prospectus as Selling Stockholders either
by means of a post-effective amendment to the Registration Statements or by use
of a supplement to this Prospectus filed pursuant to Rule 424 under the
Securities Act.
CENTEX SELLING STOCKHOLDERS
The following table sets forth as of February 8, 1999 the name of each
Centex Selling Stockholder and his position with Centex Corporation, (ii) the
number of shares of Centex Corporation Common Stock beneficially owned by each
Centex Selling Stockholder, (iii) the number of shares of Centex Corporation
Common Stock owned or to be owned by each Centex Selling Stockholder upon the
exercise of options granted pursuant to the Plans, (iv) the number of shares of
Centex Corporation Common Stock offered by each Centex Selling Stockholder, and
(v) the number of shares of Centex Corporation Common Stock each Centex Selling
Stockholder will own upon completion of this offering.
<TABLE>
<CAPTION>
Number of Shares of Centex Corporation Common Stock(1)
-------------------------------------------------------------------------
Owned or To
Be Owned To Be
Name of Selling Upon Owned Upon
Stockholder and Position Exercise Offered Completion of
with Centex Corporation Owned(2) of Options(3) Hereby Offering(4)(5)
- ----------------------- -------- ------------- -------- ---------------
<S> <C> <C> <C> <C>
Alan B. Coleman 87,820 111,700 111,700 --
Director
Dan W. Cook III 45,820 69,700 67,700 2,000
Director
Juan L. Elek 43,820 67,700 67,700 --
Director
Timothy R. Eller 182,400 302,400 302,400 --
Executive Vice President
Laurence E. Hirsch
Director, Chairman of the Board 1,206,880(6) 1,421,800(6) 1,021,800 400,000(6)
and Chief Executive Officer
Clint W. Murchison, III 101,042 124,922 74,112 50,810
Director
Charles H. Pistor 46,984 70,864 64,664 6,200
Director
David W. Quinn
Director, Vice Chairman of the 487,140 654,300 653,900 400
Board and Chief Financial Officer
Paul R. Seegers 588,522 612,402 299,174 313,228
Director
Paul T. Stoffel 187,009 210,889 74,633 136,256
Director
</TABLE>
P - 4
<PAGE> 6
(1) Includes the corresponding beneficial interests in the 3333
Holding Corporation Common Stock and the Centex Development
Company Warrants.
(2) Includes shares the Selling Stockholders may acquire upon the
exercise of stock options which become exercisable within sixty
days following the effective date of this Prospectus.
(3) Includes shares the Selling Stockholders may acquire upon the
exercise of stock options granted pursuant to the Plans.
(4) Assumes all shares offered hereby are sold.
(5) No director or officer will own 1% or more of the Centex
Corporation Common Stock if all shares offered hereby are sold.
(6) Includes 400,000 shares issuable upon conversion of a subordinated
debenture.
HOLDING SELLING STOCKHOLDER
The following table sets forth as of February 8, 1999 the name of the
Holding Selling Stockholder and his position with 3333 Holding Corporation and
3333 Development Corporation, (ii) the number of shares of Centex Corporation
Common Stock beneficially owned by the Holding Selling Stockholder, (iii) the
number of shares of Centex Corporation Common Stock beneficially owned or to be
owned by the Holding Selling Stockholder upon the exercise of options granted
pursuant to the Plans, (iv) the number of shares of Centex Corporation Common
Stock offered by the Holding Selling Stockholder, and (v) the number of shares
of Centex Corporation Common Stock the Holding Selling Stockholder will own upon
completion of this offering.
<TABLE>
<CAPTION>
Number of Shares of Centex Corporation Common Stock(1)
------------------------------------------------------------------
Owned or To
Be To Be Owned
Name of Selling Stockholder and Position Owned Upon Upon
with 3333 Holding Corporation and Exercise Offered Completion
3333 Development Corporation Owned(2) of Options(3) Hereby of Offering(4)(5)
- ----------------------------------------- ------- ------------ -------- -----------------
<S> <C> <C> <C> <C>
Richard C. Decker 7,600 69,000 69,000 --
Director, President and Chief Executive Officer
</TABLE>
(1) The 3333 Holding Corporation Common Stock and the Centex
Development Company Warrants trade in tandem with the Centex
Corporation Common Stock.
(2) Includes shares the Selling Stockholder may acquire upon the
exercise of stock options which become exercisable within sixty
days following the effective date of this Prospectus.
(3) Includes shares the Selling Stockholder may acquire upon the
exercise of stock options granted pursuant to the Plans.
(4) Assumes all shares offered hereby are sold.
(5) The Selling Stockholder will own less than 1% of the Centex
Corporation Common Stock.
EXPERTS
The financial statements and schedules incorporated by reference in this
Prospectus and elsewhere in the Registration Statements have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports.
P - 5
<PAGE> 7
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENTS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with the Securities and Exchange
Commission (the "SEC") by the Companies, as appropriate, and are incorporated
herein by reference and made a part hereof:
1. Joint Annual Report on Form 10-K of the Companies for the fiscal year ended
March 31, 1998;
2. Joint Quarterly Report on Form 10-Q of the Companies for the quarter ended
June 30, 1998;
3. Joint Quarterly Report on Form 10-Q of the Companies for the quarter ended
September 30, 1998;
4. Joint Quarterly Report on From 10-Q of the Companies for the quarter ended
December 31, 1998;
5. Current Report on Form 8-K of Centex Corporation dated October 30, 1998.
6. Current Report on Form 8-K of Centex Corporation dated December 9, 1998.
7. Description of the Centex Corporation Common Stock, $0.25 par value per
share, contained in the Registration Statement on Form 8-A of Centex
Corporation dated October 28, 1971 and Form 8 dated November 11, 1971;
8. Description of the 3333 Holding Corporation Common Stock, $0.01 par value
per share, contained in the Registration Statement of Form 10 of 3333
Holding Corporation 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;
9. Description of the Warrants to purchase Class B Units of limited
partnership of Centex Development Company, L.P., contained in Registration
Statement on Form 10 of Centex Development Company, L.P. 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
10. Description of the Preferred Stock Purchase Rights contained in the Form
8-A Registration Statement of Centex Corporation dated October 8, 1996.
All documents filed by the Companies pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (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 the Registration Statements
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 the Registration
Statements, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Raymond G. Smerge, the Executive Vice President, Chief Legal Officer and
Secretary of Centex Corporation, and the Secretary of 3333 Holding Corporation
and 3333 Development Corporation, has issued an opinion about the legality of
the original issuance of the securities registered under the Registration
Statements and reoffered by the Selling Stockholders. As of February 8, 1999,
Mr. Smerge beneficially owned 72,060 shares of Centex Corporation Common Stock
(as well as the corresponding beneficial interest in the 3333 Holding
Corporation Common Stock and the Centex Development Company Warrants). Arthur
Andersen LLP, independent accountants, audited our financial statement schedules
incorporated by references in the Prospectus and elsewhere in the registration
statements. These documents are incorporated by reference herein in reliance
upon the authority of Arthur Andersen as experts in accounting and auditing in
giving the report.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Centex Corporation, 3333 Holding Corporation and 3333 Development
Corporation, the General Partner of Centex Development Company, L.P., are Nevada
corporations. Pursuant to the provisions of Section 5 of the NGCL, every Nevada
corporation has the authority to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving in such capacity at the request of the
corporation for another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including reasonable attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner he reasonably believed to be in the best interest, or not
opposed to the best interest, of the corporation and with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
II - 1
<PAGE> 8
Under Nevada law, Centex Corporation, 3333 Holding Corporation and 3333
Development Corporation also have authority to indemnify any such person who is
a party or is threatened to be made a party to any threatened, pending or
completed actions or suits brought by or in the right of the corporation, but
only to the extent of expenses including amounts paid in settlement and
attorneys' fees. No indemnification shall be made, however, for any claim, issue
or matter as to which a person has been adjudged by a court to be liable to the
corporation or for amounts paid in settlement to the corporation, unless and
only to the extent that the court determines that in view of all the
circumstances, the person is fairly and reasonably entitled to such expenses as
the court deems proper.
To the extent any of the persons referred to in the two immediately
preceding paragraphs is successful in the defense of the actions referred to
therein, the NGCL provides that such person must be indemnified by the
corporation against expenses including attorneys' fees actually and reasonably
incurred by him in connection with the defense.
Section 78.751 of the NGCL requires the corporation to obtain a
determination that any discretionary indemnification is proper under the
circumstances. Such a determination may be made by a corporation's stockholders
or disinterested directors, or under certain circumstances, pursuant to an
independent legal opinion. The Articles of Incorporation of Centex Corporation,
3333 Holding Corporation and 3333 Development Corporation provide for
indemnification of their directors and officers to the extent provided by Nevada
law.
In addition, Section 78.037 of the NGCL permits Nevada corporations to
include in their articles of incorporation a provision eliminating the personal
liability of their directors and officers for damages resulting from certain
fiduciary duty breaches. An amendment to the Articles of Incorporation of Centex
Corporation was adopted by its stockholders at the annual meeting thereof held
on July 15, 1987 in order to effect the permitted limitation on liability. The
Articles of Incorporation of 3333 Holding Corporation and 3333 Development
Corporation contain a similar provision limiting the liability of their
directors and officers for such damages, as do the Bylaws of each Centex
Corporation, 3333 Holding Corporation and 3333 Development Corporation.
The Bylaws of the Centex Corporation, 3333 Holding Corporation and 3333
Development Corporation each provide that the corporation shall indemnify its
directors, officers, employees and agents to the fullest extent provided by the
NGCL and such corporation's Articles of Incorporation. In addition, the Bylaws
of each corporation provide for indemnification to the same extent of any
director, officer or employee of the corporation who serves in any fiduciary
capacity with respect to any profit sharing, pension or other type of welfare
plan or trust for the benefit of employees of the corporation or its
subsidiaries.
Centex Corporation has entered into indemnification contracts with its
directors and may enter into similar contracts from time to time with certain
officers of Centex Corporation and its subsidiaries who are not directors of
Centex Corporation. The general effect of the indemnification contracts is to
provide that the indemnitees shall be indemnified to the fullest possible extent
permitted by the law against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in any action or proceeding, including any action by or in the right of
Centex Corporation, by reason of their service in the foregoing capacities. The
indemnification contracts were approved by the stockholders of Centex
Corporation at the annual meeting of stockholders held on July 16, 1986.
The Second Amended and Restated Agreement of Limited Partnership of Centex
Development Company, L.P., as amended (the "Limited Partnership Agreement"),
provides that to the fullest extent permitted by law, Centex Development
Company, L.P. will indemnify the General Partner and its directors, officers,
employees and agents and persons serving on behalf of Centex Development
Company, L.P. in similar capacities with other entities against liabilities,
costs and expenses (including legal fees and expenses) incurred by the General
Partner or such persons in connection with litigation or threatened litigation,
if the General Partner or such persons acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of Centex
Development Company, L.P., and such General Partner's or such other person's
conduct did not constitute gross negligence or willful or wanton misconduct and,
with respect to any criminal proceeding, did not have any reason to believe its
conduct was unlawful. Any indemnification under these provisions will be limited
to the assets of Centex Development Company, L.P.
Pursuant to authority granted by the NGCL and its respective Articles of
Incorporation and Bylaws, each of Centex Corporation, 3333 Holding Corporation
and 3333 Development Corporation, and with respect to Centex Development
Company, L.P., pursuant to the Limited Partnership Agreement, has purchased
directors and officers liability insurance.
The foregoing summaries are necessarily subject to the complete text of the
statute, Articles of Incorporation, Bylaws and agreements referred to above and
are qualified in their entirety by reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS.
The information required by this Item 8 is set forth in the Index to
Exhibits accompanying the Registration Statements.
II - 2
<PAGE> 9
ITEM 9. UNDERTAKINGS.
The undersigned Companies 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 Statements (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 Statements. 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 SEC 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 Statements or
any material change to such information in the Registration Statements;
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 Companies 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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Companies' annual reports 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
Statements 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 Companies pursuant to the foregoing provisions, or otherwise,
the Companies have been advised that in the opinion of the SEC 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
Companies of expenses incurred or paid by a director, officer or controlling
person of any of the Companies 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 Companies 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.
II - 3
<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned 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 February
26, 1999.
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 February 26, 1999
- -------------------------------------------------- Officer and Director (Principal
Laurence E. Hirsch Executive Officer)
/s/ DAVID W. QUINN Vice Chairman of the Board, Chief February 26, 1999
- -------------------------------------------------- Financial Officer and Director
David W. Quinn (Principal Financial Officer)
/s/ BARRY G. WILSON Controller (Principal Accounting February 26, 1999
- -------------------------------------------------- Officer)
Barry G. Wilson
By: /s/ LAURENCE E. HIRSCH Majority of the Board of Directors: February 26, 1999
-----------------------------------------------
Laurence E. Hirsch
Individually and as Attorney in Fact*
</TABLE>
- --------------
* Pursuant to authority granted by powers of attorney, copies of which are
filed herewith
II - 4
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned 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 February
26, 1999.
3333 HOLDING CORPORATION
By: /s/ RICHARD C. DECKER
-------------------------------------
Richard C. Decker
President and Chief Executive 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/ RICHARD C. DECKER President and Chief Executive Officer February 26, 1999
- -------------------------------------------------- and Director
Richard C. Decker (Principal Executive Officer)
/s/ KIMBERLY A. PINSON Vice President, Treasurer, Controller February 26, 1999
- -------------------------------------------------- and Assistant Secretary
Kimberly A. Pinson (Principal Financial Officer and
Accounting Officer)
Majority of the Board of Directors: February 26, 1999
By: /s/ RICHARD C. DECKER Richard C. Decker, Josiah O. Low, III
---------------------------------------------- and David M. Sherer
Richard C. Decker
Individually and as Attorney in Fact*
</TABLE>
- --------------
* Pursuant to authority granted by powers of attorney, copies of which are
filed herewith
II - 5
<PAGE> 12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned 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 February
26, 1999.
CENTEX DEVELOPMENT COMPANY, L.P.
BY: 3333 DEVELOPMENT CORPORATION,
GENERAL PARTNER
By: /s/ RICHARD C. DECKER
--------------------------------------
Richard C. Decker
President and Chief Executive 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/ RICHARD C. DECKER President and Chief Executive Officer February 26, 1999
- -------------------------------------------------- (Principal Executive Officer) of 3333
Richard C. Decker Development Corporation
/s/ KIMBERLY A. PINSON Vice President, Treasurer, Controller February 26, 1999
- -------------------------------------------------- and Assistant Secretary of 3333
Kimberly A. Pinson Development Corporation
(Principal Financial Officer and
Accounting Officer)
Majority of the Board of Directors of February 26, 1999
By: /s/ RICHARD C. DECKER 3333 Development Corporation
---------------------------------------------- Richard C. Decker, Josiah O. Low, III
Richard C. Decker and David M. Sherer
Individually and as Attorney in Fact*
</TABLE>
- --------------
* Pursuant to authority granted by powers of attorney, copies of which are
filed herewith
II - 6
<PAGE> 13
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 Centex Filed herewith.
Corporation ("Centex").
4.2 By-laws of Centex. Exhibit 3.2 to Annual Report on Form 10-K of Centex
(File No. 1-6776) for fiscal year ended March 31, 1993
("Centex 1993 Form 10-K")
4.3 Specimen Centex Corporation Common Exhibit 4.3 to Form S-8 Registration Statement of
Stock certificate (with tandem trading legend Centex, 3333 Holding Corporation ("Holding") and
and Rights Agreement legend). Centex Development Company, L.P. ("CDC" and,
together with Centex and Holding, the "Companies")
dated June 2, 1997 (File Nos. 333-28229, 333-28229-01,
333-28229-02, respectively) (the "1997 Form S-8").
4.4 Nominee Agreement, dated November 30, Exhibit 4.2 to Centex 1993 Form 10-K.
1987, by and between the Companies and
The Chase Manhattan 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, 1996 (File No. 1-6776).
Shareholder Services, as successor Rights
Agent.
4.7 Centex Corporation Amended and Restated Filed herewith.
1987 Stock Option Plan.
4.8 Centex Corporation Stock Option Plan Exhibit 10.1 to Centex 1993 Form 10-K.
23.1 Consent of Independent Public Accountants. Filed herewith.
24a Powers of Attorney. Filed herewith.
</TABLE>
<PAGE> 14
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 Corporation Exhibit 3.2a to Amendment No. 1 dated October 14,
("Holding"). 1987 ("Amendment No. 1") to the Registration Statement
of Holding on Form 10 (File No. 1-9624) dated July 12,
1987.).
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 1993 Form 10-K")).
4.3 Specimen 3333 Holding Corporation Exhibit 4.1 to Amendment No. 1.
Common Stock certificate.
4.4 Specimen Centex Corporation Common Exhibit 4.3 to 1997 S-8.
Stock certificate (with tandem trading legend
and Rights Agreement legend).
4.5 Nominee Agreement, dated as of November Exhibit 4.3 to Holding 1993 Form 10-K.
30, 1987, by and between the Companies
and The Chase Manhattan Bank, as
successor nominee.
4.6 Agreement for Purchase of Warrants, dated Exhibit 4.4 to Holding 1993 Form 10-K.
as of November 30, 1987, by and between
Holding and Centex.
23 Consent of Independent Public Accountants. Exhibit 23 of Centex Exhibits filed herewith.
24b Powers of Attorney. Filed herewith.
</TABLE>
<PAGE> 15
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 3333 Exhibit 3.2a to Amendment No. 1 dated October 14,
Development Corporation. 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 3333 Development Corporation, as Exhibit 3.2 to Annual Report on Form 10-K of CDC
amended. (File No. 1-9625) for fiscal year ended March 31,
1993 (the "CDC 1993 Form 10-K")).
4.3 Certificates of Limited Partnership of CDC. Exhibit 4.1 to the CDC Registration Statement.
4.4 Second Amended and Restated Agreement of Exhibit 4.4 to Form S-8 Registration Statement of
Limited Partnership of CDC. Centex, 3333 Holding Corporation and Centex
Development Company, L.P. dated June 1, 1998
(File Nos. 333-5717, 333-5717-01 and 333-5717-02,
respectively) ("1998 Form S-8").
4.5 Amendment No. 1 to Second Amended and Filed herewith.
Restated Agreement of Limited Partnership of
CDC.
4.6 Specimen certificate for Class A limited Exhibit 4.3 to the CDC Registration Statement.
partnership units.
4.7 Specimen certificate for Class B limited Exhibit 4.4 to the CDC Registration Statement.
partnership units.
4.8 Specimen certificate for Class C limited Exhibit 4.7 to the 1998 Form S-8.
partnership units.
4.9 Warrant Agreement, dated as of November 30, Exhibit 4.5 to CDC 1993 Form 10-K
1987, by and between CDC and Centex.
4.10 Specimen warrant certificate. Exhibit 4.6 to Amendment No. 3 dated November
24, 1987 to the CDC Registration Statement.
4.11 Specimen Centex Corporation Common Stock Exhibit 4.3 to 1997 S-8.
certificate (with tandem trading legend and
Rights Agreement legend).
4.12 Nominee Agreement, dated as of November 30, Exhibit 4.8 to CDC 1993 Form 10-K.
1987, by and between the Companies and The
Chase Manhattan Bank, as successor nominee.
4.13 Agreement for Purchase of Warrants, dated as Exhibit 4.9 to CDC 1993 Form 10-K.
of November 30, 1987, by and between CDC
and Centex.
4.14 Form of Operating Partnership Agreement. Exhibit 4.9 to the CDC Registration Statement.
23 Consent of Independent Public Accountants. Exhibit 23 of Centex Exhibits filed herewith.
24c Powers of Attorney. Filed herewith.
</TABLE>
<PAGE> 1
CENTEX CORPORATION EXHIBIT 4.1
RESTATED
ARTICLES OF
INCORPORATION
OF
CENTEX CORPORATION
FIRST: The name of the corporation is CENTEX CORPORATION.
SECOND: Its principal office in the State of Nevada is located at One
East First Street, Reno, Washoe County, Nevada. The name and address of its
resident agent is The Corporation Trust Company, One East First Street, Reno,
Nevada.
THIRD: The purpose of the Corporation is to engage in any lawful act,
activity and/or business for which corporations may be organized under the
General Corporation Laws of the State of Nevada.
FOURTH: The total number of shares of all classes of stock which the
Corporation is authorized to Issue is Fifty Five Million (55,000,000). All such
shares are to have a par value and are classified as (i) Five Million
(5,000,000) shares of Preferred Stock (the "Preferred Stock"), each share of
such stock having such par value as the Board of Directors of the Corporation
may from time to time designate in the resolutions providing for the issuance
thereof, as hereinafter provided, and (ii) Fifty Million (50,000,000) shares of
Common Stock (the "Common Stock"), each share of such stock having a par value
of $.25.
The designations and the powers, preferences, rights, qualifications,
limitations and restrictions of the Preferred Stock and the Common Stock of the
Corporation are as follows:
A. Provisions Relating to the Preferred Stock.
1. The Preferred Stock may be issued from time to time
in one or more classes or series, the shares of each class or series
to have such designations and powers, preferences and rights, and
qualifications, limitations and restrictions thereof as are stated and
expressed herein and in the resolution or resolutions providing for
the issue of such class or series adopted by the Board of Directors as
hereafter prescribed.
2. Authority is hereby expressly granted to and vested
in the Board of Directors to authorize the issuance of the Preferred
Stock from time to time in one or more classes or series, and with
respect to each class or series of the Preferred Stock, to fix and
state by the resolution or resolutions from time to time adopted
providing for the issuance thereof the following:
(i) Whether or not the class or series is to have
voting rights, full or limited, or is to be without voting
rights;
<PAGE> 2
(ii) The number of shares to constitute the class or
series and the designations thereof;
(iii) The par value, preferences and relative,
participating, optional or other special rights, if any, and
the qualifications, limitations, or restrictions thereof, if
any, with respect to any class or series;
(iv) Whether or not the shares of any class or series
shall be redeemable and if redeemable the redemption price or
prices, and the time or times at which, and the terms and
conditions upon which, such shares shall be redeemable and the
manner of redemption;
(v) Whether or not the shares of a class or series
shall be subject to the operation of retirement or sinking
funds to be applied to the purchase or redemption of such
shares for retirement, and if such retirement or sinking fund
or funds be established, the annual amount thereof and the
terms and provisions relative to the operation thereof;
(vi) The dividend rate, whether dividends are payable
in cash, stock of the Corporation, or other property, the
conditions upon which and the times when such dividends are
payable, the preference to or the relation to the payment of
dividends payable on any other class or classes or series of
stock, whether or not such dividend shall be cumulative or
noncumulative, and if cumulative, the date or dates from which
such dividends shall accumulate;
(vii) The preferences, if any, and the amounts
thereof which the holders of any class or series thereof shall
be entitled to receive upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the
Corporation;
(viii) Whether or not the shares of any class or
series shall be convertible into, or exchangeable for, the
shares of any other class or classes or of any other series of
the same of any other class or classes of stock of the
Corporation and the conversion price or prices or ratio or
ratios or the rate or rates at which such exchange may be
made, with such adjustments, if any, as shall be stated and
expressed or provided for in such resolution or resolutions;
and
(ix) Such other special rights and protective
provisions with respect to any class or series as may to be
Board of Directors deem advisable.
3. The shares of each class or series of the Preferred Stock may
vary from the shares of any other series thereof in any or all of the foregoing
respects. The Board of Directors may increase the number of shares of the
Preferred Stock designated for any existing class or series by a resolution
adding to such class or series authorized and
2
<PAGE> 3
unissued shares of the Preferred Stock not designated for any other class or
series. The Board of Directors may decrease the number of shares of the
Preferred Stock designated for any existing class or series by a resolution,
subtracting from such series unissued shares of the Preferred Stock designated
for such class or series, and the shares subtracted shall become authorized,
unissued and undesignated shares of the Preferred Stock.
4. The shares of Preferred Stock, Series A, heretofore authorized in
resolutions adopted by Unanimous Written Consents of the Board of Directors,
dated February 17, 1970, and November 13, 1970, the shares of Preferred Stock,
Series B, heretofore authorized in resolutions adopted by Unanimous Written
Consent of the Board of Directors, dated February 17, 1970, and the shares of
Preferred Stock, Series C, heretofore authorized in resolutions adopted by
Unanimous Written Consent of the Board of Directors dated June 24, 1970, shall,
notwithstanding anything else to the contrary, have the following voting power
and privileges:
A. Each holder of Preferred Stock, Series A, Preferred Stock,
Series B, or Preferred Stock, Series C, shall be entitled to one vote
on each matter submitted to a vote of the stockholders for each whole
share of Common Stock into which each share of Preferred Stock
standing in such holder's name on the records of the Corporation is
convertible, irrespective of whether or not the conversion privilege
may be exercised by the holder of such Preferred Stock as of the
record date for the determination of stockholders entitled to vote on
each matter at the meeting of the stockholders called and held for
such purpose.
B. Provisions Relating to the Common Stock.
1. Except as otherwise required by law, each holder of
Common Stock shall be entitled to one vote for each share of Common
Stock standing in such holder's name on the records of the Corporation
on each matter submitted to a vote of the stockholders.
2. Subject to the rights of the holders of the Preferred
Stock, the holders of the Common Stock shall be entitled to receive
when, as and if declared by the Board of Directors, out of funds
legally available therefor, dividends payable in cash, stock or
otherwise.
3. Upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, and after the
holders of the Preferred Stock shall have been paid in full the
amounts to which they shall be entitled (if any), or a sum sufficient
for such payment in full shall have been set aside, the remaining net
assets of the Corporation shall be distributed pro rata to the holders
of the Common Stock in accordance with their respective rights and
interests, to the exclusion of the holders of the Preferred Stock.
3
<PAGE> 4
C. General.
1. Subject to the provisions of law and the foregoing
provisions of these Articles of Incorporation, the Corporation may
issue shares of its Preferred Stock and Common Stock from time to time
for such consideration (not less than the par value or stated value
thereof) as may be fixed by the Board of Directors, which is expressly
authorized to fix the same in its absolute and uncontrolled discretion
subject to the foregoing conditions. Shares so issued for which the
consideration shall have been paid or delivered to the Corporation
shall be deemed fully paid stock and shall not be liable to any
further call or assessment thereon and the holders of such shares
shall not be liable for any further payments in respect of such
shares.
2. No stockholder of this Corporation shall have, by
reason of his holding shares of any class of stock of this
Corporation, any preemptive or preferential rights to purchase or
subscribe for any other shares (including treasury shares) of any
class of this Corporation now or hereafter to be authorized, or any
notes, debentures, bonds, or other securities convertible into or
carrying options or warrants to purchase shares of any class, now or
hereafter to be authorized, whether or not the issuance of any such
shares, or such notes, debentures, bonds or other securities, would
adversely affect the dividend or voting rights of such stockholder.
3. Cumulative voting by any stockholder is hereby
expressly denied.
FIFTH: The members of the governing board shall be styled "directors"
and the number thereof shall be not less than three (3) nor more than thirteen
(13), the exact number to be fixed as provided by the Bylaws of the
Corporation, provided that the number so fixed as provided by the Bylaws may be
increased or decreased within the limits above specified from time to time as
provided by the Bylaws.
The names and post office addresses of the first Board of Directors,
which shall consist of three (3) members, are as follows:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Frank M. Crossen 4600 Republic National Bank Tower
Dallas, Texas 75201
Paul R. Seegers 4600 Republic National Bank Tower
Dallas, Texas 75201
E. L. Higgins 4600 Republic National Bank Tower
Dallas, Texas 75201
</TABLE>
SIXTH: The names and post office addresses of each of the
incorporators signing the Articles of Incorporation are as follows:
4
<PAGE> 5
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Donald L. Carano 2520 Faretto Drive
Reno, Nevada 89502
Linda A. Barozzi 3485 Bryan Street
Reno, Nevada 89503
Marilyn Hart 19765 Miner Lane
Reno, Nevada 89502
</TABLE>
SEVENTH: The Corporation shall have perpetual existence.
EIGHTH: The Board of Directors is expressly authorized to make,
repeal, alter, amend or rescind the Bylaws of the Corporation. The stockholders
of the Corporation shall not make, repeal, alter, amend or rescind the Bylaws
of the Corporation except by the vote of the holders of 66 2/3 percent or more
of the combined voting power of the then outstanding shares of stock of all
classes and series of the Corporation entitled to vote generally in the
election of directors, voting together as a single class. In addition to any
requirement of law and any other provisions of these Articles of Incorporation
or any resolution or resolutions of the Board of Directors adopted pursuant to
Article Fourth of these Articles of Incorporation (and notwithstanding the fact
that a lesser percentage may be specified by law, these Articles of
Incorporation or any such resolution or resolutions), the affirmative vote of
the holders of 66 2/3 percent or more of the combined voting power of the then
outstanding shares of stock of all classes and series of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to amend, alter or repeal, or adopt any
provision inconsistent with, this Article Eighth.
NINTH: No contract or other transaction between the Corporation and
any other corporation and no other act of the Corporation shall, in the absence
of fraud, be invalidated or in any way affected by the fact that any of the
directors of the Corporation are pecuniarily or otherwise interested in such
contract, transaction, or other act, or are directors or officers of such
corporation. Any director of the Corporation, individually or any firm or
association of which any such director may be a member, may be a party to, or
may be pecuniarily or otherwise interested in, any contract or transaction of
the Corporation, provided that the fact that he individually or such firm or
association is so interested shall be disclosed or shall have been known to the
Board of Directors or a majority of such members thereof as shall be present at
any meeting of the Board of Directors at which action upon any such contract or
transaction shall be taken; and any director of the Corporation who is a
director or officer of such other corporation or who is so interested may be
counted in determining the existence of a quorum at any meeting of the Board of
Directors which shall authorize any such contract or transaction and may vote
thereat to authorize any such contract or transaction with like force and
effect as if he were not such director or officer of such other corporation or
not so interested; every director of the Corporation being hereby relieved from
any disability which might otherwise prevent him from carrying out transactions
with or contracting with the Corporation for the benefit of
5
<PAGE> 6
himself or any firm or corporation, association, trust or organization in which
or with which he may be in interested or connected.
TENTH:
1. Elimination of Director or Officer Liability.
No director or officer of the Corporation shall be personally
liable to the Corporation or any of its stockholders for damages for
breach of fiduciary duty as a director or officer involving any act or
omission of any such director or officer occurring on or after July
15, 1987; provided, however, that the foregoing provision shall not
eliminate or limit the liability of a director or officer (i) for acts
or omissions which involve intentional misconduct, fraud or a knowing
violation of law, or (ii) the payment of dividends in violation of
Section 78.300 of the Nevada Revised Statutes. Any repeal or
modification of this paragraph 1 of Article TENTH by the stockholders
of the Corporation shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director or
officer of the Corporation for acts or omissions prior to such repeal
or modification.
2. Indemnification.
(a) The Corporation shall have power to indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with the action, suit or
proceeding, if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding had no reasonable cause to
believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the
person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and that, with respect to any
criminal action or proceeding, he had reasonable cause to
believe that his conduct was unlawful.
(b) The Corporation shall have power to indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit
by or in the right of the Corporation to
6
<PAGE> 7
procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including amounts paid in
settlement and attorneys' fees, actually and reasonably
incurred by him in connection with the defense or settlement
of the action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of the Corporation. Indemnification may not be
made for any claim, issue or matter as to which such a person
has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the
Corporation or for amounts paid in settlement to the
Corporation, unless and only to the extent that the court in
which the action or suit was brought or other court of
competent jurisdiction determines upon application that in
view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses
as the court deems proper.
(c) To the extent that a director, officer,
employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or
proceeding referred to in subparagraphs (a) and (b), or in
defense of any claim, issue or matter therein, he must be
indemnified by the Corporation against expenses (including,
attorneys' fees) actually and reasonably incurred by him in
connection with the defense.
(d) Any indemnification under subparagraphs (a)
and (b), unless ordered by a court or advanced pursuant to
subparagraph (e), must be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances. The determination must be made
(1) by the Board of Directors by majority vote of a quorum
consisting of directors who were not parties to the action,
suit or proceeding, or (2) if a majority vote of a quorum
consisting of directors who were not parties to the action,
suit or proceeding so orders, by independent legal counsel in
a written opinion, or (3) if a quorum consisting of directors
who were not parties to the action, suit or proceeding cannot
be obtained, by independent legal counsel in a written
opinion, or (4) by the stockholders.
(e) The expenses of officers and directors incurred
in defending a civil or criminal action, suit or proceeding
must be paid by the Corporation as they are incurred and in
advance of the final disposition of the action, suit or
proceeding upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it shall be
determined by a court of competent jurisdiction that he is not
entitled to be indemnified by the Corporation. The provisions
of this subparagraph do not affect any rights to advancement
of expenses to which corporate personnel other than directors
or officers may be entitled under any contract or otherwise.
7
<PAGE> 8
(f) The indemnification and advancement of
expenses authorized in or ordered by a court pursuant to this
paragraph 2 of Article TENTH (1) shall not be deemed exclusive
of any other rights to which a person seeking indemnification
or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders disinterested directors, or
otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except
that indemnification, unless ordered by a court pursuant to
subparagraph (b) or for the advancement of expenses made
pursuant to subparagraph (e), may not be made to or on behalf
of any director or officer if a final adjudication establishes
that his acts or omissions involved intentional misconduct,
fraud or a knowing violation of the law and was material to
the cause of action, and (2) continues for a person who has
ceased to be a director, officer, employee or agent and inures
to the benefit of the heirs, executors and administrators of
such a person.
(g) To the extent permitted by law, the
Corporation shall have power to purchase and maintain
insurance or make other financial arrangements on behalf of
any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise for any liability asserted against him and
any liability and expenses incurred by him in any such
capacity or arising out of his status as such.
ELEVENTH: The vote of stockholders of the Corporation required to
approve Business Combinations (as hereinafter defined) shall be as set forth in
this Article Eleventh.
1. Higher Votes Required for Certain Business
Combinations. In addition to any affirmative vote required by law or
by these Articles of Incorporation or any resolution or resolutions of
the Board of Directors adopted pursuant to Article Fourth of these
Articles of Incorporation, and except as otherwise expressly provided
in paragraph 3 of this Article Eleventh:
(a) any merger or consolidation of the
Corporation with (i) any Interested Stockholder or (ii) any
other corporation (whether or not itself an Interested
Stockholder) that is, or after such merger or consolidation
would be, an Affiliate or Associate of an Interested
Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge,
transfer, or dividend or distribution (other than on a pro
rata basis to all stockholders) or other disposition (in one
transaction or a series of transactions) to, with or from any
Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder of any assets of the Corporation or of
any Subsidiary having an aggregate Fair Market Value of
$40,000,000 or more; or
8
<PAGE> 9
(c) the issuance or transfer by the Corporation
or any Subsidiary (in one transaction or a series of
transactions) to any Interested Stockholder or any Affiliate
or Associate of any Interested Stockholder of any securities
of the Corporation or any Subsidiary in exchange for cash,
securities or other property (or a combination thereof) having
an aggregate Fair Market Value of $40,000,000 or more, other
than the issuance of securities upon the conversion of
convertible securities of the Corporation or any Subsidiary
that were not acquired by such Interested Stockholder (or such
Affiliate or Associate) from the Corporation or a Subsidiary;
or
(d) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder; or
(e) any reclassification of securities (including
any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the Corporation
with any of its Subsidiaries, or any other transaction
(whether or not with or into or otherwise involving any
Interested Stockholder), which in any such case has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class or
series of stock or securities convertible into stock of the
Corporation or any Subsidiary that is directly or indirectly
beneficially owned by any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder; or
(f) any series or combination of transactions
directly or indirectly having the same effect as any of the
foregoing; or
(g) any agreement, contract or other arrangement
providing directly or indirectly for any of the foregoing;
shall not be consummated without (i) the affirmative vote of the holders of at
least 66 2/3 percent of the combined voting power of the then outstanding
shares of stock of all classes and series of the Corporation entitled to vote
generally in the election of directors ('Voting Stock'), and (ii) the
affirmative vote of a majority of the combined voting power of the then
outstanding shares of Voting Stock held by Disinterested Stockholders, in each
case voting together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or by these Articles of Incorporation or
any resolution or resolutions of the Board of Directors adopted pursuant to
Article Fourth of these Articles of Incorporation or in any agreement with any
national securities exchange or otherwise.
2. Definition of 'Business Combination'. The term Business
Combination' as used in this Article Eleventh shall mean any transaction that
is referred to in any one or more of subparagraphs (a) through (g) of paragraph
1 of this Article Eleventh.
9
<PAGE> 10
3. Exceptions to Higher Voting Requirements. The provisions of
paragraph 1 of this Article Eleventh shall not be applicable to any particular
Business Combination, and such Business Combination shall require only such
affirmative vote as is required by law and any other provision of these
Articles of Incorporation and any resolution or resolutions of the Board of
Directors adopted pursuant to Article Fourth of these Articles of
Incorporation, if all the conditions specified in either of the following
subparagraphs (a) or (b) are met:
(a) all the six conditions specified in the following
clauses (i) through (vi) shall have been met:
(i) if the transaction constituting the Business
Combination shall provide for a consideration to be received
by holders of the Common Stock in exchange for all their
shares of the Common Stock, the aggregate amount of the cash
and the Fair Market Value as of the date of the consummation
of the Business Combination of any consideration other than
cash to be received per share by holders of the Common Stock
in such Business Combination shall be at least equal to the
highest of the following:
(A) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid in order to
acquire any shares of the Common Stock beneficially
owned by the Interested Stockholder that were
acquired (x) within the two-year period immediately
prior to the Announcement Date or (y) in the
transaction in which it became an Interested
Stockholder, whichever is higher; and
(B) the Fair Market Value per share of the
Common Stock on the Announcement Date or on the
Determination Date, whichever is higher; and
(ii) if the transaction constituting the Business
Combination shall provide for a consideration to be received
by holders of any class or series of outstanding Voting Stock
other than the Common Stock, the aggregate amount of the cash
and the Fair Market Value as of the date of the consummation
of the Business Combination of any consideration other than
cash to be received per share by holders of shares of such
Voting Stock shall be at least equal to the highest of the
following (it being intended that the requirements of this
clause (a)(ii) shall be required to be met with respect to
every class and series of such outstanding Voting Stock,
whether or not the Interested Stockholder beneficially owns
any shares of a particular class or series of Voting Stock):
(A) (if applicable) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid in
order to acquire any shares of such class or series
of Voting
10
<PAGE> 11
Stock beneficially owned by the Interested
Stockholder that were acquired (x) within the two-
year period immediately prior to the Announcement
Date or (y) in the transaction in which it became an
Interested Stockholder, whichever is higher;
(B) (if applicable) the highest
preferential amount per share to which the holders of
such class or series of Voting Stock are entitled in
the event of any voluntary or involuntary
liquidation, dissolution or winding up of this
corporation; and
(C) the Fair Market Value per share of
such class or series of Voting Stock on the
Announcement Date or on the Determination Date,
whichever is higher; and
(iii) the consideration to be received by holders of
a particular class or series of outstanding Voting Stock
(including the Common Stock) shall be in cash or in the same
form as was previously paid in order to acquire shares of such
class or series of Voting Stock that are beneficially owned by
the Interested Stockholder, and if the Interested Stockholder
beneficially owns shares of any class or series of Voting
Stock that were acquired with varying forms of consideration,
the form of consideration to be received by holders of such
class or series of Voting Stock shall be either cash or the
form used to acquire the largest number of shares of such
class or series of Voting Stock beneficially owned by it; and
(iv) after such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such
Business Combination:
(A) except as approved by a majority of
the Disinterested Directors, there shall have been no
failure to declare and pay at the regular dates
therefor the full amount of any dividends (whether or
not cumulative) payable on any class or series of
stock having a preference over the Common Stock as to
dividends or upon liquidation;
(B) there shall have been no reduction
in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision
of the Common Stock), except as approved by a
majority of the Disinterested Directors, and an
increase in such annual rate of dividends (as
necessary to prevent any such reduction) in the event
of any reclassification (including any reverse stock
split), recapitalization, reorganization or any
similar transaction that has the effect of reducing
the number of outstanding shares of the Common Stock,
unless the failure so to increase such annual rate is
approved by a majority of the Disinterested
Directors; and
11
<PAGE> 12
(C) such Interested Stockholder shall not
have become the beneficial owner of any additional
shares of Voting Stock except as part of the
transaction in which it became an Interested
Stockholder; and
(v) after such Interested Stockholder has become an
Interested Stockholder, such Interested Stockholder shall not
have received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance provided by
the Corporation whether in anticipation of or in connection
with such Business Combination or otherwise; and
(vi) a proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to
public stockholders of the Corporation at least 30 days prior
to the consummation of such Business Combination (whether or
not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions); and/or
(b) such Business Combination shall have been approved by
a majority of the Disinterested Directors.
4. Certain Definitions. For purposes of this Article Eleventh:
(a) A 'person' shall mean any individual, firm, group,
corporation, partnership, trust or other entity or any 'person' or
'group' of persons or entities (as such terms are used in Regulation
13d under the Securities Exchange Act of 1934 (the 'Exchange Act') as
in effect on May 1, 1984).
(b) 'Interested Stockholder' shall mean any person (other than
the Corporation or any Subsidiary) who or that:
(i) is, at the date in question, the beneficial owner
(as hereinafter defined), directly or indirectly, of 20
percent or more of the combined voting power of the then
outstanding shares of Voting Stock; or
(ii) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to the date
in question was the beneficial owner (as hereinafter defined),
directly or indirectly, of 20 percent or more of the combined
voting power of the then outstanding shares of Voting Stock;
or
12
<PAGE> 13
(iii) is an assignee of or has otherwise succeeded to
the beneficial ownership of any shares of Voting Stock that
were at any time within the two-year period immediately prior
to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of
transactions other than a public offering within the meaning
of the Securities Act of 1933.
(c) 'Disinterested Stockholder' shall mean a stockholder
of the Corporation who is not an Interested Stockholder or an
Affiliate or Associate of an Interested Stockholder.
(d) A person shall be a 'beneficial owner' of any Voting
Stock:
(i) as to which such person or any of its Affiliates
or Associates is the beneficial owner (as defined in Rule
13d-3 under the Exchange Act as in effect on May 1, 1984),
directly or indirectly; or
(ii) that such person or any of its Affiliates has
(A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise
of conversion rights, exchange rights, warrants or options, or
otherwise, or (B) the right to vote or to direct the voting of
pursuant to any agreement, arrangement or understanding, or
otherwise; or
(iii) that are beneficially owned, directly or
indirectly, by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting Stock.
(e) For the purposes of determining whether a person is
an Interested Stockholder pursuant to subparagraph (b) of this
paragraph 4, the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned by such person through
application of subparagraph (d) of this paragraph 4 but shall not
include any other shares of Voting Stock that may be issuable to other
persons pursuant to any agreement, arrangement or understanding, or
upon exercise of conversion rights, exchange rights, warrants or
options, or otherwise.
(f) 'Affiliate' and 'Associate' shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Exchange Act
as in effect on May 1, 1984.
(g) 'Subsidiary' shall mean any corporation more than 50
percent of whose outstanding stock having ordinary voting power in the
election of directors is owned by the Corporation, by a Subsidiary or
by the Corporation and one or more Subsidiaries; provided, however,
that for the purposes of the definition of Interested Stockholder set
forth in subparagraph (b) of this paragraph 4, the term 'Subsidiary'
shall mean only a corporation of which a majority of each class of
equity security
13
<PAGE> 14
is owned by the Corporation, by a Subsidiary or by the Corporation and
one or more Subsidiaries.
(h) 'Disinterested Director' shall mean any member of the
Board of Directors of the Corporation who is unaffiliated with, and
not a nominee of, any Interested Stockholder and was a member of the
Board of Directors immediately prior to the time that the Interested
Stockholder became an Interested Stockholder, and any successor to a
Disinterested Director who is unaffiliated with, and not a nominee of,
any Interested Stockholder and who is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors then
on the Board of Directors.
(i) 'Fair Market Value' shall mean: (A) in the case of
stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such stock on
the New York Stock Exchange Composite Tape, or, if such stock is not
quoted on the Composite Tape, on the New York Stock Exchange, or, if
such stock is not listed on such Exchange, on the principal United
States securities exchange registered under the Securities Exchange
Act of 1934 on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing sale price or bid
quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system
then in use, or, if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined
by a majority of the Disinterested Directors in good faith; and (B) in
the case of stock of any class or series that is not traded on any
securities exchange or in the over-the-counter market or in the case
of property other than cash or stock, the fair market value of such
stock or property, as the case may be, on the date in question as
determined by a majority of the Disinterested Directors in good faith.
(j) 'Announcement Date' shall mean the date of first
public announcement of the proposed Business Combination.
(k) 'Determination Date' shall mean the date on which an
Interested Stockholder becomes an Interested Stockholder.
5. Determinations by the Board of Directors. A majority of the
Disinterested Directors of the Corporation shall have the power and duty to
determine, on the basis of information known to them after reasonable inquiry,
all facts necessary to determine compliance with this Article Eleventh,
including, without limitation, (a) whether a person is an Interested
Stockholder, (b) the number of shares of Voting Stock beneficially owned by
any person, (c) whether a person is an Affiliate or Associate of another
person, (d) whether the requirements of paragraph 3 of this Article Eleventh
have been met with respect to any Business Combination, and (e) whether the
assets that are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination
14
<PAGE> 15
has, an aggregate Fair Market Value of $40,000,000 or more, and the good faith
determination of a majority of the Disinterested Directors on such matters
shall be conclusive and binding for all purposes of this Article Eleventh.
6. No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article Eleventh shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
7. Amendments. In addition to any requirement of law and any
other provisions of these Articles of Incorporation or any resolution or
resolutions of the Board of Directors adopted pursuant to Article Fourth of
these Articles of Incorporation (and notwithstanding the fact that a lesser
percentage may be specified by law, these Articles of Incorporation or any such
resolution or resolutions), the affirmative vote of the holders of (i) 66 2/3
percent or more of the combined voting power of the then outstanding shares of
Voting Stock and (ii) the affirmative vote of a majority of the combined voting
power of the then outstanding shares of Voting Stock held by Disinterested
Stockholders, in each case voting together as a single class, shall be required
to amend, alter or repeal, or adopt any provision inconsistent with, this
Article Eleventh.
TWELFTH: Subject to the rights of the holders of the Preferred Stock
or any other class or series of stock that may have a preference over the
Common Stock as to dividends or upon liquidation, any action required or
permitted to be taken by the stockholders of the Corporation must be effected
at a duly called annual or special meeting of stockholders of the Corporation
and may not be effected by any consent in writing by such stockholders. Except
as otherwise required by law and subject to the rights of the holders of the
Preferred Stock or any other class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, special meetings of
stockholders of the Corporation may be called only by the Board of Directors
pursuant to a resolution approved by a majority of the entire Board of
Directors or as otherwise provided in the Bylaws of the Corporation. In
addition to any requirement of law and any other provisions of these Articles
of Incorporation or any resolution or resolutions of the Board of Directors
adopted pursuant to Article Fourth of these Articles of Incorporation (and
notwithstanding the fact that a lesser percentage may be specified by law,
these Articles of Incorporation or any such resolution or resolutions), the
affirmative vote of the holders of 66 2/3 percent or more of the combined
voting power of the then outstanding shares of Voting Stock, voting together as
a single class, shall be required to amend, alter or repeal, or adopt any
provision inconsistent with, this Article Twelfth.
15
<PAGE> 16
IN WITNESS WHEREOF, Centex Corporation has caused its Vice President,
Chief Legal Officer and Secretary and its Associate General Counsel and
Assistant Secretary to execute this Restated Articles of Incorporation of
Centex Corporation on this 23rd day of June 1993.
------------------------------
Raymond G. Smerge
Vice President, Chief Legal
Officer and Secretary
------------------------------
Associate General Counsel and
Assistant Secretary
16
<PAGE> 17
STATE OF TEXAS
COUNTY OF DALLAS
Raymond G. Smerge and James H. Graass, being first duly sworn, depose
say as follows:
That Raymond G. Smerge is Vice President, Chief Legal Officer and
Secretary of Centex Corporation, the corporation mentioned and described in the
foregoing Restated Articles of Incorporation of Centex Corporation; that James
H. Graass is the Associate General Counsel and Assistant Secretary of said
corporation; that said officers were authorized to execute this Certificate by
resolution of the Executive Committee of the Board of Directors of said
corporation duly adopted by unanimous consent of such Executive Committee on
June 23, 1993; and that the foregoing instrument correctly sets forth the
complete text of the Articles of Incorporation of Centex Corporation as amended
to the date hereof.
------------------------------
Raymond G. Smerge
Vice President, Chief Legal
Officer and Secretary
------------------------------
Associate General Counsel and
Assistant Secretary
17
<PAGE> 18
STATE OF TEXAS
COUNTY OF DALLAS
On this 23rd day of June, 1993, personally appeared before me, a
Notary Public, Raymond G. Smerge, Vice President, Chief Legal Officer and
Secretary of Centex Corporation, and James H. Graass, Associate General Counsel
and Assistant Secretary of Centex Corporation, who severally acknowledged that
they executed the above instrument.
--------------------------------------
Notary Public in and for the State of
Texas. My commission expires: 5/14/96
[Seal]
18
<PAGE> 19
CERTIFICATE OF AMENDMENT
OF
RESTATED ARTICLES OF INCORPORATION
* * * * * * *
Pursuant to the provisions of Section 78.390 of the Nevada General
Corporation Law, CENTEX CORPORATION ("Corporation"), a Nevada corporation, by
its Executive Vice President, Secretary and Chief Legal Officer, does hereby
execute this Certificate of Amendment to its Restated Articles of Incorporation
and does hereby certify as follows:
1. On February 4, 1998, the stockholders of the Corporation
adopted an amendment to its Restated Articles of Incorporation whereby Article
Fourth was amended to read in its entirety as follows:
FOURTH: The total number of shares of all classes of stock
which the Corporation is authorized to issue is One Hundred Five
Million (105,000,000). All such shares are to have a par value and
are classified as (i) Five Million (5,000,000) shares of Preferred
Stock ("Preferred Stock"), each share of such stock having such par
value as the Board of Directors of the Corporation may from time to
time designate in the resolutions providing for the issuance thereof,
as hereinafter provided, and (ii) One Hundred Million (100,000,000)
shares of Common Stock (the "Common Stock"), each share of such stock
having a par value of $0.25.
2. The number of shares of the Corporation that were outstanding
at the time of the adoption of the above amendment to the Restated Articles of
Incorporation of the Corporation was 29,690,412; the number of shares that were
entitled to vote thereon was 29,690,412.
<PAGE> 20
3. The number of shares of the Corporation that were voted for
the adoption of the above amendment to the Restated Articles of Incorporation
of the Corporation was 23,825,938; the number of shares that were voted against
such amendment was 242,902.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment on behalf of the Corporation and has caused its corporate seal to be
affixed hereto this 12th day of February 1998.
CENTEX CORPORATION
By:
-----------------------------------
Raymond G. Smerge
Executive Vice President,
Secretary and Chief Legal Officer
[SEAL]
By:
-----------------------------------
Eleanor J. Thompson
Assistant Secretary
* * * * * * *
STATE OF TEXAS }
}
COUNTY OF DALLAS }
On this 12th day of February 1998, personally appeared before me, a
Notary Public, Raymond G. Smerge, Executive Vice President, Chief Legal Officer
and Secretary, and Eleanor J. Thompson, Assistant Secretary, of CENTEX
CORPORATION, who acknowledged that they executed the above instrument.
[SEAL] By:
--------------------------------
Notary Public
My commission expires:
<PAGE> 21
[DEAN HELLER, SECRETARY OF STATE - STATE OF NEVADA, LETTERHEAD]
[STAMP]
[STAMP]
CERTIFICATE OF CORRECTION
(PURSUANT TO NRS 78.0295 AND 80.007)
-REMIT IN DUPLICATE-
1. The name of the CORPORATION for which correction is being made:
Centex Corporation
---------------------------------------------------------------------------
2. Description of the original document for which correction is being made:
Certificate of Amendment of Restated Articles of Incorporation
---------------------------------------------------------------------------
---------------------------------------------------------------------------
3. Filing date of the original document: 02/12/1998.
------------
4. Description of the incorrect statement and the reason it is incorrect or
the manner in which the execution or other formal authentication was
defective: Typographical error -- The words "the first paragraph of" were
omitted from the second line of the first certification between "whereby"
and "Article".
5. Correction of the incorrect statement or defective execution or
authentication:
1. On February 4, 1998, the stockholders of the Corporation adopted
---------------------------------------------------------------------------
an amendment to its Restated Articles of Incorporation whereby the first
---------------------------------------------------------------------------
paragraph of Article Fourth was amended to read in its entirety as
---------------------------------------------------------------------------
follows:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
6. Signature:
Executive Vice President,
Chief Legal Officer, General
/s/ RAYMOND G. SMERGE Counsel and Secretary November 5, 1998
- --------------------- -------------------------------- --------------------
SIGNATURE OF TITLE OF OFFICER DATE
CORPORATE OFFICER
[SEAL]
IMPORTANT: Failure to include any of the above information and remit the proper
fees may cause this filing to be rejected.
<PAGE> 1
EXHIBIT 4.7
CENTEX CORPORATION
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 or other entity which is
a direct or indirect parent or subsidiary (including, without
limitation, partnerships and limited liability companies) of the
Company.
(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 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.
1
<PAGE> 2
(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) "Non-employee Director" -- An individual who satisfies
the requirements of Rule 16b-3 promulgated under the Act.
3. ADMINISTRATION
The Plan shall be administered by a committee (the "Committee")
comprised of two or more Non-employee Directors appointed by the Board from
time to time. The Committee shall (a) select the eligible employees or
directors who are to receive Options or awards of Restricted Stock under the
Plan, (b) determine the type, number, vesting requirements and other features
and conditions of Options or awards of Restricted Stock, (c) interpret the
Plan, and (d) make all other determinations necessary or advisable for the
administration of the Plan. The Committee may adopt such rules or guidelines as
it deems appropriate to implement the Plan. The Committee's determinations
under the Plan shall be final and binding on all persons.
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.
2
<PAGE> 3
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 Committee, 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 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.
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. 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
3
<PAGE> 4
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, 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 424(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
4
<PAGE> 5
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.
(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 or transferee 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.
(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
5
<PAGE> 6
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.
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
6
<PAGE> 7
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 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.
7
<PAGE> 8
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.
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.
8
<PAGE> 9
(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.
(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.
9
<PAGE> 10
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 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 subsection 19(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
10
<PAGE> 11
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.
(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.
11
<PAGE> 12
(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.
(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. A Participant's
election to pay the withholding tax obligation must be 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
12
<PAGE> 13
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 CORPORATION EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Registration Statements on Form S-8 (Registration Nos.
333-28229, 333-28229-01, 333-28229-02, and 2-95271) of our report dated May 8,
1998, which appears at page 43 of Centex Corporation's 1998 Annual Report to
Stockholders, which is incorporated by reference in the Joint Annual Report on
Form 10-K of Centex Corporation, 3333 Holding Corporation, and Centex
Development Company, L.P. for the year ended March 31, 1998, and to all
references to our firm included in this Registration Statement on Form S-8.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas,
February 24, 1999
<PAGE> 1
CENTEX CORPORATION EXHIBIT 24a
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 (and
related reoffer prospectus) relating to the reoffer of all shares of Common
Stock, par value $0.25 per share, of Centex Corporation that are now held or
will be held by affiliates of the Company, which shares were received or will be
received by them pursuant to the exercise of stock options under the Centex
Corporation Amended and Restated 1987 Stock Option Plan and/or the Centex
Corporation Stock Option Plan, together with any and all amendments to such
Registration Statement.
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 26th day of February, 1999.
/s/ ALAN B. COLEMAN
-------------------------------
Alan B. Coleman
Director
Centex Corporation
<PAGE> 2
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 (and
related reoffer prospectus) relating to the reoffer of all shares of Common
Stock, par value $0.25 per share, of Centex Corporation that are now held or
will be held by affiliates of the Company, which shares were received or will be
received by them pursuant to the exercise of stock options under the Centex
Corporation Amended and Restated 1987 Stock Option Plan and/or the Centex
Corporation Stock Option Plan, together with any and all amendments to such
Registration Statement.
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 26th day of February, 1999.
/s/ DAN W. COOK III
-----------------------------
Dan W. Cook III
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 (and
related reoffer prospectus) relating to the reoffer of all shares of Common
Stock, par value $0.25 per share, of Centex Corporation that are now held or
will be held by affiliates of the Company, which shares were received or will be
received by them pursuant to the exercise of stock options under the Centex
Corporation Amended and Restated 1987 Stock Option Plan and/or the Centex
Corporation Stock Option Plan, together with any and all amendments to such
Registration Statement.
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 26th day of February, 1999.
/s/ JUAN L. ELEK
---------------------------------
Juan L. Elek
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 (and
related reoffer prospectus) relating to the reoffer of all shares of Common
Stock, par value $0.25 per share, of Centex Corporation that are now held or
will be held by affiliates of the Company, which shares were received or will be
received by them pursuant to the exercise of stock options under the Centex
Corporation Amended and Restated 1987 Stock Option Plan and/or the Centex
Corporation Stock Option Plan, together with any and all amendments to such
Registration Statement.
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 26th day of February, 1999.
/s/ CLINT W. MURCHISON, III
-----------------------------------
Clint W. Murchison, III
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 (and
related reoffer prospectus) relating to the reoffer of all shares of Common
Stock, par value $0.25 per share, of Centex Corporation that are now held or
will be held by affiliates of the Company, which shares were received or will be
received by them pursuant to the exercise of stock options under the Centex
Corporation Amended and Restated 1987 Stock Option Plan and/or the Centex
Corporation Stock Option Plan, together with any and all amendments to such
Registration Statement.
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 26th day of February, 1999.
/s/ CHARLES H. PISTOR
------------------------------------
Charles H. Pistor
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 (and
related reoffer prospectus) relating to the reoffer of all shares of Common
Stock, par value $0.25 per share, of Centex Corporation that are now held or
will be held by affiliates of the Company, which shares were received or will be
received by them pursuant to the exercise of stock options under the Centex
Corporation Amended and Restated 1987 Stock Option Plan and/or the Centex
Corporation Stock Option Plan, together with any and all amendments to such
Registration Statement.
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 26th day of February, 1999.
/s/ PAUL R. SEEGERS
---------------------------------
Paul R. Seegers
Director
Centex Corporation
<PAGE> 7
CENTEX CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Laurence E. Hirsch and
David W. Quinn, or either of such individuals, 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 (and related reoffer prospectus) relating to the reoffer of all shares of
Common Stock, par value $0.25 per share, of Centex Corporation that are now held
or will be held by affiliates of the Company, which shares were received or will
be received by them pursuant to the exercise of stock options under the Centex
Corporation Amended and Restated 1987 Stock Option Plan and/or the Centex
Corporation Stock Option Plan, together with any and all amendments to such
Registration Statement.
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 26th day of February, 1999.
/s/ PAUL T. STOFFEL
----------------------------------
Paul T. Stoffel
Director
Centex Corporation
<PAGE> 1
3333 HOLDING EXHIBIT 24b
3333 HOLDING CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Richard C. Decker, with
full power of substitution in the premises, 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, Company's Registration Statement on Form
S-8 (and related reoffer prospectus) relating to the reoffer of all shares of
Common Stock, par value $0.25 per share, of Centex Corporation that are now held
or will be held by affiliates of the Company, which shares were received or will
be received by them pursuant to the exercise of stock options under the Centex
Corporation Amended and Restated 1987 Stock Option Plan and/or the Centex
Corporation Stock Option Plan (and corresponding beneficial interests in the
Company's Common Stock), together with any and all amendments to such
Registration Statement.
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 26th day of February, 1999.
/s/ JOSIAH O. LOW, III
-----------------------------------
Josiah O. Low, III
Director
3333 Holding Corporation
<PAGE> 2
3333 HOLDING CORPORATION
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Richard C. Decker, with
full power of substitution in the premises, 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 (and related reoffer prospectus) relating to the reoffer of all shares
of Common Stock, par value $0.25 per share, of Centex Corporation that are now
held or will be held by affiliates of the Company, which shares were received or
will be received by them pursuant to the exercise of stock options under the
Centex Corporation Amended and Restated 1987 Stock Option Plan and/or the Centex
Corporation Stock Option Plan (and corresponding beneficial interests in the
Company's Common Stock), together with any and all amendments to such
Registration Statement.
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 26th day of February, 1999.
/s/ DAVID M. SHERER
-----------------------------
David M. Sherer
Director
3333 Holding Corporation
<PAGE> 1
CENTEX DEVELOPMENT EXHIBIT 4.5
AMENDMENT NO. 1
TO
SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT
OF
CENTEX DEVELOPMENT COMPANY, L.P.
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED PARTNERSHIP
AGREEMENT OF CENTEX DEVELOPMENT COMPANY, L.P. (the "Amendment") is made as
of this 22nd day of July 1998, by and between 3333 Development Corporation, a
Nevada corporation, as the General Partner ("Development"), and Centex Homes, a
Nevada general partnership, as the Limited Partner ("Centex").
WHEREAS, Development and Centex entered into that certain Amended and
Restated Partnership Agreement of Centex Development Company, L.P. (the
"Partnership Agreement") as of the 24th day of February, 1998 with respect to
Centex Development Company, L.P., a Delaware limited partnership (the
"Partnership");
WHEREAS, as of the date hereof, Development is the sole general
partner of the Partnership and Centex owns all of the issued and outstanding
limited partnership interest of the Partnership and is the sole limited partner
of the Partnership;
WHEREAS, Development and Centex are mutually desirous of amending the
Partnership Agreement pursuant to the terms of this Amendment;
NOW, THEREFORE, for and in consideration of the premises set forth
above and the mutual covenants and agreements contained herein, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties hereto, Development and Centex hereby agree as
follows:
1. Pursuant to, and in accordance with, Article XV of the Partnership
Agreement, Section 5.1(a)(i) of the Partnership Agreement is hereby deleted in
its entirety and replaced with the following:
" (i) If there is net income (i.e., if items of income and gain
exceed items of deduction and loss) it shall be allocated to Class
A Unit holders and Class C Unit holders, in the ratio in which,
and to the extent that, cumulative distributions of Preferred
Return are made or accrued through the end of such taxable year;".
2. Except as expressly amended and modified by this Amendment, the
Partnership Agreement shall remain in full force and effect.
- 1 -
<PAGE> 2
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first written above.
GENERAL PARTNER:
3333 DEVELOPMENT CORPORATION,
a Nevada corporation
By: /s/ Richard C. Decker
------------------------------
Richard C. Decker
President and Chief Executive
Officer
LIMITED PARTNER:
CENTEX HOMES,
a Nevada general partnership
By: Centex Real Estate Corporation,
a Nevada general partnership,
Managing Partner
By: /s/ Raymond G. Smerge
-------------------------
Raymond G. Smerge
Vice President and
Secretary
- 2 -
<PAGE> 1
CENTEX DEVELOPMENT EXHIBIT 24c
CENTEX DEVELOPMENT COMPANY, L.P.
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Richard C. Decker, with
full power of substitution in the premises, 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 (and related reoffer prospectus) relating to the reoffer
of all shares of Common Stock, par value $0.25 per share, of Centex Corporation
that are now held or will be held by affiliates of the Company, which shares
were received or will be received by them pursuant to the exercise of stock
options under the Centex Corporation Amended and Restated 1987 Stock Option Plan
and/or the Centex Corporation Stock Option Plan (and corresponding beneficial
interests in the Warrants to purchase the Company's Class B Units), together
with any and all amendments to such Registration Statement.
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 26th day of February, 1999.
/s/ JOSIAH O. LOW, III
--------------------------------
Josiah O. Low, III
Director
Centex Development Company, L.P.
<PAGE> 2
CENTEX DEVELOPMENT COMPANY, L.P.
POWER OF ATTORNEY
THE UNDERSIGNED hereby constitutes and appoints Richard C. Decker, with
full power of substitution in the premises, 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 (and related reoffer prospectus) relating to the reoffer
of all shares of Common Stock, par value $0.25 per share, of Centex Corporation
that are now held or will be held by affiliates of the Company, which shares
were received or will be received by them pursuant to the exercise of stock
options under the Centex Corporation Amended and Restated 1987 Stock Option Plan
and/or the Centex Corporation Stock Option Plan (and corresponding beneficial
interests in the Warrants to purchase the Company's Class B Units), together
with any and all amendments to such Registration Statement.
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 26th day of February, 1999.
/s/ DAVID M. SHERER
--------------------------------
David M. Sherer
Director
Centex Development Company, L.P.
