EXHIBIT 3.1
DEAN HELLER
SECRETARY OF STATE
[SEAL] 204 NORTH CARSON STREET, SUITE 1
CARSON CITY, NEVADA 89701-4299
(775) 684 5708 FILED# C2323-68
WEBSITE: SECRETARYOFSTATE.BIZ
CERTIFICATE OF AMENDMENT FEB 25 2004
(PURSUANT TO NRS 78.385 and 78.390) IN THE OFFICE OF
/s/ Dean Heller
DEAN HELLER, SECRETARY OF STATE.
IMPORTANT: READ ATTACHED INSTRUCTIONS BEFORE COMPLETING FORM.
ABOVE SPACE IS FOR OFFICE USE ONLY
CERTIFICATE OF AMENDMENT TO ARTICLES OF INCORPORATION
FOR NEVADA PROFIT CORPORATIONS
(PURSUANT TO NRS 78.385 AND 78.390 - AFTER ISSUANCE OF STOCK)
1. Name of corporation:
Centex Corporation
2. The articles have been amended as follows (provide article numbers, if
available):
Article Fourth of the Restated Articles of Incorporation has been 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 Three Hundred Five Million (305,000,000). All such
shares are to have 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) Three Hundred Million (300,000,000) shares of
Common Stock (the "Common Stock"), each share of such stock having par value of
$0.25.
3. The vote by which the stockholders holding shares in the corporation
entitling them to exercise at least a majority of the voting power, or such
greater proportion of the voting power as may be required in the case of a vote
by classes or series, or as may be required by the provisions of the * articles
of incorporation have voted in favor of the amendment is: Majority
4. Effective date of filing (optional): __________________________________
(must not be later than 90 days
after the certificate is filed)
5. Officer Signature (required): /s/ Raymond G. Smerge Exec. Vice President,
Chief Legal Officer and Secretary
* If any proposed amendment would alter or change any preference or any relative
or other right given to any class or series of outstanding shares, then the
amendment must be approved by the vote, In addition to the affirmative vote
otherwise required, of the holders of shares representing a majority of the
voting power of each class or series affected by the amendment regardless of
limitations or restrictions on the voting power thereof.
IMPORTANT: Failure to include any of the above information and submit the proper
fees may cause this filing to be rejected.
THIS FORM MUST BE ACCOMPANIED NEVADA SECRETARY OF STATE AM 78,385 AMEND 2003
BY APPROPRIATE FEES. REVISED ON: 11/03/03
SEE ATTACHED FEE SCHEDULE.
STATE OF NEVADA
Secretary of State
I hereby certify that this is a true and
complete copy of the document as filed in
this office.
FEB 25 2004
By /s/ Dean Heller
-------------------------------------
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
CERTIFICATE OF AMENDMENT
OF
RESTATED ARTICLES OF INCORPORATION
FEB 12 1998
No C2323-68
/s/ Dean Heller
DEAN HELLER, SECRETARY OF STATE
*******
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.
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: /s/ Raymond G. Smerge
----------------------------------
Raymond G. Smerge
Executive Vice President,
Secretary and Chief Legal Officer
[SEAL OF CENTEX CORPORATION]
By: /s/ Eleanor J. Thompson
-----------------------------------
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: /s/ Pam Burton
----------------------------------
Notary Public
My commission expires:
DEAN HELLER STATE OF NEVADA TELEPHONE 702.687.5203
SECRETARY OF STATE OFFICE OF THE SECRETARY OF STATE FAX 702.687.3471
101 N. CARSON ST., STE. 3 WEB SITE http://sos.state.nv.us
CARSON CITY, NEVADA 89701-4786 FILING FEE: $
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
NOV 06 1998
No. C2323-68
/s/ Dean Heller
DEAN HELLER, SECRETARY OF STATE
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
By: /s/ Raymond G. Smerge Counsel and Secretary November 5, 1998
-------------------------- ----------------------------- ----------------
SIGNATURE OF CORPORATE TITLE OF OFFICER DATE
OFFICER
[SEAL]
IMPORTANT: Failure to include any of the above information and remit the proper
fees may cause this filing to be rejected.
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
JUN 25 1993
RESTATED
ARTICLES OF INCORPORATION
OF
CENTEX CORPORATION
CHERYL A. LAU SECRETARY OF STATE
/s/ Cheryl A. Lau
No. 2323-68
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,
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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;
(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
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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 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
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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
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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.
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
5
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:
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Name Address
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
SIXTH: The names and post office addresses of each of the incorporators
signing the Articles of Incorporation are as follows:
Name Address
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
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
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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 himself or any firm or
corporation,
8
association, trust or organization in which or with which he may be in anywise
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
9
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 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
10
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.
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(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.
(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.
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(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
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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
(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
14
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.
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
15
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
16
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 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
17
(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
18
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
(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
19
(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
(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.
20
(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
21
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 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
22
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
23
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 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
24
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.
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.
By: /s/ RAYMOND G. SMERGE
-----------------------------------
Raymond G. Smerge
Vice President, Chief Legal Officer
and Secretary
By: /s/ JAMES H. GRAASS
-----------------------------------
James H. Graass
Associate General Counsel and
Assistant Secretary
25
STATE OF TEXAS }
}
COUNTY OF DALLAS }
Raymond G. Smerge and James H. Graass, being first duly sworn, depose and
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.
By: /s/ Raymond G. Smerge
-----------------------------------
Raymond G. Smerge
Vice President, Chief Legal Officer
and Secretary
By: /s/ James H. Graass
-----------------------------------
James H. Graass
Associate General Counsel and
Assistant Secretary
26
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.
[SEAL]
By: /s/ Betty Newman
---------------------------------------
Notary Public in and for the State of
Texas. My commission expires:
5/14/96
27
THIS FORM SHOULD ACCOMPANY AMENDED AND/OR RESTATED
ARTICLES OF INCORPORATION FOR A NEVADA CORPORATION
1. Name of corporation: Centex Corporation
2. Date of adoption of Amended and/or Restated Articles: June 23, 1993
3. If the articles were amended, please indicate what changes have been made:
None
(a) Was there a name change? Yes [ ] No [x]. If yes, what is the new name?
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(b) Did you change your resident agent? Yes [ ] No [x]. If yes, please
indicate new address:
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(c) Did you change the purposes? Yes [ ] No [x] Did you add Banking? [ ].
Gaming? [ ], Insurance? [ ], None of these? [x].
(d) Did you change the capital stock? Yes [ ] No [x]. If yes, what is the
new capital stock?
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(e) Did you change the directors? Yes [ ] No [x]. If yes, indicate the
change:------------------------------------------------------------------
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(f) Did you add the directors liability provision? Yes [ ] No [x].
(g) Did you change the period of existence? Yes [ ] No [x] If yes, what is
the new existence?
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(h) If none of the above apply, and you have amended or modified the
articles, how did you change your [ILLEGIBLE]----------------------------
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Restatement of information currently on record
By /s/ James H. Graass
----------------------------
Name: James H. Graass
Title: Assistant Secretary
Date: June 24, 1993
FILED
IN THE OFFICE
SECRETARY OF STATE
STATE OF NEVADA
JUN 25 1993
2323-68
CHERYL A. LAU SECRETARY OF STATE
STATE OF Texas }
} ss.
COUNTY OF Dallas }
On June 24, 1993 personally appeared before me, a Notary Public, James H.
Graass, who acknowledged that [ILLEGIBLE] executed the above document.
[SEAL]
By: /s/ Betty Newman
------------------------------------------
Betty Newman, Notary Public in and for the
State of Texas. My commission expires:
May 14, 1996
RECEIVED
JUN 25 1993
[ILLEGIBLE]
Secretary of State