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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;
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(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
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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.
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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:
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:
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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 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
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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
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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.
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(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
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(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.
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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
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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
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(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
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(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
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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
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
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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
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
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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
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.
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:
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.