As
filed with the Securities and Exchange Commission on November 6,
2008
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Registration
No. 333-
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SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________________
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
___________________
Centex
Corporation
Centex
Trust I
Centex
Trust II
(Exact
name of registrants as specified in their charters)
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Nevada
Delaware
Delaware
(States
or other jurisdictions of incorporation or organization)
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75-0778259
75-6588651
75-6588652
(I.R.S.
Employer Identification Number)
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2728
North Harwood
Dallas,
Texas 75201
(214)
981-5000
(Address,
including zip code, and telephone number,
including
area code, of registrants’ principal executive offices)
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Brian
J. Woram
Senior
Vice President,
Chief
Legal Officer and
General
Counsel
Centex
Corporation
2728
North Harwood
Dallas,
Texas 75201
(214)
981-5000
(Name,
address, including zip code, and telephone number, including area code, of
agent for service)
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___________________
Copy
to:
James
R. Doty
Geoffrey
L. Newton
Baker
Botts L.L.P.
2001
Ross Avenue
Dallas,
Texas 75201
(214)
953-6500
___________________
Approximate
date of commencement of proposed sale to the public: From time to time after
this Registration Statement becomes effective.
If the
only securities being registered on this Form are to be offered pursuant to
dividend or interest reinvestment plans, please check the following
box. £
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. T
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. £
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. x
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. £
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Large
accelerated filer T
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Accelerated
filer £
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Non-accelerated
filer £
(Do
not check if a smaller reporting company)
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Smaller
reporting company £
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___________________
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities
to
be Registered (1)
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Amount
to be
Registered
(2) (3)
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Proposed
Maximum
Aggregate
Offering
Price
(4)
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Amount
of
Registration
Fee
(5)
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Senior
Debt Securities and Subordinated Debt Securities of Centex
Corporation
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Common
Stock, par value $.25 per share, of Centex Corporation
(3)
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Preferred
Stock of Centex Corporation (3)
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Depositary
Shares of Centex Corporation (3) (6)
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Warrants
of Centex Corporation
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Subscription
Rights to Purchase Common Stock or Preferred Stock of Centex
Corporation
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Stock
Purchase Contracts of Centex Corporation (3)
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Stock
Purchase Units of Centex Corporation (3) (7)
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Junior
Subordinated Debt Securities of Centex Corporation for issuance directly
to Centex Trust I and Centex Trust II
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Trust
Preferred Securities of Centex Trust I and Centex Trust II
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Guarantees
of Trust Preferred Securities of Centex Trust I and Centex Trust
II
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(1)
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Securities
registered hereunder may be sold separately, together, or in units with
other securities registered hereby or other
securities.
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(2)
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There
is being registered hereunder such indeterminate number or amount of
senior and subordinated debt securities, common stock, preferred stock,
depositary shares, warrants, subscription rights, stock purchase
contracts, stock purchase units and junior subordinated debt securities of
Centex Corporation, and trust preferred securities of Centex Trust I and
Centex Trust II as may from time to time be issued at indeterminate
prices. Junior subordinated debt securities may be issued and
sold to Centex Trust I and Centex Trust II, in which event such debt
securities may later be distributed to the holders of trust preferred
securities upon a dissolution of Centex Trust I and Centex Trust II and
the distribution of their assets. Centex Corporation is also
registering under this registration statement all guarantees and other
obligations that it may have with respect to trust preferred securities
that may be issued by Centex Trust I and Centex Trust II. No
separate consideration will be received for the guarantees or any other
such obligations.
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(3)
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In
addition to any common stock, preferred stock, or depositary shares that
may be issued directly under this registration statement, there are being
registered hereunder an indeterminate number of shares of common stock,
preferred stock and depositary shares as may be issued pursuant to
anti-dilution provisions of registered securities, or upon exercise,
conversion or exchange of debt securities, preferred stock, depositary
shares, warrants or subscription rights, in accordance with the terms of
such registered securities, as the case may be. Separate
consideration may or may not be received for any shares of common stock,
preferred stock or depositary shares so issued upon exercise, conversion
or exchange. There is also being registered hereunder an
indeterminate number of shares of common stock or other
securities as may be issued upon settlement of stock purchase contracts or
stock purchase units, as the case may
be.
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(4)
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In
accordance with Rule 429 under the Securities Act, the prospectus filed as
a part of this registration statement also relates to $750 million of
unsold securities previously registered under Registration Statement No.
333-117470 (which includes $500 million of unsold senior medium-term
notes, series F and subordinated medium-term notes, series
F).
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(5)
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In
accordance with Rules 456(b) and 457(r), the registrant is deferring
payment of all of the registration fee, except for $95,025 that was
previously paid with respect to unsold securities previously registered
with the Securities and Exchange Commission on July 19, 2004 by Centex
Corporation on Form S-3 (No.
333-117470).
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(6)
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If
Centex Corporation elects to offer to the public fractional interests in
debt securities or shares of preferred stock registered hereunder,
depositary receipts will be distributed to those persons purchasing such
fractional interests and debt securities or shares of preferred stock will
be issued to the depositary under the deposit
agreement.
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(7)
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Each
stock purchase unit consists of (a) a stock purchase contract, under which
the holder, upon settlement, will purchase an indeterminate number of
shares of Centex common stock and (b) either a beneficial interest in
trust preferred securities of Centex Trust I or Centex Trust II, debt
securities of Centex Corporation or debt obligations of third parties,
including U.S. Treasury securities. Each beneficial interest
will be pledged to secure the obligation of such holder to purchase such
shares of common stock. No separate consideration will be
received for the stock purchase
contracts.
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EXPLANATORY
NOTE
The
registration statement contains two forms of prospectuses to be used in
connection with offerings of the following securities:
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(1)
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Debt
securities (consisting of senior debt securities and subordinated debt
securities), common stock, preferred stock, depositary shares, warrants,
subscription rights, stock purchase contracts and stock purchase units of
Centex Corporation.
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(2)
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Trust
preferred securities of Centex Trust I or Centex Trust II, junior
subordinated debt securities, common stock, stock purchase contracts and
stock purchase units of Centex Corporation and guarantees by Centex
Corporation of trust preferred securities that may be issued by Centex
Trust I and Centex Trust II.
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Under the
shelf process, we may offer any combination of the securities described in these
two prospectuses in one or more offerings at unspecified aggregate initial
offering prices.
PROSPECTUS
Centex
Corporation
Senior
Debt Securities
Subordinated Debt Securities
Common
Stock
Preferred
Stock
Depositary
Shares
Warrants
Subscription
Rights
Stock
Purchase Contracts
Stock
Purchase Units
____________
By this
prospectus, we may offer from time to time one or more of the securities
described in this prospectus separately or together in any
combination.
We will
provide the specific terms of any securities to be offered in a supplement to
this prospectus. A prospectus supplement may also add, change or
update information contained in this prospectus. You should read this
prospectus and any applicable prospectus supplement carefully before you
invest. We may offer and sell these securities to or through one or
more agents, underwriters, dealers or other third parties or directly to one or
more purchasers on a continuous or delayed basis.
Our
common stock is listed on the New York Stock Exchange under the trading symbol
“CTX.”
____________
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
_____________
The date
of this prospectus is November 6, 2008.
1
TABLE OF CONTENTS
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This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (the “SEC”) utilizing a “shelf” registration
process. The registration statement also includes a prospectus under
which Centex Trust I and Centex Trust II, two of our subsidiaries, may offer
from time to time trust preferred securities guaranteed by us, and we may offer
our related junior subordinated debt securities and our stock purchase contracts
or stock purchase units. Under the shelf process, we may offer any
combination of the securities described in these two prospectuses in one or more
offerings. This prospectus provides you with a general description of
the senior debt securities, subordinated debt securities, common stock,
preferred stock, depositary shares, warrants, subscription rights to purchase
common stock or preferred stock, stock purchase contracts and stock purchase
units we may offer. Each time we use this prospectus to offer these
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. If
there is any inconsistency between the information in this prospectus and any
applicable prospectus supplement, you should rely on the information in the
applicable prospectus supplement. Please carefully read this
prospectus and the prospectus supplement together with the additional
information described under the heading “Where You Can Find More
Information.”
Through
its various subsidiaries, Centex Corporation does business primarily in
residential construction and related activities, including mortgage
financing. Any reference in this prospectus to we, us, Centex or
our company includes Centex Corporation and its subsidiary companies, unless the
context requires otherwise. We currently operate in two principal
lines of business:
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Home
Building
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Financial
Services
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Home
Building
Our Home
Building operations consist of constructing and selling detached and attached
single-family homes. The land used for the construction of our homes is acquired
through the purchase of finished or partially finished lots and through the
purchase of raw land that must be developed. In fiscal year 2008, approximately
80% of the homes closed were single-family, detached homes.
Financial
Services
Our
Financial Services operations include mortgage lending and other related
services for purchasers of homes sold by our homebuilding operations, title
agency services and the sale of title insurance.
Other
We
include corporate general and administrative expense, including Home Building
corporate-related general and administrative expense and interest income, in our
Other segment.
Discontinued
Operations and Organizational Changes
In September 2008, we sold
our property and casualty insurance agency operations, which had previously been
included in our Financial Services segment. Historical
operations of our property and casualty insurance operations are not material to
our financial performance and, accordingly, have not been reclassified to
discontinued operations.
In April
2008, we sold our home services operations, which had previously been included
in our Other segment. We now report the historical financial results
of the home services operations as a discontinued operation.
In March
2007, we sold our construction services operations, which had previously
comprised our Construction Services segment. We now report the
historical financial results of the construction services operations as a
discontinued operation.
In July
2006, we sold our sub-prime home equity lending operations, which had previously
been included in the Financial Services segment. We now report the
historical financial results of the sub-prime home equity lending operations as
a discontinued operation.
In
September 2005, we sold our international homebuilding operations, which had
previously been included in the Home Building segment. We now report
the historical financial results of the international homebuilding operations as
a discontinued operation.
Prior to
February 2004, the common stock of 3333 Holding Corporation, which we refer to
as Holding, and warrants to purchase limited partnership interests in Centex
Development Company, L.P., which we refer to as CDC, were traded in tandem with
our common stock. We held an ownership interest in CDC, which we
reported on the equity method of accounting as a part of our former investment
real estate business segment. Neither Holding nor CDC were
consolidated in our financial statements. The operations of CDC
included homebuilding operations in the United Kingdom. In February
2004, we acquired Holding and CDC through merger transactions, and the tandem
trading arrangement was terminated. As a result of the merger, the
international homebuilding operations of CDC were included in our Home Building
segment until the sale of our international homebuilding operations in September
2005.
Prior to
January 2004, we were also engaged in the construction products business through
our majority equity interest in Centex Construction Products, Inc. (now known as
Eagle Materials Inc.), which we refer to as Construction Products. On
January 30, 2004, we spun off to our stockholders our entire equity interest in
Construction Products. We now report the historical financial results
of Construction Products as a discontinued operation.
In
June 2003, we spun off to our stockholders substantially all of our manufactured
housing operations, which had previously been included in our Other
segment. We now report the historical financial results of
manufactured housing operations as a discontinued operation.
Our
principal executive office is located at 2728 N. Harwood Street, Dallas, Texas
75201, and our telephone number is (214) 981-5000.
WHERE YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC’s
public reference room at 100 F Street, N.E., Washington, D.C.
20549. Our SEC filings are also available to the public over the
Internet at the SEC’s web site at http://www.sec.gov. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
room.
This
prospectus is part of a registration statement we have filed with the SEC
relating to the securities we may offer. As permitted by SEC rules,
this prospectus does not contain all of the information we have included in the
registration statement and the accompanying exhibits and schedules we file with
the SEC. You may refer to the registration statement, the exhibits
and schedules for more information about us and our securities. The
registration statement, exhibits and schedules are available at the SEC’s public
reference room or through its web site.
The SEC
allows us to “incorporate by reference” the information we file with them, which
means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We
incorporate by reference each of the following (except to the extent that
portions of any Current Report on Form 8-K are furnished and deemed not to be
filed):
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our
Annual Report on Form 10-K for the year ended March 31,
2008;
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our
Quarterly Reports on Form 10-Q for the quarters ended June 30, 2008 and
September 30, 2008;
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our
Current Reports on Form 8-K dated January 29, 2008, January 31, 2008,
February 19, 2008, April 1, 2008, April 30, 2008, May 13, 2008, May 22,
2008, July 15, 2008, July 29, 2008, October 1, 2008, October 14, 2008 and
October 28, 2008; and
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the
description of our common stock, par value $0.25 per share, contained in
our Registration Statement on Form 8-A dated October 28, 1971 and Form 8
dated November 11, 1971, as such forms may be amended to update such
description.
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We also
incorporate by reference any future filings we may make with the SEC under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
we sell all of the securities, with the exception of any documents furnished and
deemed not to be filed.
You may
request a copy of these filings at no cost, by contacting our Corporate
Communications office at (214) 981-6503; by writing to Centex Corporation,
Investor Relations, P. O. Box 199000, Dallas, Texas 75219; or via email at
ir@centex.com. In addition, all filings with the SEC, news releases
and quarterly earnings announcements, including live audio and replays of recent
quarterly earnings webcasts, can be accessed free of charge on our web site
(www.centex.com). We make our Annual Report on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those
reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange
Act available on our web site as soon as reasonably practicable after we
electronically file the material with, or furnish it to, the SEC. To
retrieve any of this information, go to www.centex.com, select “Investors” and
select “SEC Filings.” The reference to our web site is merely
intended to suggest where additional information may be obtained by investors,
and, except as specifically stated above, the materials and other information
presented on our web site are not incorporated in and should not otherwise be
considered part of this prospectus.
You
should rely only on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted.
A WARNING ABOUT FORWARD-LOOKING STATEMENTS
Various
sections contained or incorporated by reference in this prospectus and the
accompanying prospectus supplement include forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, Section 21E of the
Securities Exchange Act of 1934 and the Private Securities Litigation Reform Act
of 1995. Forward-looking statements may be identified by the context
of the statement and generally arise when we are discussing our beliefs,
estimates or expectations. These statements are not historical facts
or guarantees of future performance but instead represent only our belief at the
time the statements were made regarding future events, which are subject to
significant risks, uncertainties and other factors, many of which are outside of
our control. Actual results and outcomes may differ materially from
what we express or forecast in these forward-looking statements. All
forward-looking statements made in this prospectus are made as of the date
hereof and all forward-looking statements made in any prospectus supplement are
made as of the date thereof, and the risk that actual results will
differ materially from expectations expressed in this prospectus and any
prospectus supplement will increase with the passage of time. We
undertake no duty to update any forward-looking statement to reflect future
events or changes in our expectations.
A
discussion of risks and uncertainties that could cause actual results and events
to differ materially from our forward looking statements is included in Item 1A
of our Annual Report on Form 10-K for the fiscal year ended March 31, 2008
(which is incorporated into this prospectus and any applicable prospectus
supplement by reference) and updated discussions of such risks and uncertainties
may be included in our reports for subsequent periods. See “Where You
Can Find More Information” for information about how to obtain copies of these
reports. In addition, please see the risk factors described in any
applicable prospectus supplement.
Except as
otherwise provided in the related prospectus supplement, we will use the net
proceeds from the sale of the offered securities for general corporate
purposes. These purposes may include any one or more of the
following:
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repayments
or refinancing of debt;
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working
capital;
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capital
expenditures;
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acquisitions;
or
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repurchases
or redemption of securities.
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RATIO OF EARNINGS TO FIXED CHARGES
The
following table sets forth the ratio of earnings to fixed charges for the
periods indicated:
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Six Months Ended
September 30,
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Fiscal Years Ended March 31, (1)
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2008
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2007
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2008
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2007
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2006
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2005
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2004
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Total
Enterprise
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0.0 | x | 0.0 | x | 0.0 | x | 1.30 | x | 6.68 | x | 6.71 | x | 6.43 | x | ||||||||||||||
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Coverage
Deficiency
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$ | 229,565 | $ | 1,207,003 | $ | 2,693,532 | ||||||||||||||||||||||
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Total
Enterprise (with Financial Services operations reflected on the equity
method)
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0.0 | x | 0.0 | x | 0.0 | x | 1.12 | x | 7.88 | x | 7.21 | x | 6.21 | x | ||||||||||||||
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Coverage
Deficiency
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$ | 191,818 | $ | 1,168,719 | $ | 2,556,712 | ||||||||||||||||||||||
________________
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(1)
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The
ratios presented in this table have been adjusted to reflect our former
home services operations (sold in April 2008), construction services
operations (sold in March 2007), sub-prime home equity lending operations
(sold in July 2006), international homebuilding operations (sold in
September 2005), construction products operations (spun off in January
2004) and manufactured housing operations (spun off in June 2003) as
discontinued operations.
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These
computations include Centex Corporation and, except as otherwise noted, our
subsidiaries, and 50% or less owned companies. For these ratios,
fixed charges include:
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interest
expense and amortization of debt discount;
and
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an
interest factor attributable to
rentals.
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Earnings
include the following components:
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earnings
from continuing operations before income taxes, cumulative effect of a
change in accounting principle and minority interests in the income of
consolidated subsidiaries, and adjusted for undistributed income and loss
from equity investments;
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interest
capitalized during the period;
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fixed
charges as defined above, but excluding interest capitalized;
and
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amortization
of interest capitalized.
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To
calculate the ratio of earnings to fixed charges or coverage deficiencies, as
applicable, with Financial Services operations reflected on the equity method,
the applicable interest expense, including an interest factor attributable to
rentals, was deducted from the fixed charges and the applicable earnings
(loss) were deducted from the earnings (loss) amount. The
amount of interest expense, including an interest factor attributable to
rentals, deducted in each period was approximately $57.0 million, $94.8 million,
$68.8 million, $34.7 million and $24.9 million for the years ended March 31,
2008, 2007, 2006, 2005, and 2004, and $9.1 and $39.3 million for the six months
ended September 30, 2008 and 2007. The amount of earnings (loss)
deducted in each period was approximately $(136.8) million, $87.1 million, $87.9
million, $98.4 million, and $169.5 million for the years ended March 31, 2008,
2007, 2006, 2005, and 2004, and $(37.7) million and $(38.3) million for the six
months ended September 30, 2008 and 2007.
The
ratios in the table above with Financial Services operations reflected on the
equity method are presented only to provide investors an alternative method of
measuring our ability to utilize earnings from our other business segments to
cover our fixed charges related to these business segments. The
principal reasons why we present these computations are as follows:
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our
Financial Services subsidiaries operate in a distinctly different
financial environment that generally requires less equity to support their
higher debt levels compared to the operations of our other
subsidiaries;
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our
Financial Services subsidiaries have structured their financing programs
substantially on a stand-alone basis;
and
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Centex
Corporation has limited obligations with respect to the indebtedness of
our Financial Services
subsidiaries.
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Management
uses this information in its financial and strategic planning. We
also use this presentation to allow investors to compare us to homebuilders that
do not have financial services operations.
DESCRIPTION OF DEBT SECURITIES
Any debt
securities that we offer will be our direct unsecured general
obligations. These debt securities will be either senior debt
securities or subordinated debt securities and will be issued under one or more
separate indentures between us and U.S. Bank National Association, as
trustee. A debt security is considered “senior” or “subordinated”
depending on how it ranks in relation to our other debt. Senior debt
securities will generally rank equal to our other senior debt and unsubordinated
debt. Holders of our subordinated debt securities will only be
entitled to payment after we pay our senior debt, including our senior debt
securities.
Any
senior debt securities that we offer will be issued under a senior indenture and
subordinated debt securities will be issued under a subordinated
indenture. Each indenture will be subject to, and governed by, the
Trust Indenture Act of 1939, as amended.
We have
summarized the material provisions of the indentures in this section, but this
is only a summary. The senior indenture and the subordinated
indenture have been filed with the SEC and are incorporated by reference in our
registration statement that contains this prospectus. See “Where You
Can Find More Information.” You should read the indentures for
provisions that may be important to you. You should review the
applicable indenture for additional information before you buy any debt
securities. Capitalized terms used in the following summary have the
meanings specified in the indentures unless otherwise defined
below.
General
Information About the Debt Securities
Because
we are a holding company and all operations are conducted by our subsidiaries,
holders of our debt securities will generally have a junior position to claims
of creditors and certain security holders of our subsidiaries, including trade
creditors, debt holders, secured creditors, taxing authorities, guarantee
holders and any preferred stockholders. Certain of our operating
subsidiaries, principally our Financial Services operations, have ongoing
corporate debt programs used to finance their business activities. As
of September 30, 2008, our subsidiaries had approximately $315.5 million
principal amount of outstanding debt (including certain guaranteed debt of our
joint ventures). Moreover, our ability to pay principal and interest
on our debt securities is, to a large extent, dependent upon our receiving
dividends, interest or other amounts from our subsidiaries. The
indentures under which the debt securities are to be issued do not contain any
limitation on our ability to incur additional debt or on our subsidiaries’
ability to incur additional debt to us or to unaffiliated third
parties. In addition, we borrow funds from and lend funds to our
subsidiaries from time to time to manage our working capital needs and for other
general corporate purposes. Our indebtedness to our subsidiaries will
rank equally in right of payment to our senior debt securities and senior in
right of payment to our subordinated debt securities.
A
prospectus supplement and a supplemental indenture relating to any series of
debt securities being offered will include specific terms relating to the
offering. These terms will include some or all of the
following:
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the
title, type and amount of the debt
securities;
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whether
the debt securities are senior or subordinated debt
securities;
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the
total principal amount and priority of the debt
securities;
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the
percentage of the principal amount at which the debt securities will be
issued and any payments due if the maturity of the debt securities is
accelerated;
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the
dates on which the principal of the debt securities will be
payable;
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the
interest rate which the debt securities will bear and the interest payment
dates for the debt securities;
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any
optional or mandatory redemption
provisions;
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any
sinking fund or other provisions that would obligate us to repurchase or
otherwise redeem the debt
securities;
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any
index used to determine the amount of payments of principal of and any
premium, if any, and interest on the debt securities and the manner in
which the amounts will be
determined;
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the
terms of any right to convert or exchange debt securities into or for
shares of our common stock or other securities or
property;
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any
provisions granting special rights to holders when a specified event
occurs;
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any
changes to or additional events of default or
covenants;
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any
special tax implications of the debt securities, including provisions for
original issue discount securities, if offered;
and
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any
other terms of the debt securities.
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None of
the indentures limits the amount of debt securities that may be
issued. Each indenture allows debt securities to be issued up to the
principal amount that may be authorized by us and may be in any currency or
currency unit designated by us.
Debt
securities of a series may be issued in registered, bearer, coupon or global
form.
We may
issue debt securities at a price less than the stated principal amount payable
upon maturity. We refer to these securities as original issue
discount securities. These securities provide that upon redemption or
acceleration of the stated maturity, an amount less than the amount payable upon
the stated maturity, determined in accordance with the terms of the debt
securities, will become due and payable. Specific United States
federal income tax considerations applicable to original issue discount
securities will be described in any applicable prospectus
supplement.
In
addition, specific United States federal income tax or other considerations
applicable to any debt securities denominated other than in United States
dollars, and to any debt securities which provide for application of an index to
determine principal and interest, will be described in any applicable prospectus
supplement.
Covenants
Included in the Indentures
Under the
indentures, we will:
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pay
the principal, interest and any premium on the debt securities when
due;
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maintain
a place of payment;
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deliver
a report to the trustee at the end of each fiscal year reviewing our
obligations under the indentures;
and
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deposit
sufficient funds with any paying agent on or before the due date for any
principal, interest or premium.
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Payment
of Principal, Interest and Premium; Transfer of Securities
Unless we
designate otherwise, we will pay principal, interest and any premium on fully
registered securities in Dallas, Texas. We will make payments by
check mailed to the persons in whose names the debt securities are registered on
days specified in the indentures or any prospectus supplement. We
will make debt securities payments in other forms at a place we designate and
specify in a prospectus supplement. You may transfer or exchange
fully registered securities at the corporate trust office of the trustee or at
any other office or agency maintained by us for such purposes, without having to
pay any service charge except for any tax or governmental charge.
Specific
Characteristics of Our Debt Securities
Senior
Debt Securities
Generally,
the senior debt securities issued under the senior indenture will rank equally
with all of our other senior debt and unsubordinated debt. All series
of senior debt securities issued under the senior indenture will rank equally in
right of payment with each other and with our other senior debt. Any additional
senior debt securities we may issue will rank equally in right of payment with
the senior debt securities offered and sold under this prospectus and the
related prospectus supplement. Further, the senior indenture does not
prohibit us from issuing additional senior debt securities. Any
senior debt securities issued pursuant to the senior indenture will be senior in
right of payment to our subordinated debt securities.
Subordinated
Debt Securities
The
subordinated debt securities that may be offered will have a junior position to
all of our senior debt. Under the subordinated indenture, payment of
the principal of, interest and any premium on the subordinated debt securities
will generally be subordinated and junior in right of payment to the prior
payment in full of all senior debt.
Except in
certain circumstances, the subordinated indenture prohibits us from making any
payment of principal of, premium, if any, or interest on, or sinking fund
requirements for, any subordinated debt securities:
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if
we fail to pay the principal of, interest, any premium or any other
amounts on any senior debt when due;
or
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if
there is any default relating to certain senior debt beyond the period of
grace, unless and until the default on the senior debt is cured or
waived.
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The
subordinated indenture does not limit the amount of senior debt that we may
incur. All series of subordinated debt securities that may be offered
will rank equally in right of payment with each other and with any other
subordinated debt that ranks on a parity with the subordinated debt
securities.
Except in
certain circumstances, upon any distribution of our assets in connection with
any dissolution, winding up, liquidation, reorganization, bankruptcy or other
similar proceeding relative to us or our property, the holders of all senior
debt will first be entitled to receive payment in full of the principal of and
premium, if any, and interest due on the senior debt before the holders of any
subordinated debt securities are entitled to receive any payment of the
principal of and premium, if any, or interest on any subordinated debt
securities. Because of this subordination, if we become insolvent,
our creditors who are not holders of senior debt may recover less, ratably, than
holders of senior debt.
Under the
subordinated indenture, “senior indebtedness” of Centex Corporation includes (1)
indebtedness of Centex for borrowed money (other than the subordinated debt
securities issued under the subordinated indenture), any guarantee by Centex of
indebtedness of another person for borrowed money, capitalized lease obligations
of Centex, indebtedness under any performance or payment bond issued in
connection with any construction contract to which Centex is or was a party and
indebtedness incurred or guaranteed by Centex in connection with the acquisition
of any property, asset or business, unless, in each such case, it is provided
that such indebtedness or obligation ranks on a parity with or is subordinated
to the subordinated debt securities, and (2) any other liability or obligation
of Centex that, when created or incurred, is specifically designated as senior
indebtedness with respect to the subordinated debt securities. As
noted above, any borrowings by Centex from its subsidiaries will be included
within the definition of senior indebtedness. The aggregate principal
amount of Centex’s senior indebtedness at September 30, 2008 was approximately
$3.1 billion. Centex had no subordinated debt outstanding at
September 30, 2008.
Global
Certificates
The debt
securities of a series may be issued in whole or in part in the form of one or
more global certificates that will be deposited with a depository identified in
a prospectus supplement.
The
specific terms of the depository arrangements with respect to any debt
securities of a series will be described in a prospectus
supplement.
Unless
otherwise specified in a prospectus supplement, debt securities issued in the
form of a global certificate to be deposited with a depository will be
represented by a global certificate registered in the name of the depository or
its nominee. Upon the issuance of a global certificate in registered
form, the depository for the global certificate will credit, on its book-entry
registration and transfer system, the respective principal amounts of the debt
securities represented by the global certificate to the accounts of institutions
that have accounts with the depository or its nominee. The accounts
to be credited shall be designated by the underwriters or agents of the debt
securities or by us, if the debt securities are offered and sold directly by
us. Ownership of beneficial interests in a global certificate will be
limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests by participants in a
global certificate will be shown on, and the transfer of that ownership interest
will be effected only through, records maintained by the depository or its
nominee for the global certificate. Ownership of beneficial interests
in a global certificate by persons that hold through participants will be shown
on, and the transfer of that ownership interest within the participant will be
effected only through, records maintained by the participant. The
laws of some jurisdictions require that certain purchasers of securities take
physical delivery of the securities in definitive form. These limits
and laws may impair the ability to transfer beneficial interests in a global
certificate.
So long
as the depository for a global certificate in registered form, or its nominee,
is the registered owner of the global certificate, the depository or its
nominee, as the case may be, will be considered the sole owner or holder of the
debt securities of the series represented by the global certificate for all
purposes under the indentures. Generally, owners of beneficial interests in a
global certificate will not be entitled to have debt securities of the series
represented by the global certificate registered in their names, will not
receive or be entitled to receive physical delivery of debt securities in
definitive form, and will not be considered the owners or holders of the global
certificate under the applicable indenture.
Payment
of principal of, premium, if any, and any interest on debt securities of a
series registered in the name of or held by a depository or its nominee will be
made to the depository or its nominee, as the case may be, as the registered
owner or the holder of a global certificate representing the debt
securities. None of Centex, the trustee, any paying agent, or the
applicable debt security registrar for the debt securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a global
certificate for the debt securities or for maintaining, supervising or reviewing
any records relating to those beneficial ownership interests.
We expect
that the depository for debt securities of a series, upon receipt of any payment
of principal, premium or interest in respect of a permanent global certificate,
will credit immediately participants’ accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of the global certificate as shown on the records of the
depository. We also expect that payments by participants to owners of
beneficial interests in a global certificate held through the participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in “street name,” and the payments will be the responsibility of the
participants. However, we have no control over the practices of the
depository and/or the participants and there can be no assurance that these
practices will not be changed.
Unless it
is exchanged in whole or in part for debt securities in definitive form, a
global certificate may generally be transferred only as a whole unless it is
being transferred to certain nominees of the depository.
Unless
otherwise stated in any prospectus supplement, The Depository Trust Company, New
York, New York will act as depository. Beneficial interests in global
certificates will be shown on, and transfers of global certificates will be
effected only through, records maintained by The Depository Trust Company and
its participants.
Events
of Default
“Event of
default” when used in an indenture will mean any of the following:
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failure
to pay the principal of or any premium on any debt security when
due;
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failure
to deposit any sinking fund payment when
due;
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failure
to pay when due interest on any debt security for 30
days;
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failure
to perform any other covenant in the indenture that continues for 60 days
after being given written notice;
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certain
events of bankruptcy, insolvency or reorganization of Centex;
and
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any
other event of default included in any indenture or supplemental
indenture.
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An event
of default for a particular series of debt securities does not necessarily
constitute an event of default for any other series of debt securities issued
under an indenture. The trustee may withhold notice to the holders of
a series of debt securities of any default in respect of such series, except in
the payment of principal or interest, if it considers such withholding of notice
to be in the best interests of the holders.
If an
event of default for any series of debt securities occurs and continues, the
trustee or the holders of at least 25% of the total principal amount of the debt
securities of the series may declare the entire principal of that series due and
payable immediately. If this happens, subject to certain conditions,
the holders of a majority of the aggregate principal amount of the debt
securities of that series can rescind and void the declaration. The
trustee will not be charged with knowledge of any event of default other than
our failure to make principal and interest payments unless actual written notice
is received by the trustee.
The
indentures limit the right to institute legal proceedings. No holder
of any debt securities will have the right to bring a claim under an indenture
unless:
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the
holder has given written notice of default to the
trustee;
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the
holders of not less than 25% of the aggregate principal amount of debt
securities of a particular series shall have made a written request to the
trustee to bring the claim and furnished the trustee reasonable
indemnification as it may require;
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the
trustee has not commenced an action within 60 days of receipt of that
notice and indemnification; and
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no
direction inconsistent with the request to bring a claim has been given to
the trustee by the holders of not less than a majority of the aggregate
principal amount of the debt securities of the series then
outstanding.
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Subject
to applicable law and any applicable subordination provisions, the holders of
debt securities may enforce payment of the principal of, premium, if any, or
interest on, their debt securities. No holder of debt securities of a
particular series has the right to prejudice the rights or obtain priority or
preference over the rights of any other holder of debt securities of that
series.
The
holders of a majority of the aggregate principal amount of any series of debt
securities may direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any power conferred on the
trustee. The trustee, however, may decline to follow that direction
if, being advised by counsel, the trustee determines that the action is not
lawful. In addition, the trustee may refuse to act if it in good
faith determines that the action would unduly prejudice the holders of the debt
securities not taking part in the action or would impose personal liability on
the trustee.
Each
indenture provides that, in case an event of default in respect of a particular
series of debt securities has occurred, the trustee is to use the degree of care
of a prudent man in the conduct of his own affairs. Subject to those
provisions, the trustee is under no obligation to exercise any of its rights or
power under the indentures at the request of any of the holders of the debt
securities of a particular series unless they have furnished to the trustee
security or indemnity in reasonable amounts against the costs, expenses and
liabilities which may be incurred by the trustee.
We will
be required to furnish to the trustee an annual statement as to the fulfillment
by Centex of all of our obligations under the relevant indenture.
Defeasance
of Debt Securities
We will
be discharged from our obligations on the debt securities of any series at any
time we deposit with the trustee sufficient cash or government securities to pay
the principal, interest, any premium and any other sums due to the stated
maturity date or a redemption date of the debt securities of the
series. If this happens, the holders of the debt securities of the
series will not be entitled to the benefits of the indenture except for
registration of transfer and exchange of debt securities and replacement of
destroyed, lost, stolen or mutilated debt securities.
Under
federal income tax law as of the date of this prospectus, a discharge may be
treated as an exchange of the related debt securities. Each holder
might be required to recognize a gain or loss equal to the difference between
the holder’s cost or other tax basis for the debt securities and the value of
the holder’s interest in the trust. Holders might be required to
include as income a different amount than would be includable without the
discharge. We urge you to consult your tax adviser as to the
consequences of a discharge, including the applicability and effect of tax laws
other than the federal income tax law.
Consolidation,
Merger or Sale of Centex
Each
indenture generally permits us to consolidate or merge with another
corporation. The indentures also permit us to sell all or
substantially all of our property and assets. If this happens, the
remaining or acquiring corporation will assume all of our responsibilities and
liabilities under the indentures including the payment of all amounts due on the
debt securities of each series outstanding and performance of the covenants in
the indentures.
However,
we will only consolidate or merge with or into any other corporation or sell all
or substantially all of our assets according to the terms and conditions of the
indentures. The remaining or acquiring corporation will be
substituted for us in the indentures with the same effect as if it had been an
original party to the indenture. Thereafter, the successor
corporation may exercise our rights and powers under any indenture, in our name
or in its own name. Any act or proceeding required or permitted to be
done by our board of directors or any of our officers may be done by the board
or officers of the successor corporation.
Modification
of the Indentures
Under
each indenture we may modify rights and obligations and the rights of the
holders with the consent of the holders of a majority in aggregate principal
amount of the outstanding debt securities of each series affected by the
modification. We cannot, however, modify the principal or interest
payment terms, or reduce the percentage required for modification, against any
holder without its consent. We may also enter into supplemental
indentures with the trustee, without obtaining the consent of the holders of any
series of debt securities, to cure any ambiguity or to correct or supplement any
provision of an indenture or any supplemental indenture which may be defective
or inconsistent with any other provision, to pledge any property to or with the
trustee or to make any other provisions with respect to matters or questions
arising under the indentures, provided that such action does not adversely
affect the interests of the holders of the debt securities. We may
also enter into supplemental indentures without the consent of holders of any
series of debt securities to set forth the terms of additional series of debt
securities, to evidence the succession of another person to our obligations
under the indenture or to add to our covenants.
Certificates
and Opinions to be Furnished to Trustee
Each
indenture provides that, in addition to other certificates or opinions that may
be specifically required by other provisions of an indenture, every time we ask
the trustee to take action under such indenture, we must provide a certificate
of certain of our officers and an opinion of counsel, who may be our counsel,
stating that, in the opinion of the signers, all conditions precedent to such
action have been complied with.
Report
to Holders of Debt Securities
We will
provide audited financial statements annually to holders of debt
securities. The trustee is required to submit an annual report to the
holders of the debt securities regarding, among other things, the trustee’s
eligibility to serve as trustee, the priority of the trustee’s claims regarding
certain advances made by it, and any action taken by the trustee materially
affecting the debt securities.
The
Trustee
U.S. Bank
National Association, whose Corporate Trust Office is located at 14241 Dallas
Parkway, Suite
490, Dallas, Texas 75254, is the trustee under the subordinated indenture and
the senior indenture. U.S. Bank National Association serves as
trustee with respect to senior notes issued pursuant to our senior note
programs, all issued under the senior indenture, and serves as trustee with
respect to subordinated notes which may be issued from time to time under the
subordinated indenture.
The
trustee is permitted to engage in other transactions with us. If the
trustee acquires any conflicting interest, however, it must eliminate that
conflict or resign as indenture trustee within 90 days after ascertaining that
it has a conflicting interest and after the occurrence of a default under the
applicable indenture, unless that default has been cured, waived or otherwise
eliminated within the 90-day period.
Centex
and its affiliates maintain other banking relationships in the ordinary course
of business with the trustee and its affiliates, including those where the
trustee or one of its affiliates serves as trustee.
The
trustee may resign or be removed by us with respect to one or more series of
debt securities and a successor trustee may be appointed to act with respect to
any such series. The holders of a majority in aggregate principal
amount of the debt securities of any series may remove the trustee with respect
to the debt securities of that series.
Each
indenture contains limitations on the right of the trustee, in the event that
the trustee becomes our creditor, to obtain payment of its claims in certain
cases, or to realize on certain property received in respect of any such claim
as security or otherwise.
Ratings
of Our Debt Securities By Rating Agencies
Particular
series of debt securities may be rated by one or more nationally recognized
statistical rating agencies. A securities rating is not a
recommendation to buy, sell or hold securities and may be subject to revision or
withdrawal at any time.
Method
for Calling Meetings of the Holders of Debt
Each
indenture contains provisions describing how meetings of the holders of debt
securities of a series may be convened. A meeting may be called at
any time by the trustee, and also, upon request, by us or the holders of at
least 10% in principal amount of the outstanding debt securities of a
series. A notice of the meeting must always be given in the manner
described under “—Notices to Holders of Debt Securities”
below. Generally speaking, except for any consent that must be given
by all holders of a series as described under “—Modification of the Indentures”
above, any resolution presented at a meeting of the holders of a series of debt
securities may be adopted by the affirmative vote of the holders of a majority
in principal amount of the outstanding debt securities of that series, unless
the indenture allows the action to be voted upon to be taken with the approval
of the holders of a different specific percentage of principal amount of
outstanding debt securities of a series. In that case, the holders of
outstanding debt securities of at least the specified percentage must vote in
favor of the action. Any resolution passed or decision taken at any
meeting of holders of debt securities of any series in accordance with the
applicable indenture will be binding on all holders of debt securities of that
series, unless, as discussed in “—Modification of the Indentures” above, the
action is only effective against holders that have approved it. The
quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be holders holding or representing a majority in principal amount
of the outstanding debt securities of a series.
Governing
Law
Each
indenture and each series of debt securities will be governed by and construed
in accordance with the laws of the State of Texas.
Notices
to Holders of Debt Securities
Notices
to holders of debt securities of a series will be mailed to the addresses of the
holders listed in the senior debt security register or the subordinated debt
security register, as applicable.
DESCRIPTION OF CAPITAL STOCK
Our
authorized capital stock consists of:
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300,000,000
shares of common stock, par value $.25 per share;
and
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5,000,000
shares of preferred stock issuable in
series.
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We have
summarized selected aspects of our capital stock below. The summary
is not complete. For a complete description, you should refer to our
Articles of Incorporation and By-laws, both of which are exhibits to the
registration statement of which this prospectus is part.
Common
Stock
Each
share of common stock is entitled to participate equally in dividends as and
when declared by our board of directors. The payment of dividends on
our common stock may be limited by obligations we may have to holders of any
preferred stock. In addition, certain rights of holders of common
stock may be adversely affected by the rights of holders of any preferred stock
that we may issue in the future. For information regarding
restrictions on payments of dividends or such other limitations on the rights of
common stockholders, see the prospectus supplement applicable to any issuance of
common or preferred stock.
Common
stockholders are entitled to one vote for each share held on all matters
submitted to them. The common stock does not have cumulative voting
rights. Thus, a stockholder is not entitled to a number of votes
equal to his shares multiplied by the number of directors to be elected and to
divide his votes among the candidates in any way he chooses.
If we
liquidate or dissolve our business, the holders of common stock will share
ratably in the distribution of assets available for distribution to stockholders
after creditors are paid and preferred stockholders receive their distributions.
The shares of common stock have no preemptive rights and are not convertible,
redeemable or assessable or entitled to the benefits of any sinking
fund.
All
issued and outstanding shares of common stock are fully paid and
nonassessable. Any shares of common stock we offer under this
prospectus will be fully paid and nonassessable.
The
common stock is listed on the New York Stock Exchange and trades under the
symbol “CTX.”
Preferred
Stock
Our board
of directors can, without action by stockholders, issue one or more classes or
series of preferred stock. The board can determine for each series the number of
shares, designation, relative voting rights, dividend rates, liquidation and
other rights, preferences and limitations. In some cases, the
issuance of preferred stock could delay or discourage a change in control of our
company.
We have
summarized the material provisions of the preferred stock in this section. This
summary is not complete. We will file the full provisions governing any
preferred stock with the SEC before we issue any of it, and you should read any
such provisions that may be important to you.
The
prospectus supplement relating to any series of preferred stock we are offering
will include specific terms relating to the offering. These terms will include
some or all of the following:
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the
title of the preferred stock;
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the
maximum number of shares of the
series;
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the
dividend rate or the method of calculating the dividend, the date from
which dividends will accrue and whether dividends will be
cumulative;
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any
liquidation preference;
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any
redemption provisions;
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any
sinking fund or other provisions that would obligate us to redeem or
purchase the preferred stock;
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any
terms for the conversion or exchange of the preferred stock for other
securities of our company or any other
entity;
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any
voting rights; and
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any
other preferences and relative, participating, optional or other special
rights or any qualifications, limitations or restrictions on the rights of
the shares.
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Any
shares of preferred stock we issue will be fully paid and
nonassessable.
We do not
have any outstanding shares of preferred stock at the date of this
prospectus.
Anti-Takeover
Provisions
The
provisions of Nevada law and our Articles of Incorporation and By-laws we
summarize below may have an anti-takeover effect and may delay, defer or prevent
a tender offer or takeover attempt that a stockholder might consider in his or
her best interest, including those attempts that might result in a premium over
the market price for the common stock.
Staggered
Board of Directors
Our board
of directors is divided into three classes that are elected for staggered
three-year terms. The classification of the board of directors has the effect of
requiring at least two annual stockholder meetings, instead of one, to effect a
change in control of the board of directors. The affirmative vote of the holders
of two-thirds or more of the voting power of shares entitled to vote in the
election of directors is required to remove a director.
Fair
Price Provision
Our
Articles of Incorporation contain a fair price provision. Certain transactions
involving our company and an interested stockholder (described below), or an
affiliate thereof, require the approval of both the holders of at least 66⅔% of
our outstanding voting stock and the holders of a majority of our outstanding
voting stock not owned by the interested stockholder. An “interested
stockholder” is any person who is the holder of 20% or more of our outstanding
voting stock, is an affiliate of Centex Corporation or at any time within the
two-year period prior to the transaction owned 20% or more of our outstanding
voting stock, or is a transferee of any voting stock owned by an interested
stockholder at any time within the two-year period prior to the transaction
(except pursuant to a public offering). Transactions with an
interested stockholder requiring such approval include certain mergers,
consolidations, reclassifications or recapitalizations, asset dispositions and
stock issuances valued at $40 million or more, the adoption of any plan of
liquidation or dissolution proposed by an interested stockholder, and any series
of transactions or any agreement that would result in any of the
foregoing. The voting requirements do not apply, however, if the
“disinterested directors,” as defined in our Articles of Incorporation, approve
the transaction, or the transaction meets other specified fair price
conditions.
Liability
of Our Directors and Officers
Pursuant
to Nevada law, our directors and officers will not be individually liable to
Centex Corporation or our stockholders or creditors for any damages as a result
of any act or failure to act in his or her capacity as a director or officer
unless it is proven that:
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his
or her act or failure to act constituted a breach of his or her fiduciary
duties as a director or officer;
and
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his
or her breach of those duties involved intentional misconduct, fraud or a
knowing violation of law.
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This
provision does not affect a director’s responsibilities under any other laws,
such as the federal securities laws, state or federal environmental laws or
certain specified provisions of Nevada law.
Director
Nominations
Our
stockholders can nominate candidates for
our board of directors if the stockholders follow the advance notice procedures
described in our By-laws.
Generally,
stockholders must submit a nomination at least 90 days prior to the anniversary
of the preceding year’s annual meeting. Stockholder nominations to be acted on
at a special meeting of the stockholders will generally need to be submitted by
the later of 60 days prior to the date of the meeting or ten days after public
disclosure was made of the date of the meeting. The notice must
include the name and address of, and the number and type of shares owned by,
both the stockholder (and, if applicable, the beneficial owner on whose behalf
or at whose request the nomination is being brought) and the person to be
nominated, the age and occupation of the person to be nominated, a
representation that the stockholder is the holder of record of stock entitled to
vote at the meeting and intends to appear in person or by proxy at the meeting,
a description of any arrangements or understandings with respect to the
nomination of directors that exist between the stockholder (or beneficial owner)
and any other person, other information about the stockholder (or beneficial
owner) and the nominee as may be required by the SEC and the consent of the
nominee to serve as a director if elected. The stockholder (or if
applicable, the beneficial owner on whose behalf or at whose request the
nomination is being sought) must also disclose any interests that the
stockholder (or beneficial owner) has in any derivative instruments,
arrangements or fees that allow the stockholder (or beneficial owner) to profit
from any increase or decrease in value of the Centex shares or to vote any
shares of any security of Centex, and any rights to receive dividends that are
separated or could be separated from the Centex shares. The notice
must also include a description of all monetary and other arrangements and
relationships between the stockholder (or beneficial owner) and the nominee or
his or her affiliates and associates. The nominee must also complete
a questionnaire and a written statement (the forms of which will be provided by
the Secretary of Centex upon request). In the written statement the
nominee must state that the nominee will, if elected, not have any conflicts of
interest that would prevent the nominee from performing the duties of a director
and will comply with all of Centex’s corporate governance, conflict of interest,
confidentiality, stock ownership and trading policies and
guidelines. In any instance in which a stockholder must disclose
information to comply with these procedures, the same information must be
disclosed for any people or entities affiliated with the
stockholder.
This is
the only procedure for stockholders to make nominations for
directors. Director nominations that are late or that do not include
all required information may be rejected. This could prevent
stockholders from making nominations for directors.
Our
stockholders can propose business to be acted upon at an annual meeting of
stockholders by following the advance notice procedures described in our
Bylaws.
Generally,
stockholders must submit notice of a business proposal at least 90 days prior to
the anniversary of the preceding year’s annual meeting. The notice
must include a brief description of the business to be brought before the
meeting and the reasons for conducting it at the annual meeting, and the name
and address of, and the number and type of shares owned by, the stockholder
giving notice (and, if applicable, the beneficial owner on whose behalf or at
whose request the matter is being brought), a representation that such
stockholder intends to appear in person or by proxy at the annual meeting to
bring such business before the annual meeting and a description of all
arrangements or understandings such stockholder (or beneficial owner) has
relating to such business and any material interest of the stockholder (or
beneficial owner). The stockholder (or if applicable, the beneficial
owner on whose behalf or at whose request the nomination is being sought) must
also disclose any interests that the stockholder (or beneficial owner) has in
any derivative instruments, arrangements or fees that allow the stockholder (or
beneficial owner) to profit from any increase or decrease in value of the Centex
shares or to vote any shares of any security of Centex, and any rights to
receive dividends that are separated or could be separated from the Centex
shares. This is the only procedure for stockholders to submit
business before an annual meeting. In any instance in which a
stockholder must disclose information to comply with these procedures, the same
information must be disclosed for any people or entities affiliated with the
stockholder.
If the
chairman of an annual meeting determines that business was not properly brought
before the annual meeting in accordance with the foregoing procedures, such
business shall not be transacted.
Nevada
Anti-takeover Statutes
We are
subject to provisions of Nevada law that provide that an acquiring person who
acquires a controlling interest (as described below) in a corporation may
exercise voting rights on any control shares (as described below) only if these
voting rights are conferred by a majority vote of the corporation’s
disinterested stockholders at an annual or special meeting. If the
acquiring person is accorded full voting rights and acquires control shares with
at least a majority of all the voting power, any of our stockholders who did not
vote in favor of authorizing voting rights for the control shares are entitled
to payment for the fair value of his or her shares.
A
“controlling interest” is an interest that is sufficient to enable the acquiring
person to exercise voting power in an election of directors that falls into at
least one of the following three categories:
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at
least 1/5 but not more than 1/3 of the voting
power;
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at
least 1/3 but not more than a majority of the voting power;
or
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a
majority of the voting power.
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“Control
shares” are outstanding voting shares that a person, together with persons
acting in association with such person:
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acquires
or offers to acquire in an acquisition of a controlling interest;
and
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acquired
during the 90-day period before such person acquired or offered to acquire
a controlling interest.
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In
addition, Nevada law restricts our ability to engage in any combination
(described below) with an interested stockholder (described below) for a period
of three years following the time that the stockholder became an interested
stockholder, unless the combination or the transaction by which the stockholder
became interested is approved by our board of directors prior to the time the
stockholder became interested. Nevada law also prohibits us from engaging in any
combination with an interested stockholder after the three-year period following
the time that such stockholder became an interested stockholder unless the fair
price provision in our Articles of Incorporation is complied with and at least
one of the following requirements is complied with:
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the
combination or transaction by which the stockholder became interested is
approved by the board of directors prior to the time the stockholder
became interested;
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pursuant
to our Articles of Incorporation, the combination is approved both by the
affirmative vote of least 66⅔% of the holders of the outstanding voting
stock and the majority of the holders of the voting stock that is not
owned by the interested stockholder, at a meeting held three years or more
following the date such stockholder became interested;
or
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the
combination meets the criteria of Nevada corporate statutes mandating
“fair price” requirements.
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A
“combination” generally includes certain mergers, consolidations,
reclassifications, recapitalizations, asset dispositions and stock issuances
involving or proposed by an interested stockholder (or affiliate thereof), the
adoption of any plan of liquidation or dissolution proposed by an interested
stockholder, and the receipt by the interested stockholder of the benefit of any
loans, advances, guarantees, pledges or other financial benefits provided by or
through Centex.
An
“interested stockholder” is a person who is:
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the
beneficial owner of 10% or more of our voting shares;
or
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an
affiliate or associate of Centex and, at any time within the three-year
period prior to the date in question, was the beneficial owner of 10% or
more of our voting shares.
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Our
Articles of Incorporation and By-laws do not exclude us from these
restrictions.
These
provisions are intended to enhance the likelihood of continuity and stability in
the composition of the board and in the policies formulated by the board and to
discourage some types of transactions that may involve actual or threatened
change of control of our company. These provisions are also designed
to reduce our vulnerability to an unsolicited proposal for a takeover that does
not contemplate the acquisition of all of our outstanding shares or an
unsolicited proposal for the potential restructuring or sale of all or a part of
our company. However, these provisions could discourage potential
acquisition proposals and could delay or prevent a change in control of our
company. They may also have the effect of preventing changes in our
management.
Other
Provisions
Our
Articles of Incorporation and By-laws also provide that:
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special
meetings of stockholders may only be called by the chairman of the board
of our board of directors or a majority of our board of
directors;
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stockholders
may act only at an annual or special meeting and not by written
consent;
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a
66⅔% vote of the outstanding voting stock is required for the stockholders
to amend our By-laws; and
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a
66⅔% vote of the outstanding voting stock is required for the stockholders
to amend the prohibition in our Articles of Incorporation on stockholders’
ability to call a special meeting and a 66⅔% vote of both our outstanding
voting stock and a majority of the voting stock held by disinterested
stockholders is required to amend the fair price provision in our Articles
of Incorporation.
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Transfer
Agent and Registrar
BNY
Mellon Shareholder Services, LLC is our transfer agent and
registrar.
DESCRIPTION
OF DEPOSITARY SHARES
General
We may
elect to offer depositary shares (either separately or together with other
securities) representing fractional interests in our debt securities or our
preferred stock, which are called depositary shares. If we decide to
do so, we will issue receipts for depositary shares, each of which will
represent a fraction of a debt security, a share of a particular series of
preferred stock, or a combination thereof, as specified in the applicable
prospectus supplement. The owner of a depositary share will be
entitled, in proportion to the applicable fractional interest of the debt
security or share of preferred stock underlying that depositary share, to all
rights and preferences of the debt security or preferred stock underlying that
depositary share. These rights may include dividend, voting,
redemption and liquidation rights.
We will
deposit the debt securities or shares of any series of preferred stock
represented by depositary shares under a deposit agreement between us and a
depositary selected by us, which we will name in the applicable prospectus
supplement. The depositary will be a bank or trust company with its
principal office in the United States and will have combined capital and surplus
of at least $50,000,000. Unless otherwise provided in the applicable
prospectus supplement, the depositary will be the transfer agent, registrar and
dividend dispersing agent for the depositary shares. Holders of
depositary receipts agree to be bound by the deposit agreement, which may
require holders to take certain actions such as filing proof of residence and
paying certain charges to the depositary.
The
description of our depositary shares in this prospectus is a
summary. When we offer to sell depositary shares, we will summarize
in a prospectus supplement the particular terms of such depositary shares and
the applicable deposit agreement that we believe will be the most important to
your decision to invest in such depositary shares. As the terms of
such depositary shares may differ from the summary in this prospectus, the
summary in this prospectus is subject to and qualified by reference to the
summary in such prospectus supplement, and you should rely on the summary in
such prospectus supplement instead of the summary in this prospectus if the
summary in such prospectus supplement is different from the summary in this
prospectus. However, you should keep in mind that it is the actual
depositary shares, the deposit agreement, the indenture (in the case of
depositary shares representing fractional interests in debt securities), or the
Articles of Incorporation or By-laws (in the case of depositary shares
representing fractional interests in preferred stock), and not the summaries in
this prospectus or the prospectus supplement, that define your rights as a
holder of such depositary shares. There may be other provisions of
these documents that are of interest to you. The forms of the deposit
agreement and the depositary receipts relating to any particular issue of
depositary shares will be filed with the SEC via a Current Report on Form 8-K
(or by a post-effective amendment to the registration statement that includes
this prospectus) prior to our offering of the depositary shares, and you should
read such documents carefully for provisions that may be important to
you. See “Where You Can Find More Information” for information on how
to obtain copies of these documents.
Interest,
Dividends and Other Distributions
The
depositary will distribute all payments of interest, cash dividends or other
cash distributions received on the debt securities or preferred stock to the
record holders of depositary receipts in proportion to the number of depositary
shares owned by those holders on the relevant record date.
If there
is a distribution other than in cash, the depositary will distribute property
received by it to the record holders of depositary receipts that are entitled to
receive the distribution, unless the depositary determines that it is not
feasible to make the distribution. If this occurs, the depositary,
with our approval, may adopt another method for the distribution, including
selling the property and distributing the net proceeds to the
holders.
Redemption
If a debt
security or series of preferred stock underlying the depositary shares is
subject to redemption, the depositary will redeem the depositary shares from the
proceeds received by the depositary in connection with the
redemption. The redemption price per depositary share will be equal
to the applicable fraction of the redemption price per debt security or share of
preferred stock. Whenever we redeem debt securities or shares of
preferred stock held by the depositary, the depositary will redeem as of the
same redemption date the number of depositary shares representing the debt
securities or shares of preferred stock redeemed. If fewer than all
the depositary shares are redeemed, the depositary shares to be redeemed will be
selected by lot, pro rata or by any other equitable method as the depositary may
determine.
Conversion
or Exchange of Preferred Stock
If the
deposited preferred stock is convertible into or exchangeable for other
securities, the following will apply. The depositary shares, as such,
will not be convertible into or exchangeable for such other
securities. Rather, any holder of the depositary shares may surrender
the related depositary receipts, together with any amounts payable by the holder
in connection with the conversion or the exchange, to the depositary with
written instructions to cause conversion or exchange of the preferred stock
represented by the depositary shares into or for such other
securities. If only some of the depositary shares are to be converted
or exchanged, a new depositary receipt or receipts will be issued for any
depositary shares not to be converted or exchanged.
Liquidation
Preference of Preferred Stock
In the
event of our voluntary or involuntary liquidation, dissolution or winding up,
the holders of each depositary share representing a fractional share of
preferred stock will be entitled to receive the fraction of the liquidation
preference accorded each share of the applicable series of preferred stock, as
set forth in the applicable prospectus supplement.
Exercise
of Rights under the Indenture or Voting the Preferred Stock
Upon
receipt of notice of any meeting at which the holders of interests in deposited
preferred stock are entitled to vote or of any request for instructions or
directions from a holder of interests in deposited debt securities, the
depositary will mail the record holders the information contained in that
notice. Each record holder of the depositary shares on the record
date will be entitled to instruct the depositary how to give instructions or
directions with respect to the debt securities represented by that holder’s
depositary shares or how to vote the amount of the preferred stock represented
by that holder’s depositary shares. The record date for the
depositary shares will be the same date as the record date for the debt
securities or for the preferred stock. The depositary will try, as
far as practicable, to give instructions or directions with respect to the debt
securities or to vote the amount of the preferred stock represented by the
depositary shares in accordance with those instructions. We will
agree to take all reasonable action which the depositary may deem necessary to
enable the depositary to do so. The depositary will abstain from
giving instructions or directions with respect to the debt securities or voting
shares of the preferred stock represented by your depositary shares if it does
not receive specific instructions from you.
Withdrawal
of Preferred Stock
Unless we
say otherwise in a prospectus supplement, owners of depositary shares are
entitled, upon surrender of depositary receipts at the principal office of the
depositary and payment of any unpaid amount due the depositary, to receive the
number of whole shares of preferred stock underlying the depositary
shares.
Unless we
say otherwise in a prospectus supplement, partial or fractional shares of
preferred stock will not be issued. Holders of preferred stock that
has been withdrawn from the depositary will not be entitled to deposit the
shares under the deposit agreement or to receive depositary receipts evidencing
depositary shares for such preferred stock.
Amendment
and Termination of the Deposit Agreement
The form
of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement may be amended by agreement between the depositary and
us. However, any amendment which materially and adversely alters the
rights of the holders of the depositary shares will not be effective unless the
amendment has been approved by at least a majority of the outstanding depositary
shares.
The
deposit agreement will terminate if:
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All
outstanding depositary shares have been redeemed or converted into or
exchanged for any other securities into or for which the underlying debt
security or preferred stock is convertible or exchangeable;
or
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There
has been a complete repayment or redemption of the debt securities, a
complete redemption of the preferred stock, or a final distribution of the
preferred stock in connection with our dissolution, and such repayment,
redemption or distribution has been made to all the holders of depositary
shares.
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The
deposit agreement may be terminated by us upon not less than 60 days’ notice
whereupon the depositary shall deliver or make available to each holder of
depositary shares, upon surrender of the depositary receipts held by such
holder, the number of whole or fractional shares (if we permit fractional
shares) of preferred stock or the applicable principal amount of debt securities
represented by such receipts.
Charges
of Depositary
We will
pay all transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangement. We will also pay charges
of the depositary in connection with:
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the
initial deposit of the debt securities or preferred
stock;
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the
initial issuance of depositary shares;
and
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any
repayment or redemption of the debt securities or preferred
stock.
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Holders
of depositary receipts will pay all transfer, income and other taxes and
governmental charges and other specified charges as provided in the deposit
agreement for their depositary shares. If these charges have not been
paid, the depositary may:
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refuse
to transfer depositary shares;
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withhold
dividends and distributions; and
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sell
the depositary shares evidenced by a depositary
receipt.
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Resignation
and Removal of Depositary
The
depositary may resign at any time by delivering a notice to us. We
may also remove the depositary at any time. Any such resignation or
removal will take effect upon the appointment of a successor depositary and its
acceptance of such appointment. The successor depositary must be
appointed within 60 days after delivery of the notice for resignation or
removal. The successor depositary must be a bank or trust company
having its principal office in the United States and having a combined capital
and surplus of at least $50,000,000.
Miscellaneous
The
depositary will forward to the holders of depositary receipts all reports and
communications we deliver to the depositary that we are required to furnish to
the holders of debt securities or preferred stock.
Neither
the depositary nor we will be liable if either of us is prevented or delayed by
law or any circumstance beyond our control in performing our obligations under
the deposit agreement. The obligations of the depositary and our
obligations under the deposit agreement will be limited to
performance in good faith of our duties thereunder, and neither of us will be
obligated to prosecute or defend any legal proceeding relating to any depositary
shares, debt securities or preferred stock unless satisfactory indemnity is
furnished. Further, both of us may rely upon:
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written
advice of counsel or accountants;
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information
provided by holders of depositary receipts or other persons believed in
good faith to be competent to give such information;
and
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documents
believed to be genuine and to have been signed or presented by the proper
party or parties.
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Material
United States federal income tax considerations applicable to depositary shares
will be discussed in the applicable prospectus supplement.
DESCRIPTION
OF WARRANTS
We may
issue warrants to purchase debt securities, common stock, preferred stock or
other securities. We may issue warrants independently or together with other
securities. Warrants sold with other securities may be attached to or
separate from the other securities. We will issue warrants under one
or more warrant agreements between us and a warrant agent that we will name in
the prospectus supplement.
The
prospectus supplement relating to any warrants we are offering will include
specific terms relating to the offering. These terms will include
some or all of the following:
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the
title of the warrants;
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the
aggregate number of warrants
offered;
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the
designation, number and terms of the debt securities, common stock,
preferred stock, or other securities purchasable upon exercise of the
warrants and procedures by which the number of these securities may
be adjusted;
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the
exercise price of the warrants;
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the
dates or periods during which the warrants are
exercisable;
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the
designation and terms of any securities with which the warrants are
issued;
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if
the warrants are issued as a unit with another security, the date on and
after which the warrants and the other security will be
separately transferable;
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if
the exercise price is not payable in U.S. dollars, the foreign currency,
currency unit or composite currency in which the exercise price is
denominated;
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any
minimum or maximum amount of warrants that may be exercised at any one
time;
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any
terms relating to the modification of the warrants;
and
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any
terms, procedures and limitations relating to the transferability,
exchange or exercise of the
warrants.
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The
description of any warrants in the prospectus supplement will not necessarily be
complete, and reference will be made to the warrant agreements which will be
filed with the SEC.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We may
issue subscription rights to purchase shares of our common stock or preferred
stock. These subscription rights may be issued independently or together with
any other security offered hereby and may or may not be transferable by the
stockholder receiving the subscription rights in such offering. In connection
with any offering of subscription rights, we may enter into a standby
arrangement with one or more underwriters or other purchasers pursuant to which
the underwriters or other purchasers may be required to purchase any securities
remaining unsubscribed for after such offering.
The
applicable prospectus supplement will describe the specific terms of any
offering of subscription rights for which this prospectus is being delivered,
including the following:
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the
price, if any, for the subscription
rights;
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the
exercise price payable for each share of common stock or preferred stock
upon the exercise of the subscription
rights;
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the
number of subscription rights issued to each
stockholder;
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the
number and terms of the shares of common stock or preferred stock which
may be purchased per each subscription
right;
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the
extent to which the subscription rights are
transferable;
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any
other terms of the subscription rights, including the terms, procedures
and limitations relating to the exchange and exercise of the subscription
rights;
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the
date on which the right to exercise the subscription rights shall
commence, and the date on which the subscription rights shall
expire;
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the
extent to which the subscription rights may include an over-subscription
privilege with respect to unsubscribed securities;
and
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if
applicable, the material terms of any standby underwriting or purchase
arrangement entered into by us in connection with the offering of
subscription rights.
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The
description in the applicable prospectus supplement of any subscription rights
we offer will not necessarily be complete and will be qualified in its entirety
by reference to the applicable subscription rights certificate, which will be
filed with the SEC if we offer subscription rights. For more information on how
you can obtain copies of any subscription rights certificate if we offer
subscription rights, see “Where You Can Find More Information.” We urge you to
read the applicable subscription rights certificate and any applicable
prospectus supplement in their entirety.
DESCRIPTION
OF STOCK PURCHASE
CONTRACTS
AND STOCK PURCHASE UNITS
We may
issue stock purchase contracts, including contracts obligating holders to
purchase from us, and us to sell to the holders, a specified number of shares of
common stock or preferred stock (or a range of numbers of shares pursuant to a
predetermined formula) at a future date or dates, which we refer to herein as
“stock purchase contracts.” The price per share of common stock or
preferred stock and number of shares of common stock or preferred stock may be
fixed at the time the stock purchase contracts are issued or may be determined
by reference to a specific formula set forth in the stock purchase
contracts. The stock purchase contracts may be issued separately or
as a part of units consisting of a stock purchase contract together with either
our debt securities or debt obligations of third parties, including U.S.
Treasury securities, securing the holders’ obligations to purchase the common
stock or preferred stock under the stock purchase contracts, which we refer to
herein as “stock purchase units.” The stock purchase contracts may
require holders to secure their obligations thereunder in a specified
manner. The stock purchase contracts may also require us to make
periodic payments to the holders of the stock purchase units or vice-versa and
such payments may be unsecured or prefunded on some basis.
The
prospectus supplement will describe the terms of any stock purchase contracts or
stock purchase units. The description in the prospectus supplement
will not necessarily be complete, and reference will be made to the stock
purchase contracts, and, if applicable, collateral or depositary arrangements,
relating to the stock purchase contracts or stock purchase
units. Material United States federal income tax considerations
applicable to the stock purchase contracts or the stock purchase units will also
be discussed in the applicable prospectus supplement.
PLAN
OF DISTRIBUTION
We may
sell the offered securities from time to time in and outside the United States
(a) to or through underwriters or dealers, (b) through agents, (c) in “at the
market offerings” in accordance with Rule 415(a)(4) to or through a market maker
or into an existing trading market, on an exchange, or otherwise, (d) directly
to purchasers, including our affiliates through a specific bidding or auction
process, or otherwise, or (e) through a combination of any of these methods.
Each time the securities are offered by this prospectus, the prospectus
supplement, if required, will set forth:
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the
terms of the offering;
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the
name of any underwriter, dealer or agent involved in the offer and sale of
the securities;
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the
purchase price of the securities from
us;
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the
net proceeds to us from the sale of the
securities;
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any
delayed delivery arrangements;
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any
discounts, concessions, commissions and other items constituting
compensation required by the underwriters, dealers or
agents;
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any
initial public offering price;
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any
securities exchange or market on which the securities may be listed;
and
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the
anticipated date of delivery of the
securities.
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Sale
through Underwriters or Dealers
If
we use underwriters in the sale, the underwriters will acquire the securities
for their own account. The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale such as market prices prevailing at the time of the sale,
prices related to such prevailing market prices or at negotiated
prices. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we
inform you otherwise in the prospectus supplement, the obligations of the
underwriters to purchase the securities will be subject to certain conditions,
and the underwriters will be obligated to purchase all the offered securities if
they purchase any of them. The underwriters may change from time to
time any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers.
During
and after an offering through underwriters, the underwriters may purchase and
sell the securities in the open market. These transactions may
include over-allotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities
sold for their account may be reclaimed by the syndicate if the offered
securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise
affect the market price of the offered securities, which may be higher than the
price that might otherwise prevail in the open market. If these activities are
commenced, the underwriters may discontinue them at any time.
If we use
dealers in the sale of securities, we will sell the securities to them as
principals. They may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. We will include in the
prospectus supplement the names of the dealers and the terms of the
transaction.
Direct
Sales and Sales through Agents
We may
solicit directly offers to purchase the securities, and we may sell the
securities directly to purchasers without the involvement of agents,
underwriters or dealers. We may also sell the securities through
agents we designate from time to time. In the prospectus supplement, we will
describe the terms of any direct sale or sale through agents. If
applicable, we will also name any agent involved in the offer or sale of the
offered securities, and we will describe any commissions payable by us to the
agent. Unless we inform you otherwise in the prospectus supplement, any agent
will agree to use its reasonable best efforts to solicit purchases for the
period of its appointment.
We may
sell the securities directly to institutional investors or others who may be
deemed to be underwriters within the meaning of the Securities Act of 1933 with
respect to any sale of those securities. We will describe the terms of any such
sales in the prospectus supplement.
Delayed
Delivery Contracts
If
we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
Derivative
Transactions and Hedging
We may
enter into derivative or other hedging transactions involving the securities
with third parties, or sell securities not covered by the prospectus to third
parties in privately-negotiated transactions. If we so indicate in
the applicable prospectus supplement, in connection with those derivative
transactions, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement, including in short sale transactions,
or may lend securities in order to facilitate short sale transactions by others,
subject to applicable legal requirements. If so, the third party may
use securities pledged by us or borrowed from us or others to settle those sales
or to close out any related open borrowings of securities, and may use
securities received from us in settlement of those derivative or hedging
transactions to close out any related open borrowings of
securities. The third party in such sale transactions will be an
underwriter and will be identified in the applicable prospectus supplement (or a
post-effective amendment to the registration statement of which this prospectus
is a part).
We may
effect sales of securities in connection with forward sale, option or other
types of agreements with third parties. Any distribution of
securities pursuant to any forward sale agreement may be effected from time to
time in one or more transactions that may take place through a stock exchange,
including block trades or ordinary broker’s transactions, or through
broker-dealers acting either as principal or agent, or through
privately-negotiated transactions, or through an underwritten public offering,
or through a combination of any such methods of sale, at market prices
prevailing at the time of sale, at prices relating to such prevailing market
prices or at negotiated or fixed prices.
General
Information
We may
have agreements with the agents, dealers and underwriters to indemnify them
against certain civil liabilities, including liabilities under the Securities
Act of 1933, or to contribute with respect to payments that the agents, dealers
or underwriters may be required to make. Agents, dealers and underwriters may be
customers of, engage in transactions with or perform services for us in the
ordinary course of their businesses.
Brian J.
Woram, Esq., our Senior Vice President, Chief Legal Officer and General Counsel,
will issue an opinion about the legality of the offered
securities. As of October 31, 2008, Mr. Woram beneficially owned
94,553 shares of our common stock (of which 51,078 shares are unvested
restricted stock) and held options to purchase an additional 274,888 shares of
our common stock, of which options covering 201,961 shares were
exercisable. If the validity of any securities is also passed upon by
counsel for the underwriters of an offering of those securities, that counsel
will be named in the prospectus supplement relating to that
offering.
Ernst
& Young LLP, our independent registered public accounting firm, has audited
our consolidated financial statements included in our Annual Report on Form 10-K
for the year ended March 31, 2008, and the effectiveness of our internal control
over financial reporting as of March 31, 2008, as set forth in their reports,
which are incorporated by reference in this registration
statement. Our financial statements are incorporated by reference in
reliance on Ernst & Young LLP’s reports, given on their authority as experts
in accounting and auditing.
PROSPECTUS
Centex
Corporation
Junior
Subordinated Debt Securities
Common
Stock
Stock
Purchase Contracts
Stock
Purchase Units
CENTEX
TRUST I
CENTEX
TRUST II
Trust
Preferred Securities fully and unconditionally guaranteed,
as
described herein, by Centex Corporation
____________
The
Trusts
Centex
Trust I and Centex Trust II are subsidiaries of Centex
Corporation. They exist for the purpose of issuing trust preferred
securities.
The
Offering
By this
prospectus, we may offer from time to time one or more of the securities
described in this prospectus separately or together in any
combination.
Trust
Preferred Securities
The
trusts may offer from time to time trust preferred securities representing
undivided beneficial interests in the assets of the issuing trust. The trusts
will use the proceeds from the sale of their preferred securities to purchase
Centex’s junior subordinated debt securities. The trust preferred
securities may be convertible into Centex’s shares.
Debt
Securities
Centex
may offer from time to time its junior subordinated debt securities to the
trusts. These debt securities will be unsecured and subordinate and junior in
right of payment to Centex’s senior debt. These junior subordinated
debt securities may be distributed to holders of the trust preferred securities
if and when a trust is dissolved. The debt securities may be
convertible into Centex’s shares.
Guarantee
Centex
will guarantee on a subordinated basis the trusts’ payment obligations on the
trust preferred securities as described in this prospectus and the prospectus
supplement.
Stock
Purchase Contracts and Stock Purchase Units
Centex
may issue stock purchase contracts obligating holders to purchase from Centex a
specified number of shares of common stock in the future. The stock
purchase contracts may be issued separately or as a part of stock purchase units
consisting of a stock purchase contract and trust preferred securities or debt
obligations of third parties, including U.S. Treasury securities, securing the
holders’ obligations to purchase common stock under the stock purchase
contracts.
We will
provide the specific terms of any securities to be offered in a supplement to
this prospectus. A prospectus supplement may also add, change
or update information contained in this prospectus. You should read
this prospectus and any applicable prospectus supplement carefully before you
invest. We may offer and sell these securities to or through one or
more agents, underwriters, dealers or other third parties or directly to one or
more purchasers on a continuous or delayed basis.
Our
common stock is listed on the New York Stock Exchange under the trading symbol
“CTX.”
____________
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
____________
The date
of this prospectus is November 6, 2008.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the SEC
utilizing a “shelf” registration process. The registration statement
also includes a prospectus under which Centex may offer from time to time its
senior debt securities, subordinated debt securities, shares of common stock or
preferred stock, depositary shares, warrants and stock purchase contracts or
stock purchase units. Under the shelf process, we may offer any
combination of the securities described in these two prospectuses in one or more
offerings. This prospectus provides you with a general description of
the trust preferred securities, the junior subordinated debt securities, the
common stock into which the trust preferred securities or the debt securities
may be convertible or which may be issued pursuant to Centex’s stock purchase
contracts and stock purchase units, and Centex’s guarantees. Each
time we use this prospectus to offer these securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. If there is any
inconsistency between the information in this prospectus and any applicable
prospectus supplement, you should rely on the information in the applicable
prospectus supplement. Please carefully read this prospectus and the
prospectus supplement together with the additional information described under
the heading “Where You Can Find More Information.”
We have
not included separate financial statements of the trusts in this prospectus. We
do not consider that such financial statements are material to holders of the
trust preferred securities because:
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neither
trust has any operating history or independent operations;
and
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neither
trust is engaged in, nor will it engage in, any activity other than
issuing preferred and common securities, investing in and holding Centex’s
junior subordinated debt securities and engaging in related
activities.
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Furthermore,
Centex’s obligations under the junior subordinated debt securities, the
associated indenture, the declarations of trust and the guarantees provide a
full, irrevocable and unconditional guarantee of payments of distributions and
other amounts due on the trust preferred securities. In addition, we do not
expect that the trusts will file reports with the SEC under the Securities
Exchange Act of 1934.
CENTEX
Through
its various subsidiaries, Centex Corporation does business primarily in
residential construction and related activities, including mortgage
financing. Any reference in this prospectus to we, us, Centex or our
company includes Centex Corporation and its subsidiary companies, unless the
context requires otherwise. We currently operate in two principal
lines of business:
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Home
Building
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Financial
Services
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Home
Building
Our Home
Building operations consist of constructing and selling detached and attached
single-family homes. The land used for the construction of our homes is acquired
through the purchase of finished or partially finished lots and through the
purchase of raw land that must be developed. In fiscal year 2008, approximately
80% of the homes closed were single-family, detached homes.
Financial
Services
Our
Financial Services operations include mortgage lending and other related
services for purchasers of homes sold by our homebuilding operations, title
agency services and the sale of title insurance.
Other
We
include corporate general and administrative expense, including Home Building
corporate-related general and administrative expense and interest income, in our
Other segment.
Discontinued
Operations and Organizational Changes
In September 2008, we sold
our property and casualty insurance agency operations, which had previously been
included in our Financial Services segment. Historical
operations of our property and casualty insurance operations are not material to
our financial performance and, accordingly, have not been reclassified to
discontinued operations.
In April
2008, we sold our home services operations, which had previously been included
in our Other segment. We now report the historical financial results
of the home services operations as a discontinued operation.
In March
2007, we sold our construction services operations, which had previously
comprised our Construction Services segment. We now report the
historical financial results of the construction services operations as a
discontinued operation.
In July
2006, we sold our sub-prime home equity lending operations, which had previously
been included in the Financial Services segment. We now report the
historical financial results of the sub-prime home equity lending operations as
a discontinued operation.
In
September 2005, we sold our international homebuilding operations, which had
previously been included in the Home Building segment. We now report
the historical financial results of the international homebuilding operations as
a discontinued operation.
Prior to
February 2004, the common stock of 3333 Holding Corporation, which we refer to
as Holding, and warrants to purchase limited partnership interests in Centex
Development Company, L.P., which we refer to as CDC, were traded in tandem with
our common stock. We held an ownership interest in CDC, which we
reported on the equity method of accounting as a part of our former investment
real estate business segment. Neither Holding nor CDC were
consolidated in our financial statements. The operations of CDC
included homebuilding operations in the United Kingdom. In February
2004, we acquired Holding and CDC through merger transactions, and the tandem
trading arrangement was terminated. As a result of the merger, the
international homebuilding operations of CDC were included in our Home Building
segment until the sale of our international homebuilding operations in September
2005.
Prior to
January 2004, we were also engaged in the construction products business through
our majority equity interest in Centex Construction Products, Inc. (now known as
Eagle Materials Inc.), which we refer to as Construction Products. On
January 30, 2004, we spun off to our stockholders our entire equity interest in
Construction Products. We now report the historical financial results
of Construction Products as a discontinued operation.
In June
2003, we spun off to our stockholders substantially all of our manufactured
housing operations, which had previously been included in our Other
segment. We now report the historical financial results of
manufactured housing operations as a discontinued operation.
Our
principal executive office is located at 2728 N. Harwood Street, Dallas, Texas
75201, and our telephone number is (214) 981-5000.
WHERE YOU CAN FIND MORE
INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC’s
public reference room at 100 F Street, N.E., Washington, D.C.
20549. Our SEC filings are also available to the public over the
Internet at the SEC’s web site at http://www.sec.gov. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
room.
This
prospectus is part of a registration statement we have filed with the SEC
relating to the securities we may offer. As permitted by SEC rules,
this prospectus does not contain all of the information we have included in the
registration statement and the accompanying exhibits and schedules we file with
the SEC. You may refer to the registration statement, the exhibits
and schedules for more information about us and our securities. The
registration statement, exhibits and schedules are available at the SEC’s public
reference room or through its web site.
The SEC
allows us to “incorporate by reference” the information we file with them, which
means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We
incorporate by reference each of the following (except to the extent that
portions of any Current Report on Form 8-K are furnished and deemed not to be
filed):
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our
Annual Report on Form 10-K for the year ended March 31,
2008;
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our
Quarterly Reports on Form 10-Q for the quarters ended June 30, 2008 and
September 30, 2008;
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our
Current Reports on Form 8-K dated January 29, 2008, January 31, 2008,
February 19, 2008, April 1, 2008, April 30, 2008, May 13, 2008, May 22,
2008, July 15, 2008, July 29, 2008, October 1, 2008, October 14, 2008 and
October 28, 2008; and
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the
description of our common stock, par value $0.25 per share, contained in
our Registration Statement on Form 8-A dated October 28, 1971 and Form 8
dated November 11, 1971, as such forms may be amended to update such
description.
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We also
incorporate by reference any future filings we may make with the SEC under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
we sell all of the securities, with the exception of any documents furnished and
deemed not to be filed.
You may
request a copy of these filings at no cost, by contacting our Corporate
Communications office at (214) 981-6503; by writing to Centex Corporation,
Investor Relations, P. O. Box 199000, Dallas, Texas 75219; or via email at
ir@centex.com. In addition, all filings with the SEC, news releases
and quarterly earnings announcements, including live audio and replays of recent
quarterly earnings webcasts, can be accessed free of charge on our web site
(www.centex.com). We make our Annual Report on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those
reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange
Act available on our web site as soon as reasonably practicable after we
electronically file the material with, or furnish it to, the SEC. To
retrieve any of this information, go to www.centex.com, select “Investors” and
select “SEC Filings.” The reference to our web site is merely
intended to suggest where additional information may be obtained by investors,
and, except as specifically stated above, the materials and other information
presented on our web site are not incorporated in and should not otherwise be
considered part of this prospectus.
You
should rely only on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted.
A
WARNING ABOUT FORWARD-LOOKING
STATEMENTS
Various
sections contained or incorporated by reference in this prospectus and the
accompanying prospectus supplement include forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, Section 21E of the
Securities Exchange Act of 1934 and the Private Securities Litigation Reform Act
of 1995. Forward-looking statements may be identified by the context
of the statement and generally arise when we are discussing our beliefs,
estimates or expectations. These statements are not historical facts
or guarantees of future performance but instead represent only our belief at the
time the statements were made regarding future events, which are subject to
significant risks, uncertainties and other factors, many of which are outside of
our control. Actual results and outcomes may differ materially from
what we express or forecast in these forward-looking statements. All
forward-looking statements made in this prospectus are made as of the date
hereof and all forward-looking statements made in any prospectus supplement are
made as of the date thereof, and the risk that actual results will
differ materially from expectations expressed in this prospectus and any
prospectus supplement will increase with the passage of time. We
undertake no duty to update any forward-looking statement to reflect future
events or changes in our expectations.
A
discussion of risks and uncertainties that could cause actual results and events
to differ materially from our forward looking statements is included in Item 1A
of our Annual Report on Form 10-K for the fiscal year ended March 31, 2008
(which is incorporated into this prospectus and any applicable prospectus
supplement by reference) and updated discussions of such risks and uncertainties
may be included in our reports for subsequent periods. See “Where You
Can Find More Information” for information about how to obtain copies of these
reports. In addition, please see the risk factors described in any
applicable prospectus supplement.
USE OF PROCEEDS
Except as
otherwise provided in the related prospectus supplement, we will use the net
proceeds from the sale of the offered securities for general corporate
purposes. These purposes may include any one or more of the
following:
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repayments
or refinancing of debt;
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working
capital;
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capital
expenditures;
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acquisitions;
or
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repurchases
or redemption of securities.
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Each
trust will use all proceeds from the sale of the trust preferred securities and
the common securities to purchase Centex’s junior subordinated debt
securities. Except as may be otherwise described in the applicable
prospectus supplement, Centex expects to use the net proceeds from the sale of
such junior subordinated debt securities to the trusts for the above
purposes.
ACCOUNTING TREATMENT RELATING TO TRUST PREFERRED
SECURITIES
The
financial statements of any trust issuing securities will be consolidated with
our financial statements. Our financial statements will include a
footnote that discloses, among other things, that the assets of the trust
consist of our junior subordinated debt securities and will specify the
designation, principal amount, interest rate and maturity date of the junior
subordinated debt securities.
RATIO OF EARNINGS TO FIXED CHARGES
The
following table sets forth the ratio of earnings to fixed charges for the
periods indicated:
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Six Months Ended
September 30,
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Fiscal Years Ended March 31, (1)
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2008
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2007
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2008
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2007
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2006
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2005
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2004
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Total
Enterprise
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0.0 | x | 0.0 | x | 0.0 | x | 1.30 | x | 6.68 | x | 6.71 | x | 6.43 | x | ||||||||||||||
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Coverage
Deficiency
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$ | 229,565 | $ | 1,207,003 | $ | 2,693,532 | ||||||||||||||||||||||
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Total
Enterprise (with Financial Services operations reflected on the equity
method)
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0.0 | x | 0.0 | x | 0.0 | x | 1.12 | x | 7.88 | x | 7.21 | x | 6.21 | x | ||||||||||||||
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Coverage
Deficiency
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$ | 191,818 | $ | 1,168,719 | $ | 2,556,712 | ||||||||||||||||||||||
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(1)
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The
ratios presented in this table have been adjusted to reflect our former
home services operations (sold in April 2008), construction services
operations (sold in March 2007), sub-prime home equity lending operations
(sold in July 2006), international homebuilding operations (sold in
September 2005), construction products operations (spun off in January
2004) and manufactured housing operations (spun off in June 2003) as
discontinued operations.
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These
computations include Centex Corporation and, except as otherwise noted, our
subsidiaries, and 50% or less owned companies. For these ratios,
fixed charges include:
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interest
expense and amortization of debt discount;
and
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an
interest factor attributable to
rentals.
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Earnings
include the following components:
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earnings
from continuing operations before income taxes, cumulative effect of a
change in accounting principle and minority interests in the income of
consolidated subsidiaries, and adjusted for undistributed income and loss
from equity investments;
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interest
capitalized during the period;
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fixed
charges as defined above, but excluding interest capitalized;
and
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amortization
of interest capitalized.
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To
calculate the ratio of earnings to fixed charges or coverage deficiencies, as
applicable, with Financial Services operations reflected on the equity method,
the applicable interest expense, including an interest factor attributable to
rentals, was deducted from the fixed charges and the applicable earnings
(loss) were deducted from the earnings (loss) amount. The
amount of interest expense, including an interest factor attributable to
rentals, deducted in each period was approximately $57.0 million, $94.8 million,
$68.8 million, $34.7 million and $24.9 million for the years ended March 31,
2008, 2007, 2006, 2005, and 2004, and $9.1 and $39.3 million for the six months
ended September 30, 2008 and 2007. The amount of earnings (loss)
deducted in each period was approximately $(136.8) million, $87.1 million, $87.9
million, $98.4 million, and $169.5 million for the years ended March 31, 2008,
2007, 2006, 2005, and 2004, and $(37.7) million and $(38.3) million for the six
months ended September 30, 2008 and 2007.
The
ratios in the table above with Financial Services operations reflected on the
equity method are presented only to provide investors an alternative method of
measuring our ability to utilize earnings from our other business segments to
cover our fixed charges related to these business segments. The
principal reasons why we present these computations are as follows:
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our
Financial Services subsidiaries operate in a distinctly different
financial environment that generally requires less equity to support their
higher debt levels compared to the operations of our other
subsidiaries;
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our
Financial Services subsidiaries have structured their financing programs
substantially on a stand-alone basis;
and
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Centex
Corporation has limited obligations with respect to the indebtedness of
our Financial Services
subsidiaries.
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Management
uses this information in its financial and strategic planning. We
also use this presentation to allow investors to compare us to homebuilders that
do not have financial services operations.
THE TRUSTS
Each of
the trusts is created under the Delaware Statutory Trust Act and is governed by
a declaration of trust among the trustees of each trust and
Centex. Each declaration will be amended and restated in
substantially the form incorporated by reference as an exhibit to the
registration statement of which this prospectus forms a part. Each
amended and restated declaration will be qualified as an indenture under the
Trust Indenture Act of 1939.
We have
summarized selected provisions of the declarations below. This
summary is not complete. For a complete description, we encourage you to read
the applicable form of declaration, which we have filed with the
SEC. Please read “Where You Can Find More Information.”
The
address of the principal office of each trust is 2728 North Harwood Street,
Dallas, Texas 75201, and the telephone number of each trust at that address is
(214) 981-5000.
Securities
of Each Trust
When a
trust issues its trust preferred securities, you and the other holders of the
trust preferred securities will own all of the issued and outstanding trust
preferred securities of the trust. Unless otherwise disclosed in the
applicable prospectus supplement, Centex or one of its subsidiaries will acquire
all of the issued and outstanding common securities of each
trust. The trust preferred securities will be substantially identical
to the common securities and will rank equally with the common securities,
except that:
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if
an event of default under the declaration of trust occurs and is
continuing, the holders of trust preferred securities will have the right
to receive payments before the holders of the common securities receive
payments; and
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the
holders of common securities have the exclusive right to appoint, remove
or replace the trustees and to increase or decrease the number of
trustees.
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Each
trust will exist primarily for the purposes of:
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issuing
its preferred and common
securities;
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investing
the proceeds from the sale of its securities in Centex’s junior
subordinated debt securities; and
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engaging
in only such other activities as are necessary or incidental to issuing
its securities and purchasing and holding Centex’s junior subordinated
debt securities.
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The
rights of the holders of the trust preferred securities of a trust, including
economic rights, rights to information and voting rights, will be contained in
and governed by the applicable declaration of trust, the Delaware Statutory
Trust Act and the Trust Indenture Act of 1939.
Powers
and Duties of Trustees
The
number of trustees of each trust will initially be five. Three of the
trustees will be individuals who are officers or employees of
Centex. The fourth trustee will be The Bank of New York Mellon Trust
Company, National Association (formerly known as The Bank of New York Trust
Company, National Association), which will serve as the property trustee under
the declaration of trust for purposes of the Trust Indenture Act of
1939. The fifth trustee will be BNY Mellon Trust of Delaware, which
has its principal place of business in the State of Delaware.
The
property trustee will own and hold for your benefit Centex’s junior subordinated
debt securities purchased by a trust. The property trustee will
also:
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generally
exercise the rights, powers and privileges of a holder of the junior
subordinated debt securities;
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maintain
exclusive control of a segregated non-interest bearing bank account to
hold all payments on the debt securities;
and
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promptly
make distributions to the holders of the trust securities out of funds
from the property account.
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The Bank
of New York Mellon Trust Company, National Association (formerly known as The
Bank of New York Trust Company, National Association), acting in its capacity as
guarantee trustee, will hold for your benefit a trust preferred securities
guarantee, which will be separately qualified under the Trust Indenture Act of
1939.
Because
Centex or one of its subsidiaries will own all of the common securities of each
trust, Centex or that subsidiary will have the exclusive right to appoint,
remove or replace trustees and to increase or decrease the number of
trustees. In most cases, there will be at least five
trustees. The term of a trust will be described in the applicable
prospectus supplement, but may dissolve earlier as provided in the applicable
declaration of trust.
The
duties and obligations of the trustees of a trust will be governed by the
declaration of that trust, the Delaware Statutory Trust Act and the Trust
Indenture Act of 1939.
Books
and Records
The books
and records of each trust will be maintained at the principal office of the
trust and will be open for inspection by each holder of trust preferred
securities of the trust or any authorized representative for any purpose
reasonably related to the holder’s interest in the trust during normal business
hours.
The
Property Trustee
The
property trustee, for the benefit of the holders of the trust preferred
securities, generally will exercise all rights under the applicable indenture
for the holders of the junior subordinated debt securities deposited in the
trust as trust assets, including the right to enforce Centex’s obligations under
the junior subordinated debt securities upon the occurrence of an event of
default under the junior subordinated debt indenture.
If Centex
extends the interest payment period for the related junior subordinated debt
securities held by a trust and, as a result, the trust does not make
distributions, the property trustee will not be able to enforce the payment of
distributions on the trust preferred securities until an event of default under
the declaration of trust has occurred. If an event of default under
the declaration of trust has occurred and is continuing, then the holders of at
least a majority of outstanding trust preferred securities of a trust may direct
the property trustee for such trust or the guarantee trustee, as the case may
be, to enforce the available remedies under the related declaration of trust and
trust preferred securities guarantee. If the property trustee fails
to enforce its rights under the applicable series of junior subordinated debt
securities, you, or any other holder of trust preferred securities, may provide
written notice to the property trustee that you, or any other holder of trust
preferred securities, will enforce those rights and, 30 days after submitting
that request, you, or any other holder of trust preferred securities, may, to
the fullest extent permitted by law, enforce those rights directly against
Centex without first instituting any legal proceeding against the property
trustee or any other person.
If an
event of default under the applicable declaration of trust has occurred and is
continuing and results from Centex’s failure to make payments on the applicable
series of junior subordinated debt securities when due, then you, or any other
holder of trust preferred securities, may directly institute a proceeding to
enforce payment of the principal of, any premium or interest on or any
additional amounts payable with respect to the applicable series of junior
subordinated debt securities in an amount corresponding to the aggregate
liquidation amount of your or their trust preferred securities, respectively. If
you, or any other holder of trust preferred securities, bring any such direct
action, Centex will be subrogated to your or their rights under the applicable
declaration of trust to the extent of any payment made by Centex to you, or to
any other holder of trust preferred securities, respectively. Except as
expressly provided in the preceding sentences or in the applicable prospectus
supplement, neither you, nor any other holder of trust preferred securities,
will be able to exercise directly any other remedy available to the holders of
the applicable series of junior subordinated debt
securities.
Events
of Default
If an
event of default under the junior subordinated debt indenture occurs and is
continuing, an event of default under the related declaration of trust will
occur and be continuing. In that case, each declaration of trust provides that
the holders of common securities will waive any such event of default under such
declaration of trust until all events of default under such declaration of trust
relating to the trust preferred securities of the trust have been cured, waived
or otherwise eliminated. Until all such events of default under such
declaration of trust relating to the trust preferred securities have been cured,
waived or otherwise eliminated, the property trustee will act solely on behalf
of the holders of the trust preferred securities, and only the holders of the
trust preferred securities will have the right to direct the property trustee as
to some matters under such declaration of trust and under the indenture relating
to the junior subordinated debt securities.
If the
holders of the trust preferred securities of a trust waive any event of default
under the declaration of trust as provided in the declaration, the holder of the
common securities will also be bound by the waiver without any further act, vote
or consent. The property trustee will notify you of any notice of
default relating to the debt securities, unless such default has been cured
before the giving of such notice or the property trustee in good faith
determines that the withholding of such notice is in your
interests.
Debts
and Obligations
In each
declaration of trust, Centex has agreed to pay all debts and obligations, other
than payments on the related trust preferred securities, and all costs and
expenses of the applicable trust, including the fees and expenses of its
trustees and any taxes and all costs and expenses of the
trust. Centex will not pay withholding taxes of the trusts except to
the extent we describe in the prospectus supplement. Centex’s
obligations under each declaration of trust will benefit, and will be
enforceable by, any person to whom any such debts, obligations, costs, expenses
and taxes are owed whether or not such creditor has received notice of Centex’s
contractual obligation. Any such creditor may enforce these
obligations directly against Centex, and Centex has irrevocably waived any right
or remedy to require that any such creditor take any action against any trust or
any other person before proceeding against Centex. Centex will be
subrogated to all rights of a trust relating to any amounts paid to any creditor
by Centex.
DESCRIPTION OF THE TRUST PREFERRED
SECURITIES
Terms
The terms
of the trust preferred securities will include those stated in the amended and
restated declarations of trust and those made a part of such declarations by the
Trust Indenture Act of 1939. For a complete description of the trust preferred
securities, we encourage you to read the prospectus supplement and the amended
and restated declaration of trust, a form of which we have filed with the
SEC. Please read “Where You Can Find More Information.”
Centex
will guarantee the trust preferred securities on a subordinated basis to the
extent described under “Description of the Trust Preferred Securities
Guarantees.”
The
prospectus supplement relating to trust preferred securities being offered will
include specific terms relating to the offering. These terms will
include some or all of the following:
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the
designation of the trust preferred
securities;
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the
number of trust preferred securities issued by the
trust;
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the
annual distribution rate, the distribution payment dates, the record dates
for distribution payments and the additional amounts, if any, that may be
payable with respect to the trust preferred
securities;
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whether
distributions will be cumulative and compounding and, if so, the dates
from which distributions will be cumulative or
compounded;
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the
amounts that will be paid out of the assets of the trust to the holders of
trust preferred securities upon dissolution, winding-up or termination of
the trust;
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any
repurchase or redemption
provisions;
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any
voting rights of the trust preferred securities in addition to those
required by law;
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terms
for any conversion or exchange of the trust preferred securities into
other securities;
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any
rights to defer distributions on the trust preferred securities by
extending the interest payment period on the debt securities;
and
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any
other relevant terms, rights, preferences, privileges, limitations or
restrictions of the trust preferred
securities.
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We also
will describe in the prospectus supplement the material United States federal
income tax considerations applicable to any offering of trust preferred
securities.
Voting
You will
have limited voting rights, relating only to the modification of the trust
preferred securities and the exercise of a trust’s rights as holder of the
junior subordinated debt securities and the trust preferred securities
guarantee. You will not be able to appoint, remove or replace
trustees or to increase or decrease the number of trustees, because these rights
will be vested exclusively in the holder of the common securities of the
trust.
Distributions
Under
each declaration, the property trustee must make distributions on the trust
preferred securities of a trust to the extent that the property trustee has cash
on hand in the applicable property account to permit such
payment. The only funds available for distribution to the holders of
the trust preferred securities of a trust will be those received by the property
trustee on the junior subordinated debt securities. If Centex does
not make payments on the junior subordinated debt securities, the property
trustee will not make corresponding distributions on the trust preferred
securities. Under each declaration, if and to the extent Centex does
make payments on the junior subordinated debt securities, the property trustee
will be obligated to make distributions on the trust preferred securities and
common securities of such trust on a pro rata basis.
Centex
will guarantee payment of distributions on the preferred securities of a trust
as and to the extent described under “Description of the Trust Preferred
Securities Guarantees.” A preferred securities guarantee covers
distributions and other payments on the applicable trust preferred securities
only if and to the extent that Centex has made a payment to the property trustee
on the applicable junior subordinated debt securities. If an event of
default under the related declaration has occurred and is continuing, any funds
available to make payments will be paid first to you and the other holders of
the trust preferred securities pro rata based on the aggregate liquidation
amount of trust preferred securities held by you and other holders in relation
to the aggregate liquidation amount of all the outstanding trust preferred
securities. In that case, the holder of common securities of a trust would
receive payments only after satisfaction of all amounts owed to the holders of
trust preferred securities.
Record
Holders
The
trustees of a trust may treat the registered owners of the trust preferred
securities as the holders for purposes of receiving distributions and for all
other purposes. Trust preferred securities will be issued in fully
registered form. Unless we inform you otherwise in a prospectus
supplement, trust preferred securities will be represented by one or more global
certificates registered on the books and records of such trust in the name of a
depositary or its nominee. Under each declaration:
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the
trust and its trustees will be entitled to deal with the depositary for
all purposes, including the payment of distributions and receiving
approvals, votes or consents under the related
declaration. Except for provisions in the related declaration
dealing with the issuance of definitive certificates representing the
trust preferred securities, the trust and its trustees will not have any
obligation to persons owning a beneficial interest in trust preferred
securities registered in the name of and held by the depositary or its
nominee; and
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the
rights of beneficial owners of trust preferred securities will be
exercised only through the depositary and will be limited to those
established by law and agreements with the depositary and/or its
participants.
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The
depositary will receive all notices and communications to, and all distributions
on, trust preferred securities that are registered in the name of and held by a
depositary or its nominee. Centex will disclose in the applicable
prospectus supplement the specific terms of the depositary arrangement for the
trust preferred securities of a trust and any additional rights and limitations
of owners of beneficial interests in the global junior subordinated debt
securities.
DESCRIPTION OF THE TRUST PREFERRED
SECURITIES GUARANTEES
Centex
will fully and unconditionally guarantee on a subordinated basis payments on the
trust preferred securities as described in this section. The
guarantees cover the following payments:
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periodic
cash distributions on the trust preferred securities out of funds held by
the property trustee of the trust;
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payments
on redemption of trust preferred securities of each trust out of funds
held by the property trustee of the trusts;
and
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payments
on liquidation of each trust out of legally available funds held by the
trust.
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The
Bank of New York Mellon Trust Company, National Association (formerly known as
The Bank of New York Trust Company, National Association), as guarantee trustee,
will hold the guarantees for the benefit of the holders of trust preferred
securities.
We have
summarized selected provisions of the guarantees below. This summary
is not complete. For a complete description, we encourage you to read the
guarantee agreement, a form of which we have filed with the
SEC. Please read “Where You Can Find More Information.”
Centex
will irrevocably and unconditionally agree to pay you in full the following
amounts to the extent not paid by the trust:
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any
accumulated and unpaid distributions and any additional amounts with
respect to the trust preferred securities and any redemption price for
trust preferred securities called for redemption by the trust, if and to
the extent that Centex has made corresponding payments on the junior
subordinated debt securities to the property trustee of the trust;
and
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payments
upon the dissolution, winding-up or termination of the trust equal to the
lesser of:
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the
liquidation amount plus all accumulated and unpaid distributions and
additional amounts on the trust preferred securities to the extent the
trust has funds legally available for those payments;
and
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the
amount of assets of the trust remaining legally available for distribution
to the holders of trust preferred securities in liquidation of the
trust.
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Centex
will not be required to make these liquidation payments if:
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the
trust distributes the junior subordinated debt securities to the holders
of trust preferred securities in exchange for their trust preferred
securities; or
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the
trust redeems the trust preferred securities in full upon the maturity or
redemption of the junior subordinated debt
securities.
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Centex
may satisfy its obligation to make a guarantee payment either by making payment
directly to the holders of trust preferred securities or to the guarantee
trustee for remittance to the holders or by causing the applicable trust to make
the payment to them.
Each
guarantee is a guarantee from the time of issuance of the applicable series of
trust preferred securities. The
guarantees only cover, however, distributions and other payments on trust
preferred securities if and to the extent that Centex has made corresponding
payments on the junior subordinated debt securities to the applicable property
trustee. If Centex does not make those corresponding payments on the
junior subordinated debt securities, the trust will not have funds available for
payments and the trustee will not make distributions or other payments on the
trust preferred securities.
Centex’s
obligations under the declaration of trust for each trust, the guarantees, the
junior subordinated debt securities and the associated indenture taken together
will provide a full and unconditional guarantee on a subordinated basis of
payments due on the trust preferred securities.
Covenants
of Centex
In each
guarantee, Centex will agree that, as long as any trust preferred securities
issued by the applicable trust are outstanding, Centex will not make the
payments and distributions described below if:
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it
is in default on its guarantee payments or other payment obligations under
the related guarantee;
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any
event of default under the applicable declaration of trust has occurred
and is continuing; or
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Centex
has elected to defer payments of interest on the related junior
subordinated debt securities by extending the interest payment period and
that deferral period is continuing.
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In these
circumstances, Centex will agree that it will not:
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declare
or pay any dividends on its capital stock or redeem, purchase, acquire or
make a distribution or liquidation payment with respect to its capital
stock other than:
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dividends
or distributions in its shares of capital stock or options, warrants or
rights to subscribe for or purchase shares of its common
stock;
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transactions
relating to a shareholders’ rights
plan;
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as
a result of a reclassification of its capital stock or the exchange or
conversion of one class or series of its capital stock for another class
or series of its capital stock;
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the
payment of accrued dividends and the purchase of fractional share
interests upon conversion or exchange of its capital stock;
or
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purchases
of its shares of common stock related to benefit plans, dividend
reinvestment plans or stock purchase
plans;
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make
any payments on or repay, repurchase or redeem any debt security that
ranks equally with or junior to the junior subordinated debt securities;
or
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make
any guarantee payments on any guarantee by Centex of the debt securities
of any of its subsidiaries, other than a payment under a guarantee related
to a series of the trust preferred securities, if that guarantee ranks
equally with or junior to the junior subordinated debt
securities.
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In
addition, as long as trust preferred securities issued by any trust are
outstanding, Centex will agree that it will:
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remain
the sole direct or indirect owner of all the outstanding common securities
of that trust, except as permitted by the applicable declaration of
trust;
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permit
the common securities of that trust to be transferred only as permitted by
the declaration of trust; and
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use
reasonable efforts to cause that trust to continue to be treated as a
grantor trust for United States federal income tax purposes, except in
connection with a distribution of junior subordinated debt securities to
the holders of trust preferred securities as provided in the declaration
of trust, in which case the trust would be
dissolved.
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Amendments
and Assignment
Centex
and the guarantee trustee may amend each guarantee without the consent of any
holder of trust preferred securities if the amendment does not adversely affect
the rights of the holders of the trust preferred securities in any material
respect. In all other cases, Centex and the guarantee trustee may
amend each guarantee only with the prior approval of the holders of at least a
majority of outstanding trust preferred securities issued by the applicable
trust. The manner in which Centex will obtain that approval will be
described in the prospectus supplement.
Centex
may assign its obligations under the guarantees only in connection with a
consolidation, merger or asset sale involving Centex permitted under the
indenture governing the junior subordinated debt securities.
Termination
of the Guarantee
A
guarantee will terminate upon:
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full
payment of the redemption price of all trust preferred securities of the
applicable trust;
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distribution
of the junior subordinated debt securities, or any securities into which
those debt securities are convertible, to the holders of the trust
preferred securities and common securities of that trust in exchange for
all the securities issued by that trust;
or
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full
payment of the amounts payable upon liquidation of that
trust.
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Each
guarantee will, however, continue to be effective or will be reinstated if any
holder of trust preferred securities must repay any amounts paid on those trust
preferred securities or under the guarantee.
Status
of the Guarantee
Centex’s
obligation under each guarantee to make guarantee payments will be:
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unsecured;
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subordinated
and junior in right of payment to all other liabilities of Centex,
including the debt securities and guarantees relating to those
liabilities; and
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senior
to all of Centex’s capital stock.
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Centex’s
obligations under each guarantee will rank equally with obligations under other
guarantee agreements that Centex may enter into from time to time if
both:
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the
guarantee agreements provide for comparable guarantees by Centex of
payment on preferred securities issued by other trusts or financing
vehicles of Centex; and
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the
debt relating to those preferred securities is unsecured indebtedness of
Centex.
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Centex’s
obligations under each guarantee will be effectively junior to all debt and
preferred stock of its subsidiaries. By your acceptance of the trust
preferred securities, you agree to the subordination provisions and other terms
of the related guarantee.
Each
guarantee will be deposited with the guarantee trustee to be held for your
benefit. The guarantee trustee will have the right to enforce the
guarantee on your behalf. In most cases, the holders of a majority of
outstanding trust preferred securities issued by the applicable trust who have
posted satisfactory security and indemnity will have the right to direct the
time, method and place of:
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conducting
any proceeding for any remedy available to the applicable guarantee
trustee; or
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exercising
any trust or other power conferred upon that guarantee trustee under the
applicable guarantee.
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Each
guarantee will constitute a guarantee of payment and not merely of collection.
This means that the guarantee trustee may institute a legal proceeding directly
against Centex to enforce the payment rights under the guarantee without first
instituting a legal proceeding against any other person or entity.
If the
guarantee trustee fails to enforce the guarantee or Centex fails to make a
guarantee payment, you may institute a legal proceeding directly against Centex
to enforce your rights under that guarantee without first instituting a legal
proceeding against the applicable trust, the guarantee trustee or any other
person or entity.
Periodic
Reports Under Guarantee
Centex
will be required to provide annually to the guarantee trustee a statement as to
its performance of its obligations and its compliance with all conditions under
the guarantees.
Duties
of Guarantee Trustee
The
guarantee trustee normally will perform only those duties specifically set forth
in the applicable guarantee. The guarantees do not contain any
implied covenants. If a default occurs on a guarantee, the guarantee
trustee will be required to use the same degree of care and skill in exercise of
its powers under the guarantee as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs. The guarantee
trustee will exercise any of its rights or powers under the applicable guarantee
at the request or direction of holders of the applicable series of trust
preferred securities only if it is furnished security and indemnity satisfactory
to it.
Governing
Law
New York
law will govern the guarantees.
DESCRIPTION OF THE JUNIOR SUBORDINATED
DEBT SECURITIES
Centex
may issue to one or more trusts from time to time one or more series of junior
subordinated debt securities under an indenture, dated as of November 14, 2000,
between it and The Bank of New York Mellon Trust Company, National Association
(formerly known as The Bank of New York Trust Company, National Association)
(successor to The Chase Manhattan Bank), as indenture trustee. The
indenture does not limit the amount of junior subordinated debt securities that
Centex may issue under the indenture or the amount of additional debt that
Centex or any of its subsidiaries may incur. Centex will issue only
one series of junior subordinated debt securities to each trust.
We have
summarized selected provisions of the indenture and the junior subordinated debt
securities below. This summary is not complete. For a
complete description, we encourage you to read the indenture, which we have
filed with the SEC. Please read “Where You Can Find More
Information.”
Ranking
The
junior subordinated debt securities will be the unsecured junior subordinated
obligations of Centex. In any liquidation, reorganization or insolvency
proceeding involving Centex, the rights of Centex and its creditors, including
the holders of junior subordinated debt securities, will be effectively junior
to the claims of holders of any debt or preferred stock of Centex’s
subsidiaries. For a more detailed description of the subordination provisions of
the junior subordinated debt securities, please read “Subordination”
below.
Subsequent
Distribution to Holders of Trust Securities
If Centex
issues junior subordinated debt securities to a trust in connection with the
issuance of trust preferred securities and common securities by that trust,
those junior subordinated debt securities subsequently may be distributed to the
holders of the trust preferred securities and common securities
either:
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upon
the dissolution of the trust; or
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upon
the occurrence of events that we will describe in the prospectus
supplement.
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Terms
The
prospectus supplement will include specific terms relating to the junior
subordinated debt securities. These terms will include some or all of the
following:
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the
designation of the securities;
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the
total principal amount of the
securities;
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the
purchase price of and any premium on the
securities;
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the
date or dates, if any, on which the principal of the securities will be
payable and the right to shorten, extend or defer the
dates;
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the
interest rate, whether fixed or variable, the date from which interest
will accrue, interest payment dates and record dates for interest
payments;
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any
right to extend or defer the interest payment periods and the duration of
the extension;
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whether
interest payments will be cumulative and compounding and, if so, the dates
from which interest payments will be so cumulative or
compounded;
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any
provisions for redemption;
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any
provisions that would obligate Centex to redeem or purchase the
securities;
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any
provisions for exchange, conversion or prepayment of the
securities;
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whether
and under what circumstances Centex will pay any additional amounts on the
securities and whether Centex will have the option to redeem the
securities rather than pay the additional
amounts;
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the
form of the securities;
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any
changes or additions to the events of default or covenants described in
this prospectus;
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whether
Centex will issue the securities in the form of one or more global
securities and the identity of any
depositary;
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the
places where you can receive any payments on the securities, present the
securities for registration of transfer or exchange and make any notices
and demands to Centex concerning the
securities;
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the
portion of the principal amount of the securities that will be payable if
the maturity is accelerated, if other than the entire principal
amount;
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any
additional means of defeasance of the securities, any additional
conditions or limitations to defeasance of the securities or any changes
to those conditions or limitations;
and
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the
identity of any paying agent.
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Unless we
inform you otherwise in the prospectus supplement, Centex will issue the junior
subordinated debt securities:
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in
United States dollars;
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in
fully registered form; and
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without
coupons.
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Holders
of junior subordinated debt securities may present them for exchange and for
transfer as described in the indenture and the prospectus supplement. Centex
will not charge a service charge for any registration of transfer or exchange of
the debt securities. Centex may, however, require the payment of any tax or
other governmental charge payable for that registration.
Centex
may sell the junior subordinated debt securities at a discount, which may be
substantial, below their stated principal amount. These junior subordinated debt
securities may bear no interest or interest at a rate that at the time of
issuance is below market rates. We will describe in the prospectus supplement
any material United States federal income tax consequences and other special
considerations.
Subordination
Payment
of principal of and any premium and interest on the junior subordinated debt
securities will generally be subordinated and junior in right of payment to the
prior payment in full of all senior debt of Centex.
The
indenture generally provides that no payment of principal of or any premium or
interest on the junior subordinated debt securities may be made if Centex fails
to pay the principal, premium, interest or any other amounts on any senior debt
when due, whether at maturity or acceleration of maturity. This restriction on
payment will continue until the default has been cured or waived or has ceased
to exist or until Centex has discharged or paid the senior debt in
full.
If the
maturity of the junior subordinated debt securities is accelerated, Centex will
make no payments on those debt securities until the holders of all senior debt
are paid all principal, premium and interest then due in full, including any
amounts due upon acceleration. If Centex pays any amount or distributes any
assets to creditors in a liquidation, dissolution, reorganization, bankruptcy or
any similar proceeding, all senior debt will be paid first before any payment is
made on the junior subordinated debt securities.
The
subordination does not affect Centex’s obligation, which is absolute and
unconditional, to pay, when due, principal of and premium, if any, and interest
on the junior subordinated debt securities. In addition, the subordination does
not prevent the occurrence of any default under the indenture.
The
indenture will not limit the amount of senior debt that Centex may
incur. As a result of the subordination of the junior subordinated
debt securities, if Centex became insolvent, holders of junior subordinated debt
securities may receive less on a proportionate basis than other Centex
creditors.
Unless we
inform you otherwise in the prospectus supplement, the term “senior debt” means
the principal of and any premium and interest on “debt” of Centex, but excludes
any debt that:
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is
without recourse; or
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states
that it is subordinated to or ranks equal with the junior subordinated
debt securities.
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Unless we
inform you otherwise in the prospectus supplement, the term “debt”
means:
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indebtedness
for borrowed money;
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obligations
evidenced by bonds, debentures, notes or similar
instruments;
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undrawn
obligations relating to letters of credit or similar instruments, other
than standby letters of credit and bid or performance bonds issued in the
ordinary course of business;
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reimbursement
obligations relating to drawn letters of credit and similar instruments
described in the preceding item if the drawing is reimbursed within 30
business days following demand for
reimbursement;
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obligations
to pay the deferred and unpaid purchase price of property or services,
except trade payables and accrued expenses incurred in the ordinary course
of business;
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capitalized
lease obligations;
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debt
of a third party secured by a lien on any asset of
Centex;
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debt
of others guaranteed by Centex to the extent of the guarantee;
and
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obligations
for claims under derivative
products.
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Indenture
Events of Default
The
following are events of default with respect to a series of junior subordinated
debt securities:
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failure
to pay interest or any additional amounts on that series of securities for
30 days, unless Centex has validly extended the interest payment
period;
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failure
to pay principal of or any premium on that series of securities when
due;
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failure
to deposit any sinking fund payment for 30
days;
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failure
to comply in any material respect with any other covenant or agreement in
the indenture for that series of securities (other than an agreement or
covenant that is included in the indenture solely for the benefit of other
series of junior subordinated debt securities) for 90 days after written
notice by the indenture trustee or by the holders of at least 25% in
principal amount of the outstanding securities of that series;
and
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certain
events in bankruptcy, insolvency or reorganization of
Centex.
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If an
event of default for any series of junior subordinated debt securities occurs
and is continuing, the indenture trustee or the holders of at least 25% in
principal amount of the junior subordinated debt securities of the series
affected by the default may declare the principal of those securities to be due
and payable. That declaration of acceleration will occur automatically if the
event of default relates to bankruptcy, insolvency or reorganization
events. The holders of a majority in principal amount of the
outstanding junior subordinated debt securities of the series affected by the
default may rescind the accelerated payment requirement and waive the default if
Centex:
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has
cured the default; and
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has
deposited with the indenture trustee an amount sufficient to pay all
matured installments of principal and any premium, except those caused by
the acceleration, and any interest and additional
amounts.
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If
required by the declaration of trust, any rescission may be subject to the
consent of the holders of the trust preferred securities and common
securities.
In most
cases, holders of a majority in principal amount of the outstanding junior
subordinated debt securities of a series may direct the time, method and place
of:
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conducting
any proceeding for any remedy available to the indenture trustee;
or
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exercising
any trust or power conferred on the indenture trustee with respect to that
series.
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The
holders of a majority in principal amount of the outstanding junior subordinated
debt securities of a series may waive any past default with respect to those
securities. Those holders may waive any default in the payment of principal,
premium, interest or any additional amounts, however, only if
Centex:
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has
cured the default; and
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has
deposited with the indenture trustee an amount sufficient to pay all
matured installments of principal and any premium, except those caused by
acceleration, and any interest and additional
amounts.
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The
indenture requires Centex to file annually with the indenture trustee a
certificate as to its compliance with the conditions and covenants contained in
the indenture.
An event
of default under the indenture for a series of junior subordinated debt
securities will constitute an event of default under the declaration of trust
for the applicable series of trust preferred securities. A holder of trust
preferred securities may directly institute a proceeding against Centex for
enforcement of payment to that holder of its pro rata share of principal,
premium, interest or any additional amounts if:
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an
event of default under the applicable declaration of trust has occurred
and is continuing; and
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that
event of default is attributable to Centex’s failure to pay principal, any
premium, interest or additional amounts on the applicable series of junior
subordinated debt securities when
due.
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In any
such proceeding, Centex will be subrogated to the rights of the holder under the
applicable declaration of trust to the extent of any payment Centex makes to the
holder in the proceeding. Except as described in the preceding sentences or in
the prospectus supplement, the holders of trust preferred securities will not be
able to exercise directly any other remedy available to the holders of the
junior subordinated debt securities.
Modification
of the Indenture
Centex
and the indenture trustee may amend or supplement the indenture if the holders
of a majority in principal amount of the outstanding junior subordinated debt
securities of all series issued under the indenture and affected by the
amendment or supplement, acting as one class, consent to it. Without the consent
of the holder of each junior subordinated debt security affected, however, no
amendment or supplement may:
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extend
the fixed maturity of the security;
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reduce
the principal amounts of the
security;
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reduce
the rate of or extend the time for payment of interest on the
security;
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reduce
any premium payable on the redemption of the
security;
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reduce
the amount of securities whose holders must consent to an amendment,
supplement or waiver;
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impair
the holder’s right to receive payments on the security or to institute
suit for the enforcement of any payment on the
security;
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make
any change in the provision for modifications relating to amendments or
supplements to the indenture;
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change
any obligation to pay additional amounts on any security;
or
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impair
the right of any holder to convert or exchange a security for any other
security, if the securities are so convertible or
exchangeable.
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Centex
and the indenture trustee may amend or supplement the indenture without the
consent of any holders of junior subordinated debt securities:
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to
provide for the assumption of Centex’s obligations under the indenture by
a successor upon any merger, consolidation or asset
transfer;
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to
add covenants, restrictions, conditions, defaults or provisions for the
protection of the holders of the
securities;
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to
cure any ambiguity or to correct or supplement any defect or
inconsistency;
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to
change any provision of the indenture effective after there are no
outstanding securities of any series entitled to the benefit of that
provision;
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to
provide for the issuance of securities in coupon
form;
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to
provide for the acceptance of a successor or another
trustee;
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to
qualify or maintain the qualification of the indenture under the Trust
Indenture Act of 1939;
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to
establish the form or terms of a series of securities;
or
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to
make any change that does not adversely affect the rights of any holder of
securities in any material respect.
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Book-Entry
and Settlement
Centex
may issue the junior subordinated debt securities of a series in the form of one
or more global debt securities that would be deposited with a depositary or its
nominee identified in the prospectus supplement. The prospectus supplement will
describe:
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any
circumstances under which beneficial owners may exchange their interests
in a global debt security for certificated junior subordinated debt
securities of the same series with the same total principal amount and the
same terms;
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the
manner in which Centex will pay principal of and any premium and interest
on a global debt security; and
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the
terms of any depositary arrangement and the rights and limitations of
owners of beneficial interests in any global debt
security.
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Consolidation,
Merger and Sale
Centex
has agreed that it will consolidate with or merge into any entity or transfer or
dispose of all or substantially all of its assets to any entity only
if:
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Centex
is the continuing corporation, or
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if
Centex is not the continuing corporation, the successor is organized and
existing under the laws of any United States jurisdiction and assumes all
of Centex’s obligations under the indenture and the junior subordinated
debt securities, and
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in
either case, immediately after giving effect to the transaction, no
default or event of default would occur and be
continuing.
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Defeasance
and Discharge
When we
use the term defeasance, we mean discharge from the obligations under the
indenture. Centex will be discharged from its obligations with respect to the
junior subordinated debt securities of a series if:
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Centex
deposits with the indenture trustee funds or government securities
sufficient to make payments on the junior subordinated debt securities of
that series on the dates those payments are due and
payable;
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no
event of default with respect to the junior subordinated debt securities
of that series has occurred and is continuing on the date of
deposit;
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no
event or condition under the subordination provisions described above
prevents Centex from making payments on the junior subordinated debt
securities of that series on the date of the deposit;
and
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certain
other conditions are satisfied.
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Unless we
inform you otherwise in the prospectus supplement, Centex also will be required
to deliver to the indenture trustee a U.S. Internal Revenue Service ruling or an
opinion of counsel that the deposit and related defeasance would not cause the
holders of the junior subordinated debt securities to recognize income, gain or
loss for United States federal income tax purposes.
In
addition, the indenture will cease to be of further effect with respect to
junior subordinated debt securities of a series when either:
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Centex
has paid the principal of, any premium and interest on and any additional
amounts payable with respect to all the outstanding junior subordinated
debt securities of that series when
due;
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Centex
has delivered all outstanding junior subordinated debt securities of that
series to the indenture trustee for cancellation;
or
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both
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all
outstanding junior subordinated debt securities of that series not
delivered to the indenture trustee for cancellation have become due and
payable, will become due and payable within one year or are to be called
for redemption within one year, and
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•
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Centex
deposits with the indenture trustee funds or government securities
sufficient to make payments on the junior subordinated debt securities of
that series on the dates those payments are due and
payable.
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For this
provision to apply, Centex also must pay all other sums payable by it under the
indenture.
If Centex
defeases a series of junior subordinated debt securities or if the indenture
ceases to be of further effect with respect to a series of junior subordinated
debt securities, the holders of those debt securities will not be entitled to
the benefits of the indenture, except for those benefits relating
to:
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Centex’s
obligations:
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to
register the transfer or exchange of junior subordinated debt
securities;
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to
replace stolen, lost or mutilated junior subordinated debt
securities;
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to
maintain paying agencies; and
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if
the junior subordinated debt securities are convertible into other
securities, to deliver those securities upon
conversion;
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the
rights of the holders of junior subordinated debt securities to receive
payments when due (but not upon
acceleration);
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the
rights, obligations and duties of the indenture trustee;
and
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the
rights of the holders of junior subordinated debt securities to payment
from property deposited with the indenture
trustee.
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Governing
Law
New York
law will govern the indenture and the junior subordinated debt
securities.
Information
About the Indenture Trustee
The Bank
of New York Mellon Trust Company, National Association (formerly known as The
Bank of New York Trust Company, National Association) is the trustee under the
indenture. Its address is One Wall Street, New York, New York 10286.
Centex and its affiliates maintain other banking relationships in the ordinary
course of business with the trustee and its affiliates.
If an
event of default occurs and is continuing, the trustee will be required to use
the degree of care and skill of a prudent person in the conduct of his own
affairs. The trustee will become obligated to exercise any of its
powers under the indenture at the request of any of the holders of any junior
subordinated debt securities only after those holders have furnished the trustee
indemnity reasonably satisfactory to it.
The
indenture contains limitations on the right of the trustee, if the trustee
becomes one of Centex’s creditors, to obtain payment of claims or to realize on
certain property received for any such claim, as security or
otherwise. The trustee is permitted to engage in other transactions
with Centex. If the trustee acquires any conflicting interest,
however, it must eliminate that conflict or resign as indenture trustee within
90 days after ascertaining that it has a conflicting interest and after the
occurrence of a default under the indenture, unless that default has been cured,
waived or otherwise eliminated within the 90-day period.
Assignment
Centex
may at any time assign any of its rights or obligations under the indenture to
an affiliate. Centex will, however, remain liable for all its
obligations. Centex also may assign the indenture to a successor in a
merger, consolidation or asset sale involving Centex permitted under the
indenture.
DESCRIPTION OF CAPITAL STOCK
Our
authorized capital stock consists of:
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300,000,000
shares of common stock, par value $.25 per share;
and
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5,000,000
shares of preferred stock issuable in
series.
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We have
summarized selected aspects of our capital stock below. The summary
is not complete. For a complete description, you should refer to our
Articles of Incorporation and By-laws, both of which are exhibits to the
registration statement of which this prospectus is part.
Common
Stock
Each
share of common stock is entitled to participate equally in dividends as and
when declared by our board of directors. The payment of dividends on
our common stock may be limited by obligations we may have to holders of any
preferred stock. In addition, certain rights of holders of common
stock may be adversely affected by the rights of holders of any preferred stock
that we may issue in the future. For information regarding
restrictions on payments of dividends or such other limitations on the rights of
common stockholders, see the prospectus supplement applicable to any issuance of
common or preferred stock.
Common
stockholders are entitled to one vote for each share held on all matters
submitted to them. The common stock does not have cumulative voting
rights. Thus, a stockholder is not entitled to a number of votes
equal to his shares multiplied by the number of directors to be elected and to
divide his votes among the candidates in any way he chooses.
If we
liquidate or dissolve our business, the holders of common stock will share
ratably in the distribution of assets available for distribution to stockholders
after creditors are paid and preferred stockholders receive their
distributions. The shares of common stock have no preemptive rights
and are not convertible, redeemable or assessable or entitled to the benefits of
any sinking fund.
All
issued and outstanding shares of common stock are fully paid and
nonassessable. Any shares of common stock we offer under this
prospectus will be fully paid and nonassessable.
The
common stock is listed on the New York Stock Exchange and trades under the
symbol “CTX.”
Preferred
Stock
Our board
of directors can, without action by stockholders, issue one or more classes or
series of preferred stock. The board can determine for each series
the number of shares, designation, relative voting rights, dividend rates,
liquidation and other rights, preferences and limitations. In some
cases, the issuance of preferred stock could delay or discourage a change in
control of our company.
We have
summarized the material provisions of the preferred stock in this section. This
summary is not complete. We will file the full provisions governing any
preferred stock with the SEC before we issue any of it, and you should read any
such provisions that may be important to you.
The
prospectus supplement relating to any series of preferred stock we are offering
will include specific terms relating to the offering. These terms will include
some or all of the following:
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the
title of the preferred stock;
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the
maximum number of shares of the
series;
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the
dividend rate or the method of calculating the dividend, the date from
which dividends will accrue and whether dividends will be
cumulative;
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any
liquidation preference;
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any
redemption provisions;
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any
sinking fund or other provisions that would obligate us to redeem or
purchase the preferred stock;
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any
terms for the conversion or exchange of the preferred stock for other
securities of our company or any other
entity;
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any
voting rights; and
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any
other preferences and relative, participating, optional or other special
rights or any qualifications, limitations or restrictions on the rights of
the shares.
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Any
shares of preferred stock we issue will be fully paid and
nonassessable.
We do not
have any outstanding shares of preferred stock at the date of this
prospectus.
Anti-Takeover
Provisions
The
provisions of Nevada law and our Articles of Incorporation and By-laws we
summarize below may have an anti-takeover effect and may delay, defer or prevent
a tender offer or takeover attempt that a stockholder might consider in his or
her best interest, including those attempts that might result in a premium over
the market price for the common stock.
Staggered
Board of Directors
Our board
of directors is divided into three classes that are elected for staggered
three-year terms. The classification of the board of directors has the effect of
requiring at least two annual stockholder meetings, instead of one, to effect a
change in control of the board of directors. The affirmative vote of the holders
of two-thirds or more of the voting power of shares entitled to vote in the
election of directors is required to remove a director.
Fair
Price Provision
Our
Articles of Incorporation contain a fair price provision. Certain transactions
involving our company and an interested stockholder (described below), or an
affiliate thereof, require the approval of both the holders of at least 66⅔% of
our outstanding voting stock and the holders of a majority of our outstanding
voting stock not owned by the interested stockholder. An “interested
stockholder” is any person who is the holder of 20% or more of our outstanding
voting stock, is an affiliate of Centex Corporation or at any time within the
two-year period prior to the transaction owned 20% or more of our outstanding
voting stock, or is a transferee of any voting stock owned by an interested
stockholder at any time within the two-year period prior to the transaction
(except pursuant to a public offering). Transactions with an
interested stockholder requiring such approval include certain mergers,
consolidations, reclassifications or recapitalizations, asset dispositions and
stock issuances valued at $40 million or more, the adoption of any plan of
liquidation or dissolution proposed by an interested stockholder, and any series
of transactions or any agreement that would result in any of the
foregoing. The voting requirements do not apply, however, if the
“disinterested directors,” as defined in our Articles of Incorporation, approve
the transaction, or the transaction meets other specified fair price
conditions.
Liability
of Our Directors and Officers
Pursuant
to Nevada law, our directors and officers will not be individually liable to
Centex Corporation or our stockholders or creditors for any damages as a result
of any act or failure to act in his or her capacity as a director or officer
unless it is proven that:
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his
or her act or failure to act constituted a breach of his or her fiduciary
duties as a director or officer;
and
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his
or her breach of those duties involved intentional misconduct, fraud or a
knowing violation of law.
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This
provision does not affect a director’s responsibilities under any other laws,
such as the federal securities laws, state or federal environmental laws or
certain specified provisions of Nevada law.
Director
Nominations
Our
stockholders can nominate candidates for
our board of directors if the stockholders follow the advance notice procedures
described in our By-laws.
Generally,
stockholders must submit a nomination at least 90 days prior to the anniversary
of the preceding year’s annual meeting. Stockholder nominations to be acted on
at a special meeting of the stockholders will generally need to be submitted by
the later of 60 days prior to the date of the meeting or ten days after public
disclosure was made of the date of the meeting. The notice must
include the name and address of, and the number and type of shares owned by,
both the stockholder (and, if applicable, the beneficial owner on whose behalf
or at whose request the nomination is being brought) and the person to be
nominated, the age and occupation of the person to be nominated, a
representation that the stockholder is the holder of record of stock entitled to
vote at the meeting and intends to appear in person or by proxy at the meeting,
a description of any arrangements or understandings with respect to the
nomination of directors that exist between the stockholder (or beneficial owner)
and any other person, other information about the stockholder (or beneficial
owner) and the nominee as may be required by the SEC and the consent of the
nominee to serve as a director if elected. The stockholder (or if
applicable, the beneficial owner on whose behalf or at whose request the
nomination is being sought) must also disclose any interests that the
stockholder (or beneficial owner) has in any derivative instruments,
arrangements or fees that allow the stockholder (or beneficial owner) to profit
from any increase or decrease in value of the Centex shares or to vote any
shares of any security of Centex, and any rights to receive dividends that are
separated or could be separated from the Centex shares. The notice
must also include a description of all monetary and other arrangements and
relationships between the stockholder (or beneficial owner) and the nominee or
his or her affiliates and associates. The nominee must also complete
a questionnaire and a written statement (the forms of which will be provided by
the Secretary of Centex upon request). In the written statement the
nominee must state that the nominee will, if elected, not have any conflicts of
interest that would prevent the nominee from performing the duties of a director
and will comply with all of Centex’s corporate governance, conflict of interest,
confidentiality, stock ownership and trading policies and
guidelines. In any instance in which a stockholder must disclose
information to comply with these procedures, the same information must be
disclosed for any people or entities affiliated with the
stockholder.
This is
the only procedure for stockholders to make nominations for
directors. Director nominations that are late or that do not include
all required information may be rejected. This could prevent
stockholders from making nominations for directors.
Our
stockholders can propose business to be acted upon at an annual meeting of
stockholders by following the advance notice procedures described in our
Bylaws.
Generally,
stockholders must submit notice of a business proposal at least 90 days prior to
the anniversary of the preceding year’s annual meeting. The notice
must include a brief description of the business to be brought before the
meeting and the reasons for conducting it at the annual meeting, and the name
and address of, and the number and type of shares owned by, the stockholder
giving notice (and, if applicable, the beneficial owner on whose behalf or at
whose request the matter is being brought), a representation that such
stockholder intends to appear in person or by proxy at the annual meeting to
bring such business before the annual meeting and a description of all
arrangements or understandings such stockholder (or beneficial owner) has
relating to such business and any material interest of the stockholder (or
beneficial owner). The stockholder (or if applicable, the beneficial
owner on whose behalf or at whose request the nomination is being sought) must
also disclose any interests that the stockholder (or beneficial owner) has in
any derivative instruments, arrangements or fees that allow the stockholder (or
beneficial owner) to profit from any increase or decrease in value of the Centex
shares or to vote any shares of any security of Centex, and any rights to
receive dividends that are separated or could be separated from the Centex
shares. This is the only procedure for stockholders to submit
business before an annual meeting. In any instance in which a
stockholder must disclose information to comply with these procedures, the same
information must be disclosed for any people or entities affiliated with the
stockholder.
If the
chairman of an annual meeting determines that business was not properly brought
before the annual meeting in accordance with the foregoing procedures, such
business shall not be transacted.
Nevada
Anti-takeover Statutes
We are
subject to provisions of Nevada law that provide that an acquiring person who
acquires a controlling interest (as described below) in a corporation may
exercise voting rights on any control shares (as described below) only if these
voting rights are conferred by a majority vote of the corporation’s
disinterested stockholders at an annual or special meeting. If the
acquiring person is accorded full voting rights and acquires control shares with
at least a majority of all the voting power, any of our stockholders who did not
vote in favor of authorizing voting rights for the control shares are entitled
to payment for the fair value of his or her shares.
A
“controlling interest” is an interest that is sufficient to enable the acquiring
person to exercise voting power in an election of directors that falls into at
least one of the following three categories:
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at
least 1/5 but not more than 1/3 of the voting
power;
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at
least 1/3 but not more than a majority of the voting power;
or
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a
majority of the voting power.
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“Control
shares” are outstanding voting shares that a person, together with persons
acting in association with such person:
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acquires
or offers to acquire in an acquisition of a controlling interest;
and
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acquired
during the 90-day period before such person acquired or offered to acquire
a controlling interest.
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In
addition, Nevada law restricts our ability to engage in any combination
(described below) with an interested stockholder (described below) for a period
of three years following the time that the stockholder became an interested
stockholder, unless the combination or the transaction by which the stockholder
became interested is approved by our board of directors prior to the time the
stockholder became interested. Nevada law also prohibits us from
engaging in any combination with an interested stockholder after the three-year
period following the time that such stockholder became an interested stockholder
unless the fair price provision in our Articles of Incorporation is complied
with and at least one of the following requirements is complied
with:
|
|
●
|
the
combination or transaction by which the stockholder became interested is
approved by the board of directors prior to the time the stockholder
became interested;
|
|
|
●
|
pursuant
to our Articles of Incorporation, the combination is approved both by the
affirmative vote of least 66⅔% of the holders of the outstanding voting
stock and the majority of the holders of the voting stock that is not
owned by the interested stockholder, at a meeting held three years or more
following the date such stockholder became interested;
or
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|
|
●
|
the
combination meets the criteria of Nevada corporate statutes mandating
“fair price” requirements.
|
A
“combination” generally includes certain mergers, consolidations,
reclassifications, recapitalizations, asset dispositions and stock issuances
involving or proposed by an interested stockholder (or affiliate thereof), the
adoption of any plan of liquidation or dissolution proposed by an interested
stockholder, and the receipt by the interested stockholder of the benefit of any
loans, advances, guarantees, pledges or other financial benefits provided by or
through Centex.
An
“interested stockholder” is a person who is:
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|
●
|
the
beneficial owner of 10% or more of our voting shares;
or
|
|
|
●
|
an
affiliate or associate of Centex and, at any time within the three-year
period prior to the date in question, was the beneficial owner of 10% or
more of our voting shares.
|
Our
Articles of Incorporation and By-laws do not exclude us from these
restrictions.
These
provisions are intended to enhance the likelihood of continuity and stability in
the composition of the board and in the policies formulated by the board and to
discourage some types of transactions that may involve actual or threatened
change of control of our company. These provisions are also designed
to reduce our vulnerability to an unsolicited proposal for a takeover that does
not contemplate the acquisition of all of our outstanding shares or an
unsolicited proposal for the potential restructuring or sale of all or a part of
our company. However, these provisions could discourage potential
acquisition proposals and could delay or prevent a change in control of our
company. They may also have the effect of preventing changes in our
management.
Other
Provisions
Our
Articles of Incorporation and By-laws also provide that:
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●
|
special
meetings of stockholders may only be called by the chairman of the board
of our board of directors or a majority of our board of
directors;
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|
|
●
|
stockholders
may act only at an annual or special meeting and not by written
consent;
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●
|
a
66⅔% vote of the outstanding voting stock is required for the stockholders
to amend our By-laws; and
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|
|
●
|
a
66⅔% vote of the outstanding voting stock is required for the stockholders
to amend the prohibition in our Articles of Incorporation on stockholders’
ability to call a special meeting and a 66⅔% vote of both our outstanding
voting stock and a majority of the voting stock held by disinterested
stockholders is required to amend the fair price provision in our Articles
of Incorporation.
|
Transfer
Agent and Registrar
BNY
Mellon Shareholder Services, LLC is our transfer agent and
registrar.
DESCRIPTION OF STOCK PURCHASE
CONTRACTS
AND STOCK PURCHASE UNITS
We may
issue stock purchase contracts, including contracts obligating holders to
purchase from us, and us to sell to the holders, a specified number of shares of
common stock (or a range of numbers of shares pursuant to a predetermined
formula) at a future date or dates, which we refer to herein as “stock purchase
contracts.” The price per share of common stock and number of shares
of common stock may be fixed at the time the stock purchase contracts are issued
or may be determined by reference to a specific formula set forth in the stock
purchase contracts. The stock purchase contracts may be issued
separately or as a part of units consisting of a stock purchase contract
together with either trust preferred securities or debt obligations of third
parties, including U.S. Treasury securities, securing the holders’ obligations
to purchase the common stock under the stock purchase contracts, which we refer
to herein as “stock purchase units.” The stock purchase contracts may
require holders to secure their obligations thereunder in a specified
manner. The stock purchase contracts may also require us to make
periodic payments to the holders of the stock purchase units or vice-versa and
such payments may be unsecured or prefunded on some basis.
The
prospectus supplement will describe the terms of any stock purchase contracts or
stock purchase units. The description in the prospectus supplement
will not necessarily be complete, and reference will be made to the stock
purchase contracts, and, if applicable, collateral or depositary arrangements,
relating to the stock purchase contracts or stock purchase
units. Material United States federal income tax considerations
applicable to the stock purchase contracts or the stock purchase units will also
be discussed in the applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may
sell the offered securities from time to time in and outside the United States
(a) to or through underwriters or dealers, (b) through agents, (c) in “at the
market offerings” in accordance with Rule 415(a)(4) to or through a market maker
or into an existing trading market, on an exchange, or otherwise, (d) directly
to purchasers, including our affiliates through a specific bidding or auction
process, or otherwise, or (e) through a combination of any of these methods.
Each time the securities are offered by this prospectus, the prospectus
supplement, if required, will set forth:
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●
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the
terms of the offering;
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●
|
the
name of any underwriter, dealer or agent involved in the offer and sale of
the securities;
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●
|
the
purchase price of the securities from
us;
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●
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the
net proceeds to us from the sale of the
securities;
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●
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any
delayed delivery arrangements;
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●
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any
discounts, concessions, commissions and other items constituting
compensation required by the underwriters, dealers or
agents;
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●
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any
initial public offering price;
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●
|
any
securities exchange or market on which the securities may be listed;
and
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●
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the
anticipated date of delivery of the
securities.
|
Sale
through Underwriters or Dealers
If
we use underwriters in the sale, the underwriters will acquire the securities
for their own account. The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale such as market prices prevailing at the time of the sale,
prices related to such prevailing market prices or at negotiated
prices. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we
inform you otherwise in the prospectus supplement, the obligations of the
underwriters to purchase the securities will be subject to certain conditions,
and the underwriters will be obligated to purchase all the offered securities if
they purchase any of them. The underwriters may change from time to
time any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers.
During
and after an offering through underwriters, the underwriters may purchase and
sell the securities in the open market. These transactions may
include over-allotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities
sold for their account may be reclaimed by the syndicate if the offered
securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise
affect the market price of the offered securities, which may be higher than the
price that might otherwise prevail in the open market. If these activities are
commenced, the underwriters may discontinue them at any time.
If we use
dealers in the sale of securities, we will sell the securities to them as
principals. They may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. We will include in the
prospectus supplement the names of the dealers and the terms of the
transaction.
Direct
Sales and Sales through Agents
We may
solicit directly offers to purchase the securities, and we may sell the
securities directly to purchasers without the involvement of agents,
underwriters or dealers. We may also sell the securities through
agents we designate from time to time. In the prospectus supplement, we will
describe the terms of any direct sale or sale through agents. If
applicable, we will also name any agent involved in the offer or sale of the
offered securities, and we will describe any commissions payable by us to the
agent. Unless we inform you otherwise in the prospectus supplement, any agent
will agree to use its reasonable best efforts to solicit purchases for the
period of its appointment.
We may
sell the securities directly to institutional investors or others who may be
deemed to be underwriters within the meaning of the Securities Act of 1933 with
respect to any sale of those securities. We will describe the terms of any such
sales in the prospectus supplement.
Delayed
Delivery Contracts
If
we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
Derivative
Transactions and Hedging
We may
enter into derivative or other hedging transactions involving the securities
with third parties, or sell securities not covered by the prospectus to third
parties in privately-negotiated transactions. If we so indicate in
the applicable prospectus supplement, in connection with those derivative
transactions, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement, including in short sale transactions,
or may lend securities in order to facilitate short sale transactions by others,
subject to applicable legal requirements. If so, the third party may
use securities pledged by us or borrowed from us or others to settle those sales
or to close out any related open borrowings of securities, and may use
securities received from us in settlement of those derivative or hedging
transactions to close out any related open borrowings of
securities. The third party in such sale transactions will be an
underwriter and will be identified in the applicable prospectus supplement (or a
post-effective amendment to the registration statement of which this prospectus
is a part).
We may
effect sales of securities in connection with forward sale, option or other
types of agreements with third parties. Any distribution of
securities pursuant to any forward sale agreement may be effected from time to
time in one or more transactions that may take place through a stock exchange,
including block trades or ordinary broker’s transactions, or through
broker-dealers acting either as principal or agent, or through
privately-negotiated transactions, or through an underwritten public offering,
or through a combination of any such methods of sale, at market prices
prevailing at the time of sale, at prices relating to such prevailing market
prices or at negotiated or fixed prices.
General
Information
We may
have agreements with the agents, dealers and underwriters to indemnify them
against certain civil liabilities, including liabilities under the Securities
Act of 1933, or to contribute with respect to payments that the agents, dealers
or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their businesses.
LEGAL OPINIONS
Richards,
Layton & Finger, P.A., our special Delaware counsel and special Delaware
counsel to the trusts, will issue opinions about the legality of the trust
preferred securities, the enforceability of the applicable declaration of trust
and the creation of the trusts. Brian J. Woram, Esq., our Senior Vice
President, Chief Legal Officer and General Counsel, will issue opinions about
the legality of Centex’s guarantees, junior subordinated debt securities, common
stock, stock purchase contracts and stock purchase units. As of
October 31, 2008, Mr. Woram beneficially owned 94,553 shares of our common stock
(of which 51,078 shares are unvested restricted stock) and held options to
purchase an additional 274,888 shares of our common stock, of which options
covering 201,961 shares were exercisable. If the validity of any
securities is also passed upon by counsel for the underwriters of an offering of
those securities, that counsel will be named in the prospectus supplement
relating to that offering.
EXPERTS
Ernst
& Young LLP, our independent registered public accounting firm, has audited
our consolidated financial statements included in our Annual Report on Form 10-K
for the year ended March 31, 2008, and the effectiveness of our internal control
over financial reporting as of March 31, 2008, as set forth in their reports,
which are incorporated by reference in this registration
statement. Our financial statements are incorporated by reference in
reliance on Ernst & Young LLP’s reports, given on their authority as experts
in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
ITEM
14.
|
OTHER
EXPENSES OF ISSUANCE AND
DISTRIBUTION
|
The
following is a statement of the estimated expenses (other than underwriting
compensation) to be incurred by us in connection with one or more distributions
of the securities registered under this registration statement. Since
an indeterminate amount of securities is covered by this registration statement,
the expenses in connection with the issuance and distribution of the securities
are therefore not currently determinable. The amounts shown are
estimates of expenses for a single offering of securities under this
registration statement, but do not limit the amount of securities that may be
offered. The actual amounts will vary depending upon the type and
amount of securities offered.
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SEC
registration fee
|
$ | 0 | (1) | |
|
Trustee’s
fees and expenses (including legal fees)
|
25,000 | |||
|
Accounting
fees and expenses
|
50,000 | |||
|
Legal
fees and expenses
|
150,000 | |||
|
Printing
fees and expenses
|
10,000 | |||
|
Blue
Sky fees and expenses (including legal fees)
|
50,000 | |||
|
Rating
agency fees
|
150,000 | |||
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Miscellaneous
|
200,000 | |||
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Total
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$ | 635,000 |
________________
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|
(1)
|
In
accordance with Rules 456(b) and 457(r), the registrants are deferring
payment of all of the registration fee, except for $95,025 that has
already been paid with respect to $750 million aggregate initial offering
price of securities that were previously registered pursuant to
Registration Statement No. 333-117470, and were not sold
thereunder.
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|
ITEM
15.
|
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
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Centex
Corporation (“Centex”) is a Nevada corporation. Nevada law allows the
indemnification of directors, officers, employees and agents, as described
below. The By-laws of Centex provide that the corporation shall
indemnify its directors and officers to the fullest extent provided by Nevada
law, and that Centex may, at the discretion of the board of directors or certain
officers, indemnify employees and agents to the fullest extent provided by
Nevada law.
Description
of Nevada Law
Pursuant
to the provisions of Nevada Revised Statutes (“NRS”) 78.7502, every Nevada
corporation has authority to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, except 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, 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
in connection with the action, suit or proceeding if he is found not liable
pursuant to the exculpation provisions of NRS 78.138 (described below) or 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.
Under
Nevada law, Centex also has the authority to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action 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 is found not liable pursuant to the exculpation provisions
of NRS 78.138 or 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. No indemnification shall be made, however, for any
claim, issue or matter as to which a person has been adjudged by a court of
competent jurisdiction to be liable to the corporation or for amounts paid in
settlement to the corporation, unless and only to the extent that the court
determines that in view of all the circumstances, the person is fairly and
reasonably entitled to indemnity for such expenses as the court deems
proper.
To the
extent any director, officer, employee or agent is successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in the two
immediately preceding paragraphs, Nevada law provides that such person must be
indemnified by the corporation against expenses including attorneys’ fees,
actually and reasonably incurred by him in connection with the
defense.
NRS
78.751 requires that any discretionary indemnification, unless ordered by a
court, must be authorized in the specific case based on a determination that
such discretionary indemnification is proper under the
circumstances. Such a determination must be made by the corporation’s
stockholders; its board of directors by majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding; or under
certain circumstances, by independent legal counsel.
In
addition, NRS 78.138 of the Nevada General Corporation Law provides that, except
as otherwise provided in Nevada law, or unless the articles of incorporation or
an amendment thereto, in each case filed on or after October 1, 2003, provide
for greater individual liability, a director or officer is not individually
liable to the corporation or its stockholders or creditors for any damages as a
result of any act or failure to act in his capacity as a director or officer
unless it is proven that his act or failure to act constituted a breach of his
fiduciary duties as a director or officer and his breach of those duties
involved intentional misconduct, fraud or a knowing violation of
law.
Centex’s
Articles of Incorporation and By-laws
The
By-laws of Centex provide that the corporation shall indemnify its directors and
officers to the fullest extent provided by Nevada law, and that Centex may, at
the discretion of the board of directors or certain officers, indemnify
employees and agents to the fullest extent provided by Nevada
law. Centex’s By-laws provide that when making any such determination
of whether a person is entitled to discretionary indemnification, there is a
presumption that the person is entitled to indemnification and Centex has the
burden of proof to overcome that presumption. Centex is not
obligated, however, to make any indemnification payments to any person (i) to
the extent payment has already been received under an insurance policy or other
indemnity provision, (ii) for an accounting of profits made from the purchase
and sale of Centex securities under Section 16(b) of the Securities Exchange Act
of 1934, or (iii) except under certain circumstances, in connection with any
proceeding initiated by such person. If the indemnification rights
provided in the By-laws are not available to any person (other than as a result
of exclusions contained in the By-laws), then, to the fullest extent permitted
by law, Centex will make contribution payments in lieu of
indemnification.
Centex
has entered into indemnification agreements with its directors and certain
officers, and may enter into similar agreements from time to time with certain
other officers and employees of Centex and its subsidiaries who are not
directors of Centex. The general effect of the indemnification
agreements is to provide that the indemnitees shall be indemnified to the
fullest possible extent permitted by Nevada law, subject to certain limitations,
against expenses, including attorneys’ fees, judgments, fines, penalties and
amounts paid in settlement actually and reasonably incurred by them in any
action or proceeding, including any action by or in the right of Centex, by
reason of their service in the foregoing capacities. The agreements
also provide for mandatory advancement of expenses incurred in connection with
any such action or proceeding and establish certain presumptions that apply in
determining whether directors are entitled to indemnification.
To the
fullest extent provided by law, Centex will advance expenses incurred upon an
undertaking that the person will repay the advance to the extent it is
ultimately determined that they are not entitled to be indemnified by
Centex.
Pursuant
to authority granted by Nevada law and the By-laws, Centex has purchased
directors’ and officers’ liability insurance.
The
foregoing summary is necessarily subject to the complete text of the statute,
Articles of Incorporation, By-laws, agreements and insurance policies referred
to above and is qualified in its entirety by reference thereto.
|
ITEM 16.
|
EXHIBITS*
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|
4.1
|
Amended
and Restated Articles of Incorporation of Centex Corporation (filed as
Exhibit 3.1 to the Current Report of Centex Corporation on Form 8-K dated
July 15, 2008, and incorporated herein by
reference).
|
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4.2
|
Amended
and Restated By-laws of Centex Corporation dated October 8, 2008 (filed as
Exhibit 3.1 to the Current Report of Centex Corporation on Form 8-K dated
October 14, 2008, and incorporated herein by
reference).
|
|
4.3
|
Specimen
Centex Corporation common stock certificate (filed as Exhibit 4.1 to the
Quarterly Report of Centex Corporation on Form 10-Q for the quarter ended
September 30, 2006, and incorporated herein by
reference).
|
|
4.4
|
Indenture
with respect to Senior Debt Securities, including form of Senior Debt
Security, dated as of October 1, 1998, between Centex Corporation and U.S.
Bank National Association (originally executed with Chase Bank of Texas,
National Association, and succeeded to by The Bank of New York Mellon
Trust Company, National Association (formerly known as The Bank of New
York Trust Company, National Association)), as Trustee (filed as Exhibit
4.1 to Centex Corporation’s Form 8-K dated October 21, 1998 and
incorporated herein by reference).
|
|
4.5
|
Agreement
of Resignation, Appointment and Acceptance, dated as of January 5, 2007,
by and among Centex Corporation, The Bank of New York Mellon Trust
Company, National Association (formerly known as The Bank of New York
Trust Company, National Association) and U.S. Bank National Association
(filed as Exhibit 4.1 to Centex Corporation’s Form 8-K dated March 13,
2007 and incorporated herein by
reference).
|
|
4.6
|
Indenture
with respect to Subordinated Debt Securities, including form of
Subordinated Debt Security, dated as of November 5, 2008, between Centex
Corporation and U.S. Bank National Association, as
Trustee.
|
|
4.7
|
Indenture
with respect to Junior Subordinated Debt Securities, including the Form of
Junior Subordinated Debt Security, dated as of November 14, 2000, between
Centex Corporation and The Bank of New York Mellon Trust Company, National
Association (successor to The Chase Manhattan Bank), as Trustee (filed as
Exhibit 4.21 to the Registration Statement (file no. 333-49966) of Centex
Corporation on Form S-3, and incorporated herein by
reference).
|
|
4.8
|
Declaration
of Trust of Centex Trust I (filed as Exhibit 4.22 to the Registration
Statement (file no. 333-49966) of Centex Corporation on Form S-3, and
incorporated herein by reference).
|
|
4.9
|
Declaration
of Trust of Centex Trust II (filed as Exhibit 4.23 to the Registration
Statement (file no. 333-49966) of Centex Corporation on Form S-3, and
incorporated herein by reference).
|
|
4.10
|
Removal
and Appointment of Trustees of Centex Trust
I.
|
|
4.11
|
Removal
and Appointment of Trustees of Centex Trust
II.
|
_____________________________
|
*
|
Centex
will file as an exhibit to a Current Report on Form 8-K (i) any
underwriting agreement, including any remarketing agreement, relating to
securities offered hereby, (ii) the instruments setting forth the terms of
any debt securities, preferred stock, depositary shares, warrants, stock
purchase contracts or stock purchase units and (iii) any required opinion
of counsel to Centex as to certain tax matters relative to securities
offered hereby.
|
|
4.12
|
Form
of Amended and Restated Declaration of
Trust.
|
|
4.13
|
Restated
Certificate of Trust of Centex Trust
I.
|
|
4.14
|
Restated
Certificate of Trust of Centex Trust
II.
|
|
4.15
|
Form
of Trust Preferred Security (included in Exhibit
4.12).
|
|
4.16
|
Form
of Centex Corporation Guarantee
Agreement.
|
|
5.1
|
Opinion
of Brian J. Woram, Esq.
|
|
5.2.1
|
Opinion
of Richards, Layton & Finger, P.A. relating to Centex Trust
I.
|
|
5.2.2
|
Opinion
of Richards, Layton & Finger, P.A. relating to Centex Trust
II.
|
|
12.1
|
Computation
of Ratio of Earnings to Fixed Charges (filed as Exhibit 12.1 to the
Quarterly Report of Centex Corporation on Form 10-Q for the quarter ended
September 30, 2008, and incorporated herein by
reference).
|
|
23.1
|
Consent
of Ernst & Young LLP.
|
|
23.2
|
Consent
of Brian J. Woram, Esq. (contained in his opinion filed as Exhibit
5.1).
|
|
23.3
|
Consent
of Richards, Layton & Finger, P.A. (included in Exhibits 5.2.1 and
5.2.2).
|
|
24.1
|
Power
of attorney of certain signatories (included in signature page of this
Registration Statement).
|
|
25.1
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939, as amended, with respect to Trustee for Senior Debt
Securities.
|
|
25.2
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939, as amended, with respect to Trustee for Subordinated Debt
Securities.
|
|
25.3
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939, as amended, with respect to Trustee for Junior Subordinated
Debt Securities.
|
|
ITEM
17.
|
UNDERTAKINGS
|
|
|
(a)
|
The
undersigned registrants hereby
undertake:
|
(1)
To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration
statement:
(i)
To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) of the Securities Act of 1933
if, in the aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrants pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2)
That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i)
If the registrant is relying on Rule
430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date.
(5)
That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b)
The undersigned registrants hereby undertake that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrants’ annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
The undersigned registrant hereby undertakes to
supplement the prospectus, after the expiration of the subscription period (if
any), to set forth the results of the subscription offer, the transactions by
the underwriters during the subscription period, the amount of unsubscribed
securities to be purchased by the underwriters, and the terms of any subsequent
reoffering thereof. If any public offering by the underwriters is to be made on
terms differing from those set forth on the cover page of the prospectus, a
post-effective amendment will be filed to set forth the terms of such
offering.
(d)
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the foregoing provisions, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by a registrant of expenses incurred or paid by a director, officer or
controlling person of such registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, Centex Corporation certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Dallas, State of Texas, as of November 6, 2008.
|
CENTEX
CORPORATION
|
||
|
By:
|
/s/ Timothy R. Eller
|
|
|
Timothy
R. Eller
|
||
|
Chairman
of the Board and Chief Executive
Officer
|
||
KNOW ALL
MEN BY THESE PRESENTS, that each of the undersigned directors and officers of
Centex Corporation, a Nevada corporation, which is filing a Registration
Statement on Form S-3 with the Securities and Exchange Commission under the
provisions of the Securities Act of 1933, as amended (the “Securities Act”),
hereby constitutes and appoints Timothy R. Eller, Catherine R. Smith and Brian
J. Woram, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, and in any and all capacities, to sign and
file (i) any and all amendments (including post-effective amendments) to this
Registration Statement, with all exhibits thereto, and other documents in
connection therewith, and (ii) a registration statement, and any and all
amendments thereto, relating to the offering covered hereby filed pursuant to
Rule 462(b) under the Securities Act, with the Securities and Exchange
Commission, it being understood that said attorneys-in-fact and agents, and each
of them, shall have full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in person and
that each of the undersigned hereby ratifies and confirms all that said
attorneys-in-fact as agents or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
|
SIGNATURES
|
CAPACITY IN WHICH SIGNED
|
DATE
|
||
|
/s/ Timothy R. Eller
|
Chairman
of the Board
and
Chief Executive Officer; Director
|
November
6, 2008
|
||
|
Timothy
R. Eller
|
(Principal
Executive Officer)
|
|||
|
/s/ Catherine R. Smith
|
Executive
Vice President and Chief
Financial
Officer
|
November
6, 2008
|
||
|
Catherine
R. Smith
|
(Principal
Financial Officer)
|
|||
|
/s/ Mark D. Kemp
|
Senior
Vice President and Controller
|
November
6, 2008
|
||
|
Mark
D. Kemp
|
(Principal
Accounting Officer)
|
|||
|
/s/ Barbara T. Alexander
|
Director
|
November
6, 2008
|
||
|
Barbara
T. Alexander
|
||||
|
/s/ Ursula O. Fairbairn
|
Director
|
November
6, 2008
|
||
|
Ursula
O. Fairbairn
|
|
SIGNATURES
|
CAPACITY IN WHICH SIGNED
|
DATE
|
||
|
/s/ Thomas J. Falk
|
Director
|
November
6, 2008
|
||
|
Thomas
J. Falk
|
||||
|
/s/ Clint W. Murchison, III
|
Director
|
November
6, 2008
|
||
|
Clint
W. Murchison, III
|
||||
|
/s/ Frederic M. Poses
|
Director
|
November
6, 2008
|
||
|
Frederic
M. Poses
|
||||
|
/s/ James J. Postl
|
Director
|
November
6, 2008
|
||
|
James
J. Postl
|
||||
|
/s/ David W. Quinn
|
Director
|
November
6, 2008
|
||
|
David
W. Quinn
|
||||
|
/s/ Matthew K. Rose
|
Director
|
November
6, 2008
|
||
|
Matthew
K. Rose
|
||||
|
/s/ Thomas M. Schoewe
|
Director
|
November
6, 2008
|
||
|
Thomas
M. Schoewe
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, Centex Trust I certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Dallas, State of Texas, on November 6, 2008.
|
CENTEX
TRUST I
|
||
|
By:
Centex Corporation, as Sponsor
|
||
|
By:
|
/s/ Timothy R. Eller
|
|
|
Timothy
R. Eller
|
||
|
Chairman
of the Board and Chief Executive
Officer
|
||
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, Centex Trust II certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Dallas, State of Texas, on November 6, 2008.
|
CENTEX
TRUST II
|
||
|
By:
Centex Corporation, as Sponsor
|
||
|
By:
|
/s/ Timothy R. Eller
|
|
|
Timothy
R. Eller
|
||
|
Chairman
of the Board and Chief Executive
Officer
|
||
INDEX TO EXHIBITS*
|
4.1
|
Amended
and Restated Articles of Incorporation of Centex Corporation (filed as
Exhibit 3.1 to the Current Report of Centex Corporation on Form 8-K dated
July 15, 2008, and incorporated herein by
reference).
|
|
4.2
|
Amended
and Restated By-laws of Centex Corporation dated October 8, 2008 (filed as
Exhibit 3.1 to the Current Report of Centex Corporation on Form 8-K dated
October 14, 2008, and incorporated herein by
reference).
|
|
4.3
|
Specimen
Centex Corporation common stock certificate (filed as Exhibit 4.1 to the
Quarterly Report of Centex Corporation on Form 10-Q for the quarter ended
September 30, 2006, and incorporated herein by
reference).
|
|
4.4
|
Indenture
with respect to Senior Debt Securities, including form of Senior Debt
Security, dated as of October 1, 1998, between Centex Corporation and U.S.
Bank National Association (originally executed with Chase Bank of Texas,
National Association, and succeeded to by The Bank of New York Mellon
Trust Company, National Association (formerly known as The Bank of New
York Trust Company, National Association)), as Trustee (filed as Exhibit
4.1 to Centex Corporation’s Form 8-K dated October 21, 1998 and
incorporated herein by reference).
|
|
4.5
|
Agreement
of Resignation, Appointment and Acceptance, dated as of January 5, 2007,
by and among Centex Corporation, The Bank of New York Mellon Trust
Company, National Association (formerly known as The Bank of New York
Trust Company, National Association) and U.S. Bank National Association
(filed as Exhibit 4.1 to Centex Corporation’s Form 8-K dated March 13,
2007 and incorporated herein by
reference).
|
|
Indenture
with respect to Subordinated Debt Securities, including form of
Subordinated Debt Security, dated as of November 5, 2008, between Centex
Corporation and U.S. Bank National Association, as
Trustee.
|
|
4.7
|
Indenture
with respect to Junior Subordinated Debt Securities, including the Form of
Junior Subordinated Debt Security, dated as of November 14, 2000, between
Centex Corporation and The Bank of New York Mellon Trust Company, National
Association (successor to The Chase Manhattan Bank), as Trustee (filed as
Exhibit 4.21 to the Registration Statement (file no. 333-49966) of Centex
Corporation on Form S-3, and incorporated herein by
reference).
|
|
4.8
|
Declaration
of Trust of Centex Trust I (filed as Exhibit 4.22 to the Registration
Statement (file no. 333-49966) of Centex Corporation on Form S-3, and
incorporated herein by reference).
|
|
4.9
|
Declaration
of Trust of Centex Trust II (filed as Exhibit 4.23 to the Registration
Statement (file no. 333-49966) of Centex Corporation on Form S-3, and
incorporated herein by reference).
|
|
Removal
and Appointment of Trustees of Centex Trust
I.
|
|
Removal
and Appointment of Trustees of Centex Trust
II.
|
|
Form
of Amended and Restated Declaration of
Trust.
|
|
Restated
Certificate of Trust of Centex Trust
I.
|
|
Restated
Certificate of Trust of Centex Trust
II.
|
_____________________________
|
*
|
Centex
will file as an exhibit to a Current Report on Form 8-K (i) any
underwriting agreement, including any remarketing agreement, relating to
securities offered hereby, (ii) the instruments setting forth the terms of
any debt securities, preferred stock, depositary shares, warrants, stock
purchase contracts or stock purchase units and (iii) any required opinion
of counsel to Centex as to certain tax matters relative to securities
offered hereby.
|
|
4.15
|
Form
of Trust Preferred Security (included in Exhibit
4.12).
|
|
Form
of Centex Corporation Guarantee
Agreement.
|
|
Opinion
of Brian J. Woram, Esq.
|
|
Opinion
of Richards, Layton & Finger, P.A. relating to Centex Trust
I.
|
|
Opinion
of Richards, Layton & Finger, P.A. relating to Centex Trust
II.
|
|
12.1
|
Computation
of Ratio of Earnings to Fixed Charges (filed as Exhibit 12.1 to the
Quarterly Report of Centex Corporation on Form 10-Q for the quarter ended
September 30, 2008, and incorporated herein by
reference).
|
|
Consent
of Ernst & Young LLP.
|
|
23.2
|
Consent
of Brian J. Woram, Esq. (contained in his opinion filed as Exhibit
5.1).
|
|
23.3
|
Consent
of Richards, Layton & Finger, P.A. (included in Exhibits 5.2.1 and
5.2.2).
|
|
24.1
|
Power
of attorney of certain signatories (included in signature page of this
Registration Statement).
|
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939, as amended, with respect to Trustee for Senior Debt
Securities.
|
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939, as amended, with respect to Trustee for Subordinated Debt
Securities.
|
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939, as amended, with respect to Trustee for Junior Subordinated
Debt Securities.
|
II- 12