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EXHIBIT 10.2
D.R. HORTON, INC.
1991 STOCK INCENTIVE PLAN
(As amended and restated November 9, 2000)
1. Purpose. The purpose of this Plan is to attract and retain
directors, officers, key employees and other agents and consultants for D.R.
Horton, Inc. (the "Company") and its Subsidiaries and to provide to such persons
incentives and rewards for superior performance.
2. Definitions. As used in this Plan,
"Appreciation Right" means a right granted pursuant to
Paragraph 5 of this Plan.
"Award" means an Appreciation Right, an Option Right, an award
of Performance Shares, a Performance Unit or an award of Restricted
Stock.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as in effect
from time to time.
"Committee" means the committee to which the Board has
delegated its authority to administer this Plan pursuant to Paragraph
13 of this Plan.
"Common Stock" means the Common Stock, par value $.01 per
share, of the Company or any security into which such Common Stock may
be changed by reason of any transaction or event of the type described
in Paragraph 10 of this Plan.
"Company Security" means any security (as that term is defined
in Section 2(1) of the Securities Act of 1933) of the Company other
than Common Stock.
"Date of Grant" means the date specified by the Board on which
a grant of Option Rights, Appreciation Rights, Performance Units or
Performance Shares or a grant or sale of Restricted Stock shall become
effective (which date shall not be earlier than the date on which the
Board takes action with respect thereto).
"ERISA" means the Employee Retirement Income Security Act of
1974, as in effect from time to time.
"Fair Market Value" means the value of any Company Security as
determined by the Board in its sole discretion as of the date of any
such determination.
"Grant Price" means the price per share of Common Stock at
which an Appreciation Right not granted in tandem with an Option Right
is granted.
"Management Objectives" means the objectives, if any,
established by the Board that
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are to be achieved with respect to an Award granted under this Plan,
which may be described in terms of Company-wide objectives, in terms of
objectives that are related to performance of the division, Subsidiary,
department or function within the Company or a Subsidiary in which the
Participant receiving the Award is employed or in other terms, and
which shall relate to the Performance Period determined by the Board.
The Board may adjust Management Objectives and any minimum acceptable
level of achievement with respect to any Management Objectives if, in
the sole judgment of the Board, events or transactions have occurred
which are unrelated to the performance of the Participant and result in
a distortion of the Management Objectives or such minimum acceptable
level of achievement.
"Market Value per Share" means, at any date, the average of
the inside bid and asked price of the Common Stock at the close of
trading on that date in the principal market in which the Common Stock
is traded, or, if no market for the Common Stock exists, the price
determined by the Board in its sole discretion at the time of any such
determination.
"Option Price" means the price per share payable on exercise
of an Option Right.
"Option Right" means the right to purchase a share of Common
Stock upon exercise of an option granted pursuant to Paragraph 4 of
this Plan.
"Participant" means a person who is selected by the Board to
receive benefits under this Plan and who is at the time a director,
officer, key employee, consultant or agent of the Company or any of its
Subsidiaries, or who has agreed to commence serving in any such
capacity within 90 days of the Date of Grant. Notwithstanding the
foregoing, no non-employee director of the Company shall be eligible to
receive any benefit under this Plan if he or she would thereby cease to
be a "non-employee director" as that term is defined in Rule 16b-3.
"Performance Period" means, in respect of an Award, a period
of time established by the Board within which the Management Objectives
relating to such Award are to be achieved.
"Performance Shares" means shares of Common Stock granted
pursuant to Paragraph 8 of this Plan.
"Performance Unit" means a unit of specified dollar amount
established by the Board and awarded pursuant to Paragraph 7 of this
Plan.
"Restricted Stock" means shares of Common Stock granted or
sold pursuant to Paragraph 6 of this Plan as to which neither the
substantial risk of forfeiture nor the restrictions on transfer
referred to therein has expired.
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"Rule 16b-3" means Rule 16b-3 of the Securities and Exchange
Commission (or any successor rule to the same effect) as in effect from
time to time.
"Spread" means the excess of the Market Value per Share on the
date when an Appreciation Right is exercised over (a) the Option Price
provided for in the related Option Right or (b) if there is no tandem
Option Right, the Grant Price provided for in the Appreciation Right,
multiplied by the number of shares of Common Stock in respect of which
the Appreciation Right is exercised.
"Subsidiary" means any corporation, trust, joint venture,
partnership or other unincorporated entity in which, at the time, the
Company owns or controls, directly or indirectly, (i) in the case of a
corporation, not less than 50% of the total combined voting power
represented by all classes of stock issued by such corporation, or (ii)
in the case of a trust, joint venture, partnership or other
unincorporated entity, not less than 50% of the beneficial interest of
such entity.
3. Shares Available Under Plan. The shares of Common Stock and any
other Company Security which may be (a) sold upon the exercise of Option Rights,
(b) delivered upon the exercise of Appreciation Rights, (c) granted or sold as
Restricted Stock and released from substantial risks of forfeiture and
restrictions on transfer thereof or (d) delivered in payment of any Performance
Units or as Performance Shares (or in lieu thereof), shall not exceed in the
aggregate 7,419,273 shares, subject to adjustment as provided in Paragraph 10 of
this Plan. Such shares may be shares of original issuance or treasury shares or
a combination of the foregoing. Upon exercise of any Appreciation Rights, there
shall be deemed to have been delivered under this Plan for purposes of this
Paragraph 3 the number of shares of Common Stock covered by the Appreciation
Rights or the related Option Rights, regardless of whether such Appreciation
Rights were paid in cash, Company Securities or shares of Common Stock. Subject
to the provisions of the preceding sentence, any shares of Common Stock which
are subject to Option Rights or Appreciation Rights or are awarded or sold as
Restricted Stock that are terminated, unexercised, forfeited or surrendered or
which expire for any reason will again be available for issuance under this
Plan.
4. Option Rights. The Board may, from time to time and upon such terms
and conditions as it may determine, authorize the granting to Participants of
options to purchase shares of Common Stock. Each such grant may utilize any or
all of the authorizations, and shall be subject to all of the limitations,
contained in the following provisions:
(a) Each grant shall specify the number of shares of Common
Stock to which it pertains.
(b) Each grant shall specify the Option Price, which shall not
be less than 50% of the Market Value per Share on the Date of Grant.
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(c) Each grant shall specify that the Option Price shall be
payable (i) in cash or by check acceptable to the Company, (ii) by the
transfer to the Company of shares of Common Stock having an aggregate
Market Value per Share at the time of exercise equal to the aggregate
Option Price or (iii) by a combination of such methods of payment. Any
grant may provide for deferred payment of the Option Price from the
proceeds of sale through a broker on the exercise date of some or all
of the shares to which such exercise relates.
(d) Successive grants may be made to the same Participant
whether or not any Option Rights previously granted to such Participant
remain unexercised.
(e) Each grant shall specify the required period or periods of
continuous service by the Participant with the Company or any
Subsidiary and/or the Management Objectives to be achieved before the
Option Rights or installments thereof will become exercisable.
(f) Each grant the exercise of which, or the timing of the
exercise of which, is dependent, in whole or in part, on the
achievement of Management Objectives may specify a minimum level of
achievement in respect of the specified Management Objectives below
which no Options Rights will be exercisable and may set forth a formula
or other method for determining the number of Option Rights that will
be exercisable if performance is at or above such minimum but short of
full achievement of the Management Objectives.
(g) Option Rights granted under this Plan may be (i) options
which are intended to qualify under particular provisions of the Code,
(ii) options which are not intended to so qualify or (iii) combinations
of the foregoing.
(h) No Option Right shall be exercisable more than ten years
from the Date of Grant.
(i) Each grant of Option Rights shall be evidenced by an
agreement executed on behalf of the Company by any officer and
delivered to the Participant and containing such terms and provisions,
consistent with this Plan, as the Board may approve.
5. Appreciation Rights. The Board may also authorize the granting to
any Participant of Appreciation Rights. Appreciation Rights may be granted in
tandem with Option Rights or separate and apart from a grant of Option Rights.
An Appreciation Right shall be a right of the Participant who has been granted
such Award to receive from the Company upon exercise an amount which shall be
determined by the Board at the Date of Grant and shall be expressed as a
percentage of the Spread (not exceeding 100%) at the time of exercise. An
Appreciation Right granted in tandem with an Option Right may be exercised only
by surrender of the related Option Right. Each grant of an Appreciation Right
may utilize any or all of the authorizations, and shall be subject to all of the
limitations, contained in the following provisions:
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(a) Each grant shall state whether it is made in tandem with
Option Rights and, if not made in tandem with any Option Rights, shall
specify the number of shares of Common Stock in respect of which it is
made.
(b) Each grant made in tandem with Option Rights shall specify
the Option Price and each grant not made in tandem with Option Rights
shall specify the Grant Price, which in either case shall not be less
than 50% of the Market Value per Share on the Date of Grant.
(c) Any grant may specify that the amount payable on exercise
of an Appreciation Right may be paid by the Company in (i) cash, (ii)
shares of Common Stock having an aggregate Market Value per Share equal
to the Spread, (iii) Company Securities having an aggregate Fair Market
Value equal to the Spread or (iv) any combination thereof, as
determined by the Board in its sole discretion at the time of payment.
(d) Any grant may specify that the amount payable on exercise
of an Appreciation Right (valuing shares of Common Stock for this
purpose at their Market Value per Share at the date of exercise and
valuing Company Securities for this purpose at their Fair Market Value
at the date of exercise) may not exceed a maximum specified by the
Board at the Date of Grant.
(e) Each grant shall specify the required period or periods of
continuous service by the Participant with the Company or any
Subsidiary and/or Management Objectives to be achieved before the
Appreciation Rights or installments thereof will become exercisable,
and shall provide that no Appreciation Right may be exercised except at
a time when the Spread is positive and, with respect to any grant made
in tandem with Option Rights, when the related Option Right is also
exercisable.
(f) Each grant the exercise of which, or the timing of the
exercise of which, is dependent, in whole or in part, on the
achievement of Management Objectives may specify a minimum level of
achievement in respect of the specified Management Objectives below
which no Appreciation Rights will be exercisable and may set forth a
formula or other method for determining the number of Appreciation
Rights that will be exercisable if performance is at or above such
minimum but short of full achievement of the Management Objectives.
(g) Each grant of an Appreciation Right shall be evidenced by
a notification executed on behalf of the Company by any officer and
delivered to and accepted by the Participant receiving the grant, which
notification shall describe such Appreciation Right, identify any
Option Right granted in tandem with such Appreciation Right, state that
such Appreciation Right is subject to all the terms and conditions of
this Plan and contain such other terms and provisions, consistent with
this Plan, as the Board may approve.
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6. Restricted Stock. The Board may also authorize the granting or sale
to Participants of Restricted Stock. Each such grant or sale may utilize any or
all of the authorizations, and shall be subject to all of the limitations,
contained in the following provisions:
(a) Each such grant or sale shall constitute an immediate
transfer of the ownership of shares of Common Stock to the Participant
in consideration of the performance of services, entitling such
Participant to voting, dividend and other ownership rights, but
subject to the substantial risk of forfeiture and restrictions on
transfer hereinafter referred to.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant
that is less than the Market Value per Share at the Date of Grant.
(c) Each such grant or sale shall provide that the shares of
Restricted Stock covered by such grant or sale shall be subject, for a
period to be determined by the Board at the Date of Grant, to a
"substantial risk of forfeiture" within the meaning of Section 83 of
the Code and the regulations of the Internal Revenue Service
thereunder.
(d) Each such grant or sale shall provide that during the period
for which such substantial risk of forfeiture is to continue, the
transferability of the Restricted Stock shall be prohibited or
restricted in a manner and to the extent prescribed by the Board at
the Date of Grant (which restrictions may include, without limiting
the generality of the foregoing, rights of repurchase or first refusal
in the Company or provisions subjecting the Restricted Stock to a
continuing substantial risk of forfeiture in the hands of any
transferee).
(e) Each grant or sale of Restricted Stock shall be evidenced by
an agreement executed on behalf of the Company by any officer and
delivered to and accepted by the Participant and shall contain such
terms and provisions, consistent with this Plan, as the Board may
approve.
7. Performance Units. The Board may also authorize the granting of
Performance Units which will become payable to a Participant upon achievement of
specified Management Objectives. Each such grant may utilize any or all of the
authorizations, and shall be subject to all of the limitations, contained in the
following provisions:
(a) Each grant shall specify the number of Performance Units to
which it pertains.
(b) Each grant shall specify the Management Objectives that are
to be achieved by the Participant.
(c) Each grant shall specify a minimum acceptable level of
achievement in respect of the specified Management Objectives below
which no payment will be made and
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may set forth a formula or other method for determining the amount of
the payment to be made if performance is at or above such minimum but
short of full achievement of the Management Objectives.
(d) Each grant shall specify the time and manner of payment of
Performance Units which have become payable, which payment may be made
in (i) cash, (ii) shares of Common Stock having an aggregate Market
Value per Share equal to the aggregate value of the Performance Units
which have become payable, (iii) Company Securities having an
aggregate Fair Market Value equal to the aggregate value of the
Performance Units which have become payable or (iv) any combination
thereof, as determined by the Board in its sole discretion at the time
of payment.
(e) Each grant of a Performance Unit shall be evidenced by a
notification executed on behalf of the Company by any officer and
delivered to and accepted by the Participant, which notification shall
describe the Performance Units, state that such Performance Units are
subject to all the terms and conditions of this Plan, and contain such
other terms and provisions, consistent with this Plan, as the Board
may approve.
8. Performance Shares. The Board may also authorize the granting to
Participants of Performance Shares. Each such grant may utilize any or all of
the authorizations, and shall be subject to all of the limitations, contained in
the following provisions:
(a) Each grant shall specify the number of Performance Shares to
which it pertains.
(b) Each grant shall specify the Management Objectives that are
to be achieved by the Participant.
(c) Each grant shall specify a minimum acceptable level of
achievement in respect of the specified Management Objectives below
which no delivery of Performance Shares will occur and may set forth a
formula or other method for determining the number of Performance
Shares to be delivered if performance is at or above such minimum but
short of full achievement of the Management Objectives.
(d) Each grant shall specify the time and manner of delivery of
Performance Shares which have been earned, provided that in lieu of
the delivery of all or any Performance Shares, the Participant may
receive (i) cash in an amount equal to the aggregate Market Value per
Share of the Performance Shares, (ii) Company Securities having an
aggregate Fair Market Value equal to the aggregate Market Value per
Share of the Performance Shares or (iii) any combination thereof, as
determined by the Board in its sole discretion at the time of payment.
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(e) Each grant of Performance Shares shall be evidenced by a
notification executed on behalf of the Company by any officer and
delivered to and accepted by the Participant, which notification shall
state that such Performance Shares are subject to all the terms and
conditions of this Plan and contain such other terms and provisions,
consistent with this Plan, as the Board may approve.
9. Transferability. No Option Right, Appreciation Right, Performance
Unit that has not become payable or Performance Share that has not been
delivered shall be transferable by a Participant other than by will or the laws
of descent and distribution. Option Rights or Appreciation Rights shall be
exercisable during the Participant's lifetime only by the Participant or by the
Participant's guardian or legal representative.
10. Adjustments. The Board may make or provide for such adjustments in
the maximum number of shares specified in Paragraph 3 of this Plan, in the
numbers of shares of Common Stock covered by outstanding Option Rights,
Appreciation Rights, awards of Restricted Stock, awards of Performance Units and
awards of Performance Shares granted hereunder, and/or in the Option Price or
Grant Price applicable to such Option Rights and Appreciation Rights, as the
Board in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of the rights of
Participants that otherwise would result from any stock dividend, stock split,
combination of shares, recapitalization or other change in the capital structure
of the Company, merger, consolidation, spin-off, reorganization, partial or
complete liquidation, issuance of rights or warrants to purchase securities or
any other corporate transaction or event having an effect similar to any of the
foregoing.
11. Fractional Shares. The Company shall not be required to issue any
fractional share of Common Stock or of any Company Security pursuant to this
Plan. The Board may provide for the elimination of fractions or for the
settlement of fractions in cash.
12. Withholding Taxes. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Company for such withholding are insufficient, it
shall be a condition to the receipt of such payment or the realization of such
benefit that the Participant or such other person make arrangements satisfactory
to the Company for payment of the balance of such taxes required to be withheld,
which arrangements in the discretion of the Board may include relinquishment of
a portion of such benefit.
13. Administration of the Plan.
(a) This Plan shall be administered by the Board, which may from
time to time delegate all or any part of its authority under this Plan
to a committee of not less than two non-employee directors appointed
by the Board, each of whom shall be a "non-employee director" within
the meaning of Rule 16b-3 (the "Committee"). To the extent of such
delegation, references herein to the "Board" shall include the
Committee. A majority of the Committee shall constitute a quorum, and
the action of the members of the Committee present at any
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meeting at which a quorum is present, or acts unanimously approved in
writing, shall be the acts of the Committee.
(b) The interpretation and construction by the Board of any
provision of this Plan or of any agreement, notification or document
evidencing the grant of an Award and any determination by the Board
pursuant to any provision of this Plan or of any such agreement,
notification or document shall be final and conclusive. No member of
the Board or the Committee shall be liable for any such action or
determination made in good faith.
(c) Notwithstanding any other provision of this Plan, this Plan
may be administered by the Chairman of the Board of the Company with
respect to matters relating solely to Participants who are not subject
to the reporting requirements of Section 16(a) of the Securities
Exchange Act of 1934, as amended, and any references to the "Board" or
the "Committee", as the case may be, shall include the Chairman of the
Board; provided, however, that no such authority shall be deemed to
have been granted hereunder to the extent that any such grant shall
cause the disqualification of this Plan from reliance on the exemption
provided by Rule 16b-3.
14. Amendments, Etc.
(a) This Plan may be amended from time to time by the Board but
may not be amended by the Board without further approval by the
stockholders of the Company if such amendment would result in this
Plan no longer satisfying the requirements of Rule 16b-3.
(b) The Board may, with the concurrence of the affected
Participant, cancel any agreement evidencing any Award granted under
this Plan. In the event of such cancellation, the Board may authorize
the granting of new Awards (which may or may not cover the same number
of shares or units which had been the subject of the prior Award) in
such manner, at such price and subject to the same terms, conditions
and discretions as would have been applicable under this Plan had the
canceled Awards not been granted.
(c) In case of termination of employment by reason of death,
disability or retirement under a retirement plan of the Company or a
Subsidiary of an Optionee who holds an Option Right or Appreciation
Right not immediately exercisable in full, or any Restricted Stock as
to which the substantial risk of forfeiture or the prohibition or
restriction on transfer has not lapsed, or any Performance Units which
have not become fully payable or any Performance Shares that have not
been delivered, the Board may, in its sole discretion, accelerate the
time at which such Option Right or Appreciation Right may be exercised
or the time at which such substantial risk of forfeiture or
prohibition or restriction on transfer will lapse or the time at which
such Performance Units will be deemed to have become fully payable or
Performance Shares will be delivered.
(d) This Plan shall not confer upon any Participant any right
with respect to continuance of employment or other service with the
Company or any Subsidiary, nor shall it interfere in any way with any
right the Company or any Subsidiary would otherwise have to terminate
such Participant's employment or other service at any time.
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