EXHIBIT 10.10
AMENDED AND RESTATED
CENTEX CORPORATION LONG TERM INCENTIVE PLAN
EFFECTIVE October 1, 2001
1. OBJECTIVES
The Centex Corporation Long Term Incentive Plan (the "Plan") is
designed to retain selected employees of Centex Corporation and all
subsidiaries, partnerships and affiliates of Centex Corporation with regard to
which Centex Corporation owns, directly or indirectly, at least 80% of the
ownership interest therein, and reward them for making significant contributions
to the success of Centex Corporation. These objectives are to be accomplished by
making awards under the Plan and thereby providing Participants with a financial
interest in the growth and performance of Centex Corporation. The Plan shall not
constitute a "qualified plan" subject to the limitations of Section 401(a) of
the Code, nor shall it constitute a "funded plan" for purposes of such
requirements. This Plan shall be exempt from the participation and vesting
requirements of Part 2 of Title I of ERISA, the funding requirements of Part 3
of Title I of ERISA, and the fiduciary requirements of Part 4 of Title I of
ERISA by reason of the exclusions afforded to plans which are unfunded and
maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of highly compensated employees.
2. DEFINITIONS
As used herein, the terms set forth below shall have the following
respective meanings:
"ACT" means the Securities Exchange Act of 1934, as amended.
"ADMINISTRATOR" means the Compensation and Stock Option Committee of
the Board.
"AFFILIATE" means any direct or indirect subsidiary or parent of Centex
Corporation and any partnership, joint venture, limited liability company or
other business venture or entity in which Centex Corporation owns directly or
indirectly at least 80% of the ownership interest in such entity, as determined
by the Administrator in its sole and absolute discretion (such determination by
the Administrator to be conclusively established by the grant of an Award by the
Administrator to an officer or employee of such an entity).
"AWARD" means an award of Deferred Stock granted to a Participant
pursuant to any applicable terms, conditions and limitations as the
Administrator may establish in order to fulfill the objectives of the Plan.
"AWARD AGREEMENT" means a written agreement between Centex Corporation
and a Participant that sets forth the terms, conditions and limitations
applicable to an Award.
"BENEFICIARY" means such person or persons, or the trustee of an inter
vivos trust for the benefit of natural persons, designated by the Participant in
a written election filed with the
1
Administrator as entitled to receive the Participant's Award(s) in the event of
the Participant's death, or if no such election shall have been so filed, or if
no designated Beneficiary survives the Participant or can be located by the
Administrator, the person or persons entitled thereto under the last will of
such deceased Participant, or if such decedent left no will, to the legal heirs
of such decedent determined in accordance with the laws of intestate succession
of the state of the decedent's domicile.
"BOARD" means the Board of Directors of Centex Corporation as the same
may be constituted from time to time.
"CENTEX CORPORATION" means Centex Corporation, a Nevada corporation, or
any successor thereto.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" means each of Centex Corporation and every Affiliate.
"DEFERRED STOCK" means a right to receive at Payout the number of
Shares covered by an Award, subject to the terms of this Plan and the Award
Agreement. Deferred Stock does not represent any actual legal or beneficial
interest in Centex Corporation.
"DISABILITY" means a disability that entitles the Participant to
benefits under the long-term disability plan sponsored by Centex Corporation
which covers the Participant.
"EMPLOYMENT" means employment with a Company.
"EXPIRATION DATE" means, as to an Award, that date which is seven years
past the Grant Date of such Award or such other period (not beyond ten years) as
the Administrator may determine.
"FAIR MARKET VALUE" means the closing price per Share as of a
particular date reported on the consolidated transaction reporting system for
the New York Stock Exchange or, if there shall have been no such sale so
reported on that date, on the last preceding date on which such a sale was
reported.
"GRANT DATE" means the date an Award is made to a Participant
hereunder, which will be April 1 of the year in which such Award is made, or any
other date selected by the Administrator.
"PARTICIPANT" means an employee of a Company to whom an Award has been
made under this Plan.
"PAYOUT" means the distribution of vested Deferred Stock under the
Plan.
"PAYOUT DATE" means the date an Award becomes payable pursuant to
Section 8.
2
"PLAN" means this Centex Corporation Long Term Incentive Plan, as set
forth herein and as may be amended from time to time.
"RETIREMENT" means the termination of a Participant's Employment due to
retirement on or after age 62 provided that the Participant has at least ten
years of service with one or more Companies.
"SHARE" means a share of Centex Corporation's present twenty-five cents
($0.25) par value common stock and any share or shares of capital stock or other
securities of Centex Corporation hereafter issued or issuable upon, in respect
of or in substitution or in exchange for each present share. Such Shares may be
unissued or reacquired Shares, as the Board, in its sole and absolute
discretion, shall from time to time determine.
"TERMINATION DATE" means the last date on which the Participant is
carried on a Company's payroll as an employee.
3. ELIGIBILITY
Only highly compensated employees of a Company are eligible for Awards
under this Plan, as determined in the sole discretion of the Administrator. The
Administrator shall select the Participants in the Plan from time to time as
evidenced by the grant of Awards under the Plan.
4. PLAN ADMINISTRATION
The Plan shall be administered by the Administrator, which shall have
full and exclusive power to interpret this Plan and to adopt such rules,
regulations and guidelines for carrying out this Plan as it may deem necessary
or appropriate in its sole discretion. The Administrator shall determine all
terms and conditions of the Awards. The Administrator may, in its discretion,
accelerate the vesting or Payout of an Award, eliminate or make less restrictive
any restrictions contained in an Award Agreement, waive any restriction or other
provision of this Plan or an Award Agreement or otherwise amend or modify an
Award in any manner that is either (i) not materially adverse to the Participant
holding the Award or (ii) consented to by such Participant. The Administrator
may delegate to one or more employees of Centex Corporation the performance of
non-discretionary functions under this Plan, including distributions of Payouts.
5. AWARDS
(a) The granting of Awards under this Plan shall be entirely
discretionary, and nothing in this Plan shall be deemed to give any employee of
a Company any right to participate in this Plan or to be granted an Award.
(b) Awards shall be granted to Participants at such times, and subject
to paragraph 5.(d) below, in such amounts as the Administrator, in its sole and
absolute discretion, shall determine. No credit for cash dividends on Deferred
Stock will be allowed (or accrued) prior to Payout.
3
(c) The term of an Award shall run from the Grant Date to the
Expiration Date, subject to early Payout as described in Section 8 below or
forfeiture as described in Section 7 below.
(d) The maximum number of Shares that may be awarded under this Plan,
subject to Section 13 below, is 500,000.
(e) If an Award is forfeited, the number of Shares with respect to
which such Award shall not have been exercised prior to its forfeiture may again
be awarded pursuant to the provisions hereof.
6. VESTING OF AWARDS
(a) Unless different terms are set by the Administrator, an Award shall
be immediately 25% vested on its Grant Date and shall become vested in
cumulative 25% increments on each of the first through third anniversaries of
such Grant Date, so that on the third anniversary of the Grant Date the Award
will be 100% vested; provided, however, that the Participant must be in
continuous Employment from the Grant Date through the date of the applicable
anniversary in order for the Award to vest.
(b) A Participant's Award shall be fully vested, irrespective of the
limitations set forth in subparagraph (a) above, in the event of (i) a change in
control, as provided for in Section 13 below, provided that the Participant has
been in continuous Employment from the Grant Date until the date of such change
in control or (ii) Retirement of the Participant.
7. FORFEITURE OF AWARDS
If a Participant's Employment is terminated, the Participant shall
forfeit his or her Award(s) with respect to any portion that is not vested as of
such Participant's Termination Date.
8. PAYOUTS OF AWARDS
Payouts will occur as follows:
(a) Automatic Payout on Expiration Date. To the extent that a
Participant's Award has vested, such Award shall have an automatic Payout on the
Expiration Date of such Award.
(b) Early Payouts. In addition to automatic Payout on the Expiration
Date, there may be an early Payout of the vested portion of an Award as follows:
(i) Termination of Employment (whether voluntary or
involuntary). The vested portion of each Award shall have an automatic
Payout on the Participant's Termination Date.
4
(ii) Death. If a Participant dies prior to the Expiration
Date, such Participant's Award, to the extent vested, shall have an
automatic Payout as of the date of the Participant's death and be made
to the Participant's Beneficiary.
(iii) Disability. Prior to the Expiration Date, an Award, with
the approval of the Administrator, shall both be fully vested and have
an automatic Payout on the date the Participant satisfies the
definition of Disability.
(iv) Early Payout Request. A Participant may request that the
Administrator consider an early Payout to him or her with respect to
any vested portion of an Award. Such a request will be considered at
the next semi-annual meeting of the Administrator (held in May and
October of each calendar year). Such request shall be in writing and
will set forth, in sufficient detail, the reasons for such early
Payout. The Administrator will consider such request during said
meeting and will, within thirty (30) days following said meeting,
determine in its sole and absolute discretion whether to allow such
early Payout, and then notify the Participant of its decision.
9. FORM OF PAYOUT
As soon as practicable following a determination that Payout of a
Participant's Award shall be made as described in Section 8, but not later than
five business days after the required Payout Date, Centex Corporation shall make
a Payout to the Participant. All Payouts shall be made in Shares except that no
fractional shares will be issued and in lieu thereof cash will be paid to the
Participant.
10. DELIVERY OF SHARE CERTIFICATES
As promptly as may be practicable following a Payout, Centex
Corporation shall make delivery of one or more Share certificates, either by
delivery of a physical certificate or an electronic transfer to a broker, for
the appropriate number of Shares.
11. TAX WITHHOLDING
Centex Corporation shall deduct applicable taxes with respect to any
Award or Payout and withhold, at the time of Award or Payout, as appropriate, a
number of Shares, based on the Fair Market Value on such date, for payment of
taxes required by law.
12. NON-ASSIGNABILITY
Unless otherwise determined by the Administrator, no Award or Payout or
any other benefit under this Plan shall be assignable or otherwise transferable
except to a Beneficiary or by will, the laws of descent and distribution or a
domestic relations order. The Administrator may prescribe other restrictions on
transfer. Any attempted assignment of an Award or any other benefit under this
Plan in violation of this Section 12 shall be null and void.
5
13. CHANGES IN SHARES AND CERTAIN CORPORATE TRANSACTIONS
(a) In the event of any subdivision or consolidation of outstanding
Shares, declaration of a dividend payable in Shares or other stock split, then
(i) the number of Shares available for Awards under this Plan, and (ii) the
number of Shares covered by outstanding Awards, shall each be proportionately
adjusted by the Board as appropriate to reflect such transaction. In the event
of any other recapitalization or capital reorganization of the Centex
Corporation, any consolidation or merger of the Centex Corporation with another
corporation or entity, the adoption by the Centex Corporation of any plan of
exchange affecting Shares or any distribution to holders of Shares of securities
or property (other than normal cash dividends or dividends payable in Shares),
the Board shall make appropriate adjustments to (i) the number of Shares
available for Awards under this Plan, and (ii) the number of Shares covered by
outstanding Deferred Awards, to reflect such transaction; provided that such
adjustment under (ii) shall only be such as are necessary to maintain the
proportionate interest of the holders of the Awards and preserve, without
increasing, the value of such Awards.
Except as is otherwise expressly provided herein, the issuance by
Centex Corporation of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection with
a direct sale or upon the exercise of rights or warrants to subscribe therefor,
or upon conversion of shares or obligations of Centex Corporation convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number of Shares then subject
to outstanding Awards granted under the Plan. Furthermore, the presence of
outstanding Awards granted under the Plan shall not affect in any manner the
right or power of Centex Corporation to make, authorize or consummate (i) any or
all adjustments, recapitalizations, reorganizations or other changes in Centex
Corporation's capital structure or its business, including the issuance of
capital stock; (ii) any merger or consolidation of Centex Corporation; (iii) any
issuance by Centex Corporation of debt securities or preferred or preference
stock which would rank above the Shares subject to outstanding Awards granted
under the Plan; (iv) the dissolution or liquidation of Centex Corporation; (v)
any sale, transfer or assignment of all or any part of the assets or business of
Centex Corporation; or (vi) any other corporate act or proceeding, whether of a
similar character or otherwise.
(b) Notwithstanding anything to the contrary above, a dissolution or
liquidation of Centex Corporation, a merger (other than a merger effecting a
reincorporation of Centex Corporation in another state) or consolidation in
which Centex Corporation is not the surviving corporation (or survives only as a
subsidiary of another corporation in a transaction in which the stockholders of
the parent of Centex Corporation and their proportionate interests therein
immediately after the transaction are not substantially identical to the
stockholders of Centex Corporation and their proportionate interests therein
immediately prior to the transaction), a transaction in which another
corporation becomes the owner of 50% or more of the total combined voting power
of all classes of stock of Centex Corporation, or a change in control (as
specified below), shall cause every Award then outstanding to become fully
vested immediately prior to such dissolution, liquidation, merger,
consolidation, transaction, or change in control, to the extent not theretofore
exercised, without regard to the determination as to the periods and
installments of vesting contained in the Agreements if (and only if) such Awards
have not at that
6
time expired or been terminated. For purposes of this Section 13, a change in
control shall be deemed to have taken place if:
(i) a third person, including a "Group" as defined in Section
13(d)(3) of the Act, becomes the beneficial owner of Shares of Centex
Corporation having 50% or more of total number of votes that may be
cast for the election of Directors of Centex Corporation; or
(ii) as a result of, or in connection with, a contested
election for Directors, persons who were Directors of Centex
Corporation immediately before such election shall cease to constitute
a majority of the Board.
Notwithstanding the foregoing provisions of this paragraph, in the
event of any such dissolution, merger, consolidation, transaction or change in
control, the Board may completely satisfy all obligations of Centex Corporation
and its Affiliates with respect to any Award outstanding on the date of such
event by delivering to the Participant cash in an amount equal to the Fair
Market Value of such Shares on the date of such event, such payment to be made
within reasonable time after such event.
14. PLAN YEAR
The Plan shall be effective as of October 1, 2001 and will continue in
effect until the Administrator terminates the same. The Plan year will be April
1 through March 31 while this Plan is in effect.
15. REQUIREMENTS OF LAW
Notwithstanding anything herein to the contrary, Centex Corporation
shall not be required to issue Shares under any Award if the issuance thereof
would constitute a violation by the Participant or Centex Corporation of any
provisions of any law or regulation of any governmental authority or any
national securities exchange; and as a condition of any issuance of Shares under
any Award, Centex Corporation may require such agreements or undertakings, if
any, as Centex Corporation may deem necessary or advisable to ensure compliance
with any such law or regulation.
16. AMENDMENT, SUSPENSION OR TERMINATION
The Board may amend, suspend or terminate the Plan at any time for the
purpose of meeting or addressing any changes in legal requirements or for any
other purpose permitted by law, except that no amendment, suspension or
termination shall be made that would impair the rights of any Participant as to
a vested Award previously granted to such Participant without his or her written
consent.
7
17. UNFUNDED PLAN
This Plan shall be unfunded. Although bookkeeping accounts may be
established with respect to Participants representing Awards, any such accounts
shall be used merely as a bookkeeping convenience. Centex Corporation shall not
be required to segregate any assets that may at any time be represented by
Awards, nor shall this Plan be construed as providing for such segregation, nor
shall Centex Corporation, the Board or the Administrator be deemed to be a
trustee of any Awards to be granted under this Plan. Any liability or obligation
of Centex Corporation to any Participant with respect to a grant of Awards under
this Plan shall be based solely upon any contractual obligations that may be
created under this Plan, and no such liability or obligation of Centex
Corporation shall be deemed to be secured by any pledge or other encumbrance on
any property of Centex Corporation. None of Centex Corporation or any other
Company, the Board or the Administrator shall be required to give any security
or bond for the performance of any obligation that may be created by this Plan.
Notwithstanding the foregoing, upon the occurrence of a change in
control, as described in Section 13(b), each Company whose employees are
Participants shall, as soon as possible, but in no event longer than 15 days
following the change in control, make an irrevocable contribution to a trust
established by Centex Corporation in an amount sufficient to fully pay the
entire benefit to which each Participant employed by such Company would be
entitled pursuant to the terms of this Plan as of the date on which such change
in control occurs. In its sole discretion, Centex Corporation may establish such
a trust at any time prior to a change in control and may make contributions to
such trust in Shares or in cash which would be used to acquire Shares to
transfer to Participant. Any such trust shall be designed to assist Centex
Corporation in satisfying its obligations under this Plan; but it shall remain
subject to the claims of its creditors.
18. NO EMPLOYMENT GUARANTEED
No provision of this Plan or any Award Agreement hereunder shall confer
any right upon any employee to continued employment with a Company.
19. NO STOCKHOLDER RIGHTS
A Participant shall have no rights as a holder of Shares with respect
to Awards granted hereunder. In particular, no Award shall entitle a Participant
to be considered a holder of Shares or to have any rights to dividends or other
distributions made to holders of Shares prior to the Payout of such Award.
20. GOVERNING LAW
This Plan and all determinations made and actions taken pursuant
hereto, to the extent not otherwise governed by mandatory provisions of the Act
or other securities laws of the United States, shall be governed by and
construed in accordance with the laws of the State of Texas, without reference
to any conflicts of law principles thereof that would require the application of
the laws of another jurisdiction.
8
21. INDEMNIFICATION
Neither the members of the Board nor any member of the Compensation and
Stock Option Committee, acting in the capacity of Administrator, shall be liable
for any act, omission or determination taken or made in good faith with respect
to the Plan or any Award granted under it, and the members of the Board and the
Compensation and Stock Option Committee shall be entitled to indemnification and
reimbursement by Centex Corporation in respect of any claim, loss, damage or
expense (including counsel fees) arising therefrom to the full extent permitted
by law and under any directors and officers liability or similar insurance
coverage that may be in effect from time to time.
22. RELEASE
Any issuance or transfer of Shares to a Participant or to his legal
representative, heir, legatee or distributee in accordance with the provisions
hereof shall, to the extent thereof, be in full satisfaction of all claims of
such persons hereunder. The Board or Administrator may require any Participant
or legal representative, heir, legatee or distributee, as a condition precedent
to such payment, to execute a release and receipt therefor in such form as it
shall determine.
9