EXHIBIT 10.8
ASHTON WOODS USA, L.L.C.
NONQUALIFIED DEFERRED COMPENSATION PLAN
Effective June 1, 2005
SECTION 1
PURPOSE AND ADMINISTRATION
1.1. Name of Plan. Ashton Woods USA, L.L.C. (the "Company") hereby adopts the
Ashton Woods USA, L.L.C. Deferred Compensation Plan (the "Plan"), as set forth
herein.
1.2. Effective Date. The effective date of this Plan is June 1, 2005 .
1.3. Purpose. The Company has established the Plan primarily for the purpose of
providing deferred compensation to a select group of management or highly
compensated employees of the Participating Employers. The Plan is intended to be
a top-hat plan as described in Section 201(2), 301(a)(3) and 401(a)(1) of ERISA.
The Company intends that the Plan shall be treated as unfunded for tax purposes
and for purposes of Title I of ERISA. The Plan is not intended to qualify under
Section 401 (a) or the Code. A Participating Employer's obligations hereunder,
if any, to a Participant (or to a Participant's beneficiary) shall be unsecured
and shall be a mere promise by the Participating Employer to make payments
hereunder in the future. A Participant (and, if applicable, the Participant's
beneficiary) shall be treated as a general unsecured creditor of any
Participating Employer.
1.4. Administration. The Plan shall be administered by the committee appointed
by the Company's Board of Directors.
(a) Authority. The Plan Administrative Committee shall have full authority and
power to administer and construe the Plan, subject to applicable
requirements of law. Without limiting the generality of the foregoing, the
Plan Administrative Committee shall have the following powers and duties:
(i) To make and enforce such rules and regulations as it deems necessary
or proper for the administration of the Plan;
(ii) To interpret the Plan and to decide all questions concerning the
Plan;
(iii) To designate persons eligible to participate in the Plan, subject to
the approval of the Board;
(iv) To determine the amount and the recipient of any payments to be made
under the Plan;
(v) To designate and value any investments deemed held in the Accounts;
(vi) To appoint such agents, counsel, accountants, consultants and other
persons as may be required to assist in administering the Plan; and
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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(vii) To make all other determinations and to take all other steps
necessary or advisable for the administration of the Plan.
Subject to paragraph (b) below, all decisions made by the Plan
Administrative Committee pursuant to the provisions of the Plan shall be
made in its sole discretion and shall be final, conclusive, and binding
upon all parties.
(b) Authority of Board of Directors. Notwithstanding anything in this Plan to
the contrary, the Board shall have the power
(i) to review and approve the persons who will be eligible to
participate in the Plan; and
(ii) to make determinations with respect to the participation and
benefits of to any member of the Plan Administrative Committee who
is a participant in the Plan.
(c) Delegation of Duties. The Plan Administrative Committee may delegate such
of its duties and may engage such experts and other persons as it deems
appropriate in connection with administering the Plan. The Plan
Administrative Committee shall be entitled to rely conclusively upon, and
shall be fully protected in any action taken by the Plan Administrative
Committee, in good faith in reliance upon any opinions or reports
furnished to it by any such experts or other persons.
(d) Expenses. All expenses incurred prior to the termination of the Plan that
shall arise in connection with the administration of the Plan, including,
without limitation, administrative expenses and compensation and other
expenses and charges of any actuary, counsel, accountant, specialist, or
other person who shall be employed by the Plan Administrative Committee in
connection with the administration of the Plan shall be paid by the
Participating Employers.
(e) Indemnification of Plan Administrative Committee. The Participating
Employers agree to indemnify and to defend to the fullest extent permitted
by law any person serving as a member of the Plan Administrative
Committee, and each employee of a Participating Employer or any of their
affiliated companies appointed by the Plan Administrative Committee to
carry out duties under this Plan, against all liabilities, damages, costs
and expenses (including attorneys' fees and amounts paid in settlement of
any claims approved by the Company) occasioned by any act or omission to
act in connection with the Plan, if such act or omission is in good faith.
(f) Liability. To the extent permitted by law, neither the Plan Administrative
Committee nor any other person shall incur any liability for any acts or
for any failure to act except for liability arising out of such person's
own willful misconduct or willful breach of the Plan.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 2
DEFINITIONS
For purposes of the Plan, the following words and phrases shall have the
meanings set forth below, unless their context clearly requires a different
meaning:
2.1. Account. "Deferred Compensation Account" means the bookkeeping account
maintained for each Participant in accordance with Section 6.1 and which
includes the following subaccounts:
(a) "Employer Contribution Account" means the portion of the Participant's
Account attributable to Discretionary Contributions, and the earnings
thereon.
2.2. Affiliate. "Affiliate" means any corporation, partnership, joint venture,
association or similar organization or entity in which the Company owns,
directly or indirectly, a majority of equity interests.
2.3. Board. "Board" means the Board of Directors of Ashton Woods USA, L.L.C.
2.4. Change in Control. "Change in Control" means a Change in Control as
described in Appendix A to this Plan.
2.5. Code. "Code" means the Internal Revenue Code of 1986, as amended from time
to time. Any reference to a section of the Code includes any comparable section
or sections of any future legislation that amends, supplements or supersedes
that section.
2.6. Company. "Company" means Ashton Woods USA, L.L.C. or any successor company
that adopts this Plan.
2.7. Compensation. "Compensation" means such forms of compensation payable in
cash as may be designated by the Plan Administrative Committee, from time to
time, in its sole discretion, as eligible for deferral under this Plan.
Compensation may include, but shall be not limited to, any performance based or
bonus compensation, payable to the Participant.
2.8. Discretionary Contribution. "Discretionary Contribution" means the
contribution deemed credited to a Participant's Account pursuant to Section 4.
2.9. Eligible Employee. "Eligible Employee" means an employee of a Participating
Employer who has been designated pursuant to Section 3 as eligible to
participate in the Plan.
2.10. "ERISA. "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time. Any reference to a section of ERISA includes any
comparable section or sections of any future legislation that amends,
supplements or supersedes that section.
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2.11. Participant. "Participant" means an Employee who meets the eligibility
criteria set forth in Section 3.
2.12. Participating Employer. "Participating Employer" means Ashton Woods USA,
L.L.C., and any of its participating Affiliates, or any successor companies.
2.13. Plan Administrative Committee. The "Plan Administrative Committee" means
the committee appointed by the Company's Board of Directors to administer the
Plan.
2.14. Plan Year. "Plan Year" shall be June 1 through May 31, which is the fiscal
year of the Company.
2.15. Retirement Date. "Retirement Date" means the date on which a Participant
elects to retire having an attained age of sixty-five (65) or greater.
2.16. Totally Disabled or Total Disability. A Participant shall be considered to
be "Totally Disabled" or to have a "Total Disability" if he or she meets the
definition of "Disabled" as defined in Internal Revenue Code Section
409A(a)(2)(C).
2.17. Valuation Date. "Valuation Date" means each business day the financial
markets are open, unless the underlying investment requires a less frequent
valuation.
2.18. Other Definitions. In addition to the terms defined in this Section 2,
other terms are defined when first used in Sections of this Plan.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 3
ELIGIBILITY AND PARTICIPATION
3.1. Eligible Employees. Only employees who are designated by the Plan
Administrative Committee and approved by the Board shall be eligible to
participate in the Plan.
3.2. Participation.
(a) An Eligible Employee shall become a Participant in the Plan by (i)
completing and submitting to the Company a Participation Agreement Form,
and (ii) complying with such terms and conditions as the Board and/or the
Plan Administrative Committee may from time to time establish for the
implementation of the Plan, including, but not limited to, any condition
the Board and/or the Plan Administrative Committee may deem necessary or
appropriate for the Participating Employers to meet their obligations
under the Plan.
(b) An employee shall only be a Participant eligible to have compensation
deferred under this Plan while he or she is designated as an Eligible
Employee. If an employee subsequently ceases to be a designated eligible
employee after becoming a Participant, he or she shall remain a
Participant for the other purposes of the Plan to the extent of any
existing Account balance subject to Section 13.1.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 4
DISCRETIONARY CONTRIBUTIONS
4.1. Discretionary Contribution.
(a) For any Plan Year, a Participating Employer may credit to the Deferred
Compensation Account of any Participant employed by that Participating
Employer a Discretionary Contribution in such amount as may be determined
by the Participating Employer in its sole discretion within forty-five
(45) days after the end of the Plan Year.
The amount of the Discretionary Contribution to be credited to a
Participant's Account for a Plan Year shall be determined by the
Participating Employer in its sole discretion. The formula to be used in
determining the Discretionary Contribution shall be determined from time
to time by the Participating Employer.
(b) Any Discretionary Contribution will be credited to a Participant's
Participating Employer Contribution Account as of the Valuation Date
specified by the Participating Employer.
4.2. Vesting of Discretionary Contribution.
(a) Except as otherwise provided in paragraph (b) below and subject to Section
9, the Discretionary Contribution credited to a Participant's Account with
respect to a particular Plan Year shall become vested in accordance with
the following schedule:
Years of Service Completed
Following Plan Year for which
Contribution is Credited Vested Percentage
- ----------------------------- -----------------
1 Year of Service 20%
2 Years of Service 40%
3 Years of Service 60%
4 Years of Service 80%
5 Years of Service 100%
A Participant will be credited with a Year of Service if he or she is
actively employed by a Participating Employer for a continuous period of
at least 6 months during the Plan Year AND is actively employed by a
Participating Employer as of the date any bonus or performance based
compensation is payable or credited to the Participant.
(b) Notwithstanding the foregoing vesting schedule, the balance credited to a
Participant's Participating Employer Contribution Account shall be become
fully vested if the Participant remains continuously employed by a
Participating Employer or an Affiliate until his or her death, Total
Disability, attainment of age sixty-five (65), or the occurrence of a
Change in Control in which the Participant is terminated without cause
within two (2) years following the Change in Control.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 5
DISTRIBUTION ELECTIONS
5.1. In-Service Distribution of Discretionary Contributions. The Participant
shall receive the total amount of 100% vested Discretionary Contributions
credited to his or her Deferred Compensation Account, and any earnings thereon,
distributed in a lump sum as soon as administratively feasible following the
100% vesting date.
5.2. Retirement Distribution. The Participant shall have his or her Deferred
Compensation Account distributed in a single lump sum payment upon termination
of employment following his or her Retirement Date as soon as administratively
feasible.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 6
DEFERRED COMPENSATION ACCOUNTS
6.1. Participant's Accounts. The Company shall establish and maintain a separate
memorandum account in the name of each Participant. Such account shall be
credited or charged with (a) Discretionary Contributions, if any; (b) income,
gains, losses, and expenses of investments deemed held in such account; and (c)
distributions from such account.
6.2. Investment of Employer Discretionary Contribution Accounts. The amount
credited to a Participant's Employer Contribution Account shall be deemed to be
invested and reinvested in the growth of the Company, and any other assets or
investment vehicles, as may be selected by the Plan Administrative Committee in
its sole discretion. The amount credited to a Participant's Employer
Contribution Account shall be credited with interest earnings on an annual
basis. The amount credited for the First Plan Year shall be a minimum of nine
percent (9%). Thereafter, the Plan Administrative Committee shall review and
determine the minimum credit rate at least sixty (60) days prior to the
beginning of the Plan Year.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 7
DISTRIBUTION OF COMPENSATION DEFERRAL ACCOUNT PRIOR TO TERMINATION OF EMPLOYMENT
7.1. Financial Hardship. The Plan Administrative Committee, in his sole
discretion, may permit a hardship payment from the vested portion of a
Participant's Deferred Compensation Account to be made to a Participant at any
time prior to a Designated In-Service Distribution Date or termination of
employment in the event of an "unforeseeable emergency". Withdrawals of amounts
because of an unforeseeable emergency will be permitted to the extent reasonably
needed to satisfy the emergency need. Applications for hardship distributions
and determinations thereon by the Administrative Committee shall be in writing,
and a Participant may be required to furnish written proof of the Financial
Hardship. Amounts paid to a Participant pursuant to this Section 7.1 shall be
treated as distributions from the Participant's Account. The Administrative
Committee will designate the subaccount from which the hardship distribution
will be made.
(a) For purposes of this Section, an "unforeseeable emergency" is a severe
financial hardship to the Participant resulting from a sudden and
unexpected illness or accident of the Participant or of a dependent (as
defined in Section 152(a) of the Code) of the Participant, loss of the
Participant's property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant.
(b) The circumstances that will constitute an unforeseeable emergency will
depend upon the facts of each case, but, in any case, payment may not be
made to the extent that such hardship is or may be relieved:
(i) Through reimbursement or compensation by insurance or otherwise; or
(ii) By liquidation of the Participant's assets, to the extent the
liquidation of such assets would not itself cause severe financial
hardship
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 8
DISTRIBUTION OF ACCOUNTS FOLLOWING TERMINATION OF EMPLOYMENT
8.1. Termination of Employment Prior to Retirement Date. In the event that a
Participant terminates employment for any reason other than death or becoming
Totally Disabled prior to his or her Retirement Date, the vested balance
credited to his or her Account will be distributed to the Participant in a
single lump sum within the calendar month following the calendar month of the
Participant's employment termination date.
8.2. Termination of Employment At or After Retirement Date. In the event that a
Participant terminates employment at or after his or her Retirement Date, the
Participant's Account shall be distributed in a single lump sum payment within
the calendar month following the calendar month of the Participant's employment
termination date.
8.3. Termination of Employment Due to Total Disability. In the event that a
Participant terminates employment at any time by reason of becoming Totally
Disabled, the balance credited to his or her Account will be distributed to the
Participant in a single lump payment within the calendar month following the
calendar month of the Participant's employment termination date.
8.4. Death. In the event that a Participant's employment is terminated by reason
of his or her death, the balance credited to his or her Account will be
distributed to the Participant's designated beneficiary in a single lump payment
within the calendar month following the calendar month of the Participant's
death.
8.5. Designated Beneficiary.
(a) The Participant may name a beneficiary or beneficiaries to receive the
balance of the Participant's Deferred Compensation Account in the event of
the Participant's death prior to the payment of the Participant's entire
Deferred Compensation Account. To be effective, any beneficiary
designation must be filed in writing with the Plan Administrative
Committee in accordance with rules and procedures adopted by the Plan
Administrative Committee for that purpose.
(b) A Participant may revoke an existing beneficiary designation by filing
another written beneficiary designation with the Plan Administrative
Committee. The latest beneficiary designation received by the Plan
Administrative Committee shall be controlling; provided, however, that no
designation, or change or revocation thereof, shall be effective unless
received by the Plan Administrative Committee prior to the Participant's
death.
(c) If no beneficiary is named by a Participant, or if the Participant
survives all of the Participant's named beneficiaries and does not
designate another beneficiary, the
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Effective June 1, 2005
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Participant's Deferred Compensation Account shall be paid in the following order
of precedence:
(i) The Participant's Spouse;
(ii) The Participant's children (including adopted children) per stirpes; or
(iii) The Participant's estate.
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Deferred Compensation Plan
Effective June 1, 2005
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SECTION 9
FORFEITURE OF BENEFITS
9.1. Notwithstanding anything in this Plan to the contrary, if the Plan
Administrative Committee, in its sole discretion, determines that the
Participant's employment with the Participating Employer has been terminated for
Good Cause, then the Plan Administrative Committee may cause the Participant's
entire interest in benefits attributable to his or her Employer Contribution
Account to be forfeited and discontinued, or may cause the Participant's
payments of benefits under the Plan to be limited or suspended for such other
period the Plan Administrative Committee finds advisable under the
circumstances, and may take any other action and seek any other relief the Plan
Administrative Committee, in its sole discretion, deems appropriate.
9.2. "Good Cause" means the Participant's fraud, dishonesty, or willful
violation of any law or significant policy of the Participating Employer that is
committed in connection with the Participant's employment by or association with
the Company or Affiliate. Whether a Participant has been terminated for Good
Cause shall be determined by the Plan Administrative Committee.
Regardless of whether a Participant's employment initially was considered to be
terminated for any reason other than Good Cause, the Participant's employment
will be considered to have been terminated for Good Cause for purposes of this
Plan if the Plan Administrative Committee subsequently determines that the
Participant engaged in an act constituting Good Cause.
9.3. The decision of the Plan Administrative Committee shall be final. The
omission or failure of the Plan Administrative Committee to exercise this right
at any time shall not be deemed a waiver of its right to exercise such right in
the future. The exercise of discretion will not create a precedent in any future
cases.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 10
APPEALS PROCEDURE
10.1. The Plan Administrative Committee shall approve or wholly or partially
deny all claims for benefits under the Plan within a reasonable period of time
after all required documentation has been furnished to the Plan Administrative
Committee.
10.2. If a claim is wholly or partially denied, the Plan Administrative
Committee shall provide the claimant with written notice setting forth the
specific reasons for the denial, making reference to the pertinent provisions of
the Plan or the Plan documents on which the denial is based; describe any
additional material or information that should be received before the claim may
be acted upon favorably, and explain why such material or information, if any,
is needed; and inform the person making the claim of his or her right pursuant
to this Section to request review of the decision by the Plan Administrative
Committee.
10.3. A claimant shall have the right to request a review of the decision
denying the claim. Such request must be made by filing a written application for
review with the Plan Administrative Committee no later than sixty (60) days
after receipt by the claimant of written notice of the denial of his or her
claim. The claimant may review pertinent Plan documents and shall submit such
written comments and other information which he or she wishes the Plan
Administrative Committee to consider in connection with his or her claim.
10.4. The Plan Administrative Committee may hold any hearing or conduct any
independent investigation which it deems necessary to render its decision on
review. Such decision shall be made as soon as practicable after the Plan
Administrative Committee receives the request for review. Written notice of the
decision on review shall be promptly furnished to the claimant and shall include
specific reasons for the decision.
10.5. For all purposes under the Plan, decisions on claims (where no review is
requested) and decisions on review (where review is requested) shall be final,
binding and conclusive on all interested persons.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 11
AMENDMENT OR TERMINATION OF THE PLAN
11.1. The Plan Administrative Committee may, in its sole discretion, modify,
terminate, suspend or amend this Plan at any time or from time to time, in whole
or in part, with respect to any Participants or beneficiaries whether or not
payments have commenced to such Participants or beneficiaries.
11.2. In the event the Plan is terminated, the Plan Administrative Committee
shall distribute the remaining amounts in Participants' Accounts at such times
and in such ways as the Plan Administrative Committee, in its sole discretion,
may deem appropriate.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 12
UNFUNDED PLAN; CHANGE IN CONTROL
12.1. Unfunded Plan. Nothing in this Plan shall be construed as giving any
Participant, or his or her legal representative or designated beneficiary, any
claim against any specific assets of the Company or any of its affiliated
companies or as imposing any trustee relationship upon the Company or any of its
affiliated companies in respect of the Participant. The Participating Employers
shall not be required to segregate any assets in order to provide for the
satisfaction of the obligations hereunder. Investments deemed held in the
Accounts shall continue to be a part of the general funds of the applicable
Participating Employers, and no individual or entity other than the
Participating Employer shall have any interest whatsoever in such funds. If and
to the extent that the Participant or his or her legal representative or
designated beneficiary acquires a right to receive any payment pursuant to this
Plan, such right shall be no greater than the right of an unsecured general
creditor of the applicable Participating Employer.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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SECTION 13
MISCELLANEOUS PROVISIONS
13.1. Top-Hat Status. Notwithstanding any provision of the Plan to the contrary,
if the Plan Administrative Committee determines that participation in the Plan
by any one or more Participants shall cause the Plan to be subject to Parts 2, 3
or 4 of Title I of ERISA, the entire interest of such Participant or
Participants under the Plan shall be immediately paid to such Participant or
Participants by the Participating Employer, or shall otherwise be segregated
from the Plan in the discretion of the Plan Administrative Committee, and such
Participant or Participants shall cease to have any interest under the Plan.
13.2. Benefits Non-Assignable. Benefits under the Plan may not be anticipated,
assigned or alienated, and will not be subject to claims of a Participant's
creditors by any process whatsoever, except as specifically provided in this
Plan or by the Plan Administrative Committee in its sole discretion.
13.3. Right to Withhold Taxes. The Participating Employers shall have the right
to withhold such amounts from any payment under this Plan as it determines
necessary to fulfill any federal, state, or local wage or compensation
withholding requirements.
13.4. No Right to Continued Employment. Neither the Plan, nor any action taken
under the Plan, shall confer upon any Participant any right to continuance of
employment by the Company or any of its affiliated companies nor shall it
interfere in any way with the right of the Company or any of its affiliated
companies to terminate any Participant's employment at any time.
13.5. Mental or Physical Incompetency. If the Plan Administrative Committee
determines that any person entitled to payments under the Plan is incompetent by
reason of physical or mental disability, as established by a court of competent
jurisdiction, the Plan Administrative Committee may cause all payments
thereafter becoming due to such person to be made to any other person for his or
her benefit, without responsibility to follow the application of amounts so
paid. Payments made pursuant to this Section shall completely discharge the Plan
Administrative Committee and the Participating Employer.
13.6. Suspension of Payments. If any controversy, doubt or disagreement should
arise as to the person to whom any distribution or payment should be made, the
Plan Administrative Committee, in its discretion, may, without any liability
whatsoever, retain the funds involved or the sum in question pending settlement
or resolution to the Plan Administrative Committee's satisfaction of the matter,
or pending a final adjudication by a court of competent jurisdiction.
13.7. Governing Laws. The provisions of the Plan shall be construed,
administered and enforced according to applicable Federal law and the laws of
State of Georgia.
13.8. Severability. The provisions of the Plan are severable. If any provision
of the Plan is deemed legally or factually invalid or unenforceable to any
extent or in any application, then the
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Deferred Compensation Plan
Effective June 1, 2005
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remainder of the provision and the Plan, except to such extent or in such
application, shall not be affected, and each and every provision of the Plan
shall be valid and enforceable to the fullest extent and in the broadest
application permitted by law.
13.9. No Other Agreements or Understandings. This Plan represents the sole
agreement between the Participating Employers and Participants concerning its
subject matter, and it supersedes all prior agreements, arrangements,
understandings, warranties, representations, and statements between or among the
parties concerning its subject matter.
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Deferred Compensation Plan
Effective June 1, 2005
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IN WITNESS WHEREOF, the Company has caused this Plan to be executed by its duly
authorized officer on this_____day of_____,2005.
ASHTON WOODS USA, L.L.C.
(the "Company")
By:________________________
Title:_____________________
ATTEST:
By:___________________________
Title:________________________
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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APPENDIX_A
CHANGE IN CONTROL
A "Change in Control" of the Company shall occur upon the happening of any of
the following:
(i) a change in ownership of the Company. A change in ownership
generally occurs when a person (or group of people pursuant to a merger or
similar transaction) acquires more than fifty-percent (50%) of the total
fair market value or total voting power of the Company's stock;
(ii) a change in effective ownership of the Company, A change in
effective ownership generally occurs when (i) a person (or group of people
as above) acquires (or has acquired during a 12-month period) fifty
percent (50%) or more of the total voting power of the Company's stock or
(ii) a majority of members of the Company's board of directors is replaced
during any 12-month period by directors whose appointment or election is
not endorsed by a majority of the members of the preexisting board of
directors; or
(iii) a change in ownership of substantial assets of the Company. A
change in ownership of substantial assets generally occurs when a person
(or group of people as above) acquires (or has acquired during the
preceding 12-month period) assets totaling more than fifty-percent (50%)
of the gross fair market value of all the Company's assets.
For purposes of this Appendix A, the Incumbent Board, by a majority vote, shall
have the power to determine on the basis of information known to them (a) the
number of shares beneficially owned by any person, entity or group; (b) whether
there exists an agreement, arrangement or understanding with another as to
matters referred to in this Appendix A; and (c) such other matters with respect
to which a determination is necessary under this Appendix A.
Ashton Woods USA, L.L.C.
Deferred Compensation Plan
Effective June 1, 2005
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