<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 26, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
CENTEX CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA
(State or other jurisdiction of
incorporation or organization)
75-0778259
(I.R.S. Employer
Identification No.)
2728 NORTH HARWOOD
DALLAS, TEXAS 75201
(Address of principal executive offices, including zip code)
--------------------
CENTEX CORPORATION DEFERRED COMPENSATION PLAN
(Full title of the plan)
RAYMOND G. SMERGE
EXECUTIVE VICE PRESIDENT, CHIEF LEGAL OFFICER, GENERAL COUNSEL AND SECRETARY
2728 NORTH HARWOOD
DALLAS, TEXAS 75201
(Name and address of agent for service)
(214) 981-5000
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Proposed maximum Proposed maximum
Title of Amount to be offering price per aggregate offering Amount of
securities to be registered registered share (1) price (1) registration fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation Obligations (2) $10,000,000 100% $10,000,000 $2,640
==================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) The Deferred Compensation Obligations are unsecured general obligations
of Centex Corporation ("Centex") to pay deferred compensation in
accordance with the terms of the Centex Corporation Deferred
Compensation Plan.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with the Securities and Exchange
Commission by Centex and are incorporated herein by reference and made a part
hereof:
(a) Joint Annual Report on Form 10-K of Centex, 3333 Holding Corporation
("Holding') and Centex Development Company, L.P. ("CDC") for the
fiscal year ended March 31, 1999;
(b) Amended Joint Annual Report on Form 10-K of Centex, Holding and CDC
for the fiscal year ended March 31, 1999;
(c) Joint Quarterly Reports on Form 10-Q of Centex, Holding and CDC for
the quarters ended June 30, 1999, September 30, 1999 and December
31, 1999;
(d) Current Reports on Form 8-K of Centex dated August 9, 1999, August
27, 1999, January 27, 2000, February 1, 2000 and May 1, 2000;
(e) Description of the Centex Common Stock, $0.25 par value per share,
contained in the Registration Statement on Form 8-A dated October
28, 1971 and Form 8 dated November 11, 1971;
(f) Description of the Preferred Stock Purchase Rights contained in the
Form 8-A Registration Statement of Centex dated October 8, 1996.
All documents filed by Centex pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
subsequent to the effective date hereof and prior to the filing of a
post-effective amendment hereto that indicates that all securities offered
hereby have been sold or that deregisters all such securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in any document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Deferred Compensation Obligations described herein has
been passed upon for Centex by Raymond G. Smerge, Executive Vice President,
Chief Legal Officer, General Counsel and Secretary of Centex.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Centex is a Nevada corporation. Pursuant to the provisions of Section
78.7502 of the Nevada General Corporation Law, 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 acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause or belief 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 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 person referred to in the two immediately preceding
paragraphs is successful on the merits or otherwise in defense of any action,
suit or proceeding, the Nevada General Corporation 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.
Section 78.751 of the Nevada General Corporation Law requires the
corporation to obtain a determination that any 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. The Articles of
Incorporation of Centex provide for indemnification of its directors and
officers to the extent provided by Nevada law.
In addition, Section 78.037 of the Nevada General Corporation Law permits
Nevada corporations to include in their articles of incorporation a provision
eliminating the personal liability of their directors and officers, to the
corporation or stockholders, for damages resulting from their breach of
fiduciary duties. An amendment to the Articles of Incorporation of Centex was
adopted by its stockholders at the annual meeting held on July 15, 1987 in order
to effect the permitted limitation on liability. This limitation on liability is
also reflected in the Bylaws of Centex.
2
<PAGE> 4
The Bylaws of Centex provide that the corporation shall indemnify its
directors, officers, employees and agents to the fullest extent provided by the
Nevada General Corporation Law and its Articles of Incorporation. In addition,
the Bylaws of Centex provide for indemnification to the same extent of any
director, officer or employee of the corporation who serves in any fiduciary
capacity with respect to any profit sharing, pension or other type of welfare
plan or trust for the benefit of employees of the corporation or its
subsidiaries.
Centex has entered into indemnification contracts with its directors and
may enter into similar contracts from time to time with certain officers and
employees of Centex and its subsidiaries who are not directors of Centex. The
general effect of the indemnification contracts is to provide that the
indemnitees shall be indemnified to the fullest possible extent permitted by the
law against all expenses, including attorneys' fees, judgments, fines 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 provisions of the
aforementioned indemnification contracts were approved by stockholders of Centex
at the annual meeting of stockholders held on July 16, 1986.
Centex also maintains insurance to protect itself and its directors,
officers, employees and agents against expenses, liabilities and losses incurred
by such persons in connection with their service in the foregoing capacities.
The foregoing summaries are necessarily subject to the complete text of
the statute, articles of incorporation, bylaws, agreements and insurance
policies referred to above and are qualified in their entirety by reference
thereto.
ITEM 8. EXHIBITS.
The information required by this Item 8 is set forth in the Index to
Exhibits accompanying this Registration Statement.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(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 Securities and
Exchange Commission pursuant to Rule 424(b) 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.
(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
3
<PAGE> 5
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 post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
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 if 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
EXPERTS
The financial statements and schedules incorporated by reference in this
Registration Statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, Centex Corporation 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 May 26, 2000.
CENTEX CORPORATION
By:
/s/ David W. Quinn
-----------------------------------
David W. Quinn
Vice Chairman of the Board and
Chief Financial 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-8 with the Securities and Exchange Commission
under the provisions of the Securities Act, hereby constitutes and appoints
Laurence E. Hirsch and David W. Quinn, 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 any and all amendments to this
Registration Statement, with all exhibits thereto, and other documents in
connection therewith 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, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES CAPACITY IN WHICH SIGNED DATE
---------- ------------------------ ----
<S> <C> <C>
Chairman of the Board and
Chief Executive Officer;
Director
/s/ Laurence E. Hirsch (Principal Executive Officer) May 26, 2000
- -------------------------------------
Laurence E. Hirsch
Vice Chairman of the Board and
Chief Financial Officer;
Director
/s/ David W. Quinn (Principal Financial Officer) May 26, 2000
- -------------------------------------
David W. Quinn
Vice President and Controller
/s/ John S. Worth, Sr. (Principal Accounting Officer) May 26, 2000
- -------------------------------------
John S. Worth, Sr.
/s/ Barbara T. Alexander Director May 26, 2000
- -------------------------------------
Barbara T. Alexander
</TABLE>
S-1
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURES CAPACITY IN WHICH SIGNED DATE
---------- ------------------------ ----
<S> <C> <C>
/s/ Dan W. Cook III Director May 26,2000
- -------------------------------------
Dan W. Cook III
/s/ Juan L. Elek Director May 26, 2000
- -------------------------------------
Juan L. Elek
/s/ Clint W. Murchison, III Director May 26, 2000
- -------------------------------------
Clint W. Murchison, III
/s/ Charles H. Pistor, Jr. Director May 26, 2000
- -------------------------------------
Charles H. Pistor, Jr.
/s/ Paul R. Seegers Director May 26, 2000
- -------------------------------------
Paul R. Seegers
/s/ Paul T. Stoffel Director May 26, 2000
- -------------------------------------
Paul T. Stoffel
</TABLE>
S-2
<PAGE> 8
INDEX TO EXHIBITS
CENTEX CORPORATION
AND SUBSIDIARIES
<TABLE>
<CAPTION>
EXHIBIT FILED HEREWITH OR
NUMBER EXHIBIT INCORPORATED BY REFERENCE
------ ------- -------------------------
<S> <C> <C>
4 Centex Corporation Deferred Compensation Plan. Filed herewith.
5 Opinion of Raymond G. Smerge. Filed herewith.
23.1 Consent of Independent Public Accountants. Filed herewith.
23.2 Consent of Raymond G. Smerge (included in his opinion Filed herewith.
filed as Exhibit 5 hereto).
24 Powers of Attorney (included on the signature page of this Filed herewith.
Registration Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4
CENTEX CORPORATION
DEFERRED COMPENSATION PLAN
EFFECTIVE JANUARY 1, 2000
<PAGE> 2
CENTEX CORPORATION
DEFERRED COMPENSATION PLAN
EFFECTIVE JANUARY 1, 2000
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I NATURE OF PLAN..................................................................................1
ARTICLE II DEFINITIONS AND CONSTRUCTION....................................................................2
2.1. Definitions.....................................................................................2
2.2. Word Usage......................................................................................6
ARTICLE III ELIGIBILITY TO PARTICIPATE......................................................................7
3.1. Date of Participation...........................................................................7
3.2. Resumption of Participation Following Re-employment.............................................7
3.3. Change in Employment Status.....................................................................7
ARTICLE IV CONTRIBUTIONS...................................................................................8
4.1. Election by Participant to Defer Compensation...................................................8
4.2. Crediting of Amounts to a Participant's Account.................................................9
4.3. Employer Contributions..........................................................................9
ARTICLE V PARTICIPANT ACCOUNTS...........................................................................10
5.1. Participant Accounts...........................................................................10
5.2. Accounting for Distributions...................................................................10
ARTICLE VI INVESTMENT OF CONTRIBUTIONS....................................................................11
6.1. Manner of Investment...........................................................................11
6.2. Investment Decisions...........................................................................11
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
6.3. Adjustment for Investment Experience...........................................................11
ARTICLE VII DISTRIBUTION OF BENEFITS.......................................................................12
7.1. Election for Distribution of Benefits..........................................................12
7.2. Time of Distribution...........................................................................13
7.3. Distributions In the Event of the Participant's Death.........................................14
7.4. Withdrawal of Contributions....................................................................15
7.5. Withdrawals in the Event of an Unforeseen Hardship.............................................15
7.6. Notice to Trustee..............................................................................15
ARTICLE VIII AMENDMENTS AND TERMINATION.....................................................................16
8.1. Amendment by Company...........................................................................16
8.2. Plan Termination...............................................................................16
ARTICLE IX TRUST..........................................................................................17
9.1. Establishment of Trust.........................................................................17
9.2. Funding........................................................................................17
ARTICLE X PLAN ADMINISTRATION............................................................................18
10.1. Powers and Responsibilities of the Administrative Committee....................................18
10.2. Establishment of the Administrative Committee..................................................18
10.3. Claims and Review Procedures...................................................................19
ARTICLE XI MISCELLANEOUS..................................................................................21
11.1. Communication to Participants..................................................................21
11.2. Limitation of Rights...........................................................................21
11.3. Spendthrift Provision..........................................................................21
11.4. Spousal Claims.................................................................................21
11.5. Withholding....................................................................................21
11.6. Facility of Payment............................................................................21
11.7. Overpayment and Underpayment of Benefits.......................................................22
11.8. Governing Law..................................................................................22
</TABLE>
ii
<PAGE> 4
CENTEX CORPORATION
DEFERRED COMPENSATION PLAN
ARTICLE I.
NATURE OF PLAN
This Centex Corporation Deferred Compensation Plan (the "Plan") is adopted
by Centex Corporation for the benefit of certain of its Employees, effective as
of January 1, 2000. The purpose of the Plan is to provide supplemental
retirement income and to permit Eligible Employees the option to defer receipt
of Compensation, pursuant to the terms of the Plan. The Plan is intended to be
an unfunded deferred compensation plan maintained for the benefit of a select
group of management or highly compensated employees under sections 201(2),
301(a)(3) and 401(a)(1) of ERISA.
- ----------------------------
End of Article I
1
<PAGE> 5
ARTICLE II.
DEFINITIONS AND CONSTRUCTION
2.1. DEFINITIONS. Wherever used herein, the following terms have the
meanings set forth below, unless a different meaning is clearly required by the
context:
(a) "ACCOUNT" means an account established on the books of the Employer
for the purpose of recording amounts credited on behalf of a Participant and any
income, expenses, gains or losses included thereon.
(b) "ADMINISTRATIVE COMMITTEE" means the Plan Administrative Committee
as from time to time constituted.
(c) "ANNUAL BONUS" means bonus payments made to a Participant.
(d) "BASE SALARY" means the Participant's base compensation.
(e) "BENEFICIARY" means the person or persons entitled under Section
7.3 to receive benefits under the Plan upon the death of a Participant.
(f) "CENTEX CONSTRUCTION PRODUCTS" means Centex Construction Products,
Inc., a Delaware corporation.
(g) "CHANGE IN CONTROL" means the occurrence of any of the following:
(1) the dissolution or liquidation of the Company;
(2) a merger (other than a merger effecting a reincorporation
of the Company in another state) or consolidation in which the Company
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 the Company and their proportionate interests therein
immediately after the transaction are not substantially identical to
the stockholders of the Company and their proportionate interests
therein immediately prior to the transaction);
(3) 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 the Company;
(4) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, becomes the beneficial
owner of shares of the Company having fifty percent (50%) or more of
the total number of votes that may be cast for the election of
directors of the Company; or
2
<PAGE> 6
(5) as a result of, or in connection with, a contested
election for directors, the persons who were directors of the Company
immediately before such election shall cease to constitute a majority
of the Board.
Notwithstanding the foregoing provisions of this Section 2.1(g), an
event, transaction, or corporate action shall not constitute a Change
in Control if persons who were the directors of the Company and persons
who were the executive officers of the Company as of six months prior
to such event immediately after such event constitute a majority of the
directors and constitute a majority of executive officers,
respectively, for, and own in the aggregate at least ten percent of the
voting securities or equity interests of, the Company or the surviving
or resulting corporation or the parent of such surviving or resulting
corporation.
(h) "CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
(i) "COMMISSIONS" means any earnings paid to the Participant based on
sales or other goals.
(j) "COMPANY" means Centex Corporation, a Nevada corporation, or any
successor thereto which shall adopt this Plan.
(k) "COMPENSATION" shall mean wages as defined in Section 3401(a) of
the Code and all other payments of compensation paid to an Employee by the
Employer (in the course of the Employer's trade or business), attributable to
Base Salary, Annual Bonus, or Commissions, excluding reimbursements or other
expense allowances, fringe benefits (cash and non-cash), moving expenses,
deferred compensation and welfare benefits, but including amounts that are
otherwise excludable from the gross income of the Participant under a salary
reduction agreement by reason of the application of Sections 125 or 402(a)(8) of
the Code.
(l) "DEFERRED COMPENSATION AGREEMENT" means an agreement pursuant to
which an Eligible Employee elects to defer part of his Compensation and which
specifies:
(1) that the Eligible Employee agrees to participate in this
Plan in accordance with its provisions; and
(2) that this Plan is incorporated by reference and the
Deferred Compensation Agreement shall be subject to this Plan in all
respects.
(m) "DISABILITY" means a disability which entitles a Participant to
benefits under the Employer's long-term disability plan or which would entitle
the Participant to benefits under such plan were the Participant an employee at
the time of such disability.
3
<PAGE> 7
(n) "ELECTION PERIOD" means the period specified by the Administrative
Committee at least once a year during which Eligible Employees may enter into or
amend existing Deferred Compensation Agreements to apply for the next Plan Year.
In addition, there shall be an Election Period (an "INITIAL ELECTION PERIOD")
beginning on January 1, 2000, and ending on January 31, 2000. The Administrative
Committee may also establish procedures for Initial Election Periods for
Mid-Year Eligible Employees, each such Initial Election Period to begin on the
Mid-Year Eligible Employee's first day of employment and extend for 30 days
thereafter. A Deferred Compensation Agreement into which an Eligible Employee
enters during an Initial Election Period shall be effective at the end of such
Initial Election Period and shall apply with respect to Compensation earned
after the end of the Initial Election Period. All elections made during an
Election Period shall be subject to the provisions of this Plan.
(o) "ELIGIBLE EMPLOYEE" means an Employee of the Employer who is
determined by the Administrative Committee to be a member of a select group of
management or highly compensated Employees and who is designated by the
Administrative Committee as eligible to defer Compensation under the Plan during
a Plan Year. "Eligible Employee" also includes any Employee who is hired during
a Plan Year who the Administrative Committee designates, in its sole and
absolute discretion, as first eligible to defer Compensation under the Plan
during the Plan Year in which the Employee is hired; such Eligible Employee is
referred to herein as a "MID-YEAR ELIGIBLE EMPLOYEE."
(p) "EMPLOYEE" means any employee of the Employer.
(q) "EMPLOYER" means the Company, any Related Employer, and Centex
Construction Products.
(r) "ENTRY DATE" means the first day of the Plan Year next following
after the Employee both becomes an Eligible Employee and enters into a Deferred
Compensation Agreement.
(s) "ERISA" means the Employee Retirement Income Security Act of 1974,
as from time to time amended.
(t) "FORM OF DISTRIBUTION" means one of the distribution options set
forth in Section 7.1(c).
(u) "PARTICIPANT" means any Employee who participates in the Plan in
accordance with Article III hereof.
(v) "PLAN" means the Centex Corporation Deferred Compensation Plan as
set forth herein and as may be amended from time to time.
4
<PAGE> 8
(w) "PLAN YEAR" means the 12-consecutive month period beginning January
1 and ending December 31.
(x) "RELATED EMPLOYER" means any employer other than the Company named
herein, if the Company and such other employer are members of a controlled group
of corporations (as defined in Section 414(b) of the Code) or an affiliated
service group (as defined in Section 414(m)), or are trades or businesses
(whether or not incorporated) which are under common control (as defined in
Section 414(c)), or such other employer is required to be aggregated with the
Company pursuant to regulations issued under Code Section 414(o). Related
Employer shall also include any joint venture in which the Company is a partner,
if the Company manages such joint venture.
(y) "RETIREMENT" means the Participant's termination of employment from
the Employer at any time after (i) the Participant has attained age 50 and (ii)
the sum of his attained age and his Years of Service equal or exceed 60.
Calculation of eligibility for Retirement shall be based on whole years of age
and Years of Service on the date as of which the calculation is being made. Any
partial years shall be disregarded.
(z) "TRUST" means a trust fund established pursuant to the terms of the
Plan.
(aa) "TRUSTEE" means the corporation or individuals named in the
agreement establishing a Trust and such successor and/or additional trustees as
may be named in accordance with the Trust Agreement.
(bb) "UNFORESEEABLE FINANCIAL EMERGENCY" means an unanticipated
emergency that is caused by an event beyond the control of the Participant that
would result in severe financial hardship to the Participant resulting from (i)
sudden and unexpected illness or accident of the Participant, the Participant's
spouse, or a dependent of the Participant, (ii) a loss of the Participant's
property due to casualty, or (iii) such other extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant, all as determined in the sole discretion of the Administrative
Committee.
(cc) "VALUATION DATE" means the last day of the Plan Year and such
other date(s) as designated by the Company.
(dd) "YEARS OF SERVICE" means the Participant's years of employment
with an Employer. A Participant shall be credited with a Year of Service on each
anniversary of the date on which he or she was first employed with an Employer,
provided that the Participant continues to be employed by an Employer on such
anniversary date.
5
<PAGE> 9
2.2. WORD USAGE. Words used in the masculine shall apply to the feminine
where applicable, and wherever the context of the Plan dictates, the plural
shall be read as the singular and the singular as the plural. The words
"herein," "hereof," "hereinafter" and other conjunctive uses of the word "here"
shall be construed as reference to another portion of this Plan document. The
terms "Section" or "Article" when used as a cross-reference shall refer to other
Sections or Articles contained in the Plan and not to another instrument,
document or publication unless specifically stated otherwise.
6
<PAGE> 10
ARTICLE III.
ELIGIBILITY TO PARTICIPATE
3.1. DATE OF PARTICIPATION. An Eligible Employee shall become a Participant
in the Plan as of the first Entry Date following his designation as an Eligible
Employee by the Administrative Committee, or, with respect to an Eligible
Employee with respect to whom an Initial Election Period is provided,
immediately following the Initial Election Period, provided he executes a
Deferred Compensation Agreement during the applicable Election Period pursuant
to Section 4.1. If the Eligible Employee does not execute a Deferred
Compensation Agreement during such Election Period, then the Eligible Employee
will become a Participant in the Plan as of the next Entry Date with respect to
which he continues to be an Eligible Employee, provided he has executed a
Deferred Compensation Agreement during the applicable Election Period. No
Eligible Employee shall become a Participant prior to the Effective Date.
3.2. RESUMPTION OF PARTICIPATION FOLLOWING RE-EMPLOYMENT. If a Participant
ceases to be an Employee and thereafter returns to the employ of the Employer he
will again become a Participant as of an Entry Date following his date of
reemployment, provided he is an Eligible Employee and has executed a Deferred
Compensation Agreement in accordance with Section 4.1.
3.3. CHANGE IN EMPLOYMENT STATUS. If any Participant continues in the
employ of the Employer or Related Employer but ceases to be an Eligible
Employee, the individual shall continue to be a Participant until the entire
amount of his benefit is distributed; provided, however, the individual shall
not be entitled to execute a Deferred Compensation Agreement during the period
that he is not an Eligible Employee.
7
<PAGE> 11
ARTICLE IV.
CONTRIBUTIONS
4.1. ELECTION BY PARTICIPANT TO DEFER COMPENSATION. An Eligible Employee
may elect to defer the receipt of a portion of his Compensation, not to exceed
75%, by executing a Deferred Compensation Agreement. Such elections shall be
made separately with respect to Base Salary, Annual Bonus, and Commissions,
subject to the following:
(a) Base Salary: An Eligible Employee may elect either to
defer a percentage of Base Salary or to specify a dollar amount to be
deferred from each semi-monthly payment.
(b) Annual Bonus: An Eligible Employee may elect to defer a
percentage of his Annual Bonus, to specify a dollar amount to be
deferred from his Annual Bonus, or to defer all amounts in excess of a
set dollar amount.
(c) Commissions: An Eligible Employee may elect to defer a
percentage of Commissions paid during each pay period, to specify a
dollar amount to be deferred from Commissions paid during each pay
period, to defer all amounts in excess of a set dollar amount each pay
period, or to defer all Commissions paid during the Plan Year after
Commissions paid have reached a set dollar amount. In the event that an
Eligible Employee elects a specific dollar amount to be deferred each
pay period, then in the event that Commissions for that pay period do
not exceed the set dollar amount, the Eligible Employee shall be deemed
to have elected to defer 100% of such Commissions, and the set dollar
amount for the next pay period shall not be adjusted to account for the
difference between the Eligible Employee's Commissions paid and the set
dollar deferral election.
Any election to defer a percentage of Compensation must be made in a whole
number multiple of one (1) percent. The Administrative Committee may take such
action as it determines, in its sole discretion, is necessary to ensure that a
Participant's deferrals do not exceed 75% of Compensation.
The Deferred Compensation Agreement shall become effective on the Entry Date
following the Election Period during which the agreement is executed, or with
respect to an Eligible Employee who executes a Deferred Compensation Agreement
during an Initial Election Period, immediately following the Initial Election
Period. A Deferred Compensation Agreement is irrevocable and shall continue in
effect throughout such Plan Year. A separate Deferred Compensation Agreement
shall be required for each succeeding Plan Year for which the Employee continues
as an Eligible Employee.
8
<PAGE> 12
4.2. CREDITING OF AMOUNTS TO A PARTICIPANT'S ACCOUNT. The Employer shall
credit a Participant's Account with the amount of Compensation the Participant
has elected to defer. Such amount shall be credited as soon as administratively
practical following the date the Compensation deferred would otherwise have been
paid to the Participant in the absence of the Participant's Deferred
Compensation Agreement.
4.3. EMPLOYER CONTRIBUTIONS. The Employer may, but shall not be required
to, credit a Participant's Account with an amount determined in the sole and
absolute discretion of the Employer. In crediting such amounts, the Employer
may, but shall not be required to, take into consideration any contributions to
which the Participant would be entitled under the Profit Sharing and Retirement
Plan of Centex Corporation or the Profit Sharing and Retirement Plan of Centex
Construction Products, Inc., as appropriate, but for the limitations under
section 401(a)(17), 415 or other sections of the Code, or because of deferrals
made by such Participant under this Plan.
9
<PAGE> 13
ARTICLE V.
PARTICIPANT ACCOUNTS
5.1. PARTICIPANT ACCOUNTS. The Company will establish and maintain an
Account for each Participant to which shall be credited or debited all
contributions and any earnings, losses and expenses attributable to the
Participant's Account. The Administrative Committee will establish and maintain
such other accounts and records as it decides in its discretion to be reasonably
required or appropriate in order to discharge its duties under the Plan.
Participants will be furnished statements of their Account values at least once
each Plan Year.
Except as otherwise provided in Section 7.4, and subject to the
distribution provisions and other requirements of this Plan, a Participant shall
at all times have a fully vested and nonforfeitable right to the amounts
credited to his Account.
5.2. ACCOUNTING FOR DISTRIBUTIONS. As of any date of a distribution to a
Participant or a Beneficiary hereunder, the distribution to the Participant or
to the Participant's Beneficiary(ies) shall be charged to the Participant's
Account.
10
<PAGE> 14
ARTICLE VI.
INVESTMENT OF CONTRIBUTIONS
6.1. MANNER OF INVESTMENT. All amounts credited to the Accounts of
Participants shall be valued as though invested and reinvested only in eligible
investments as selected by the Company.
(a) All dividends, interest, gains and distributions of any
nature earned in respect of an investment alternative in which the
Account is treated as invested shall be credited to the Account in an
amount equal to the net increase or decrease in the net asset value of
each investment option since the preceding Valuation Date in accordance
with the ratio that the portion of the Account of each Participant that
is treated as invested in the designated investment option bears to the
aggregate of all amounts treated as invested in the same investment
option.
(b) Expenses attributable to the acquisition of investments
shall be charged to the Account of the Participant for which such
investment is made.
6.2. INVESTMENT DECISIONS. Investments in which the Accounts of
Participants shall be treated as invested and reinvested shall be directed by
the Company. A Participant may provide direction to the Company with respect to
the eligible investments selected by the Company with respect to which amounts
in his Account shall be valued; provided, however, that such direction shall be
advisory and shall not obligate the Company to provide that amounts shall be so
invested.
6.3. ADJUSTMENT FOR INVESTMENT EXPERIENCE. If any distribution under
Article VII is not made in a single payment, the amount remaining in the Account
after the distribution will be subject to adjustment until distributed to
reflect the income and gain or loss on the investments in which such amount is
treated as invested and any expenses properly charged to such amounts.
11
<PAGE> 15
ARTICLE VII.
DISTRIBUTION OF BENEFITS
7.1. ELECTION FOR DISTRIBUTION OF BENEFITS.
(a) A Participant shall elect the Form of Distribution to be
made from the Participant's Account when such Participant first enters
into a Deferred Compensation Agreement in the manner and form specified
by the Administrative Committee. Such election shall remain in effect
until a subsequent election regarding Form of Distribution becomes
effective.
(b) An election of Form of Distribution may be revoked and a
new election substituted therefor during any subsequent Election
Period; provided, however, that such new election shall only be
effective with respect to distributions during a Plan Year subsequent
to the Plan Year during which the new election is made.
(c) Participants may elect to receive distribution of their
Account from among the following Forms of Distribution, subject to
Section 7.2:
(1) For a distribution following death, Disability,
or Retirement:
(A) a lump sum in cash, or
(B) a series of substantially equal annual
installments, in cash, over a period certain which
does not exceed 15 years.
(2) For a distribution during employment: a lump sum
in cash of all or a portion of the Participant's Account. A
Participant may elect a partial distribution either by setting
a percentage of the Account to be distributed or by setting a
dollar amount. If a Participant specifies a partial
distribution by dollar amount, then in the event that the
Participant's Account is less than that amount at the time of
distribution, the Participant shall be deemed to have elected
a full distribution of his Account.
(d) Notwithstanding anything herein to the contrary, if a
Participant does not elect a Form of Distribution or if the
Participant's Account does not exceed $100,000 at the time the
Participant terminates employment, then his Account shall be
distributed in a lump sum in cash, provided, however, that if a
Participant has elected a Form of Distribution pursuant to this
section, then the Administrative Committee may, in its sole and
absolute
12
<PAGE> 16
discretion, choose to continue the deferral even if the Participant's
Account does not exceed $100,000 and pay the Participant's Account
pursuant to the Form of Distribution elected by the Participant,
subject to the right of the Administrative Committee to revoke the
deferral at any time.
7.2. TIME OF DISTRIBUTION.
(a) A Participant's Account shall be distributed within 30
days of the Participant's termination of employment; provided, however,
that such Participant's Account shall be distributed in accordance with
the Participant's election pursuant to this Section 7.2. if (i) the
Participant's Account balance exceeds $100,000 at the time the
Participant terminates employment, or (ii) a Participant has made an
election with respect to the timing of a distribution pursuant to this
section, and the Administrative Committee, in its sole and absolute
discretion, chooses to continue the deferral and pay the Participant's
Account in accordance with the Participant's election, subject to the
right of the Administrative Committee to revoke the deferral at any
time.
(b) A Participant may elect to receive a distribution as
follows:
(1) If the Participant elects a lump sum
distribution, he can elect that the distribution be made:
(A) within 30 days following his death,
Disability, or Retirement, or
(B) on or about January 31 of the year
following death, Disability or Retirement.
(2) If the Participant elects a distribution in
annual installments, the distribution will commence on or
about January 31 of the year following death, Disability, or
Retirement.
(3) If the Participant elects a lump sum distribution
during employment, he can elect that the distribution be made
after a set number of years, provided that if the Participant
terminates employment prior to such date, then the
Participant's elections with respect to distribution following
death, Disability, or Retirement, or the general provisions of
this Section shall control the distribution of his Account.
An election pursuant to this Section shall be made by the Participant
when the Participant first enters into a Deferred Compensation
Agreement in the manner and form specified by the
13
<PAGE> 17
Administrative Committee. Such election shall remain in effect until a
subsequent election regarding the timing of distributions becomes
effective.
(c) An election of timing of distribution may be revoked and a
new election substituted therefor during any subsequent Election
Period; provided, however, that such new election shall only be
effective with respect to distributions during a Plan Year subsequent
to the Plan Year during which the new election is made. Notwithstanding
anything herein to the contrary, in the event a Participant elects to
accelerate the timing of a distribution and receive all or any part of
his Account as a distribution during employment in the next Plan Year,
then such Participant shall be ineligible to elect to defer
compensation under the Plan during the Plan Year subsequent to the Plan
Year during which the new election is made.
(d) Notwithstanding a Participant's election regarding timing
of a distribution, in the event that a Participant terminates
employment other than due to death, Disability, or Retirement, the
Participant's Account shall be distributed in a lump sum within 60
days, provided, however, that the Administrative Committee may, in its
sole and absolute discretion, choose to continue the deferral until the
Participant's Account would otherwise be payable under this section,
subject to the right of the Administrative Committee to revoke the
deferral at any time.
(e) In no event will distribution to a Participant be made
later than the date specified by the Participant in his election to
defer Compensation.
7.3. DISTRIBUTIONS IN THE EVENT OF THE PARTICIPANT'S DEATH. If a
Participant dies before the distribution of his Account has commenced, or before
such distribution has been completed, his designated Beneficiary or
Beneficiaries will be entitled to receive the balance or remaining balance of
his Account, plus any amounts thereafter credited to his Account.
If a Participant is married, his Beneficiary is his spouse at the time
of his death. A Participant may designate a Beneficiary or Beneficiaries other
than his spouse, provided that spouse either consents to such designation or the
Participant establishes to the satisfaction of the Administrative Committee that
the spouse's consent cannot be obtained because the spouse cannot be located.
Spousal consent must be in writing, must acknowledge the effect of the
designation, and must be witnessed by a Plan representative or a notary public.
Any consent by a spouse (or the establishment that a spouse cannot be located)
shall be valid only with respect to that spouse. The designation of a nonspousal
Beneficiary or a change in any prior designation of Beneficiary or Beneficiaries
shall be made by giving notice to the Administrative Committee on a form
designated by the Administrative Committee.
14
<PAGE> 18
If a Participant is not married, he or she may designate a Beneficiary
or Beneficiaries or change any prior designation of Beneficiary or Beneficiaries
by giving notice to the Administrative Committee on a form designated by the
Administrative Committee.
If more than one person is designated as the Beneficiary, their
respective interests shall be as indicated on the designation form.
Distributions shall be made in lump sum payments in cash as soon as
administratively practicable following the Administrative Committee's receipt of
notice of the Participant's death.
A copy of the death notice or other sufficient documentation must be
filed with and approved by the Administrative Committee. If upon the death of
the Participant there is, in the opinion of the Administrative, no designated
Beneficiary for part or all of the Participant's Account, such amount will be
paid to his surviving spouse or, if none, to his estate (such spouse or estate
shall be deemed to be the Beneficiary for purposes of the Plan). If a
Beneficiary dies after benefits to such Beneficiary have commenced, but before
they have been completed, and, in the opinion of the Administrative Committee,
no person has been designated to receive such remaining benefits, then such
benefits shall be paid to the deceased Beneficiary's estate.
7.4. WITHDRAWAL OF CONTRIBUTIONS. During a Plan Year, a Participant may
withdraw funds credited to the Participant's account not to exceed 100% of such
Participant's balance on December 31 of the preceding Plan Year. A Participant
who makes such an election shall forfeit 10% of the amount withdrawn and the
Participant's Account shall be adjusted to reflect such forfeiture. The
Participant shall not be eligible to make any deferrals under the Plan for the
twelve months following such withdrawal. Withdrawals shall be made as soon as
practicable after the Administrative Committee receives such a request for a
withdrawal of funds.
7.5. WITHDRAWALS IN THE EVENT OF AN UNFORESEEN HARDSHIP. If the Participant
experiences an Unforeseeable Financial Emergency, the Participant may petition
the Administrative Committee to (i) suspend deferrals otherwise required under a
Deferred Compensation Agreement, and/or (ii) receive a partial or full
distribution of his Account. A payout under this section shall not exceed the
lesser of the balance in the Participant's Account or the amount reasonably
needed to satisfy the Unforeseeable Financial Emergency. Approval of such a
request shall be made by the Administrative Committee in its sole discretion.
7.6. NOTICE TO TRUSTEE. The Administrative Committee will notify the
Trustee, if applicable, in writing whenever any Participant or Beneficiary is
entitled to receive benefits under the Plan. The Administrative Committee's
notice shall indicate the form, amount and frequency of benefits that such
Participant or Beneficiary shall receive.
15
<PAGE> 19
ARTICLE VIII.
AMENDMENTS AND TERMINATION
8.1. AMENDMENT BY COMPANY. The Company reserves the authority to amend the
Plan at any time and in any manner, except that no amendment shall apply
retroactively to alter or change the rights of Participants or their
Beneficiaries with respect to past deferrals, nor shall any such amendment
divest any Participant of any deferral made prior to the amendment. Amendments
may be made as necessary or appropriate to enable the Plan to satisfy the
applicable requirements of the Code or ERISA or to conform the Plan to any
change in federal law or to any regulations or ruling thereunder.
8.2. PLAN TERMINATION. The Company has adopted the Plan with the intention
and expectation that contributions will be continued indefinitely. However, the
Company has no obligation or liability whatsoever to maintain the Plan for any
length of time and may discontinue contributions under the Plan or terminate the
Plan at any time. In the event of such discontinuance, Accounts of Participants
maintained under the Plan at the time of termination shall continue to be
governed by the terms of the Plan until paid out in accordance with the terms of
the Plan; provided, however, that the Company reserves the right to distribute
to each Participant the full value of the Participant's Account at any time or
times.
16
<PAGE> 20
ARTICLE IX.
TRUST
9.1. ESTABLISHMENT OF TRUST. Benefits hereunder shall constitute an
unfunded, general obligation of the Company. The Company may, but shall not be
required to, establish a Trust between the Company and the Trustee, in
accordance with the terms and conditions as set forth in a separate agreement,
under which assets are held, administered and managed, subject to the claims of
the Company's creditors in the event of the Company's insolvency, until paid to
Participants and their Beneficiaries as specified in the Plan. Any such Trust
shall be treated as a grantor trust under the Code, and the establishment of any
such Trust is not intended to cause Participants to realize current income on
amounts contributed thereto. If a Trust is established under this Section 9.1,
then benefits may be paid by the Company or from the Trust.
Notwithstanding anything herein to the contrary, in the event of a
Change in Control, the Company shall be obligated to establish a Trust in
accordance with the provisions of this Section 9.1, if the Company has not
already done so, and to transfer to the trustee of such Trust an amount as
necessary so that the assets of the Trust equal the combined account balances of
Participants and Beneficiaries under the Plan. Such transfer shall be made not
later than thirty (30) days after the date of such Change in Control.
9.2. FUNDING. Notwithstanding the ability or obligation, as applicable, of
the Company to establish a Trust under this Article IX, or to take other action
to create reserves or funds, benefits under this Plan shall constitute an
unfunded and unsecured promise to pay benefits. A Participant and his
Beneficiary(ies) shall be general creditors of the Employers with respect to the
payment of any benefit under this Plan.
17
<PAGE> 21
ARTICLE X.
PLAN ADMINISTRATION
10.1. POWERS AND RESPONSIBILITIES OF THE ADMINISTRATIVE COMMITTEE. The
Administrative Committee has the full power and discretion and the full
responsibility to interpret the Plan and to administer the Plan in all of its
details, subject, however, to the applicable requirements of ERISA. The
Administrative Committee's powers and responsibilities include, but are not
limited to, the following:
(a) To make and enforce such rules and regulations as it deems
necessary or proper for the efficient administration of the Plan;
(b) To interpret the Plan, its interpretation thereof in good
faith and discretion to be final and conclusive on all persons claiming
benefits under the Plan;
(c) To decide all questions concerning the Plan and the
eligibility of any person to participate in the Plan;
(d) To administer the claims and review procedures specified
in Section 10.3;
(e) To compute the amount of benefits which will be payable to
any Participant, former Participant or Beneficiary in accordance with
the provisions of the Plan;
(f) To determine the person or persons to whom such benefits
will be paid;
(g) To authorize the payment of benefits;
(h) To comply with the reporting and disclosure requirements
of Part 1 of Subtitle B of Title I of ERISA;
(i) To appoint such agents, counsel, accountants, and
consultants as may be required to assist in administering the Plan;
(j) By written instrument, to allocate and delegate its
responsibilities, including the formation of any other committees as
appropriate to the administration of the Plan.
10.2. ESTABLISHMENT OF THE ADMINISTRATIVE COMMITTEE. The Administrative
Committee shall be a committee of one or more members appointed by the Board of
Directors or an appropriate committee thereof. Action of such Administrative
Committee shall be by a majority of the persons so appointed; provided, however,
that action may be taken by the Administrative Committee at a
18
<PAGE> 22
meeting or without a meeting by resolution or memorandum signed by all the
persons then appointed to the Administrative Committee. No member of the
Administrative Committee shall be entitled to vote or decide upon any matter
pertaining to himself individually, but such matter shall be determined by the
remaining member of the Administrative Committee or by a majority of the
remaining members of the Committee.
The members of the Administrative Committee and employees, officer and
directors of the Company who are designated as administrators with respect to
this Plan shall serve without compensation for their services as such, but all
reasonable expenses of the Administrative Committee, the members thereof and of
such other individuals incurred in the performance of their duties and
responsibilities under this Plan shall be paid by the Company.
10.3. CLAIMS AND REVIEW PROCEDURES.
(a) Claims Procedure. If any person believes he is entitled to
any rights or benefits under the Plan, such person may file a claim in
writing with the Administrative Committee. If any such claim is wholly
or partially denied, the Administrative Committee will notify such
person of its decision in writing. Such notification will contain (i)
specific reasons for the denial, (ii) specific reference to pertinent
Plan provisions, (iii) a description of any additional material or
information necessary for such person to perfect such claim and an
explanation of why such material or information is necessary, and (iv)
information as to the steps to be taken if the person wishes to submit
a request for review. Such notification will be given within 90 days
after the claim is received by the Administrative Committee (or within
180 days, if special circumstances require an extension of time for
processing the claim, and if written notice of such extension and
circumstances is given to such person within the initial 90-day
period). If such notification is not given within such period, the
claim will be considered denied as of the last day of such period and
such person may request a review of his claim.
(b) Review Procedure. Within 60 days after the date on which a
person receives a notice of denial (or within 60 days after the date on
which such denial is considered to have occurred), such person (or his
duly authorized representative) may (i) file a written request with the
Administrative Committee for a review of his denied claim; (ii) review
pertinent documents; and (iii) submit issues and comments in writing.
The decision on review will be made within 60 days after the request
for review is received by the Administrative Committee (or within 120
days, if special circumstances require an extension of time for
processing the request, such as an election by the Administrative
Committee to hold a hearing, and if written notice of such extension
and circumstances is given to such person within the initial 60-day
period). The decision on review shall be in writing and shall include
the specific reasons for the decision, written in a manner calculated
to be understood by the person receiving such notice, as well as
specific references to the pertinent plan provisions on which the
decision is
19
<PAGE> 23
based. If the decision on review is not made within such period, the
claim will be considered denied.
20
<PAGE> 24
ARTICLE XI.
MISCELLANEOUS
11.1. COMMUNICATION TO PARTICIPANTS. The Administrative Committee shall
communicate the terms of the Plan to each Eligible Employee as soon as
practicable after such Employee is designated as an Eligible Employee.
11.2. LIMITATION OF RIGHTS. Neither the establishment of the Plan and, if
applicable, the Trust, nor any amendment thereof, nor the creation of any fund
or account, nor the payment of any benefits, will be construed as giving to any
Participant or other person any legal or equitable right against the Employer,
Administrative Committee or Trustee, except as provided herein. The Plan is not
an employment contract, and in no event will the terms of employment or service
of any Participant be modified or in any way affected hereby.
11.3. SPENDTHRIFT PROVISION. Except as otherwise provided in Section 11.4,
the benefits provided hereunder will not be subject to alienation, assignment,
garnishment, attachment, execution or levy of any kind, either voluntarily or
involuntarily, and any attempt to cause such benefits to be so subjected will
not be recognized, except to such extent as may be required by law.
11.4. SPOUSAL CLAIMS. Any claim against benefits under this Plan for child
support, spousal maintenance, alimony, property division or other matrimonial or
dependent obligations shall be treated hereunder in the same manner as would a
claim for corresponding benefits under the Profit Sharing and Retirement Plan of
Centex Corporation (the "Profit Sharing Plan"). Such a claim under this Plan
shall be subject to all claims procedures, plan provisions and restrictions of
the Profit Sharing Plan, provided that such provisions shall be administered
under this Plan by the Administrative Committee with respect to benefits
provided hereunder; the Administrative Committee may for such purposes delegate
its administrative powers to the claims administrator of the Profit Sharing Plan
or as the Administrative Committee otherwise deems appropriate.
11.5. WITHHOLDING. Any taxes required to be withheld from distributions
hereunder shall be deducted and withheld by the Employer, benefit provider or
funding agent.
11.6. FACILITY OF PAYMENT. In the event the Administrative Committee
determines, on the basis of medical reports or other evidence satisfactory to
the Administrative Committee, that the recipient of any benefit payments under
the Plan is incapable of handling his affairs by reason of minority, illness,
infirmity or other incapacity, the Administrative Committee may, but is not
obligated to, provide for disbursement of such payments to a such person's
spouse or to any person or institution designated by a court which has
jurisdiction over such recipient or a person or institution otherwise having the
legal authority under State law for the care and control of such recipient. The
receipt by any such person or institution of any such payments therefore, and
any such payment to
21
<PAGE> 25
the extent thereof, shall discharge the liability of the Plan for the payment of
benefits hereunder to such recipient.
11.7. OVERPAYMENT AND UNDERPAYMENT OF BENEFITS. The Administrative
Committee may adopt, in its sole discretion, whatever rules, procedures and
accounting practices are appropriate in providing for the collection of any
overpayment of benefits. If an overpayment is made to a Participant, spouse,
other Beneficiary or alternate payee, for whatever reason, the Administrative
Committee may, in its sole discretion, withhold payment of any further benefits
under the Plan until the overpayment has been collected or may require repayment
of benefits paid under this Plan, without regard to further benefits to which
the person may be entitled. If a Participant, spouse, alternate payee, or other
Beneficiary receives an underpayment of benefits, the Administrative Committee
shall direct that immediate payment be made to make up for the underpayment.
11.8. GOVERNING LAW. The Plan will be construed, administered and enforced
according to ERISA, and to the extent not preempted thereby, the laws of the
State of Texas.
IN WITNESS WHEREOF, the Company by its duly authorized officer(s), has
caused this Plan to be adopted on 31st day of January, 2000.
CENTEX CORPORATION
By: /s/ Michael S. Albright
--------------------------
Its: Senior Vice President -
Administration
22
<PAGE> 1
EXHIBIT 5
[CENTEX LETTERHEAD]
May 26, 2000
Securities and Exchange Commission
450 5th Street, N.W., Judiciary Plaza
Washington, DC 20549
Ladies and Gentlemen:
As Executive Vice President, Chief Legal Officer, General Counsel and
Secretary of Centex Corporation (the "Corporation"), I have represented the
Corporation in connection with the registration with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
of the deferred compensation obligations (the "Obligations") to be issued by the
Corporation from time to time pursuant to the Centex Corporation Deferred
Compensation Plan (the "Plan").
In connection with this opinion, I am familiar with the authorization of
the Plan and the Obligations, and have made such further investigations as I
have deemed necessary to express the opinions herein stated.
Based upon the foregoing, I am of the opinion that the Obligations have
been duly authorized, and upon the issuance of the Obligations under the terms
of the Plan, such Obligations will be legally valid and binding obligations of
the Corporation, except as may be limited by the effects of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights or remedies of creditors; the effect
of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; and the effect of the laws of usury or other
laws or equitable principles relating to or limiting the interest rate payable
on indebtedness.
I consent to the use of this opinion as an Exhibit to the Registration
Statement on Form S-8 being filed with the Securities and Exchange Commission
under the Securities Act with respect to the Obligations and to any references
to me in such Registration Statement.
Very truly yours,
/s/ RAYMOND G. SMERGE
Raymond G. Smerge
Executive Vice President,
Chief Legal Officer,
General Counsel and Secretary
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
included in this registration statement and to the incorporation by reference in
the Registration Statement on Form S-8 of Centex Corporation registering Centex
Corporation's deferred compensation obligations under the Centex Corporation
Deferred Compensation Plan of our reports dated May 12, 1999 which are included
in the Joint Annual Report on Form 10-K of Centex Corporation and Subsidiaries,
3333 Holding Corporation and Subsidiary and Centex Development Company, L.P. and
Subsidiaries for the years ended March 31, 1999 and to all references to our
Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Dallas, Texas,
May 26, 2000
