-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, T2IbGv/KYjIKAkQZ45cw+y8YwiNY/2bTq1xgyvjHzjuJA8Tyj7Fs/eiSAgVkz7T3 +iud3w9uEn6lUvE6ksczNA== 0000950134-02-007514.txt : 20020621 0000950134-02-007514.hdr.sgml : 20020621 20020621171640 ACCESSION NUMBER: 0000950134-02-007514 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20020621 EFFECTIVENESS DATE: 20020621 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HORTON D R INC /DE/ CENTRAL INDEX KEY: 0000882184 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 752386963 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-90988 FILM NUMBER: 02684681 BUSINESS ADDRESS: STREET 1: 1901 ASCENSION BLVD STREET 2: STE 100 CITY: ARLINGTON STATE: TX ZIP: 76006 BUSINESS PHONE: 8178568200 MAIL ADDRESS: STREET 1: 1901 ASCENSION BLVD STREET 2: SUITE 100 CITY: ARLINGTON STATE: TX ZIP: 76006 S-8 1 d97895sv8.txt FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 21, 2002 REGISTRATION NO. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------- D.R. HORTON, INC. (Exact name of registrant as specified in its charter) DELAWARE 75-2386963 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 1901 ASCENSION BLVD. 76006 SUITE 100 (Zip Code) ARLINGTON, TEXAS (Address of Principal Executive Offices) D.R. HORTON DEFERRED COMPENSATION PLAN (Full title of the plan) PAUL W. BUCHSCHACHER VICE PRESIDENT AND CORPORATE COUNSEL 1901 ASCENSION BLVD., SUITE 100 ARLINGTON, TEXAS 76006 (Name and address of agent for service) 817-856-8200 (Telephone number, including area code, of agent for service) ---------- CALCULATION OF REGISTRATION FEE
================================================================================================================== Proposed Proposed maximum maximum Amount of Amount to be offering price aggregate registration Title of securities to be registered registered per share(1) offering price(1) fee - --------------------------------------- ------------ -------------- ----------------- ------------ D.R. Horton Deferred Compensation Plan Obligations(2) $30,000,000 100% $30,000,000 $2,760 ==================================================================================================================
(1) Estimated solely for the purpose of calculation of the registration fee pursuant to Rule 457(o). (2) The D.R. Horton Deferred Compensation Plan Obligations are unsecured obligations of D.R. Horton, Inc. to pay deferred compensation in the future in accordance with the terms of the D.R. Horton Deferred Compensation Plan. INTRODUCTION This Registration Statement on Form S-8 is filed by D.R. Horton, Inc., a Delaware corporation (the "Registrant"), relating to up to $ 30,000,000 of unsecured obligations of the Registrant to pay deferred compensation in the future (the "Obligations") in accordance with the terms of the D.R. Horton Deferred Compensation Plan (the "Plan"). PART I The documents containing the information specified in Part I of Form S-8 will be sent or given to employees and directors as specified by Rule 428(b)(1). Such documents need not be filed with the Securities and Exchange Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by D.R. Horton, Inc. are incorporated by reference, as of their respective dates, in this Registration Statement: o Annual Report on Form 10-K for the fiscal year ended September 30, 2001, filed with the Securities and Exchange Commission (the "Commission") on November 20, 2001; o Quarterly Report on Form 10-Q for the quarter ended December 31, 2001, filed with the Commission on February 14, 2002; o Quarterly Report on Form 10-Q for the quarter ended March 31, 2002, filed with the Commission on May 15, 2002; o Current Report on Form 8-K dated October 22, 2001, filed with the Commission on October 24, 2001; o Current Report on Form 8-K dated November 8, 2001, filed with the Commission on November 8, 2001; o Current Report on Form 8-K dated January 22, 2002, filed with the Commission on January 22, 2002; o Current Report on Form 8-K dated January 24, 2002, filed with the Commission on January 24, 2002; o Current Report on Form 8-K dated January 31, 2002, filed with the Commission on February 1, 2002; o Current Report on Form 8-K dated February 15, 2002, filed with the Commission on February 19, 2002; o Current Report on Form 8-K dated February 21, 2002, filed with the Commission on February 22, 2002 (including amendment filed March 25, 2002); o Current Report on Form 8-K dated April 3, 2002, filed with the Commission on April 3, 2002; and o Current Report on Form 8-K dated May 29, 2002, filed with the Commission on May 29, 2002. 2 In addition, all documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document 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, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Up to $30,000,000 of Plan Obligations are being registered under this Registration Statement to be offered to certain eligible employees and nonemployee directors of the Registrant pursuant to the Plan. The Obligations are general unsecured obligations of the Registrant to pay deferred compensation in the future in accordance with the terms of the Plan from the general assets of the Registrant, and rank pari passu with other unsecured and unsubordinated indebtedness of the Registrant from time to time. Obligations will consist of amounts equal to each Plan participant's deferral account, which will be credited with the compensation each participant defers in accordance with the terms of the Plan. A participant may defer up to 90% of his or her salary and up to 100% of his or her incentive and other compensation. A participant's deferrals will be credited with earnings (or losses) based on the deemed investment of such amounts in one or more funds offered under the Plan and selected by the participant. The vested accrued balance in a participant's account under the Plan shall be paid in cash at either (i) a future year specified by the participant (which is at least two years after the year the compensation is deferred) while he or she is still employed by the Registrant, or (ii) upon the participant's termination of employment, death or disability. Participants terminating employment when at or over age 50 with ten or more years of service may elect to receive distributions in a single lump sum or annual installment payments over a period of two to ten years. In addition, with the consent of the committee appointed to administer the Plan, a participant may receive all or a portion of his or her account while the participant is still employed upon paying a 10% penalty, or, with no penalty, on account of severe financial hardship. A participant's Obligations cannot be alienated, sold, transferred, assigned, pledged, attached or otherwise encumbered by the participant, and pass only to a survivor beneficiary under the Plan, or by the laws of descent and distribution. The Obligations are not subject to redemption, in whole or in part, prior to the payout to the participant. However, the Registrant reserves the right to amend or terminate the Plan at any time, except that no such amendment or termination shall adversely affect a participant's right to Obligations in the amount of the participant's vested Plan account as of the date of such amendment or termination without the participant's consent. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant's Amended and Restated Certificate of Incorporation, as amended, provides that the Registrant shall, to the full extent permitted by the General Corporation Law of the State of Delaware (the "DGCL") or other applicable laws presently or hereafter in effect, indemnify each person who is or was or who has agreed to become a director or officer of the Registrant, or each such person who is or was serving or who had agreed to serve at the written request of the Board of Directors or an officer of the Registrant as an employee or agent of the Registrant or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, in any such case owned or controlled by the Registrant (including the heirs, executors, administrators or estate of such person), and eliminates the personal liability of its directors to the full extent permitted by the DGCL or other applicable laws presently or hereafter in effect. The Registrant has entered into an indemnification agreement with each of its directors. 3 Section 145 of the DGCL permits a corporation to indemnify its directors and officers against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties, if such directors or officers acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, have no reasonable cause to believe their conduct was unlawful. In a derivative action, i.e., one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors and officers in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, although the court in which the action or suit was brought may determine upon application that the defendant officers or directors are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. Section 102(b)(7) of DGCL provides that a corporation may eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provisions shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. No such provision shall eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision becomes effective. The Registrant also has obtained Directors and Officers Liability Insurance that provides insurance coverage for certain liabilities which may be incurred by the Registrant's directors and officers in their capacity as such. ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS EXHIBIT NUMBER EXHIBIT 4.1 - D.R. Horton Deferred Compensation Plan 5.1 - Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas. 23.1 - Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (1) 23.2 - Consent of Ernst & Young LLP, Fort Worth, Texas 23.3 - Consent of Ernst & Young LLP, Los Angeles, California 24.1 - Powers of Attorney (contained on signature page hereto) - ---------------- (1) See Exhibit 5.1 of 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 (the "Securities Act"), (ii) to reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement, and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement, provided, however, that clauses (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in the Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective 4 amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this 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 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act 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 of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 5 SIGNATURES AND POWERS OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, D.R. Horton, Inc. certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Arlington, State of Texas, on June 21, 2002. D.R. HORTON, INC. By: /s/ Donald R. Horton ------------------------------------- Donald R. Horton Chairman of the Board S-1 KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints each of Donald R. Horton, individually, and Donald J. Tomnitz and Samuel R. Fuller together as a group, as his or her true and lawful attorney-in-fact and agent, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each such attorney-in-fact and agent 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, hereby ratifying and confirming all that each such attorney-in-fact and agent, each acting alone, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Donald R. Horton Chairman of the Board June 21, 2002 - ------------------------------------ (Principal Executive Officer) Donald R. Horton /s/ Donald J. Tomnitz Vice Chairman of the Board, President, Chief June 21, 2002 - ------------------------------------ Executive Officer and Director Donald J. Tomnitz /s/ Samuel R. Fuller Executive Vice President, Treasurer, Chief June 21, 2002 - ------------------------------------ Financial Officer and Director Samuel R. Fuller (Principal Accounting and Financial Officer) /s/ Bradley S. Anderson Director June 21, 2002 - ------------------------------------ Bradley S. Anderson /s/ Richard Beckwitt Director June 21, 2002 - ------------------------------------ Richard Beckwitt /s/ Richard I. Galland Director June 21, 2002 - ------------------------------------ Richard I. Galland /s/ Richard L. Horton Director June 21, 2002 - ------------------------------------ Richard L. Horton /s/ Terrill J. Horton Director June 21, 2002 - ------------------------------------ Terrill J. Horton /s/ Francine I. Neff Director June 21, 2002 - ------------------------------------ Francine I. Neff /s/ James K. Schuler Director June 21, 2002 - ------------------------------------ James K. Schuler /s/ Scott J. Stone Director June 21, 2002 - ------------------------------------ Scott J. Stone
S-2 EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT ------- ------- 4.1 - D.R. Horton Deferred Compensation Plan 5.1 - Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas 23.1 - Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (contained in Exhibit 5.1) 23.2 - Consent of Ernst & Young LLP, Fort Worth, Texas 23.3 - Consent of Ernst & Young LLP, Los Angeles, California 24.1 - Powers of Attorney (contained on signature page hereto)
EX-4.1 3 d97895exv4w1.txt DEFERRED COMPENSATION PLAN EXHIBIT 4.1 D.R. HORTON DEFERRED COMPENSATION PLAN (Effective as of June 15, 2002) TABLE OF CONTENTS
Page ARTICLE 1 ESTABLISHMENT AND PURPOSE............................................1 ARTICLE 2 DEFINITIONS..........................................................2 ARTICLE 3 ADMINISTRATION.......................................................5 ARTICLE 4 ELIGIBILITY AND PARTICIPATION........................................7 ARTICLE 5 CONTRIBUTIONS TO DEFERRAL ACCOUNTS...................................7 ARTICLE 6 DISTRIBUTIONS........................................................8 ARTICLE 7 DEFERRED COMPENSATION ACCOUNTS......................................11 ARTICLE 8 TRUST ..............................................................13 ARTICLE 9 CHANGE IN CONTROL...................................................13 ARTICLE 10 RIGHTS OF PARTICIPANTS..............................................13 ARTICLE 11 WITHHOLDING OF TAXES................................................14 ARTICLE 12 AMENDMENT AND TERMINATION...........................................14 ARTICLE 13 MISCELLANEOUS.......................................................14 ARTICLE 14 ADMINISTRATIVE INFORMATION..........................................15 ARTICLE 15 ERISA RIGHTS.......................................................16
i D.R. HORTON DEFERRED COMPENSATION PLAN ARTICLE 1 ESTABLISHMENT AND PURPOSE 1.1 Establishment. D.R. Horton, Inc., a Delaware corporation (the "Company"), established the D.R. Horton, Inc. Supplemental Executive Retirement Plan No. 1 (the "Supplemental Plan"), an unfunded deferred compensation plan for a select group of management or highly compensated employees, effective as of November 15, 1993. Effective as of July 1, 2000, Schuler Homes, Inc. established the Schuler Homes, Inc. Deferred Compensation Plan for Directors and Key Employees (the "Schuler Plan"), which also is an unfunded deferred compensation plan maintained primarily for the purpose of providing deferred compensation to members of the board of directors and a select group of management or highly compensated employees. Effective February 21, 2002, Schuler Homes, Inc. merged with and into the Company, and the Company became the sponsor of the Schuler Plan. For sake of efficiency, the Company wishes to consolidate and restate the Schuler Plan and the Supplemental Plan into one uniform plan of benefits for the participants of such plans and to provide a select group of management or highly compensated employees and nonemployee directors who are selected to participate the opportunity to defer compensation on a pre-tax basis. Effective as of June 15, 2002, the Company hereby establishes this deferred compensation plan for a select group of employees and directors as described herein, which shall be known as the "D.R. Horton Deferred Compensation Plan" (the "Plan"), which shall be the successor to and supersede the Supplemental Plan and the Schuler Plan. In particular, the Schuler Plan will be merged with and into the Supplemental Plan, with the Supplemental Plan being the Surviving Plan, which shall change its name to the Plan, all effective as of June 15, 2002. Except as expressly provided herein, all amounts deferred under the Supplemental Plan or the Schuler Plan shall be payable under the terms of the Plan as of the effective date. The Plan is intended to be an unfunded plan maintained primarily to provide deferred compensation benefits for a select group of "management or highly compensated employees" within the meaning of sections 201, 301, and 401 of ERISA, and therefore exempt from the provisions of Parts 2, 3, and 4 of Title I of ERISA. The Plan is intended to constitute a "nonqualified deferred compensation plan" for purposes of Code section 3121(v)(2) as well as 4 U.S.C. section 114. 1.2 Purpose. The primary purpose of the Plan is to provide a select group of management and members of the Board of Directors with a capital accumulation opportunity by deferring compensation on a pre-tax basis. The Plan also provides the Company with a method of rewarding and retaining its highly compensated executives and directors. 1 ARTICLE 2 DEFINITIONS Whenever used herein, the following terms shall have the meanings set forth below, and, when the defined meaning is intended, the term is capitalized: (a) "Affiliate" means any business entity 80% or more owned or controlled by the Company. (b) "Board" or "Board of Directors" means the Board of Directors of the Company. (c) "Change in Control" means the occurrence of any of the following events: (i) A merger, consolidation or reorganization of the Company into or with another corporation or other legal person if the stockholders of the Company, immediately before such merger, consolidation or reorganization, do not, immediately following such merger, consolidation or reorganization, then own directly or indirectly, more than 50% of the combined voting power of the then-outstanding voting securities of the corporation or other legal person resulting from such merger, consolidation or reorganization in substantially the same proportion as their ownership of Voting Securities (as hereinafter defined) immediately prior to such merger, consolidation or reorganization; (ii) The Company sells all or substantially all of its assets to another corporation or other legal person, or there is a complete liquidation or dissolution of the Company; (iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding voting securities of the Company ("Voting Securities") (computed in accordance with the standards for the computation of total percentage ownership for the purposes of Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report)); or (iv) The Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of 2 the Company has occurred or will occur in the future pursuant to any then-existing contract or transaction. Notwithstanding the provisions set forth in (iii) or (iv) above, a "Change in Control" shall not be deemed to have occurred for purposes of this Plan solely because (i) the Company, (ii) any Affiliate, or (iii) any employee stock ownership plan or any other employee benefit plan of the Company or any Affiliate either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) under the Exchange Act disclosing beneficial ownership by it of Voting Securities, whether in excess of 20% or otherwise, or because the Company reports that a change in control of the Company has occurred or will occur in the future by reason of such beneficial ownership. For purposes of calculating beneficial ownership pursuant to this subsection, any Voting Securities held by Donald R. Horton as of the date hereof or received by Donald R. Horton in connection with any merger involving the Company and any affiliate of the Company shall not be included in the calculation of beneficial ownership. (d) "Code" means the Internal Revenue Code of 1986, as amended from time to time. (e) "Committee" means a committee of three (3) or more persons appointed by the Board to administer the Plan pursuant to Article 3. (f) "Company" means D.R. Horton, Inc., a Delaware corporation. (g) "Compensation" means an Employee's Salary, Incentive Compensation, Director's Compensation, and other compensation paid by the Employer for the Plan Year. (h) "Deferral Account" means the accounting entry made with respect to each Participant for the purpose of maintaining a record of each Participant's benefit under the Plan. (i) "Director's Compensation" means such amounts payable to an Employee for the Plan Year for the Employee's service on the Board for the Plan Year including, with limitation, annual retainer and meeting fees. (j) "Disability" means a condition which meets the definition of a disability as contained in the Company's long-term disability plan (as determined by the Committee in its sole discretion). (k) "Eligible Employee" means an Employee who is eligible to participate in the Plan pursuant to Section 4.1. (l) "Employee" means any person either (i) employed by the Employer whose wages are subject to withholding for purposes of the Federal Insurance Contribution Act, or (ii) serving as a member of the Board of Directors. 3 (m) "Employee Contributions" means those contributions credited to a Participant's Deferral Account in accordance with the Participant's deferral election pursuant to Section 5.1. (n) "Employer" means the Company and each Affiliate that adopts the Plan with the Company's permission. (o) "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time. (p) "Incentive Compensation" means such bonuses and other non periodic amounts (not including equity compensation) payable to an Employee in addition to his Salary and/or Director's Compensation for services rendered during the Plan Year, which may be paid to the Employee in the following Plan Year as determined by the Employer in accordance with its general policies and procedures and its sole discretion. Whether a payment qualifies as "Incentive Compensation" shall be determined by the Company in its sole discretion. (q) "Installment Eligibility Age" means the attainment of age 50 and 10 years of service with the Employer (including service with any predecessor employers designated by the Company as such). This age and service requirement is applicable only to eligibility to receive installment payments hereunder and shall not apply to, or affect or be considered in interpreting, any other compensation, benefit, or plan of the Company. (r) "Participant" means an Eligible Employee who is participating in the Plan pursuant to Section 4.2 or an Employee who participated in the Supplemental Plan or the Schuler Plan whose compensation deferrals under those plans have been credited to a Deferral Account under the Plan. (s) "Plan" means the D.R. Horton Deferred Compensation Plan, as set forth herein, and as it may be amended from time to time. (t) "Plan Year" means January 1 to December 31 of each calendar year. The first Plan Year shall be a short plan year that begins on June 15, 2002, and ends on December 31, 2002. (u) "Salary" means the base annual compensation payable to an Employee by the Employer for services rendered during a Plan Year, before reduction for amounts deferred pursuant to the Plan or to the D.R. Horton, Inc. Profit Sharing Plus Plan, or any other deferred compensation, 401(k), or cafeteria plan, which is payable in cash to the Employee for services to be rendered during the Plan Year; provided that "Salary" shall exclude (i) Incentive Compensation, and (ii) Director's Compensation that may be paid by the Employer to an Employee with respect to the Plan Year. (v) "Schuler Plan" means the Schuler Homes, Inc. Deferred Compensation Plan for Directors and Key Employees. 4 (w) "Supplemental Plan" means the D.R. Horton, Inc. Supplemental Executive Retirement Plan No. 1. ARTICLE 3 ADMINISTRATION 3.1 Authority of the Committee. The Board shall appoint a Committee of three (3) or more persons to administer the Plan. The members of the Committee shall be appointed by and shall serve at the discretion of the Board. Subject to the provisions herein, the Committee shall have full power and discretion to select Employees for participation in the Plan; to determine the terms and conditions of each Employee's participation in the Plan; to construe and interpret the Plan and any agreement or instrument entered into under the Plan; to establish, amend, or waive rules and regulations for the Plan's administration; to amend (subject to the provisions of Articles 9 and 12 herein) the terms and conditions of the Plan and any agreement entered into under the Plan; and to make other determinations which may be necessary or advisable for the administration of the Plan. 3.2 Decisions Binding. Subject to Section 3.4(b), all determinations and decisions of the Committee as to any disputed question arising under the Plan, including questions of construction and interpretation, shall be final, conclusive, and binding on all parties and shall be given the maximum possible deference allowed by law. 3.3 Claim Procedures. If a request for Plan benefits is denied in whole or in part, the Participant or his beneficiary ("claimant") will be notified in writing within 90 days after receipt of the claim. In some instances, the Committee may require an additional 90 days to consider the claim. When additional time is needed, the claimant will be notified of the special circumstances requiring the extension. The extension may not exceed a total of 180 days from the date the claim was originally filed. If additional information is necessary to process the claim, the claimant will be notified of the items needed in order to consider the claim. If a claimant's initial request for benefits is denied, the notice of the denial will include the specific reasons for denial and references to the relevant Plan provisions on which the denial was based, a description of any additional material or information necessary to perfect the claim and an explanation of why such information is necessary, if applicable, and a description of the Plan's review procedures and the time limits applicable thereto, including a statement of the claimant's rights under Section 502(a) of ERISA. Within 60 days after receiving a denial, the claimant or his authorized representative may appeal the decision by requesting a review by writing the Committee. On appeal, the claimant may submit in writing any comments or issues with respect to the claim and/or any additional documents or information not considered during the initial review and, upon request, the claimant may review all documents pertinent to the claim. A decision on appeal will normally be given within 60 days of the receipt of the appeals request. If special circumstances warrant an extension, then the decision will be made no later 5 than 120 days after receipt of the appeal. Subject to Section 3.4, the Committee's decision on appeal shall be final and binding on all parties. If a claimant's appeal is denied in whole or in part, the notice of the decision on appeal shall include the specific reasons for the denial and reference to the relevant Plan provisions on which the denial was based, a statement that, upon request and free of charge, the claimant may review and copy all documents relevant to the claim for benefits, a statement describing the Plan's binding arbitration procedures (or, on or after a Change in Control, other contest procedures) and the claimant's rights under Section 502(a) of ERISA. 3.4 Arbitration. (a) Pre Change in Control. The following provisions shall apply before a Change in Control. Any individual making a claim for benefits under this Plan may contest the Committee's decision to deny such claim or appeal therefrom only by submitting the matter to binding arbitration before a single arbitrator. Any arbitration shall be held in Arlington, Texas, unless otherwise agreed to by the Committee. The arbitration shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator's authority shall be limited to the affirmation or reversal of the Committee's denial of the claim or appeal, based solely on whether or not the Committee's decision was arbitrary or capricious, and the arbitrator shall have no power to alter, add to, or subtract from any provision of this Plan. Except as otherwise required by ERISA, the arbitrator's decision shall be final and binding on all parties, if warranted on the record and reasonably based on applicable law and the provisions of this Plan. The arbitrator shall have no power to award any punitive, exemplary, consequential or special damages, and under no circumstances shall an award contain any amount that in any way reflects any of such types of damages. Each party shall bear its own attorney's fees and costs of arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. (b) Post Change in Control. On and after a Change in Control, the Committee's decisions shall be given no special deference, but rather shall be reviewed de novo, and a claimant may contest any Committee decision through arbitration or litigation, at the forum and the venue of his or her choice. The Company shall be liable for all Court or arbitration costs and legal fees if the claimant is the prevailing party. 3.5 Indemnification. Each person who is or shall have been a member of the Committee, or of the Board, shall be indemnified and held harmless by the Employer against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party, or in which he or she may be involved by reason of any action taken or failure to act under the Plan, and against and from any and all amounts paid by him in settlement thereof, with the Employer's approval, or paid by him in satisfaction of any judgment in any such action, suit or proceeding against him, provided he or she shall give the Employer an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his own behalf. 6 The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Employer's Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Employer may have to indemnify them or hold them harmless. ARTICLE 4 ELIGIBILITY AND PARTICIPATION 4.1 Eligibility. The Committee shall determine, in its sole and absolute discretion, which such Employees shall be eligible to participate from time to time, and may modify such determinations at any time, provided that at all times the Plan shall continue to qualify as an unfunded plan maintained primarily to provide deferred compensation benefits to a select group of management or highly compensated employees, within the meaning of sections 201, 301, and 401 of ERISA. To be eligible for selection by the Committee, an Employee must either (i) be a Director serving on the Board, or (ii) have total Compensation for the Plan Year scheduled to be at least $100,000 (or, if greater, the highly compensated employee threshold under Code section 414(q)). In addition, to be eligible to participate herein, a former Schuler Plan participant must consent to the transfer of assets held in the Trust informally funding the Schuler Plan (with First Hawaiian Bank as Trustee) being transferred to the Grantor Trust informally funding this Plan, and must consent to the distribution rules provided for herein with respect to amounts formerly credited to the Schuler Plan. 4.2 Participation. Each Eligible Employee shall become a Participant in the Plan upon his deferral of Compensation hereunder, pursuant to Article 5. In the event a Participant ceases to be eligible to participate in the Plan, such Participant shall become an inactive Participant, retaining all the rights described under the Plan, except the right to make any further deferrals, until such time that the Participant again becomes an active Participant. 4.3 Partial Year Eligibility. In the event that an Employee first becomes eligible to participate in the Plan after the beginning of a Plan Year, the Employer shall notify the Employee of his eligibility to participate, and the Employer shall provide each such Participant with a "Deferral Election Form," and any additional enrollment forms that must be completed by the Participant as provided in Section 5.3 herein; provided, however, that such Participant must make his election within 30 days thereof and may elect only to defer that portion of his Compensation for such Plan Year which is to be earned after the filing of the deferral election. 4.4 Notice. The Company shall notify an Employee within a reasonable time of such Employee's gaining or losing eligibility for active participation in the Plan. ARTICLE 5 CONTRIBUTIONS TO DEFERRAL ACCOUNTS 5.1 Compensation Deferrals. Subject to Sections 5.2 and 5.3, an Eligible Employee may elect to defer and have credited to his Deferral Account for any Plan Year (i) up to one hundred percent (100%) of his Incentive Compensation and/or Director's Compensation, and (ii) up to ninety percent (90%) of his Salary; provided, however, that the amount of deferrals 7 selected by the Participant shall not reduce his non-deferred Compensation below the amount that is required to withhold for any state or federal payroll taxes (including FICA/Medicare tax on deferred amounts), income tax, payments to be withheld pursuant to the D.R. Horton Profit Sharing Plus Plan or any other benefit plan of the Employer (other than this Plan), and any other required or elected withholding. The minimum amount of Compensation that may be deferred in any Plan Year is five thousand dollars ($5,000) (or two thousand five hundred dollars ($2,500) in the case of the first (short) Plan Year). 5.2 Deferral Election. Eligible Employees and Participants shall make their elections to defer all or a portion of their Compensation for the Plan Year no later than December 1 prior to the beginning of the Plan Year in which the Salary, Incentive Compensation, and/or Director's Compensation is to be earned, or not later than thirty (30) calendar days following notification of eligibility to participate for a partial Plan Year (with respect to Compensation not yet earned). Notwithstanding the foregoing, any deferral election a Participant made under the Supplemental Plan or the Schuler Plan shall be null and void effective as of June 15, 2002. If an Eligible Employee wishes to participate in the Plan for the first (short) Plan Year, such Eligible Employee must elect on or before June 14, 2002, to defer all or a portion of his Compensation to be earned for the pay periods beginning on or after June 15, 2002; provided, however, that (i) Eligible Employees are not permitted to defer any portion of their Incentive Compensation payable on June 15, 2002, and (ii) Eligible Employees shall have a one-time irrevocable election until June 30, 2002, to revoke their prior deferral election, in which case they shall not be eligible to participate herein until January 1, 2003. Any Salary, Incentive Compensation, and Director's Compensation deferral elections must be made before the Compensation is earned and before the amount thereof is substantially certain of payment. 5.3 Length of Deferral and Modification of Elections. All deferral elections shall be irrevocable for the Plan Year in which they are in effect, and shall be made on a "Deferral Election Form," as described herein. Once made, a Participant's deferral election shall remain in effect for all subsequent Plan Years for which the Participant is an Eligible Employee unless and until the Participant increases, decreases, or terminates such election by submitting a new Deferral Election Form to the Employer. Deferral election changes must be submitted to the Employer no later than December 1 prior to the beginning of the Plan Year for which the change is to be effective. On the "Deferral Election Form" and related enrollment forms Participants shall elect (i) the percentage or flat dollar amount of each eligible component of Compensation to be deferred for the Plan Year; (ii) the deemed investment elections of the amounts to be deferred, in accordance with Section 7.2; (iii) any scheduled in-service withdrawal that may be desired (which election must be made prior to the beginning of the deferral period for the Plan Year deferral at issue, and can only be elected for one Plan Year's deferral at a time); and (iv) a Beneficiary designation. ARTICLE 6 DISTRIBUTIONS 6.1 Scheduled In-Service Distributions. A Participant may elect in the manner prescribed by the Committee to receive all or a portion of the vested portion of his Deferral 8 Account while he is still employed by the Employer in (i) a single lump sum payment, or (ii) annual installment payments over a period of two (2) to five (5) years; provided, however, that a Participant may not elect to receive an in-service distribution under this Section 6.1 of the portion of his Deferral Account attributable to amounts deferred under the Supplemental Plan, if any. If the amount the Participant elects to receive is less than $25,000 (for all years combined), payment shall be made in a single lump sum. If a Participant elects to receive installment payments under (ii) above, the amount of each installment payment shall be equal to the balance remaining in the portion of the Participant's Deferral Account that is subject to such installment election (as determined immediately prior to each such payment), multiplied by a fraction, the numerator of which is one (1), and the denominator of which is the total number of remaining installment payments. The installment amount shall be adjusted annually to reflect gains and losses, if any, allocated to such Participant's Deferral Account pursuant to Article 7. A Participant's election under this Section 6.1 must specify the future year in which the payment of the deferred amounts shall commence, provided that the year in which distributions are to commence must be at least two (2) years beyond the end of the Plan Year in which the compensation is deferred. Any desired in-service distribution must be separately elected for each year compensation is deferred. Thus, to elect a scheduled in-service withdrawal for future plan years' deferrals, a new distribution election form must be submitted during the applicable enrollment period. Once the applicable enrollment period has passed, a scheduled in-service distribution cannot be elected for that plan year's deferrals. Distributions under this Section 6.1 shall commence in January of the year specified in the Participant's election. A Participant may delay the commencement of in-service payments or amend his election as to the form of the distribution at any time provided that such amendment must be made in the manner specified by the Committee at least one (1) calendar year prior to the date the distribution is to commence, and any change in the form of payment (such as from lump sum to installment) or the timing of the payment must delay or extend the length of the payments and may not accelerate them. If a Participant's employment or Board service with the Employer terminates for any reason prior to receiving full payment of an in-service distribution or while he is receiving scheduled installment payments pursuant to this Section 6.1, the unpaid portion of the Participant's elected distribution shall be paid in accordance with Section 6.3 below. Notwithstanding anything in this Section 6.1 to the contrary, if a Participant has elected or is receiving an Interim Distribution (as such term is defined in the Schuler Plan) under the Schuler Plan as of the effective date of this Plan, the Participant shall receive or shall continue receiving such distribution in accordance with his election under the Schuler Plan; provided, however, installment payments shall not be made for a period longer than five (5) years from the first January 1 following the effective date of this Plan. 6.2 Distributions upon Installment Eligibility Age, Death, or Disability. Within ninety (90) days of a Participant's termination of employment with the Employer after attaining Installment Eligibility Age, separation from Board service, or incurring a Disability, the Participant may elect to receive the vested balance credited to his Deferral Account in (i) a single lump sum payment or, (ii) annual installment payments over a period of two (2) to ten (10) years. If a Participant fails to make a distribution election within ninety (90) days following his termination of employment or if the vested balance credited to his Deferral Account is less than $50,000, payment shall be made in a single lump sum. The amount of each installment payment 9 under (ii) above shall be equal to the balance remaining in the portion of the Participant's Deferral Account that is subject to such installment election (as determined immediately prior to each such payment), multiplied by a fraction, the numerator of which is one (1), and the denominator of which is the total number of remaining installment payments. The installment amount shall be adjusted annually to reflect gains and losses, if any, allocated to such Participant's Deferral Account pursuant to Article 7. Distributions under this Section 6.2 shall begin as of the first day of the thirteenth (13th) month after the Participant submits his distribution election; provided, however, that a Participant can delay the commencement of distributions to a date no later than the January of the year immediately following his attainment of age 62. In the event a participant dies while receiving installment payments or before distributions have commenced in accordance with this Section 6.2, the unpaid portion of the Participant's Deferral Account shall be paid in accordance with Section 6.3 below. Any prior retirement or termination of employment elections under the Supplemental Plan or Schuler Plan shall be null and void. 6.3 Termination of Employment. If a Participant's employment with the Employer terminates for any reason (including the Participant's death) prior to the date the Participant attains Installment Eligibility Age or incurs a Disability, the unpaid vested portion of such Participant's Deferral Account shall be paid to the Participant or (in the event of his death) the Participant's designated beneficiary in a single lump sum payment as soon as administratively feasible following the Participant's termination of employment or death. 6.4 Nonscheduled In-Service Withdrawals. Notwithstanding any provision of this Plan to the contrary, a Participant may at any time request a lump sum distribution of all or a portion of his vested Deferral Account. In the event a Participant requests a distribution under this Section 6.4, (i) such Participant will receive a portion of his Deferral Account equal to 90% of the requested distribution, and the remaining 10% of the requested distribution will be forfeited, and (ii) such Participant will be ineligible to participate in the Plan for the remainder of the Plan Year in which the distribution is received and for the immediately following Plan Year. 6.5 Financial Hardship. The Committee shall have the authority to alter the timing or manner of payment of deferred amounts in the event that the Participant establishes, to the satisfaction of the Committee, severe financial hardship. In such event, the Committee may, in its sole discretion, distribute all or a portion of such Participant's Deferral Account to the Participant without penalty. For purposes of this Section 6.5, "severe financial hardship" shall mean any financial hardship resulting from extraordinary and unforeseeable circumstances arising as a result of one or more recent events beyond the control of the Participant, including, but not limited to, the illness or injury of a Participant or dependent (as determined by the Committee), or the casualty loss of a Participant's real or personal property. In any event, payment under this Section 6.5 may not be made to the extent such emergency is or may be relieved: (i) through reimbursement or compensation by insurance or otherwise; (ii) by liquidation of the Participant's assets, to the extent the liquidation of such assets would not itself cause severe financial hardship; and (iii) by 10 cessation of deferrals under the Plan. Withdrawals of amounts because of a severe financial hardship may only be permitted to the extent reasonably necessary to satisfy the hardship, plus to pay taxes on the withdrawal. Examples of what are not considered to be severe financial hardships include the need to send a Participant's child to college or the desire to purchase a home. The Participant's Deferral Account will be credited with earnings in accordance with the Plan up to the date of distribution. The Committee shall judge the severity of the financial hardship. The Committee's decision with respect to the severity of financial hardship and the manner in which, if at all, the Participant's future deferral opportunities shall be ceased, and/or the manner in which, if at all, the payment of deferred amounts to the Participant shall be altered or modified, shall be final, conclusive, and not subject to appeal. In the event a Participant receives a distribution under this Section 6.5, then such Participant will be ineligible to participate in the Plan for the remainder of the Plan Year in which the distribution was received. 6.6 Incompetence of Distributee. In the event that it shall be found that a person entitled to receive payment under the Plan (including a designated beneficiary) is a minor or is physically or mentally incapable of personally receiving and giving a valid receipt for any payment due (unless prior claim therefor shall have been made by a duly qualified committee or other legal representative), such payment may be made to any person whom the Committee in its sole discretion determines is entitled to receive it, and any such payment shall fully discharge the Employer, the Company, the Committee and the Plan from any further liability to the person otherwise entitled to payment hereunder, to the extent of such payment. ARTICLE 7 DEFERRED COMPENSATION ACCOUNTS 7.1 Participants' Accounts. The Company shall establish and maintain an individual bookkeeping Deferral Account for Employee Contributions. Each Deferral Account shall be credited with Employee Contributions generally within five (5) business days of the applicable payroll deduction, and as provided in Section 7.2. The Employee Contributions held in each Participant's Deferral Account shall be one hundred percent (100%) vested at all times. A Participant's Deferral Account shall also be credited with (i) compensation deferrals, if any, made under the Supplemental Plan or the Schuler Plan, (ii) Matching Contributions and Discretionary Contributions (as those terms are defined in the Schuler Plan) made on the Participant's behalf under the Schuler Plan, if any, and (iii) any deemed earnings credit to such amounts prior to the effective date of this Plan. (These credits are in lieu of the amounts formerly credited under the Supplemental Plan and Schuler Plan, which are being merged into this Plan.) Participants shall be one hundred percent (100%) vested at all times in the compensation deferrals made under the Supplemental Plan or the Schuler Plan credited to their Deferral Accounts. If a Participant's Deferral Account is credited with Matching Contributions and/or Discretionary Contributions made under the Schuler Plan, the Participant's vested interest in such contributions shall be determined in accordance with the terms of the Schuler Plan. 11 7.2 Earnings on Deferred Amounts. A Participant's Deferral Account shall be credited with earnings (or losses) based on a deemed investment of the Participant's Deferral Account, as directed by each Participant, which deemed investment shall be in one or more funds among the investment options selected by the Committee from time to time. Deemed earnings (and losses) on a Participant's Deferral Account shall be based upon the daily unit valuation of the funds selected by such Participant, and shall be credited to a Participant's Deferral Account on a monthly basis. Deemed earnings (or losses) shall be paid out to a Participant in accordance with the applicable Deferral Election Form. Any portion of a Participant's Deferral Account which is subject to distribution in installments shall continue to be credited with deemed earnings (or losses) until fully paid out to the Participant. The Committee reserves the right to change the options available for deemed investments under the Plan from time to time, or to eliminate any such option at any time. A Participant may specify a separate investment allocation with respect to each Deferral Election Form or amended Deferral Election Form. Participants may modify their deemed investment instructions each business day with respect to any portion (whole percentages only) of their Deferral Account; provided they notify the Committee or its designee within the time and in the manner specified by the Committee. Elections and amendments thereto pursuant to this Section 7.2 shall be made in the manner prescribed by the Committee. The Committee reserve the right to credit earnings (or losses) on a basis different from that elected by the Participants. 7.3 Designation of Beneficiary. Each Participant may designate a beneficiary or beneficiaries who, upon the Participant's death, or physical or mental incapacity will receive the amounts that otherwise would have been paid to the Participant under the Plan. All designations shall be signed by the Participant, and shall be in such form as prescribed by the Committee. Each designation shall be effective as of the date delivered to the Committee or its designee by the Participant. Participants may change their beneficiary designations on such form as prescribed by the Committee. The payment of amounts deferred under the Plan shall be in accordance with the last unrevoked written beneficiary designation that has been signed by the Participant and delivered to the Committee or its designee prior to the Participant's death. Notwithstanding the foregoing, a Participant who is married may not designate a beneficiary other than the Participant's spouse, unless the spouse consents in writing to such alternate beneficiary designation. In the event that all the beneficiaries named by a Participant pursuant to this Section 7.3 predecease the Participant, the deferred amounts that would have been paid to the Participant or the Participant's beneficiaries shall be paid to the Participant's estate. In the event a Participant does not designate a beneficiary, or for any reason such designation is ineffective, in whole or in part, the amounts that otherwise would have been paid to the Participant or the Participant's beneficiaries under the Plan shall be paid to the Participant's estate. 12 ARTICLE 8 TRUST Nothing contained in this Plan shall create a trust of any kind or a fiduciary relationship between the Employer and any Participant. Nevertheless, the Employer may establish one or more trusts, with such trustee(s) as the Committee may approve, for the purpose of providing for the payment of deferred amounts and earnings thereon. Such trust or trusts may be irrevocable, but the assets thereof shall be subject to the claims of the Employer's general creditors upon the bankruptcy or insolvency of the Employer. ARTICLE 9 CHANGE IN CONTROL 9.1 Trust and Trustees. Upon the occurrence of a Change in Control, the trust or trusts that may be established by the Employer pursuant to Article 8 shall become irrevocable and the Employer shall not thereafter be permitted to remove, terminate, or change the trustee(s) without the prior written consent of the majority of the Participants, with weighted voting as measured by their account balances. 9.2 Advanced Funding. No later than 30 days after a Change in Control occurs, the Employer shall make a contribution to the trust or trust(s) established pursuant to Article 8 to the extent required to fully fund all benefits that are or may become payable under the Plan, assuming for purposes of this calculation that all Participants retire with 100% vesting, and to fund in advance all administrative, legal, and other costs of maintaining the Plan, in an amount no less than $125,000. No later than December 31 of each Plan Year thereafter, the Employer shall make such additional contributions to the trust or trusts to fully fund the additional benefits that may become payable to Participants or beneficiaries under the Plan and the additional administrative, legal, and other Plan expenses. 9.3 Amendment and Termination. After the occurrence of a Change in Control, the Employer may not amend the Plan without the prior approval of a majority of the Participants. After a Change in Control, the Employer may not terminate the Plan until either (i) all benefits have been paid in full, or (ii) the majority of the Participants approve the same. For purposes hereof, Participants' votes shall be weighted based on their relative Plan account balances. ARTICLE 10 RIGHTS OF PARTICIPANTS 10.1 Contractual Obligation. The Plan shall create an unfunded, unsecured contractual obligation on the part of the Employer to make payments from the Participants' Deferral Accounts when due. Payment of Deferral Account balances shall be made out of the general assets of the Employer or from the trust or trusts referred to in Article 8 above. 10.2 Unsecured Interest. No Participant or party claiming an interest in deferred amounts of a Participant shall have any interest whatsoever in any specific asset of the Employer. To the extent that any party acquires a right to receive payments under the Plan, such right shall be equivalent to that of an unsecured general creditor of the Employer. Each Participant, by participating hereunder, agrees to waive any priority creditor status for wage payments with 13 respect to any amounts due hereunder. The Employer shall have no duty to set aside or invest any amounts credited to Participants' Deferral Accounts under this Plan. Accounts established hereunder are solely for bookkeeping purposes and the Employer shall not be required to segregate any funds based on such Accounts. 10.3 Employment. Nothing in the Plan shall interfere with or limit in any way the right of the Employer to terminate a Participant's employment at any time, or confer upon any Participant any right to continue in the employ of the Employer. ARTICLE 11 WITHHOLDING OF TAXES The Employer shall have the right to require Participants to remit to the Employer an amount sufficient to satisfy federal, state, and local withholding tax requirements, or to deduct from all payments made pursuant to the Plan (or from a Participant's other Compensation) amounts sufficient to satisfy withholding tax requirements. Employment taxes with respect to amounts deferred hereunder shall be payable in accordance with Code section 3121(v)(2) and may be withheld from a Participant's Compensation even if due prior to the time of a distribution hereunder. The Employer makes no representations, warranties, or assurances and assumes no responsibility as to the tax consequences of this Plan or participation herein. ARTICLE 12 AMENDMENT AND TERMINATION Subject to Article 9, the Employer reserves the right to amend, modify, or terminate the Plan (in whole or in part) at any time by action of the Board or the Committee, with or without prior notice. Except as described below in this Article 12, no such amendment or termination shall in any material manner adversely affect any Participant's rights to any amounts already deferred or credited hereunder or deemed earnings thereon, up to the point of amendment or termination, without the consent of the Participant. The Board may terminate the Plan and commence termination payout for all or certain Participants, or remove certain Employees as Participants, if it is determined by the United States Department of Labor or a court of competent jurisdiction that the Plan constitutes an employee pension benefit plan within the meaning of section 3(2) of ERISA that is not exempt from the provisions of Parts 2, 3, and 4 of Title I of ERISA, or if the IRS otherwise taxes amounts deferred prior to their scheduled payment date. If payout is commenced pursuant to the operation of this Article 12, the payment of deferred amounts and earnings thereon shall be made in the manner selected by each Participant under Section 6.2 herein (other than the commencement date), as if the Participant had attained Installment Eligibility Age. ARTICLE 13 MISCELLANEOUS 13.1 Notice. Any notice or filing required or permitted to be given to the Employer under the Plan shall be sufficient if in writing and hand delivered, or sent by registered or 14 certified mail to the D.R. Horton Deferred Compensation Plan Committee, and if mailed, shall be addressed to the principal executive offices of the Employer. Notice mailed to a Participant shall be at such address as is given in the records of the Employer. Notices to the Employer shall be deemed given as of the date of delivery. Notice to a Participant or beneficiary shall be deemed given as of the date of hand delivery, or if delivery is made by mail, three (3) days following the postmark date. 13.2 Nontransferability. Except as provided in Section 7.3 and this Section 13.2, Participants' rights to deferred amounts and earnings credited thereon under the Plan may not be sold, transferred, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution, or pursuant to a domestic relations order, nor shall the Employer make any payment under the Plan to any assignee or creditor of a Participant. 13.3 Severability. In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included. 13.4 Gender and Number. Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine; the plural shall include the singular, and the singular shall include the plural. 13.5 Costs of the Plan. All costs of implementing and administering the Plan shall be borne by the Employer. 13.6 Successors. All obligations of the Employer under the Plan shall be binding on any successor to the Employer, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Employer. 13.7 Applicable Law. Except to the extent preempted by applicable federal law, the Plan shall be governed by and construed in accordance with the laws of the state of Texas. ARTICLE 14 ADMINISTRATIVE INFORMATION 14.1 Plan Sponsor and Administrator. The Plan described herein is sponsored by: D.R. Horton, Inc. 1901 Ascension Blvd., Suite 100 Arlington, Texas 76006 The Company is the plan administrator and named fiduciary. Prior to a Change in Control, the Company has been granted complete fiduciary discretion and authority to administer, operate, and interpret the Plan and make final decisions on such issues as eligibility, payment of benefits, claims, and claims appeals, unless such decisions have been delegated to another party. However, many day-to-day questions can be answered by the Benefits Department. 15 The agent for the service of legal process for the Plan is the Company. 14.2 Plan Type and Plan Year. Documents and reports for the Plan are filed with the United States Internal Revenue Service and the Department of Labor under Employer Identification Number: 75-2386963. The official Plan name is the D.R. Horton Deferred Compensation Plan, which, for government purposes, is intended to be an unfunded pension plan maintained by an employer for a select group of management or highly compensated employees. Plan records are maintained on an annual basis and December 31 is the end of the plan year. 14.3 Plan Funding. The Plan is unfunded and unsecured and benefits are paid solely from the Employer's general assets. ARTICLE 15 ERISA RIGHTS Certain rights and protections are provided to Plan participants under the Employee Retirement Income Security Act of 1974 (ERISA). These ERISA rights include the following: (a) Any Plan participant may contact the Benefits Department to examine all Plan documents without charge. These may include the Plan descriptions and all other documents filed with the United States Department of Labor. (b) Copies of Plan documents and other information may be obtained by writing to the Committee. A reasonable charge may be assessed for these copies. (c) Each Plan participant has the right to receive a written summary of the Plan's annual financial reports, if any. However, this type of plan is not required to have either an annual financial report or a summary annual report. (d) An employee may not be discharged or discriminated against to prevent his obtaining a benefit or exercising his ERISA rights. (e) If a claim for a benefit is denied, in whole or in part, a written explanation from the Committee or a delegated representative will be provided. Each participant has the right to have the plan administrator review and reconsider any denied claim. The named fiduciary for this Plan is the Company. Under certain circumstances, outside assistance may be necessary to resolve disputes between a Participant and Plan officials. For example: (a) If a claim for benefits is denied or ignored, in whole or in part, after a final review, the claim may be submitted to binding arbitration (or, after a Change in Control, to either arbitration or a court, at the Participant's election). 16 (b) If a participant is discriminated against for pursuing a benefit or exercising his ERISA rights, the participant may seek help from the United States Department of Labor or file an arbitration claim (or, after a Change in Control, either an arbitration claim or a lawsuit, at the Participant's election). For further information about this statement or about ERISA rights, contact the Benefits Department. Or, you may contact the nearest area office of the Pension and Welfare Benefits Administration, United States Department of Labor, listed in your telephone directory or the Division of Technical Assistance and Inquires, Pension and Welfare Benefits Administration, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington D.C. 20210. You may also obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Pension and Welfare Benefits Administration. IN WITNESS WHEREOF, D.R. Horton, Inc. has caused this document to be executed by its duly authorized officer on June 21, 2002, effective as of the date set forth above. D.R. HORTON, INC. By:/s/ Donald J. Tomnitz ----------------------------------- Its:Vice Chairman, President and Chief ---------------------------------- Executive Officer -------------------------------- 17 EX-5.1 4 d97895exv5w1.txt OPINION/CONSENT OF GIBSON, DUNN & CRUTCHER LLP EXHIBIT 5.1 [LETTERHEAD OF GIBSON, DUNN & CRUTCHER LLP] June 21, 2002 D.R. Horton, Inc. 1901 Ascension Blvd., Suite 100 Arlington, Texas 76006 Re: D.R. Horton, Inc. Deferred Compensation Plan Ladies and Gentlemen: As counsel for D.R. Horton, Inc., a Delaware corporation (the "Company"), we are familiar with the Company's Registration Statement on Form S-8 (the "Registration Statement"), filed with the Securities and Exchange Commission (the "SEC") under the Securities Act of 1933 (as amended, the "Act") on the date hereof, with respect to the proposed issuance of up to $30,000,000 in unsecured obligations of the Company to pay deferred compensation in the future (the "Obligations") in accordance with the terms of the D.R. Horton Deferred Compensation Plan (the "Plan"). All capitalized terms which are not defined herein shall have the meanings assigned to them in the Registration Statement. For the purpose of rendering this opinion, we have made such factual and legal examination as we deemed necessary under the circumstances, and in that connection we have examined, among other things, originals or copies of the following: (1) The Amended and Restated Certificate of Incorporation of the Company, filed as an exhibit to the Company's Registration Statement (No. 333-76175) on Form S-3, filed April 13, 1999; (2) The Amended and Restated Bylaws of the Company, filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 1998; (3) The Plan, filed as an exhibit to the Registration Statement; and (4) Such records of the corporate proceedings of the Company, such certificates and assurances from public officials, officers and representatives of the Company, and such other documents as we have considered necessary or appropriate for the purpose of rendering this opinion. In rendering the opinion expressed below, we have assumed: (a) The genuineness of all signatures on, and the authenticity of, all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. With respect to agreements and instruments executed by natural persons, we have assumed the legal competency of such persons. (b) There are no agreements or understandings between or among the Company and any participants in the Plan that would expand, modify or otherwise affect the terms of the Plan or the respective rights or obligations of the participants thereunder. On the basis of the foregoing examination, and in reliance thereon, and the qualifications and limitations set forth below, we are of the opinion that, when issued in accordance with the provisions of the Plan, the Obligations will be duly authorized and valid and binding obligations of the Company, enforceable in accordance with their terms. The opinions set forth herein are subject to the following assumptions, qualifications, limitations and exceptions: A. We render no opinion herein as to matters involving the laws of any jurisdiction other than the States of Texas and Delaware and the United States of America. Our opinions set forth herein are limited to the effect of the present state of applicable laws of the State of Texas and the United States of America, the present corporate laws of the State of Delaware and to the present judicial interpretations thereof and to the facts as they presently exist. Although we are not admitted to practice in the State of Delaware, we are familiar with the Delaware General Corporation Law and have made such investigation thereof as we deemed necessary for the purpose of rendering the opinion contained herein. We assume no obligation to revise or supplement our opinions should the present laws, or the interpretation thereof, be changed or to revise or supplement these opinions in respect of any circumstances or events that occur subsequent to the date hereof. B. Our opinions set forth herein are subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting the enforcement of creditors' rights generally (including, without limitation, the effect of statutory or other laws regarding fraudulent transfers or preferential transfers) and (ii) general principles of equity, regardless of whether a matter is considered in a proceeding in equity or at law, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies. C. We express no opinion regarding the effectiveness of any waiver (whether or not stated as such) contained in the Plan of rights of any party, or duties owing to it, that is broadly or vaguely stated or does not describe the right or duty purportedly waived with reasonable specificity or any provision in the Plan relating to indemnification, exculpation or contribution. This opinion may be filed as an exhibit to the Registration Statement. Consent is also given to the reference to this firm under the caption "Legal Matters" in the prospectus contained in or incorporated by reference to the Registration Statement. In giving this consent, we do not admit we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ Gibson, Dunn & Crutcher LLP GIBSON, DUNN & CRUTCHER LLP DIS/RWB/TS EX-23.2 5 d97895exv23w2.txt CONSENT OF ERNST & YOUNG LLP, FORT WORTH EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the D.R. Horton Deferred Compensation Plan of our report dated November 9, 2001, with respect to the consolidated financial statements of D.R. Horton, Inc. included in its Annual Report (Form 10-K) for the year ended September 30, 2001, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Fort Worth, Texas June 19, 2002 EX-23.3 6 d97895exv23w3.txt CONSENT OF ERNST & YOUNG LLP, LOS ANGELES EXHIBIT 23.3 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the D.R. Horton Deferred Compensation Plan of our report dated June 27, 2001 for Schuler Homes, Inc., our report dated May 16, 2001 for Schuler Residential, Inc. and our report dated April 30, 2001 for Western Pacific Housing, each included in Schuler Homes, Inc.'s Annual Report (Form 10-K), filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Los Angeles, California June 19, 2002 -----END PRIVACY-ENHANCED MESSAGE-----