Exhibit 10.5
CENTEX CORPORATION
AMENDED AND RESTATED 1987 STOCK OPTION PLAN
(Amended and Restated Effective January 1, 2008)
1.
Purpose
The purpose of this Plan is to assist
Centex Corporation, a Nevada corporation, in attracting and
retaining as officers and key employees of the Company and its
Affiliates, and as non-employee directors of the Company,
individuals of training, experience and ability and to furnish
additional incentive to such individuals by encouraging them to
become owners of Shares of the Company’s capital stock, by
granting to such individuals Incentive Options, Nonqualified
Options, Restricted Stock, or any combination of the foregoing.
Nonqualified Options granted hereunder are intended to be exempt
from the requirements of Section 409A of the Code, and the
Plan shall be interpreted and administered in a manner consistent
with that intent.
2.
Definitions
Unless the context otherwise
requires, the following words as used herein shall have the
following meanings:
“ Act ” —
The Securities Exchange Act of 1934, as amended.
“ Affiliates ”
— Any corporation or other entity which is a direct or
indirect parent or subsidiary (including, without limitation,
partnerships and limited liability companies) of the Company;
provided, however, that such entity shall be considered an
Affiliate only if it would be aggregated and treated as a single
employer with the Company under Section 414(b) of the Code
(controlled group of corporations) or Section 414(c) of the Code
(group of trades or businesses under common control), as
applicable, but in applying such Code Sections, an ownership
threshold of 50% shall be used as a substitute for the 80% minimum
ownership threshold that appears in, and otherwise must be used
when applying, the applicable provisions of
(a) Section 1563 of the Code and the regulations
thereunder for determining a controlled group of corporations under
Section 414(b) of the Code, and (b) Treasury
Regulation Section 1.414(c)-2 for determining the trades
or businesses that are under common control under Section 414(c) of
the Code.
“ Agreement ”
— The written agreement between the Company and the Optionee
evidencing the Option granted by the Company and the understanding
of the parties with respect thereto.
“ Board ” —
The Board of Directors of the Company as the same may be
constituted from time to time.
“ Code ” —
The Internal Revenue Code of 1986, as amended from time to
time.
“ Committee ”
— The Committee provided for in Section 3 of this Plan,
as such Committee may be constituted from time to time.
“ Company ”
— Centex Corporation, a Nevada corporation.
“ Fair Market Value
” — As of a particular date, (A) if Shares are
listed on a national securities exchange, the closing price per
Share, as reported on the consolidated transaction reporting system
for the New York Stock Exchange or such other national securities
exchange on which Shares are listed that is at the applicable time
the principal market for the Shares, or any other source selected
by the Committee, or, if there shall have been no such sales so
reported on that date, on the last preceding date on which such
a
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sale was
so reported, (B) if Shares are not so listed, the mean between
the closing bid and asked price of Shares on that date, or, if
there are no quotations available for such date, on the last
preceding date on which such a quotation was reported, as reported
on a recognized quotation system selected by the Committee, or, if
not so reported, then as reported by The Pink Sheets LLC (or a
similar organization or agency succeeding to its functions of
reporting prices), or (C) at the discretion of the Committee,
the value of Shares determined in good faith by the Committee. Any
determination of Fair Market Value shall be consistent with
Section 422 of the Code and the Treasury Regulations and other
guidance thereunder with regard to Incentive Options and Section
409A of the Code and the Treasury Regulations and other guidance
thereunder with regard to Nonqualified Options. For purposes of
valuing Shares to be made subject to Incentive Options, the Fair
Market Value of stock shall be determined without regard to any
restriction other than one which, by its terms, will never
lapse.
“ Incentive Option
” — Stock Options that are intended to satisfy the
requirements of Section 422 of the Code and Section 16 of this
Plan.
“ Non-employee Director
” — An individual who satisfies the requirements of
Rule 16b-3 promulgated under the Act.
“ Nonqualified Options
” — Stock Options which do not satisfy the requirements
of Section 422 of the Code.
“ Option ” —
An option to purchase one or more Shares of the Company granted
under and pursuant to the Plan. Such Option may be either an
Incentive Option or a Nonqualified Option.
“ Optionee ”
— An individual who has been granted an Option under this
Plan and who has executed a written option Agreement with the
Company.
“ Plan ” —
This Centex Corporation 1987 Stock Option Plan.
“ Permitted Transferees
” — (i) members of the Optionee’s immediate
family, (ii) one or more trusts for the benefit of such
members of the Optionee’s immediate family,
(iii) partnerships in which such immediate family members are
the only partners and (iv) limited liability companies in
which such immediate family members are the only members.
“ Restricted Stock
” — Shares issued pursuant to Section 19 of the
Plan.
“ Senior Management
” — Members of the senior management group of the
Company and its Affiliates, such senior managers to be identified
by the Chairman and Vice Chairman of the Board of the
Company.
“ Share ” —
A share of the Company’s present twenty-five cents ($0.25)
par value common stock and any share or shares of capital stock or
other securities of the Company hereafter issued or issuable upon,
in respect of or in substitution or in exchange for each present
share. Such Shares may be unissued or reacquired Shares, as the
Board, in its sole and absolute discretion, shall from time to time
determine.
3.
Administration
The Plan shall be administered by a
committee (the “Committee”) comprised of two or more
Non-employee Directors appointed by the Board from time to time.
The Committee shall (a) select the eligible employees or
directors who are to receive Options or awards of Restricted Stock
under the Plan, (b) determine the type, number, vesting
requirements and other features and conditions of Options or awards
of Restricted Stock, (c) interpret the Plan, and (d) make
all other determinations necessary or advisable for the
administration of the Plan. The Committee may adopt such rules or
guidelines as it
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deems
appropriate to implement the Plan. The Committee’s
determinations under the Plan shall be final and binding on all
persons.
4.
Shares Subject to Plan
(a) A maximum of 7,065,139
Shares shall be subject to grants of Options and awards of
Restricted Stock under the Plan; provided that such maximum shall
be increased or decreased as provided below in
Section 12.
(b) At any time and from time to
time after the Plan takes effect, the Committee, pursuant to the
provisions herein set forth, may grant Options and award Restricted
Stock until the maximum number of Shares shall be exhausted or the
Plan shall be sooner terminated; provided, however, that no Option
shall be granted and no Restricted Stock shall be awarded after
May 19, 2001.
(c) Should any Option expire or
be cancelled without being fully exercised, or should any
Restricted Stock previously awarded be reacquired by the Company,
the number of Shares with respect to which such Option shall not
have been exercised prior to its expiration or cancellation and the
number of Shares of such Restricted Stock so reacquired may again
be optioned or awarded pursuant to the provisions hereof.
(d) Any Shares withheld pursuant
to subsection 18(c) shall not be available after such withholding
for being optioned or awarded pursuant to the provisions
hereof.
5.
Eligibility
Eligibility for the receipt of the
grant of Options under the Plan shall be confined to (a) a
limited number of persons who are employed by the Company, or one
or more of its Affiliates and who are officers of or who, in the
opinion of the Committee, hold other key positions in or for the
Company or one or more of its Affiliates and (b) directors of
the Company, including directors who are not employees of the
Company or its Affiliates; provided that only employees of the
Company or its Affiliates shall be eligible for the grant of
Incentive Options. In addition, an individual who becomes a
director of the Company, but who is not at the time he becomes a
director also an employee of the Company, shall not be eligible for
a grant of Options or an award of Restricted Stock, and shall not
be eligible for the grant of an option, stock allocation, or stock
appreciation right under any other plan of the Company or its
affiliates (within the meaning of Rule 12b-2 promulgated under
the Act) until the Board expressly declares such person eligible by
resolution. In no event may an Option be granted to an individual
who is not an employee of the Company or an Affiliate or a director
of the Company.
6.
Granting of Options
(a) From time to time while the
Plan is in effect, the Committee may in its absolute discretion,
select from among the persons eligible to receive a grant of
Options under the Plan (including persons who have already received
such grants of Options) such one or more of them as in the opinion
of the Committee should be granted Options. The Committee shall
thereupon, likewise in its absolute discretion, determine the
number of Shares to be allotted for option to each person so
selected; provided, however, that the total number of Shares
subject to Options granted to any one person, including directors
of the Company, when aggregated with the number of Shares of
Restricted Stock awarded to such person, shall not exceed 706,513
Shares.
(b) Each person so selected
shall be offered an Option to purchase the number of Shares so
allotted to him, upon such terms and conditions, consistent with
the provisions of the Plan, as the Committee may specify. Each such
person shall have a reasonable period of time, to be fixed by
the
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Committee, within which to accept or reject the proffered Option.
Failure to accept within the period so fixed may be treated as a
rejection.
(c) Each person who accepts an
Option offered to him shall enter into an Agreement with the
Company, in such form as the Committee may prescribe, setting forth
the terms and conditions of the Option, whereupon such person shall
become a participant in the Plan. In the event an individual is
granted both one or more Incentive Options and one or more
Nonqualified Options, such grants shall be evidenced by separate
Agreements, one each for the Incentive Option grants and one each
for the Nonqualified Options grants. The date which the Committee
specifies to be the grant date of an Option to an individual shall
constitute the date on which the Option covered by such Agreement
is granted; provided, however, that the grant date of an Incentive
Option will be determined in accordance with the requirements of
Section 422 of the Code and the Treasury Regulations and other
guidance thereunder and the grant date of a Nonqualified Option
will be determined in a manner that complies with Treasury
Regulation Section 1.409A-1(b)(5)(vi)(B). In no event,
however, shall an Optionee gain any rights in addition to those
specified by the Committee in its grant, regardless of the time
that may pass between the grant of the Option and the actual
signing of the Agreement by the Company and the Optionee.
7.
Option Price
The option price for each Share
covered by each Option shall not be less than the greater of
(a) the par value of each such Share or (b) the Fair
Market Value of the Share at the time such Option is granted. If
the Company or an Affiliate agrees to substitute a new Option under
the Plan for an old Option, or to assume an old Option, by reason
of a corporate merger, consolidation, acquisition of property or
stock, separation, reorganization, or liquidation (any of such
events being referred to herein as a “Corporate
Transaction”), the option price of the Shares covered by each
such new Option or assumed Option may be other than the Fair Market
Value of the stock at the time the Option is granted as determined
by reference to a formula, established at the time of the Corporate
Transaction, which will give effect to such substitution or
assumption; provided, however, in no event shall —
(a) the excess of the aggregate
Fair Market Value of the Share subject to the Option immediately
after the substitution or assumption over the aggregate option
price of such Shares be more than the excess of the aggregate Fair
Market Value of all Shares subject to the Option immediately prior
to the substitution or assumption over the aggregate option price
of such Shares
(b) in the case of an Incentive
Option, the new Option or the assumption of the old Option give the
Optionee additional benefits which he would not have under the old
Option; or
(c) the ratio of the option
price to the Fair Market Value of the stock subject to the Option
immediately after the substitution or assumption be more favorable
to the Optionee than the ratio of the option price to the Fair
Market Value of the stock subject to the old Option immediately
prior such substitution or assumption, on a Share by Share
basis.
Notwithstanding the above, the
provisions of this Section 7 with respect to the Option price
in the event of a Corporate Transaction shall, in case of an
Incentive Option, be subject to the requirements of Section 424(a)
of the Code and the Treasury regulations and revenue rulings
promulgated thereunder and shall, in the case of a Nonqualified
Option, be applied in a manner that complies with Section 409A
of the Code and the Treasury Regulations and other guidance
thereunder. In the event of a conflict between the terms of this
Section 7 and the above cited statutes, regulations, and
rulings, or in the event of an omission in this Section 7 of a
provision required by said laws, the latter shall control in all
respects and are hereby incorporated herein by reference as if set
out at length.
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8.
Option Period
(a) Each Option shall run for
such period of time as the Committee may specify, but in no event
for longer than ten (10) years from the date when the Option
is granted, including the period of time provided in subsections
(i) and (ii) of this subsection (a); and subject to such
limits, and the further condition that, unless designated otherwise
by the Committee, no Incentive Option shall become exercisable
prior to one year from the date of its grant,
(i) Except as provided below in this
subsection (i) and in paragraph 8.(b) below, all rights to
exercise an Option shall terminate within three months after the
date the Optionee ceases to be an employee of at least one of the
employers in the group of employers consisting of the Company and
its Affiliates, or after the date the Optionee ceases to be a
director of the Company, whichever may occur later, for any reason
other than death, except that, (x) in the case of a
Nonqualified Option which is held by an Optionee who is, on the
date of cessation referred to in this clause, an officer or
director of the Company (within the meanings thereof under
Section 16b) of the Act), all rights to exercise such Option
shall terminate within seven months after the date the Optionee
ceases to be an employee of at least one of the employers in the
group of employers consisting of the Company and its Affiliates,
or, if later, after the date the Optionee ceases to be a director
of the Company, for any reason other than death; and, except that,
(y) the Committee, in its discretion, may provide in new
Option grants or amend outstanding Options to provide an extended
period of time during which an Optionee can exercise a Nonqualified
Option to the maximum permissible period for which such
Optionee’s Option would have been exercisable in the absence
of the Optionee’s ceasing to be an employee of the Company
and its Affiliates or ceasing to be a director of the Company but
only to the extent such extension does not result in a modification
of the Option for purposes of Section 409A of the Code; and,
except that (z) in case the employment of the Optionee is
terminated for cause, the Option shall thereafter be null and void
for all purposes.
(ii) If the Optionee ceases to be
employed by at least one of the employers in the group of employers
consisting of the Company and its Affiliates, or ceases to be a
director of the Company, whichever may occur later, by reason of
his death, all rights to exercise such Option shall terminate
fifteen (15) months thereafter.
(iii) If Incentive Option is granted
with a term shorter than ten (10) years, after considering the
tax and other potential implications the Committee may extend the
term of Incentive Option, but for not more than ten (10) years
from the date when Incentive Option was originally granted.
(b) Attached hereto are
resolutions adopted by the Committee, relating to vesting and
exercise, which shall apply only to Options granted prior to
April 1, 2006.
9.
Options Not Transferable
No Option or interest therein shall
be transferable by the person to whom it is granted otherwise than
by will, the applicable laws of descent and distribution, or a
domestic relations order (except with respect to an Incentive
Option). Notwithstanding the foregoing, the Committee may, in its
sole discretion, provide in the Agreement relating to the grant of
an Option that the Optionee may transfer such Option, without
consideration, to members of the Optionee’s immediate family
or to one or more trusts for the benefit of such immediate family
members or partnerships in which such immediate family members are
the only partners. For purposes of this Section 9,
“immediate family” shall mean the Optionee’s
spouse, parents, children (including adopted children) and
grandchildren.
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Further, notwithstanding the
foregoing, the Committee may, in its sole discretion, provide in
each of those Agreements relating to the grant of an Option whose
term will expire in 2000, 2001, 2003, 2004, 2005, 2006 or 2007 that
a Director or Senior Management Optionee may transfer such Option
to one or more Permitted Transferees with or without consideration
to the Optionee provided that the following conditions are
satisfied with respect to such transfer: (i) such transfer is
made pursuant to the program that the Company has created to
facilitate the reduction of its stock option overhang and is
accomplished on or before March 5, 2000; (ii) the
Permitted Transferee exercises the Option not more than
30 days following such transfer; (iii) all fees and
expenses charged by accounting firms, law firms and all other third
party consultants in connection with such transfer are paid by the
Optionee, and such fees and expenses are not otherwise paid or
reimbursed by the Company or any of its Affiliates; (iv) the
Permitted Transferee agrees to be bound by all of the terms of the
Agreement, except that once transferred by the Optionee to such
Permitted Transferee, the Option may not be subsequently
transferred except back to the Optionee; (v) if the
consideration tendered by the Permitted Transferee for the Option
is a term obligation, the principal amount under such term
obligation will be due in full no later than the fifth anniversary
of the Option’s expiration date; and (vi) the Permitted
Transferee agrees to inform the Company’s Stock Plan
Administrator upon (a) the sale or other transfer of the
shares underlying the Option and (b) any other event or action
taken by the Permitted Transferee with respect to the Option, the
shares underlying the Option or the consideration for the Option,
where such event or action will give rise to a recognizable event
for the Company.
10.
Exercise of Options
(a) During the lifetime of an
Optionee only he or his guardian or legal representative or
transferee may exercise an Option granted to him. In the event of
his death, any then exercisable portion of his Option may, within
fifteen (15) months thereafter, or earlier date of termination
of the Option, be exercised in whole or in part by any person
empowered to do so under the deceased Optionee’s will or
under the applicable laws of descent and distribution.
(b) At any time, and from time
to time, during the period when any Option, or a portion thereof,
is exercisable, such Option, or portion thereof, may be exercised
in whole or in part; provided, however, that the Committee may
require any Option which is partially exercised to be so exercised
with respect to at least a stated minimum number of Shares.
(c) The option price of the
Shares for which an Option is exercised must be paid prior to
issuance of the Shares. Such purchase price shall be payable
(i) in cash, certified or cashiers’ check, or wire
transfer; (ii) at the option of the holder of such Option, in
Stock theretofore owned by such holder by either actual delivery of
shares or by attestation, or through the withholding by the Company
from the Shares otherwise issuable pursuant to the Option of an
appropriate number of Shares; (iii) by a combination of cash
and such delivery of withholding of Stock; or (iv) delivery of
a properly executed exercise notice together with irrevocable
instructions to a broker satisfactory to the Company to promptly
deliver to the Company the amount of sale or loan proceeds required
to pay the exercise price and applicable withholding taxes. For
purposes of determining the amount, if any, of the purchase price
satisfied by payment in Stock, such Stock shall be valued at its
Fair Market Value on the date of exercise. Any Stock delive
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