Exhibit 10.4
AMENDED AND RESTATED
1998 CENTEX CORPORATION
EMPLOYEE NON-QUALIFIED STOCK OPTION PLAN
(Amended and Restated Effective January 1, 2008)
1.
Purpose of the Plan.
This 1998 Centex Corporation Employee
Non-Qualified Stock Option Plan (the “ Plan
”) is intended as an employment incentive to retain in the
employ of Centex Corporation (the “ Company
”), and any Affiliate (including any entity that becomes an
Affiliate), persons of training, experience and ability, to attract
new employees whose services are considered valuable, to encourage
the sense of proprietorship of such persons, and to stimulate the
active interest of such persons in the development and financial
success of the Company. For purposes of the Plan, “
Affiliate ” shall mean any direct or indirect
subsidiary or parent of the Company and any partnership, joint
venture, limited liability company or other business venture or
entity in which the Company owns at least 50% of the ownership
interest in such entity, as determined by the Committee in its sole
and absolute discretion (such determination by the Committee to be
conclusively established by the grant of options by the Committee
to an officer or employee of such an entity); 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 Internal Revenue Code (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 Sections of
the Code, 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. It is further intended each option granted pursuant to
the Plan (herein, an “ Option ”) shall
constitute non-qualified stock options within the meaning of
Section 83 of the Code. 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.
Administration of the Plan.
The Board of Directors shall appoint
and maintain a Compensation and Stock Option Committee (hereinafter
called the “ Committee ”) of the Board of
Directors to administer the Plan. Subject to the terms and
conditions of the Plan, the Committee shall have full power and
authority to designate persons to whom Options will be granted, to
determine the terms and provisions of respective option agreements
(which need not be identical), and to interpret the provisions and
supervise the administration of the Plan. The Committee shall have
the authority, exercisable in its sole discretion, to grant Options
containing such terms and conditions, consistent with the
provisions of the Plan, as the Committee shall determine.
3.
Designation of Participants.
The persons eligible for
participation in the Plan as recipients of Options shall include
all employees of the Company or of any Affiliate, including
employees of any entity that becomes an Affiliate after the date
that the Plan is adopted, other than any of the following persons
(herein, an “ Ineligible Person ”):
(a) any person who is an
executive officer, as defined by Rule 3b-7 promulgated under
the Securities Exchange Act of 1934, as amended, or director of the
Company;
(b) any “officer” of
the Company as defined by Rule 16a-1(f) promulgated under the
Securities Exchange Act of 1934, as amended; or
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(c) any “covered
employee” of the Company as defined by Section 162(m)(3)
of the Code.
Each Option granted hereunder shall
be evidenced by an agreement between the Company and the Optionee,
which shall contain such terms and conditions as the Committee
shall determine in its sole and absolute discretion. Any person who
has been granted an Option hereunder (herein, an “
Optionee ”) may be granted an additional Option
or Options, if the Committee shall so determine. Participation in
the Plan shall not preclude an Optionee from participating in any
other stock option, benefit, bonus, or other compensation plan
which the Company or any Affiliate has adopted, or may, from time
to time, adopt for the benefit of its employees.
4.
Stock Reserved for the Plan.
Subject to any adjustment provided in
Paragraph 9 hereof, a total of 5,500,000 shares of common
stock, $0.25 par value, of the Company (the “
Stock ”) shall be subject to the Plan. As of
March 31, 2006, the number of shares available for Option
issuance is 96,552. The shares of Stock subject to the Plan shall
consist of unissued shares or previously issued shares reacquired
and held by the Company, or any Affiliate, and such amount of
shares shall be and hereby is reserved for delivery under the Plan.
Any of such shares which may remain unsold and which are not
subject to outstanding Options at the termination of the Plan shall
cease to be reserved for the purpose of the Plan, but until
termination of the Plan the Company shall at all times reserve a
sufficient number of shares of Stock to meet the requirements of
the Plan. Should any Option expire or be canceled prior to its
exercise or relinquishment in full, the shares theretofore subject
to such Option may again be subjected to an Option under the Plan.
If the purchase price or tax withholding is permitted to be
satisfied by the tender or withholding of shares of Stock to the
Company (by either actual delivery or attestation), the number of
shares of Stock tendered or withheld shall be eligible for
reissuance under the Plan.
5.
Purchase Price.
(a) The purchase price of each
share placed under option pursuant to the Plan (a “
Share ”) shall be determined by the Committee, but in
no event shall be less than 100% of the Fair Market Value of such
Share on the date the Option is granted. If an Option is granted as
part of an Optionee’s compensation package at the
commencement of an Optionee’s employment by the Company or an
Affiliate, the Option shall be deemed to have been granted on the
date of commencement of such Optionee’s employment by the
Company or any Affiliate (the “ Commencement Date
”) and the purchase price of a Share shall be equal to the
Fair Market Value of such Share on the Commencement Date, so long
as such Option is not granted more than ninety (90) days
following the Commencement Date. Notwithstanding the foregoing, to
the extent that the grant date and purchase price of an Option that
is granted as part of an Optionee’s compensation package must
be determined in a different manner in order to be exempt from
Section 409A of the Code, the requirements of
Section 409A of the Code and the Treasury Regulations and
other guidance thereunder shall control.
(b) “ Fair Market
Value ” of a share of Stock means, as of a particular
date, (A) if the Stock is listed on a national securities
exchange, the closing price per share of such Stock, as reported on
the consolidated transaction reporting system for the New York
Stock Exchange or such other national securities exchange on which
the Stock is listed that is at the applicable time the principal
market for the Stock, 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 sale was
so reported, (B) if the Stock is not so listed, the mean
between the closing bid and asked price of the Stock 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 Stock determined in good faith by the Committee. Any
determination of Fair Market Value shall be consistent with
Section 409A of the Code and the Treasury Regulations and
other guidance thereunder.
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6.
Option Period.
The Options granted under the Plan
shall be for any term set by the Committee, but not more than ten
(10) years from the date of granting of each Option. All
rights to exercise an Option shall terminate within three
(3) months after the date the Optionee ceases to be an
employee of the Company or any Affiliate, except that
(a) 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 an Option up to the maximum permissible
period which such Optionee’s Option would have been
exercisable in the absence of the Optionee ceasing to be an
employee of the Company or an Affiliate but only to the extent such
extension does not result in a modification of the Option for
purposes of Section 409A of the Code;
(b) if an Optionee ceases to be
employed by the Company or an Affiliate by reason of such
Optionee’s death, all rights to exercise such Option shall
terminate fifteen (15) months after such death; and
(c) if the Optionee is
terminated for cause, as determined by the Committee in its sole
and absolute discretion, any Option granted to such Optionee
hereunder shall terminate on the date of such termination.
(d) Attached hereto are
resolutions adopted by the Compensation and Management Development
Committee of the Board of Directors of the Company, now the
“Committee”, relating to vesting and exercise, which
shall apply only to Options granted prior to April 1,
2006.
7.
Exercise of Options.
(a) Any Option granted hereunder
shall be exercisable from time to time under the terms specified in
the Plan, by the Committee, or in the agreement relating to the
grant of such Option.
(b) Each exercise of an Option
or a portion of an Option shall be evidenced by a notice in writing
by or on behalf of the Optionee to the Company, stating the number
of shares with respect to which the Option is being
exercised.
(c) Options may be exercised
solely by the Optionee or a Permitted Transferee (hereafter
defined).
(d) The purchase price of the
Shares for which an Option is exercised must be paid p
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