ex10-3.htm


     

    Exhibit
10.3

    

      AMENDED
AND RESTATED

       

      1998
CENTEX CORPORATION

       

      EMPLOYEE
NON-QUALIFIED STOCK OPTION PLAN

       

      (Amended
and Restated Effective February 11, 2009)

       

      


       

      
        	
                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, (i)(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, or
(ii) if applicable, the price per share as determined in accordance with the
procedures of a third party administrator retained by the Company

       

      
        
           


        

        
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      to
administer the Plan.  Any determination of Fair Market Value shall be
consistent with Section 409A of the Code and the Treasury Regulations and other
guidance thereunder.

       

      
        	
                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 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
or withholding of Stock; or (iv) by 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 delivered in
satisfaction of all or a portion of the purchase price shall be appropriately
endorsed for transfer and assignment to the Company.  No holder of an
Option shall be, or have any of the rights or privileges of, a shareholder of
the Company in respect of any Shares unless and until certificates representing
such Shares shall have been delivered by the Company

       

      
        
           


        

        
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      to such
holder or such holder’s interest in such shares shall have been evidenced by an
entry on the Company’s books and records.

       

      (e)    If any
law or regulation requires the Company to take any action with respect to the
Shares specified in such notice, the time for delivery thereof, which would
otherwise be as promptly as possible, shall be postponed for the period of time
necessary to take such action.

       

      
        	
                8.  

              	
                Assignability.

              


      

       

      Unless otherwise permitted by the
Committee, no Option or interest therein shall be transferable by the Optionee
otherwise than by will, the applicable laws of descent and distribution, or a
domestic relations order.  Any person to whom an Option is transferred
in accordance with this Section 8 is referred to herein as a “Permitted
Transferee”.

       

      
        	
                9.  

              	
                Adjustments.

              


      

       

      (a)    In the
event of any subdivision or consolidation of outstanding Stock of the Company,
declaration of a dividend payable in shares of Stock of the Company or other
stock split, then (i) the number of shares of Stock reserved under this Plan,
(ii) the number of shares of Stock covered by outstanding Options, and (iii) the
purchase price per share of Stock in respect of such Options shall each be
proportionately adjusted to reflect such transaction. In the event of any other
recapitalization or capital reorganization of the Company, any consolidation or
merger of the Company with another corporation or entity, the adoption by the
Company of any plan of exchange affecting shares of Stock of the Company or any
distribution to holders of shares of Stock of the Company of securities or
property (other than normal cash dividends or dividends payable in shares of
Stock of the Company), the Board shall make appropriate adjustments to (i) the
number of Shares reserved under this Plan, (ii) the number of Shares covered by
outstanding Options, and (iii) the purchase price per share in respect of such
Options to reflect such transaction in accordance with Treasury Regulation
Section 1.409A-1(b)(5)(v)(D); provided that such adjustments under (ii) and
(iii) shall only be such as are necessary to maintain the proportionate interest
of the holders of the Options and preserve, without increasing, the value of
such Options. In the event of a corporate merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation, the Board shall be
authorized (x) to assume under the Plan previously issued compensatory options,
or to substitute new Options for previously issued compensatory Options as part
of such adjustment or (y) to cancel Options and give the Participants who are
the holders of such Options notice and opportunity to exercise for 30 days prior
to such cancellation.

       

      (b)    Except as
is otherwise expressly provided herein, the issue by the Company of shares of
its capital stock of any class, or securities convertible into shares of capital
stock of any class, either in connection with a direct sale or upon the exercise
of rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number of or purchase price of Shares. Furthermore, the presence of
outstanding Options granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company’s capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issue by the Company of debt securities or preferred or
preference stock (whether or not such issue is prior to, on a party with or
junior to the Stock); (iv) the dissolution or liquidation of the Company; (v)
any sale, transfer or assignment of all or any part of the assets or business of
the Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.

       

      (c)    Notwithstanding
anything to the contrary above, a dissolution or liquidation of the Company, a
merger (other than a merger effecting a reincorporation of the Company in
another state) or consolidation in which the Company is not the surviving
corporation (or survives only as a subsidiary of another corporation in a
transaction in which the stockholders of the parent of the Company and their
proportionate interests therein

       

      
        
           


        

        
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      immediately
after the transaction are not substantially identical to the stockholders of the
Company and their proportionate interests therein immediately prior to the
transaction), a transaction in which another corporation becomes the owner of
50% or more of the total combined voting power of all classes of stock of the
Company, or a change in control (as specified below), shall cause every Option
then outstanding to become exercisable in full immediately prior to such
dissolution, liquidation, merger, consolidation, transaction, or change in
control, to the extent not theretofore exercised, without regard to the
determination as to the periods and installments of exercisability contained in
the Agreements if (and only if) such Options have not at that time expired or
been terminated. For purposes of this paragraph, a change in control shall be
deemed to have taken place if: a third person, including a “group” as defined in
Section 13(d)(3) of the Act, becomes the beneficial owner of shares of the
Company having fifty percent (50%) or more of the total number of votes that may
be cast for the election of directors of the Company; or as a result of, or in
connection with, a contested election for directors, the persons who were
directors of the Company immediately before such election shall cease to
constitute a majority of the Board.  Notwithstanding the foregoing
provisions of this paragraph:

       

          (i)    an event,
transaction, or corporate action shall not have the effect of accelerating the
exercisability of Options if:  (A) persons who were the directors of
the Company and persons who were the executive officers of the Company as of six
months prior to such event immediately after such event constitute a majority of
the directors and constitute a majority of executive officers, respectively,
for, and own in the aggregate at least ten percent of the voting securities or
equity interests of, the Company or the surviving or resulting corporation or
the parent of such surviving or resulting corporation; and (B) if the Company is
not the surviving or resulting corporation, such surviving or resulting
corporation or parent of such surviving or resulting corporation substitutes
substantially identical options for any outstanding Options; and

       

          (ii)    in the
event of any dissolution, merger, consolidation, transaction, or change in
control, the Board may completely satisfy and extinguish all obligations of the
Company and its Affiliates with respect to any Option outstanding on the date of
such event by delivering to the Optionee cash in an amount equal to the
difference between the aggregate purchase price for Shares under the Option and
the Fair Market Value of such Shares on the date of such event, such payment to
be made within a reasonable time after such event.

       

      
        	
                10.  

              	
                Tax
      Withholding.

              


      

       

      The
Company shall have the right to deduct applicable taxes from any Option and
withhold, at the time of delivery of Shares under the Plan, an appropriate
number of Shares for payment of taxes required by law or to take such other
action as may be necessary in the opinion of the Company to satisfy all
obligations for withholding of such taxes.  The Committee may also
permit withholding to be satisfied by the transfer to the Company of Stock
theretofore owned by the holder of the Option with respect to which withholding
is required.  If Shares or Stock are used to satisfy tax withholding,
such Shares or Stock shall be valued based on the Fair Market Value when the tax
withholding is required to be made.

       

      
        	
                11.  

              	
                Effective Date of
      Plan.

              


      

       

      The
effective date of the Plan shall be February 19, 1998.  No Option
shall be granted pursuant to the Plan after May 13, 2005.

       

      
        	
                12.  

              	
                Amendment,
      Modification, Suspension or
Termination.

              


      

       

      The Board
may amend, modify, suspend or terminate the Plan at any time for the purpose of
meeting or addressing any changes in legal requirements or for any other purpose
permitted by law, except that no amendment, modification, suspension or
termination shall be made (i) that would impair the rights of any Optionee under
any Option previously granted to such Optionee without such Optionee’s written
consent,

       

      
        
          
          

        

        
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      (ii) prior
to approval by the Company’s shareholders if such approval is then required
thereby, or (iii) that would reduce the purchase price of any outstanding
Option, other than as provided by Section 9(a)(ii).

       

      
        	
                13.  

              	
                Requirements
      of Law.

              


      

       

      (a)    The Plan,
and the granting and exercise of Options hereunder, and the obligation of the
Company to sell and deliver shares under such Options, shall be subject to all
applicable laws, rules and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be
required.

       

      (b)    Nothing
herein or in any Agreement executed or Option granted hereunder shall require
the Company to deliver any Shares upon exercise of an Option if such delivery
would, in the opinion of counsel for the Company, constitute a violation of the
Securities Act of 1933, as amended, or any similar or superseding statute or
statutes, or any other applicable statute or regulation, as then in effect. Upon
the exercise of an Option or portion or part thereof, the Optionee may be
required to give to the Company satisfactory evidence that he is acquiring such
Shares for the purpose of investment only and not with a view to their
distribution; provided, however, if or to the extent that the Shares subject to
the Option shall be included in a registration statement filed by the Company,
or one of its Affiliates, such investment representation shall be
abrogated.

       

      
        	
                14.  

              	
                Miscellaneous.

              


      

       

      (a)    Nothing
contained in the Plan shall confer upon any Optionee the right to continue in
the employ of the Company or any Affiliate, or interfere in any way with the
rights of the Company or any Affiliate to terminate his employment at any
time.

       

      (b)    Any
payment of cash or any delivery of Shares to the Optionee, or to an Optionee’s
Permitted Transferee, in accordance with the provisions hereof, shall, to the
extent thereof, be in full satisfaction of all claims of such person with
respect to the Option being exercised (or portion thereof).  The
Committee may require any Optionee, or Permitted Transferee, as a condition
precedent to such payment or delivery, to execute a release and receipt therefor
in such form as it shall determine.

       

      (c)    Neither
the Committee nor the Company guarantees the Shares from loss or
depreciation.

       

      (d)    Records
of the Company and its Affiliates regarding an individual’s period of
employment, termination of employment and the reason therefor, leaves of
absence, re-employment and other matters shall be conclusive for all purposes
hereunder, unless determined by the Committee to be incorrect in its sole and
absolute discretion.

       

      (e)    The
Company assumes no obligation or responsibility to an Optionee or any Permitted
Transferee for any act of, or failure to act on the part of, the
Committee.

       

      (f)    If any
provision of the Plan is held to be illegal or invalid for any reason, the
illegality or invalidity shall not affect the remaining provisions of the Plan,
but such provision shall be fully severable and the Plan shall be construed and
enforced as if the illegal or invalid provision had never been included
herein.

       

      (g)    The
titles and headings of Sections are included for convenience of reference only
and are not to be considered in construction of the provisions
hereof.

       

      (h)    All
questions arising with respect to the provisions of the Plan shall be determined
by application of the laws of the State of Nevada except to the extent Nevada
law is preempted by federal law. The obligation of the Company to sell and
deliver Shares hereunder is subject to applicable laws and to the

       

      
        
          
          

        

        
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      approval
of any governmental authority required in connection with the authorization,
issuance, sale, or delivery of such Shares.

       

      (i)    Words
used in the masculine shall apply to the feminine where applicable, and wherever
the context of the Plan dictates, the plural shall be read as the singular and
the singular as the plural.


      
        
           


        

        
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      Resolution
related to stock options adopted by the Compensation and Management Development
Committee of the Board of Directors of Centex Corporation on May 13,
2004.

       

          RESOLVED,
that all non-qualified options held by Full Time Employees to acquire common
stock of Centex Corporation awarded under any of the stock plans listed below,
whether awarded before or after May 13, 2004, shall be subject to the
following from and after May 13, 2004:

       

      
        	 	
                1. 

              	

                If
      an optionee shall voluntarily terminate employment and at such time he or
      she is age 55 or older, has at least 10 Years of Service and the sum of
      age and Years of Service equals at least 70, then all non-qualified
      options held by him or her shall immediately vest upon the termination of
      employment (“Vested Retirement”).

                 

              
	 	
                2. 

              	

                All
      rights to exercise such vested options will terminate 12 months following
      the date of such Vested Retirement.  However, to the extent that
      an option agreement provides a longer time to exercise following voluntary
      termination of employment, then such agreement will control.

                 

              
	 	
                3. 

              	
                 As
      used herein: “Full Time Employee” means a person actively and regularly
      engaged in work at least 40 hours a week; and “Years of Service” means an
      optionee’s years of employment with Centex Corporation or any of its
      Affiliates.  An optionee shall be credited with a Year of
      Service on each anniversary of the date on which he or she was first
      employed by Centex Corporation or its Affiliate, provided that the
      optionee continues to be employed by such employer on such anniversary
      date.

                 

              
	 	
                4.  

              	
                The
      stock plans covered are:

              
	 	 	 
	 	 	 ●    Centex
      Corporation Amended and Restated 1987 Stock Option
      Plan
	 	 	 
	 	 	 ●    Seventh Amended and
      Restated 1998 Centex Corporation Employee Non-Qualified Stock Option
      Plan
	 	 	 
	 	 	 ●   Amended and
      Restated Centex Corporation 2001 Stock
      Plan
	 	 	 
	 	 	 ●    Amended and
      Restated Centex Corporation 2003 Equity Incentive
      Plan


      

       

           FURTHER RESOLVED, that the
appropriate officers of the Corporation are hereby directed to take all steps
that they deem necessary or appropriate to communicate the substance of the
foregoing resolution to option holders who are affected and, where they deem
necessary, to document the substance of this resolution by way of amendments to
the stock plans and to existing option agreements.


      
        
           


        

        
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