Form of Associate Non-Qualified Stock Option Agree



 





EXHIBIT 10.28

Technical Olympic USA, Inc.

Annual and Long-Term Incentive Plan




Associate Non-Qualified Stock Option Agreement




     AGREEMENT
made as of               , between Technical Olympic USA, Inc., a Delaware
corporation (the “Company”), and ___(“Employee”).



     To carry out the purposes of the Technical Olympic USA, Inc. Annual and Long-Term Incentive
Plan (the “Plan”), by affording Employee the opportunity to purchase shares of Class A common
stock, par value $.01, (“Stock”) of Technical Olympic USA, Inc. (the “Company”), the Company and
Employee hereby agree as follows:



     1. Grant of Option. The Company hereby irrevocably grants to Employee the right and
option (“Option”) to purchase all or any part of an aggregate of ___shares of Stock on the
terms and conditions set forth herein and in the Plan, which Plan is incorporated herein by
reference as a part of this Agreement. In the event of any conflict between the terms of this
Agreement and the Plan, the Plan shall control. Capitalized terms used but not defined in this
Agreement shall have the meaning attributed to such terms under the Plan, unless the context
requires otherwise.



     2. Purchase Price; Vesting and Exercise. The purchase price per share of Stock
purchased pursuant to the exercise of this Option and vesting of the Option and exercise rights
shall be as set forth on the following schedule:



	 	 	 	 	 	 	 	 	 
	No. of Shares	 	Vesting/Exercise Date	 	 	Share Purchase Price	 
	1/5 of total grant
	 	March 3, 2005	 	 	$32.34	 
	1/5 of total grant
	 	March 3, 2006	 	 	$35.57	 
	1/5 of total grant
	 	March 3, 2007	 	 	$39.13	 
	1/5 of total grant
	 	March 3, 2008	 	 	$43.04	 
	1/5 of total grant
	 	March 3, 2009	 	 	$47.34	 






     Employee may exercise Option rights on or after the vesting date in accordance with the terms
of this Agreement. Exercise of Option rights shall be by written notice to the Company at its
principal executive office addressed to the attention of its Secretary (or such other officer or
employee of the Company as the Company may designate from time to time).



     Notwithstanding the above schedule, upon the occurrence of the following events, this Option
shall become exercisable as provided below:




     (a) If Employee’s employment with the Company terminates for any reason other than
termination as provided in (b) below, this Option may be exercised at any time during the
six (6) month period following such termination, by Employee or by Employee’s guardian or
legal representative (or by Employee’s estate or the person who



 









 






acquires this Option by will or the laws of descent and distribution or otherwise by
reason of the death of Employee if Employee dies during such six (6) month period), but only
as to the vested number of shares of Stock, if any, that Employee was entitled to purchase
hereunder as of the date Employee’s employment so terminates.




     (b) If Employee’s employment with the Company is terminated by the Company for cause
(in accordance with Company policy or as provided by Employee’s employment agreement, if
any) or by the Employee for any reason (other than a permitted reason as set forth in
Employee’s employment agreement, if applicable), this Option, to the extent vested on the
date of termination, may be exercised, at any time during the 90-day period following such
termination, by Employee or by Employee’s guardian or legal representative (or by Employee’s
estate or the person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Employee if Employee dies during such
90-day period), but in each case only as to the vested number of shares of Stock, if any,
that Employee was entitled to purchase hereunder as of the date Employee’s employment so
terminates.




     (c) Notwithstanding the foregoing, there is no minimum or maximum number of shares of
Stock that must be purchased by Employee upon exercise of this Option. Instead, Employee
may, at any time and from time to time, purchase any number of shares of Stock that are then
vested and exercisable according to the provisions of this Agreement.




     (d) Notwithstanding the foregoing, this Option shall not be exercisable in any event
after the expiration of 10 years from the date of grant hereof.



     The purchase price of the shares of Stock as to which this Option is exercised shall be paid
in full at the time of exercise (a) in cash (including by check acceptable to the Company), (b) if
the shares are readily tradable on a national securities market or exchange, through a “cashless
broker exercise” procedure in accordance with a program established by the Company, or (c) any
combination of the foregoing. No fraction of a share shall be issued by the Company upon exercise
of an Option. Unless and until a certificate or certificates representing such shares shall have
been issued by the Company to Employee, Employee (or the person permitted to exercise this Option
in the event of Employee’s death) shall not be or have any of the rights or privileges of a
shareholder of the Company with respect to shares acquirable upon an exercise of this Option.



     3. Withholding of Tax. To the extent that the exercise of this Option or the
disposition of shares acquired by exercise of this Option results in wages to Employee for federal,
state or local tax purposes, Employee shall deliver to the Company at the time of such exercise or
disposition such amount of money, if any, as the Company may require to meet its minimum
withholding obligations under applicable tax laws or regulations. No exercise of this Option shall
be effective until Employee (or the person entitled to exercise this Option, as applicable) has
made arrangements approved by the Company to satisfy all applicable minimum tax withholding
requirements of the Company.



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     Employee agrees that the shares which Employee may acquire by exercising this Option will not
be sold or otherwise disposed of in any manner which would constitute a violation of any applicable
federal or state securities laws. Employee also agrees that (i) the certificates representing the
shares purchased under this Option may bear such legend or legends as the Committee deems
appropriate in order to assure compliance with applicable securities laws, (ii) the Company may
refuse to register the transfer of the shares purchased under this Option on the stock transfer
records of the Company if such proposed transfer would in the opinion of counsel satisfactory to
the Company constitute a violation of any applicable securities law, and (iii) the Company may give
related instructions to its transfer agent, if any, to stop registration of the transfer of the
shares purchased under this Option.



     4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
any successors to the Company and all persons lawfully claiming under Employee.



     5. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof, and contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to the Option granted
hereby. Without limiting the scope of the preceding sentence, all prior understandings and
agreements, if any, among the parties hereto relating to the subject matter hereof are hereby null
and void and of no further force or effect. Any modification of this Agreement shall be effective
only if it is in writing and signed by both Employee and an authorized officer of the Company.



     6. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to conflicts of laws principles thereof.



     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer, and Employee has executed this Agreement, all effective as of the day and year
first above written.


	 	 	 	 	 
	 	TECHNICAL OLYMPIC USA, INC.

 	 
	 	By:  	 	 
	 
	 	 	Name:  	
 
	 	 	Title:  	




 	 
	 



	 	 	 	 	 
	 	EMPLOYEE






 	 
	 	 	 
	 	 	 
	 	 	 
	 





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