Ex-10.33(a) Amendment to Employment Agreement



 





10.33(a)




AMENDMENT TO

EMPLOYMENT AGREEMENT




          This Amendment to Employment Agreement (this “Amendment”), made this 4th day of August, 2006
is by and between Technical Olympic USA, Inc., a Delaware corporation (the “Company”), and George
Stengos, an individual (the “Executive”).




BACKGROUND




          The Company and the Executive previously entered into the Employment Agreement, including
Attachments A and B thereto (together the “Agreement”), effective June 1, 2006. The Company and
the Executive mutually desire to amend the Agreement as set forth below.




AGREEMENT




          Now, therefore, in consideration of the facts, mutual promises, and covenants contained herein
and intending to be legally bound hereby, the Company and the Executive agree as follows:



1. Section 4.3 of the Agreement shall be amended by deleting the last sentence thereof and adding
to the end of such section the following:




     In the event of Employer’s termination of Employee without cause other than within 60
Business Days of a Change of Control, Employer shall also be obligated to pay the Employee or
Employee’s estate, as the case may be, the salary amounts otherwise payable under this Agreement
for the remaining term. In the event of a termination by the Employee or the Employer within 60
Business Days of a Change of Control, the Employee shall be entitled to receive from the Employer a
payment equal to three times the Employee’s base salary as set forth in Section 3.1 plus three
times the bonus, if any, paid to the Employee in the prior fiscal year pursuant to Section 3.2.
This payment shall be payable to the Employee in accordance with Employer’s normal payroll
practices for the remaining term of the Employment Period, as if the Employee remained actively
employed by Employer, provided, however, at Employer’s discretion, some or all of such payments may
be paid to the Employee at an earlier date.


2. Exhibit A of the Agreement shall be amended by adding the following definitions following the
definition of “Business Day”:




          “Change of Control” means the occurrence of any of the following events, each of which shall
be determined independently of the others:




     (a) any “Person” (as defined below) becomes a “beneficial owner” (as such term is used in Rule
13d-3 promulgated under the Exchange Act) of forty percent (40%) or more of the stock of any member
of the Consolidated Group (as defined below) entitled to vote in the election of directors. For
purposes of this Exhibit A, the term “Person” is used as



 









 







such term is used in Sections 13(d) and
14(d) of the Exchange Act; provided, however that the term shall not include any member of the
Consolidated Group, any trustee or other fiduciary holding securities under an employee benefit
plan of any member of the Consolidated Group, or any corporation owned, directly or indirectly, by
the shareholders of any member of the Consolidated Group;



     (b) shareholders of any member of the Consolidated Group adopt a plan of complete or
substantial (eighty-five percent (85%) or more) liquidation or an agreement providing for the
distribution of all or substantially all of the assets of such member;



     (c) any member of the Consolidated Group is party to a merger, consolidation, other form of
business combination or a sale of all or substantially all (eighty-five percent (85%) or more) of
its assets, unless the business of such member is continued following any such transaction by a
resulting entity (which may be, but need not be, such member) and the shareholders of such member
immediately prior to such transaction (the “Prior Shareholders”) hold, directly or indirectly, at
least forty percent (40%) of the voting power of the resulting entity (there being excluded from
the voting power held by the Prior Shareholders, but not from the total voting power of the
resulting entity, any voting power received by Affiliates of a party to the transaction (other than
such member) in their capacities as shareholders of such member); provided, however, that a merger
or consolidation effected to implement a recapitalization of such member (or similar transaction)
in which no Person acquires more than thirty percent (30%) of the combined voting power of such
member’s then outstanding securities shall not constitute a Change in Control; or



          (d) any member of the Consolidated Group is a subject of a “Rule 13e-3 transaction” as that
term is defined in Exchange Act Rule 13e-3, and the first purchase has been made pursuant to such
transaction.



Notwithstanding the foregoing, if, immediately after the occurrence of any event enumerated above,
the Continuing Directors control the majority of the Board of Directors of the Company (or, in the
case of any merger or combination in which the Company is not the surviving entity, continue to
constitute a majority of the board of directors of such successor entity), such event shall not
constitute a Change of Control for purposes of this Agreement until such time as the Continuing
Directors no longer constitute a majority of the Board of Directors of the Company (or the
successor entity, if applicable). “Continuing Directors” for this purpose means the members of the
Board of Directors of the Company on the Effective Date, provided that any person becoming a member
of the Board of Directors of the Company subsequent to such date whose election or nomination for
election was supported by a majority of the directors who at the time of the election or nomination
for election comprised the Continuing Directors shall be considered to be a Continuing Director.



“Consolidated Group” shall mean (i) the group of companies composed of Technical Olympic
S.A. or the Company, and (ii) any successor or surviving company of any of the foregoing entities.




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3. All other provisions of the Agreement remain unchanged and in full force and effect.




          IN WITNESS WHEREOF, the parties have executed and delivered this Agreement effective for all
purposes as of the date first written above.




	 	 	 	 	 	 	 
	 	 	Technical Olympic USA, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Antonio B. Mon
 

Name: Antonio B. Mon
	 	 
	 

	 	 	 	Title: President & CEO	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ George Stengos	 	 
	 	 	 	 	 
	 	 	George Stengos	 	 






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