IndyMac Bancorp Inc. Contracts
Sample Business Contracts
1998 Stock Incentive Plan - INMC Mortgage Holdings Inc. d/b/a IndyMac Mortgage Holdings Inc.
INMC MORTGAGE HOLDINGS, INC.
1998 STOCK INCENTIVE PLAN
1. Purpose of Plan. The purpose of this 1998 Stock Incentive Plan
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("Plan") of INMC Mortgage Holdings, Inc. (d.b.a. IndyMac Mortgage Holdings,
Inc.), formerly known as CWM Mortgage Holdings, Inc., a Delaware corporation
(the "Company"), is to enable the Company, IndyMac, Inc. ("IndyMac") and any of
their respective subsidiaries or affiliates to attract, retain and motivate
their employees, consultants, agents, officers and directors by providing
incentives related to equity interests in and the financial performance of the
Company.
2. Persons Eligible Under Plan. Any person, including any director of
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the Company or IndyMac, who is an officer or employee of the Company, IndyMac,
or any of their respective subsidiaries or affiliates or an individual who
performs services for the Company, IndyMac, or any of their respective
subsidiaries or affiliates of a nature similar to those performed by officers or
employees, such as consultants and agents, and any non-employee director of
IndyMac who is not also a member of the Board (as hereinafter defined) (any of
the foregoing, an "Employee") shall be eligible to be considered for the grant
of an Award (as defined in Section 5 below) or Awards under Section 5 of this
Plan. No member of the Board of Directors of the Company (the "Board") who is
not an officer or employee of the Company, IndyMac, or any of their respective
subsidiaries or affiliates (a "Non-Employee Director") shall be eligible to
receive any Awards under this Plan, except for nonqualified stock options
granted automatically under the provisions of Section 10 of this Plan ("Director
Options").
3. Stock Subject to Plan.
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(a) ISO Limit. The maximum number of Common Shares, $0.01 par value
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per share, of the Company (the "Common Shares") that may be issued pursuant
to options intended to qualify as incentive stock options ("Incentive Stock
Options") under Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), granted under this Plan is 6,400,000, and provided
further that, except as otherwise provided herein, the aggregate Fair
Market Value (as defined in Section 10) of Common Shares with respect to
which options intended to qualify as Incentive Stock Options are
exercisable for the first time by any individual during any calendar year
shall not exceed the limit, if any, set forth in Section 422(d) of the Code
or any successor provision thereto. For purposes of this subsection (a),
the Fair Market Value (as defined in Section 10) of any Common Shares shall
be determined as of the time the Incentive Stock Option with respect to the
Common Shares is granted. Pursuant to Section 422(a)(2) of the Code, only
employees (as that term is used in Section 422(a)(2) of the Code) of the
Company or the Company's wholly-owned subsidiaries may receive options
intended to qualify as Incentive Stock Options under this Plan.
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(b) Aggregate/Individual Share Limit.
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(i) The maximum number of Common Shares that may be issued
pursuant to all Awards (including Incentive Stock Options, as set
forth in subsection (a) above) granted under this Plan, other than
Common Shares that are issued pursuant to Awards and subsequently
reacquired by the Company pursuant to the terms and conditions of such
Awards ("Reacquired Common Shares"), is 6,000,000, subject to
adjustment as provided in or pursuant to Section 6 or 10 hereof (such
maximum number, as so adjusted, shall be referred to as the "Share
Limit").
(ii) Notwithstanding anything contained herein to the contrary,
the aggregate number of Common Shares subject to options, stock
appreciation rights, and awards of restricted stock granted during any
calendar year to any individual shall be limited to 500,000.
(c) Share Reservation. No Award may be granted under this Plan
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unless, on the date of grant, the sum of (i) the maximum number of Common
Shares issuable at any time pursuant to such Award, plus (ii) the number of
Common Shares that have previously been issued pursuant to Awards granted
under this Plan, other than Reacquired Common Shares available for reissue,
plus (iii) the maximum number of Common Shares that may be issued at any
time after such date of grant pursuant to Awards that are outstanding on
such date, does not exceed the Share Limit. Common Shares distributed
under the Plan may be treasury shares, authorized but unissued shares or
shares purchased in the open market for this purpose.
(d) Reissue of Awards and Common Shares. Awards payable in cash or
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Common Shares that are forfeited or for any reason are not so paid under
this Plan, as well as Common Shares subject to Awards that expire or for
any reason are terminated and are not issued or constitute Reacquired
Common Shares, shall again be available for subsequent Awards under the
Plan.
(e) Fractional Shares/Minimum Issue. Fractional share interests shall
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be disregarded, but may be accumulated. No fewer than 100 Common Shares
may be purchased on exercise of any option granted under this Plan
("Option") at one time unless the number purchased is the total number at
the time available for purchase under the Option.
(f) Privileges of Stock Ownership. Except as otherwise expressly
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authorized by this Plan, an Award recipient shall not be entitled to any
privilege of stock ownership as to any Common Shares subject to an Option
granted under this Plan prior to the satisfaction of all conditions to the
valid exercise of the Option.
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4. Administration of Plan.
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(a) The Committee. Except for the provisions of Section 10 (which to
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the maximum extent feasible shall be self-effectuating), this Plan shall be
administered by a committee of the Board (the "Committee") consisting of
two or more directors, each of whom is a "Non-Employee Director," as such
term is defined in Rule 16b-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and an "Outside Director," as such term is
defined for purposes of Section 162(m) of the Code.
(b) Powers of the Committee. Subject to the express provisions of
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this Plan, the Committee shall be authorized and empowered to do all things
necessary or desirable in connection with the administration of this Plan
including, without limitation, the following:
(i) adopt, amend and rescind rules and regulations relating to
this Plan;
(ii) determine which persons meet the requirements of Section 2
hereof for eligibility under this Plan and to which of such eligible
persons, if any, Awards will be granted hereunder;
(iii) grant Awards to eligible persons and determine the terms
and conditions thereof, including, but not limited to, the number of
Common Shares issuable pursuant thereto, the time not more than ten
(10) years after the date of an Award at which time the Award shall
expire or (if not vested) terminate, and the conditions upon which
Awards become exercisable or vest or shall expire or terminate, and
the consideration, if any, to be paid upon receipt, exercise or
vesting of Awards;
(iv) determine whether, and the extent to which, adjustments are
required pursuant to Section 6 hereof;
(v) interpret and construe this Plan and the terms and
conditions of any Award granted under Section 5, whether before or
after the date set forth in Section 7; and
(vi) determine the circumstances under which, consistent with
the provisions of Section 7, any outstanding Award under Section 5 may
be amended;
which authority (except as to clauses (ii) and (iii) above) shall remain in
effect so long as any Award remains outstanding under this Plan.
(c) Specific Committee Responsibility and Discretion Regarding Awards.
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Subject to the express provisions of this Plan, the Committee, in its sole
and absolute discretion, shall determine all of the terms and conditions of
each Award granted under
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Section 5 of this Plan, which terms and conditions may include, subject to
such limitations as the Committee may from time to time impose, among other
things, provisions that:
(i) permit the recipient of such Award, including any recipient
who is a director or officer of the Company, to pay the purchase price
of the Common Shares or other property issuable pursuant to such
Award, or such recipient's tax withholding obligation upon such
issuance or in respect of such Award or Shares, in whole or in part,
by any one or more of the following:
(A) the delivery of previously owned shares of capital
stock of the Company (including shares acquired as or pursuant to
Awards) then having been owned by the recipient for at least six
(6) months (or such other period required under applicable law)
or the delivery of other property, or
(B) the delivery of a promissory note, under any applicable
financing plan or on such other terms and conditions, as in
either case authorized by the Committee, consistent with
applicable law;
(ii) accelerate the receipt of benefits pursuant to such Award
upon the occurrence of specified events, including, without
limitation, a change of control of the Company, an acquisition of a
specified percentage of the voting power of the Company, the
dissolution or liquidation of the Company, a sale of substantially all
of the property and assets of the Company or an event of the type
described in Section 6 hereof, or pursuant to the provisions of an
employment contract not inconsistent with the terms of this Plan, or
in other circumstances or upon the occurrence of other events as
deemed appropriate by the Committee;
(iii) qualify such Award as an Incentive Stock Option;
(iv) extend the exercisability or term of any or all such
outstanding Awards, change the price of any or all such outstanding
Awards or otherwise change previously imposed terms and conditions, in
the specified events described in clause (ii) above or in other
circumstances or upon the occurrence of other events as deemed
appropriate by the Committee, in each case subject to Section 7;
(v) authorize the conversion, succession or substitution of
outstanding Awards under Section 5 upon the occurrence of any event of
the type described in Section 6, or in other circumstances or upon the
occurrence of other events as deemed appropriate by the Committee;
and/or
(vi) provide for automatic grants of Awards or successive
Awards.
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(d) Binding Determinations. Any action taken by, or inaction of, the
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Company, the Board or the Committee relating or pursuant to this Plan shall
be within the absolute discretion of that entity or body and shall be
conclusive and binding upon all persons. No member of the Board or officer
of the Company shall be liable for any such action or inaction of the
entity or body, of another person or, except in circumstances involving bad
faith, of himself or herself.
(e) Reliance on Experts. In making any determination or in taking or
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not taking any action under this Plan, the Board and the Committee may
obtain and may rely upon the advice of experts, including professional
advisors to the Company. No director, officer or agent of the Company
shall be liable for any such action or determination taken or made or
omitted in good faith.
(f) Delegation. The Committee may delegate ministerial, non-
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discretionary functions to individuals who are officers or employees of the
Company. The Committee also may delegate to certain officer(s) of the
Company (i) the authority to grant Awards pursuant to Section 5 of the
Plan, provided that such delegation is set forth in writing and includes
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all applicable limitations and parameters to such Awards, and provided
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further that such Awards are subsequently ratified by the Committee; and
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(ii) with respect to unvested Awards that are Incentive Stock Options that
have been granted to an employee of the Company (other than an employee who
is subject to Section 16 of the Exchange Act), the authority to accelerate
the exercisability of such Incentive Stock Options to allow them to be
exercised within the three-month period commencing upon the date that the
employee's employment by the Company terminates by reason of the transfer
of such employee to employment by IndyMac, provided, however, that to the
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extent (A) such accelerated Options are not exercised prior to the
expiration of such three-month period, or (B) the acceleration of the
exercisability of such Options causes such Options to fail to satisfy the
requirements of Section 422(d) of the Code, such Options shall
automatically be converted into non-qualified Options and shall continue to
be exercisable in accordance with their terms (as accelerated Options)
until they expire or otherwise terminate under the terms of the Plan.
5. Awards.
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(a) Types of Awards. The Committee, on behalf of the Company, is
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authorized under this Plan to enter into any type of arrangement with an
Employee that is not inconsistent with the provisions of this Plan and that
by its terms, involves or might involve the issuance of (i) Common Shares,
(ii) an option, warrant, convertible security, stock appreciation right or
similar right with an exercise or conversion privilege at a fixed or
variable price related to the Common Shares or other equity securities of
the Company and/or the passage of time, the occurrence of one or more
events, or the satisfaction of performance criteria or other conditions, or
any combination of these variables, or any similar security contemplated by
subsection (b) below, or (iii) any similar security with a value derived
from the value of the Common Shares or other equity securities of the
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Company, all of which may or may not involve the payment of cash
consideration, subject to subsection (e) below. The authorization of any
such arrangement (including any benefits described in Section 5(e)) is
referred to herein as the grant of an "Award". The date of grant may be at
or after (but not before) the date the Committee authorizes the Award. All
Awards shall be evidenced by a writing with a schedule memorializing the
grant of the Award to the recipient and setting forth certain specifics
with respect to the terms and conditions of the Award ("Award Memorandum").
(b) Form of Awards. Awards are not restricted to any specified form
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or structure and may include, without limitation, sales or bonuses of
stock, restricted stock, performance restricted stock, stock options,
reload stock options, stock purchase warrants, other rights to acquire
stock, securities convertible into or redeemable for stock, stock
appreciation rights, limited stock appreciation rights, phantom stock,
dividend equivalents, performance units or performance shares, and an Award
may consist of one such security or benefit, or two or more of them in any
combination or alternative. In addition, any Award that is intended to
qualify as an Incentive Stock Option will automatically be converted into a
non-qualified stock option to the extent that such Award does not satisfy
any applicable requirement under Section 422 of the Code.
(c) Restricted Stock Awards. If expressly provided by the Committee,
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and without limiting subsection (b) above, Awards of restricted Common
Shares ("Restricted Stock") may be made to the holder of any Option, based
upon dividends or distributions that would have been received had the
Common Shares covered by the Option been issued and outstanding on the
applicable dividend record date. The terms and conditions of any such
Awards of Restricted Stock shall be specified in the applicable Award
Memorandum.
(d) Time and Method of Exercise. Awards may be exercised in whole or
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in part at such time or times as shall be determined by the Committee and
set forth in the applicable Award Memorandum. Awards shall be exercised in
accordance with procedures established by the Committee, subject to Section
4(c)(i) and any holding periods required under applicable law.
(e) Price; Consideration; Option Pricing Limit. Common Shares may be
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issued pursuant to an Award for any lawful consideration as determined by
the Committee, including, without limitation, cash, Common Shares (valued
at then Fair Market Value, as defined in Section 10), or services rendered
by the recipient of such Award; provided that no Common Shares shall be
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issued for less than the minimum lawful consideration and no Option which
is intended to be an Incentive Stock Option shall be granted with an
exercise price that is less than the Fair Market Value (as defined in
Section 10) of the underlying Common Shares on the date of grant.
(f) Effect of Termination of Service or Death; Change in Subsidiary
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Status. Subject to Section 4(c)(ii), each Option and all other rights
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thereunder, to the extent not
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exercised (whether or not presently exercisable), shall terminate and
become null and void at such time as the holder of such Option terminates
service as an Employee, except that
(i) if the holder terminates service as an Employee for a
reason other than cause (as determined by the Committee in its sole
discretion), death or permanent and total disability (as defined in
clause (ii) below), the holder may at any time within a period of
three months after such termination exercise such Option to the extent
such Option was exercisable on the date of such termination;
(ii) if the holder terminates service as an Employee by reason
of permanent and total disability (within the meaning of Section
22(e)(3) of the Code), or if the holder becomes permanently and
totally disabled within three months after termination described in
clause (i), the holder may at any time within a period of twelve (12)
months after such termination exercise such Option to the extent such
Option was exercisable on the date of such termination; and
(iii) if the holder terminates service as an Employee by reason
of death, or within three months after a termination described in
clauses (i) or (ii), then such Option may be exercised within a period
of twelve (12) months after the holder's termination of service as an
Employee, to the extent such Option was exercisable on the date of
such termination;
provided, however, that in no event may any such Option be exercised by any
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holder after its expiration date.
Notwithstanding any of the foregoing provisions of this subsection
(f), if the holder of an Option is an Employee of IndyMac or one of its
subsidiaries or affiliates and IndyMac or the Employee ceases to provide
services to the Company, or if the holder of an Option is an Employee of an
entity which is a subsidiary or affiliate of the Company or IndyMac and
such entity ceases to be such a subsidiary or affiliate, such event shall
be deemed for purposes of this subsection (f) to be a termination of the
holder's service as an Employee described in clause (i) above. Absence
from work caused by military service or authorized sick leave shall not be
considered a termination of service as an Employee for purposes of this
subsection (f).
(g) Cash Awards; Loans. The Committee shall have the express
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authority to create, add or include a cash payment or benefit under this
Plan, whether in lieu of, in addition to or as an Award or as a component
of another type of Award, and to make or authorize loans to finance, or to
otherwise accommodate the financing, acquisition or exercise of an Award or
the satisfaction of any related tax liability.
(h) Transfer Restrictions. Unless otherwise permitted in the
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applicable Award Memorandum pursuant to the discretion of the Committee, no
Award granted hereunder
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shall be transferable other than by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order.
(i) Tax Withholding. Upon the issuance of Common Shares, the payment
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of cash or any other taxable event in respect of an Award under this Plan,
such number of shares or amount of cash or other consideration, as the case
may be, otherwise issuable or payable may be reduced by the amount
necessary to satisfy the minimum applicable tax withholding requirements
imposed on the Company, IndyMac or any of their respective subsidiaries or
affiliates in respect of such Award or event, all to the extent and in such
manner as the Committee may determine.
6. Adjustments and Acceleration.
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(a) Adjustments. If (i) the outstanding securities of the class then
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subject to this Plan (the "outstanding shares") (A) are increased,
decreased, exchanged or converted as a result of a stock split
(including a split in the form of a stock dividend), reverse stock
split, recapitalization, or similar event or (B) are exchanged for or
converted into cash, property or a different number or kind of
securities (or if cash, property or securities are distributed in
respect of the outstanding shares), as a result of a reorganization,
merger, consolidation, exchange, recapitalization, restructuring or
reclassification, or (ii) substantially all of the property and assets
of the Company are sold as an entirety, or (iii) the Company is
liquidated and dissolved, then, the Committee (or, in the case of
Director Options, the Board) shall, in such manner and to such extent
(if any) as is equitable and appropriate, make proportionate
adjustments in (x) the number and type of shares or other securities
or cash or other property that may be acquired pursuant to Options and
other Awards previously granted under this Plan (and, where
applicable, the exercise price thereof so as to maintain the same
aggregate exercise price), (y) the maximum number and type of shares
or other securities, cash, or property that may be issued or delivered
pursuant to Options (including Incentive Stock Options and Director
Options) and other Awards thereafter granted under this Plan, and (z)
such other terms as necessarily are affected by such event. In the
case of an extraordinary distribution, merger, reorganization,
consolidation, combination, sale of assets, exchange or spin off, the
Committee (or the Board, in the case of Director Options) may make
provisions for a substitution or exchange of any or all outstanding
Options or other Awards or rights (or for the securities, cash or
property deliverable upon exercise of such outstanding Options or
other Awards or rights), based upon the distribution or consideration
payable to holders of the Common Shares of the Company upon or in
respect of such event.
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(b) Acceleration.
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(i) A "Change in Control" for purposes of this Plan shall mean
the occurrence of any one of the following events:
(A) An acquisition (other than directly from the Company) of
any common stock or other "Voting Securities" (as hereinafter
defined) of the Company by any "Person" (as the term person is
used for purposes of Sections 13(d) or 14(d) of the Exchange Act,
immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 under the Exchange Act) of
twenty five percent (25%) or more of the then outstanding shares
of the Company's common stock or the combined voting power of the
Company's then outstanding Voting Securities; provided, however,
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that in determining whether a Change in Control has occurred,
Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. For purposes
of this Plan, (1) "Voting Securities" shall mean the Company's
outstanding voting securities entitled to vote generally in the
election of directors and (2) a "Non-Control Acquisition" shall
mean an acquisition by (a) an employee benefit plan (or a trust
forming a part thereof) maintained by (x) the Company, (y)
IndyMac or, (z) any corporation or other Person of which a
majority of its voting power or its voting equity securities or
equity interest is owned, directly or indirectly, by the Company
(for purposes of this definition, a "Subsidiary"), (b) the
Company or any of its Subsidiaries, or (c) any Person in
connection with a "Non-Control Transaction" (as hereinafter
defined);
(B) The individuals who as of January 27, 1998 are members
of the Board (the "Incumbent Board") cease for any reason to
constitute at least two-thirds of the members of the Board;
provided, however, that if the election, or nomination for
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election by the Company's common stockholders, of any new
director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this
Plan, be considered as a member of the Incumbent Board; provided
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further, however, that no individual shall be considered a member
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of the Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
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(C) The consummation of: (1) A merger, consolidation or
reorganization involving the Company, unless such
merger, consolidation or reorganization is a "Non-
Control Transaction." A "Non-Control Transaction"
shall mean a merger, consolidation or reorganization of
the Company where: (a) the stockholders of the Company,
immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization,
at least seventy percent (70%) of the combined voting
power of the outstanding Voting Securities of the
corporation resulting from such merger, consolidation
or reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of
the Voting Securities immediately before such merger,
consolidation or reorganization; (b) the individuals
who were members of the Incumbent Board immediately
prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute
at least two-thirds of the members of the board of
directors of the Surviving Corporation, or in the event
that, immediately following the consummation of such
transaction, a corporation beneficially owns, directly
or indirectly, a majority of the Voting Securities of
the Surviving Corporation, the board of directors of
such corporation; and (c) no Person other than (w) the
Company, (x) any Subsidiary, (y) any employee benefit
plan (or any trust forming a part thereof) maintained
by the Company, IndyMac, the Surviving Corporation, or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty-five percent (25%)
or more of the then outstanding Voting Securities or
common stock of the Company, has Beneficial Ownership
of twenty-five percent (25%) or more of the combined
voting power of the Surviving Corporation's then
outstanding Voting Securities or its common stock;
(2) A complete liquidation or dissolution of the
Company, or
(3) The sale or other disposition of all or
substantially all of the assets of the Company to any
Person (other than a transfer to a Subsidiary).
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Notwithstanding the foregoing provisions of this Section 6(b)(i),
a Change in Control shall not be deemed to occur solely because any
Person (the "Subject Person") acquired Beneficial Ownership of more
than the permitted amount of the then outstanding common stock or
Voting Securities as a result of the acquisition of common stock or
Voting Securities by the Company which, by reducing the number of
shares of common stock or Voting Securities then outstanding,
increases the proportional number of shares Beneficially Owned by the
Subject Persons; provided, however, that if a Change in Control would
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occur (but for the operation of this sentence) as a result of the
acquisition of common stock or Voting Securities by the Company, and
after such share acquisition by the Company, the Subject Person
becomes the Beneficial Owner of any additional common stock or Voting
Securities which increases the percentage of the then outstanding
common stock or Voting Securities Beneficially Owned by the Subject
Person, then a Change in Control shall occur.
(ii) Except as otherwise provided in Section 10(j), prior to a
Change in Control, the Committee may determine in respect of Awards
held by Employees that upon or in anticipation of the occurrence of
the Change in Control benefits under Awards shall be accelerated only
for a limited period of time, which period of time shall not be less
than a period of time reasonably necessary to realize the benefits of
such acceleration nor more than one year after the Change in Control.
If such a determination is not made, then (subject to the last
sentence of this clause) upon the occurrence of a Change in Control
and without further action by the Board or the Committee, (A) each
Option and stock appreciation right shall become immediately
exercisable, (B) performance Restricted Stock shall immediately vest
free of restrictions, and (C) each performance share Award shall
become payable to the Employee. The Committee may override the
limitations on acceleration in this Section 6(b)(ii) by express
provision in the Award Memorandum or otherwise, and may accord any
holder of an Award a right to refuse any acceleration, whether
pursuant to the Award Memorandum or otherwise, in such circumstances
as the Committee may approve. Any acceleration of Awards shall comply
with any applicable regulatory and financial accounting requirements,
including without limitation Section 422 of the Code.
(iii) Any Awards that are (or but for a holder's rejection of
acceleration would have been) accelerated under this Section 6 and
that are not exercised or vested prior to a dissolution of the Company
or a reorganization event described in Section 6(a) that the Company
does not survive shall terminate, provided that if provision has been
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made, consistent with the terms hereof, for the substitution, exchange
or other settlement of Awards, such Awards shall be substituted,
exchanged or otherwise settled in accordance with such provision.
(iv) Any Awards that are (or but for the holder's rejection of
the acceleration would have been) accelerated that are not exercised
or vested prior to
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an abandonment or termination of a transaction subject to shareholder
approval that triggered the Change in Control (as evidenced by public
announcement, Board resolution, execution of documents terminating the
transaction, or other action or document objectively confirming such
abandonment or termination), shall be restored to their prior status
(except for the effects of the passage of time) as if no Change in
Control had occurred.
7. Amendment and Termination of Plan.
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(a) No Award shall be granted under this Plan after January 27,
2008. Although Common Shares may be issued after January 27, 2008 pursuant
to Awards granted prior to such date, no Common Shares otherwise shall be
issued under this Plan after such date. Notwithstanding the foregoing, any
Award granted prior to such date may vest or be amended after such date in
any manner that would have been permitted prior to such date, except that
(except as provided herein) no such amendment shall increase the number of
shares subject to or comprising such Award, or extend the final expiration
date of the Award or reduce (below the Fair Market Value (as defined in
Section 10) on the date of the amendment) the exercise price of or under
such Award.
(b) The Board may, without shareholder approval, at any time and from
time to time, suspend, discontinue or amend this Plan in any respect
whatsoever, except that no such amendment shall impair any rights under any
Award theretofore made under the Plan without the consent of the holder of
such Award. Furthermore, and except as and to the extent otherwise
permitted by the provisions hereof, no such amendment shall, without
shareholder approval, cause the Plan to cease to satisfy any applicable
condition of Rule 16b-3 under the Exchange Act or cause any Award under the
Plan to cease to qualify for any applicable exception under Section 162(m)
of the Code.
8. Effective Date of Plan: Shareholder Approval. This Plan shall be
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effective as of January 27, 1998, the date upon which it was approved by the
Board; provided, however, that no Common Shares may be issued under this Plan
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until it has been approved by the affirmative votes of the holders of a majority
of the Common Shares of the Company present, or represented, and entitled to
vote at a meeting duly held in accordance with applicable law.
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9. Legal Issues.
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(a) Compliance and Choice of Law: Severability. This Plan, the
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granting and vesting of Awards under this Plan and the issuance and
delivery of Common Shares and/or the payment of money under this Plan or
under Awards granted hereunder are subject to compliance with all
applicable federal and state laws, rules and regulations (including but not
limited to state and federal securities law and federal margin
requirements) and to such approvals by any listing, regulatory or
governmental authority as may, in the opinion of counsel for the Company,
be necessary or advisable in connection therewith. Any securities
delivered under this Plan shall be subject to such restrictions as the
Company may deem necessary or desirable to assure compliance with all
applicable legal requirements. This Plan, the Awards, all documents
evidencing Awards and all other related documents shall be governed by, and
construed in accordance with, the laws of the State of Delaware. If any
provision shall be held by a court of competent jurisdiction to be invalid
and unenforceable, the remaining provisions of this Plan (subject to
Section 9(b)) shall continue in effect.
(b) Plan Construction. It is the intent of the Company that this Plan
-----------------
and Awards hereunder satisfy and be interpreted in a manner that in the
case of recipients who are or may become persons subject to Section 16 of
the Exchange Act satisfies the applicable requirements of Rule 16b-3 under
the Exchange Act so that such persons will be entitled to the benefits of
Rule 16b-3 or other exemptive rules under Section 16 of the Exchange Act
and will not be subjected to avoidable liability thereunder. If any
provision of this Plan or of any Award would otherwise frustrate or
conflict with the intent expressed above, that provision to the extent
possible shall be interpreted and deemed amended so as to avoid such
conflict, but to the extent of any remaining irreconcilable conflict with
such intent as to such persons in the circumstances, such provision shall
be deemed inoperative.
(c) REIT Qualification.
------------------
(i) It is the intent of the Company that this Plan and Awards
hereunder satisfy and be interpreted in a manner consistent with the
Company's continued status as a "qualified real estate investment
trust" under the Code. If any provision of this Plan or any Award
would otherwise frustrate or conflict with the intent expressed above,
that provision to the extent possible shall be interpreted and deemed
amended so as to avoid such conflict, but to the extent of any
remaining irreconcilable conflict with such intent as to the Company,
such provision shall be deemed inoperative.
(ii) Notwithstanding anything contained herein to the contrary,
no participant may receive any Common Shares upon the grant, exercise
or vesting of an option or right or other Award to the extent it will
cause such person to beneficially or constructively own equity shares
in excess of 9.8% of the equity
13
<PAGE>
shares of the Company. In the event that a participant would be
otherwise entitled to claim or seek to exercise any right which upon
delivery of Common Shares would cause such participant to beneficially
or constructively own equity shares in excess of the ownership limit,
the Company shall have the right, notwithstanding any option or right
previously granted to the participant, to deliver a check or cash to
the participant in lieu thereof.
(d) Non-Exclusivity of Plan. Nothing in this Plan shall limit or be
-----------------------
deemed to limit the authority of the Board or the Committee to grant awards
or authorize any other compensation, with or without reference to the
Common Shares, under any other plan or authority.
10. Non-Employee Director Options
-----------------------------
(a) Participation. Awards relating to the Common Shares authorized
-------------
under this Plan shall be made under this Section 10 only to Non-Employee
Directors.
(b) Certain Definitions. The following definitions shall apply to
-------------------
this Section 10:
(i) "Business Day" shall mean any day, other than Saturday,
Sunday or any statutory holiday in the state of California.
(ii) "Director Option" shall mean an Option granted to a Non-
Employee Director pursuant to this Section 10.
(iii) "Disability" shall mean a "permanent and total disability"
within the meaning of Section 22(e)(3) of the Code.
(iv) "Fair Market Value" on a specified date shall mean (A) if
the Common Shares are listed or admitted to trade on a national
securities exchange, the average of the high and low reported sales
prices of the Common Shares on the Composite Tape on such date, as
published in the Western Edition of The Wall Street Journal, on the
principal national securities exchange on which the Common Shares are
so listed or admitted to trade, or, if there is no trading of the
Shares on such date, then the average of the high and low reported
sales prices of the Common Shares as quoted on such Composite Tape on
the next preceding date on which there was trading in such Shares; (B)
if the Common Shares are not listed or admitted to trade on a national
securities exchange, the average of the high and low reported prices
for the Common Shares on such date, as furnished by the National
Association of Securities Dealers, Inc. ("NASD") through the NASDAQ
National Market Reporting System (or a similar organization, if the
NASD is no longer reporting such information); (C) if the Common
Shares are not listed or admitted to trade on a national securities
exchange and are not
14
<PAGE>
reported on the National Market Reporting System, the arithmetic mean
between the bid and asked prices for the Shares on such date, as
furnished by the NASD or a similar organization; or (D) if the Common
Shares are not listed or admitted to trade on a national securities
exchange nor reported on the National Market Reporting System and if
bid and asked prices for the stock are not furnished by the NASD or a
similar organization, the value as established by the Board at such
time for purposes of this Plan.
(v) "Retirement" shall mean retirement or resignation as a
director after at least five (5) years service as a director.
(c) Annual Awards. On the first Business Day in June in each calendar
-------------
year during the term of the Plan, commencing in June 1998, there shall be
granted automatically (without any action by the Committee or the Board) a
nonqualified stock option (the grant date of which shall be such date in
June) to each Non-Employee Director then in office to purchase the number
of Common Shares equal to 30,000 multiplied by a fraction, the numerator of
which is the earnings per Common Share (on a fully diluted basis, excluding
the one time charge to earnings resulting from the acquisition by the
Company of its manager in June 1997) of the Company for the fiscal year of
the Company ended immediately before the date of grant of the Non-Employee
Director option (as reported in the audited Financial Statements included
in the Company's Annual report on Form 10-K filed with the Securities and
Exchange Commission ("SEC"), but in no event less than zero) (the "EPS
Numerator Amount") and the denominator of which is (i) in 1998, $1.51; and
(ii) in each year after 1998, the greater of (A) $1.79 compounded at a rate
of 15% per year (i.e., in 1999, $2.06; in 2000, $2.37; in 2001, $2.72; in
2002, $3.13), or (B) the EPS Numerator Amount for the fiscal year of the
Company ended immediately before the fiscal year used in determining the
EPS Numerator Amount. The number 30,000 and the specific dollar amounts
herein are subject to adjustment in those events set forth in subsection
(h) below. The formula contained in this Section 10(c) may be amended by
subsequent action of the Board to provide either for an alternative formula
for calculating the number of Common Shares to be awarded annually, or to
provide for the annual award of a fixed number of Common Shares; provided
--------
that, in either case, (i) the number of Common Shares to be awarded
----
annually to Non-Employee Directors under such alternative formula or fixed
number is no greater than that provided for under the formula set forth
herein, and (ii) each Non-Employee Director receives the same number of
Common Shares as every other Non-Employee Director under such alternative
formula or fixed number.
(d) Maximum and Minimum Number of Shares. Notwithstanding anything to
------------------------------------
the contrary contained herein, a Non-Employee Director shall not receive
Options for less than 20,000 nor more than 50,000 Common Shares pursuant to
this Section 10 in any year.
15
<PAGE>
(e) Purchase Price. The exercise price for Shares under each Non-
--------------
Employee Director option shall be equal to 100% of the Fair Market Value of
a Common Share on the date the Director Option is granted. The exercise
price of any option granted under this Section 10 shall be paid in full at
the time of each purchase in cash equivalent or in Common Shares valued at
their Fair Market Value on the date of exercise of such option, or partly
in such shares and partly in cash, provided that any such Common Shares
-------- ----
used in payment shall have been owned by the Non-Employee Director at least
six months prior to the date of exercise.
(f) Option Period and Exercisability. Each Director Option granted
--------------------------------
under this Section 10 shall become fully exercisable, in whole or in part,
on the first anniversary of the grant date. Each option granted under this
Section 10 and all rights or obligations thereunder shall expire on the
earlier of the tenth anniversary of the date of grant or the liquidation or
dissolution of the Company and shall be subject to earlier termination as
provided below.
(g) Termination of Directorship. If a Non-Employee Director's
---------------------------
services as a member of the Board terminate by reason of death, Disability
or Retirement, an option granted pursuant to this Section 10 then held by
such Non-Employee Director shall immediately become and shall remain
exercisable for one year after the date of such termination or until the
expiration of the stated term of such option, whichever first occurs. If a
Non-Employee Director's services as a member of the Board terminate for any
other reason (other than Cause), any option granted pursuant to this
Section 10 which is not then exercisable shall terminate and any such
option which is then exercisable may be exercised for three months after
the date of such termination or until the expiration of the stated term,
which ever first occurs. If a Non-Employee Director is terminated for
Cause, all Director Options granted to such Non-Employee Director shall be
forfeited and shall no longer be exercisable, effective on the date of such
termination for Cause. For purposes of this Section 10, "Cause" shall
mean, with respect to any Non-Employee Director, termination on account of
any act of (i) fraud or intentional misrepresentation, (ii) embezzlement,
misappropriation or conversion of assets or opportunities of the Company or
any affiliate, or (iii) conviction of a felony.
(h) Adjustments. The provisions of this Section 10 and Director
-----------
Options granted hereunder shall be subject to Section 6. If there shall
occur any event described in Section 6(a), then in addition to the matters
contemplated thereby, the Board shall, in such manner and to such extent
(if any) as is appropriate and equitable, proportionately adjust the dollar
amounts set forth elsewhere in this Section 10.
(i) Loans. Subject to the requirements of applicable law, the Board
-----
may authorize loans to Non-Employee Directors to finance the exercise of
Awards; provided, however, that no loan shall be made to any Non-Employee
-------- -------
Director to finance the exercise of an Award made under this Section 10
unless (i) such loan is made pursuant to a full recourse promissory note,
and (ii) such loan, if secured by Common Shares
16
<PAGE>
(whether issuable under the Award in question or otherwise), is made in
compliance with Regulation G of the Federal Reserve Board.
(j) Acceleration Upon a Change in Control. Upon the occurrence of a
-------------------------------------
Change in Control referred to in Section 6(b), each Director Option granted
under this Section 10 shall become immediately exercisable in full subject
to the terms thereof (other than with respect to the Committee's
discretion). To the extent that any Director Option granted under this
Section 10 is not exercised prior to (i) a dissolution of the Company or
(ii) a merger or other corporate event that the Company does not survive,
and no provision is (or consistent with the provisions of Section 9 or 10
can be) made for the assumption, conversion, substitution or exchange of
the option, the Director Option shall terminate upon the occurrence of such
event.
(k) Other Provisions. The provisions of Sections 3(e)-(f), 5(h) and 7
----------------
through 9 are incorporated herein by this reference.
17
<PAGE>
AMENDMENT TO THE 1998 STOCK INCENTIVE PLAN OF
INDYMAC MORTGAGE HOLDINGS, INC.
(Adopted by the Board of Directors on July 21, 1998)
The 1998 Stock Incentive Plan of IndyMac Mortgage Holdings, Inc. is hereby
amended to revise Section 10(b)(iv) so that, as amended, Section 10(b)(iv) shall
read as follows:
"Fair Market Value" on a specified date shall mean (A) if the
Common Shares are listed or admitted to trade on a national securities
exchange, the average of the average of the high and low reported
sales prices of the Common Shares on the Composite Tape, as published
in the Western Edition of The Wall Street Journal, on the ten days
preceding such date on which the Common Shares trade on such principal
national securities exchange; (B) if the Common Shares are not listed
or admitted to trade on a national securities exchange, the average of
the average of the high and low reported prices for the Common Shares
on the ten days preceding such date on which such prices for the
Common Shares are furnished by the National Association of Securities
Dealers, Inc. ("NASD") through the NASDAQ National Market Reporting
System (or a similar organization, if the NASD is no longer reporting
such information); (C) if the Common Shares are not listed or admitted
on a national securities exchange and are not reported on the National
Market Reporting System, the arithmetic mean of the arithmetic mean
between the bid and asked prices for the Common Shares on the ten days
preceding such date on which bid and asked prices for the Common
Shares are furnished by the NASD or a similar organization; or (D) if
the Common Shares are not listed or admitted to trade on a national
securities exchange nor reported on the National Reporting System, and
if bid and asked prices for the Common Shares are not furnished by the
NASD or a similar organization, the value as established by the Board
at such time for purposes of this Plan."
18
<PAGE>
AMENDMENTS TO THE 1998 STOCK INCENTIVE PLAN OF
INDYMAC MORTGAGE HOLDINGS, INC.
(Adopted by the Board of Directors on January 20, 1999)
(1)
The 1998 Stock Incentive Plan of IndyMac Mortgage Holdings, Inc. is
hereby amended to revise Section 10(b)(iv) so that, as amended, Section
10(b)(iv) shall read as follows:
"Fair Market Value" on a specified date shall mean (A) if the
Common Shares are listed or admitted to trade on a national securities
exchange, the average of the high and low reported sales prices of the
Common Shares on the Composite Tape on such date, as published in the
Western Edition of The Wall Street Journal, on the principal national
securities exchange on which the Common Shares are so listed or
admitted to trade, or, if there is no trading of the Shares on such
date, then the average of the high and low reported sales prices of
the Common Shares as quoted on such Composite Tape on the next
preceding date on which there is trading in such Shares; (B) if the
Common Shares are not listed or admitted to trade on a national
securities exchange, the average of the high and low reported prices
for the Common Shares on such date, as furnished by the National
Association of Securities Dealers, Inc. ("NASD") through the NASDAQ
National Market Reporting System (or a similar organization, if the
NASD is no longer reporting such information); (C) if the Common
Shares are not listed or admitted to trade on a national securities
exchange and are not reported on the National Market Reporting System,
the arithmetic mean between the bid and asked prices for the Shares on
such date, as furnished by the NASD or a similar organization; or (D)
if the Common Shares are not listed or admitted to trade on a national
securities exchange nor reported on the National Market Reporting
System and if bid and asked prices for the stock are not furnished by
the NASD or a similar organization, the value as established by the
Board at such time for purposes of this Plan."
19
<PAGE>
AMENDMENTS TO THE 1998 STOCK INCENTIVE PLAN OF
INDYMAC MORTGAGE HOLDINGS, INC.
(Adopted by the Board of Directors on January 20, 1999)
(2)
The 1998 Stock Incentive Plan of IndyMac Mortgage Holdings, Inc. is
hereby amended to revise Section 10(e) so that, as amended, Section 10(e)
shall read as follows:
"The exercise price for Shares under any Director Option shall be
equal to 100% of the Fair Market Value of a Common Share on the date
the Director Option is granted. The exercise price for Shares under
any Director Option may be modified by a separate vote of the members
of the Board who are officers of the Company, as well as the full
Board; provided, that the modified exercise price shall be no less
than 100% of the Fair Market Value of a Common Share on the date the
exercise price of the Director Option is modified. The exercise price
of any option granted under this Section 10 shall be paid in full at
the time of each purchase in cash equivalent or in Common Shares
valued at their Fair Market Value on the date of exercise of such
option, or partly in such shares and partly in cash, provided that any
-------- ----
such Common Shares used in payment shall have been owned by the Non-
Employees Director at least six months prior to the date of exercise."
20
<PAGE>
AMENDMENT TO THE 1998 STOCK INCENTIVE PLAN OF
INDYMAC MORTGAGE HOLDINGS, INC.
(Adopted by the Board of Directors on March 1, 1999)
The 1998 Stock Incentive Plan of IndyMac Mortgage Holdings, Inc. is hereby
amended to add the following sentence to the end of Section 10(c) of the 1998
Plan:
"Notwithstanding the foregoing, beginning with calendar year 1999
and for each calendar year thereafter during the term of the Plan, the
annual award of stock options to Non-Employee Directors shall be on
the same date as the annual grant of Awards to Employees pursuant to
this Plan."
21
<PAGE>
AMENDMENT TO THE 1998 STOCK INCENTIVE PLAN OF
INDYMAC MORTGAGE HOLDINGS, INC.
(Adopted by the Board of Directors on January 20, 1999 and
approved by the Shareholders on June 3, 1999)
Section 3(b)(ii) of the IndyMac Mortgage Holdings, Inc. 1998 Stock
Incentive Plan is replaced in its entirety with the following:
"Notwithstanding anything contained herein to the contrary, the
aggregate number of Common Shares subject to options, stock
appreciation rights, and awards of restricted stock granted during
any calendar year to any individual shall be limited to 1,000,000."
22
<PAGE>
AMENDMENTS TO THE 1998 STOCK INCENTIVE PLAN OF
INDYMAC MORTGAGE HOLDINGS, INC.
(Adopted by the Board of Directors on February 4, 2000)
1. Section 2 of the 1998 Stock Incentive Plan ("1998 Plan") shall be deleted
and replaced in its entirety with the following:
"Persons Eligible Under Plan. Any person, including any director of
---------------------------
the Company or any of its subsidiaries or affiliates, who is an
officer or employee of the Company or any of its subsidiaries or
affiliates or an individual who performs services for the Company or
any of its subsidiaries or affiliates of a nature similar to those
performed by officers or employees, such as consultants and agents
(any of the foregoing, an "Employee") shall be eligible to be
considered for the grant of an Award (as defined in Section 5 below)
or Awards under Section 5 of this Plan. Members of the Board of
Directors of the Company (the "Board"), and members of the boards of
directors of any of the Company's subsidiaries or affiliates who are
not officers or employees of the Company or any of its subsidiaries or
affiliates (any of the foregoing, "Non-Employee Directors") shall be
eligible to receive Awards under this Plan only in the form of
nonqualified stock options granted automatically under the provisions
of Section 10 of this Plan ("Director Options")."
2. The first sentence of Section 5(f) of the 1998 Plan shall be deleted and
replaced in its entirety with the following:
"Subject to Section 4(c)(ii), and except as otherwise provided in the
applicable Award Memorandum or otherwise specified or approved by the
Committee, each Option and all other rights thereunder, to the extent
not exercised (whether or not presently exercisable), shall terminate
and become null and void at such time as the holder of such Option
terminates service as an Employee, except that:"
3. Section 9(c) of the 1998 Plan shall be deleted in its entirety and Section
9(d) of the 1998 Plan shall be renumbered 9(c).
23
<PAGE>
4. A new Section 10(l) shall be added to the end of Section 10 of the 1998
Plan as follows:
"Grant of Options to Newly Elected Non-Employee Directors. Upon the
--------------------------------------------------------
election of a newly elected Non-Employee Director, there shall be granted
automatically (without any action by the Committee or the Board) a
nonqualified stock option (the grant date of which shall be the date of
such election) to each newly elected Non-Employee Director as follows: (i)
if the Non-Employee Director is elected within six months of the date on
which the most recent Director Options were granted to existing Non-
Employee Directors, a non-qualified stock option to purchase the same
number of Common Shares for which the most recent Director Options were
granted to existing Non-Employee Directors, and (ii) if the Non-Employee
Director is elected more than six months following the date on which the
most recent Director Options were granted to existing Non-Employee
Directors, but prior to the date in the following calendar year on which
Director Options are granted to existing Non-Employee Directors, a non-
qualified stock option to purchase one-half the number of Common Shares for
which the most recent Director Options were granted to existing Non-
Employee Directors."
24