<PAGE>
As filed with the Securities and Exchange Commission on September 4, 1998
Registered No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
IMPAC COMMERCIAL HOLDINGS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
___________________
MARYLAND 33-0745075
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
20371 IRVINE AVENUE
SANTA ANA HEIGHTS, CALIFORNIA 92707
(714) 556-0122
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
________________
1997 STOCK OPTION AND AWARDS PLAN
JOSEPH R. TOMKINSON
CHIEF EXECUTIVE OFFICER
IMPAC COMMERCIAL HOLDINGS, INC.
20371 IRVINE AVENUE
SANTA ANA HEIGHTS, CALIFORNIA 92707
(714) 556-0122
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
THOMAS J. POLETTI, ESQ.
KATHERINE J. BLAIR, ESQ.
FRESHMAN, MARANTZ, ORLANSKI,
COOPER & KLEIN
9100 WILSHIRE BLVD., 8TH FLOOR EAST
BEVERLY HILLS, CALIFORNIA 90212
TELEPHONE: (310) 273-1870
FACSIMILE: (310) 274-8357
___________________
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Amount to be Price per Offering Registration
Title of Securities to be Registered Registered Share(1) Price(1) Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 10,000 shares $ 14.9375 $ 149,375.00 $ 44.07
- ---------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 190,000 shares $ 15.00 $2,850,000.00 840.75
- ---------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 4,000 shares $ 15.875 $ 63,500.00 18.73
- ---------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 22,250 shares $ 18.875 $ 419,968.75 123.89
- ---------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 84,000 shares $ 17.625 $1,480,500.00 436.75
- ---------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 322,250 shares $ 10.91(2) $3,515,747.50(2) 1,037.15
- ---------------------------------------------------------------------------------------------------------
Total $2,501.34
=========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(h)(1).
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in this Part I are being
separately provided to the Registrant's employees, officers, directors and
consultants as specified by Rule 428(b)(1).
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in paragraphs (a) through (c) below are hereby
incorporated by reference in this Registration Statement. All documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities offered
herein have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereto from the date of filing of such documents.
(a) The Registrant's latest Annual Report on Form 10-K.
(b) All other reports filed by Registrant pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the above-
referenced annual Report.
(c) The section of the Registrant's Prospectus, dated June 22, 1998,
filed with the Commission under Rule 424(b) of the Securities Act, entitled
"Description of Capital Stock."
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Maryland General Corporation Law, as amended from time to time
("MGCL"), permits a Maryland corporation to include in its charter a provision
limiting the liability of its directors and officers to the corporation and its
stockholders for money damages except for liability resulting from (a) actual
receipt of an improper benefit or profit in money, property or services or (b)
active and deliberate dishonesty established by a final judgment as being
material to the cause of action. The Charter of the Company contains such a
provision which eliminates such liability to the maximum extent permitted by
Maryland law.
The Charter of the Company authorizes it, to the maximum extent
permitted by Maryland law, to obligate itself to indemnify and to pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(1) any present or former Director or officer or (2) any individual who, while a
Director of the Company and at the request of the Company, serves or has served
another corporation, real estate investment trust, partnership, joint venture,
trust, employee benefit plan or any other enterprise as a director, officer,
partner or trustee of such corporation, partnership, real estate investment
trust, joint venture, trust, employee benefit plan or other enterprise from and
against any claim or liability to which such person may become subject or which
such person may incur by reason of his status as a present or former Director or
officer of the Company. The Bylaws of the Company obligate it, to the maximum
extent permitted by Maryland law, to indemnify and to pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to (1) any
present or former Director or officer who is made a party to the proceeding by
reason of his service in that capacity or (2) any individual who, while a
Director of the Company and at the request of the Company, serves or has served
another corporation, partnership, real estate investment trust, joint venture,
trust, employee benefit plan or any other enterprise as a director, officer,
partner or trustee of such corporation, partnership, real estate
2
<PAGE>
investment trust, joint venture, trust, employee benefit plan or other
enterprise and who is made a party to the proceeding by reason of his service in
that capacity. The Charter and Bylaws also permit the Company to indemnify and
advance expenses to any person who served a predecessor of the Company in any of
the capacities described above and to any employee or agent of the Company or a
predecessor of the Company.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Company's Charter does not) to indemnify a director or officer who has
been successful, on the merits or otherwise, in the defense of any proceeding to
which he is made a party by reason of his service in that capacity. The MGCL
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their service in those or other
capacities unless it is established that (1) the act or omission of the director
or officer was material to the matter giving rise to the proceeding and (i) was
committed in bad faith or (ii) was the result of active and deliberate
dishonesty, (2) the director or officer actually received an improper personal
benefit in money, property or services or (3) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. However, a Maryland corporation may not indemnify for
an adverse judgment in a suit by or in the right of the corporation or for a
judgement of liability on the basis that personal benefit was improperly the
right of the corporation or for a judgement of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the MGCL requires the
Company, as a condition to advancing expenses, to obtain (1) a written
affirmation by the director or officer of his good faith belief that he has met
the standard of conduct necessary for indemnification by the Company as
authorized by the Bylaws and (2) a written undertaking by him or on his behalf
to repay the amount paid or reimbursed by the Company if it shall ultimately be
determined that the standard of conduct was not met.
In addition, the Registrant has entered into an Indemnity Agreement
with its officers and Directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Numbers Description of Exhibit
------- ----------------------
4.1 1997 Stock Option and Awards Plan incorporated by reference
(and filed as Exhibit 10.3) to the Registrant's Registration
Statement on Form S-11 (File No. 333-25423) filed on April 8,
1997, and Amendment Nos. 1, 2, 3, 4 and 5 filed with the
Securities and Exchange Commission on June 10, 1997, June 30,
1997, July 8, 1997, July 17, 1997 and July 29, 1997,
respectively.
4.2 Form of each of Stock Option Agreement, Stock Option
Agreement with DERs, Stock Appreciation Rights Agreement,
Deferred Stock, Performance Shares or Restricted Stock Award
Agreement under the 1997 Stock Option and Awards Plan.
5.1 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein.
5.2 Opinion of Brown & Wood LLP.
23.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein
(included in Exhibit 5.1).
23.2 Consent of Brown & Wood (included in Exhibit 5.2).
3
<PAGE>
23.3 Consent of KPMG Peat Marwick LLP regarding Registrant.
23.4 Consent of KPMG Peat Marwick LLP regarding Impac Commercial
Capital Corporation.
24.1 Power of Attorney (included on signature page of Registration
Statement).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
----
fide offering thereof.
- ----
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
---------
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions referenced in Item 6 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the
4
<PAGE>
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered hereunder, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
5
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Ana Heights, State of California, on this 4th
day of September, 1998.
IMPAC COMMERCIAL HOLDINGS, INC.
By: /s/ Joseph R. Tomkinson
-----------------------
Joseph R. Tomkinson
Chief Executive Officer
POWER OF ATTORNEY
-----------------
We, the undersigned directors and officers of Impac Commercial Holdings,
Inc., do hereby constitute and appoint Joseph R. Tomkinson and Richard J.
Johnson, or either of them, our true and lawful attorneys and agents, to do any
and all acts and things in our name and behalf in our capacities as directors
and officers and to execute any and all instruments for us and in our names in
the capacities indicated below, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically, but without limitation, power
and authority to sign for us or any of us in our names and in the capacities
indicated below, any and all amendments (including post-effective amendment) to
this Registration Statement, or any related registration statement that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933,
as amended; and we do hereby ratify and confirm all that the said attorneys and
agents, or either of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Joseph R. Tomkinson Chairman of the Board and Chief September 4, 1998
- -------------------------------- Executive Officer (Principal Executive
Joseph R. Tomkinson Officer)
/s/ Richard J. Johnson Chief Financial Officer (Principal September 4, 1998
- -------------------------------- Financial and Accounting Officer)
Richard J. Johnson
/s/ James Walsh Director September 4, 1998
- --------------------------------
James Walsh
Director September 4, 1998
- --------------------------------
Frank Filipps
/s/ Stephan R. Peers Director September 4, 1998
- --------------------------------
Stephan R. Peers
/s/ Thomas J. Poletti Director September 4, 1998
- --------------------------------
Thomas J. Poletti
/s/ Timothy R. Busch Director September 4, 1998
- --------------------------------
Timothy R. Busch
</TABLE>
6
<PAGE>
EXHIBIT INDEX
Exhibit
Numbers
-------
4.1 1997 Stock Option and Awards Plan incorporated by reference (and
filed as Exhibit 10.3) to the Registrant's Registration Statement
on Form S-11 (File No. 333-25423) filed on April 8, 1997, and
Amendment Nos. 1, 2, 3, 4 and 5 filed with the Securities and
Exchange Commission on June 10, 1997, June 30, 1997, July 8, 1997,
July 17, 1997 and July 29, 1997, respectively.
4.2 Form of each of Stock Option Agreement, Stock Option Agreement
with DERs, Stock Appreciation Rights Agreement, Deferred Stock,
Performance Shares or Restricted Stock Award Agreement under the
1997 Stock Option, Deferred Stock and Awards Plan.
5.1 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein.
5.2 Opinion of Brown & Wood LLP.
23.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein (included
in Exhibit 5.1).
23.2 Consent of Brown & Wood (included in Exhibit 5.2).
23.3 Consent of KPMG Peat Marwick LLP regarding Registrant.
23.4 Consent of KPMG Peat Marwick LLP regarding Impac Commercial
Capital Corporation.
24.1 Power of Attorney (included on signature page of Registration
Statement).
7
<PAGE>
EXHIBIT 4.2
IMPAC COMMERCIAL HOLDINGS, INC.
1997 STOCK OPTION AND AWARDS PLAN
STOCK OPTION AGREEMENT
NAME: ___________________
This AGREEMENT is made effective as of the ______ day of ______,
_______ (the "Option Grant Date"), by and between Impac Commercial Holdings,
Inc., a Maryland corporation (the "Company") and ________________ (the
"Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1997 Stock Option and Awards Plan (the "Plan") effective as of April 14, 1997,
and
WHEREAS, pursuant to the provisions of said Plan, the Administrator of
the Company, by action duly taken on ________________, _____, granted to the
Optionee an option or options (the "Option(s)") to purchase shares of the Common
Stock of the Company on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his/her option, purchase all
-------------
or any part of an aggregate of __________ shares of Common Stock (the "Optioned
Shares"), at the price of $_________ per share (the "Option Price"), on the
terms and conditions set forth herein.
2. Option Type; Exercise Dates and Exercise. Options intended to
----------------------------------------
qualify as Incentive Stock Options are designated by an "ISO" under the category
"Type." Options intended as separate Non-Qualified Stock Options are designated
by a "NQSO" under the category "Type." [IF SARS ARE GRANTED IN CONJUNCTION WITH
THE STOCK OPTION, INSERT THE FOLLOWING: STOCK APPRECIATION RIGHTS ("SAR") THAT
ARE GRANTED IN CONJUNCTION WITH ALL OR PART OF A STOCK OPTION ARE DESIGNATED
UNDER THE CATEGORY "SAR" WITH THE AMOUNT OF
1
<PAGE>
SHARES THE SAR RELATES TO SET FORTH BELOW AND A STOCK APPRECIATION RIGHTS
AGREEMENT SHALL BE EXECUTED AS WELL.] The Option(s) shall be exercisable as to
the specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
<TABLE>
<CAPTION>
Number of Exercise Dates
--------- --------------
Type Shares First Last SAR
---- ------ ----- ---- ---
<S> <C> <C> <C> <C>
_____________ ________________ ________________________ ____________
_____________ ________________ ________________________ ____________
_____________ ________________ ________________________ ____________
_____________ ________________ ________________________ ____________
_____________ ________________ ________________________ ____________
</TABLE>
Optionee acknowledges that he/she understands he/she has no right
whatsoever to exercise the Option(s) granted hereunder with respect to any
Optioned Shares covered by any installment until such installment accrues as
provided above. Optionee further understands that the Option(s) granted
hereunder shall expire and become unexercisable as provided in Section 4(c)
below.
3. Method of Exercise. This Option shall be deemed exercised as to
------------------
the shares to be purchased when written notice of such exercise has been given
to the Company at its principal business office by the Optionee with respect to
the Common Stock to be purchased. Such notice shall be accompanied by full
payment in cash or cash equivalents as determined by the Administrator. As
determined by the Administrator, in its sole discretion, payment in whole or
part may also be made (i) by cancellation of any indebtedness owed by the
Company to the Optionee,(ii) by a full recourse promissory note executed by the
Optionee, (iii) in the form of unrestricted Stock owned by the Optionee, or, in
the case of the exercise of a Non-Qualified Stock Option, Restricted Stock or
Performance Shares subject to an award under the Plan (based, in each case, on
the Fair Market Value of the Stock on the date the option is exercised);
provided, however, that in the case of an Incentive Stock Option, the right to
make payment in the form of already owned shares may be authorized only at the
time of grant, or (iv) by any combination of the foregoing. Any payment in the
form of Stock already owned by the Optionee may be effected by use of an
attestation form approved by the Administrator. If payment of the option
exercise price of a NQSO is made in whole or in part
2
<PAGE>
in the form of Restricted Stock or Performance Shares, the shares received upon
the exercise of such Stock Option (to the extent of the number of shares of
Restricted Stock or Performance Shares surrendered upon exercise of such Stock
Option) shall be restricted in accordance with the original terms of the
Restricted Stock or Performance Share award in question, except that the
Administrator may direct that such restrictions shall apply only to that number
of shares surrendered upon the exercise of such option.
4. Governing Plan. This Agreement hereby incorporates by reference
--------------
the Plan and all of the terms and conditions of the Plan as heretofore amended
and as the same may be amended from time to time hereafter in accordance with
the terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which
is attached hereto and by reference incorporated herein, and represents that
he/she is familiar with the terms and provisions of said Plan, and hereby
accepts this Agreement subject to all the terms and provisions of said Plan.
(b) Agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator upon any questions arising
under the Plan.
(c) Acknowledges that he/she is familiar with Sections of the
Plan regarding the exercise of the Option(s) and represents that he/she
understands that said Option(s) must be exercised on or before the earliest of
the following dates, whichever is applicable: (i) the "Last" exercise date noted
above in Section 2; (ii) the day prior to the fifth anniversary, in certain
circumstances, of the Option(s) Grant Date with respect to Options granted as
Incentive Stock Options pursuant to Subsection (5)(b) and the day prior to the
tenth anniversary of the Option(s) Grant Date with respect to Options granted as
Non-Qualified Stock Options; (iii) the effective date of a sale or other
disposition of all or substantially all of the stock or assets of the Company,
as
3
<PAGE>
provided in Section 10 of the Plan; (iv) the date which is the earlier of (A)
three months from the date of termination or (B) the expiration of such Stock
Option's term following the Optionee's termination of directorship or consulting
or other arrangement (unless extended) for any reason other than death or
disability as provided under Subsection 5(i) of the Plan; or (v) the date that
is one year following the Optionee's termination of employment, directorship or
consulting or other arrangement by reason of his/her death, or the date that is
one year following his/her termination of employment, directorship or consulting
or other arrangement by reason of disability, whichever is applicable, as
provided in Subsections 5(g) and 5(h) of the Plan.
(d) Acknowledges, understands and agrees that the existence of
the Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422 of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section 422,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an Optioned
--------------------------
Share may be made by Optionee within two (2) years from the date of
the granting of the Option(s) nor within one (1) year after the
transfer of such Optioned Share to him/her, and
(2) employment requirement: at all times during the period
----------------------
beginning on the date of the granting of the Option(s) and ending on
the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, its Parent, or a Subsidiary
of the Company, or a corporation or a parent or subsidiary of such
corporation issuing or assuming the Option(s) in a transaction to
which Section 425(a) of the Internal Revenue Code applies, except
where the termination of employment is by means of the employee's
disability, in which case said three (3) month period may be extended
to one (1) year, as provided under Internal Revenue Code Section 422.
5. Representations and Warranties. As a condition to the exercise
------------------------------
of any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or
4
<PAGE>
warranty to the Company as may, in the judgment of counsel to the Company, be
required under any applicable law or regulation, including but not limited to a
representation and warranty that the shares are being acquired only for
investment and without any present intention to sell or distribute such shares
if, in the opinion of counsel for the Company, such a representation is required
under the Securities Act of 1933 or any other applicable law, regulation or rule
of any governmental agency. Optionee hereby represents to the Company that each
of the Option evidenced hereby and the shares purchasable upon exercise thereof
is being acquired only for investment and without any present intention to sell
or distribute such securities.
6. Options Not Transferable. No Stock Option shall be transferable
------------------------
by the Optionee other than by will or by the laws of descent and distribution
or, with respect to Non-Qualified Stock Options, pursuant to a "qualified
domestic relations order," as such term is defined in the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). Incentive Stock Options shall
be exercisable, during the Optionee's lifetime, only by the Optionee or, with
respect to Non-Qualified Stock Options, in accordance with the terms of a
qualified domestic relations order.
NOTE: INSERT THE FOLLOWING IF OPTION IS TRANSFERABLE:
[6. TRANSFERABILITY OF OPTIONS. NON-QUALIFIED STOCK OPTIONS MAY BE
--------------------------
TRANSFERRED BY THE OPTIONEE TO (A) THE SPOUSE, QUALIFIED DOMESTIC PARTNER,
CHILDREN OR GRANDCHILDREN OF THE OPTIONEE AND ANY OTHER PERSONS RELATED TO THE
OPTIONEE AS MAY BE APPROVED BY THE ADMINISTRATOR ("IMMEDIATE FAMILY MEMBERS"),
(B) A TRUST OR TRUSTS FOR THE EXCLUSIVE BENEFIT OF SUCH IMMEDIATE FAMILY
MEMBERS, (C) A PARTNERSHIP OR PARTNERSHIPS IN WHICH SUCH IMMEDIATE FAMILY
MEMBERS ARE THE ONLY PARTNERS, OR (D) ANY OTHER PERSONS OR ENTITIES AS MAY BE
APPROVED BY THE ADMINISTRATOR, PROVIDED THAT (x) THERE MAY BE NO CONSIDERATION
FOR ANY TRANSFER UNLESS APPROVED BY THE ADMINISTRATOR, (y) THE STOCK OPTION
AGREEMENT PURSUANT TO WHICH SUCH OPTIONS ARE GRANTED MUST BE APPROVED BY THE
ADMINISTRATOR, AND MUST EXPRESSLY PROVIDE FOR TRANSFERABILITY IN A MANNER
CONSISTENT WITH SECTION 5(f)(ii) OF THE PLAN, AND (z) SUBSEQUENT TRANSFERS OF
TRANSFERRED OPTIONS SHALL BE PROHIBITED EXCEPT THOSE IN ACCORDANCE WITH SECTION
5(f)(i) OF THE PLAN OR EXPRESSLY APPROVED BY THE ADMINISTRATOR. FOLLOWING
TRANSFER, ANY SUCH OPTIONS SHALL CONTINUE TO BE SUBJECT TO THE SAME TERMS AND
CONDITIONS AS WERE APPLICABLE IMMEDIATELY PRIOR TO TRANSFER, PROVIDED THAT,
EXCEPT FOR PURPOSES OF SECTIONS 5(g), (h) AND (i) AND 11(c) OF THE PLAN, THE
TERMS "OPTIONEE," STOCK OPTION HOLDER" AND "PARTICIPANT" SHALL BE DEEMED
5
<PAGE>
TO REFER TO THE TRANSFEREE. THE EVENTS OF TERMINATION OF EMPLOYMENT UNDER
SECTIONS 5(g), (h) AND (i) HEREOF SHALL CONTINUE TO BE APPLIED WITH RESPECT TO
THE ORIGINAL OPTIONEE, FOLLOWING WHICH THE OPTIONS SHALL BE EXERCISABLE BY THE
TRANSFEREE ONLY TO THE EXTENT, AND FOR THE PERIODS SPECIFIED UNDER SUCH SECTIONS
UNLESS THE OPTION AGREEMENT GOVERNING SUCH OPTIONS OTHERWISE PROVIDES.
NOTWITHSTANDING THE TRANSFER, THE ORIGINAL OPTIONEE WILL CONTINUE TO BE SUBJECT
TO THE PROVISIONS OF SECTION 11(c) OF THE PLAN REGARDING PAYMENT OF TAXES,
INCLUDING THE PROVISIONS ENTITLING THE COMPANY TO DEDUCT SUCH TAXES FROM AMOUNTS
OTHERWISE DUE TO SUCH OPTIONEE. ANY TRANSFER OF A STOCK OPTION THAT WAS
ORIGINALLY GRANTED WITH DERS RELATED THERETO SHALL AUTOMATICALLY INCLUDE THE
TRANSFER OF SUCH DERS, ANY ATTEMPT TO TRANSFER SUCH STOCK OPTION SEPARATELY FROM
SUCH DERS SHALL BE VOID, AND SUCH DERS SHALL CONTINUE IN EFFECT ACCORDING TO
THEIR TERMS. "QUALIFIED DOMESTIC PARTNER" FOR THE PURPOSE OF THIS SECTION 6
SHALL MEAN A DOMESTIC PARTNER LIVING IN THE SAME HOUSEHOLD AS THE OPTIONEE AND
REGISTERED WITH, CERTIFIED BY OR OTHERWISE ACKNOWLEDGED BY THE COUNTY OR OTHER
APPLICABLE GOVERNMENTAL BODY AS A DOMESTIC PARTNER OR OTHERWISE ESTABLISHING
SUCH STATUS IN ANY MANNER SATISFACTORY TO THE ADMINISTRATOR. INCENTIVE STOCK
OPTIONS SHALL NOT BE TRANSFERABLE EXCEPT BY WILL OR BY THE LAWS OF DESCENT AND
DISTRIBUTION.]
7. No Enlargement of Employee Rights. Nothing in this Agreement
---------------------------------
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company, any Parent or Subsidiary, or to restrict
in any way the right of the Company, a Subsidiary or Parent, to terminate
his/her employment. Optionee acknowledges that in the absence of an express
written employment agreement to the contrary, Optionee's employment with the
Company may be terminated by the Company at any time, with or without cause.
8. Withholding of Taxes. Optionee authorizes the Company to
--------------------
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
9. Laws Applicable to Construction. This Agreement shall be
-------------------------------
construed and enforced in accordance with the laws of the State of California.
6
<PAGE>
10. Agreement Binding on Successors. The terms of this Agreement
-------------------------------
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
11. Costs of Litigation. In any action at law or in equity to
-------------------
enforce any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
12. Necessary Acts. The Optionee agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
13. Counterparts. For convenience this Agreement may be executed in
------------
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
14. Invalid Provisions. In the event that any provision of this
------------------
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
15. Limitation on Value of Optioned Shares. Optionee acknowledges
--------------------------------------
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
Subsidiary shall not exceed $100,000. It is understood and agreed that should
it be determined that an Option if granted as an Incentive Stock Option
hereunder would exceed such maximum, such Option shall be considered granted as
a Non-Qualified Stock Option to the extent, but only to the extent of such
excess. This
7
<PAGE>
limitation shall not apply to any option granted as a Non-Qualified Stock
Option.
8
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
IMPAC COMMERCIAL HOLDINGS, INC. OPTIONEE
By:
------------------------------ -----------------------------------
Name: (Signature)
Title:
-----------------------------------
(Print Name)
Address of Participant:
- --------------------------------- -----------------------------------
(Social Security)
- ---------------------------------
By his or her signature below, the spouse of the Optionee, if such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
----------------------------------------
Spouse
Dated:
----------------------------------
By his or her signature below the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
----------------------------------------------
Optionee
Dated:
----------------------------------------
9
<PAGE>
IMPAC COMMERCIAL HOLDINGS, INC.
1997 STOCK OPTION AND AWARDS PLAN
STOCK APPRECIATION RIGHTS AGREEMENT
NAME: ___________________
This AGREEMENT dated as of the _____ day of _______________, _____, between
IMPAC COMMERCIAL HOLDINGS, INC., a Maryland corporation (the "Company") and
___________________________ (the "Participant").
RECITALS
WHEREAS, the Board of Directors of the Company has established the 1997
Stock Option and Awards Plan (the "Plan") effective as of April 14, 1997, and
WHEREAS, pursuant to Section 2 of the Plan, the Administrator by action
duly taken on ___________, ______, granted to Participant Stock Appreciation
Rights ("SARs") on the terms and conditions set forth in the Plan and the term
and conditions set forth herein.
NOW, THEREFORE, in consideration of services rendered and to be rendered by
the Participant and the mutual promises made herein, the mutual benefits to be
derived therefrom and other good and valuable consideration, the parties agree
as follows:
AGREEMENT
1. Grant. Subject to the terms of this Agreement, the Company grants to
-----
Participant SARs covering a total of _______________ shares of Common Stock of
the Company subject to the terms and conditions set forth in the Plan and the
terms and conditions set forth herein at a price of $____________ per share (the
"SAR Price").
2. Type of SAR and Exercise Dates. SARs and Limited SARs that are
------------------------------
granted in conjunction with all or part of a Stock Option granted under the Plan
shall be marked below as such and designated as a "Related Rights SAR." In the
case of an Incentive Stock Option, Related Rights SARs may be granted only at
the time of the grant of the Incentive Stock Option. SARs and Limited SARs that
are granted alone shall be marked below as such and designated as
1
<PAGE>
a "Free Standing SAR." The SAR shall be exercisable as to the specified number
of shares on and after the "First" dates and on or before the "Last" dates set
forth below:
<TABLE>
<CAPTION>
Exercise Dates
--------------
Type of SAR Number of Shares First Last
----------- ---------------- ----- ----
<S> <C> <C> <C>
- --------------- ---------------- --------- ----------
- --------------- ---------------- --------- ----------
- --------------- ---------------- --------- ----------
- --------------- ---------------- --------- ----------
- --------------- ---------------- --------- ----------
</TABLE>
If Participant is granted a Related SAR, the Stock Option with which it was
granted is specified below.
<TABLE>
<S> <C>
Grant date of Stock Option: _____________
Shares Underlying Stock Option: _____________
Price per share of Stock Option: $____________
</TABLE>
Participant acknowledges that he/she understands he/she has no right
whatsoever to exercise the SAR(s) granted hereunder with respect to any Shares
covered by any installment until such installment accrues as provided above.
3. Governing Plan. This Agreement hereby incorporates by reference the
--------------
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect
Participant's rights under this Agreement and the Plan except as may be required
by applicable law. Participant expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. Participant also hereby expressly acknowledges, represents and
agrees as follows:
2
<PAGE>
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he/she
is familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
(b) Agrees to accept as binding, conclusive and final all decisions or
interpretations of the Administrator upon any questions arising under the Plan.
(c) Acknowledges that he/she is familiar with Sections of the Plan
regarding the exercise of the SAR(s) and represents that he/she understands that
said SAR(s) must be exercised on or before the earliest of the following dates,
whichever is applicable: (i) the "Last" exercise date noted above in Section 2;
(ii) if a Related SAR, then upon the termination or exercise of the related
Stock Option;(iii) the effective date of a sale or other disposition of all or
substantially all of the stock or assets of the Company, as provided in Section
10 of the Plan; (iv) the date which is the earlier of (A) three months from the
date of termination or (B) the expiration of such SAR's term following the
Participant's termination of directorship or consulting or other arrangement
(unless extended) for any reason other than death or disability as provided
under Subsection 5(i) of the Plan; or (v) the date that is one year following
the Participant's termination of employment, directorship or consulting or other
arrangement by reason of his/her death, or the date that is one year following
his/her termination of employment, directorship or consulting or other
arrangement by reason of disability, whichever is applicable, as provided in
Subsections 5(g) and (h) of the Plan.
4. Representations and Warranties. As a condition to the exercise of any
------------------------------
portion of an SAR, the Company may require, if issuing shares of stock, the
person exercising such SAR to make any representation and/or warranty to the
Company as may, in the judgment of counsel to the Company, be required under any
applicable law or regulation, including but not limited to a representation and
warranty that the shares are being acquired only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required under the Securities
Act of 1933 or any other applicable law, regulation or rule of any governmental
agency. If Participant receives stock upon exercise of an SAR, Participant
hereby represents to the Company that each of the SARs evidenced hereby and the
shares issuable upon exercise
3
<PAGE>
thereof is being acquired only for investment and without any present intention
to sell or distribute such securities.
5. No Enlargement of Employee Rights. Nothing in this Agreement shall be
---------------------------------
construed to confer upon Participant (if an employee) any right to continued
employment with the Company, any Parent or Subsidiary, or to restrict in any way
the right of the Company, a Subsidiary or Parent, to terminate his/her
employment. Participant acknowledges that in the absence of an express written
employment agreement to the contrary, Participant's employment with the Company
may be terminated by the Company at any time, with or without cause.
6. Related Rights SAR
------------------
(a) Term. A Related Rights SAR or applicable portion thereof granted
in conjunction with a given Stock Option will terminate and no longer be
exercisable upon the termination or exercise of the related Stock Option, except
that, unless otherwise provided by the Administrator at the time of grant, a
Related Rights SAR granted with respect to less than the full number of shares
covered by a related Stock Option will only be reduced if and to the extent that
the number of shares covered by the exercise or termination of the related Stock
Option exceeds the number of shares not covered by the SAR.
(b) Exercise. Related Rights SARs are exercisable only at such time
or times and to the extent that the Stock Options to which they relate are
exercisable; provided, however, that any Related Rights SAR is not exercisable
-------- -------
during the first six (6) months of its term, except that this additional
limitation shall not apply in the event of death or Disability (as defined in
the Plan) of the Participant prior to the expiration of such six-month period.
Upon the exercise of a Related Rights SAR, the Participant is entitled
to receive up to, but not more than, an amount in cash or that number of shares
of Stock (or in some combination of cash and shares of Stock) equal in value to
the excess of the Fair Market Value (as defined in the Plan) of one share of
Stock as of the date of exercise over the option price per share specified in
the related Stock Option multiplied by the number of shares of Stock in respect
of which the Related Rights SAR has been exercised, with the Administrator
having the right to determine the form of payment.
4
<PAGE>
Upon the exercise of a Related Rights SAR, the Stock Option or part
thereof to which such Related Rights SAR is related is deemed to have been
exercised for the purpose of the limitation set forth in Section 3 of the Plan
on the number of shares of Stock to be issued under the Plan.
A Related Rights SAR granted in connection with an Incentive Stock
Option may be exercised only if and when the Fair Market Value of the Stock
subject to the Incentive Stock Option exceeds the exercise price of such Stock
Option.
(c) Transferability. Related SARs are transferable only when and to
the extent that the underlying Stock Option would be transferable under
Subsection 5(f) of the Plan.
7. Free Standing SARs.
------------------
(a) Term. The term of a Free Standing SAR is fixed by the
Administrator and set forth herein, but no Free Standing SAR is exercisable more
than ten years after the date such right is granted.
(b) Exercise. Free Standing SARs are not exercisable during the first
six (6) months of its term, except that this limitation does not apply in the
event of death or Disability (as defined in the Plan) of Participant prior to
the expiration of such six-month period.
Upon the exercise of a Free Standing SAR, the Participant is entitled
to receive up to, but not more than, an amount in cash or that number of shares
of Stock (or any combination of cash or shares of Stock) equal in value to the
excess of the Fair Market Value (as defined in the Plan) of one share of Stock
as of the date of exercise over the price per share specified in the Free
Standing SAR (which price shall be no less than 100% of the Fair Market Value of
the Stock on the date of grant) multiplied by the number of shares of Stock in
respect to which the right is being exercised, with the Administrator having the
right to determine the form of payment.
(c) Transferability. Free Standing SARs shall be transferable or
exercisable subject to the provisions governing the transferability and
exercisability of Stock Options set forth in paragraphs (c) and (f) of Section 5
of the Plan.
5
<PAGE>
(d) Termination of Participant. In the event of the termination of
Participant, such rights shall be exercisable to the same extent that a Stock
Option would have been exercisable in the event of the termination of the
optionee.
8. Limited SARs. Limited SARs may only be exercised within the 30-day
------------
period following a "Change of Control" (as defined in Section 10 of the Plan),
and, with respect to Limited SARs that are also Related Rights SARs ("Related
Limited SARs"), only to the extent that the Stock Options to which they relate
shall be exercisable in accordance with the provisions of Section 6 of the Plan;
provided, however, that no Related Limited SAR shall be exercisable during the
first six months of its term, except that this additional limitation shall not
apply in the event o death or Disability of the Participant prior to the
expiration of such six-month period.
Upon the exercise of a Limited SAR, the Participant will be entitled to
receive an amount in cash equal in value to the excess of the "Change of Control
Price" (as defined in Section 10) of one share of Stock as of the date of
exercise over (A) the option price per share specified in the related Stock
Option, or (B) in the case of a Limited SAR which is a Free Standing SAR, the
price per share specified in the Free Standing SAR, such excess to be multiplied
by the number of shares in respect of which the Limited SAR will have been
exercised.
9. Execution and Delivery. Participant acknowledges that Participant
----------------------
shall have no rights with respect to any Award granted by the Company unless and
until Participant executes an Award Agreement and delivers it to the Company
within sixty days of such award (or such other period as the Committee may
specify after the Award Date).
10. Withholding of Taxes. Participant authorizes the Company to withhold,
--------------------
in accordance with any applicable law, from any compensation payable to him any
taxes required to be withheld by federal, state or local law as a result of the
grant of the SARs.
11. Laws Applicable to Construction. This Agreement shall be construed
-------------------------------
and enforced in accordance with the laws of the State of California.
6
<PAGE>
12. Agreement Binding on Successors. The terms of this Agreement shall be
-------------------------------
binding upon the executors, administrators, heirs, successors, transferees and
assignees of the Participant.
13. Costs of Litigation. In any action at law or in equity to enforce any
-------------------
of the provisions or rights under this Agreement or the Plan, the unsuccessful
party to such litigation, as determined by the court in a final judgment or
decree, shall pay the successful party or parties all costs, expenses and
reasonable attorneys' fees incurred by the successful party or parties
(including without limitation costs, expenses end fees on any appeals), and if
the successful party recovers judgment in any such action or proceeding such
costs, expenses and attorneys' fees shall be included as part of the judgment.
14. Necessary Acts. The Participant agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
15. Counterparts. For convenience this Agreement may be executed in any
------------
number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
16. Invalid Provisions. In the event that any provision of this Agreement
------------------
is found to be invalid or otherwise unenforceable under any applicable law, such
invalidity or unenforceability shall not be construed as rendering any other
provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
7
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written. By Participant's execution of this Agreement, Participant
agrees to the terms and conditions hereof and of the Plan.
IMPAC COMMERCIAL HOLDINGS, INC. Participant
By:___________________________ __________________________________
Name: (Signature)
Title:
__________________________________
(Print Name)
Address of Participant:
______________________________ __________________________________
(Social Security)
______________________________
By his or her signature below, the spouse of the Participant, if such
Participant be legally married as of the date of his execution of this
Agreement, acknowledges that he or she has read this Agreement and the Plan and
is familiar with the terms and provisions thereof, and agrees to be bound by all
the terms and conditions of said Agreement and said Plan document.
________________________________________
Spouse
Dated:__________________________________
By his or her signature below the Participant represents that he or
she is not legally married as of the date of execution of this Agreement.
________________________________________
Participant
Dated:__________________________________
8
<PAGE>
IMPAC COMMERCIAL HOLDINGS, INC.
1997 STOCK OPTION AND AWARDS PLAN
STOCK OPTION AGREEMENT
WITH DERS
NAME: ____________________
This AGREEMENT is made effective as of the ______ day of
_______________, (the "Option Grant Date"), by and between IMPAC COMMERCIAL
HOLDINGS, INC., a Maryland corporation (the "Company") and _________________
(the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1997 Stock Option and Awards Plan (the "Plan") effective as of April 14, 1997,
and
WHEREAS, pursuant to the provisions of said Plan, the Administrator of
the Company, by action duly taken on _____________, _____, granted to the
Optionee an option or options (the "Option(s)") to purchase shares of the Common
Stock of the Company on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. (a) The Option(s). The Optionee may, at his option, purchase all
-------------
or any part of an aggregate of ______ shares of Common Stock (the "Optioned
Shares"), at the price of $_____ per share (the "Option Price"), on the terms
and conditions set forth herein.
(b) DERs. Dividend Equivalent Rights ("DERs") shall be credited
----
with respect to the Optioned Shares and the DERs shall be deemed [CHOOSE ONE:
"CURRENT-PAY DERS"/"ACCRUED DERS"], as described in the Plan. Current-Pay DERs
shall be paid concurrently with any dividends or distributions paid on the Stock
of the Company during the time the related Option is outstanding in an
1
<PAGE>
amount equal to the cash dividend (or Stock or other property distributed) per
share being paid on the Stock times the number of Optioned Shares. Current-pay
DERs are payable in cash, Stock or such other property as may be distributed to
stockholders. [INSERT THE FOLLOWING IF ACCRUED DERS ARE GRANTED: ACCRUED DERS
MAY BE ACCRUED IN RESPECT OF CASH DIVIDENDS ONLY OR CASH DIVIDENDS AND THE VALUE
OF ANY STOCK OR OTHER PROPERTY DISTRIBUTED TO STOCKHOLDERS, AS THE ADMINISTRATOR
SHALL DETERMINE AT THE TIME OF GRANT. ACCRUED DERS SHALL BE ACCRUED WITH RESPECT
TO THE RELATED STOCK OPTIONS OUTSTANDING AS OF THE DATE DIVIDENDS ARE DECLARED
ON THE COMPANY'S STOCK IN ACCORDANCE WITH THE FOLLOWING FORMULA: (A x B)/C UNDER
WHICH "A" EQUALS THE NUMBER OF SHARES SUBJECT TO SUCH STOCK OPTIONS, "B" EQUALS
THE CASH DIVIDEND PER SHARE OR THE VALUE PER SHARE OF THE STOCK OR OTHER
PROPERTY BEING DISTRIBUTED, AS THE CASE MAY BE, AND "C" EQUALS THE FAIR MARKET
VALUE PER SHARE OF STOCK ON THE DIVIDEND PAYMENT DATE. THE ACCRUED DERS SHALL
REPRESENT SHARES OF STOCK WHICH SHALL BE ISSUABLE TO THE OPTIONEE OF THE RELATED
STOCK OPTION PROPORTIONATELY AS THE OPTIONEE EXERCISES THE STOCK OPTION TO WHICH
THE ACCRUED DERS RELATE, ROUNDED DOWN TO THE NEAREST WHOLE NUMBER OF SHARES.]
2. Option Type; Exercise Dates and Exercise. Options intended to
----------------------------------------
qualify as Incentive Stock Options are designated by an "ISO" under the category
"Type." Options intended as separate nonstatutory options are designated by a
"NQSO" under the category "Type." The Option(s) shall be exercisable as to the
specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
<TABLE>
<CAPTION>
Exercise Dates
--------------------------
Type Number of Shares First Last
- -------- ---------------- ----------- -----------
<S> <C> <C> <C>
- -------- ---------------- ----------- -----------
- -------- ---------------- ----------- -----------
- -------- ---------------- ----------- -----------
- -------- ---------------- ----------- -----------
- -------- ---------------- ----------- -----------
</TABLE>
2
<PAGE>
Optionee acknowledges that he/she understands he/she has no right whatsoever to
exercise the Option(s) granted hereunder with respect to any Optioned Shares
covered by any installment until such installment accrues as provided above.
Optionee further understands that the Option(s) granted hereunder shall expire
and become unexercisable as provided in Section 3(c) below.
This Option shall be deemed exercised as to the shares to be purchased when
written notice of such exercise has been given to the Company at its principal
business office by the Optionee with respect to the Common Stock to be
purchased. Such notice shall be accompanied by full payment in cash or cash
equivalents as determined by the Administrator. As determined by the
Administrator, in its sole discretion, payment in whole or part may also be made
(i) by cancellation of any indebtedness owed by the Company to the Optionee,(ii)
by a full recourse promissory note executed by the Optionee, (iii) in the form
of unrestricted Stock owned by the Optionee, or, in the case of the exercise of
a Non-Qualified Stock Option, Restricted Stock or Performance Shares subject to
an award under the Plan (based, in each case, on the Fair Market Value of the
Stock on the date the option is exercised); provided, however, that in the case
of an Incentive Stock Option, the right to make payment in the form of already
owned shares may be authorized only at the time of grant, or (iv) by any
combination of the foregoing. Any payment in the form of Stock already owned by
the Optionee may be effected by use of an attestation form approved by the
Administrator. If payment of the option exercise price of a NQSO is made in
whole or in part in the form of Restricted Stock or Performance Shares, the
shares received upon the exercise of such Stock Option (to the extent of the
number of shares of Restricted Stock or Performance Shares surrendered upon
exercise of such Stock Option) shall be restricted in accordance with the
original terms of the Restricted Stock or Performance Share award in question,
except that the Administrator may direct that such restrictions shall apply only
to that number of shares surrendered upon the exercise of such option.
3. Governing Plan. This Agreement hereby incorporates by reference the
--------------
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
3
<PAGE>
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he/she
is familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
(b) Agrees to accept as binding, conclusive and final all decisions
or interpretations of the Administrator upon any questions arising under the
Plan.
(c) Acknowledges that he/she is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he/she understands
that said Option(s) must be exercised on or before the earliest of the following
dates, whichever is applicable: (i) the "Last" exercise date noted above in
Section 2; (ii) the day prior to the fifth anniversary, in certain
circumstances, of the Option(s) Grant Date with respect to Options granted as
Incentive Stock Options pursuant to Subsection (5)(a)(ii) and the day prior to
the tenth anniversary of the Option(s) Grant Date with respect to Options
granted as Non-Qualified Stock Options; (iii) the effective date of a sale or
other disposition of all or substantially all of the stock or assets of the
Company, as provided in Section 10 of the Plan; (iv) the date which is the
earlier of (A) three months from the date of termination or (B) the expiration
of such Stock Option's term following the Optionee's termination of directorship
or consulting or other arrangement (unless extended) for any reason other than
death or disability as provided under Subsection 5(i) of the Plan; or (v) the
date that is one year following the Optionee's termination of employment,
directorship or consulting or other arrangement by reason of his/her death, or
the date that is one year following his/her termination of employment,
directorship or consulting or other arrangement by reason of disability,
whichever
4
<PAGE>
is applicable, as provided in Subsections 5(g) and 5(h) of the Plan.
(d) Acknowledges, understands and agrees that the existence of
the Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted as an Incentive Stock Option to
qualify for favorable tax treatment through the application of Section 422(a) of
the Internal Revenue Code; that Optionee must, in order to so qualify,
individually meet by his own action all applicable requirements of Section
422(a), including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no disposition of an
--------------------------
Optioned Share may be made by Optionee within two (2) years from the
date of the granting of the Option(s) nor within one (1) year after
the transfer of such Optioned Share to him/her, and
(2) employment requirement: at all times during the period
----------------------
beginning on the date of the granting of the Option(s) and ending on
the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, its Parent, or a Subsidiary
of the Company, of Affiliated Companies, or a corporation or a parent
or subsidiary of such corporation issuing or assuming the Option(s) in
a transaction to which Section 425(a) of the Internal Revenue Code
applies, except where the termination of employment is by means of the
employee's disability, in which case said three (3) month period may
be extended to one (1) year, as provided under Internal Revenue Code
Section 422(a).
4. Representations and Warranties. As a condition to the exercise of
------------------------------
any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933 or any other
applicable
5
<PAGE>
law, regulation or rule of any governmental agency. Optionee hereby represents
to the Company that each of the Option evidenced hereby and the shares
purchasable upon exercise thereof is being acquired only for investment and
without any present intention to sell or distribute such securities.
5. Options Not Transferable. No Stock Option shall be transferable
------------------------
by the Optionee other than by will or by the laws of descent and distribution
or, with respect to Non-Qualified Stock Options, pursuant to a "qualified
domestic relations order," as such term is defined in the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). Incentive Stock Options shall
be exercisable, during the Optionee's lifetime, only by the Optionee or, with
respect to Non-Qualified Stock Options, in accordance with the terms of a
qualified domestic relations order.
NOTE: INSERT THE FOLLOWING IF THE ADMINISTRATOR CHOOSES THE OPTION TO BE
TRANSFERABLE:
[5. TRANSFERABILITY OF OPTIONS. NON-QUALIFIED STOCK OPTIONS MAY BE
--------------------------
TRANSFERRED BY THE OPTIONEE TO (A) THE SPOUSE, QUALIFIED DOMESTIC PARTNER,
CHILDREN OR GRANDCHILDREN OF THE OPTIONEE AND ANY OTHER PERSONS RELATED TO THE
OPTIONEE AS MAY BE APPROVED BY THE ADMINISTRATOR ("IMMEDIATE FAMILY MEMBERS"),
(B) A TRUST OR TRUSTS FOR THE EXCLUSIVE BENEFIT OF SUCH IMMEDIATE FAMILY
MEMBERS, (C) A PARTNERSHIP OR PARTNERSHIPS IN WHICH SUCH IMMEDIATE FAMILY
MEMBERS ARE THE ONLY PARTNERS, OR (D) ANY OTHER PERSONS OR ENTITIES AS MAY BE
APPROVED BY THE ADMINISTRATOR, PROVIDED THAT (x) THERE MAY BE NO CONSIDERATION
FOR ANY TRANSFER UNLESS APPROVED BY THE ADMINISTRATOR, (y) THE STOCK OPTION
AGREEMENT PURSUANT TO WHICH SUCH OPTIONS ARE GRANTED MUST BE APPROVED BY THE
ADMINISTRATOR, AND MUST EXPRESSLY PROVIDE FOR TRANSFERABILITY IN A MANNER
CONSISTENT WITH SECTION 5(f)(ii) OF THE PLAN, AND (z) SUBSEQUENT TRANSFERS OF
TRANSFERRED OPTIONS SHALL BE PROHIBITED EXCEPT THOSE IN ACCORDANCE WITH SECTION
5(f)(i) OF THE PLAN OR EXPRESSLY APPROVED BY THE ADMINISTRATOR. FOLLOWING
TRANSFER, ANY SUCH OPTIONS SHALL CONTINUE TO BE SUBJECT TO THE SAME TERMS AND
CONDITIONS AS WERE APPLICABLE IMMEDIATELY PRIOR TO TRANSFER, PROVIDED THAT,
EXCEPT FOR PURPOSES OF SECTIONS 5(g), (h) AND (i) AND 11(c) OF THE PLAN, THE
TERMS "OPTIONEE," STOCK OPTION HOLDER" AND "PARTICIPANT" SHALL BE DEEMED TO
REFER TO THE TRANSFEREE. THE EVENTS OF TERMINATION OF EMPLOYMENT UNDER SECTIONS
5(g), (h) AND (i) HEREOF SHALL CONTINUE TO BE APPLIED WITH RESPECT TO THE
ORIGINAL OPTIONEE, FOLLOWING WHICH THE
6
<PAGE>
OPTIONS SHALL BE EXERCISABLE BY THE TRANSFEREE ONLY TO THE EXTENT, AND FOR THE
PERIODS SPECIFIED UNDER SUCH SECTIONS UNLESS THE OPTION AGREEMENT GOVERNING SUCH
OPTIONS OTHERWISE PROVIDES. NOTWITHSTANDING THE TRANSFER, THE ORIGINAL OPTIONEE
WILL CONTINUE TO BE SUBJECT TO THE PROVISIONS OF SECTION 11(c) OF THE PLAN
REGARDING PAYMENT OF TAXES, INCLUDING THE PROVISIONS ENTITLING THE COMPANY TO
DEDUCT SUCH TAXES FROM AMOUNTS OTHERWISE DUE TO SUCH OPTIONEE. ANY TRANSFER OF A
STOCK OPTION THAT WAS ORIGINALLY GRANTED WITH DERS RELATED THERETO SHALL
AUTOMATICALLY INCLUDE THE TRANSFER OF SUCH DERS, ANY ATTEMPT TO TRANSFER SUCH
STOCK OPTION SEPARATELY FROM SUCH DERS SHALL BE VOID, AND SUCH DERS SHALL
CONTINUE IN EFFECT ACCORDING TO THEIR TERMS. "QUALIFIED DOMESTIC PARTNER" FOR
THE PURPOSE OF THIS SECTION 5 SHALL MEAN A DOMESTIC PARTNER LIVING IN THE SAME
HOUSEHOLD AS THE OPTIONEE AND REGISTERED WITH, CERTIFIED BY OR OTHERWISE
ACKNOWLEDGED BY THE COUNTY OR OTHER APPLICABLE GOVERNMENTAL BODY AS A DOMESTIC
PARTNER OR OTHERWISE ESTABLISHING SUCH STATUS IN ANY MANNER SATISFACTORY TO THE
ADMINISTRATOR. INCENTIVE STOCK OPTIONS SHALL NOT BE TRANSFERRED BY OPTIONEE
EXCEPT BY WILL OR BY THE LAWS OF DESCENT AND DISTRIBUTION.]
6. No Enlargement of Employee Rights. Nothing in this Agreement
---------------------------------
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company, any Parent or Subsidiary, or any
Affiliated Company, or to restrict in any way the right of the Company, a
Subsidiary or Parent, or Affiliated Company to terminate his/her employment.
Optionee acknowledges that in the absence of an express written employment
agreement to the contrary, Optionee's employment with the Company may be
terminated by the Company at any time, with or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to
--------------------
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
8. Laws Applicable to Construction. This Agreement shall be
-------------------------------
construed and enforced in accordance with the laws of the State of California.
7
<PAGE>
9. Agreement Binding on Successors. The terms of this Agreement
-------------------------------
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to enforce
-------------------
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed in
------------
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
------------------
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Limitation on Value of Optioned Shares. Optionee acknowledges
--------------------------------------
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted as
Incentive Stock Options are exercisable for the first time by Optionee during
any calendar year under all incentive stock option plans of the Company and any
Subsidiary shall not exceed $100,000. It is understood and agreed that should
it be determined that an Option if granted as an
8
<PAGE>
Incentive Stock Option hereunder would exceed such maximum, such Option shall be
considered granted as a Non-Qualified Stock Option to the extent, but only to
the extent of such excess. This limitation shall not apply to any option granted
as a Non-Qualified Stock Option.
9
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
IMPAC COMMERCIAL HOLDINGS, INC. OPTIONEE
By:_______________________ _________________________
Name: Name:
Title:
_________________________
Street Address
_________________________
City and State
_________________________
Social Security No.
By his or her signature below, the spouse of the Optionee, if such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
___________________________________
Spouse
Dated: ____________________________
By his or her signature below the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
___________________________________
Optionee
Dated: ____________________________
10
<PAGE>
IMPAC COMMERCIAL HOLDINGS, INC.
1997 STOCK OPTION AND AWARDS PLAN
DEFERRED STOCK, PERFORMANCE SHARES OR
RESTRICTED STOCK AWARD AGREEMENT
NAME:___________________
This AGREEMENT dated as of the _____ day of _______________, ____, between
IMPAC COMMERCIAL HOLDINGS, INC., a Maryland corporation (the "Company") and
________________ (the "Participant").
RECITALS
WHEREAS, the Board of Directors of the Company has established the 1997
Stock Option and Awards Plan (the "Plan") effective as of April 14, 1997, and
WHEREAS, pursuant to Section 2 of the Plan, the Administrator has granted
to the Participant by action duly taken on __________, ______,(the "Award Date")
a deferred stock award (the "Deferred Stock Award"), performance shares award
and/or a restricted stock award (the "Restricted Stock Award") based upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of services rendered and to be rendered by
the Participant and the mutual promises made herein, the mutual benefits to be
derived therefrom and other good and valuable consideration, the parties agree
as follows:
AGREEMENT
1. Grant. Subject to the terms of this Agreement, the Company grants to
-----
the Participant the following:
(a) Deferred Stock Award:
__________ shares of Common Stock of the Company (the
"Deferred Stock")
Price (optional): $_____________ per share
Restricted Period: ____________________ to __________________
-1-
<PAGE>
Performance Objectives (optional):
Other Restrictions:
(b) Restricted Stock Award:
__________ shares of Common Stock of the Company (the
"Restricted Stock")
Price (optional): $_____________ per share
Restricted Period: ____________________ to __________________
Performance Objectives (optional):
Other Restrictions:
(c) Performance Shares Award:
__________ shares of Common Stock of the Company (the
"Performance Shares")
Price (optional): $_____________ per share
Restricted Period: ____________________ to __________________
Performance Objectives (optional):
Other Restrictions:
2. Deferred Stock.
--------------
(a) Restriction. Subject to the provisions of the Plan and this
Agreement, during the Restricted Period, Participant is
-2-
<PAGE>
not permitted to sell, transfer, pledge or assign shares of Deferred Stock
awarded hereunder.
(b) Voting Rights, Dividends and Certificates. Participant shall
generally not have the rights of a stockholder of the Company, including the
right to vote the shares during the Restricted Period; provided, however, that
-------- -------
dividends declared during the Restricted Period with respect to the number of
shares covered by the Deferred Stock Award shall be paid to Participant.
Certificates for shares of unrestricted Stock shall be delivered to Participant
promptly after, and only after, the Restricted Period expires without forfeiture
in respect of such shares of Deferred Stock, except as the Participant otherwise
determines.
(c) Termination. Subject to the provisions of Section 7 of the Plan
and this Agreement, upon termination of employment for any reason during the
Restricted Period, all shares still subject to restriction shall be forfeited by
Participant, and Participant shall only receive the amount, if any, paid by
Participant for such Deferred Stock, plus simple interest at 8% per year.
(d) Expiration. At the expiration of the Restricted Period, stock
certificates in respect of such shares of Deferred Stock shall be delivered to
Participant, or his legal representative, in a number equal to the shares of
Stock covered by the Deferred Stock Award.
3. Restricted Stock.
----------------
(a) Restriction. Subject to the provisions of the Plan, Participant
is not permitted to sell, transfer, pledge or assign the shares of Restricted
Stock during the Restricted Period.
(b) Certificates and Legend. Participant shall be issued a stock
certificate in respect of such shares of Restricted Stock; and such certificate
shall be registered in the name of Participant, and shall bear an appropriate
legend referring to the terms, conditions, and restrictions applicable to such
Award, substantially in the following form:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions
(including forfeiture) of the Impac Commercial Holdings, Inc.,
1997 Stock Option and Awards Plan and a
-3-
<PAGE>
Restricted Stock Award Agreement or Performance Share Award
Agreement entered into between the registered owner and Impac
Commercial Holdings, Inc. Copies of such Plan and Agreement are
on file in the offices of Impac Commercial Holdings, Inc."
The stock certificates evidencing such shares shall be held in the
custody of the Company until the restrictions thereon shall have lapsed, and
that, as a condition of any Restricted Stock award, Participant shall have
delivered a stock power, endorsed in blank, relating to the Stock covered by
such Award, a form of which is attached here to as Exhibit A.
(c) Voting Rights. Except as provided herein, Participant shall have
all of the rights of a stockholder of the Company, including the right to vote
the shares, and the right to receive any dividends thereon during the Restricted
Period.
(d) Termination. Subject to the provisions of this Agreement and
Section 7 of the Plan, upon termination of employment for any reason during the
Restricted Period, all shares still subject to restriction shall be forfeited by
Participant, and Participant shall only receive the amount, if any, paid by the
Participant for such Restricted Stock, plus simple interest at 8% per year.
4. Performance Shares.
------------------
(a) Restriction. Subject to the provisions of the Plan, Participant
is not permitted to sell, transfer, pledge or assign Performance Shares during
the Restricted Period.
(b) Certificates and Legend. Participant shall be issued a stock
certificate in respect of such shares of Performance Stock; and such certificate
shall be registered in the name of Participant, and shall bear an appropriate
legend referring to the terms, conditions, and restrictions applicable to such
Award, substantially in the following form:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions
(including forfeiture) of the Impac Commercial Holdings, Inc.,
1997 Stock Option and Awards Plan and a Restricted Stock Award
Agreement or Performance Share Award Agreement entered into
between the registered owner
-4-
<PAGE>
and Impac Commercial Holdings, Inc. Copies of such Plan and
Agreement are on file in the offices of Impac Commercial
Holdings, Inc."
The stock certificates evidencing such shares shall be held in the
custody of the Company until the restrictions thereon shall have lapsed, and
that, as a condition of any Performance Share award, Participant shall have
delivered a stock power, endorsed in blank, relating to the Stock covered by
such Award, a form of which is attached here to as Exhibit A.
(c) Voting Rights. Except as provided herein, Participant shall have
all of the rights of a stockholder of the Company, including the right to vote
the shares, and the right to receive any dividends thereon during the Restricted
Period.
(d) Termination. Subject to the provisions of this Agreement and
Section 7 of the Plan, upon termination of employment for any reason during the
Restricted Period, all shares still subject to restriction shall be forfeited by
Participant, and Participant shall only receive the amount, if any, paid by the
Participant for such Restricted Stock, plus simple interest at 8% per year.
5. Governing Plan. This Agreement hereby incorporates by reference the
--------------
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect
Participant's rights under this Agreement and the Plan except as may be required
by applicable law. Participant expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. Participant also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he/she
is familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
-5-
<PAGE>
(b) Agrees to accept as binding, conclusive and final all decisions or
interpretations of the Administrator upon any questions arising under the Plan.
(c) Acknowledges that he/she is familiar with Sections of the Plan
regarding the issuance of the [DEFERRED STOCK, PERFORMANCE SHARES AND/OR
RESTRICTED STOCK].
6. Representations and Warranties. As a condition to the issuance of any
------------------------------
portion of shares of [RESTRICTED STOCK/DEFERRED STOCK/PERFORMANCE SHARES] the
Company may require Participant receiving such shares to make any representation
and/or warranty to the Company as may, in the judgment of counsel to the
Company, be required under any applicable law or regulation, including but not
limited to a representation and warranty that the shares are being acquired only
for investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation is
required under the Securities Act of 1933 or any other applicable law,
regulation or rule of any governmental agency. Participant hereby represents to
the Company that the shares issuable pursuant to this Agreement are being
acquired only for investment and without any present intention to sell or
distribute such securities.
7. No Enlargement of Employee Rights. Nothing in this Agreement shall be
---------------------------------
construed to confer upon Participant(if an employee) any right to continued
employment with the Company, any Parent or Subsidiary, or to restrict in any way
the right of the Company, a Subsidiary or Parent to terminate his/her
employment. Participant acknowledges that in the absence of an express written
employment agreement to the contrary, Participant's employment with the Company
may be terminated by the Company at any time, with or without cause.
8. Execution and Delivery. Participant acknowledges that Participant
----------------------
shall have no rights with respect to any Award granted by the Company unless and
until Participant executes an Award Agreement and delivers it to the Company
within sixty days of such award (or such other period as the Participant may
specify after the Award Date).
9. Withholding of Taxes. Participant authorizes the Company to withhold,
--------------------
in accordance with any applicable law, from any compensation payable to him any
taxes required to be withheld by
-6-
<PAGE>
federal, state or local law as a result of the grant of Deferred Stock and/or
Restricted Stock Award.
10. Laws Applicable to Construction. This Agreement shall be construed
-------------------------------
and enforced in accordance with the laws of the State of California.
11. Agreement Binding on Successors. The terms of this Agreement shall be
-------------------------------
binding upon the executors, administrators, heirs, successors, transferees and
assignees of the Participant.
12. Costs of Litigation. In any action at law or in equity to enforce any
-------------------
of the provisions or rights under this Agreement or the Plan, the unsuccessful
party to such litigation, as determined by the court in a final judgment or
decree, shall pay the successful party or parties all costs, expenses and
reasonable attorneys' fees incurred by the successful party or parties
(including without limitation costs, expenses end fees on any appeals), and if
the successful party recovers judgment in any such action or proceeding such
costs, expenses and attorneys' fees shall be included as part of the judgment.
13. Necessary Acts. The Participant agrees to perform all acts and
--------------
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
14. Counterparts. For convenience this Agreement may be executed in any
------------
number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
15. Invalid Provisions. In the event that any provision of this Agreement
------------------
is found to be invalid or otherwise unenforceable under any applicable law, such
invalidity or unenforceability shall not be construed as rendering any other
provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
-7-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written. By Participant's execution of this Agreement, Participant
agrees to the terms and conditions hereof and of the Plan.
IMPAC COMMERCIAL HOLDINGS, INC. Participant
By: _________________________ _______________________
Name: (Signature)
Title:
_______________________
(Print Name)
Address of Participant:
______________________________ _______________________
(Social Security)
______________________________
By his or her signature below, the spouse of the Participant, if such
Participant be legally married as of the date of his execution of this
Agreement, acknowledges that he or she has read this Agreement and the Plan and
is familiar with the terms and provisions thereof, and agrees to be bound by all
the terms and conditions of said Agreement and said Plan document.
___________________________________
Spouse
Dated: ____________________________
By his or her signature below the Participant represents that he or she is
not legally married as of the date of execution of this Agreement.
___________________________________
Participant
Dated: ____________________________
-8-
<PAGE>
EXHIBIT A
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned hereby sell, assign and transfer unto:
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________) Shares of the _________________
Stock of the _______________________________________________________ Corporation
standing in ___________________________ name(s) on the books of said Corporation
represented by certificate(s) No. ______________________________________________
herewith and do hereby irrevocably constitute and appoint ______________________
_______________________________________________________________________ attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitute.
Dated ________________________________ _______________________________________
_______________________________________
THE SIGNATURE(S) ON THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) ON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGE.
THE SIGNATURE(S) OF THE ASSIGNOR(S) MUST BE GUARANTEED HEREON.
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF FRESHMAN, MARANTZ, ORLANSKI, COOPER & KLEIN]
September 4, 1998
Impac Commercial Holdings, Inc.
20371 Irvine Avenue
Santa Ana Heights, California 92707
Re: Registration Statement on Form S-8
1997 Stock Option and Awards Plan
Gentlemen:
As counsel for Impac Commercial Holdings, Inc. (the "Company"), we have
participated in the preparation of the Registration Statement which is to be
filed on Form S-8 under the Securities Act of 1933, as amended, relating to the
offering of up to 632,500 shares of the Company's Common Stock (the "Shares")
issuable upon the exercise of stock options granted to certain executive
officers, employees and directors of the Company pursuant to the 1997 Stock
Option and Awards Plan (the "Plan").
This opinion is delivered in accordance with the requirements of Item 601(b)(5)
of Regulation S-K under the Securities Act.
For purposes of this opinion, we have examined such matters of law and
originals, or copies, certified or otherwise, identified to our satisfaction, of
such documents, corporate records and other instruments as we have deemed
necessary. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as certified,
photostatic or conformed copies, and the authenticity of the originals of all
such latter documents. We have also assumed the due execution and delivery of
all documents where due execution and delivery are prerequisites to the
effectiveness thereof. We have relied upon certificates of public officials and
certificates of officers of the Company for the accuracy of material, factual
matters contained therein which were not independently established.
Based upon the foregoing and all other instruments, documents and matters
examined for the rendering of this opinion, it is our opinion that, when issued
pursuant to the exercise of options under the Plan, as contemplated in the
Registration Statement, the Shares will be legally issued, fully paid and
nonassessable.
<PAGE>
September 4, 1998
Page 2
With respect to the opinion set forth above, we have relied upon the opinion of
Brown & Wood, LLP dated the date hereof, a copy of which has been delivered to
you, as to matters of Maryland law.
We express no opinion as to the applicability or effect of any laws, orders or
judgments of any state or jurisdiction other than federal securities laws and
the substantive laws of the State of California. Further, our opinion is based
solely upon existing laws, rules and regulations, and we undertake no obligation
to advise you of any changes that may be brought to our attention after the date
hereof.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
By giving you this opinion and consent, we do not admit that we are experts with
respect to any part of the Registration Statement or Prospectus within the
meaning of the term "expert" as used in Section 11 of the Securities Act or the
rules and regulations promulgated thereunder by the SEC, nor do we admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
/s/ Freshman, Marantz, Orlanski, Cooper & Klein
FRESHMAN, MARANTZ, ORLANSKI,
COOPER & KLEIN
a professional corporation
<PAGE>
EXHIBIT 5.2
[LETTERHEAD OF BROWN & WOOD]
September 4, 1998
Impac Commercial Holdings, Inc.
20371 Irvine Avenue
Santa Ana Height, CA 92707
Re: Impac Commercial Holdings, Inc.
1997 Stock Option and Awards Plan
---------------------------------
Ladies and Gentlemen:
As counsel to Impac Commercial Holdings Inc., a Maryland corporation, (the
"Company"), we have been asked to provide you with an opinion with respect to
certain Maryland law matters pertaining to the Company's 1997 Stock Option and
Awards Plan (the "Plan").
In connection with this opinion, we have reviewed the Company's
Registration Statement, which is to be filed on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), covering
632,500 shares of the Company's Common Stock (the "Shares") issuable under the
Plan; the organizational documents of the Company; certain of the Company's
proceedings as reflected in its minute books; and such other records as we have
deemed relevant.
In our examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
with the originals of all documents submitted to us as copies. In addition, we
have made such other examinations of law and fact as we have deemed appropriate
in order to form a basis of the opinion hereinafter expressed.
With respect to the issuance of any Shares, we have assumed that the Shares
will be issued, and the certificates evidencing the same will be duly delivered,
in accordance with the terms of the Plan and against receipt of the
consideration stipulated therefor.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the forgoing
assumptions, will be validly issued, fully paid and non-assessable.
<PAGE>
We express no opinion as to the applicability or effect of any laws, orders
or judgments of any state or jurisdiction other than the substantive laws of the
State of Maryland. Further, our opinion is based solely upon existing laws,
rules and regulations, and we undertake no obligation to advise you of any
changes that may be brought to our attention after the date hereof.
This opinion is being furnished for your benefit. Accordingly it may not
be relied upon by, quoted in any manner to, or delivered to any other person or
entity (except Freshman, Marantz, Orlanski, Cooper & Klein, counsel to the
Company) without, in each instance, our prior written consent. We consent to
the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Brown & Wood
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Impac Commercial Holdings, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of Impac Commercial Holdings, Inc., of our report, dated February 9, 1998,
relating to the consolidated balance sheet of Impac Commercial Holdings, Inc.,
and subsidiary as of December 31, 1997 and the related consolidated statements
of operations, changes in stockholders' equity and cash flows for the period
from January 15, 1997 (commencement of operations) through December 31, 1997
which report appears in the December 31, 1997 annual report on Form 10-K of
Impac Commercial Holdings, Inc.
/s/ KPMG Peat Marwick LLP
Orange County, California
September 4, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Impac Commercial Capital Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 of Impac Commercial Holdings, Inc., of our report, dated February 9, 1998,
relating to the balance sheet of Impac Commercial Capital Corporation, as of
December 31, 1997 and the related statements of operations, changes in
shareholders' equity and cash flows for the period from January 15, 1997
(commencement of operations) through December 31, 1997 which report appears in
the December 31, 1997 annual report on Form 10-K of Impac Commercial Holdings,
Inc.
/s/ KPMG Peat Marwick LLP
Orange County, California
September 4, 1998
