-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PO1k+omLfYs2wzVO3uUUAie6WZW7MrnO7yoduJ0QVK0bdv4Dbk6aq22G8d6u+AfM nkKNNEQvYZ3ZXjeiCMkJ7w== 0000944209-98-001603.txt : 19980907 0000944209-98-001603.hdr.sgml : 19980907 ACCESSION NUMBER: 0000944209-98-001603 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19980904 EFFECTIVENESS DATE: 19980904 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: IMPAC COMMERCIAL HOLDINGS INC CENTRAL INDEX KEY: 0001036615 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 330745075 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-62979 FILM NUMBER: 98704878 BUSINESS ADDRESS: STREET 1: 20371 IRVINE AVE STREET 2: STE 430 CITY: SANTA ANA HEIGHTS STATE: CA ZIP: 92707 BUSINESS PHONE: 7145560122 MAIL ADDRESS: STREET 1: 20371 IRVINE AVE STREET 2: SUITE 430 CITY: SANTA ANA HEIGHTS STATE: CA ZIP: 92707 FORMER COMPANY: FORMER CONFORMED NAME: IMH COMMERCIAL HOLDINGS INC DATE OF NAME CHANGE: 19970728 FORMER COMPANY: FORMER CONFORMED NAME: IMPERIAL CREDIT COMMERCIAL HOLDINGS INC DATE OF NAME CHANGE: 19970728 S-8 1 FORM S-8 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
========================================================================================================= 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 - --------------------------------------------------------------------------------------------------------- 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 =========================================================================================================
(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). 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 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 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 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 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 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.
Signature Title Date - --------- ----- ---- /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
6 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 EX-4.2 2 FORM OF EACH STOCK OPTION AGREEMENT 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 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:
Number of Exercise Dates --------- -------------- Type Shares First Last SAR ---- ------ ----- ---- --- _____________ ________________ ________________________ ____________ _____________ ________________ ________________________ ____________ _____________ ________________ ________________________ ____________ _____________ ________________ ________________________ ____________ _____________ ________________ ________________________ ____________
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 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 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 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 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 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 limitation shall not apply to any option granted as a Non-Qualified Stock Option. 8 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 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 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:
Exercise Dates -------------- Type of SAR Number of Shares First Last ----------- ---------------- ----- ---- - --------------- ---------------- --------- ---------- - --------------- ---------------- --------- ---------- - --------------- ---------------- --------- ---------- - --------------- ---------------- --------- ---------- - --------------- ---------------- --------- ----------
If Participant is granted a Related SAR, the Stock Option with which it was granted is specified below. Grant date of Stock Option: _____________ Shares Underlying Stock Option: _____________ Price per share of Stock Option: $____________
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 (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 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 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 (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 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 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 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 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:
Exercise Dates -------------------------- Type Number of Shares First Last - -------- ---------------- ----------- ----------- - -------- ---------------- ----------- ----------- - -------- ---------------- ----------- ----------- - -------- ---------------- ----------- ----------- - -------- ---------------- ----------- ----------- - -------- ---------------- ----------- -----------
2 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 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 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 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 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 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 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 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 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- 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- 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- 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- 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- (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- 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- 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- 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. EX-5.1 3 OPINION OF F.M.O.C. & K. 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. 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 EX-5.2 4 OPINION OF BROWN & WOOD LLP 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. 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 EX-23.3 5 CONSENT OF KPMG 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 EX-23.4 6 CONSENT OF KPMG REGARDING I.C.C.C. 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 -----END PRIVACY-ENHANCED MESSAGE-----