Equity Incentive Plan - Countrywide Financial Corp.
2000 EQUITY INCENTIVE PLAN
OF
COUNTRYWIDE FINANCIAL CORPORATION
(AMENDED AND RESTATED EFFECTIVE JUNE 16, 2004)
SECTION 1. PURPOSE OF PLAN
The purpose of this 2000 Equity Incentive Plan (Amended and Restated
Effective June 16, 2004) (this "Plan") of Countrywide Financial Corporation, a
Delaware corporation (the "Company"), is to strengthen the Company by providing
an incentive to its employees and directors and thereby encourage them to devote
their abilities and industry to the success of the Company's business
enterprise. It is intended that this purpose be achieved by extending to
employees and directors of the Company and the Subsidiaries (as defined below)
an added long-term incentive for high levels of performance and unusual efforts
through the grant of Awards (as such term is herein defined).
SECTION 2. ADMINISTRATION OF PLAN
2.1 COMPOSITION OF COMMITTEE. This Plan shall be administered by a
committee consisting of at least two (2) directors appointed by the Board of
Directors of the Company (the "Board") to administer the Plan and to perform
functions set forth herein (the "Committee"). Notwithstanding the foregoing,
with respect to any action, determination, interpretation, or modification with
respect to a specific Award to any director of the Company who is not an
employee (a "Nonemployee Director"), the "Committee" shall be comprised of the
entire Board. The Committee shall hold meetings at such times as may be
necessary for the proper administration of the Plan. The Committee shall keep
minutes of its meetings. A quorum shall consist of not less than two (2) members
of the Committee and a majority of a quorum may authorize any action. Any
decision or determination reduced to writing and signed by a majority of all of
the members shall be fully effective as if made by a majority vote at a meeting
duly called and held. Each member of the Committee shall be a Disinterested
Director and an Outside Director. No member of the Committee shall be liable for
any action, failure to act, determination or interpretation made in good faith
with respect to this Plan or any transaction hereunder, except for liability
arising from his or her own willful misfeasance, gross negligence or reckless
disregard of his or her duties. The Company hereby agrees to indemnify each
member of the Committee for all costs and expenses and, to the extent permitted
by applicable law, any liability incurred in connection with defending against,
responding to, negotiation for the settlement of or otherwise dealing with any
claim, cause of action or dispute of any kind arising in connection with any
actions in administering this Plan or in authorizing or denying authorization to
any transaction hereunder. For purposes of this Plan, the term "Disinterested
Director" means a director of the Company who is "disinterested" within the
meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the term "Outside Director" means a director of the Company
who is an "outside director" within the meaning of Section 162(m) of the
Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder (the "Code").
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2.2 POWERS OF THE COMMITTEE. The Committee shall be authorized and
empowered to do all things necessary or desirable, in its sole discretion, in
connection with the administration of this Plan, including, without limitation,
the following:
(a) to prescribe, amend and rescind rules and regulations relating
to this Plan (including but not limited to, correcting any defect or
supplying any omission, or reconciling any inconsistency in the Plan or
any Award Document (as defined below)) in the manner and to the extent it
shall be deemed necessary or advisable so that the Plan complies with
applicable law including Rule 16b-3 under the Exchange Act and the Code to
the extent applicable and otherwise to make the Plan fully effective, and
to define terms not otherwise defined herein; provided that, unless the
Committee shall specify otherwise, for purposes of this Plan (i) the term
"Fair Market Value" shall, on any date mean the average of the high and
low sales prices of the Shares on such date on the principal national
securities exchange on which such Shares are listed or admitted to
trading, or if such Shares are not so listed or admitted to trading, the
arithmetic mean of the per Share closing bid price and per Share closing
asked price on such date as quoted on the National Association of
Securities Dealers Automated Quotation System or such other market in
which such prices are regularly quoted, or, if there have been no
published bid or asked quotations with respect to Shares on such date, the
Fair Market Value shall be the value established by the Board in good
faith and in accordance with Code Section 422; and (ii) the term "Company"
shall mean the Company and its Subsidiaries (as such term is defined in
Code Section 424(f)) and affiliates, unless the context otherwise
requires;
(b) to determine which persons are Eligible Persons (as defined
below), to which of such Eligible Persons, if any, Awards shall be granted
hereunder, the number of Awards granted, the timing of any such grants,
and to make such grants;
(c) to determine the number of Shares subject to Options (as defined
below) and the exercise or purchase price of such Shares;
(d) to establish and verify the extent of satisfaction of any
performance goals applicable to Awards;
(e) to prescribe and amend the terms of the agreements or other
documents evidencing Awards made under this Plan (which need not be
identical);
(f) to determine whether, and the extent to which, adjustments are
required pursuant to Section 8;
(g) to establish and maintain programs pursuant to which Awards
granted under this Plan may be deferred;
(h) to interpret and construe this Plan, any rules and regulations
under this Plan and the terms and conditions of any Award granted
hereunder, and to make exceptions to any such provisions in good faith and
for the benefit of the Company; and
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(i) to make all other determinations deemed necessary or advisable
for the administration of this Plan.
2.3 DETERMINATIONS OF THE COMMITTEE. All decisions, determinations and
interpretations by the Committee regarding this Plan shall be final and binding
on the Company and its Subsidiaries and all Eligible Persons and Participants
(as defined below). The Committee shall consider such factors as it deems
relevant to making such decisions, determinations and interpretations including,
without limitation, the recommendations or advice of any director, officer or
employee of the Company and such attorneys, consultants and accountants as it
may select.
SECTION 3. STOCK SUBJECT TO PLAN
3.1 AGGREGATE LIMITS. The aggregate number of shares of the Company's
common stock, par value $.05 per share ("Shares"), that may be made the subject
of Awards granted under this Plan is 44,500,000, of which a maximum of 3,000,000
Shares may be issued in the form of Restricted Stock (as defined below). The
maximum number of shares subject to the Plan shall be adjusted as provided in
Section 8 of the Plan upon a change in the capital structure of the Company. The
maximum number of Shares that may be made the subject of Awards to Nonemployee
Directors under this Plan in any one calendar year is 100,000 with respect to
Options and 60,000 shares with respect to Restricted Stock. The Company shall
reserve for the purpose of this Plan, out of its authorized but unissued Shares
or out of Shares held in the Company's treasury, or partly out of each, such
number of Shares as shall be determined by the Board.
3.2 TAX-CODE LIMITS. The aggregate number of Shares, subject to Options
granted under this Plan during any calendar year to any one Eligible Person,
shall not exceed 6,000,000. Notwithstanding anything to the contrary in this
Plan, the foregoing limitations shall be subject to adjustment under Section 8
only to the extent that such adjustment will not affect the status of any Option
intended to qualify as "performance based compensation" under Code Section
162(m). The foregoing limitations shall not apply to the extent that they are no
longer required in order for compensation in connection with grants under this
Plan to be treated as "performance-based compensation" under Code Section
162(m).
3.3 ISSUANCE OF SHARES. Whenever an outstanding Award or a portion thereof
expires, is canceled or is otherwise terminated for any reason (other than the
surrender of the Award pursuant to Section 9 hereof), the Shares allocable to
the expired, canceled or otherwise terminated Award or portion thereof may again
be the subject of an Award granted hereunder.
SECTION 4. PERSONS ELIGIBLE UNDER PLAN
Any employee of the Company or a Subsidiary, any Nonemployee Director or
any nonemployee director of an affiliated company ("Nonemployee Affiliate
Director") designated by the Committee as eligible to receive Awards subject to
the conditions set forth herein, shall be eligible to receive a grant of an
Award under this Plan (an "Eligible Person").
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A "Ten-Percent Stockholder" is an Eligible Person, who, at the time an Option
intended to qualify as an incentive stock option under Section 422 of the Code
("ISO") is granted to him or her, owns (within the meaning of Section 422(b)(6)
of the Code) stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company, or of a parent or a
subsidiary. An "Optionee" is any current or former Eligible Person to whom an
Option has been granted, and a "Participant" is any person to whom an Award has
been granted or to whom an Option has been assigned or transferred pursuant to
Section 7.1 (including any estate).
SECTION 5. PLAN AWARDS
The Committee, on behalf of the Company, is authorized under this Plan to
enter into certain types of arrangements with Eligible Persons and to confer
certain benefits on them. Restricted Stock and Options are authorized under this
Plan if their terms and conditions are not inconsistent with the provisions of
this Plan. For purposes of this Plan an "Option" is a right granted under
Section 6 of this Plan to purchase a number of Shares at such exercise price, at
such times, and on such other terms and conditions as are specified in the
agreement or other document evidencing the Award (the "Option Document ").
Options intended to qualify as ISOs and Options not intended to qualify as ISOs
("Nonqualified Options") may be granted under Section 6. For purposes of this
Plan, "Restricted Stock" means Shares issued or transferred pursuant to Section
7A on such terms and conditions as are specified in the agreement or other
document evidencing the Award. For purposes of this Plan a "Stock Unit" or a
"Restricted Stock Unit" means the right to receive Shares at a future date
pursuant to Section 7A on such terms and conditions as are specified in the
agreement or other document evidencing the Award. Any agreement evidencing an
"Award" hereunder is an "Award Document." For purposes of this Plan, an "Award"
is a grant of Restricted Stock, Stock Units, Restricted Stock Units, ISOs or
Nonqualified Options.
SECTION 6. OPTIONS
The Committee may grant an Option or provide for the grant of an Option,
either from time to time in the discretion of the Committee or automatically
upon the occurrence of specified events, including, without limitation, the
achievement of performance goals, the satisfaction of an event or condition
within the control of the recipient of the grant or within the control of
others.
6.1 OPTION DOCUMENT. Each Option Document shall contain provisions
regarding (a) the number of Shares that may be issued upon exercise of the
Option, (b) the purchase price of the Shares and the means of payment for the
Shares, (c) the term of the Option, (d) such terms and conditions of
exercisability as may be determined from time to time by the Committee, (e)
restrictions on the transfer of the Option and forfeiture provisions and (f)
such further terms and conditions, in each case not inconsistent with this Plan
as may be determined from time to time by the Committee. The Option Document may
be amended at any time by the parties thereto so long as the amended terms are
not inconsistent with the Plan. Option Documents evidencing ISOs shall contain
such terms and conditions as may be necessary to qualify, to the extent
determined desirable by the Committee, with the applicable provisions of Code
Section 422.
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6.2 OPTION PRICE. The purchase price per share of the Shares subject to
each Option granted under this Plan shall equal or exceed one hundred percent
(100%) of the Fair Market Value of such Stock on the date the Option is granted
(one hundred ten percent (110%) in the case of an ISO granted to a Ten-Percent
Stockholder), except that (a) the exercise price of an Option may be higher or
lower in the case of Options granted to an employee of a company acquired by the
Company in assumption and substitution of Options held by such employee at the
time such company is acquired, and (b) in the event an Eligible Person is
required to pay or forego the receipt of any cash amount in consideration of
receipt of an Option, the exercise price plus such cash amount shall equal or
exceed one hundred percent (100%) of the fair market value of such Stock on the
date the Option is granted.
6.3 OPTION TERM. The "Term" of each Option granted under this Plan,
including any ISOs, shall be for a period of years from the date of its grant
set forth in the Option Document, but in no event shall the Term of an Option
extend beyond ten (10) years from the date of grant (five (5) years in the case
of an ISO granted to a Ten-Percent Stockholder).
6.4 OPTION VESTING. Subject to Section 9 hereof, Options granted under
this Plan shall be exercisable at such time and in such installments during the
period prior to the expiration of the Option's Term as determined by the
Committee. The Committee shall have the right to make the timing of the ability
to exercise any Option granted under this Plan subject to such performance
requirements as deemed appropriate by the Committee. At any time after the grant
of an Option the Committee may reduce or eliminate any restrictions surrounding
any Participant's right to exercise all or part of the Option.
6.5 TERMINATION OF EMPLOYMENT OR SERVICE. Unless otherwise provided in an
Option Document, an Option shall terminate upon or following an Optionee's
termination of employment with the Company and its Subsidiaries, service as a
Nonemployee Affiliate Director, and service as a Nonemployee Director of the
Company and its Subsidiaries as follows:
(a) In the event an Optionee's employment as an employee, if any,
and service as a Nonemployee Director or Nonemployee Affiliate Director,
if any, terminate for any reason other than death, Disability, Cause or
Retirement (as such terms are hereinafter defined), then the Optionee may
at any time within three (3) months after his or her termination of
employment exercise an Option to the extent, and only to the extent, the
Option or portion thereof was exercisable at the date of such termination.
(b) In the event the Optionee's employment as an employee, if any,
and service as a Nonemployee Director or Nonemployee Affiliate Director,
if any, terminate as a result of Disability, then the Optionee may at any
time within one (1) year after such termination exercise such Option to
the extent, and only to the extent, the Option or portion thereof was
exercisable on the date of termination.
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(c) In the event an Optionee's employment as an employee, if any,
and service as a Nonemployee Director or Nonemployee Affiliate Director,
if any, terminate for Cause, the Option shall terminate immediately and no
rights thereunder may be exercised.
(d) In the event an Optionee dies while a Nonemployee Director or
Nonemployee Affiliate Director or an employee of the Company or any
Subsidiary or within three (3) months after termination as described in
clause (a) above of this Section 6.5 or within one (1) year after
termination as a result of Disability as described in clause (b) above of
this Section 6.5 or Retirement as described in clause (e) below of this
Section 6.5, then the Option may be exercised at any time within one (1)
year after the Optionee's death by the person or persons to whom the
Optionee's rights pass by transfer or designation, as the case may be,
pursuant to Section 7 of the Plan, or, absent such a transfer or
designation, as the case may be, by the person or persons to whom such
rights under the Option shall pass by will or the laws of descent and
distribution; provided however, that an Option may be exercised to the
extent, and only to the extent, that the Option or portion thereof was
exercisable on the date of death or earlier termination.
(e) In the event an Optionee's employment terminates as a result of
Retirement, and he or she does not thereafter serve as a Nonemployee
Director or Nonemployee Affiliate Director, then the Optionee may at any
time within one (1) year after termination of service by reason of
Retirement, exercise such Options to the extent, and only to the extent,
the Options or portion thereof was exercisable at the date of such
termination.
For purposes of this Section 6.5, the terms Cause, Disability, and
Retirement shall have the following meanings: "Cause" means (1) any act of (A)
fraud or intentional misrepresentation, or (B) embezzlement, misappropriation or
conversion of assets or opportunities of the Company or any direct or indirect
Subsidiary or affiliate of the Company, or (2) willful violation of any law,
rule or regulation in connection with the performance of an Optionee's duties
(other than traffic violations or similar offenses), or (3) with respect to any
officer of the Company or any direct or indirect Subsidiary or affiliate of the
Company, commission of any act of moral turpitude or conviction of a felony.
"Disability" means a physical or mental infirmity which impairs the Optionee's
ability to perform substantially his or her duties for a period of one hundred
eighty (180) consecutive days. "Retirement" shall mean the attainment of "Early
Retirement Age" or "Normal Retirement Age" as these terms are defined in the
Countrywide Financial Corporation Defined Benefit Pension Plan.
Notwithstanding the foregoing, (1) in no event may any Option be exercised
by anyone after the expiration of the term of the Option and (2) a termination
of service as a Nonemployee Director shall not be deemed to occur so long as the
director continues to serve the Company as a director emeritus.
In the event of the death of any Optionee under this Plan, the term
"Optionee" shall thereafter be deemed to refer to the transferees under Section
7.1 hereof or the beneficiary or beneficiaries designated pursuant to Section
7.2 hereof, or, if no such transfer or designation
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is in effect, the person to whom the Optionee's rights pass by will or
applicable law, or, if no such person has such right, then the executor or
administrator of the estate of such Optionee.
6.6 PAYMENT OF EXERCISE PRICE. The exercise price of an Option shall be
paid in the form of one or more of the following, as the Committee shall
specify, either through the terms of the Option Document or at the time of
exercise of an Option: (a) personal, certified or cashiers' check, (b) shares of
capital stock of the Company that have been held by the Participant for such
period of time as the Committee may specify, (c) other property deemed
acceptable by the Committee, or (d) any combination of (a) through (c). Any
Shares transferred to the Company as payment of the purchase price under an
Option shall be valued at their Fair Market Value on the day preceding the date
of exercise of such Option. If requested by the Committee, the Optionee shall
deliver the Option Document to the Secretary of the Company who shall endorse
thereon a notation of such exercise and return such Option Document to the
Optionee. No fractional Shares (or cash in lieu thereof) shall be issued upon
exercise of an Option and the number of Shares that may be purchased upon
exercise shall be rounded to the nearest number of whole Shares.
6.7 REPRICING. Without the approval of stockholders, the Company shall not
reprice any Options. For purposes of this Plan, the term "reprice" shall mean
lowering the exercise price of previously awarded Options within the meaning of
Item 402(i) under Securities and Exchange Commission Regulation S-K (including
canceling previously awarded Options and regranting them with a lower exercise
price).
6.8 RIGHTS OF OPTIONEE. No Optionee shall be deemed for any purpose to be
the owner of any Shares subject to any Option unless and until (1) the Option
shall have been exercised pursuant to the terms thereof, (2) the Company shall
have issued and delivered the Shares to the Optionee and (3) the Optionee's name
shall have been entered as a stockholder of record on the books of the Company.
Thereupon, the Optionee shall have full voting, dividend and other ownership
rights with respect to such Shares.
SECTION 7. OTHER PROVISIONS APPLICABLE TO OPTIONS
7.1 TRANSFERABILITY. Unless the Option Document (or an amendment thereto
authorized by the Committee) expressly states that the Option is transferable as
provided hereunder, no Option granted under this Plan, nor any interest in such
Option, may be sold, assigned, conveyed, gifted, pledged, hypothecated or
otherwise transferred in any manner prior to the vesting or lapse of any and all
restrictions applicable thereto, other than pursuant to the beneficiary
designation form described in Section 7.2 hereof or by will or the laws of
descent and distribution or pursuant to a qualified domestic relations order, as
defined in the Code or Title I of the Employee Retirement Income Security Act of
1974, as amended. With respect to an Option that is not intended to qualify as
an ISO, the Committee may grant such Option or amend such an outstanding Option
to provide that the Option is transferable or assignable (i) to a member or
members of the Participant's "immediate family," as such term is defined in Rule
16a-1(e) under the Exchange Act, (ii) to a trust for the benefit solely of a
member or members of the Participant's immediate family, (iii) to a partnership
or other entity whose only owners are members of the Participant's immediate
family, provided the instrument of transfer is approved by the Company's
Administrative
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Committee of Employee Benefits, Options so transferred are not again
transferable other than by will or by the laws of descent and distribution, and
that following any such transfer or assignment the Option will remain subject to
substantially the same terms applicable to the Option while held by the
Participant, as modified as the Committee shall determine appropriate, and the
transferee shall execute an agreement agreeing to be bound by such terms.
7.2 DESIGNATION OF BENEFICIARIES. An Optionee hereunder may file with the
Company a written designation of a beneficiary or beneficiaries under this Plan
and may from time to time revoke or amend any such designation ("Beneficiary
Designation"). Any designation of beneficiary under this Plan shall be
controlling over any other disposition, testamentary or otherwise; provided,
however that if the Committee is in doubt as to the entitlement of any such
beneficiary to any Option, the Committee may determine to recognize only the
legal representative of the Optionee in which case the Company, the Committee
and the members thereof shall not be under any further liability to anyone.
7.3 DIVIDENDS. Unless otherwise provided by the Committee, no adjustment
shall be made in Shares issuable under Options on account of cash dividends that
may be paid or other rights that may be issued to the holders of Shares prior to
their issuance under any Option. No dividends or dividend equivalent amounts
shall be paid to any Participant with respect to the Shares subject to any
Option under the Plan.
7.4 DOCUMENTS EVIDENCING OPTIONS. The Committee shall, subject to
applicable law, determine the date an Option is deemed to be granted, which for
purposes of this Plan shall not be affected by the fact that an Option is
contingent on subsequent stockholder approval of this Plan. The Committee or,
except to the extent prohibited under applicable law, its delegate(s) may
establish the terms of agreements or other documents evidencing Options under
this Plan and may, but need not, require as a condition to any such agreement's
or document's effectiveness that such agreement or document be executed by the
Participant and that such Participant agree to such further terms and conditions
as specified in such agreement or document. The grant of an Option under this
Plan shall not confer any rights upon the Participant holding such Option other
than such terms, and subject to such conditions, as are specified in this Plan
as being applicable to such type of Option (or to all Options) or as are
expressly set forth in the agreement or other document evidencing such Option.
7.5 FINANCING. The Committee may in its discretion, and to the extent
permitted by applicable law, provide financing to a Participant in a principal
amount sufficient to pay the purchase price of any Option and/or to pay the
amount of taxes required by law to be withheld with respect to any Option. Any
such loan shall be subject to all applicable legal requirements and restrictions
pertinent thereto, including Regulation G promulgated by the Federal Reserve
Board. The grant of an Option shall in no way obligate the Company or the
Committee to provide any financing whatsoever in connection therewith.
7.6 ISO LIMITS. The aggregate Fair Market Value (determined as of the date
of grant) of Shares underlying an Option intended to qualify as an ISO, with
respect to which the ISO is exercisable for the first time by the Optionee
during any calendar year (under this
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Plan and all other stock option plans of the Company and its parent and
subsidiary corporations) shall not exceed $100,000.
SECTION 7A. RESTRICTED STOCK
7A.1 GRANT. The Committee may grant Restricted Stock to Eligible Persons
which shall be evidenced by an Award Document between the Company and the person
to whom Restricted Stock has been granted (the "Award Holder"). Each Award
Document shall contain such restrictions, terms and conditions as the Committee
may, in its discretion, determine and (without limiting the generality of the
foregoing) such Award Documents may provide for the deferred delivery of the
Shares beyond the date on which such Awards are no longer subject to a risk of
forfeiture and may require that an appropriate legend be placed on Share
certificates. Unless otherwise provided in an Award Document, Awards whose
restrictions have not lapsed shall be forfeited upon the Award Holder's
termination of employment with the Company and its Subsidiaries, service as a
Nonemployee Affiliate Director, and service as a Nonemployee director of the
Company and its Subsidiaries. Awards granted under this Section 7A.1 shall be
subject to the terms and provisions set forth below in this Section 7A.
7A.2 RIGHTS OF AWARD HOLDER. Subject to the applicability of any effective
deferral election, shares of Restricted Stock granted hereunder shall be issued
in the name of the Award Holder as soon as reasonably practicable after the
grant is made provided that the Award Holder has executed an Award Document
evidencing the grant and, in the discretion of the Committee, any other
documents which the Committee may require as a condition to the issuance of such
Shares. If an Award Holder shall fail to execute the Award Document evidencing
an Award, or any documents which the Committee may require within the time
period prescribed by the Committee at the time the Award is granted, the Award
shall be null and void. At the discretion of the Committee, Shares issued in
connection with an Award shall be deposited with an escrow agent (which may be
the Company) designated by the Committee. Unless the Committee determines
otherwise and as set forth in the Award Document, upon delivery of the Shares to
the escrow agent, the Award Holder shall have all of the rights of a stockholder
with respect to such Shares, including the right to vote the Shares and to
receive all dividends or other distributions paid or made with respect to the
Shares.
7A.3 NON-TRANSFERABILITY. Until all restrictions (including without
limitation any applicable deferral elections) upon the Shares of Restricted
Stock awarded to an Award Holder shall have lapsed in the manner set forth in
Section 7A.4, such Shares shall not be sold, transferred or otherwise disposed
of and shall not be pledged or otherwise hypothecated.
7A.4 LAPSE OF RESTRICTIONS. Subject to Section 9 hereof, restrictions upon
Shares of Restricted Stock awarded hereunder shall lapse over a period of at
least three years or at such other time or times and on such other terms and
conditions as the Committee may determine. The Award Document evidencing the
Award shall set forth any such restrictions.
7A.5 TREATMENT OF DIVIDENDS. At the time an Award of Shares of Restricted
Stock is granted, the Committee may, in its discretion, determine that the
payment to the Award
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Holder of dividends, or dividend equivalents with respect to Unit Awards
(defined below), or a specified portion thereof, declared or paid on such Shares
by the Company shall be (a) deferred until the lapsing of the restrictions
imposed upon such Shares and (b) held by the Company for the account of the
Award Holder until such time. In the event that dividends, or dividend
equivalents, are to be deferred, the Committee shall determine whether such
dividends are to be reinvested in Shares (which shall be held as additional
Shares of Restricted Stock, Restricted Stock Units or Stock Units) or held in
cash. If deferred dividends are to be held in cash, there may be credited at the
end of each year (or portion thereof) interest on the account at the beginning
of the year at a rate per annum as the Committee, in its discretion, may
determine. Subject to the applicability of any effective deferral election,
payment of deferred dividends in respect of Shares of Restricted Stock (whether
held in cash or as additional Shares of Restricted Stock), together with
interest accrued thereon, if any, shall be made upon the lapsing of restrictions
imposed on the Shares in respect of which the deferred dividends were paid, and
any dividends deferred (together with any interest accrued thereon) in respect
of any Shares of Restricted Stock shall be forfeited upon the forfeiture of such
Shares.
7A.6 DELIVERY OF SHARES. Subject to the applicability of any effective
deferral election, upon the lapse of the restrictions on Shares of Restricted
Stock, the Committee shall cause a stock certificate to be delivered to the
Award Holder (or electronically transferred as directed) with respect to such
Shares, free of all restrictions hereunder.
7A.7 RESTRICTED STOCK UNITS AND STOCK UNITS. A Restricted Stock Unit Award
means the grant of a right to receive Shares in the future, with such right to
future delivery of such Shares subject to a risk of forfeiture or other
restrictions that will lapse upon the achievement of goals relating to the
completion of service or other objectives, as determined by the Committee. A
Stock Unit is the right to receive Shares in the future which are no longer
subject to the risk of forfeiture, but are not yet deliverable to the
Participant. With the prior approval of the Committee, a Participant may elect
to receive Restricted Stock Units in lieu of receiving Restricted Stock Awards
or Stock Units in lieu of certain approved cash remunerations (generally "Unit
Awards").
SECTION 8. CHANGES IN CAPITAL STRUCTURE
8.1 CORPORATE ACTIONS UNIMPAIRED. The existence of outstanding Awards
shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations, other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issuance of
common stock or other securities or subscription rights thereto, or any issuance
of bonds, debentures, preferred or prior preference stock ahead of or affecting
the common stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise. Further, except as herein expressly provided, (i) the issuance by the
Company of shares of stock of any class of securities convertible into shares of
stock of any class, for cash, property, labor or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefore, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, (ii) the
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payment of a dividend in property other than common stock, or (iii) the
occurrence of any similar transaction, and in any case whether or not for fair
value, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number of shares of Restricted Stock, or common stock subject to
Options theretofore granted or the purchase price per share, unless the
Committee shall determine in its sole discretion that an adjustment is necessary
to provide equitable treatment to Participant.
8.2 ADJUSTMENTS UPON CERTAIN EVENTS. If the outstanding shares of common
stock or other securities of the Company, or both, for which the restrictions
upon Restricted Stock have lapsed or for which an Option is then exercisable or
as to which an Option is to be settled shall at any time be changed or exchanged
by declaration of a stock dividend, stock split or reverse stock split,
combination of shares, recapitalization, or reorganization, the Committee or the
Board shall appropriately and equitably adjust the number and kind of shares of
common stock or other securities which are subject to the Plan or subject to any
Awards theretofore granted, including the exercise or settlement prices of
Options, so as to maintain the proportionate number of shares or other
securities without changing the aggregate exercise or settlement price;
provided, however, that such adjustment shall be made only to the extent that
such adjustment will not affect the status of an Option intended to qualify as
an ISO or as "performance based compensation" under Code Section 162(m). In the
event the Committee or Board do not otherwise act pursuant to its prescribed
authority, that in the event of a stock split, the number of shares available
under the Plan or subject to any individual limits or award type limitations
shall be automatically adjusted to reflect the ratio of the stock split.
Additionally, any outstanding Awards shall be adjusted by proportionately
increasing the number of shares covered by, and for stock options,
proportionately decreasing the exercise price set forth in, the applicable
options. If the Company recapitalizes or otherwise changes its capital
structure, or merges, consolidates, sells all of its assets or dissolves (each
of the foregoing a "Fundamental Change"), then thereafter upon the lapse of any
restrictions upon Restricted Stock or any exercise of Options theretofore
granted, the Participant shall be entitled, in the case of Restricted Stock, to
the number of shares or, in the case of Options, to purchase under such Options,
in lieu of the number of shares of common stock as to which such Options shall
then be exercisable, the number and class of shares of stock, securities, cash,
property or other consideration to which the Participant would have been
entitled pursuant to the terms of the Fundamental Change if, immediately prior
to such Fundamental Change, the Participant had been the holder of record of the
number of shares of Restricted Stock or, as applicable, common stock as to which
Options is then exercisable.
SECTION 9. CHANGE OF CONTROL
9.1 DEFINITIONS. The term "Corporate Change" shall mean the occurrence of
any one of the following events:
(a) An acquisition (other than directly from the Company) of any
common stock or other "Voting Securities" (as hereinafter defined) of the
Company by any "Person" (as the term person is used for purposes of
Section 13(d) or 14(d) of the Exchange Act), immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty
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five percent (25%) or more of the then outstanding shares of the Company's
common stock or the combined voting power of the Company's then
outstanding Voting Securities; provided, however, in determining whether a
Corporate Change has occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Corporate Change. For purposes of this
Plan, (A) "Voting Securities" shall mean the Company's outstanding voting
securities entitled to vote generally in the election of directors and (B)
a "Non-Control Acquisition" shall mean an acquisition by (i) an employee
benefit plan (or a trust forming a part thereof) maintained by (x) the
Company or (y) any corporation or other Person of which a majority of its
voting power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this definition, a
"Subsidiary"), (ii) the Company or any of its Subsidiaries, or (iii) any
Person in connection with a "Non-Control Transaction" (as hereinafter
defined);
(b) During any period of twenty four (24) consecutive months,
individuals who at the beginning of such period constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least two-thirds
of the members of the Board; provided, however, that if the election, or
nomination for election by the Company's common stockholders, of any new
director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Agreement, be
considered as a member of the Incumbent Board; provided, however, that no
individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated
under the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization involving the
Company, unless such merger, consolidation or reorganization is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean a
merger, consolidation or reorganization of the Company where:
(A) the stockholders of the Company, immediately before
such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least seventy percent (70%) of the combined
voting power of the outstanding Voting Securities of the
corporation resulting from such merger, consolidation or
reorganization (the "Surviving Corporation") in substantially
the same proportion as their ownership of the Voting
Securities immediately before such merger, consolidation or
reorganization;
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(B) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization
constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, or in the event that,
immediately following the consummation of such transaction, a
corporation beneficially owns, directly or indirectly, a
majority of the Voting Securities of the Surviving
Corporation, the board of directors of such corporation; and
(C) no Person other than (w) the Company, (x) any
Subsidiary, (y) any employee benefit plan (or any trust
forming a part thereof) maintained by the Company, the
Surviving Corporation, or any Subsidiary, or (z) any Person
who, immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of twenty five percent
(25%) or more of the then outstanding Voting Securities or
common stock of the Company, has Beneficial Ownership of
twenty five percent (25%) or more of the combined voting power
of the Surviving Corporation's then outstanding Voting
Securities or its common stock;
(ii) A complete liquidation or dissolution of the Company; or
(iii) The sale or other disposition of all or substantially
all of the assets of the Company to any Person (other than a
transfer to a Subsidiary).
Notwithstanding the foregoing, a Corporate Change shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding common stock
or Voting Securities as a result of the acquisition of common stock or Voting
Securities by the Company which, by reducing the number of shares of common
stock or Voting Securities then outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Persons; provided, however, that if
a Corporate Change would occur (but for the operation of this sentence) as a
result of the acquisition of common stock or Voting Securities by the Company,
and after such share acquisition by the Company, the Subject Person becomes the
Beneficial Owner of any additional common stock or Voting Securities which
increases the percentage of the then outstanding common stock or Voting
Securities Beneficially Owned by the Subject Person, then a Corporate Change
shall occur.
9.2 EFFECT OF CORPORATE CHANGE. Notwithstanding anything contained in the
Plan or an Option Document to the contrary, in the event of a Corporate Change:
(d) (1) all Options outstanding on the date of such Corporate Change
shall become immediately and fully exercisable and (2) an Optionee shall
be permitted to surrender for cancellation within sixty (60) days after
such Corporate Change, any Option or portion of an Option to the extent
not yet exercised and the Optionee will be entitled to receive a cash
payment in an amount equal to the excess, if any of (x) (A) in the case of
an Option not intended to qualify as an ISO, the greater of (i) the Fair
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Market Value, on the date preceding the date of surrender of the Shares
subject to the Option or portion thereof surrendered, or (ii) the Adjusted
Fair Market Value of the Shares subject to the Option or portion thereof
surrendered or (B) in the case of an ISO, the Fair Market Value, on the
date preceding the date of surrender, of the Shares subject to the Option
or portion thereof surrendered, over (y) the aggregate purchase price for
such Shares under the Option or portion thereof surrendered; provided
however, that in the case of an Option granted within six (6) months prior
to the Corporate Change to any Optionee who may be subject to liability
under Section 16(b) of the Exchange Act, such Optionee shall be entitled
to surrender for cancellation his or her Option during the sixty (60) day
period commencing upon the expiration of six (6) months from the date of
grant of any such Option. For purposes of this Section 9.2, the "Adjusted
Fair Market Value" means the greater of (1) the highest price per Share
paid to holders of the Shares in any transaction (or series of
transactions) constituting or resulting in a Corporate Change or (2) the
highest Fair Market Value of a Share during the ninety (90) day period
ending on the date of the Corporate Change.
(e) Unless the Committee shall determine otherwise at the time of
the grant of an Award, the restrictions upon Shares of Restricted Stock
shall lapse upon a Corporate Change. The Award Document evidencing the
Award shall set forth any such provision.
SECTION 10. TAXES
10.1 WITHHOLDING TAXES. The Company shall have the right to deduct from
any distribution of cash to any Optionee, an amount equal to the federal, state
and local income taxes and other amounts as my be required by law to be withheld
(the "Withholding Taxes") with respect to any Option. If an Optionee is entitled
to receive Shares upon exercise of an Option, the Optionee shall pay the
Withholding Taxes to the Company prior to the issuance, or release from escrow,
of such Shares. If an Optionee makes a disposition, within the meaning of Code
Section 424(c), of any Share or Shares issued pursuant to the exercise of an
incentive stock option within the two-year period commencing on the day after
the date of the grant or within a one-year period commencing on the day after
the date of transfer of such Share or Shares to the Optionee pursuant to such
exercise, the Optionee shall within ten (10) days of such disposition, notify
the Company thereof, by delivery of written notice to the Company at its
principal executive office, and immediately deliver to the Company the amount of
Withholding Taxes. At such time as an Award Holder who is an employee recognizes
taxable income in connection with the receipt of Shares hereunder (a "Taxable
Event"), the Award Holder shall pay to the Company an amount equal to the
federal, state and local income taxes and other amounts as may be required by
law to be withheld by the Company in connection with the Taxable Event prior to
the issuance, or release from escrow, of such Shares.
10.2 PAYMENT OF WITHHOLDING TAXES. Notwithstanding the terms of Section
10.1, the Committee may provide in an Award Document or otherwise that all or
any portion of the taxes required to be withheld by the Company or, if permitted
by the Committee, desired to be paid by the Participant, in connection with the
exercise of a
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Nonqualified Option or lapse of restrictions on Restricted Stock, but in no
event to exceed the supplemental tax rate for withholding tax purposes, at the
election of the Participant, may be paid by the Company by withholding shares of
the Company's capital stock otherwise issuable or subject to an Option, or by
the Participant delivering previously owned shares of the Company's capital
stock, in each case having a Fair Market Value equal to the amount required or
elected to be withheld or paid. Any such election is subject to such conditions
or procedures as may be established by the Committee and may be subject to
disapproval by the Committee. It is the Company's intent that this provision
shall in any event be administered in a manner that does not result in variable
accounting treatment of Option grants.
SECTION 11. AMENDMENTS OR TERMINATION
The Board may amend, alter or discontinue this Plan or an Award Document
made under this Plan at any time, but except as provided pursuant to the
anti-dilution adjustment provisions of Section 8 hereof, no such amendment
shall, without the approval of the stockholders of the Company:
(a) increase the maximum number of shares of common stock for which
Awards may be granted under this Plan;
(b) reduce the price at which Options may be granted below the price
provided for in Section 6.2;
(c) reduce the exercise price of outstanding Options;
(d) extend the term of this Plan;
(e) change the class of persons eligible to be Participants; or
(f) increase the number of shares subject to Nonemployee Director
Options granted to a Nonemployee Director above the number approved by
stockholders.
Notwithstanding the foregoing provisions of this Section 11, except as provided
in Sections 8 and 9 hereof, rights and obligations under any Award granted
before any amendment or termination of the Plan shall not be adversely altered
or impaired by such amendment or termination, except with the consent of the
Award Holder, nor shall any amendment or termination deprive any Award Holder of
any Shares which he or she may have acquired through or as a result the Plan.
SECTION 12. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Plan, the grant and, as applicable, exercise of Awards thereunder,
and the obligation of the Company to sell, issue or deliver Shares under such
Awards, shall be subject to all applicable federal, state and foreign laws,
rules and regulations and to such approvals by any governmental or regulatory
agency as may be required. The Company shall not be required to register in a
Participant's name or deliver any Shares prior to the completion of
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any registration or qualification of such Shares under any federal, state or
foreign law or any ruling or regulation of any government body which the
Committee shall determine to be necessary or advisable.
No restrictions upon Restricted Stock shall lapse, and no Option shall be
exercisable, unless a registration statement with respect to the Award is
effective or the Company has determined that such registration is unnecessary.
Unless the Awards and Shares covered by this Plan have been registered under the
Securities Act of 1933, as amended, or the Company has determined that such
registration is unnecessary, each person receiving an Award and/or Shares
pursuant to any Award may be required by the Company to give a representation in
writing that such person is acquiring such Shares for his or her own account for
investment and not with a view to, or for sale in connection with, the
distribution of any part thereof.
The Plan, Nonemployee Director Options and Nonemployee Affiliate Director
Options are intended to comply with Rule 16b-3 promulgated under the Exchange
Act and the Committee shall interpret and administer the provisions of the Plan
or Option Document in a manner consistent therewith. Any provisions of the Plan
inconsistent therewith shall be inoperative and shall not affect the validity of
the Plan. Unless otherwise expressly stated in the relevant Option Document,
each Option granted under the Plan is intended to qualify as performance-based
compensation within the meaning of Code Section 162(m)(4)(C).
SECTION 13. OPTION GRANTS BY SUBSIDIARIES
In the case of a grant of an Award to any eligible Employee employed by a
Subsidiary, such grant may, if the Committee so directs, be implemented by the
Company issuing any subject shares to the Subsidiary, for such lawful
consideration as the Committee may determine, upon the condition or
understanding that the Subsidiary will transfer the shares to the Award Holder
in accordance with the terms of the Award specified by the Committee pursuant to
the provisions of the Plan. Notwithstanding any other provision hereof, such
Award may be issued by and in the name of the Subsidiary and shall be deemed
granted on such date as the Committee shall determine.
SECTION 14. NO RIGHT TO COMPANY EMPLOYMENT
Nothing in this Plan or as a result of any Award granted pursuant to this
Plan shall confer on any individual any right to continue in the employ of the
Company or interfere in any way with the right of the Company to terminate an
individual's employment at any time. The Award Documents may contain such
provisions as the Committee may, in its discretion, approve with reference to
the effect of approved leaves of absence.
SECTION 15. LIABILITY OF COMPANY
The Company and any affiliate which is in existence or hereafter comes
into existence shall not be liable to a Participant, an Eligible Person or other
persons as to:
(a) The Non-Issuance of Shares. The non-issuance or sale of Shares
as to which the Company has been unable to obtain from any regulatory body
having
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jurisdiction the authority deemed by the Company's counsel to be necessary
to the lawful issuance and sale of any Shares hereunder; and
(b) Tax Consequences. Any tax consequence expected, but not
realized, by any Participant, Eligible Person or other person due to the
receipt, exercise or settlement of any Awards granted hereunder.
SECTION 16. EFFECTIVENESS AND EXPIRATION OF PLAN
This Plan shall be effective on the date the Company's stockholders adopt
this Plan. Individuals granted Awards under this Plan who were not otherwise
eligible under the Plan approved by Shareholders at the Annual Meeting held on
June 16, 2004 are subject to the approval of this Plan by the stockholders prior
to the first anniversary date of the effective date of this Plan as amended and
restated, by the affirmative vote of the holders of a majority of the
outstanding shares of the Company present, or represented by proxy, and entitled
to vote, at a meeting of the Company's stockholders or by written consent in
accordance with the laws of the State of Delaware; provided that if such
approval by the stockholders of the Company is not forthcoming, all Awards
granted to previously granted to such persons under this Plan shall be void. No
Awards shall be granted pursuant to this Plan more than ten (10) years after the
effective date of this Plan.
SECTION 17. NON-EXCLUSIVITY OF PLAN
Neither the adoption of this Plan by the Board nor the submission of this
Plan to the stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board or the Committee to adopt
such other incentive arrangements as either may deem desirable, including
without limitation, the granting of Awards otherwise than under this Plan, and
such arrangements may be either generally applicable or applicable only in
specific cases.
SECTION 18. GOVERNING LAW
This Plan and any agreements or other documents hereunder shall be
interpreted and construed in accordance with the laws of the State of Delaware
and applicable federal law. The Committee may provide that any dispute as to any
Award shall be presented and determined in such forum as the Committee may
specify, including through binding arbitration. Any reference in this Plan or an
Award Document to a provision of law or to a rule or regulation shall be deemed
to include any successor law, rule or regulation of similar effect.
IN WITNESS WHEREOF, the Company has caused this 2000 Equity Incentive Plan
(As Amended and Restated Effective June 16, 2004) and approved by the
stockholders to be executed by its duly authorized officer this 23rd day of
July, 2004.
Countrywide Financial Corporation
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By: /s/ Leora I. Goren
------------------------------------
Leora I. Goren
Managing Director, Human Resources
Attest:
/s/ Gerard A. Healy
---------------------------------
Gerard A. Healy
Assistant Secretary
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