EXHIBIT 10.44
APPENDIX I
This Appendix constitutes the UK Part of the Countrywide Credit Industries, Inc
2000 Equity Incentive Plan. The Terms of the UK Part are as follows:
SECTION A
1. INTERPRETATION
(1) The following words and expressions have the following meanings except
where the context otherwise requires:-
"Acquisition Price" the price, as determined by the Committee,
at which each Share subject to an Option may
be acquired on the exercise of that Option
which must not be less than the Fair Market
Value of a Share at the Date of Grant and,
if the Option relates to unissued Shares,
its nominal value, if greater.
The Acquisition Price may be varied under
Section 10 (if there is a variation in share
capital of the Company) and, if Section 12
has been applied (if there is an exchange of
options following a change of control of the
Company or the compulsory purchase of a
minority interest), the "Acquisition Price"
shall be the price for the acquisition of a
share in the company whose shares are
subject to Options pursuant to Section 12;
"Approval" approval of Section A as a share option
scheme under Schedule 4 of ITEPA;
"Date of Grant" the date on which an Option is granted under
Section 3;
"Employment" employment as
(a) an employee of the Company or a
Subsidiary; or
(b) a director of the Company or a
Subsidiary who is required to
devote substantially the whole of
his working time, not being less
than 25 hours per week, excluding
meal breaks to the performance of
his duties;
"Fair Market Value" (a) where the Shares are not listed on the
New York Stock Exchange an amount equal to
the market value of a Share determined in
accordance with Part VIII
of the Taxation of Chargeable Gains Act 1992
agreed in advance of the Date of Grant for
the purposes of the UK Part with the Share
Valuation Division of the Inland Revenue; or
(b) where the Shares are listed on the New
York Stock Exchange, the average of the high
and the low quotations of a Share as at the
Date of Grant as derived from the official
list of the New York Stock Exchange;
"Group" the Company and its Subsidiaries;
"ICTA 1988" Income and Corporation Taxes Act 1988;
"Issue or Reorganisation" any variation in the capital of the Company
arising from or in connection with a
capitalisation issue (whether made pursuant
to an enhanced scrip dividend arrangement or
otherwise) or an offer to the holders of
Shares or a subdivision, consolidation,
reduction or other variation of share
capital;
"ITEPA" Income Tax (Earnings and Pensions) Act 2003;
"Participant" any individual who has been granted an
Option including, if relevant, his legal
personal representatives;
"Revenue Limit" Pound Sterling 30,000 or such other amount
as may from time to time be the appropriate
limit of the purpose of paragraph 6 of
Schedule 4;
"Schedule 4" Schedule 4 to ITEPA;
"Share" an ordinary share in the capital of the
Company which satisfies the conditions of
paragraphs 16 to 20 of Schedule 4;
"Subsidiary" a company which is a subsidiary of the
Company within the meaning of Section 736 of
the Companies Act 1985;
"Vesting Date" Such date or dates specified by the
Committee at the Date of Grant on which an
Option (or part of an option) can first be
exercised.
(2) Other words or expressions, so far as not inconsistent with the
context, shall have the same meaning as in Schedule 4.
(3) In the event of any conflict between this Appendix and the rules of the
Plan, in respect of options granted under the UK Part this Appendix
shall prevail.
(4) Words importing the singular shall include the plural and vice versa
and words importing the masculine shall include the feminine.
(5) Any reference, express or implied, to an enactment includes references
to:
(a) that enactment as amended, extended or applied by or under any
other enactment; and
(b) any enactment which that enactment re-enacts (with or without
modification).
2. ELIGIBILITY
(1) No person is entitled as of right to participate in the UK Part of the
Plan. The Committee may extend participation from time to time to any
person holding Employment and shall decide the extent of the
participation.
(2) No person shall be granted an Option if he is precluded from
participating in the UK Part of the Plan by paragraph 9 of Schedule 4.
3. GRANT OF OPTIONS
(1) The Committee may adopt any procedure for granting or procuring the
grant of Options. The form for the time being of any Option certificate
or other document shall be determined by the Committee subject to the
approval of the Inland Revenue.
(2) Options may be granted by deed at the Acquisition Price. A single deed
of grant may be executed in favour of any number of persons.
(3) The Date of Grant of an Option shall be the day on which the deed
granting the Option is executed, or such later date as may be specified
in the deed.
(4) An Optionee may, with the consent of the Committee, renounce the
Option, in whole or in part, within 30 days of the Date of Grant and,
to the extent renounced, the Option shall be treated as if it had never
been granted.
(5) No Option may be granted under Section A until Approval has been
obtained.
(6) As soon as practicable after an Option has been granted an Option
certificate shall be sent to the Participant. The deed of grant shall
be retained and may be inspected by any Participant entitled under it.
(7) An Option shall constitute a contract between the Company and the
Participant incorporating the provisions of the Plan so far as
relevant.
4. PROHIBITION ON ASSIGNMENT
No Option granted under the Plan may be transferred, assigned, charged
or otherwise alienated (without prejudice to any right of a person's
legal personal representatives to exercise the Option following death).
5. LIMIT ON ISSUE OF NEW SHARES
The total number of Shares that may be issued under the Plan, including
the UK Part, shall not exceed the number set forth in the Plan. In the
event of an Issue or Reorganisation, this number of Shares may be
adjusted in such manner as the Committee decides.
6. LIMIT ON PARTICIPATION
(1) The aggregate market value of Shares which an Optionee may acquire in
pursuance of rights obtained under the Scheme or under any other share
option scheme approved under Schedule 4 established by the Company or
by any associated company (within the meaning of paragraph 35 of
Schedule 4) of the Company (and not exercised), such aggregate market
value being determined at the time the rights are obtained, shall not
exceed the Revenue Limit.
(2) For the avoidance of doubt, the number of Shares in any Option shall,
where necessary, be limited and take effect as that number which
ensures that the Revenue Limit is not exceeded.
7. EXERCISE OF OPTION
(1) Subject to Section 7(3) and (4), an Option shall be capable of being
exercised, unless the Option has lapsed, at any time following the
earliest of:
(a) the third anniversary of the Date of Grant or such other
Vesting Dates as specified by Committee;
(b) the Optionee ceasing to be in Employment by reason of
disability, redundancy (within the meaning of the Employment
Rights Act 1996) or retirement at any other age at which the
Optionee is bound to retire in accordance with the terms of
his contract of employment;
(c) the Optionee ceasing to be in Employment by reason of the
Subsidiary by which he is employed ceasing to be within the
Group or by reason of the transfer or sale of the undertaking
or part of the undertaking in which he is employed to a person
who is not within the Group;
(d) the occurrence of the circumstances permitting the exercise of
Options specified in Section 12.
(2) An Option shall, unless the Option has lapsed, be capable of being
exercised following the Optionee's death.
(3) An Option may not be exercised by an Optionee at any time when he is
ineligible to participate in the Scheme by virtue of paragraph 9 of
Schedule 4.
(4) An Optionee shall not be treated for the purposes of Sections 7, 8, or
9 as ceasing to be in Employment until such time as he is no longer a
director or employee of any company within the Group and a female
Participant who ceases Employment by reason of pregnancy or confinement
and who is entitled to exercise and subsequently exercises her
statutory right (or any corresponding contractual right) to return to
work before exercising an Option shall be treated for those purposes as
not ceasing to be in Employment.
8. LAPSE OF OPTION
Unless provided otherwise elsewhere in the Sections, an Option shall
lapse to the extent that it has not been exercised (whether or not it
became exercisable) by the earliest of:
(a) the tenth anniversary of the Date of Grant;
(b) the expiry of twelve months from the date on which the
Optionee ceases to he in Employment by reason of death,
disability, redundancy (within the meaning of the Employment
Rights Act 1996) or retirement at any other age of which the
Optionee is bound to retire in accordance with the terms of
his contract of employment;
(c) the expiry of six months from the date on which the Optionee
ceases to be in Employment by reason of the Subsidiary by
which he is employed ceasing to be within the Group or the
transfer or sale of the undertaking or part of the undertaking
in which he is employed to a person who is not within the
Group;
(d) the date on which the Optionee ceases to be in Employment by
reason of Cause;
(e) the expiry of three months from the date on which the Optionee
ceases to be in Employment in any circumstances other than
those referred to in sub-paragraphs (b), (c) and (d) of this
paragraph;
(f) the date on which an Optionee enters into a composition with
his creditors in satisfaction of his debts or a bankruptcy
order is made against him.
9. CESSATION OF EMPLOYMENT - SPECIAL CIRCUMSTANCES
If an Option would lapse at the end of any period specified in Section
8 following the cessation of the Participant's Employment the Committee
may, at least three months prior to the end of that period, defer the
lapse of his Option until the end of such longer period as it may
determine, provided that Options shall not be exercisable after the
tenth anniversary of the Date of Grant.
10. MANNER OF EXERCISE AND ISSUE OR TRANSFER OF SHARES
(1) An Option may be exercised by the Participant giving notice of exercise
in a form approved by the Committee to the Company accompanied by the
relevant option certificate and payment of the total Acquisition Price
of the Shares in respect of which the Option is exercised (or an
agreement to provide such monies pursuant to arrangements acceptable to
the Company).
(2) An Option may be exercised in whole or in part and, in the event of an
Option being exercised in part the Committee may call in or cancel any
outstanding option certificate and furnish the Participant with details
of the date on which the Option was last exercised and the number of
Shares outstanding under the Option. The Committee may determine at the
Date of Grant that the Option may only be exercised in respect of a
reasonable minimum number of Shares and/or in respect of a multiple of
any round number of Shares, or in respect of the balance of Shares
outstanding in the Option.
(3) Shares in respect of which the Option has been exercised shall be
allotted or transferred within 30 days of the date of exercise.
(4) Shares issued under the Plan will rank pari passu in all respects with
issued Shares of the same class. However, they will not be entitled to
any rights attaching to Shares by reference to a record date prior to
the date of allotment of Shares pursuant to the exercise of the Option
prior to the date of exercise of the Option.
(5) Each Option granted under this Appendix is subject to the condition
that an exercise of the Option shall not be valid unless the
Participant has, in addition to complying with the other requirements
of this Appendix, paid to the member of the Group which is (or, in the
case of an Optionee no longer employed by the Group, was) his employer,
or otherwise provided for (in a manner satisfactory to that member of
the Group), an amount equal to the income tax and/or primary Class 1
National Insurance Contributions, if appropriate (or local equivalent
in jurisdictions other than the United Kingdom) which any member of the
Group may be required to pay by reason of that exercise and any
secondary Class 1 National Insurance Contributions that the Participant
has agreed to pay.
(6) Without limitation to (1) above, the Company or any member of the Group
which is an Optionee's employer may withhold any amount and make such
arrangements as it considers necessary to meet any liability of the
Optionee to taxation or social security contributions in respect of the
grant, exercise or cancellation of options (or otherwise from benefits
delivered under this Scheme). These arrangements may include the sale
of any shares on behalf of an Optionee, unless the Optionee discharges
the liability himself.
11. ISSUE OR REORGANISATION
(1) In the event of any Issue or Reorganisation:
(a) the number of Shares comprised in an Option; and/or
(b) the Acquisition Price under an Option
may be adjusted in such manner as the Committee decides, with the prior
approval of the Inland Revenue.
(2) If an Option relates to unissued Shares an adjustment under paragraph
(1) above may reduce or further reduce the Acquisition Price below the
nominal value of a Share if:
(a) a part of the reserves of the Company equal to the difference
between the adjusted Acquisition Price and the nominal value
of the Shares concerned ("Relevant Amount") is capitalised
when the Option is exercised so as to pay up the Relevant
Amount; and
(b) the Company has sufficient reserves available.
(3) The Committee may notify Participants of any adjustments made under
this Section 11 and may call in, cancel, endorse, issue or reissue any
option certificate or deed of grant following an adjustment.
12. TAKEOVER, RECONSTRUCTION AND VOLUNTARY WINDING-UP OF THE COMPANY
(1) Upon the occurrence of a Corporate Change an Optionee may, subject to
the provisions of Section 8, be entitled to exercise his Option.
(2) For the purposes of Options granted under this Part, the word "merger"
in the Plan shall mean a transaction whereby any company:
(a) obtains Control (as defined for the purposes of this Section
12 in Section 840 of ICTA) of the Company as a result of
making:
(i) a general offer to acquire the whole of the issued
share capital of the Company which is made on a
condition such that if it is satisfied the person
making the offer will have Control of the Company; or
(ii) a general offer to acquire all the shares in the
Company which are of the same class as the Plan
shares; or
(b) obtains Control of the Company in pursuance of a compromise or
arrangement under local law similar to Section 425 of the
Companies Act 1985 (schemes of arrangement); or
(c) becomes bound or entitled to acquire Shares under local law
similar to Sections 428 to 430F of the Companies Act 1985
(compulsory purchase of minority interests).
but, for the avoidance of doubt, any merger that is a "Non-Control
Transaction" in the terms of the Plan does not give rise to a right to
exercise an Option.
13. AMENDMENT TO PLAN SECTIONS AND ADDITIONAL SECTIONS
(1) Subject to paragraph (3) and (4) below the Committee may by resolution
at any time amend this Part in any respect except that any amendment
made when the Scheme is approved under Schedule 4 shall not have effect
until approved by the Inland Revenue.
(2) No amendment shall be made under paragraph (1) which would abrogate or
materially affect adversely the subsisting rights of an Optionee unless
it is made with his written consent or by a resolution passed as if the
Options constituted a separate class of share capital and the
provisions of the By-laws of the Company.
(3) No amendment to the advantage of Optionees (except for an amendment
which could be included in an additional section adopted under
paragraph (2) above) may be made to:
(a) the persons to whom Options may be granted under the Plan;
(b) the limitations on the number of Shares which may be issued
under the Plan;
(c) the determination of the Acquisition Price;
(d) the rights of Optionees in the event of an Issue or
Reorganisation;
(e) the terms of this paragraph 13(3);
without the prior approval by ordinary resolution of the Company in
general meeting except in the case of a minor amendment to benefit the
administration of this Plan, to take account of a change in legislation
or to obtain or maintain favourable tax, exchange control or regulatory
treatment for participants in the Plan, the Company, or any subsidiary.
14. DISAPPLICATION OF PLAN RULES
The following sections of the Plan shall not apply to the UK Part:
(a) section 6.4;
(b) section 6.6;
(c) section 6.7;
(d) section 8.2; and
(e) section 9.2.
SECTION B
1. Subject as specified below, this Section shall incorporate all the
provisions of Section A set out above.
2. This Section shall not be approved by the Inland Revenue under Schedule
4 to ITEPA 2003. Accordingly, the definitions of "Approval", "Revenue
Limit" and "Schedule 4" shall not apply and references in Section A to
these definitions and, in particular, Rule 7(1) shall have no effect,
and any provision which would otherwise require Inland Revenue approval
to be obtained or which is otherwise referable solely to Inland Revenue
requirements shall not apply.
3. Notwithstanding any provision of Section A, an Option granted under
Section B shall lapse to the extent that it has not been exercised
(whether or not it became exercisable) or cancelled on the expiry of
ten years following the Date of Grant.
4. The Committee shall designate whether an Option is granted under
Section A or B.
5. The Committee may determine that any Option granted under Section B
shall be subject to additional and/or modified terms and conditions,
having regard to any securities, exchange control or taxation laws,
regulations or practice which may have application to the Optionee,
Company or any Subsidiary. In particular the Committee may:
(1) require an Optionee to make such declarations and take such
other action (if any) as may be required under, or as may be
expedient or desirable for any purpose of, securities, tax or
other law; and
(2) adopt supplemental rules governing the granting of Options to,
and the exercise of Options by, an Optionee as may be required
under, or as may be expedient or desirable for any purpose of,
local securities, tax or other law,
but any modification and/or the adoption of supplemental rules shall be
subject to Rule (13(2)) of Section A.
6. (1) Each Option granted under this Section B is subject to the
condition that an exercise of the Option shall not be valid
unless the Participant has, in addition to complying with the
other requirements of this Section B, paid to the member of
the Group which is (or, in the case of an Optionee no longer
employed by the Group, was) his employer, or otherwise
provided for (in a manner satisfactory to that member of the
Group), an amount equal to the income tax and/or primary Class
1 National Insurance Contributions, if appropriate (or local
equivalent in jurisdictions other than the United Kingdom)
which any member of the Group may be required to pay by reason
of that exercise.
(2) Without limitation to (1) above, the Company, any member of
the Group which is an Optionee's employer may withhold any
amount and make such arrangements as it considers necessary to
meet any liability of the Optionee to taxation or social
security contributions in respect of the grant, exercise or
cancellation of options (or otherwise from benefits delivered
under this Scheme). These arrangements may include the
sale of any shares on behalf of an Optionee, unless the
Optionee discharges the liability himself.
(3) The grant of the option constitutes the agreement of the
Optionee:
(i) to allow the employer to recover (whether by
deduction or otherwise) the whole of any secondary
class I national insurance contributions payable in
respect of a gain that is treated as remuneration
derived from the Participant's employment by virtue
of section 4(4)(a) of the Social Security and
Benefits Act 1992, such agreement being an agreement
for the purpose of paragraph 3A(2) of Schedule 1 to
that Act; and
(ii) to make and join in the making at any time if the
Company so requests, of an election under paragraph
3B(1) of Schedule 1 to that Act,
and the grant of the option irrevocably constitutes the
Company as the attorney of the Participant, by way of
security, for its purposes of the Powers of Attorney Act 1971
for the purpose of making and joining in any such election.