-----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, Kf95REkpKN245Kg6Td41N7YhncHQTNUlrxC6ClPwzMxaIC78LRggMS5Qz+JGG4Q/ x6oVT9ALkukchscnudIECQ== 0001157523-05-003132.txt : 20050407 0001157523-05-003132.hdr.sgml : 20050407 20050406190138 ACCESSION NUMBER: 0001157523-05-003132 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 12 CONFORMED PERIOD OF REPORT: 20050331 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050407 DATE AS OF CHANGE: 20050406 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AmNet Mortgage, Inc. CENTRAL INDEX KEY: 0001035744 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 330741174 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13485 FILM NUMBER: 05737949 BUSINESS ADDRESS: STREET 1: 10421 WATERIDGE CIRCLE CITY: SAN DIEGO STATE: CA ZIP: 92121 BUSINESS PHONE: 858 909 1340 MAIL ADDRESS: STREET 1: 10421 WATERIDGE CIRCLE CITY: SAN DIEGO STATE: CA ZIP: 92121 FORMER COMPANY: FORMER CONFORMED NAME: AmNet Morgage, Inc. DATE OF NAME CHANGE: 20040512 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN RESIDENTIAL INVESTMENT TRUST INC DATE OF NAME CHANGE: 19970808 8-K 1 a4858777.txt AMNET MORTGAGE, INC. UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) March 31, 2005 AmNet Mortgage, Inc. (Exact name of registrant as specified in its charter) Maryland 1-13485 33-0741174 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 10421 Wateridge Circle, Suite 250 San Diego, CA 92121 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (858) 909-1200 (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) 1 Item 1.01 Entry into a Material Definitive Agreement Approval of New Forms of Equity Award Agreements and Compensation Programs and Plans. On March 31, 2005, the Compensation Committee (the "Committee") of the Board of Directors of AmNet Mortgage, Inc. (the "Company") approved (i) the adoption of five new forms of equity award agreements for use under the Company's 2004 Equity Incentive Plan (the "Plan") and (ii) the adoption of three new cash compensation programs or plans. On April 4, 2005, the Board of Directors of the Company approved (i) the adoption of two new forms of equity award agreements for use under the Plan and (ii) revisions to the compensation terms for the Company's non-employee directors. The following descriptions of the new forms of equity award agreements and compensation programs and plans are qualified in their entirety by reference to the actual forms of agreements, programs and plans that are attached as exhibits to this Current Report on Form 8-K and are hereby incorporated by reference. -Standard Restricted Stock Agreement. The Committee may, in its sole and absolute discretion, elect to grant restricted stock subject to this standard form of agreement. No monetary payment is required in exchange for an award of restricted stock pursuant to this form, instead, the Company may make awards of restricted stock for past services actually rendered and/or future services to be rendered to the Company. The restricted shares, to the extent unvested, shall be subject to forfeiture and may be held by the Company in an escrow account. If a change in control of the Company occurs, this standard form of restricted stock agreement will provide that the stock awarded pursuant to this form would become fully vested on the date of such change in control. A copy of this standard restricted stock agreement is attached as Exhibit10.27. -Long Term Incentive Plan Restricted Stock Agreement. The Committee may, in its sole and absolute discretion, elect to grant restricted stock subject to this form of agreement. No monetary payment is required in exchange for an award of restricted stock pursuant to this form, instead, the Company may make awards of restricted stock for past services actually rendered and/or future services to be rendered to the Company. The restricted shares, to the extent unvested, shall be subject to forfeiture and may be held by the Company in an escrow account. If a change in control of the Company occurs, this standard form of restricted stock agreement will provide that the stock awarded pursuant to this form would become fully vested on the date of such change in control. In addition, in the event of the awardees termination of employment without cause, voluntary resignation for good reason, or termination due to death or disability, the stock awarded pursuant to this form will also become fully vested on such termination date. A copy of this restricted stock agreement is attached as Exhibit 10.28. -Standard Restricted Stock Unit Agreement. The Committee may, in its sole and absolute discretion, elect to grant restricted stock units subject to this standard form of agreement. No monetary payment is required in exchange for an award of restricted stock units pursuant to this form, instead, the Company may make awards of restricted stock units for past services actually rendered and/or future services to be rendered to the Company. The restricted stock units, to the extent unvested, shall be subject to forfeiture, however, once such restricted stock units are vested, the Company shall issue to the awardee, in settlement of the restricted stock unit award, a number of shares of Company stock equal to the units vested. If a change in control of the Company occurs, this standard form of restricted stock unit agreement will provide that the restricted stock units awarded pursuant to this form would become vested and settled prior to the change in control in an amount determined by the years of service the awardee has provided to the Company as of the date of the change in control. A copy of this standard restricted stock unit agreement is attached as Exhibit 10.29. -Executive Restricted Stock Unit Agreement. The Committee may, in its sole and absolute discretion, elect to grant restricted stock units subject to this executive form of agreement. No monetary payment is required in exchange for an award of restricted stock units pursuant to this form, instead, the Company may make awards of restricted stock units for past services actually rendered and/or future services to be rendered to the Company. The restricted stock units, to the extent unvested, shall be subject to forfeiture, however, once such restricted stock units are vested, the Company shall issue to the awardee, in settlement of the restricted stock unit award, a number of shares of Company stock equal to the units vested. If a change in control of the Company occurs, this form of restricted stock unit agreement will provide that the restricted stock units awarded pursuant to this form would become fully vested and be settled on the date of such change in control. A copy of this executive restricted stock unit agreement is attached as Exhibit 10.30. -Stock Option Agreement. The Committee may, in its sole and absolute discretion, elect to grant stock options subject to this form of agreement providing for single trigger acceleration upon a change in control. Any stock option granted pursuant to this form may be either an incentive stock option or nonstatutory stock option. The exercise price of any such stock option will always be at least equal to the fair market value of a share of Company stock on the date of grant. The vested portion of any stock option must be exercised, if at all, within one (1) month after the optionee's termination of employment. However, if the optionee terminates employment as a result of total and permanent disability or death, the option must be exercised, if at all, within six (6) months after such termination. If a change in control of the Company occurs, this single trigger form of stock option agreement will provide that the stock options granted pursuant to this form would become fully vested on the date of such change in control. A copy of this stock option agreement is attached as Exhibit10.31. 2 -2005 Executive Officer Annual Cash Bonus Program . The goal of this program is to provide an annual incentive to the Company's executive officers to maximize the Company's financial performance and achieve specified strategic and individual goals in 2005. As a threshold to the payment of bonuses for the year, the Company must achieve minimum financial targets. The CEO's bonus is based entirely on financials goals for the Company. Each other executive officer's bonus will be based primarily on financial goals for the Company and to a lesser extent on individual goals. If the target goals are met, the officers will receive a bonus payment equal to 90% (CEO) or 80% (other officers) of their base salary. If the targets are exceeded, each executive officer may earn a maximum bonus of up to 135% (CEO) or 120% (all other officers) of his or her base salary. If target goals are not met, the bonus will be reduced or no bonus may be awarded. A copy of this executive bonus program is attached as Exhibit 10.32. -Cash Long Term Incentive Program (2005-2006). This program was adopted under the Plan. The goal of this program is to provide long term incentives to the Company's executive officers and certain other officers to maximize the Company's financial performance. Under the program, the Committee has set two performance measurements for the two year performance period of 2005-2006. Prior to any award being granted under the program, the Company must meet or exceed a return on stockholders equity threshold set by the Committee. To determine the amount of an award, the Committee has set a target goal based on the Company's cumulative income before income taxes for the program period. If the target is met, the officers will receive an award payment equal to 50% (CEO), 33.3% (other executive officers) or 16.7% (other officers) of their base salary in effect at the beginning of the performance period. If the target is exceeded, each executive officer may earn a maximum award of up to 75% (CEO), 50% (all other executive officers) or 25% (other officers) of his or her base salary. At below target, lower awards may be earned however no awards will be granted at below 75% of the target. If a change in control occurs, the executive officers shall receive the amount that would be paid under the program upon achieving the target goal and other officers will receive amounts determined by the Committee in its discretion. All awards shall be paid in cash. A copy of this program is attached as Exhibit 10.33. -Cash Long Term Incentive Program (2005-2007). This program was adopted under the Plan. The goal of this program is to provide long term incentives to the Company's executive officers and certain other officers to maximize the Company's financial performance. Under the program, the Committee has set two performance measurements for the three year performance period of 2005-2007. Prior to any award being granted under the program, the Company must meet or exceed a return on stockholders equity threshold set by the Committee. To determine the amount of an award, the Committee has set a target goal based on the Company's cumulative income before income taxes for the program period. If the target is met, the officers will receive an award payment equal to 75% (CEO), 50% (other executive officers) or 25% (other officers) of their base salary in effect at the beginning of the performance period. If the target is exceeded, each executive officer may earn a maximum award of up to 112.5% (CEO), 75% (all other executive officers) or 37.5% (other officers) of his or her base salary. At below target, lower awards may be earned however no awards will be granted at below 75% of the target. If a change in control occurs, the executive officers shall receive the amount that would be paid under the program upon achieving the target goal and other officers will receive amounts determined by the Committee in its discretion. All awards shall be paid in cash. A copy of this program is attached as Exhibit 10.34. -Director Stock Option Agreement. Any stock option granted to a non-employee director pursuant to the Plan shall be, until amended by the Committee, subject to the terms and conditions of this form. The stock options granted pursuant to this form shall be nonstatutory stock options. The exercise price of any such stock option will always be at least equal to the fair market value of a share of Company stock on the date of grant. The vested portion of any stock option must be exercised, if at all, within one (1) month after the director's termination of service. However, if the director terminates service as a result of total and permanent disability or death, the option must be exercised, if at all, within six (6) months after such termination. If a change in control of the Company occurs, this form of director stock option agreement will provide that the stock options granted pursuant to this form would become fully vested on the date of such change in control. A copy of this stock option agreement is attached as Exhibit 10.35. 3 -Director Restricted Stock Agreement. Any restricted stock granted to a non-employee director pursuant to the Plan shall be, until amended by the Committee, subject to the terms and conditions of this form. No monetary payment is required in exchange for an award of restricted stock pursuant to this form, instead, the Company may award directors shares of restricted stock for past services actually rendered and/or future services to be rendered to the Company. The restricted shares, to the extent unvested, shall be subject to forfeiture and may be held by the Company in an escrow account. If a change in control of the Company occurs, this form of director restricted stock agreement will provide that the stock awarded pursuant to this form would become fully vested on the date of such change in control. A copy of this restricted stock agreement is attached as Exhibit 10.36. Director Compensation Terms. Each non-employee director of our Company will be paid annual cash compensation of $22,000 with an additional $1,200 paid for attendance in person at a regularly scheduled board meeting, $1800 for attendance in person at a regularly scheduled Audit Committee meeting, $1,000 for attendance in person at a special board meeting or any committee meetings other than Audit Committee meetings, $600 for attending a regular board meeting telephonically and $500 for attending a special board meeting or any committee meeting telephonically. Committee chairpersons receive additional annual compensation as follows: Audit Committee, $5,000 and other committees $3,000. In addition, the directors will be paid at an hourly rate of $250 for time spent outside of meetings on board or committee matters other than in preparation for regularly scheduled board or committee meetings. All directors will be reimbursed for any expenses related to attendance at meetings of the Board or committees of the Board or our stockholders meeting. In addition to cash compensation, each non-employee director of our Company receives an initial equity grant of at the time he begins service as a director. The initial grant vests over a three-year period (one-third every twelve months). Thereafter, each non-employee director of our Company receives an annual equity grant to be awarded on the date of the annual meeting of our stockholders. Such grant vests after one year. The initial equity grant and the annual equity grant to the non-employee directors will consist of a restricted stock award of 2,300 shares and an option grant of 3,300 shares, with the option exercise price equal to the fair market value on the date of grant. A schedule of the compensation terms is attached as Exhibit 10.37. Item 9.01 Financial Statements and Exhibits. (a) Not applicable. (b) Not applicable. (c) Exhibits. 10.27 Form of Restricted Stock Agreement 10.28 Form of Long Term Incentive Plan Restricted Stock Agreement 10.29 Form of Standard Restricted Stock Unit Agreement 10.30 Form of Executive Restricted Stock Unit Agreement 10.31 Form of Stock Option Agreement 10.32 Executive Officer Annual Cash Bonus Program 10.33 Cash Long Term Incentive Program (2005-2006) 10.34 Cash Long Term Incentive Program (2005-2007) 10.35 Form of Director Stock Option Agreement 10.36 Form of Director Restricted Stock Agreement 10. 37 Schedule of Director Compensation 4 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. AmNet Mortgage, Inc. Date: April 6, 2005 /s/ John Robbins ----------------------- John Robbins Chief Executive Officer 5 EXHIBIT INDEX Exhibit No. Description ----------- ----------- 10.27 Form of Restricted Stock Agreement 10.28 Form of Long Term Incentive Plan Restricted Stock Agreement 10.29 Form of Standard Restricted Stock Unit Agreement 10.30 Form of Executive Restricted Stock Unit Agreement 10.31 Form of Stock Option Agreement 10.32 Executive Officer Annual Cash Bonus Program 10.33 Cash Long Term Incentive Program (2005-2006) 10.34 Cash Long Term Incentive Program (2005-2007) 10.35 Form of Director Stock Option Agreement 10.36 Form of Director Restricted Stock Agreement 10.37 Schedule of Director Compensation 6 EX-10.27 2 a4858777ex-1027.txt EXHIBIT 10.27 Exhibit 10.27 AMNET MORTGAGE, INC. NOTICE OF GRANT OF RESTRICTED STOCK AWARD (Standard Employee Form) ________________________ (the "Participant") has been granted an award (the "Award") pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan") of certain shares of Stock (the "Shares") of AmNet Mortgage, Inc., as follows: Grant Number: ___________________________ Date of Grant: ___________________________ Total Number of Shares: ___________________________ Initial Vesting Date: The first anniversary of the Date of Grant. Vested Shares: Except as provided in the Restricted Stock Agreement, the number of Vested Shares (disregarding any resulting fractional share) as of any date is determined by multiplying the Total Number of Shares by the "Vested Ratio" determined as of such date as follows: Vested Ratio ------------ Prior to Initial Vesting Date 0 On Initial Vesting Date, provided the Participant's Service has not terminated prior to such date 1/3 Plus: ----- For each additional full year of the Participant's continuous Service from Initial Vesting Date until the Vested Ratio equals 1/1, an additional 1/3 By their signatures below, the Company and the Participant agree that the Award is governed by this Notice and by the provisions of the Plan and the Restricted Stock Agreement attached to and made a part of this document. The Participant acknowledges receipt of a copy of the Plan and the Restricted Stock Agreement, and represents that the Participant has read and is familiar with the provisions of the Plan, this Notice and the Restricted Stock Agreement, and hereby accepts the Award subject to all applicable terms and conditions. AMNET MORTGAGE, INC. PARTICIPANT By: --------------------------------------- ------------------------- Signature Its: -------------------------------------- ------------------------- Date Address: 10421 Wateridge Circle Suite 250 ------------------------- San Diego, CA 92121 Address ATTACHMENTS: AmNet Mortgage, Inc. 2004 Equity Incentive Plan, Restricted Stock Agreement; Joint Escrow Instructions; Assignment Separate from Certificate 7 AMNET MORTGAGE, INC. RESTRICTED STOCK AGREEMENT (Standard Employee Form) AmNet Mortgage, Inc. has granted to the Participant named in the Notice of Grant of Restricted Stock Award (the "Notice") to which this Restricted Stock Agreement (the "Agreement") is attached an Award consisting of Shares subject to the terms and conditions set forth in the Notice and this Agreement. The Award has been granted pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan"). By signing the Notice, the Participant: (a) represents that the Participant has read and is familiar with the terms and conditions of the Plan, the Notice and this Agreement, (b) accepts the Award subject to all of the terms and conditions of the Plan, the Notice and this Agreement, (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under the Plan, the Notice or this Agreement, and (d) acknowledges receipt of a copy of the Plan, the Notice, and this Agreement. 1. DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. Unless otherwise defined in the Notice, defined terms not explicitly defined in this Agreement but defined in the Plan shall have the same definitions as in the Plan. 1.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term "or" is not intended to be exclusive, unless the context clearly requires otherwise. 2. THE AWARD. 2.1 Grant and Issuance of Shares. On the Date of Grant, the Participant will acquire and the Company will issue, subject to the provisions of this Agreement, a number of Shares equal to the Total Number of Shares set forth in the Notice. As a condition to the issuance of the Shares, the Participant shall execute and deliver to the Company along with the Notice (a) the Joint Escrow Instructions in the form attached to the Notice and (b) the Assignment Separate from Certificate duly endorsed (with date and number of shares blank) in the form attached to the Notice. 2.2 No Monetary Payment Required. The Participant is not required to make any monetary payment (other than applicable tax withholding, if any) as a condition to receiving the Shares, the consideration for which shall be past services actually rendered and/or future services to be rendered to the Company or for its benefit. 2.3 Certificate Registration. The certificate for the Shares shall be registered in the name of the Participant, or, if applicable, in the names of the heirs of the Participant. 2.4 Issuance of Shares in Compliance with Law. The issuance of the Shares shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No Shares shall be issued hereunder if their issuance would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company's legal counsel to be necessary to the lawful issuance of any Shares shall relieve the Company of any liability in respect of the failure to issue such Shares as to which such requisite authority shall not have been obtained. As a condition to the issuance of the Shares, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company. 3. VESTING CONDITIONS. 3.1 Normal Vesting. Except as provided in Section 3.2, the Shares shall vest and become Vested Shares as provided in the Notice. No additional Shares will become Vested Shares following the Participant's termination of Service for any reason. Shares that are not Vested Shares ("Unvested Shares") shall be subject to the reacquisition rights set forth in Section 4.1 below. 8 3.2 Acceleration of Vesting Upon a Change in Control. In the event of a Change in Control, the vesting of the Shares shall be one hundred percent (100%) accelerated as of the date of the Change in Control, provided that the Participant's Service has not terminated prior to such date. 4. COMPANY REACQUISITION RIGHT. 4.1 Grant of Company Reacquisition Right. In the event that (a) the Participant's Service terminates for any reason or no reason, with or without cause, or (b) the Participant, the Participant's legal representative, or other holder of the Shares, attempts to sell, exchange, transfer, pledge, or otherwise dispose of (other than pursuant to an Ownership Change Event), including, without limitation, any transfer to a nominee or agent of the Participant, any Unvested Shares, the Company shall automatically reacquire the Unvested Shares, and the Participant shall not be entitled to any payment therefor (the "Company Reacquisition Right"). 4.2 Ownership Change Event. Upon the occurrence of an Ownership Change Event, any and all new, substituted or additional securities or other property to which the Participant is entitled by reason of the Participant's ownership of Unvested Shares shall be immediately subject to the Company Reacquisition Right and included in the terms "Shares," "Stock," and "Unvested Shares" for all purposes of the Company Reacquisition Right with the same force and effect as the Unvested Shares immediately prior to the Ownership Change Event. 5. TAX MATTERS. 5.1 Tax Withholding. At the time the Notice is executed, or at any time thereafter as requested by the Company, the Participant hereby authorizes withholding from any amounts payable to the Participant, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company, if any, which arise in connection with the Award, including, without limitation, obligations arising upon (a) the transfer of Shares to the Participant, (b) the lapsing of any Vesting Conditions with respect to any Shares, (c) the filing of an election to recognize tax liability, or (d) the transfer by the Participant of any Shares. The Company shall have no obligation to deliver the Shares or to release any Shares from an escrow established pursuant to this Agreement until the tax withholding obligations of the Company have been satisfied by the Participant. 5.2 Election Under Section 83(b) of the Code. (a) The Participant understands that Section 83 of the Code taxes as ordinary income the difference between the amount paid for the Shares, if anything, and the fair market value of the Shares as of the date on which the Shares are "substantially vested," within the meaning of Section 83. In this context, "substantially vested" means that the right of the Company to reacquire the Shares pursuant to the Company Reacquisition Right has lapsed. The Participant understands that he or she may elect to have his or her taxable income determined at the time he or she acquires the Shares rather than when and as the Company Reacquisition Right lapses by filing an election under Section 83(b) of the Code with the Internal Revenue Service no later than thirty (30) days after the date of acquisition of the Shares. The Participant understands that failure to make a timely filing under Section 83(b) will result in his or her recognition of ordinary income, as the Company Reacquisition Right lapses, on the difference between the purchase price, if anything, and the fair market value of the Shares at the time such restrictions lapse. The Participant further understands, however, that if Shares with respect to which an election under Section 83(b) has been made are forfeited to the Company pursuant to its Company Reacquisition Right, such forfeiture will be treated as a sale on which there is realized a loss equal to the excess (if any) of the amount paid (if any) by the Participant for the forfeited Shares over the amount realized (if any) upon their forfeiture. If the Participant has paid nothing for the forfeited Shares and has received no payment upon their forfeiture, the Participant understands that he or she will be unable to recognize any loss on the forfeiture of the Shares even though the Participant incurred a tax liability by making an election under Section 83(b). 9 (b) The Participant understands that he or she should consult with his or her tax advisor regarding the advisability of filing with the Internal Revenue Service an election under Section 83(b) of the Code, which must be filed no later than thirty (30) days after the date of the acquisition of the Shares pursuant to this Agreement. Failure to file an election under Section 83(b), if appropriate, may result in adverse tax consequences to the Participant. The Participant acknowledges that he or she has been advised to consult with a tax advisor regarding the tax consequences to the Participant of the acquisition of Shares hereunder. ANY ELECTION UNDER SECTION 83(b) THE PARTICIPANT WISHES TO MAKE MUST BE FILED NO LATER THAN 30 DAYS AFTER THE DATE ON WHICH THE PARTICIPANT ACQUIRES THE SHARES. THIS TIME PERIOD CANNOT BE EXTENDED. THE PARTICIPANT ACKNOWLEDGES THAT TIMELY FILING OF A SECTION 83(b) ELECTION IS THE PARTICIPANT'S SOLE RESPONSIBILITY, EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO FILE SUCH ELECTION ON HIS OR HER BEHALF. (c) The Participant will notify the Company in writing if the Participant files an election pursuant to Section 83(b) of the Code. The Company intends, in the event it does not receive from the Participant evidence of such filing, to claim a tax deduction for any amount which would otherwise be taxable to the Participant in the absence of such an election. 6. ESCROW. 6.1 Establishment of Escrow. To ensure that Shares subject to the Company Reacquisition Right will be available for reacquisition, the Participant agrees to deliver to and deposit with an escrow agent designated by the Company the certificate evidencing the Shares, together with an Assignment Separate from Certificate with respect to such certificate duly endorsed (with date and number of shares blank) in the form attached to the Notice, to be held by the agent under the terms and conditions of the Joint Escrow Instructions in the form attached to the Notice (the "Escrow"). The Company shall bear the expenses of the Escrow. 6.2 Delivery of Shares to Participant. The Company shall, to the extent described in the Joint Escrow Instructions, give to the escrow agent a written notice directing the escrow agent to deliver such Shares to the Participant. As soon as practicable after receipt of such notice, the escrow agent shall deliver to the Participant the Shares specified in such notice, and the Escrow shall terminate with respect to such Shares. 7. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of any stock dividend, stock split, reverse stock split, recapitalization, merger, combination, exchange of shares, reclassification, or similar change in the capital structure of the Company, appropriate adjustments shall be made in the number and class of shares subject to this Agreement. Any and all new, substituted or additional securities or other property to which Participant is entitled by reason of his or her ownership of the Shares will be immediately subject to the provisions of this Agreement and the Escrow on the same basis as all Shares originally acquired hereunder and will be included in the terms "Shares" and "Stock" for all purposes of this Agreement and the Escrow with the same force and effect as the Shares presently subject thereto. The adjustments determined by the Board pursuant to this Section 7 shall be final, binding and conclusive. 8. LEGENDS. The Company may at any time place legends referencing the Company Reacquisition Right and any applicable federal, state or foreign securities law restrictions on all certificates representing the Shares. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing the Shares in the possession of the Participant in order to carry out the provisions of this Section. 9. TRANSFERS IN VIOLATION OF AGREEMENT. No Shares may be sold, exchanged, transferred (including, without limitation, any transfer to a nominee or agent of the Participant), assigned, pledged, hypothecated or otherwise disposed of, including by operation of law, in any manner which violates any of the provisions of this Agreement and, except pursuant to an Ownership Change Event, until the date on which such shares become Vested Shares, and any such attempted disposition shall be void. The Company shall not be required (a) to transfer on its books any Shares which will have been transferred in violation of any of the provisions set forth in this Agreement or (b) to treat as owner of such Shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such Shares will have been so transferred. In order to enforce its rights under this Section, the Company shall be authorized to give a stop transfer instruction with respect to the Shares to the Company's transfer agent. 10 10. RIGHTS AS A STOCKHOLDER. The Participant shall have no rights as a stockholder with respect to any Shares subject to the Award until the date of the issuance of a certificate for such Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 7. Subject to the provisions of this Agreement, the Participant shall be entitled to all rights and privileges of a stockholder of the Company with respect to Shares deposited in the Escrow pursuant to Section 6. 11. RIGHT TO CONTINUED SERVICE WITH THE COMPANY. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of the Company or interfere in any way with any right of the Company to terminate the Participant's Service at any time. 12. MISCELLANEOUS PROVISIONS. 12.1 Administration. All questions of interpretation concerning the Plan, the Notice and this Agreement shall be determined by the Board. All determinations by the Board shall be final and binding upon all persons having an interest in the Award. Any officer of the Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation, or election. 12.2 Amendment. The Board may amend this Agreement at any time; provided, however, that no such amendment may adversely affect the Participant's rights under this Agreement without the consent of the Participant. No amendment or addition to this Agreement shall be effective unless in writing. 12.3 Nontransferability of the Award. The right to acquire Shares pursuant to the Award may not be assigned or transferred in any manner except by will or by the laws of descent and distribution. During the lifetime of the Participant, all rights with respect to this Award shall be exercisable only by the Participant. 12.4 Further Instruments. The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. 12.5 Binding Effect. This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer set forth herein, be binding upon the Participant and the Participant's heirs, executors, administrators, successors and assigns. 12.6 Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, with postage and fees prepaid, addressed to the other party at the address shown below that party's signature in the Notice or at such other address as such party may designate in writing from time to time to the other party. 12.7 Integrated Agreement. The Notice and this Agreement constitute the entire understanding and agreement of the Participant and the Company with respect to the subject matter contained herein and supersede any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Company with respect to such subject matter other than those as set forth or provided for herein or in the Notice. 11 12.8 Applicable Law. The Agreement shall be governed by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within the State of California. 12.9 Counterparts. The Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 12 EX-10.28 3 a4858777ex-1028.txt EXHIBIT 10.28 Exhibit 10.28 AMNET MORTGAGE, INC. NOTICE OF GRANT OF RESTRICTED STOCK AWARD (2005 LTIP Award) ________________________ (the "Participant") has been granted an award (the "Award") pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan") of certain shares of Stock (the "Shares") of AmNet Mortgage, Inc., as follows: Grant Number: _______________________________________ Date of Grant: _______________________________________ Total Number of Shares: _______________________________________ Initial Vesting Date: _______________________________________ Vested Shares: Except as provided in the Restricted Stock Agreement, the number of Vested Shares (disregarding any resulting fractional share) as of any date is determined by multiplying the Total Number of Shares by the "Vested Ratio" determined as of such date as follows: Vested Ratio ------------ Prior to Initial Vesting Date 0 On Initial Vesting Date, provided the Participant's Service has not terminated prior to such date 1/3 Plus: ------ For each additional full year of the Participant's continuous Service from Initial Vesting Date until the Vested Ratio equals 1/1, an additional 1/3 By their signatures below, the Company and the Participant agree that the Award is governed by this Notice and by the provisions of the Plan and the Restricted Stock Agreement attached to and made a part of this document. The Participant acknowledges receipt of a copy of the Plan and the Restricted Stock Agreement, and represents that the Participant has read and is familiar with the provisions of the Plan, this Notice and the Restricted Stock Agreement, and hereby accepts the Award subject to all applicable terms and conditions. AMNET MORTGAGE, INC. PARTICIPANT By: ----------------------------------------------- -------------------------- Signature Its: ---------------------------------------------- -------------------------- Date Address: 10421 Wateridge Circle Suite 250 -------------------------- San Diego, CA 92121 Address ATTACHMENTS: AmNet Mortgage, Inc. 2004 Equity Incentive Plan, Restricted Stock Agreement; Joint Escrow Instructions; Assignment Separate from Certificate 13 AMNET MORTGAGE, INC. RESTRICTED STOCK AGREEMENT (2005 LTIP Award) AmNet Mortgage, Inc. has granted to the Participant named in the Notice of Grant of Restricted Stock Award (the "Notice") to which this Restricted Stock Agreement (the "Agreement") is attached an Award consisting of Shares subject to the terms and conditions set forth in the Notice and this Agreement. The Award has been granted pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan"). By signing the Notice, the Participant: (a) represents that the Participant has read and is familiar with the terms and conditions of the Plan, the Notice and this Agreement, (b) accepts the Award subject to all of the terms and conditions of the Plan, the Notice and this Agreement, (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under the Plan, the Notice or this Agreement, and (d) acknowledges receipt of a copy of the Plan, the Notice, and this Agreement. 1. DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. Unless otherwise defined in the Notice, defined terms not explicitly defined in this Agreement but defined in the Plan shall have the same definitions as in the Plan. 1.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term "or" is not intended to be exclusive, unless the context clearly requires otherwise. 2. THE AWARD. 2.1 Grant and Issuance of Shares. On the Date of Grant, the Participant will acquire and the Company will issue, subject to the provisions of this Agreement, a number of Shares equal to the Total Number of Shares set forth in the Notice. As a condition to the issuance of the Shares, the Participant shall execute and deliver to the Company along with the Notice (a) the Joint Escrow Instructions in the form attached to the Notice and (b) the Assignment Separate from Certificate duly endorsed (with date and number of shares blank) in the form attached to the Notice. 2.2 No Monetary Payment Required. The Participant is not required to make any monetary payment (other than applicable tax withholding, if any) as a condition to receiving the Shares, the consideration for which shall be past services actually rendered and/or future services to be rendered to the Company or for its benefit. 2.3 Certificate Registration. The certificate for the Shares shall be registered in the name of the Participant, or, if applicable, in the names of the heirs of the Participant. 2.4 Issuance of Shares in Compliance with Law. The issuance of the Shares shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No Shares shall be issued hereunder if their issuance would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company's legal counsel to be necessary to the lawful issuance of any Shares shall relieve the Company of any liability in respect of the failure to issue such Shares as to which such requisite authority shall not have been obtained. As a condition to the issuance of the Shares, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company. 14 3. VESTING CONDITIONS. 3.1 Normal Vesting. Except as provided in Section 3.2, the Shares shall vest and become Vested Shares as provided in the Notice. No additional Shares will become Vested Shares following the Participant's termination of Service for any reason. Shares that are not Vested Shares ("Unvested Shares") shall be subject to the reacquisition rights set forth in Section 4.1 below. 3.2 Acceleration of Vesting Upon a Change in Control. In the event of a Change in Control, the vesting of the Shares shall be one hundred percent (100%) accelerated as of the date of the Change in Control, provided that the Participant's Service has not terminated prior to such date. 3.3 Acceleration of Vesting - Other Events. In the event of (i) a termination of Participant's employment without Cause by the Company, (ii) a voluntary resignation by Participant for Good Reason, (iii) termination of Participant's employment with the Company due to Participant's death or disability, in each case as provided in the Executive Employment Agreement between the Company and Participant dated effective September 1, 2004 and as may be amended from time to time, the vesting of the Shares shall be one hundred percent (100%) accelerated as of the date of such termination or resignation, provided that the Participant's service has not terminated prior to such date. 4. COMPANY REACQUISITION RIGHT. 4.1 Grant of Company Reacquisition Right. In the event that (a) the Participant's Service terminates for any reason or no reason, with or without cause, or (b) the Participant, the Participant's legal representative, or other holder of the Shares, attempts to sell, exchange, transfer, pledge, or otherwise dispose of (other than pursuant to an Ownership Change Event), including, without limitation, any transfer to a nominee or agent of the Participant, any Unvested Shares, the Company shall automatically reacquire the Unvested Shares, and the Participant shall not be entitled to any payment therefor (the "Company Reacquisition Right"). 4.2 Ownership Change Event. Upon the occurrence of an Ownership Change Event, any and all new, substituted or additional securities or other property to which the Participant is entitled by reason of the Participant's ownership of Unvested Shares shall be immediately subject to the Company Reacquisition Right and included in the terms "Shares," "Stock," and "Unvested Shares" for all purposes of the Company Reacquisition Right with the same force and effect as the Unvested Shares immediately prior to the Ownership Change Event. 5. TAX MATTERS. 5.1 Tax Withholding. At the time the Notice is executed, or at any time thereafter as requested by the Company, the Participant hereby authorizes withholding from any amounts payable to the Participant, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company, if any, which arise in connection with the Award, including, without limitation, obligations arising upon (a) the transfer of Shares to the Participant, (b) the lapsing of any Vesting Conditions with respect to any Shares, (c) the filing of an election to recognize tax liability, or (d) the transfer by the Participant of any Shares. The Company shall have no obligation to deliver the Shares or to release any Shares from an escrow established pursuant to this Agreement until the tax withholding obligations of the Company have been satisfied by the Participant. 5.2 Election Under Section 83(b) of the Code. (a) The Participant understands that Section 83 of the Code taxes as ordinary income the difference between the amount paid for the Shares, if anything, and the fair market value of the Shares as of the date on which the Shares are "substantially vested," within the meaning of Section 83. In this context, "substantially vested" means that the right of the Company to reacquire the Shares pursuant to the Company Reacquisition Right has lapsed. The Participant understands that he or she may elect to have his or her taxable income determined at the time he or she acquires the Shares rather than when and as the Company Reacquisition Right lapses by filing an election under Section 83(b) of the Code with the Internal Revenue Service no later than thirty (30) days after the date of acquisition of the Shares. The Participant understands that failure to make a timely filing under Section 83(b) will result in his or her recognition of ordinary income, as the Company Reacquisition Right lapses, on the difference between the purchase price, if anything, and the fair market value of the Shares at the time such restrictions lapse. The Participant further understands, however, that if Shares with respect to which an election under Section 83(b) has been made are forfeited to the Company pursuant to its Company Reacquisition Right, such forfeiture will be treated as a sale on which there is realized a loss equal to the excess (if any) of the amount paid (if any) by the Participant for the forfeited Shares over the amount realized (if any) upon their forfeiture. If the Participant has paid nothing for the forfeited Shares and has received no payment upon their forfeiture, the Participant understands that he or she will be unable to recognize any loss on the forfeiture of the Shares even though the Participant incurred a tax liability by making an election under Section 83(b). 15 (b) The Participant understands that he or she should consult with his or her tax advisor regarding the advisability of filing with the Internal Revenue Service an election under Section 83(b) of the Code, which must be filed no later than thirty (30) days after the date of the acquisition of the Shares pursuant to this Agreement. Failure to file an election under Section 83(b), if appropriate, may result in adverse tax consequences to the Participant. The Participant acknowledges that he or she has been advised to consult with a tax advisor regarding the tax consequences to the Participant of the acquisition of Shares hereunder. ANY ELECTION UNDER SECTION 83(b) THE PARTICIPANT WISHES TO MAKE MUST BE FILED NO LATER THAN 30 DAYS AFTER THE DATE ON WHICH THE PARTICIPANT ACQUIRES THE SHARES. THIS TIME PERIOD CANNOT BE EXTENDED. THE PARTICIPANT ACKNOWLEDGES THAT TIMELY FILING OF A SECTION 83(b) ELECTION IS THE PARTICIPANT'S SOLE RESPONSIBILITY, EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO FILE SUCH ELECTION ON HIS OR HER BEHALF. (c) The Participant will notify the Company in writing if the Participant files an election pursuant to Section 83(b) of the Code. The Company intends, in the event it does not receive from the Participant evidence of such filing, to claim a tax deduction for any amount which would otherwise be taxable to the Participant in the absence of such an election. 6. ESCROW. 6.1 Establishment of Escrow. To ensure that Shares subject to the Company Reacquisition Right will be available for reacquisition, the Participant agrees to deliver to and deposit with an escrow agent designated by the Company the certificate evidencing the Shares, together with an Assignment Separate from Certificate with respect to such certificate duly endorsed (with date and number of shares blank) in the form attached to the Notice, to be held by the agent under the terms and conditions of the Joint Escrow Instructions in the form attached to the Notice (the "Escrow"). The Company shall bear the expenses of the Escrow. 6.2 Delivery of Shares to Participant. The Company shall, to the extent described in the Joint Escrow Instructions, give to the escrow agent a written notice directing the escrow agent to deliver such Shares to the Participant. As soon as practicable after receipt of such notice, the escrow agent shall deliver to the Participant the Shares specified in such notice, and the Escrow shall terminate with respect to such Shares. 7. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of any stock dividend, stock split, reverse stock split, recapitalization, merger, combination, exchange of shares, reclassification, or similar change in the capital structure of the Company, appropriate adjustments shall be made in the number and class of shares subject to this Agreement. Any and all new, substituted or additional securities or other property to which Participant is entitled by reason of his or her ownership of the Shares will be immediately subject to the provisions of this Agreement and the Escrow on the same basis as all Shares originally acquired hereunder and will be included in the terms "Shares" and "Stock" for all purposes of this Agreement and the Escrow with the same force and effect as the Shares presently subject thereto. The adjustments determined by the Board pursuant to this Section 7 shall be final, binding and conclusive. 8. LEGENDS. The Company may at any time place legends referencing the Company Reacquisition Right and any applicable federal, state or foreign securities law restrictions on all certificates representing the Shares. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing the Shares in the possession of the Participant in order to carry out the provisions of this Section. 16 9. TRANSFERS IN VIOLATION OF AGREEMENT. No Shares may be sold, exchanged, transferred (including, without limitation, any transfer to a nominee or agent of the Participant), assigned, pledged, hypothecated or otherwise disposed of, including by operation of law, in any manner which violates any of the provisions of this Agreement and, except pursuant to an Ownership Change Event, until the date on which such shares become Vested Shares, and any such attempted disposition shall be void. The Company shall not be required (a) to transfer on its books any Shares which will have been transferred in violation of any of the provisions set forth in this Agreement or (b) to treat as owner of such Shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such Shares will have been so transferred. In order to enforce its rights under this Section, the Company shall be authorized to give a stop transfer instruction with respect to the Shares to the Company's transfer agent. 10. RIGHTS AS A STOCKHOLDER. The Participant shall have no rights as a stockholder with respect to any Shares subject to the Award until the date of the issuance of a certificate for such Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 7. Subject to the provisions of this Agreement, the Participant shall be entitled to all rights and privileges of a stockholder of the Company with respect to Shares deposited in the Escrow pursuant to Section 6. 11. RIGHT TO CONTINUED SERVICE WITH THE COMPANY. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of the Company or interfere in any way with any right of the Company to terminate the Participant's Service at any time. 12. MISCELLANEOUS PROVISIONS. 12.1 Administration. All questions of interpretation concerning the Plan, the Notice and this Agreement shall be determined by the Board. All determinations by the Board shall be final and binding upon all persons having an interest in the Award. Any officer of the Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation, or election. 12.2 Amendment. The Board may amend this Agreement at any time; provided, however, that no such amendment may adversely affect the Participant's rights under this Agreement without the consent of the Participant. No amendment or addition to this Agreement shall be effective unless in writing. 12.3 Nontransferability of the Award. The right to acquire Shares pursuant to the Award may not be assigned or transferred in any manner except by will or by the laws of descent and distribution. During the lifetime of the Participant, all rights with respect to this Award shall be exercisable only by the Participant. 12.4 Further Instruments. The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. 12.5 Binding Effect. This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer set forth herein, be binding upon the Participant and the Participant's heirs, executors, administrators, successors and assigns. 17 12.6 Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, with postage and fees prepaid, addressed to the other party at the address shown below that party's signature in the Notice or at such other address as such party may designate in writing from time to time to the other party. 12.7 Integrated Agreement. The Notice and this Agreement constitute the entire understanding and agreement of the Participant and the Company with respect to the subject matter contained herein and supersede any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Company with respect to such subject matter other than those as set forth or provided for herein or in the Notice. 12.8 Applicable Law. The Agreement shall be governed by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within the State of California. 12.9 Counterparts. The Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 18 EX-10.29 4 a4858777ex-1029.txt EXHIBIT 10.29 Exhibit 10.29 AMNET MORTGAGE, INC. NOTICE OF GRANT OF RESTRICTED STOCK UNITS ________________________ (the "Participant") has been granted an award (the "Award") pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan") consisting of one or more rights (each such right being hereinafter referred to as a "Restricted Stock Unit") to receive in settlement of each such right one (1) share of Stock of AmNet Mortgage, Inc., as follows: Date of Grant: _________________ Number of Restricted _________________, increased as of any Stock Units: date by the cumulative number of additional whole and/or fractional Restricted Stock Units, if any, credited to this Award through such date in payment of Dividend Equivalent Rights as described in the Restricted Stock Unit Agreement. Initial Vesting Date: ________________ Vesting: The number of Vested Restricted Stock Units as of any date shall be determined as follows: Vested Percentage ----------------- Prior to Initial Vesting Date 0 On the Initial Vesting Date, provided the Participant's Service has not terminated prior to such date 50% On the date one year after the Initial Vesting Date, provided the Participant's Service has not terminated prior to such date 100% By their signatures below, the Company and the Participant agree that the Award is governed by this Notice and by the provisions of the Plan and the Restricted Stock Unit Agreement attached to and made a part of this document. The Participant acknowledges receipt of copies of the Plan and Restricted Stock Unit Agreement, represents that the Participant has read and is familiar with its provisions, and hereby accepts the Award subject to all of its terms and conditions. AMNET MORTGAGE, INC. PARTICIPANT By: ------------------------------------------------- ------------------------ Signature Its: ------------------------------------------------ ------------------------ Date Address: 10421 Wateridge Circle, Suite 250 ------------------------ San Diego, CA 92121 Address ATTACHMENTS: 2004 Equity Incentive Plan, as amended to the Date of Grant and Restricted Stock Unit Agreement (Standard Agreement) 19 AMNET MORTGAGE, INC. RESTRICTED STOCK UNIT AGREEMENT (Standard Agreement) AmNet Mortgage, Inc. has granted to the individual (the "Participant") named in the Notice of Grant of Restricted Stock Units (the "Notice") to which this Restricted Stock Unit Agreement (the "Agreement") is attached an award (the "Award") of Restricted Stock Units upon the terms and conditions set forth in the Notice and this Agreement. The Award has been granted pursuant to and shall in all respects be subject to the terms and conditions of the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan"), as amended to the Date of Grant. By signing the Notice, the Participant: (a) represents that the Participant has read and is familiar with the terms and conditions of the Notice, the Plan and this Agreement, (b) accepts the Award subject to all of the terms and conditions of the Notice, the Plan and this Agreement, (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under the Notice, the Plan or this Agreement, and (d) acknowledges receipt of a copy of the Notice, the Plan and this Agreement. 1. DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Notice or the Plan. 1.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term "or" is not intended to be exclusive, unless the context clearly requires otherwise. 2. ADMINISTRATION. All questions of interpretation concerning this Agreement shall be determined by the Board. All determinations by the Board shall be final and binding upon all persons having an interest in the Award. Any officer of a Participating Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation, or election. 3. SETTLEMENT OF THE AWARD. 3.1 Purchase Price. The Participant shall not be required to make any additional monetary payment (other than applicable tax withholding, if any) upon settlement of the Award. Payment of the aggregate purchase price of the shares of Stock for which the Award is being settled shall be made in the form of past services rendered by the Participant to a Participating Company or for its benefit which the Board, by resolution, determines to have a value not less than the aggregate purchase price of such shares of Stock. Notwithstanding the foregoing, the Participant shall furnish consideration in the form of cash or past services rendered to a Participating Company or for its benefit having a value not less than the par value of the shares of Stock subject to this Award. 3.2 Issuance of Shares of Stock. Subject to the provisions of Sections 3.5 and 3.6 below, the Company shall issue to the Participant, on a date (the "Settlement Date") within thirty (30) days following the Initial Vesting Date (as defined in the Notice), or such later date if administratively necessary for the Company to properly reflect such transaction, a number of whole shares of Stock equal to the vested Number of Restricted Stock Units (as defined in the Notice), rounded down to the nearest whole number. Such shares of Stock shall not be subject to any restriction on transfer other than any such restriction as may be required pursuant to Sections 3.5 and 3.6. On the Settlement Date, the Company shall pay to the Participant cash in lieu of any fractional share of Stock represented by a fractional Restricted Stock Unit subject to this Award in an amount equal to the Fair Market Value on the Settlement Date of such fractional share of Stock. 3.3 Tax Withholding. At the time the Award is granted, or upon the Settlement Date, or at any time thereafter as requested by the Company, the Participant hereby authorizes withholding from payroll and any other amounts payable to the Participant, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company, if any, which arise in connection with the Award or the issuance of shares of Stock in settlement thereof. The Company shall have no obligation to deliver shares of Stock until the tax withholding obligations of the Company have been satisfied by the Participant. 20 3.4 Certificate Registration. The certificate for the shares as to which the Award is settled shall be registered in the name of the Participant, or, if applicable, in the names of the heirs of the Participant. 3.5 Restrictions on Grant of the Award and Issuance of Shares. The grant of the Award and issuance of shares of Stock upon settlement of the Award shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No shares of Stock may be issued hereunder if the issuance of such shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company's legal counsel to be necessary to the lawful issuance and sale of any shares subject to the Award shall relieve the Company of any liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained. As a condition to the settlement of the Award, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company. 3.6 Delay in Issuance for Specified Employees. In the event of the issuance of shares of Stock to a "Specified Employee" (as defined below) who has terminated Service, no such issuance will be made, irrespective of any election, term of the Plan or this Agreement to the contrary, before the date which is six (6) months after the date of such Participant's termination of Service. The term "Specified Employee" for purposes of this Agreement means any Participant who would be considered a "Specified Employee" as that term is defined in Section 409A(a)(2)(B)(i) of the Code. The determination of whether any Participant is a Specified Employee shall be solely in the discretion of the Company. 3.7 Fractional Shares. The Company shall not be required to issue fractional shares upon the settlement of the Award. 4. DIVIDEND EQUIVALENT RIGHTS. Effective on the date of payment of cash dividends on the Stock occurring on and after the Date of Grant and before the Settlement Date, the Number of Restricted Stock Units subject to this Award shall be increased by such additional whole and/or fractional Restricted Stock Units determined by the following formula: X = (A x B) / C where, "X" is the number of whole and/or fractional Restricted Stock Units to be credited with respect to the Award; "A" is the amount of cash dividends paid on one share of Stock; "B" is the number of whole and fractional Restricted Stock Units subject to this Award as of the cash dividend record date but immediately prior to the application of this Section; and "C" is the Fair Market Value of a share of Stock on the cash dividend payment date. Such additional Restricted Stock Units shall be subject to the same terms and conditions and shall be settled in the same manner and at the same time as the Restricted Stock Units originally subject to this Award. 5. NONTRANSFERABILITY OF THE AWARD. Prior the Settlement Date, neither this Award nor any Restricted Stock Unit subject to this Award shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant's beneficiary, except by will or by the laws of descent and distribution. 21 6. EFFECT OF TERMINATION OF SERVICE. If the Participant's Service with the Company terminates for any reason, the Award, if not earlier settled, and to the extent vested as of the date of the Participant's termination of Service, shall be settled as provided in Section 3. 7. CHANGE IN CONTROL. In the event of a Change in Control, a portion of the Award shall become vested and settled in accordance with Section 3 immediately prior to the effective date of the Change in Control. The portion of the Award which shall become vested shall be determined by: (i) dividing the number of full calendar months the Participant has provided Service from the January 1st of the year in which the Award was granted by sixty (60) and (ii) multiplying that quotient by the number of shares of Stock subject to the Award. For example, if a Participant was awarded 10,000 Restricted Stock Units, and had completed 16 months of Service from the January 1st of the year of the Award as of the Change in Control, the Participant would be vested in 2,667 shares of Stock in accordance with this Section 7 (16 months / 60 months = .2667; 10,000 RSUs x ..2667 = 2,667). Furthermore, notwithstanding the foregoing, if the corporation the stock of which is subject to the Award immediately prior to an Ownership Change Event described in Section 13.1(a)(i) of the Plan constituting a Change in Control is the surviving or continuing corporation and immediately after such Ownership Change Event less than fifty percent (50%) of the total combined voting power of its voting stock is held by another corporation or by other corporations that are members of an affiliated group within the meaning of Section 1504(a) of the Code without regard to the provisions of Section 1504(b) of the Code, the Award shall not become 100% vested and settled unless the Board otherwise provides in its discretion. Notwithstanding the foregoing, the Board reserves the discretion to revise, without the consent of any Participant, the meaning of the terms "Change in Control" and "Ownership Event" should the requirements of Section 409A of the Code or any regulations or other guidance issued by the Internal Revenue Service require, or make such changes, necessary or desirable to preserve the desired tax impacts to the Participant and the Company underlying this Award. 8. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. Subject to any required action by the stockholders of the Company, in the event of any change in the Stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (excepting normal cash dividends) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number and class of shares subject to the Award, in order to prevent dilution or enlargement of the Participant's rights under the Award. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as "effected without receipt of consideration by the Company." Any fractional share resulting from an adjustment pursuant to this Section 8 shall be rounded down to the nearest whole number. Such adjustments shall be determined by the Board, and its determination shall be final, binding and conclusive. 9. RIGHTS AS A STOCKHOLDER, DIRECTOR, EMPLOYEE OR CONSULTANT. The Participant shall have no rights as a stockholder with respect to any shares which may be issued in settlement of this Award until the date of the issuance of a certificate for such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 8 or pursuant to the Dividend Equivalent Rights. If the Participant is an Employee, the Participant understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Participant, the Participant's employment is "at will" and is for no specified term. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Participant's Service as a Director, an Employee or a Consultant, as the case may be, at any time. 22 10. LEGENDS. The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to this Award in the possession of the Participant in order to carry out the provisions of this Section. 11. MISCELLANEOUS PROVISIONS. 11.1 Further Instruments. The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. 11.2 Binding Effect. Subject to the restrictions on transfer set forth herein, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. 11.3 Termination or Amendment. The Board may terminate or amend the Plan or the Award at any time; provided, however, that no such termination or amendment may adversely affect the Award without the consent of the Participant unless such termination or amendment is necessary or desirable, as determined in the sole discretion of the Company, to comply with any applicable law or government regulation (including specifically Section 409A of the Code) or to preserve the desired tax impacts to the Participant and the Company underlying this Award. No amendment or addition to this Agreement shall be effective unless in writing. 11.4 Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery, upon deposit in the United States Post Office, by registered or certified mail, or with an overnight courier service with postage and fees prepaid, addressed to the other party at the address shown below that party's signature or at such other address as such party may designate in writing from time to time to the other party. 11.5 Integrated Agreement. The Notice and this Agreement constitute the entire understanding and agreement of the Participant and the Participating Company Group with respect to the subject matter contained herein or therein and supersede any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Participating Company Group with respect to such subject matter other than those as set forth or provided for herein or therein. To the extent contemplated herein or therein, the provisions of the Notice and the Agreement shall survive any settlement of the Award and shall remain in full force and effect. 11.6 Applicable Law. This Agreement shall be governed by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within the State of California. 11.7 Counterparts. The Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 23 EX-10.30 5 a4858777ex-1030.txt EXHIBIT 10.30 Exhibit 10.30 AMNET MORTGAGE, INC. NOTICE OF GRANT OF RESTRICTED STOCK UNITS ________________________ (the "Participant") has been granted an award (the "Award") pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan") consisting of one or more rights (each such right being hereinafter referred to as a "Restricted Stock Unit") to receive in settlement of each such right one (1) share of Stock of AmNet Mortgage, Inc., as follows: Date of Grant: _______________ Number of Restricted Stock Units: _______________ , increased as of any date by the cumulative number of additional whole and/or fractional Restricted Stock Units, if any, credited to this Award through such date in payment of Dividend Equivalent Rights as described in the Restricted Stock Unit Agreement. Initial Vesting Date: ________________ Vesting: The number of Vested Restricted Stock Units as of any date shall be determined as follows: Vested Percentage ----------- Prior to Initial Vesting Date 0 On the Initial Vesting Date, provided the Participant's Service has not terminated prior to such date 50% On the date one year after the Initial Vesting Date, provided the Participant's Service has not terminated prior to such date 100% By their signatures below, the Company and the Participant agree that the Award is governed by this Notice and by the provisions of the Plan and the Restricted Stock Unit Agreement attached to and made a part of this document. The Participant acknowledges receipt of copies of the Plan and Restricted Stock Unit Agreement, represents that the Participant has read and is familiar with its provisions, and hereby accepts the Award subject to all of its terms and conditions. AMNET MORTGAGE, INC. PARTICIPANT By: ------------------------------------------------- ------------------------ Signature Its: ------------------------------------------------ ------------------------ Date Address: 10421 Wateridge Circle, Suite 250 ------------------------ San Diego, CA 92121 Address ATTACHMENTS: 2004 Equity Incentive Plan, as amended to the Date of Grant and Restricted Stock Unit Agreement (Executive Agreement) 24 AMNET MORTGAGE, INC. RESTRICTED STOCK UNIT AGREEMENT (Executive Agreement) AmNet Mortgage, Inc. has granted to the individual (the "Participant") named in the Notice of Grant of Restricted Stock Units (the "Notice") to which this Restricted Stock Unit Agreement (the "Agreement") is attached an award (the "Award") of Restricted Stock Units upon the terms and conditions set forth in the Notice and this Agreement. The Award has been granted pursuant to and shall in all respects be subject to the terms and conditions of the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan"), as amended to the Date of Grant. By signing the Notice, the Participant: (a) represents that the Participant has read and is familiar with the terms and conditions of the Notice, the Plan and this Agreement, (b) accepts the Award subject to all of the terms and conditions of the Notice, the Plan and this Agreement, (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under the Notice, the Plan or this Agreement, and (d) acknowledges receipt of a copy of the Notice, the Plan and this Agreement. 1. DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Notice or the Plan. 1.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term "or" is not intended to be exclusive, unless the context clearly requires otherwise. 2. ADMINISTRATION. All questions of interpretation concerning this Agreement shall be determined by the Board. All determinations by the Board shall be final and binding upon all persons having an interest in the Award. Any officer of a Participating Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation, or election. 3. SETTLEMENT OF THE AWARD. 3.1 Purchase Price. The Participant shall not be required to make any additional monetary payment (other than applicable tax withholding, if any) upon settlement of the Award. Payment of the aggregate purchase price of the shares of Stock for which the Award is being settled shall be made in the form of past services rendered by the Participant to a Participating Company or for its benefit which the Board, by resolution, determines to have a value not less than the aggregate purchase price of such shares of Stock. Notwithstanding the foregoing, the Participant shall furnish consideration in the form of cash or past services rendered to a Participating Company or for its benefit having a value not less than the par value of the shares of Stock subject to this Award. 3.2 Issuance of Shares of Stock. Subject to the provisions of Sections 3.5 and 3.6 below, the Company shall issue to the Participant, on a date (the "Settlement Date") within thirty (30) days following the Initial Vesting Date (as defined in the Notice), or such later date if administratively necessary for the Company to properly reflect such transaction, a number of whole shares of Stock equal to the vested Number of Restricted Stock Units (as defined in the Notice), rounded down to the nearest whole number. Such shares of Stock shall not be subject to any restriction on transfer other than any such restriction as may be required pursuant to Sections 3.5 and 3.6. On the Settlement Date, the Company shall pay to the Participant cash in lieu of any fractional share of Stock represented by a fractional Restricted Stock Unit subject to this Award in an amount equal to the Fair Market Value on the Settlement Date of such fractional share of Stock. 3.3 Tax Withholding. At the time the Award is granted, or upon the Settlement Date, or at any time thereafter as requested by the Company, the Participant hereby authorizes withholding from payroll and any other amounts payable to the Participant, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company, if any, which arise in connection with the Award or the issuance of shares of Stock in settlement thereof. The Company shall have no obligation to deliver shares of Stock until the tax withholding obligations of the Company have been satisfied by the Participant. 25 3.4 Certificate Registration. The certificate for the shares as to which the Award is settled shall be registered in the name of the Participant, or, if applicable, in the names of the heirs of the Participant. 3.5 Restrictions on Grant of the Award and Issuance of Shares. The grant of the Award and issuance of shares of Stock upon settlement of the Award shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No shares of Stock may be issued hereunder if the issuance of such shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company's legal counsel to be necessary to the lawful issuance and sale of any shares subject to the Award shall relieve the Company of any liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained. As a condition to the settlement of the Award, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company. 3.6 Delay in Issuance for Specified Employees. In the event of the issuance of shares of Stock to a "Specified Employee" (as defined below) who has terminated Service, no such issuance will be made, irrespective of any election, term of the Plan or this Agreement to the contrary, before the date which is six (6) months after the date of such Participant's termination of Service. The term "Specified Employee" for purposes of this Agreement means any Participant who would be considered a "Specified Employee" as that term is defined in Section 409A(a)(2)(B)(i) of the Code. The determination of whether any Participant is a Specified Employee shall be solely in the discretion of the Company. 3.7 Fractional Shares. The Company shall not be required to issue fractional shares upon the settlement of the Award. 4. DIVIDEND EQUIVALENT RIGHTS. Effective on the date of payment of cash dividends on the Stock occurring on and after the Date of Grant and before the Settlement Date, the Number of Restricted Stock Units subject to this Award shall be increased by such additional whole and/or fractional Restricted Stock Units determined by the following formula: X = (A x B) / C where, "X" is the number of whole and/or fractional Restricted Stock Units to be credited with respect to the Award; "A" is the amount of cash dividends paid on one share of Stock; "B" is the number of whole and fractional Restricted Stock Units subject to this Award as of the cash dividend record date but immediately prior to the application of this Section; and "C" is the Fair Market Value of a share of Stock on the cash dividend payment date. Such additional Restricted Stock Units shall be subject to the same terms and conditions and shall be settled in the same manner and at the same time as the Restricted Stock Units originally subject to this Award. 5. NONTRANSFERABILITY OF THE AWARD. Prior the Settlement Date, neither this Award nor any Restricted Stock Unit subject to this Award shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant's beneficiary, except by will or by the laws of descent and distribution. 26 6. EFFECT OF TERMINATION OF SERVICE. If the Participant's Service with the Company terminates for any reason, the Award, if not earlier settled, and to the extent vested as of the date of the Participant's termination of Service, shall be settled as provided in Section 3. 7. CHANGE IN CONTROL. In the event of a Change in Control, the Award shall become 100% vested and settled in accordance with Section 3 immediately prior to the effective date of the Change in Control. Furthermore, notwithstanding the foregoing, if the corporation the stock of which is subject to the Award immediately prior to an Ownership Change Event described in Section 13.1(a)(i) of the Plan constituting a Change in Control is the surviving or continuing corporation and immediately after such Ownership Change Event less than fifty percent (50%) of the total combined voting power of its voting stock is held by another corporation or by other corporations that are members of an affiliated group within the meaning of Section 1504(a) of the Code without regard to the provisions of Section 1504(b) of the Code, the Award shall not become 100% vested and settled unless the Board otherwise provides in its discretion. Notwithstanding the foregoing, the Board reserves the discretion to revise, without the consent of any Participant, the meaning of the terms "Change in Control" and "Ownership Event" should the requirements of Section 409A of the Code or any regulations or other guidance issued by the Internal Revenue Service require, or make such changes, necessary or desirable to preserve the desired tax impacts to the Participant and the Company underlying this Award. 8. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. Subject to any required action by the stockholders of the Company, in the event of any change in the Stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (excepting normal cash dividends) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number and class of shares subject to the Award, in order to prevent dilution or enlargement of the Participant's rights under the Award. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as "effected without receipt of consideration by the Company." Any fractional share resulting from an adjustment pursuant to this Section 8 shall be rounded down to the nearest whole number. Such adjustments shall be determined by the Board, and its determination shall be final, binding and conclusive. 9. RIGHTS AS A STOCKHOLDER, DIRECTOR, EMPLOYEE OR CONSULTANT. The Participant shall have no rights as a stockholder with respect to any shares which may be issued in settlement of this Award until the date of the issuance of a certificate for such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 8 or pursuant to the Dividend Equivalent Rights. If the Participant is an Employee, the Participant understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Participant, the Participant's employment is "at will" and is for no specified term. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Participant's Service as a Director, an Employee or a Consultant, as the case may be, at any time. 27 10. LEGENDS. The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to this Award in the possession of the Participant in order to carry out the provisions of this Section. 11. MISCELLANEOUS PROVISIONS. 11.1 Further Instruments. The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. 11.2 Binding Effect. Subject to the restrictions on transfer set forth herein, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. 11.3 Termination or Amendment. The Board may terminate or amend the Plan or the Award at any time; provided, however, that no such termination or amendment may adversely affect the Award without the consent of the Participant unless such termination or amendment is necessary or desirable, as determined in the sole discretion of the Company, to comply with any applicable law or government regulation (including specifically Section 409A of the Code) or to preserve the desired tax impacts to the Participant and the Company underlying this Award. No amendment or addition to this Agreement shall be effective unless in writing. 11.4 Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery, upon deposit in the United States Post Office, by registered or certified mail, or with an overnight courier service with postage and fees prepaid, addressed to the other party at the address shown below that party's signature or at such other address as such party may designate in writing from time to time to the other party. 11.5 Integrated Agreement. The Notice and this Agreement constitute the entire understanding and agreement of the Participant and the Participating Company Group with respect to the subject matter contained herein or therein and supersede any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Participating Company Group with respect to such subject matter other than those as set forth or provided for herein or therein. To the extent contemplated herein or therein, the provisions of the Notice and the Agreement shall survive any settlement of the Award and shall remain in full force and effect. 11.6 Applicable Law. This Agreement shall be governed by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within the State of California. 11.7 Counterparts. The Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 28 EX-10.31 6 a4858777ex-1031.txt EXHIBIT 10.31 Exhibit 10.31 AMNET MORTGAGE, INC. NOTICE OF GRANT OF STOCK OPTION ________________ (the "Optionee") has been granted an option (the "Option") to purchase certain shares of Stock of AmNet Mortgage, Inc. pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan"), as follows: Date of Option Grant: ____________ Number of Option Shares: ____________ Exercise Price: $___________ per share Initial Vesting Date: ____________ Option Expiration Date: ____________ Tax Status of Option: ____________ Vested Shares: Except as provided in the Plan and Stock Option Agreement, the number of Vested Shares (disregarding any resulting fractional share) as of any date is determined by multiplying the Number of Option Shares by the "Vested Percentage" determined as of such date as follows: Vested Percentage ---------- a. Initially, all shares of stock shall be Unvested Shares 0 b. On Initial Vesting Date, provided Optionee's Service has not terminated prior to such date ______% By their signatures below, the Company and the Optionee agree that the Option is governed by this Notice and by the provisions of the Plan and the Stock Option Agreement, both of which are attached to and made a part of this document. The Optionee acknowledges receipt of copies of the Plan and the Stock Option Agreement, represents that the Optionee has read and is familiar with their provisions, and hereby accepts the Option subject to all of their terms and conditions. AMNET MORTGAGE, INC. OPTIONEE By: ------------------------------------------ ------------------------------- Signature Its: ----------------------------------------- ------------------------------- Date Address: 10421 Wateridge Circle, Suite 250 ------------------------------- San Diego, CA 92121 Address ATTACHMENTS: 2004 Equity Incentive Plan, as amended to the Date of Option Grant; Stock Option Agreement and Exercise Notice 29 AMNET MORTGAGE, INC. STOCK OPTION AGREEMENT AmNet Mortgage, Inc. has granted to the individual (the "Optionee") named in the Notice of Grant of Stock Option (the "Notice") to which this Stock Option Agreement (the "Option Agreement") is attached an option (the "Option") to purchase certain shares of Stock upon the terms and conditions set forth in the Notice and this Option Agreement. The Option has been granted pursuant to and shall in all respects be subject to the terms and conditions of the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan"), as amended to the Date of Option Grant, the provisions of which are incorporated herein by reference. By signing the Notice, the Optionee: (a) represents that the Optionee has read and is familiar with the terms and conditions of the Notice, the Plan and this Option Agreement, including the Effect of Termination of Service set forth in Section 7, (b) accepts the Option subject to all of the terms and conditions of the Notice, the Plan and this Option Agreement, (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under the Notice, the Plan or this Option Agreement, and (d) acknowledges receipt of a copy of the Notice, the Plan and this Option Agreement. 1. DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Notice or the Plan. 1.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Option Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term ooro is not intended to be exclusive, unless the context clearly requires otherwise. 2. TAX CONSEQUENCES. 2.1 Tax Status of Option. This Option is intended to have the tax status designated in the Notice. (a) Incentive Stock Option. If the Notice so designates, this Option is intended to be an Incentive Stock Option within the meaning of Section 422(b) of the Code, but the Company does not represent or warrant that this Option qualifies as such. The Optionee should consult with the Optionee's own tax advisor regarding the tax effects of this Option and the requirements necessary to obtain favorable income tax treatment under Section 422 of the Code, including, but not limited to, holding period requirements. (NOTE TO OPTIONEE: If the Option is exercised more than three (3) months after the date on which you cease to be an Employee (other than by reason of your death or permanent and total disability as defined in Section 22(e)(3) of the Code), the Option will be treated as a Nonstatutory Stock Option and not as an Incentive Stock Option to the extent required by Section 422 of the Code.) (b) Nonstatutory Stock Option. If the Notice so designates, this Option is intended to be a Nonstatutory Stock Option and shall not be treated as an Incentive Stock Option within the meaning of Section 422(b) of the Code. 2.2 ISO Fair Market Value Limitation. If the Notice designates this Option as an Incentive Stock Option, then to the extent that the Option (together with all Incentive Stock Options granted to the Optionee under all stock option plans of the Participating Company Group, including the Plan) becomes exercisable for the first time during any calendar year for shares having a Fair Market Value greater than One Hundred Thousand Dollars ($100,000), the portion of such options which exceeds such amount will be treated as Nonstatutory Stock Options. For purposes of this Section 2.2, options designated as Incentive Stock Options are taken into account in the order in which they were granted, and the Fair Market Value of stock is determined as of the time the option with respect to such stock is granted. If the Code is amended to provide for a different limitation from that set forth in this Section 2.2, such different limitation shall be deemed incorporated herein effective as of the date required or permitted by such amendment to the Code. If the Option is treated as an Incentive Stock Option in part and as a Nonstatutory Stock Option in part by reason of the limitation set forth in this Section 2.2, the Optionee may designate which portion of such Option the Optionee is exercising. In the absence of such designation, the Optionee shall be deemed to have exercised the Incentive Stock Option portion of the Option first. Separate certificates representing each such portion shall be issued upon the exercise of the Option. (NOTE TO OPTIONEE: If the aggregate Exercise Price of the Option (that is, the Exercise Price multiplied by the Number of Option Shares) plus the aggregate exercise price of any other Incentive Stock Options you hold (whether granted pursuant to the Plan or any other stock option plan of the Participating Company Group) is greater than $100,000, you should contact the Chief Financial Officer of the Company to ascertain whether the entire Option qualifies as an Incentive Stock Option.) 30 3. ADMINISTRATION. All questions of interpretation concerning this Option Agreement shall be determined by the Board. All determinations by the Board shall be final and binding upon all persons having an interest in the Option. Any officer of a Participating Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation, or election. 4. EXERCISE OF THE OPTION. 4.1 Right to Exercise. Except as otherwise provided herein, the Option shall be exercisable on and after the Date of Option Grant (or if later, the Optionee's Service commencement date) and prior to the termination of the Option (as provided in Section 6) in an amount not to exceed the number of Vested Shares less the number of shares previously acquired upon exercise of the Option. 4.2 Method of Exercise. Exercise of the Option shall be by written notice to the Company which must state the election to exercise the Option, the number of whole shares of Stock for which the Option is being exercised and such other representations and agreements as to the Optionee's investment intent with respect to such shares as may be required pursuant to the provisions of this Option Agreement. The written notice must be signed by the Optionee and must be delivered in person, by certified or registered mail, return receipt requested, by confirmed facsimile transmission, or by such other means as the Company may permit, to the Chief Financial Officer of the Company, or other authorized representative of the Participating Company Group, prior to the termination of the Option as set forth in Section 6, accompanied by full payment of the aggregate Exercise Price for the number of shares of Stock being purchased. The Option shall be deemed to be exercised upon receipt by the Company of such written notice and the aggregate Exercise Price. 4.3 Payment of Exercise Price. (a) Forms of Consideration Authorized. Except as otherwise provided below, payment of the aggregate Exercise Price for the number of shares of Stock for which the Option is being exercised shall be made (i) in cash, by check, or cash equivalent, (ii) by tender to the Company, or attestation to the ownership, of whole shares of Stock owned by the Optionee having a Fair Market Value (as determined by the Company without regard to any restrictions on transferability applicable to such stock by reason of federal or state securities laws or agreements with an underwriter for the Company) not less than the aggregate Exercise Price, (iii) by means of a Cashless Exercise, as defined in Section 4.3(b), or (iv) by any combination of the foregoing. (b) Limitations on Forms of Consideration. (i) Tender of Stock. Notwithstanding the foregoing, the Option may not be exercised by tender to the Company, or attestation to the ownership, of shares of Stock to the extent such tender or attestation would constitute a violation of the provisions of any law, regulation or agreement restricting the redemption of the Company's stock. The Option may not be exercised by tender to the Company, or attestation to the ownership, of shares of Stock unless such shares either have been owned by the Optionee for more than six (6) months or were not acquired, directly or indirectly, from the Company. 31 (ii) Cashless Exercise. A oCashless Exerciseo means the delivery of a properly executed notice together with irrevocable instructions to a broker in a form acceptable to the Company providing for the assignment to the Company of the proceeds of a sale or loan with respect to some or all of the shares of Stock acquired upon the exercise of the Option pursuant to a program or procedure approved by the Company (including, without limitation, through an exercise complying with the provisions of Regulation T as promulgated from time to time by the Board of Governors of the Federal Reserve System). The Company reserves, at any and all times, the right, in the Company's sole and absolute discretion, to decline to approve or terminate any such program or procedure. 4.4 Tax Withholding. At the time the Option is exercised, in whole or in part, or at any time thereafter as requested by the Company, the Optionee hereby authorizes withholding from payroll and any other amounts payable to the Optionee, and otherwise agrees to make adequate provision for (including by means of a Cashless Exercise to the extent permitted by the Company), any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Participating Company Group, if any, which arise in connection with the Option, including, without limitation, obligations arising upon (i) the exercise, in whole or in part, of the Option, (ii) the transfer, in whole or in part, of any shares acquired upon exercise of the Option, (iii) the operation of any law or regulation providing for the imputation of interest, or (iv) the lapsing of any restriction with respect to any shares acquired upon exercise of the Option. The Company shall have no obligation to deliver shares of Stock until the tax withholding obligations of the Participating Company Group have been satisfied by the Optionee. 4.5 Certificate Registration. Except in the event the Exercise Price is paid by means of a Cashless Exercise, the certificate for the shares as to which the Option is exercised shall be registered in the name of the Optionee, or, if applicable, in the names of the heirs of the Optionee. 4.6 Restrictions on Grant of the Option and Issuance of Shares. The grant of the Option and the issuance of shares of Stock upon exercise of the Option shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. The Option may not be exercised if the issuance of shares of Stock upon exercise would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. In addition, the Option may not be exercised unless (i) a registration statement under the Securities Act shall at the time of exercise of the Option be in effect with respect to the shares issuable upon exercise of the Option or (ii) in the opinion of legal counsel to the Company, the shares issuable upon exercise of the Option may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act. THE OPTIONEE IS CAUTIONED THAT THE OPTION MAY NOT BE EXERCISED UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS VESTED. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company's legal counsel to be necessary to the lawful issuance and sale of any shares subject to the Option shall relieve the Company of any liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained. As a condition to the exercise of the Option, the Company may require the Optionee to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company. 4.7 Fractional Shares. The Company shall not be required to issue fractional shares upon the exercise of the Option. 32 5. TRANSFERABILITY OF THE OPTION. The Option may generally only be exercised during the lifetime of the Optionee only by the Optionee or the Optionee's guardian or legal representative and may not be exercised, assigned or transferred in any manner except by will, by the laws of descent and distribution, or as otherwise provided in the Plan. Following the death of the Optionee, the Option, to the extent provided in Section 7, may be exercised by the Optionee's legal representative or by any person empowered to do so under the deceased Optionee's will or under the then applicable laws of descent and distribution. 6. TERMINATION OF THE OPTION. The Option shall terminate and may no longer be exercised on the first to occur of (a) the Option Expiration Date, (b) the last date for exercising the Option following termination of the Optionee's Service as described in Section 7, or (c) a Change in Control to the extent provided in Section 8. 7. EFFECT OF TERMINATION OF SERVICE. 7.1 Option Exercisability. (a) Disability. If the Optionee's Service with the Participating Company Group terminates because of the Disability of the Optionee, the Option, to the extent unexercised and exercisable on the date on which the Optionee's Service terminated, may be exercised by the Optionee (or the Optionee's guardian or legal representative) at any time prior to the expiration of six (6) months after the date on which the Optionee's Service terminated, but in any event no later than the Option Expiration Date. (b) Death. If the Optionee's Service with the Participating Company Group terminates because of the death of the Optionee, the Option, to the extent unexercised and exercisable on the date on which the Optionee's Service terminated, may be exercised by the Optionee's legal representative or other person who acquired the right to exercise the Option by reason of the Optionee's death at any time prior to the expiration of six (6) months after the date on which the Optionee's Service terminated, but in any event no later than the Option Expiration Date. The Optionee's Service shall be deemed to have terminated on account of death if the Optionee dies within one (1) month after the Optionee's termination of Service. (c) Other Termination of Service. If the Optionee's Service with the Participating Company Group terminates for any reason, except Disability or death, the Option, to the extent unexercised and exercisable by the Optionee on the date on which the Optionee's Service terminated, may be exercised by the Optionee at any time prior to the expiration of one month (1) month (or such other longer period of time as determined by the Board, in its discretion) after the date on which the Optionee's Service terminated, but in any event no later than the Option Expiration Date. 7.2 Extension if Exercise Prevented by Law. Notwithstanding the foregoing, if the exercise of the Option within the applicable time periods set forth in Section 7.1 is prevented by the provisions of Section 4.6, the Option shall remain exercisable until one (1) month after the date the Optionee is notified by the Company that the Option is exercisable, but in any event no later than the Option Expiration Date. 7.3 Extension if Optionee Subject to Section 16(b). Notwithstanding the foregoing, if a sale within the applicable time periods set forth in Section 7.1 of shares acquired upon the exercise of the Option would subject the Optionee to suit under Section 16(b) of the Exchange Act, the Option shall remain exercisable until the earliest to occur of (i) the tenth (10th) day following the date on which a sale of such shares by the Optionee would no longer be subject to such suit, (ii) the one hundred and ninetieth (190th) day after the Optionee's termination of Service, or (iii) the Option Expiration Date. 8. CHANGE IN CONTROL. In the event of a Change in Control, the exercisability and vesting of each outstanding Option held by the Optionee, provided the Optionee's Service has not terminated prior to such date, shall be 100% accelerated, effective as of the date ten (10) days prior to the date of the Change in Control. Any vesting of the Option that was permissible solely by reason of this Section 8 shall be conditioned upon the consummation of the Change in Control. In addition, in the event of a Change in Control, the Acquiring Corporation may either assume the Company's rights and obligations under the Option or substitute for the Option a substantially equivalent option for the Acquiring Corporation's stock. The Option shall terminate and cease to be outstanding effective as of the date of the Change in Control to the extent that the Option is neither assumed or substituted for by the Acquiring Corporation in connection with the Change in Control nor exercised as of the date of the Change in Control. Notwithstanding the foregoing, shares acquired upon exercise of the Option prior to the Change in Control and any consideration received pursuant to the Change in Control with respect to such shares shall continue to be subject to all applicable provisions of this Option Agreement except as otherwise provided herein. 9. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of any stock dividend, stock split, reverse stock split, recapitalization, combination, reclassification, or similar change in the capital structure of the Company, appropriate adjustments shall be made in the number, Exercise Price and class of shares of stock subject to the Option. If a majority of the shares which are of the same class as the shares that are subject to the Option are exchanged for, converted into, or otherwise become (whether or not pursuant to an Ownership Change Event) shares of another corporation (the "New Shares"), the Board may unilaterally amend the Option to provide that the Option is exercisable for New Shares. In the event of any such amendment, the Number of Option Shares and the Exercise Price shall be adjusted in a fair and equitable manner, as determined by the Board, in its discretion. Notwithstanding the foregoing, any fractional share resulting from an adjustment pursuant to this Section 9 shall be rounded down to the nearest whole number, and in no event may the Exercise Price be decreased to an amount less than the par value, if any, of the stock subject to the Option. The adjustments determined by the Board pursuant to this Section 9 shall be final, binding and conclusive. 33 10. RIGHTS AS A STOCKHOLDER, EMPLOYEE OR CONSULTANT. The Optionee shall have no rights as a stockholder with respect to any shares covered by the Option until the date of the issuance of a certificate for the shares for which the Option has been exercised (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 9. If the Optionee is an Employee, the Optionee understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Optionee, the Optionee's employment is "at will" and is for no specified term. Nothing in this Option Agreement shall confer upon the Optionee any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Optionee's Service as an Employee or Consultant, as the case may be, at any time. 11. NOTICE OF SALES UPON DISQUALIFYING DISPOSITION. The Optionee shall dispose of the shares acquired pursuant to the Option only in accordance with the provisions of this Option Agreement. In addition, if the Notice designates this Option as an Incentive Stock Option, the Optionee shall (a) promptly notify the Chief Financial Officer of the Company if the Optionee disposes of any of the shares acquired pursuant to the Option within one (1) year after the date the Optionee exercises all or part of the Option or within two (2) years after the Date of Option Grant and (b) provide the Company with a description of the circumstances of such disposition. Until such time as the Optionee disposes of such shares in a manner consistent with the provisions of this Option Agreement, unless otherwise expressly authorized by the Company, the Optionee shall hold all shares acquired pursuant to the Option in the Optionee's name (and not in the name of any nominee) for the one-year period immediately after the exercise of the Option and the two-year period immediately after Date of Option Grant. At any time during the one-year or two-year periods set forth above, the Company may place a legend on any certificate representing shares acquired pursuant to the Option requesting the transfer agent for the Company's stock to notify the Company of any such transfers. The obligation of the Optionee to notify the Company of any such transfer shall continue notwithstanding that a legend has been placed on the certificate pursuant to the preceding sentence. 34 12. LEGENDS. The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions, and, if applicable, that the shares were acquired upon exercise of an Incentive Stock Option on all certificates representing shares of stock subject to the provisions of this Option Agreement. The Optionee shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to the Option in the possession of the Optionee in order to carry out the provisions of this Section. 13. LOCK-UP AGREEMENT. The Optionee hereby agrees that in the event of any underwritten public offering of stock, including an initial public offering of stock, made by the Company pursuant to an effective registration statement filed under the Securities Act, the Optionee shall not offer, sell, contract to sell, pledge, hypothecate, grant any option to purchase or make any short sale of, or otherwise dispose of any shares of stock of the Company or any rights to acquire stock of the Company for such period of time from and after the effective date of such registration statement as may be established by the underwriter for such public offering; provided, however, that such period of time shall not exceed one hundred eighty (180) days from the effective date of the registration statement to be filed in connection with such public offering. The foregoing limitation shall not apply to shares registered in the public offering under the Securities Act. 14. RESTRICTIONS ON TRANSFER OF SHARES. No shares acquired upon exercise of the Option may be sold, exchanged, transferred (including, without limitation, any transfer to a nominee or agent of the Optionee), assigned, pledged, hypothecated or otherwise disposed of, including by operation of law, in any manner which violates any of the provisions of this Option Agreement, and any such attempted disposition shall be void. The Company shall not be required (a) to transfer on its books any shares which will have been transferred in violation of any of the provisions set forth in this Option Agreement or (b) to treat as owner of such shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such shares will have been so transferred. 15. MISCELLANEOUS PROVISIONS. 15.1 Binding Effect. Subject to the restrictions on transfer set forth herein, this Option Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. 15.2 Termination or Amendment. The Board may terminate or amend the Plan or the Option at any time; provided, however, that except as provided in Section 8 in connection with a Change in Control, no such termination or amendment may adversely affect the Option or any unexercised portion hereof without the consent of the Optionee unless such termination or amendment is necessary to comply with any applicable law or government regulation or is required to enable the Option, if designated an Incentive Stock Option in the Notice, to qualify as an Incentive Stock Option. No amendment or addition to this Option Agreement shall be effective unless in writing. 15.3 Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Option Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, with postage and fees prepaid, addressed to the other party at the address shown below that party's signature on the Notice or at such other address as such party may designate in writing from time to time to the other party. 15.4 Integrated Agreement. The Notice, this Option Agreement and the Plan constitute the entire understanding and agreement of the Optionee and the Participating Company Group with respect to the subject matter contained herein or therein and supersedes any prior agreements, understandings, restrictions, representations, or warranties among the Optionee and the Participating Company Group with respect to such subject matter other than those as set forth or provided for herein or therein. To the extent contemplated herein or therein, the provisions of the Notice and the Option Agreement shall survive any exercise of the Option and shall remain in full force and effect. 15.5 Applicable Law. This Option Agreement shall be governed by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within the State of California. 35 15.6 Counterparts. The Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (TM) Incentive Stock Option Optionee: -------------------- (TM) Nonstatutory Stock Option Date: -------------------- STOCK OPTION EXERCISE NOTICE AmNet Mortgage, Inc. Attention: Chief Financial Officer 10421 Wateridge Circle, Suite 250 San Diego, CA 92121 Ladies and Gentlemen: 1. Option. I was granted an option (the "Option") to purchase shares of the common stock (the "Shares") of AmNet Mortgage, Inc. (the "Company") pursuant to the Company's 2004 Equity Incentive Plan (the "Plan"), my Notice of Grant of Stock Option (the "Notice") and my Stock Option Agreement (the "Option Agreement") as follows:
Grant Number: ------------------------------- Date of Option Grant: ------------------------------- Number of Option Shares: ------------------------------- Exercise Price per Share: $ ----------------------------- 2. Exercise of Option. I hereby elect to exercise the Option to purchase the following number of Shares: Total Shares Purchased: ------------------------------- Total Exercise Price (Total Shares X Price per Share) $ ------------------------------ 3. Payments. I enclose payment in full of the total exercise price for the Shares in the following form(s), as authorized by my Option Agreement: (TM) Cash: $ ----------------------------- (TM) Check: $ ----------------------------- (TM) Tender of Company Stock: Contact Plan Administrator (TM) Cashless exercise Contact Plan Administrator
4. Tax Withholding. Subject to the Option Agreement, I authorize payroll withholding, if required, and otherwise will make adequate provision for the federal, state, local and foreign tax withholding obligations of the Company, if any, in connection with the Option. 5. Optionee Information. My address is: ------------------------------------------------------------ ------------------------------------------------------------ 1 My Social Security Number is: ------------------------------ 6. Notice of Disqualifying Disposition. If the Option is an Incentive Stock Option, I agree that I will promptly notify the Chief Financial Officer of the Company if I transfer any of the Shares within one (1) year from the date I exercise all or part of the Option or within two (2) years of the Date of Option Grant. 7. Binding Effect. I agree that the Shares are being acquired in accordance with and subject to the terms, provisions and conditions of the Option Agreement, to all of which I hereby expressly assent. This Agreement shall inure to the benefit of and be binding upon the my heirs, executors, administrators, successors and assigns. I understand that I am purchasing the Shares pursuant to the terms of the Plan, the Notice and my Option Agreement, copies of which I have received and carefully read and understand. Very truly yours, -------------------- (Signature) Receipt of the above is hereby acknowledged. AMNET MORTGAGE, INC. By: ------------------------------------------------- Title: ---------------------------------------------- Dated: ---------------------------------------------- 2 EX-10.32 7 a4858777ex-1032.txt EXHIBIT 10.32 Exhibit 10.32 AMNET MORTGAGE, INC. EXECUTIVE OFFICER ANNUAL CASH BONUS PROGRAM Performance Period January 1, 2005 - December 31, 2005 Approved by the Compensation Committee of the Board of Directors on March 31, 2005 Purpose: The goal of the program is to provide an annual incentive to the company's executive officers to maximize the company's financial performance and achieve specified strategic and individual goals in 2005. Summary Description: The program sets a financial performance goal for the one year performance period based on the Company's target income before income taxes. In addition, other financial and or operating goals are set for each participant. Program Participants: The executive officers of the company will participate in the program. Performance Measurements and Awards: The performance measurements and the method of calculating awards are set forth on Exhibit A hereto. The awards will be based on the combination of financial goals for the company and other individual goals. The weighting of these goals will differ by position. If target goals are met, each officer may receive a bonus equal to 80% to 90% of base salary, depending on the individual's title. If the goals are exceeded, they may receive up to a maximum of 120% to 135% of their base salary. If the target goals are not met, bonuses shall be reduced or may not be awarded. Effective Time of the Awards: All awards will be subject to final approval by the Compensation Committee. The Committee shall determine the final awards promptly following the completion of the annual audit of the company's financial statements for 2005 but in all events within 2.5 months after the end of the year. The Compensation Committee retains the discretion to reduce or increase the awards for participants and may, in its sole discretion, exclude from the financial calculations any extraordinary items under GAAP for the purposes of this program. Effect of Termination: In the event of a change of control or if a participant's employment terminates for any reason, a bonus award shall be paid as set forth in the participant's Executive Employment Agreement as in effect on the date of such event. 3 EX-10.33 8 a4858777ex-1033.txt EXHIBIT 10.33 Exhibit 10.33 AMNET MORTGAGE, INC. CASH LONG TERM INCENTIVE PROGRAM Performance Period January 1, 2005 - December 31, 2006 Approved by the Compensation Committee of the Board of Directors on March 31, 2005 This program is adopted under the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan") and is subject to all terms and conditions therein. Defined terms used in this program description have the meaning set forth in the Plan unless otherwise specified herein. It is intended that this program is a performance based program under the Plan. Purpose: The goal of the program is to provide long term incentives to the company's Executive Officers and certain other officers to maximize the company's financial performance. Summary Description: The program sets two performance measurements for the two year performance period: average pre-tax return on equity and cumulative earnings before tax. Based on the company's performance over the two year period, each participant in the program who remains an employee of the company at the end of the performance period and through the date the awards are finalized may receive an award that shall be paid in cash. Program Participants: The executive officers of the company and the officers specified on Exhibit B will participate in the program. Performance Measurements: The performance measurements shall be calculated as set forth on Exhibit A hereto. Performance Awards: The potential individual performance awards are set forth on Exhibit B hereto. All cash awards shall be paid promptly after determination following the end of the performance period. Effective Time of the Awards: All awards are subject to final approval and certification by the Compensation Committee. The Committee shall determine and certify in writing the final awards promptly following the completion of the annual audit of the company's financial statements for 2006. Under the Plan, the Compensation Committee retains the discretion to reduce the awards actually granted to executive officers under the program and to reduce or increase the awards for other participants under the Plan. Effect of Termination: Except as otherwise specified, all awards will be forfeit in the event of a participant's resignation or termination of employment prior to the effective time the awards are granted. In the event of participant's retirement, death or disability or in the event of an Executive Officer's termination without Cause or resignation for Good Reason (as defined in the executive's Executive Employment Agreement as then in effect) the Compensation Committee may authorize a pro rated award as determined in the Committee's sole discretion. Effect of Change of Control: This program will terminate on the effective date of a Change of Control. Awards shall be granted as follows, with payment to be made immediately prior to the Change of Control. Executive officers: Each Executive Officer shall be paid an amount equal to the target award opportunity for the performance period. Other participants: The Compensation Committee may authorize a pro rated award to other participants as determined in its sole discretion. 4 EX-10.34 9 a4858777ex-1034.txt EXHIBIT 10.34 Exhibit 10.34 AMNET MORTGAGE, INC. CASH LONG TERM INCENTIVE PROGRAM Performance Period January 1, 2005 - December 31, 2007 Approved by the Compensation Committee of the Board of Directors on March 31, 2005 This program is adopted under the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan") and is subject to all terms and conditions therein. Defined terms used in this program description have the meaning set forth in the Plan unless otherwise specified herein. It is intended that this program is a performance based program under the Plan. Purpose: The goal of the program is to provide long term incentives to the company's Executive Officers and certain other officers to maximize the company's financial performance. Summary Description: The program sets two performance measurements for the three year performance period: average pre-tax return on equity and cumulative earnings before tax. Based on the company's performance over the three year period, each participant in the program who remains an employee of the company at the end of the performance period and through the date the awards are finalized may receive an award that shall be paid in cash. Program Participants: The executive officers of the company and the officers specified on Exhibit B will participate in the program. Performance Measurements: The performance measurements shall be calculated as set forth on Exhibit A hereto. Performance Awards: The potential individual performance awards are set forth on Exhibit B hereto. All cash awards shall be paid promptly after determination following the end of the performance period. Effective Time of the Awards: All awards are subject to final approval and certification by the Compensation Committee. The Committee shall determine and certify in writing the final awards promptly following the completion of the annual audit of the company's financial statements for 2007. Under the Plan, the Compensation Committee retains the discretion to reduce the awards actually granted to executive officers under the program and to reduce or increase the awards for other participants under the Plan. Effect of Termination: Except as otherwise specified, all awards will be forfeit in the event of a participant's resignation or termination of employment prior to the effective time the awards are granted. In the event of participant's retirement, death or disability or in the event of an Executive Officer's termination without Cause or resignation for Good Reason (as defined in the executive's Executive Employment Agreement as then in effect) the Compensation Committee may authorize a pro rated award as determined in the Committee's sole discretion. Effect of Change of Control: This program will terminate on the effective date of a Change of Control. Awards shall be granted as follows, with payment to be made immediately prior to the Change of Control. Executive officers: Each Executive Officer shall be paid an amount equal to the target award opportunity for the performance period. Other participants: The Compensation Committee may authorize a pro rated award to other participants as determined in its sole discretion. 5 EX-10.35 10 a4858777ex-1035.txt EXHIBIT 10.35 Exhibit 10.35 AMNET MORTGAGE, INC. NOTICE OF GRANT OF STOCK OPTION (Directors Grant) ________________ (the "Optionee") has been granted an option (the "Option") to purchase certain shares of Stock of AmNet Mortgage, Inc. pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan"), as follows: Date of Option Grant: ____________ Number of Option Shares: ____________ Exercise Price: $___________ per share Initial Vesting Date: ____________ Option Expiration Date: The date ten (10) years after the Date of Option Grant. Tax Status of Option: Nonstatutory Stock Option. Vested Shares: Except as provided in the Plan and Stock Option Agreement, the number of Vested Shares (disregarding any resulting fractional share) as of any date is determined by multiplying the Number of Option Shares by the "Vested Percentage" determined as of such date as follows: Vested Percentage ---------- c. Initially, all shares of stock shall be Unvested Shares 0 d. On Initial Vesting Date, provided Optionee's Service has not terminated prior to such date 100% By their signatures below, the Company and the Optionee agree that the Option is governed by this Notice and by the provisions of the Plan and the Stock Option Agreement, both of which are attached to and made a part of this document. The Optionee acknowledges receipt of copies of the Plan and the Stock Option Agreement, represents that the Optionee has read and is familiar with their provisions, and hereby accepts the Option subject to all of their terms and conditions. AMNET MORTGAGE, INC. OPTIONEE By: ------------------------------------------- ------------------------------ Signature Its: ------------------------------------------ ------------------------------ Date Address: 10421 Wateridge Circle, Suite 250 ------------------------------ San Diego, CA 92121 Address ATTACHMENTS: 2004 Equity Incentive Plan, as amended to the Date of Option Grant; Stock Option Agreement and Exercise Notice 6 AMNET MORTGAGE, INC. STOCK OPTION AGREEMENT (Directors Grant) AmNet Mortgage, Inc. has granted to the individual (the "Optionee") named in the Notice of Grant of Stock Option (the "Notice") to which this Stock Option Agreement (the "Option Agreement") is attached an option (the "Option") to purchase certain shares of Stock upon the terms and conditions set forth in the Notice and this Option Agreement. The Option has been granted pursuant to and shall in all respects be subject to the terms and conditions of the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan"), as amended to the Date of Option Grant, the provisions of which are incorporated herein by reference. By signing the Notice, the Optionee: (a) represents that the Optionee has read and is familiar with the terms and conditions of the Notice, the Plan and this Option Agreement, including the Effect of Termination of Service set forth in Section 7, (b) accepts the Option subject to all of the terms and conditions of the Notice, the Plan and this Option Agreement, (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under the Notice, the Plan or this Option Agreement, and (d) acknowledges receipt of a copy of the Notice, the Plan and this Option Agreement. 1. DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Notice or the Plan. 1.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Option Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term ooro is not intended to be exclusive, unless the context clearly requires otherwise. 2. TAX CONSEQUENCES. 2.1 Tax Status of Option. This Option is intended to have the tax status designated in the Notice. (a) Incentive Stock Option. If the Notice so designates, this Option is intended to be an Incentive Stock Option within the meaning of Section 422(b) of the Code, but the Company does not represent or warrant that this Option qualifies as such. The Optionee should consult with the Optionee's own tax advisor regarding the tax effects of this Option and the requirements necessary to obtain favorable income tax treatment under Section 422 of the Code, including, but not limited to, holding period requirements. (NOTE TO OPTIONEE: If the Option is exercised more than three (3) months after the date on which you cease to be an Employee (other than by reason of your death or permanent and total disability as defined in Section 22(e)(3) of the Code), the Option will be treated as a Nonstatutory Stock Option and not as an Incentive Stock Option to the extent required by Section 422 of the Code.) (b) Nonstatutory Stock Option. If the Notice so designates, this Option is intended to be a Nonstatutory Stock Option and shall not be treated as an Incentive Stock Option within the meaning of Section 422(b) of the Code. 2.2 ISO Fair Market Value Limitation. If the Notice designates this Option as an Incentive Stock Option, then to the extent that the Option (together with all Incentive Stock Options granted to the Optionee under all stock option plans of the Participating Company Group, including the Plan) becomes exercisable for the first time during any calendar year for shares having a Fair Market Value greater than One Hundred Thousand Dollars ($100,000), the portion of such options which exceeds such amount will be treated as Nonstatutory Stock Options. For purposes of this Section 2.2, options designated as Incentive Stock Options are taken into account in the order in which they were granted, and the Fair Market Value of stock is determined as of the time the option with respect to such stock is granted. If the Code is amended to provide for a different limitation from that set forth in this Section 2.2, such different limitation shall be deemed incorporated herein effective as of the date required or permitted by such amendment to the Code. If the Option is treated as an Incentive Stock Option in part and as a Nonstatutory Stock Option in part by reason of the limitation set forth in this Section 2.2, the Optionee may designate which portion of such Option the Optionee is exercising. In the absence of such designation, the Optionee shall be deemed to have exercised the Incentive Stock Option portion of the Option first. Separate certificates representing each such portion shall be issued upon the exercise of the Option. (NOTE TO OPTIONEE: If the aggregate Exercise Price of the Option (that is, the Exercise Price multiplied by the Number of Option Shares) plus the aggregate exercise price of any other Incentive Stock Options you hold (whether granted pursuant to the Plan or any other stock option plan of the Participating Company Group) is greater than $100,000, you should contact the Chief Financial Officer of the Company to ascertain whether the entire Option qualifies as an Incentive Stock Option.) 7 3. ADMINISTRATION. All questions of interpretation concerning this Option Agreement shall be determined by the Board. All determinations by the Board shall be final and binding upon all persons having an interest in the Option. Any officer of a Participating Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation, or election. 4. EXERCISE OF THE OPTION. 4.1 Right to Exercise. Except as otherwise provided herein, the Option shall be exercisable on and after the Date of Option Grant (or if later, the Optionee's Service commencement date) and prior to the termination of the Option (as provided in Section 6) in an amount not to exceed the number of Vested Shares less the number of shares previously acquired upon exercise of the Option. 4.2 Method of Exercise. Exercise of the Option shall be by written notice to the Company which must state the election to exercise the Option, the number of whole shares of Stock for which the Option is being exercised and such other representations and agreements as to the Optionee's investment intent with respect to such shares as may be required pursuant to the provisions of this Option Agreement. The written notice must be signed by the Optionee and must be delivered in person, by certified or registered mail, return receipt requested, by confirmed facsimile transmission, or by such other means as the Company may permit, to the Chief Financial Officer of the Company, or other authorized representative of the Participating Company Group, prior to the termination of the Option as set forth in Section 6, accompanied by full payment of the aggregate Exercise Price for the number of shares of Stock being purchased. The Option shall be deemed to be exercised upon receipt by the Company of such written notice and the aggregate Exercise Price. 4.3 Payment of Exercise Price. (a) Forms of Consideration Authorized. Except as otherwise provided below, payment of the aggregate Exercise Price for the number of shares of Stock for which the Option is being exercised shall be made (i) in cash, by check, or cash equivalent, (ii) by tender to the Company, or attestation to the ownership, of whole shares of Stock owned by the Optionee having a Fair Market Value (as determined by the Company without regard to any restrictions on transferability applicable to such stock by reason of federal or state securities laws or agreements with an underwriter for the Company) not less than the aggregate Exercise Price, (iii) by means of a Cashless Exercise, as defined in Section 4.3(b), or (iv) by any combination of the foregoing. (b) Limitations on Forms of Consideration. (i) Tender of Stock. Notwithstanding the foregoing, the Option may not be exercised by tender to the Company, or attestation to the ownership, of shares of Stock to the extent such tender or attestation would constitute a violation of the provisions of any law, regulation or agreement restricting the redemption of the Company's stock. The Option may not be exercised by tender to the Company, or attestation to the ownership, of shares of Stock unless such shares either have been owned by the Optionee for more than six (6) months or were not acquired, directly or indirectly, from the Company. 8 (ii) Cashless Exercise. A oCashless Exerciseo means the delivery of a properly executed notice together with irrevocable instructions to a broker in a form acceptable to the Company providing for the assignment to the Company of the proceeds of a sale or loan with respect to some or all of the shares of Stock acquired upon the exercise of the Option pursuant to a program or procedure approved by the Company (including, without limitation, through an exercise complying with the provisions of Regulation T as promulgated from time to time by the Board of Governors of the Federal Reserve System). The Company reserves, at any and all times, the right, in the Company's sole and absolute discretion, to decline to approve or terminate any such program or procedure. 4.4 Tax Withholding. At the time the Option is exercised, in whole or in part, or at any time thereafter as requested by the Company, the Optionee hereby authorizes withholding from payroll and any other amounts payable to the Optionee, and otherwise agrees to make adequate provision for (including by means of a Cashless Exercise to the extent permitted by the Company), any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Participating Company Group, if any, which arise in connection with the Option, including, without limitation, obligations arising upon (i) the exercise, in whole or in part, of the Option, (ii) the transfer, in whole or in part, of any shares acquired upon exercise of the Option, (iii) the operation of any law or regulation providing for the imputation of interest, or (iv) the lapsing of any restriction with respect to any shares acquired upon exercise of the Option. The Company shall have no obligation to deliver shares of Stock until the tax withholding obligations of the Participating Company Group have been satisfied by the Optionee. 4.5 Certificate Registration. Except in the event the Exercise Price is paid by means of a Cashless Exercise, the certificate for the shares as to which the Option is exercised shall be registered in the name of the Optionee, or, if applicable, in the names of the heirs of the Optionee. 4.6 Restrictions on Grant of the Option and Issuance of Shares. The grant of the Option and the issuance of shares of Stock upon exercise of the Option shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. The Option may not be exercised if the issuance of shares of Stock upon exercise would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. In addition, the Option may not be exercised unless (i) a registration statement under the Securities Act shall at the time of exercise of the Option be in effect with respect to the shares issuable upon exercise of the Option or (ii) in the opinion of legal counsel to the Company, the shares issuable upon exercise of the Option may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act. THE OPTIONEE IS CAUTIONED THAT THE OPTION MAY NOT BE EXERCISED UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS VESTED. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company's legal counsel to be necessary to the lawful issuance and sale of any shares subject to the Option shall relieve the Company of any liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained. As a condition to the exercise of the Option, the Company may require the Optionee to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company. 4.7 Fractional Shares. The Company shall not be required to issue fractional shares upon the exercise of the Option. 5. TRANSFERABILITY OF THE OPTION. The Option may generally only be exercised during the lifetime of the Optionee only by the Optionee or the Optionee's guardian or legal representative and may not be exercised, assigned or transferred in any manner except by will, by the laws of descent and distribution, or as otherwise provided in the Plan. Following the death of the Optionee, the Option, to the extent provided in Section 7, may be exercised by the Optionee's legal representative or by any person empowered to do so under the deceased Optionee's will or under the then applicable laws of descent and distribution. 9 6. TERMINATION OF THE OPTION. The Option shall terminate and may no longer be exercised on the first to occur of (a) the Option Expiration Date, (b) the last date for exercising the Option following termination of the Optionee's Service as described in Section 7, or (c) a Change in Control to the extent provided in Section 8. 7. EFFECT OF TERMINATION OF SERVICE. 7.1 Option Exercisability. (a) Disability. If the Optionee's Service with the Participating Company Group terminates because of the Disability of the Optionee, the Option, to the extent unexercised and exercisable on the date on which the Optionee's Service terminated, may be exercised by the Optionee (or the Optionee's guardian or legal representative) at any time prior to the expiration of six (6) months after the date on which the Optionee's Service terminated, but in any event no later than the Option Expiration Date. (b) Death. If the Optionee's Service with the Participating Company Group terminates because of the death of the Optionee, the Option, to the extent unexercised and exercisable on the date on which the Optionee's Service terminated, may be exercised by the Optionee's legal representative or other person who acquired the right to exercise the Option by reason of the Optionee's death at any time prior to the expiration of six (6) months after the date on which the Optionee's Service terminated, but in any event no later than the Option Expiration Date. The Optionee's Service shall be deemed to have terminated on account of death if the Optionee dies within one (1) month after the Optionee's termination of Service. (c) Other Termination of Service. If the Optionee's Service with the Participating Company Group terminates for any reason, except Disability or death, the Option, to the extent unexercised and exercisable by the Optionee on the date on which the Optionee's Service terminated, may be exercised by the Optionee at any time prior to the expiration of one month (1) month (or such other longer period of time as determined by the Board, in its discretion) after the date on which the Optionee's Service terminated, but in any event no later than the Option Expiration Date. 7.2 Extension if Exercise Prevented by Law. Notwithstanding the foregoing, if the exercise of the Option within the applicable time periods set forth in Section 7.1 is prevented by the provisions of Section 4.6, the Option shall remain exercisable until one (1) month after the date the Optionee is notified by the Company that the Option is exercisable, but in any event no later than the Option Expiration Date. 7.3 Extension if Optionee Subject to Section 16(b). Notwithstanding the foregoing, if a sale within the applicable time periods set forth in Section 7.1 of shares acquired upon the exercise of the Option would subject the Optionee to suit under Section 16(b) of the Exchange Act, the Option shall remain exercisable until the earliest to occur of (i) the tenth (10th) day following the date on which a sale of such shares by the Optionee would no longer be subject to such suit, (ii) the one hundred and ninetieth (190th) day after the Optionee's termination of Service, or (iii) the Option Expiration Date. 8. CHANGE IN CONTROL. In the event of a Change in Control, the exercisability and vesting of each outstanding Option held by the Optionee, provided the Optionee's Service has not terminated prior to such date, shall be 100% accelerated, effective as of the date ten (10) days prior to the date of the Change in Control. Any vesting of the Option that was permissible solely by reason of this Section 8 shall be conditioned upon the consummation of the Change in Control. In addition, in the event of a Change in Control, the Acquiring Corporation may either assume the Company's rights and obligations under the Option or substitute for the Option a substantially equivalent option for the Acquiring Corporation's stock. The Option shall terminate and cease to be outstanding effective as of the date of the Change in Control to the extent that the Option is neither assumed or substituted for by the Acquiring Corporation in connection with the Change in Control nor exercised as of the date of the Change in Control. Notwithstanding the foregoing, shares acquired upon exercise of the Option prior to the Change in Control and any consideration received pursuant to the Change in Control with respect to such shares shall continue to be subject to all applicable provisions of this Option Agreement except as otherwise provided herein. 10 9. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of any stock dividend, stock split, reverse stock split, recapitalization, combination, reclassification, or similar change in the capital structure of the Company, appropriate adjustments shall be made in the number, Exercise Price and class of shares of stock subject to the Option. If a majority of the shares which are of the same class as the shares that are subject to the Option are exchanged for, converted into, or otherwise become (whether or not pursuant to an Ownership Change Event) shares of another corporation (the "New Shares"), the Board may unilaterally amend the Option to provide that the Option is exercisable for New Shares. In the event of any such amendment, the Number of Option Shares and the Exercise Price shall be adjusted in a fair and equitable manner, as determined by the Board, in its discretion. Notwithstanding the foregoing, any fractional share resulting from an adjustment pursuant to this Section 9 shall be rounded down to the nearest whole number, and in no event may the Exercise Price be decreased to an amount less than the par value, if any, of the stock subject to the Option. The adjustments determined by the Board pursuant to this Section 9 shall be final, binding and conclusive. 11 10. RIGHTS AS A STOCKHOLDER, EMPLOYEE OR CONSULTANT. The Optionee shall have no rights as a stockholder with respect to any shares covered by the Option until the date of the issuance of a certificate for the shares for which the Option has been exercised (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 9. If the Optionee is an Employee, the Optionee understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Optionee, the Optionee's employment is "at will" and is for no specified term. Nothing in this Option Agreement shall confer upon the Optionee any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Optionee's Service as an Employee or Consultant, as the case may be, at any time. 11. NOTICE OF SALES UPON DISQUALIFYING DISPOSITION. The Optionee shall dispose of the shares acquired pursuant to the Option only in accordance with the provisions of this Option Agreement. In addition, if the Notice designates this Option as an Incentive Stock Option, the Optionee shall (a) promptly notify the Chief Financial Officer of the Company if the Optionee disposes of any of the shares acquired pursuant to the Option within one (1) year after the date the Optionee exercises all or part of the Option or within two (2) years after the Date of Option Grant and (b) provide the Company with a description of the circumstances of such disposition. Until such time as the Optionee disposes of such shares in a manner consistent with the provisions of this Option Agreement, unless otherwise expressly authorized by the Company, the Optionee shall hold all shares acquired pursuant to the Option in the Optionee's name (and not in the name of any nominee) for the one-year period immediately after the exercise of the Option and the two-year period immediately after Date of Option Grant. At any time during the one-year or two-year periods set forth above, the Company may place a legend on any certificate representing shares acquired pursuant to the Option requesting the transfer agent for the Company's stock to notify the Company of any such transfers. The obligation of the Optionee to notify the Company of any such transfer shall continue notwithstanding that a legend has been placed on the certificate pursuant to the preceding sentence. 12. LEGENDS. The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions, and, if applicable, that the shares were acquired upon exercise of an Incentive Stock Option on all certificates representing shares of stock subject to the provisions of this Option Agreement. The Optionee shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to the Option in the possession of the Optionee in order to carry out the provisions of this Section. 12 13. LOCK-UP AGREEMENT. The Optionee hereby agrees that in the event of any underwritten public offering of stock, including an initial public offering of stock, made by the Company pursuant to an effective registration statement filed under the Securities Act, the Optionee shall not offer, sell, contract to sell, pledge, hypothecate, grant any option to purchase or make any short sale of, or otherwise dispose of any shares of stock of the Company or any rights to acquire stock of the Company for such period of time from and after the effective date of such registration statement as may be established by the underwriter for such public offering; provided, however, that such period of time shall not exceed one hundred eighty (180) days from the effective date of the registration statement to be filed in connection with such public offering. The foregoing limitation shall not apply to shares registered in the public offering under the Securities Act. 14. RESTRICTIONS ON TRANSFER OF SHARES. No shares acquired upon exercise of the Option may be sold, exchanged, transferred (including, without limitation, any transfer to a nominee or agent of the Optionee), assigned, pledged, hypothecated or otherwise disposed of, including by operation of law, in any manner which violates any of the provisions of this Option Agreement, and any such attempted disposition shall be void. The Company shall not be required (a) to transfer on its books any shares which will have been transferred in violation of any of the provisions set forth in this Option Agreement or (b) to treat as owner of such shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such shares will have been so transferred. 15. MISCELLANEOUS PROVISIONS. 15.1 Binding Effect. Subject to the restrictions on transfer set forth herein, this Option Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. 15.2 Termination or Amendment. The Board may terminate or amend the Plan or the Option at any time; provided, however, that except as provided in Section 8 in connection with a Change in Control, no such termination or amendment may adversely affect the Option or any unexercised portion hereof without the consent of the Optionee unless such termination or amendment is necessary to comply with any applicable law or government regulation or is required to enable the Option, if designated an Incentive Stock Option in the Notice, to qualify as an Incentive Stock Option. No amendment or addition to this Option Agreement shall be effective unless in writing. 15.3 Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Option Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, with postage and fees prepaid, addressed to the other party at the address shown below that party's signature on the Notice or at such other address as such party may designate in writing from time to time to the other party. 15.4 Integrated Agreement. The Notice, this Option Agreement and the Plan constitute the entire understanding and agreement of the Optionee and the Participating Company Group with respect to the subject matter contained herein or therein and supersedes any prior agreements, understandings, restrictions, representations, or warranties among the Optionee and the Participating Company Group with respect to such subject matter other than those as set forth or provided for herein or therein. To the extent contemplated herein or therein, the provisions of the Notice and the Option Agreement shall survive any exercise of the Option and shall remain in full force and effect. 15.5 Applicable Law. This Option Agreement shall be governed by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within the State of California. 15.6 Counterparts. The Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 13 (TM) Incentive Stock Option Optionee: -------------------------- (TM) Nonstatutory Stock Option Date: -------------------------- STOCK OPTION EXERCISE NOTICE AmNet Mortgage, Inc. Attention: Chief Financial Officer 10421 Wateridge Circle, Suite 250 San Diego, CA 92121 Ladies and Gentlemen: 1. Option. I was granted an option (the "Option") to purchase shares of the common stock (the "Shares") of AmNet Mortgage, Inc. (the "Company") pursuant to the Company's 2004 Equity Incentive Plan (the "Plan"), my Notice of Grant of Stock Option (the "Notice") and my Stock Option Agreement (the "Option Agreement") as follows:
Grant Number: ------------------------------- Date of Option Grant: ------------------------------- Number of Option Shares: ------------------------------- Exercise Price per Share: $ ----------------------------- 2. Exercise of Option. I hereby elect to exercise the Option to purchase the following number of Shares: Total Shares Purchased: ------------------------------- Total Exercise Price (Total Shares X Price per Share) $ ------------------------------ 3. Payments. I enclose payment in full of the total exercise price for the Shares in the following form(s), as authorized by my Option Agreement: (TM) Cash: $ ----------------------------- (TM) Check: $ ----------------------------- (TM) Tender of Company Stock: Contact Plan Administrator (TM) Cashless exercise Contact Plan Administrator
4. Tax Withholding. Subject to the Option Agreement, I authorize payroll withholding, if required, and otherwise will make adequate provision for the federal, state, local and foreign tax withholding obligations of the Company, if any, in connection with the Option. 5. Optionee Information. My address is: ------------------------------------------------------------ ------------------------------------------------------------ My Social Security Number is: ------------------------------ 14 6. Notice of Disqualifying Disposition. If the Option is an Incentive Stock Option, I agree that I will promptly notify the Chief Financial Officer of the Company if I transfer any of the Shares within one (1) year from the date I exercise all or part of the Option or within two (2) years of the Date of Option Grant. 7. Binding Effect. I agree that the Shares are being acquired in accordance with and subject to the terms, provisions and conditions of the Option Agreement, to all of which I hereby expressly assent. This Agreement shall inure to the benefit of and be binding upon the my heirs, executors, administrators, successors and assigns. I understand that I am purchasing the Shares pursuant to the terms of the Plan, the Notice and my Option Agreement, copies of which I have received and carefully read and understand. Very truly yours, --------------------------------- (Signature) Receipt of the above is hereby acknowledged. AMNET MORTGAGE, INC. By: ------------------------------------------------- Title: ---------------------------------------------- Dated: ---------------------------------------------- 15 EX-10.36 11 a4858777ex-1036.txt EXHIBIT 10.36 Exhibit 10.36 AMNET MORTGAGE, INC. NOTICE OF GRANT OF RESTRICTED STOCK AWARD (Director Grant) ________________________ (the "Participant") has been granted an award (the "Award") pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan") of certain shares of Stock (the "Shares") of AmNet Mortgage, Inc., as follows: Grant Number: ________________ Date of Grant: ________________ Total Number of Shares: ________________ Initial Vesting Date: ________________ Vested Shares: Except as provided in the Restricted Stock Agreement, the number of Vested Shares (disregarding any resulting fractional share) as of any date is determined by multiplying the Total Number of Shares by the "Vested Ratio" determined as of such date as follows: Vested Ratio ------- Prior to Initial Vesting Date 0 On Initial Vesting Date, provided the Participant's Service has not terminated prior to such date 1/1 By their signatures below, the Company and the Participant agree that the Award is governed by this Notice and by the provisions of the Plan and the Restricted Stock Agreement attached to and made a part of this document. The Participant acknowledges receipt of a copy of the Plan and the Restricted Stock Agreement, and represents that the Participant has read and is familiar with the provisions of the Plan, this Notice and the Restricted Stock Agreement, and hereby accepts the Award subject to all applicable terms and conditions. AMNET MORTGAGE, INC. PARTICIPANT By: --------------------------------------- -------------------------------- Signature Its: -------------------------------------- -------------------------------- Date Address: 10421 Wateridge Circle Suite 250 ---------------------------------- San Diego, CA 92121 Address ATTACHMENTS: AmNet Mortgage, Inc. 2004 Equity Incentive Plan, Restricted Stock Agreement; Joint Escrow Instructions; Assignment Separate from Certificate AMNET MORTGAGE, INC. RESTRICTED STOCK AGREEMENT (Director Grant) AmNet Mortgage, Inc. has granted to the Participant named in the Notice of Grant of Restricted Stock Award (the "Notice") to which this Restricted Stock Agreement (the "Agreement") is attached an Award consisting of Shares subject to the terms and conditions set forth in the Notice and this Agreement. The Award has been granted pursuant to the AmNet Mortgage, Inc. 2004 Equity Incentive Plan (the "Plan"). By signing the Notice, the Participant: (a) represents that the Participant has read and is familiar with the terms and conditions of the Plan, the Notice and this Agreement, (b) accepts the Award subject to all of the terms and conditions of the Plan, the Notice and this Agreement, (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under the Plan, the Notice or this Agreement, and (d) acknowledges receipt of a copy of the Plan, the Notice, and this Agreement. 1. DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. Unless otherwise defined in the Notice, defined terms not explicitly defined in this Agreement but defined in the Plan shall have the same definitions as in the Plan. 1.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term "or" is not intended to be exclusive, unless the context clearly requires otherwise. 2. THE AWARD. 2.1 Grant and Issuance of Shares. On the Date of Grant, the Participant will acquire and the Company will issue, subject to the provisions of this Agreement, a number of Shares equal to the Total Number of Shares set forth in the Notice. As a condition to the issuance of the Shares, the Participant shall execute and deliver to the Company along with the Notice (a) the Joint Escrow Instructions in the form attached to the Notice and (b) the Assignment Separate from Certificate duly endorsed (with date and number of shares blank) in the form attached to the Notice. 2.2 No Monetary Payment Required. The Participant is not required to make any monetary payment (other than applicable tax withholding, if any) as a condition to receiving the Shares, the consideration for which shall be past services actually rendered and/or future services to be rendered to the Company or for its benefit. 2.3 Certificate Registration. The certificate for the Shares shall be registered in the name of the Participant, or, if applicable, in the names of the heirs of the Participant. 2.4 Issuance of Shares in Compliance with Law. The issuance of the Shares shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No Shares shall be issued hereunder if their issuance would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company's legal counsel to be necessary to the lawful issuance of any Shares shall relieve the Company of any liability in respect of the failure to issue such Shares as to which such requisite authority shall not have been obtained. As a condition to the issuance of the Shares, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company. 3. VESTING CONDITIONS. 3.1 Normal Vesting. Except as provided in Section 3.2, the Shares shall vest and become Vested Shares as provided in the Notice. No additional Shares will become Vested Shares following the Participant's termination of Service for any reason. Shares that are not Vested Shares ("Unvested Shares") shall be subject to the reacquisition rights set forth in Section 4.1 below. 3.2 Acceleration of Vesting Upon a Change in Control. In the event of a Change in Control, the vesting of the Shares shall be one hundred percent (100%) accelerated as of the date of the Change in Control, provided that the Participant's Service has not terminated prior to such date. 4. COMPANY REACQUISITION RIGHT. 4.1 Grant of Company Reacquisition Right. In the event that (a) the Participant's Service terminates for any reason or no reason, with or without cause, or (b) the Participant, the Participant's legal representative, or other holder of the Shares, attempts to sell, exchange, transfer, pledge, or otherwise dispose of (other than pursuant to an Ownership Change Event), including, without limitation, any transfer to a nominee or agent of the Participant, any Unvested Shares, the Company shall automatically reacquire the Unvested Shares, and the Participant shall not be entitled to any payment therefor (the "Company Reacquisition Right"). 4.2 Ownership Change Event. Upon the occurrence of an Ownership Change Event, any and all new, substituted or additional securities or other property to which the Participant is entitled by reason of the Participant's ownership of Unvested Shares shall be immediately subject to the Company Reacquisition Right and included in the terms "Shares," "Stock," and "Unvested Shares" for all purposes of the Company Reacquisition Right with the same force and effect as the Unvested Shares immediately prior to the Ownership Change Event. 5. TAX MATTERS. 5.1 Tax Withholding. At the time the Notice is executed, or at any time thereafter as requested by the Company, the Participant hereby authorizes withholding from any amounts payable to the Participant, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company, if any, which arise in connection with the Award, including, without limitation, obligations arising upon (a) the transfer of Shares to the Participant, (b) the lapsing of any Vesting Conditions with respect to any Shares, (c) the filing of an election to recognize tax liability, or (d) the transfer by the Participant of any Shares. The Company shall have no obligation to deliver the Shares or to release any Shares from an escrow established pursuant to this Agreement until the tax withholding obligations of the Company have been satisfied by the Participant. 5.2 Election Under Section 83(b) of the Code. (a) The Participant understands that Section 83 of the Code taxes as ordinary income the difference between the amount paid for the Shares, if anything, and the fair market value of the Shares as of the date on which the Shares are "substantially vested," within the meaning of Section 83. In this context, "substantially vested" means that the right of the Company to reacquire the Shares pursuant to the Company Reacquisition Right has lapsed. The Participant understands that he or she may elect to have his or her taxable income determined at the time he or she acquires the Shares rather than when and as the Company Reacquisition Right lapses by filing an election under Section 83(b) of the Code with the Internal Revenue Service no later than thirty (30) days after the date of acquisition of the Shares. The Participant understands that failure to make a timely filing under Section 83(b) will result in his or her recognition of ordinary income, as the Company Reacquisition Right lapses, on the difference between the purchase price, if anything, and the fair market value of the Shares at the time such restrictions lapse. The Participant further understands, however, that if Shares with respect to which an election under Section 83(b) has been made are forfeited to the Company pursuant to its Company Reacquisition Right, such forfeiture will be treated as a sale on which there is realized a loss equal to the excess (if any) of the amount paid (if any) by the Participant for the forfeited Shares over the amount realized (if any) upon their forfeiture. If the Participant has paid nothing for the forfeited Shares and has received no payment upon their forfeiture, the Participant understands that he or she will be unable to recognize any loss on the forfeiture of the Shares even though the Participant incurred a tax liability by making an election under Section 83(b). (b) The Participant understands that he or she should consult with his or her tax advisor regarding the advisability of filing with the Internal Revenue Service an election under Section 83(b) of the Code, which must be filed no later than thirty (30) days after the date of the acquisition of the Shares pursuant to this Agreement. Failure to file an election under Section 83(b), if appropriate, may result in adverse tax consequences to the Participant. The Participant acknowledges that he or she has been advised to consult with a tax advisor regarding the tax consequences to the Participant of the acquisition of Shares hereunder. ANY ELECTION UNDER SECTION 83(b) THE PARTICIPANT WISHES TO MAKE MUST BE FILED NO LATER THAN 30 DAYS AFTER THE DATE ON WHICH THE PARTICIPANT ACQUIRES THE SHARES. THIS TIME PERIOD CANNOT BE EXTENDED. THE PARTICIPANT ACKNOWLEDGES THAT TIMELY FILING OF A SECTION 83(b) ELECTION IS THE PARTICIPANT'S SOLE RESPONSIBILITY, EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO FILE SUCH ELECTION ON HIS OR HER BEHALF. 17 (c) The Participant will notify the Company in writing if the Participant files an election pursuant to Section 83(b) of the Code. The Company intends, in the event it does not receive from the Participant evidence of such filing, to claim a tax deduction for any amount which would otherwise be taxable to the Participant in the absence of such an election. 6. ESCROW. 6.1 Establishment of Escrow. To ensure that Shares subject to the Company Reacquisition Right will be available for reacquisition, the Participant agrees to deliver to and deposit with an escrow agent designated by the Company the certificate evidencing the Shares, together with an Assignment Separate from Certificate with respect to such certificate duly endorsed (with date and number of shares blank) in the form attached to the Notice, to be held by the agent under the terms and conditions of the Joint Escrow Instructions in the form attached to the Notice (the "Escrow"). The Company shall bear the expenses of the Escrow. 6.2 Delivery of Shares to Participant. The Company shall, to the extent described in the Joint Escrow Instructions, give to the escrow agent a written notice directing the escrow agent to deliver such Shares to the Participant. As soon as practicable after receipt of such notice, the escrow agent shall deliver to the Participant the Shares specified in such notice, and the Escrow shall terminate with respect to such Shares. 7. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of any stock dividend, stock split, reverse stock split, recapitalization, merger, combination, exchange of shares, reclassification, or similar change in the capital structure of the Company, appropriate adjustments shall be made in the number and class of shares subject to this Agreement. Any and all new, substituted or additional securities or other property to which Participant is entitled by reason of his or her ownership of the Shares will be immediately subject to the provisions of this Agreement and the Escrow on the same basis as all Shares originally acquired hereunder and will be included in the terms "Shares" and "Stock" for all purposes of this Agreement and the Escrow with the same force and effect as the Shares presently subject thereto. The adjustments determined by the Board pursuant to this Section 7 shall be final, binding and conclusive. 8. LEGENDS. The Company may at any time place legends referencing the Company Reacquisition Right and any applicable federal, state or foreign securities law restrictions on all certificates representing the Shares. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing the Shares in the possession of the Participant in order to carry out the provisions of this Section. 9. TRANSFERS IN VIOLATION OF AGREEMENT. No Shares may be sold, exchanged, transferred (including, without limitation, any transfer to a nominee or agent of the Participant), assigned, pledged, hypothecated or otherwise disposed of, including by operation of law, in any manner which violates any of the provisions of this Agreement and, except pursuant to an Ownership Change Event, until the date on which such shares become Vested Shares, and any such attempted disposition shall be void. The Company shall not be required (a) to transfer on its books any Shares which will have been transferred in violation of any of the provisions set forth in this Agreement or (b) to treat as owner of such Shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such Shares will have been so transferred. In order to enforce its rights under this Section, the Company shall be authorized to give a stop transfer instruction with respect to the Shares to the Company's transfer agent. 10. RIGHTS AS A STOCKHOLDER. The Participant shall have no rights as a stockholder with respect to any Shares subject to the Award until the date of the issuance of a certificate for such Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 7. Subject to the provisions of this Agreement, the Participant shall be entitled to all rights and privileges of a stockholder of the Company with respect to Shares deposited in the Escrow pursuant to Section 6. 11. RIGHT TO CONTINUED SERVICE WITH THE COMPANY. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of the Company or interfere in any way with any right of the Company to terminate the Participant's Service at any time. 12. MISCELLANEOUS PROVISIONS. 12.1 Administration. All questions of interpretation concerning the Plan, the Notice and this Agreement shall be determined by the Board. All determinations by the Board shall be final and binding upon all persons having an interest in the Award. Any officer of the Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation, or election. 12.2 Amendment. The Board may amend this Agreement at any time; provided, however, that no such amendment may adversely affect the Participant's rights under this Agreement without the consent of the Participant. No amendment or addition to this Agreement shall be effective unless in writing. 12.3 Nontransferability of the Award. The right to acquire Shares pursuant to the Award may not be assigned or transferred in any manner except by will or by the laws of descent and distribution. During the lifetime of the Participant, all rights with respect to this Award shall be exercisable only by the Participant. 12.4 Further Instruments. The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. 12.5 Binding Effect. This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer set forth herein, be binding upon the Participant and the Participant's heirs, executors, administrators, successors and assigns. 12.6 Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, with postage and fees prepaid, addressed to the other party at the address shown below that party's signature in the Notice or at such other address as such party may designate in writing from time to time to the other party. 12.7 Integrated Agreement. The Notice and this Agreement constitute the entire understanding and agreement of the Participant and the Company with respect to the subject matter contained herein and supersede any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Company with respect to such subject matter other than those as set forth or provided for herein or in the Notice. 12.8 Applicable Law. The Agreement shall be governed by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within the State of California. 12.9 Counterparts. The Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. EX-10.37 12 a4858777ex-1037.txt EXHIBIT 10.37 Exhibit 10.37 AMNET MORTGAGE, INC. NON-EMPLOYEE DIRECTORS COMPENSATION SUMMARY
- --------------------------------------------------------------------- --------------------- Compensation Type of Compensation Amount - --------------------------------------------------------------------- --------------------- Annual Retainer - Board $22,000 - --------------------------------------------------------------------- --------------------- Annual retainer - Committee chair o Audit $5,000 o Other committees $3,000 - --------------------------------------------------------------------- --------------------- Meeting fees - o Regular Board, in person $1,200 o Regular Board, telephonic $600 o Audit Committee, in person $1,800 o Special Board/committee, in person $1,000 o Special Board/committee telephonic $500 - --------------------------------------------------------------------- --------------------- Hourly rate for time spent on Board or Committee matters other than $250 in preparation for regularly scheduled Board or Committee meetings - --------------------------------------------------------------------- --------------------- Annual stock awards - one year vesting Annual Options- 3,300 Annual Restricted Stock Award - 2,300 - --------------------------------------------------------------------- ---------------------
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