SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant |X|
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Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to sec. 240.141-11(c) or sec. 240.14a-12
NEWMARK HOMES CORP.
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(Name of Registrant as Specified in its Charter)
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and 0-11.
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NEWMARK HOMES CORP.
1200 SOLDIERS FIELD DRIVE
SUGAR LAND, TEXAS 77479
NOTICE OF WRITTEN CONSENT
DUE BY DECEMBER 21, 2001
November 30, 2001
TO THE STOCKHOLDERS OF NEWMARK HOMES CORP.:
This Proxy Statement is being furnished to the stockholders of Newmark
Homes Corp., a Delaware corporation ("Newmark"), in connection with the
solicitation of written consents by the Board of Directors of Newmark to
authorize, approve and consent to the adoption of the Newmark Homes Corp. Annual
and Long-Term Incentive Plan (the "Plan"). Only Newmark stockholders of record
as of the close of business on November 8, 2001 (the "Record Date") will be
entitled to notice of, and to consent to such action in lieu of a meeting.
Additional information about the Plan is contained in this Proxy Statement.
Attached to this Proxy Statement is a Stockholder Written Consent Card
(the "Consent Card"), which provides for authorization and approval of the Plan.
The procedure for indicating authorization and approval is described in detail
in this Proxy Statement.
This Proxy Statement and the accompanying Consent Card are being sent
or given to Newmark's stockholders commencing on or about November 30, 2001.
The principal executive office of Newmark is located at 1200 Soldiers
Field Drive, Sugar Land, Texas 77479 and Newmark's telephone number at that
address is (281) 243-0100.
To assure the delivery of a sufficient number of consents, please
complete, date, sign and mail the enclosed Consent Card promptly using the
enclosed postage paid envelope. No postage need be affixed to the enclosed
envelope if it is mailed in the United States.
STOCKHOLDERS ARE REQUESTED TO COMPLETE, DATE AND SIGN THE ACCOMPANYING
CONSENT CARD AND RETURN IT PROMPTLY TO NEWMARK IN THE ENCLOSED POSTAGE PAID
ENVELOPE.
By Order of the Board of Directors,
By: /s/ TERRY C. WHITE
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Terry C. White, Secretary
This Proxy Statement and the accompanying Consent Card are being
furnished to you in connection with the solicitation of stockholder consents by
the Board of Directors of Newmark in lieu of a meeting of stockholders to
authorize, approve and consent to the adoption of the Plan. Only stockholders of
record on the books of Newmark at the close of business on the Record Date will
be entitled to submit a consent. This Proxy Statement and the accompanying
Consent Card are being sent or given to the Newmark stockholders commencing on
or about November 30, 2001.
SOLICITATION OF WRITTEN CONSENTS
Under Delaware law and under Newmark's bylaws, any action that may be
taken at a meeting of stockholders may be taken without a meeting, without prior
notice and without a vote, if consents in writing, setting forth the action so
taken, are signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Consequently, no meeting of Newmark's stockholders will be held to
authorize and adopt the Plan. Rather, through this Proxy Statement and the
accompanying Consent Card, Newmark is soliciting stockholders' consent to
authorize, approve and consent to the adoption of the Plan. Once Newmark
receives written consents from the holders of a majority of its issued and
outstanding common stock as of the Record Date, the Plan will be deemed to have
been authorized and approved by Newmark's stockholders with the same force and
effect as if a meeting had been held.
The Delaware General Corporation Law also provides that no written
consent will be effective to take the corporate action referred to in the
written consent unless, within 60 days of the earliest dated consent delivered
to the corporation, written consents signed by a sufficient number of holders to
take action are delivered to the corporation. Thus, it is important that
stockholders return their Consent Card to Newmark promptly. As further required
by the Delaware General Corporation Law, if the Plan is authorized and approved
by the holders of a majority of Newmark's outstanding common stock, Newmark will
promptly notify the stockholders from whom consent has not been received.
The Board of Directors of Newmark requests that each stockholder of
record on the Record Date complete, date, sign and mail the enclosed Consent
Card promptly to the address indicated therein. An address envelope is enclosed
for your convenience. The Consent Card should be returned to Newmark as soon as
possible, but in no event later than December 21, 2001.
Newmark will pay the entire cost of the preparation and mailing of this
Proxy Statement and all other costs of this solicitation.
WRITTEN CONSENTS REVOCABLE
Any consent executed and delivered by a stockholder of record on the
Record Date may be revoked at any time provided that a written, dated revocation
is executed and delivered to Newmark on or prior to the time at which Newmark
receives written consents sufficient to authorize, approve and consent to the
adoption of the Plan. A revocation may be in any written form validly signed by
a stockholder of record on the Record Date as long as it clearly states that the
consent previously given is no longer effective. The revocation should be sent
to the place fixed for receipt of consents.
VOTING SECURITIES AND BENEFICIAL OWNERSHIP
Only holders of record of the common stock of Newmark as of the close
of business on the Record Date will be entitled to authorize and approve the
Plan through written consent in lieu of a
meeting. Each share of Newmark's common stock entitles the registered holder
thereof to one vote. On the Record Date, there were 11,500,000 shares of
Newmark's common stock outstanding.
The following table sets forth certain information, as of the Record
Date, relating to the beneficial ownership of shares of Newmark's common stock
by: (i) each person or entity who is known by Newmark to own beneficially five
percent or more of Newmark's outstanding common stock; (ii) each of Newmark's
executive officers and directors; and (ii) all the directors and executive
officers of Newmark as a group.
NAME AND ADDRESS OF AMOUNT AND NATURE OF
BENEFICIAL OWNER BENEFICIAL OWNERSHIP PERCENT OWNED
---------------- -------------------- -------------
Technical Olympic USA, Inc. 9,200,000 80%
1200 Soldiers Field Drive
Sugar Land, Texas 77479(1)
Lonnie M. Fedrick 42,900 (2)
c/o Newmark Homes Corp.
1200 Soldiers Field Drive
Sugar Land, Texas 77479
Constantine Stengos 25,000 (2)
c/o Technical Olympic S.A.
20 Solomou Street
Athens, Greece 17456
J. Eric Rome 9,000 (2)
c/o Newmark Home Corp.
5910 Courtyard Drive, Suite 230
Austin, Texas 78751
Terry C. White 7,500 (2)
c/o Newmark Homes Corp.
1200 Soldiers Field Drive
Sugar Land, Texas 77479
J. Michael Beckett (3) 10,900 (2)
c/o Newmark Homes Corp.
1200 Soldiers' Field Drive
Sugar Land, Texas 77479
All directors and executive officers as a 95,300 (2)
group (5 persons)
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(1) Technical Olympic USA, Inc. is a subsidiary of Technical Olympic (UK) PLC,
which is a subsidiary of Technical Olympic S.A. Mr. Constantine Stengos
owns more than 5% of the outstanding stock of Technical Olympic S.A.
(2) Less than one percent.
(3) Includes 6,700 shares of Newmark's common stock held by Mr. Beckett's
spouse as to which he disclaims beneficial ownership.
VOTING AND APPRAISAL RIGHTS
The written consent of a majority of the issued and outstanding shares
of Newmark's common stock is required to authorize and approve the Plan. No
dissenters' rights or rights of appraisal are applicable or available in
connection with the authorization and approval of the Plan.
ADOPTION OF THE PLAN
By unanimous written consent dated November 8, 2001, the Board of
Directors of Newmark previously approved the Plan and authorized the appropriate
officers of Newmark to solicit the written consents of the stockholders to
authorize and approve the Plan. Implementation of the Plan is also subject to
the receipt of any other required consents.
The Board of Directors of Newmark is soliciting stockholders' consents
to authorize, approve and consent to the adoption of the Plan because, in
general, Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"), authorizes tax deductions for executive compensation in excess of $1
million only if, among other things, such compensation is "performance based"
and paid under a plan approved by stockholders. Thus, if Newmark's stockholders
approve the Plan, and Newmark complies with certain other requirements of
Section 162(m), payments to certain executive officers intended as
performance-based awards under the Plan will qualify for deduction under Section
162(m). If stockholders do not approve the Plan, bonus payments, stock options
and other stock-based awards made to certain executive officers will not qualify
for this deduction under Section 162(m) to the extent that such compensation
paid to such executive officer in any calendar year exceeds $1 million. In
addition, stockholder approval of the Plan is necessary for certain options to
qualify as "incentive stock options" under Section 422 of the Code.
DESCRIPTION OF THE PLAN
The following is a brief description of the principal features of the
Plan. A copy of the Plan is filed as Appendix A to this Proxy Statement and you
should refer to the Plan for details regarding the awards that may be made under
the Plan. No awards have been made to date.
The Plan is intended to promote the interests of Newmark by encouraging
employees, consultants and directors of Newmark, its parent corporation, its
subsidiaries and affiliated entities to acquire or increase their equity
interest in Newmark and to provide a means whereby they may develop a sense of
proprietorship and personal involvement in the development and financial success
of Newmark through cash and stock awards, and to encourage them to remain with
and devote their best efforts to Newmark's business, thereby advancing the
interests of Newmark and its stockholders. The Plan is also contemplated to
enhance the ability of Newmark, its parent corporation, its subsidiaries and
affiliated entities to attract and retain the services of individuals who are
essential to Newmark's growth and profitability.
Subject to certain limitations described in the Plan and summarized
below, any employee, consultant or director of Newmark, its subsidiaries, its
parent corporation and affiliated entities are eligible to receive an award.
However, no employee may receive awards denominated in shares of Newmark during
the term of the Plan that, in the aggregate, are with respect to more than 90%
of all shares that may be made subject to awards under the Plan. Except as
provided below, the maximum amount of performance-based awards, intended to
qualify as performance-based compensation under the Code, that may be granted or
paid to any single participant in any calendar year is limited to $10 million.
With respect to formula grant awards based on Newmark's return on equity and/or
net income, the amount generated by such formula is limited to a maximum annual
amount of 20% of Newmark's net income for the applicable year which may result
in an annual bonus greater or less than the $10 million
limit. These limitations will be applied to permit compensation generated under
the Plan to constitute performance-based compensation, when intended, for
purposes of section 162(m) of the Code, including, without limitation, counting
against such maximum number of shares, to the extent required under Section
162(m) of the Code and applicable interpretive authority thereunder, any shares
subject to options that are canceled or repriced.
The Plan will be administered by a committee of the Board of Directors
of Newmark or, if no committee is established, then the Board of Directors of
Newmark itself will administer the Plan (the "Committee").
Subject to adjustment, as described below, the number of shares of
Newmark's common stock, $0.01 par value, with respect to which awards may be
granted under the Plan will be 4,000,000. Upon the occurrence of any dividend or
other distribution (whether in the form of cash, shares, other securities, or
other property), recapitalization, reclassification, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of shares or other securities of Newmark, issuance of
warrants or other rights to purchase shares or other securities of Newmark, or
if a corporate transaction or event occurs that affects the shares such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan,
then the Board of Directors of Newmark will, in such a manner as it may deem
equitable, adjust any or all of (i) the number and type (and class, if
applicable) of shares (or other securities or property) with respect to which
awards may be granted, (ii) the number and type of shares (or other securities
or property) subject to outstanding awards, and (iii) the grant or exercise
price with respect to any award or, if deemed appropriate, make provision for a
cash payment to the holder of an outstanding award; provided, in each case, that
the number of shares subject to any award denominated in shares shall always be
a whole number.
As described in the Plan, eligible persons may receive any of the
following awards, either separately or in combination:
Options. Under the Plan, options consist of (i) incentive
stock options, which are statutory stock options, the tax consequences
of which are governed by Section 422 of the Code; and (ii) nonqualified
stock options, the tax consequences of which are governed by the
provisions of Section 83 of the Code. An eligible participant granted
an option under the Plan will have the right to purchase shares of
Newmark's common stock, $0.01 par value. The purchase price of an
underlying share of stock purchasable pursuant to an option will be
determined at the time the award is granted, but may not be less than
the fair market value of such underlying share on such date, unless the
option is a substitute for a previously granted award. The time and
method of exercising an option will also be determined at the time the
award is granted. Except as otherwise stated in the Plan, each option
will expire 10 years from the date of grant thereof and will be subject
to earlier termination as provided in the option's award agreement.
Incentive stock options may be granted only to employees of
Newmark, its subsidiaries and Newmark's parent corporation within the
meaning of Section 424 of the Code. To the extent that the aggregate
fair market value (determined at the time the incentive stock option is
granted) of the underlying shares with respect to which incentive stock
option are exercisable for the first time by an individual during any
calendar year under all incentive stock option plans of Newmark and its
parent and subsidiary corporations exceeds $100,000, such incentive
stock options will be treated as options which are not incentive stock
options. The Committee will determine, in accordance with the
applicable tax laws, which incentive stock options granted to an
individual will not constitute incentive stock options because of such
limitation and will notify the individual of such determination as soon
as practicable after such determination. No incentive
stock option will be granted to an individual if, at the time the
option is granted, such individual owns stock possessing more than 10%
of the total combined voting power of all classes of stock of Newmark
or of its parent or subsidiary corporation, within the meaning of
Section 422(b)(6) of the Code, unless (1) at the time such option is
granted the option price is at least 110% of the fair market value of
the shares subject to the option and (2) such option by its terms is
not exercisable after the expiration of five years from the date of
grant.
Restricted Stock. Under the Plan, restricted stock refers to
shares of Newmark's common stock, $0.01 par value, that are subject to
certain transfer limitations. The Committee will have the authority to
determine the employees, directors and consultants to whom restricted
stock will be granted, the number of shares of restricted stock to be
granted to each such person, the duration of the restricted period
during which, and the conditions, including performance goals, if any,
under which, the restricted stock may be forfeited to Newmark, and the
other terms and conditions of such awards.
Performance Award. The Committee may grant performance awards,
which confer a right to receive a payment, in whole or in part, upon
the achievement of a specified performance goal. The Committee will
have the authority to determine the employees, directors and
consultants who will receive a performance award, which will confer on
recipient the right to receive payment of such award, in whole or in
part, upon the achievement of such performance goals during such
performance periods as the Committee will establish at the time of
grant with respect to the award.
Phantom Shares. The Committee will have the authority to grant
awards of phantom shares, which refers to the right to receive shares
of Newmark's common stock, $0.01 par value, at the end of specified
time period, to employees, directors and consultants upon such terms
and conditions as the Committee may determine.
Bonus Shares. The Committee will have the authority to grant
awards of Bonus Shares, which constitute a transfer of unrestricted
shares of Newmark's common stock, $0.01 par value, as a form of
additional compensation.
Other Stock-Based Award. The Committee may also grant to
participants other stock-based award, which will consist of a right
which is an award denominated or payable in, valued in whole or in part
by reference to, or otherwise based on or related to, shares as is
deemed by the Committee to be consistent with the purposes of the Plan.
Subject to the terms of the Plan, the Committee will determine the
terms and conditions of any such other stock-based award.
Performance Criteria. The Committee shall establish
performance goals applicable to those awards intended to qualify as
performance-based compensation. The performance goals shall be based
upon the attainment of such target levels of share price, net income,
cash flows, total capitalization, total or comparative shareholder
return, assets, return on equity, sales, economic profit, return on
assets, results of operations gross revenue less cost of sales, plus
earnings generated from the mortgage and title businesses, but
excluding results of any restructuring or unusual or extraordinary
items as determined by a majority of the independent members of the
Board of Directors of Newmark), budget and/or earnings per share as may
be specified by the Committee. The performance goals may be made
subject to adjustment for specified unusual and nonrecurring events and
may be absolute, relative to one or more other companies, or relative
to one or more indices and may be with respect to Newmark and/or one or
more affiliates. For example, an award may be based on the combined
results of operations of Newmark and Engle Homes, Inc. Which factor or
factors to be used with respect to any grant,
and the weight to be accorded thereto if more than one factor is used,
shall be determined by the Committee at the time of grant.
Under the Plan, the "fair market value" means, with respect to shares
of Newmark's common stock, $0.01 par value, the closing price of such shares
quoted on the New York Stock Exchange Composite Tape, or if such shares are not
listed on the New York Stock Exchange, on the principal United States securities
exchange registered under the Exchange Act of 1934, as amended, on which such
stock is listed, or if such shares are not listed on any such stock exchange,
the last sale price, or if none is reported, the highest closing bid quotation
on the National Association of Securities Dealers, Inc., Automated Quotations
System or any successor system then in use on the date of the grant, or if none
are available on such day, on the next preceding day on which such shares were
publicly traded. If the shares are not publicly traded at the time a
determination of its fair market value is required to be made hereunder, the
determination of fair market value will be made in good faith by the Committee.
The Plan prohibits any equity-based award from being granted under the
Plan before the completion of the proposed merger of Engle Holdings Corp. with
Newmark.
The Board of Directors of Newmark may amend, alter, suspend,
discontinue, or terminate the Plan without the consent of any stockholder,
except to the extent that such approval is appropriate or required by applicable
stock exchange rules or applicable law, as determined by the Board of Directors
of Newmark or would adversely affect the rights of any Participant with respect
to then outstanding awards.
The Committee may waive any conditions or rights under, amend any terms
of, or alter any award theretofore granted; provided, however, that no change in
any award will adversely affect the rights of the recipient of the award without
the consent of such recipient. Notwithstanding the foregoing, with respect to
any award intended to qualify as performance-based compensation under Section
162(m) of the Code, no amendment will be authorized to the extent such amendment
would cause the award to fail to so qualify.
* * * * *
NEWMARK'S BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE IN FAVOR
OF ADOPTING THE PLAN.
The enclosed Consent Card is furnished to Newmark's stockholders of
record on the Record Date to indicate their consent to the approval and
authorization of the adoption of the Plan. If you wish to consent in accordance
with the recommendation of the Board of Directors of Newmark, please complete,
date, sign and mail the enclosed Consent Card promptly to the address indicated
therein. An address envelope is enclosed for your convenience. The Consent Card
should be returned to Newmark as soon as possible, but in no event later than
December 21, 2001.
APPENDIX A
NEWMARK HOMES CORP.
ANNUAL AND LONG-TERM INCENTIVE PLAN
SECTION 1. Purpose of the Plan.
The Newmark Homes Corp. Annual and Long-Term Incentive Plan (the "Plan") is
intended to promote the interests of Newmark Homes Corp., a Delaware corporation
(the "Company"), by encouraging employees, consultants and directors of the
Company, its subsidiaries and affiliated entities to acquire or increase their
equity interest in the Company and to provide a means whereby they may develop a
sense of proprietorship and personal involvement in the development and
financial success of the Company through cash and stock awards, and to encourage
them to remain with and devote their best efforts to the business of the Company
thereby advancing the interests of the Company and its shareholders. The Plan is
also contemplated to enhance the ability of the Company, its subsidiaries and
affiliated entities to attract and retain the services of individuals who are
essential for the growth and profitability of the Company.
SECTION 2. Definitions.
As used in the Plan, the following terms shall have the meanings set forth
below:
"Affiliate" shall mean any entity that, directly or indirectly through
one or more intermediaries, controls, is controlled by or is under
common control with the Company.
"Award" shall mean any Option, Restricted Stock, Performance Award,
Phantom Shares, Bonus Shares or Other Stock-Based Award granted under
the Plan.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not,
be executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Bonus Shares" shall mean an award of Shares granted pursuant to
Section 6(d) of the Plan.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the rules and regulations thereunder.
"Committee" shall mean the committee of the Board appointed to
administer the Plan or, if none, the Board.
"Consultant" shall mean any independent contractor who performs
services for the Company or an Affiliate other than as a Director.
"Director" shall mean a member of the Board who is not also an
Employee.
"Employee" shall mean any common-law employee of the Company or an
Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean, with respect to Shares, the closing
price of a Share quoted on the New York Stock Exchange Composite Tape,
or if the Shares are not listed on the New York Stock Exchange, on the
principal United States securities exchange registered under the
Exchange Act on which such stock is listed, or if the Shares are not
listed on any such stock exchange, the last sale price, or if none is
reported, the highest closing bid quotation on the National Association
of Securities Dealers, Inc., Automated Quotations System or any
successor system then in use on the Date of Grant, or if none are
available on such day, on the next preceding day on which the Shares
were publicly traded. In the event the Shares are not publicly traded
at the time a determination of its fair market value is required to be
made hereunder, the determination of fair market value shall be made in
good faith by the Committee.
"Incentive Stock Option" or "ISO" shall mean an option granted under
Section 6(a) of the Plan that is intended to qualify as an "incentive
stock option" under Section 422 of the Code or any successor provision
thereto.
"Non-Qualified Stock Option" or "NQO" shall mean an option granted
under Section 6(a) of the Plan that is not intended to be an Incentive
Stock Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
"Other Stock-Based Award" shall mean an award granted under Section
6(f) of the Plan.
"Participant" shall mean any individual granted an Award under the
Plan.
"Performance Award" shall mean any right granted under Section 6(c) of
the Plan.
"Person" shall mean individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, government or
political subdivision thereof or other entity.
"Phantom Shares" shall mean an Award of the right to receive Shares
issued at the end of a Restricted Period which is granted pursuant to
Section 6(e) of the Plan.
"Restricted Period" shall mean the period established by the Committee
with respect to an Award during which the Award either remains subject
to forfeiture or is not exercisable by the Participant.
"Restricted Stock" shall mean any Share, prior to the lapse of
restrictions thereon, granted under Section 6(b) of the Plan.
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the SEC under the
Exchange Act, or any successor rule or regulation thereto as in effect
from time to time.
-2-
"SEC" shall mean the Securities and Exchange Commission, or any
successor thereto.
"Shares" or "Common Shares" or "Common Stock" shall mean the common
stock of the Company, $0.01 par value, and such other securities or
property as may become the subject of Awards of the Plan.
"Substitute Award" shall mean Awards granted in assumption of, or in
substitution for, outstanding awards previously granted by (i) a
company acquired by the Company or one or more of its Affiliates, or
(ii) a company with which the Company or one or more of its Affiliates
combines. To the extent reasonably practical, unless otherwise
determined by the Committee in its sole discretion, Substitute Awards
shall contain, to the extent reasonably practical, the same terms and
conditions as the award they replace.
SECTION 3. Administration.
The Plan shall be administered by the Committee. A majority of the Committee
shall constitute a quorum, and the acts of the members of the Committee who are
present at any meeting thereof at which a quorum is present, or acts unanimously
approved by the members of the Committee in writing, shall be the acts of the
Committee. Subject to the terms of the Plan and applicable law, and in addition
to other express powers and authorizations conferred on the Committee by the
Plan, the Committee shall have full power and authority to: (i) designate the
individuals who are Participants; (ii) determine the type or types of Awards to
be granted to a Participant; (iii) determine the number of Shares to be covered
by, or with respect to which payments, rights, or other matters are to be
calculated in connection with, Awards; (iv) determine the terms and conditions
of any Award, including such terms and conditions as shall be requisite in the
judgment of the Committee to cause designated Options to qualify as Incentive
Stock Options; (v) determine whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, Shares, other
securities, other Awards or other property, or canceled, forfeited, or suspended
and the method or methods by which Awards may be settled, exercised, canceled,
forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other property, and
other amounts payable with respect to an Award shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer the Plan and any instrument or agreement relating
to, or Award made under, the Plan; (viii) establish, amend, suspend, or waive
such rules and regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; and (ix) make any other determination
and take any other action that the Committee deems necessary or desirable for
the administration of the Plan. The Committee may correct any defect or supply
any omission or reconcile any inconsistency in the Plan or in any Award
Agreement in the manner and to the extent it shall deem expedient to carry it
into effect. Unless otherwise expressly provided in the Plan or in any
applicable Award Agreement, all designations, determinations, interpretations,
and other decisions under or with respect to the Plan or any Award shall be
within the sole discretion of the Committee, may be made at any time and shall
be final, conclusive, and binding upon all Persons, including the Company, any
Affiliate, any Participant, any holder or beneficiary of any Award, and any
shareholder.
-3-
SECTION 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in Section 4(c) and
below, the number of Shares with respect to which Awards may be granted under
the Plan shall be four (4) million Shares. If any Shares covered by an Award
granted under the Plan, or to which such an Award relates, are forfeited, or if
an Award otherwise terminates or is canceled without the delivery of Shares,
then the Shares covered by such Award, or to which such Award relates, or the
number of Shares otherwise counted against the aggregate number of Shares with
respect to which Awards may be granted, to the extent of any such forfeiture,
termination or cancellation, shall again be, or shall become Shares with respect
to which Awards may be granted.
(b) Sources of Shares Deliverable Under Awards. Any Shares delivered pursuant to
an Award may consist, in whole or in part, of authorized and unissued Shares or
of treasury Shares. Any of such Shares which remain unissued and which are not
subject to outstanding Awards at the termination of the Plan shall cease to be
subject to the Plan but, until termination of the Plan, the Company shall at all
times make available a sufficient number of shares to meet the requirements of
the Plan.
(c) Adjustments. In the event of any dividend or other distribution (whether in
the form of cash, Shares, other securities, or other property),
recapitalization, reclassification, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities of the Company, or
issuance of warrants or other rights to purchase Shares or other securities of
the Company, or if a corporate transaction or event occurs that affects the
Shares such that an adjustment is appropriate in order to prevent dilution or an
enlargement of the benefits or potential benefits intended to be made available
under the Plan, then the Board shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and type (and class, if applicable) of
Shares (or other securities or property) with respect to which Awards may be
granted, (ii) the number and type of Shares (or other securities or property)
subject to outstanding Awards, and (iii) the grant or exercise price with
respect to any Award or, if deemed appropriate, make provision for a cash
payment to the holder of an outstanding Award; provided, in each case, that the
number of Shares subject to any Award denominated in Shares shall always be a
whole number.
SECTION 5. Eligibility and Award Limits.
Any Employee, Consultant or Director shall be eligible to be designated a
Participant by the Committee. However, no Employee may receive Share-denominated
Awards during the term of the Plan that, in the aggregate, are with respect to
more than 90% of all Shares that may be made subject to Awards under the Plan.
The maximum amount of Performance Awards, intended to qualify as
"performance-based compensation," that may be granted or paid to any Participant
in any calendar year shall be $10 million, except with respect to formula grant
Awards based on the Company's return on equity and/or net income, such annual
maximum shall be such amount that results from the formula(s) used in the
Performance Award grant(s), provided the formula(s) do(es) not produce an annual
result in excess of 20% of the Company's net income for the Company's applicable
year (and the formula is not based in whole or in part on a percentage of the
Participant's salary or base compensation). The limitations set forth in the
preceding sentences shall be applied in a manner which will permit, when
intended, compensation
-4-
generated under the Plan to constitute "performance-based" compensation for
purposes of section 162(m) of the Code, including, without limitation, counting
against such maximum number of Shares, to the extent required under Section
162(m) of the Code and applicable interpretive authority thereunder, any Shares
subject to Options that are canceled or repriced.
SECTION 6. Awards.
(a) Options. Subject to the provisions of the Plan, the Committee shall have the
authority to determine the Employees, Consultants and Directors to whom Options
shall be granted, the number of Shares to be covered by each Option, the
purchase price therefor and the conditions and limitations applicable to the
exercise of the Option, including the following terms and conditions and such
additional terms and conditions, as the Committee shall determine, that are not
inconsistent with the provisions of the Plan.
(i) Exercise Price. The purchase price per Share purchasable under an
Option shall be determined by the Committee at the time each Option is
granted, but shall not be less than the Fair Market Value of a Share on
such date, unless such Option is a Substitute Award.
(ii) Time and Method of Exercise. The Committee shall determine the
time or times at which an Option may be exercised in whole or in part,
and the method or methods by which, and the form or forms in which
payment of, the exercise price with respect thereto may be made or
deemed to have been made, which may include, without limitation, cash,
already-owned Shares, outstanding Awards, Shares that would otherwise
be acquired upon exercise of the Option, a "cashless-broker" exercise
(through procedures approved by the Company), other securities or other
property, or any combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price.
(iii) Special Limitations on Incentive Stock Options. Incentive Stock
Options may be granted only to employees of the Company, its
subsidiaries and the parent corporation of the Company, within the
meaning of Section 424 of the Code. To the extent that the aggregate
Fair Market Value (determined at the time the respective Incentive
Stock Option is granted) of Shares with respect to which Incentive
Stock Options are exercisable for the first time by an individual
during any calendar year under all incentive stock option plans of the
Company and its parent and subsidiary corporations exceeds $100,000,
such Incentive Stock Options shall be treated as Options which do not
constitute Incentive Stock Options. The Committee shall determine, in
accordance with applicable provisions of the Code, Treasury regulations
and other administrative pronouncements, which of a Participant's
Incentive Stock Options will not constitute Incentive Stock Options
because of such limitation and shall notify the Participant of such
determination as soon as practicable after such determination. No
Incentive Stock Option shall be granted to an individual if, at the
time the Option is granted, such individual owns stock possessing more
than 10% of the total combined voting power of all classes of stock of
the Company or of its parent or subsidiary corporation, within the
meaning of Section 422(b)(6) of the Code, unless (1) at the time such
Option is granted the option price is at least 110% of the Fair Market
Value of the Shares subject to the Option and (2) such Option by its
terms is not exercisable after the expiration of five years from the
date of grant.
-5-
(iv) Expiration. Except as provided in Section 6(a)(iii), each Option
shall expire 10 years from the date of grant thereof and shall be
subject to earlier termination as provided in the Option's Award
Agreement.
(b) Restricted Stock. Subject to the provisions of the Plan, the Committee shall
have the authority to determine the Employees, Directors and Consultants to whom
Restricted Stock shall be granted, the number of Shares of Restricted Stock to
be granted to each such Participant, the duration of the Restricted Period
during which, and the conditions, including performance goals, if any, under
which, the Restricted Stock may be forfeited to the Company, and the other terms
and conditions of such Awards.
(i) Dividends. Dividends paid on Restricted Stock may be paid directly
to the Participant, may be subject to risk of forfeiture and/or
transfer restrictions during any period established by the Committee or
sequestered and held in a bookkeeping cash account (with or without
interest) or reinvested on an immediate or deferred basis in additional
shares of Common Stock, which credit or shares may be subject to the
same restrictions as the underlying Award or such other restrictions,
all as determined by the Committee in its discretion.
(ii) Registration. Any Restricted Stock may be evidenced in such manner
as the Committee shall deem appropriate, including, without limitation,
book-entry registration or issuance of a stock certificate or
certificates. In the event any stock certificate is issued in respect
of Restricted Stock granted under the Plan, such certificate shall be
registered in the name of the Participant and shall bear an appropriate
legend referring to the terms, conditions, and restrictions applicable
to such Restricted Stock.
(iii) Forfeiture and Restrictions Lapse. Except as otherwise determined
by the Committee or the express terms of the Award that granted the
Restricted Stock, upon termination of a Participant's employment (as
determined under criteria established by the Committee) for any reason
during the applicable Restricted Period, all Restricted Stock shall be
forfeited by the Participant and re-acquired by the Company. The
Committee may, when it finds that a waiver would be in the best
interests of the Company and not cause such Award, if it is intended to
qualify as performance-based compensation under Section 162(m) of the
Code, to fail to so qualify under Section 162(m) of the Code, waive in
whole or in part any or all remaining restrictions with respect to such
Participant's Restricted Stock. Unrestricted Shares, evidenced in such
manner as the Committee shall deem appropriate, shall be issued to the
holder of Restricted Stock promptly after the applicable restrictions
have lapsed or otherwise been satisfied.
(iv) Transfer Restrictions. During the Restricted Period, Restricted
Stock will be subject to the limitations on transfer as provided in
Section 6(g)(iii).
(c) Performance Awards. The Committee shall have the authority to determine the
Employees, Directors and Consultants who shall receive a Performance Award,
which shall confer on the Participant the right to receive payment of such
Award, in whole or in part, upon
-6-
the achievement of such performance goals during such performance periods as the
Committee shall establish at the time of grant with respect to the Award.
(i) Terms and Conditions. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine the
performance goals to be achieved during any performance period, the
length of any performance period, the vesting terms of any Performance
Award and the amount of the payment or the formula for determining the
amount of the payment to be made pursuant to the Performance Award.
(ii) Payment of Performance Awards. Except as otherwise provided in the
Award Agreement, Performance Awards may be paid (in cash and/or in
Shares, in the sole discretion of the Committee) in a lump sum or in
deferred installments following the close of the performance period,
which may be subject to vesting requirements, in accordance with
procedures established by the Committee with respect to such Award.
(d) Bonus Shares. The Committee shall have the authority, in its discretion, to
grant Bonus Shares to Employees, Directors and Consultants. Each Bonus Share
shall constitute a transfer of an unrestricted Share to the Participant, without
other payment therefor, as additional compensation for the Participant's
services to the Company.
(e) Phantom Shares. The Committee shall have the authority to grant Awards of
Phantom Shares to Employees, Directors and Consultants upon such terms and
conditions as the Committee may determine.
(i) Terms and Conditions. Each Phantom Share Award shall constitute an
agreement by the Company to issue or transfer a specified number of
Shares or pay an amount of cash equal to the Fair Market Value of a
specified number of Shares, or a combination thereof to the Participant
in the future, subject to the fulfillment during the Restricted Period
of such conditions, including performance goals, if any, as the
Committee may specify at the date of grant. During the Restricted
Period, the Participant shall not have any right to transfer any rights
under the subject Award, shall not have any rights of ownership in the
Phantom Shares and shall not have any right to vote such shares.
(ii) Dividends. Any Phantom Share award may provide that any or all
dividends or other distributions paid on Shares during the Restricted
Period be credited in a cash bookkeeping account (without interest) or
that equivalent additional Phantom Shares be awarded, which account or
shares may be subject to the same restrictions as the underlying Award
or such other restrictions as the Committee may determine.
(f) Other Stock-Based Awards. The Committee may also grant to Participants an
Other Stock-Based Award, which shall consist of a right which is an Award
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on or related to, Shares as is deemed by the Committee to be
consistent with the purposes of the Plan. Subject to the terms of the Plan, the
Committee shall determine the terms and conditions of any such Other Stock-Based
Award.
-7-
(g) General.
(i) Awards May Be Granted Separately or Together. Awards to Employees
may, in the discretion of the Committee, be granted either alone or in
addition to, in tandem with, or in substitution for any other Award
granted under the Plan or any award granted under any other plan of the
Company or any Affiliate. Awards granted in addition to or in tandem
with other Awards or awards granted under any other plan of the Company
or any Affiliate may be granted either at the same time as or at a
different time from the grant of such other Awards or awards.
(ii) Forms of Payment by Company Under Awards. Subject to the terms of
the Plan and of any applicable Award Agreement, payments or transfers
to be made by the Company or an Affiliate upon the grant, exercise or
payment of an Award may be made in such form or forms as the Committee
shall determine, including, without limitation, cash, Shares, other
securities, other Awards or other property, or any combination thereof,
and may be made in a single payment or transfer, in installments, or on
a deferred basis, in each case in accordance with rules and procedures
established by the Committee. Such rules and procedures may include,
without limitation, provisions for the payment or crediting of
reasonable interest on installment or deferred payments.
(iii) Limits on Transfer of Awards.
(A) Except as provided in (C) below, each Award, and each right under
any Award, shall be exercisable only by the Participant during the
Participant's lifetime, or, if permissible under applicable law, by the
Participant's guardian or legal representative or by a transferee
receiving such Award pursuant to a qualified domestic relations order
(a "QDRO") as determined by the Committee.
(B) Except as provided in (C) below, no Award and no right under any
such Award may be assigned, alienated, pledged, attached, sold or
otherwise transferred or encumbered by a Participant otherwise than by
will or by the laws of descent and distribution (or, in the case of
Restricted Stock, to the Company) or, if permissible under applicable
law, pursuant to a QDRO and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Affiliate.
(C) Notwithstanding anything in the Plan to the contrary, except to the
extent specifically provided otherwise by the Committee in an Award
Agreement, Non-Qualified Stock Options may be transferred by the
optionee to one or more permitted transferees; provided that (i) there
may be no consideration given for such transfer, (ii) the optionee (or
such optionee's estate or representative) shall remain obligated to
satisfy all employment tax and other withholding tax obligations
associated with the exercise of the transferred Options, (iii) the
optionee shall notify the Company in writing that such transfer has
occurred, the identity and address of the permitted transferee and the
relationship of the permitted transferee to the optionee, and (iv) such
transfer shall be effected pursuant to transfer documents approved from
time to time by the Company. Any permitted transferee may not further
assign or transfer the transferred Option
-8-
otherwise than by will or the laws of descent and distribution.
Following any permitted transfer, any such Options shall continue to be
subject to the same terms and conditions as were applicable to the
Option immediately prior to the transfer, provided that the term
"optionee" as used in the Plan shall be deemed to refer also to each
permitted transferee where required by the context. A transferred
Option may only be exercised by a transferee to the same extent such
Option could, at such time, be exercised by the optionee "but for" such
transfer. The term "permitted transferees" shall mean one or more of
the following: (i) any member of the optionee's immediate family; (ii)
a trust established for the exclusive benefit of one or more members of
such immediate family; (iii) a partnership, limited liability company
or other form of business entity in which such immediate family members
or trusts established for the exclusive benefit of immediate family
members are the only partners, members or owners; or (iv) any other
person approved from time to time by the Committee. The term "immediate
family" is defined for such purpose as spouses, children, stepchildren
and grandchildren, including relationships arising from adoption.
(iv) Term of Awards. The term of each Award shall be for such period as
may be determined by the Committee and set forth in the applicable
Award Agreement; provided, that in no event shall the term of any Award
exceed a period of 10 years from the date of its grant.
(v) Share Certificates. All certificates for Shares or other securities
of the Company or any Affiliate delivered under the Plan pursuant to
any Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations, and other
requirements of the SEC, any stock exchange upon which such Shares or
other securities are then listed, and any applicable Federal or state
laws, and the Committee may cause a legend or legends to be put on any
such certificates to make appropriate reference to such restrictions.
(vi) Consideration for Grants. Awards may be granted for no cash
consideration or for such consideration as the Committee determines
including, without limitation, such minimal cash consideration as may
be required by applicable law.
(vii) Delivery of Shares or other Securities and Payment by Participant
of Consideration. No Shares or other securities shall be delivered
pursuant to any Award until payment in full of any amount required to
be paid pursuant to the Plan or the applicable Award Agreement is
received by the Company, including without limitation, all applicable
withholding taxes. Such payment may be made by such method or methods
and in such form or forms as the Committee shall determine, including,
without limitation, cash, Shares, other securities, other Awards or
other property, withholding of Shares, cashless exercise with
simultaneous sale, or any combination thereof; provided that the
combined value, as determined by the Committee, of all cash and cash
equivalents and the Fair Market Value of any such Shares or other
property so tendered to the Company, as of the date of such tender, is
at least equal to the full amount required to be paid pursuant to the
Plan or the applicable Award Agreement to the Company.
-9-
(viii) Performance Goals. Where necessary, the Committee shall
establish performance goals applicable to those Awards the payment of
which is intended by the Committee to qualify as "performance-based
compensation" as described in Section 162(m)(4)(C) of the Code. The
performance goals shall be based upon the attainment of such target
levels of Share price, net income, cash flows, total capitalization,
total or comparative shareholder return, assets, return on equity,
sales, economic profit, return on assets, results of operation (gross
revenue less cost of sales, plus earnings generated from the mortgage
and title businesses, but excluding results of any restructuring or
unusual or extraordinary items as determined by a majority of the
independent members of the Board, budget and/or earnings per share as
may be specified by the Committee. The performance goals may be made
subject to adjustment for specified unusual and nonrecurring events and
may be absolute, relative to one or more other companies, or relative
to one or more indices and may be with respect to the Company and/or
one or more Affiliates. Which factor or factors to be used with respect
to any grant, and the weight to be accorded thereto if more than one
factor is used, shall be determined by the Committee at the time of
grant.
SECTION 7. Amendment and Termination.
Except to the extent prohibited by applicable law and unless otherwise expressly
provided in an Award Agreement or in the Plan:
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan without the consent of any
shareholder or other Person, except to the extent that such approval
(i) is appropriate or required by applicable stock exchange rules or
applicable law, as determined by the Board, or (ii) would degrade or
adversely affect the rights of any Participant with respect to then
outstanding Awards.
(b) Amendments to Awards. The Committee may waive any conditions or
rights under, amend any terms of, or alter any Award theretofore
granted; provided, however, that no change in any Award shall degrade
or adversely affect the rights of the Participant thereunder without
the consent of such Participant. Notwithstanding the foregoing, with
respect to any Award intended to qualify as performance-based
compensation under Section 162(m) of the Code, no amendment shall be
authorized to the extent such amendment would cause the Award to fail
to so qualify.
SECTION 8. General Provisions.
(a) No Rights to Awards. No Employee, Director, Consultant or other Person shall
have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Employees, Directors, Consultants, Participants, or
holders or beneficiaries of Awards. The terms and conditions of Awards need not
be the same with respect to each recipient.
(b) Withholding. The Company or any Affiliate is authorized to withhold from any
Award, from any payment due or transfer made under any Award or under the Plan
or from any compensation or other amount owing to a Participant the amount (in
cash, Shares, other securities, Shares that would otherwise be issued pursuant
to such Award, other Awards or other
-10-
property) of any applicable taxes payable in respect of an Award, its exercise,
the lapse of restrictions thereon, or any payment or transfer under an Award or
under the Plan and to take such other action as may be necessary in the opinion
of the Company to satisfy all obligations for the payment of such taxes. Any
Participant who is subject to Rule 16b-3 with respect to Shares may direct the
Company to withhold Shares or may tender Shares already-owned to the Company to
satisfy his minimum tax withholding obligations.
(c) No Right to Employment. The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ or service of the
Company or any Affiliate. Further, the Company or an Affiliate may at any time
dismiss a Participant from employment or service, free from any liability or any
claim under the Plan, unless otherwise expressly provided in the Plan or in any
Award Agreement. Nothing contained in the Plan shall confer on any Director any
right with respect to continuation of membership on the Board.
(d) Governing Law. The validity, construction, and effect of the Plan and any
rules and regulations relating to the Plan shall be determined in accordance
with the laws of the State of Delaware, without regard to conflicts of laws
principles.
(e) Severability. If any provision of the Plan or any Award is or becomes or is
deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any
Person or Award, or would disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed or deemed amended
to conform to the applicable laws, or if it cannot be construed or deemed
amended without materially altering the intent of the Plan or the Award, such
provision shall be stricken as to such jurisdiction, Person or Award and the
remainder of the Plan and any such Award shall remain in full force and effect;
provided, however, the Committee shall use its best efforts to provide such
affected Participant with a new Award that restores the Participant to the same
economic position as before such change, to the extent reasonable.
(f) Other Laws. The Committee may refuse to issue or transfer any Shares or
other consideration under an Award if, acting in its sole discretion, it
determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Award shall be promptly refunded to the
relevant Participant, holder or beneficiary.
(g) No Trust or Fund Created. Neither the Plan nor the Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any other
Person. To the extent that any Person acquires a right to receive payments from
the Company or any Affiliate pursuant to an Award, such right shall be no
greater than the right of any general unsecured creditor of the Company or any
Affiliate.
(h) No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine whether
cash, other securities, or other property shall be paid or transferred in lieu
of any fractional Shares or whether such fractional Shares or any rights thereto
shall be canceled, terminated, or otherwise eliminated.
-11-
(i) Headings. Headings are given to the Sections and subsections of the Plan
solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
(j) Facsimile Signature. Any Award Agreement or related document may be executed
by facsimile signature. If any officer who shall have signed or whose facsimile
signature shall have been placed upon any such Award Agreement or related
document shall have ceased to be such officer before the related Award is
granted by the Company, such Award may nevertheless be issued by the Company
with the same effect as if such person were such officer at the date of grant.
SECTION 9. Corporate Change. Except as may otherwise be specifically provided in
an Award Agreement, if the Company shall not be the surviving entity in any
merger or consolidation (or survives only as a subsidiary of an entity) (a
"Corporate Change"), no later than 10 days after the approval by the
stockholders of the Company of such merger or consolidation, the Committee shall
effect one or more of the following alternatives, which alternatives may vary
among individual Participants and which may vary among Options held by any
individual Participant: (1) accelerate the time at which Options then
outstanding may be exercised so that such Options may be exercised in full for a
limited period of time on or before a specified date (before or after such
Corporate Change) fixed by the Committee, after which specified date all
unexercised Options and all rights of Participants thereunder shall terminate,
(2) require the mandatory surrender to the Company by all or selected
Participants of some or all of the outstanding Options held by such Participants
(irrespective of whether such Options are then exercisable under the provisions
of the Plan) as of a date, before or after such Corporate Change, specified by
the Committee, in which event the Committee shall thereupon cancel such Options
and the Company shall pay (or cause to be paid) to each Participant an amount of
cash per share equal to the excess, if any, of the Corporate Change Value (as
defined below) of the shares subject to such Option over the exercise price(s)
under such Options for such shares, or (3) make such adjustments to Options then
outstanding to provide that the number and class of shares of Common Stock
covered by such Options shall thereafter cover securities of the surviving or
acquiring corporation or other property (including, without limitation, cash)
and adjust the exercise price(s) of such Options in accordance with the Treasury
Regulations applicable for incentive stock options. For the purposes of this
paragraph, the "Corporate Change Value" shall equal the per share price offered
to stockholders of the Company in any such merger or consolidation. In the event
that the consideration offered to stockholders of the Company in any Corporate
Change consists of anything other than cash, the fair cash equivalent of the
portion of the consideration offered which is other than cash shall be
determined.
SECTION 10. Effective Date of the Plan.
The Plan shall be effective upon its adoption by the Board; provided, however,
no Options or other equity-based Awards may be made under the Plan prior to a
merger of Engle Holdings Corp. with the Company.
-12-
SECTION 11. Term of the Plan.
No Award shall be granted under the Plan after the tenth anniversary of the date
the Plan was adopted by the Board. However, unless otherwise expressly provided
in the Plan or in an applicable Award Agreement, any Award theretofore granted
may, and the authority of the Board or the Committee to amend, alter, adjust,
suspend, discontinue, or terminate any such Award or to waive any conditions or
rights under any such Award shall, extend beyond such date.
-13-
--------------------------------------------------------------------------------
STOCKHOLDER WRITTEN CONSENT CARD
OF
NEWMARK HOMES CORP.
You are requested to complete, date, sign and return this
Stockholder Written Consent Card, which is solicited by the Board of
Directors of Newmark Homes Corp. as described in the accompanying
Proxy Statement. Your consent is important. A postage paid return
envelope has been included for your convenience. The return envelope
requires no postage if mailed in the United States. Your consent as
evidenced by your signature and return of this card is revocable only
if written notice of revocation is received by Newmark Homes Corp. on
or prior to the time at which Newmark Homes Corp. receives written
consents sufficient to authorize, approve and consent to the adoption
of the Plan.
1. To approve the adoption of the Newmark Homes Corp. Annual and
Long-Term Incentive Plan:
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
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THIS WRITTEN CONSENT WHEN PROPERLY EXECUTED WILL BE DEEMED REVOCABLE
ONLY IF WRITTEN NOTICE IS RECEIVED BY NEWMARK HOMES CORP. BY THE DATE
ON WHICH IT HAS RECEIVED THE REQUIRED MAJORITY TO APPROVE THE PLAN. IF
THIS CONSENT IS RETURNED BUT NO DIRECTION IS MADE, THIS WRITTEN CONSENT
WILL BE CONSIDERED GRANTED IN FAVOR OF THE ADOPTION OF THE PLAN.
DATE:
-------------------------- -------------------------------------
Signature
-------------------------------------
Signature of co-tenant holder, if any
Please sign exactly as the shares
are issued. When co-tenants hold
shares, both should sign. When
signing as attorney, as executor,
administrator, trustee or guardian,
please give full title as such. If a
corporation, please sign in full
corporate name by president or other
authorized officer. If a partnership,
please sign in partnership name by
authorized person.
PLEASE DATE, SIGN AND RETURN THIS
WRITTEN CONSENT CARD PROMPTLY USING
THE ENCLOSED ENVELOPE.
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