Form of 2004 Incentive Award Program



  
 Exhibit 10.39

  
 ECC CAPITAL CORP. 
 2004 INCENTIVE AWARD PLAN 
  
 ARTICLE 1 
  
 PURPOSE 
  
 The purpose of the ECC Capital Corp. 2004 Incentive Award Plan (the “Plan”) is to promote the success and enhance the value of ECC Capital Corp., a Maryland corporation (the “Company”), by linking the
personal interests of the members of the Board, Employees, and Consultants to those of Company stockholders and by providing such individuals with an incentive for performance to generate returns to Company stockholders. The Plan is further intended
to provide flexibility to the Company in its ability to motivate, attract, and retain the services of members of the Board, Employees, and Consultants upon whose judgment, interest, and special effort the successful conduct of the Company’s
operation is largely dependent. 
  
 ARTICLE 2 
  
 DEFINITIONS AND CONSTRUCTION 
  
 Wherever the following terms are used in the Plan they shall have the
meanings specified below, unless the context clearly indicates otherwise. The singular pronoun shall include the plural where the context so indicates. 
  
 2.1 “Administrator” means the Board or a committee of the Board as described in Article 12. 
  
 2.2 “Award” means an Option, a Restricted Stock award, a
Stock Appreciation Right award, a Dividend Equivalents award, a Stock Payment award, a Restricted Stock Unit award, an Other Stock-Based Award, or a Performance-Based Award granted to a Participant pursuant to the Plan. 
  
 2.3 “Award Agreement” means any written agreement, contract,
or other instrument or document evidencing an Award. 
  
 2.4
“Board” means the Board of Directors of the Company. 
  
 2.5 “Change in Control” means and includes each of the following: 
  
 (a) the acquisition, directly or indirectly, by any “person” or “group” (as those terms are defined in Sections
3(a)(9), 13(d), and 14(d) of the Exchange Act and the rules thereunder) of “beneficial ownership” (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors
(“voting securities”) of the Company that represent 35% or more of the combined voting power of the Company’s then outstanding voting securities, other than 
  
 (i) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or
related trust) sponsored or maintained by the Company or 

  









 
any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by
the Company, or 
  
 (ii) an acquisition of voting
securities by the Company or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or 
  
 (iii) an acquisition of voting securities pursuant to a
transaction described in subsection (c) below that would not be a Change in Control under subsection (c); 
  
 Notwithstanding the foregoing, neither of the following events shall constitute an “acquisition” by any person or group for purposes of this
subsection (a): (1) a change in the voting power of the Company’s voting securities based on the relative trading values of the Company’s then outstanding securities as determined pursuant to the Company’s Articles of Incorporation,
or (2) an acquisition of the Company’s securities by the Company which causes the Company’s voting securities beneficially owned by a person or group to represent 35% or more of the combined voting power of the Company’s then
outstanding voting securities; 
  
 (b)
individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director
subsequent to the Effective Date whose appointment, election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board; 
  
 (c) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more
intermediaries) of a merger, consolidation, reorganization, or business combination, a sale or other disposition of all or substantially all of the Company’s assets, or the acquisition of assets or stock of another entity, in each case, other
than a transaction 
  
 (i) which results in the
Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction,
controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”))
directly or indirectly, at least 50% of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and 
  
 (ii) after which more than 50% of the members of the board of directors of the Successor Entity are members
of the Incumbent Board at the time of the Board’s approval of the agreement providing for the transaction or other action of the Board approving the transaction, and 
  

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 (iii) after which no person or group beneficially owns voting securities representing 35%
or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this paragraph (iii) as beneficially owning 35% or more of combined voting power of the Successor Entity
solely as a result of the voting power held in the Company prior to the consummation of the transaction; or 
  
 (d) the Company’s stockholders approve a liquidation or dissolution of the Company. 
  
 For purposes of subsection (a) above, the calculation of voting power shall
be made as if the date of the acquisition were a record date for a vote of the Company’s stockholders, and for purposes of subsection (c) above, the calculation of voting power shall be made as if the date of the consummation of the transaction
were a record date for a vote of the Company’s stockholders. 
  
 The Administrator shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the
occurrence of such Change in Control and any incidental matters relating thereto. 
  
 2.6 “Code” means the Internal Revenue Code of 1986, as amended from time to time. 
  
 2.7 “Committee” means the committee of the Board described in Article 12. 
  
 2.8 “Consultant” means any consultant or adviser if: 
  
 (a) The consultant or adviser renders bona fide services to
the Company or any Subsidiary; 
  
 (b) The
services rendered by the consultant or adviser are not in connection with the offer or sale of securities in a capital-raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities; and

  
 (c) The consultant or adviser is a natural
person who has contracted directly with the Company or any Subsidiary to render such services. 
  
 2.9 “Covered Employee” means an Employee who is, or is likely to become, a “covered employee” within the meaning of Section 162(m)(3) of the Code. 
  
 2.10 “Disability” means a permanent and total disability
within the meaning of Section 22(e)(3) of the Code, as it may be amended from time to time. 
  
 2.11 “Dividend Equivalents” means a right granted to a Participant pursuant to Article 8 to receive the equivalent value (in cash or Stock) of dividends paid on Stock. 
  
 2.12 “Effective Date” shall have the meaning set forth in
Section 13.1. 
  

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 2.13 “Eligible Individual” means any person who is a member of the Board, a Consultant
or an Employee, as determined by the Administrator. 
  
 2.14
“Employee” means any officer or other employee (as defined in accordance with Section 3401(c) of the Code) of the Company or any Subsidiary. 
  
 2.15 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. 
  
 2.16 “Fair Market Value” means, as of any date, the value of
Stock determined as follows: 
  
 (a) If the Stock
is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system for the last market trading day prior to the date of determination, as reported in The Wall Street Journal or such other source as the
Administrator deems reliable; 
  
 (b) If the
Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean of the closing bid and asked prices for the Stock on the date prior to the date of determination as reported in
The Wall Street Journal or such other source as the Administrator deems reliable; or 
  
 (c) In the absence of an established market for the Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator. 
  
 2.17 “Incentive Stock Option”
means an Option that is intended to be an incentive stock option and meets the requirements of Section 422 of the Code or any successor provision thereto. 
  
 2.18 “Independent Director” means a member of the Board who is not an Employee. 
  
 2.19 “Merger Agreement” means that certain Agreement of
Merger dated as of August 9, 2004, by and among Encore Credit Corp., a California corporation, ECC Merger Sub, a California corporation and the Company. 
  
 2.20 “Non-Employee Director” means a member of the Board who qualifies as a “Non-Employee Director” as defined in Rule
16b-3(b)(3) of the Exchange Act, or any successor definition adopted by the Board. 
  
 2.21 “Non-Qualified Stock Option” means an Option that is not intended to be an Incentive Stock Option. 
  
 2.22 “Option” means a right granted to a Participant pursuant to Article 5 of the Plan to purchase a specified number of shares of Stock
at a specified price during specified time periods. An Option may be either an Incentive Stock Option or a Non-Qualified Stock Option. 
  

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 2.23 “Other Stock-Based Award” means an Award granted or denominated in Stock or units
of Stock pursuant to Section 8.4 of the Plan. 
  
 2.24
“Participant” means any Eligible Individual who, as a member of the Board, a Consultant or an Employee, has been granted an Award pursuant to the Plan. 
  
 2.25 “Performance-Based Award” means an Award granted to selected Covered Employees pursuant to Articles 6
and 8, but which is subject to the terms and conditions set forth in Article 9.  
  
 2.26 “Performance Criteria” means the criteria that the Administrator selects for purposes of establishing the Performance Goal or Performance Goals for a Participant for a Performance Period. The
Performance Criteria that will be used to establish Performance Goals are limited to the following: net earnings (either before or after interest, taxes, depreciation and amortization), sales or revenue, net income (either before or after taxes),
operating earnings, cash flow (including, but not limited to, operating cash flow and free cash flow), return on net assets, return on stockholders’ equity, return on sales, gross or net profit margin, working capital, earnings per share, price
per share of Stock, and funds from operations, in each case as determined according to U.S. generally accepted accounting principles or in accordance with standards established by the Board of Governors of the National Association of Real Estate
Investment Trusts in its March 1995 White Paper (as amended in November 1999 and April 2002, and as further amended from time to time), any of which may be measured either in absolute terms or as compared to any incremental increase or as compared
to results of a peer group. The Administrator shall, within the time prescribed by Section 162(m) of the Code, define in an objective fashion the manner of calculating the Performance Criteria it selects to use for such Performance Period for such
Participant.  
  
 2.27 “Performance Goals”
means, for a Performance Period, the goals established in writing by the Administrator for the Performance Period based upon the Performance Criteria. Depending on the Performance Criteria used to establish such Performance Goals, the Performance
Goals may be expressed in terms of overall Company performance or the performance of a Subsidiary, division or other operational unit. The Administrator, in its discretion, may, within the time prescribed by Section 162(m) of the Code, adjust or
modify the calculation of Performance Goals for such Performance Period in order to prevent the dilution or enlargement of the rights of Participants (i) in the event of, or in anticipation of, any unusual or extraordinary corporate item,
transaction, event, or development, or (ii) in recognition of, or in anticipation of, any other unusual or nonrecurring events affecting the Company, or the financial statements of the Company, or in response to, or in anticipation of, changes in
applicable laws, regulations, accounting principles, or business conditions. 
  
 2.28 “Performance Period” means the one or more periods of time, which may be of varying and overlapping durations, as the Administrator may select, over which the attainment of one or more
Performance Goals will be measured for the purpose of determining a Participant’s right to, and the payment of, a Performance-Based Award. 
  
 2.29 “Plan” means this ECC Capital Corp. 2004 Incentive Award Plan, as it may be amended from time to time. 
  

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 2.30 “Public Trading Date” means the first date upon which any class of common
securities issued by the Company is required to be registered under Section 12 of the Exchange Act. 
  
 2.31 “Qualified Performance-Based Compensation” means any compensation that is intended to qualify as “qualified performance-based
compensation” as described in Section 162(m)(4)(C) of the Code. 
  
 2.32 “REIT” means a real estate investment trust within the meaning of Sections 856 through 860 of the Code. 
  
 2.33 “Restricted Stock” means Stock awarded to a Participant pursuant to Article 6 that is subject to certain restrictions and may be
subject to risk of forfeiture or repurchase. 
  
 2.34
“Restricted Stock Unit” means an Award granted pursuant to Section 8.3. 
  
 2.35 “Securities Act” shall mean the Securities Act of 1933, as amended from time to time. 
  
 2.36 “Stock” means the common stock of the Company, par value $0.01 per share, and such other securities of the Company that may be
substituted for Stock pursuant to Article 11. 
  
 2.37
“Stock Appreciation Right” or “SAR” means a right granted pursuant to Article 7 to receive a payment equal to the excess of the Fair Market Value of a specified number of shares of Stock on the date the SAR is
exercised over the Fair Market Value of such number of shares of Stock on the date the SAR was granted as set forth in the applicable Award Agreement. 
  
 2.38 “Stock Payment” means (a) a payment in the form of shares of Stock, or (b) an option or other right to purchase shares of Stock, as
part of any bonus, deferred compensation or other arrangement, made in lieu of all or any portion of the compensation, granted pursuant to Section 8.2. 
  
 2.39 “Subsidiary” means any “subsidiary corporation” as defined in Section 424(f) of the Code and any applicable regulations
promulgated thereunder of the Company or any other entity of which a majority of the outstanding voting stock or voting power is beneficially owned directly or indirectly by the Company. 
  
 ARTICLE 3 
  
 SHARES SUBJECT TO THE PLAN 
  
 3.1 Number of Shares. 
  
 (a) Subject to Article 11 and Section 3.1(b), the aggregate number of shares of Stock which may be issued or transferred pursuant to
Awards under the Plan shall be 3,150,000 shares, of which no more than 900,000 may be granted or issued as Restricted Stock, Restricted Stock Units, Stock Payments or Other Stock-Based Awards. 
  

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 (b) To the extent that an Award terminates, expires, or lapses for any reason, any shares
of Stock subject to the Award shall again be available for the grant of an Award pursuant to the Plan. Additionally, any shares of Stock tendered or withheld to satisfy the grant or exercise price or tax withholding obligation pursuant to any Award
shall again be available for the grant of an Award pursuant to the Plan. To the extent permitted by applicable law or any exchange rule, shares of Stock issued in assumption of, or in substitution for, any outstanding awards of any entity acquired
in any form of combination by the Company or any Subsidiary shall not be counted against shares of Stock available for grant pursuant to this Plan. 
  
 3.2 Stock Distributed. Any Stock distributed pursuant to an Award may consist, in whole or in part, of authorized and unissued Stock or Stock
purchased on the open market. 
  
 3.3 Limitation on Number of
Shares Subject to Awards. Notwithstanding any provision in the Plan to the contrary, and subject to Article 11, the maximum number of shares of Stock with respect to one or more Awards that may be granted to any one Participant during a calendar
year shall be 315,000; provided, however, that the foregoing limitation shall not apply prior to the Public Trading Date and, following the Public Trading Date, the foregoing limitation shall not apply until the earliest of: (a) the first
material modification of the Plan (including any increase in the number of shares reserved for issuance under the Plan in accordance with Section 3.1); (b) the issuance of all of the shares of Stock reserved for issuance under the Plan; (c) the
expiration of the Plan; (d) the first meeting of stockholders at which members of the Board are to be elected that occurs after the close of the third calendar year following the calendar year in which occurred the first registration of an equity
security of the Company under Section 12 of the Exchange Act; or (e) such other date required by Section 162(m) of the Code and the rules and regulations promulgated thereunder. 
  
 ARTICLE 4 
  
 ELIGIBILITY AND PARTICIPATION 
  
 4.1 Eligibility. Persons eligible to participate in this Plan include Employees, Consultants and members of the Board, as determined by the
Administrator. 
  
 4.2 Participation. Subject to the
provisions of the Plan, the Administrator may, from time to time, select from among all Eligible Individuals those to whom Awards shall be granted and shall determine the nature and amount of each Award. No individual shall have any right to be
granted an Award pursuant to this Plan. 
  
 ARTICLE 5

  
 STOCK OPTIONS 
  
 5.1 General. The Administrator is authorized to grant Options
to Eligible Individuals on the following terms and conditions: 
  
 (a) Exercise Price. The exercise price per share of Stock subject to an Option shall be determined by the Administrator and set forth in the Award Agreement; provided that the exercise price for any
Option shall not be less than par value. 
  

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 (b) Time and Conditions of Exercise. The Administrator shall determine the time or
times at which an Option may be exercised in whole or in part; provided that the term of any Option granted under the Plan shall not exceed ten years. The Administrator shall also determine the performance or other conditions, if any, that
must be satisfied before all or part of an Option may be exercised. 
  
 (c) Payment. The Administrator shall determine the methods, terms and conditions by which the exercise price of an Option may be paid, and the form and manner of payment, including, without limitation, payment
in the form of cash, a promissory note bearing interest at no less than such rate as shall then preclude the imputation of interest under the Code, shares of Stock, or other property acceptable to the Administrator and payment through the delivery
of a notice that the Participant has placed a market sell order with a broker with respect to shares of Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the
sale to the Company in satisfaction of the Option exercise price; provided that payment of such proceeds is then made to the Company upon settlement of such sale, and the methods by which shares of Stock shall be delivered or deemed to be
delivered to Participants. Notwithstanding any other provision of the Plan to the contrary, (i) no Participant who is a member of the Board or an “executive officer” of the Company within the meaning of Section 13(k) of the Exchange Act
shall be permitted to pay the exercise price of an Option in any method which would violate Section 13(k) of the Exchange Act, and (ii) in no event shall the Administrator permit a Participant to pay the exercise price of an Option with any
promissory note that is inconsistent with the Company’s qualification as a REIT. 
  
 (d) Evidence of Grant. All Options shall be evidenced by a written Award Agreement between the Company and the Participant. The
Award Agreement shall include such additional provisions as may be specified by the Administrator. 
  
 5.2 Incentive Stock Options. Incentive Stock Options may be granted only to employees (as defined in accordance with Section 3401(c) of the
Code) of the Company or a Subsidiary which constitutes a “subsidiary corporation” of the Company within Section 424(f) of the Code and any applicable regulations promulgated thereunder, and the terms of any Incentive Stock Options granted
pursuant to the Plan must comply with the following additional provisions of this Section 5.2: 
  
 (a) Exercise Price. Subject to Section 5.2(b) below, the exercise price per share of Stock subject to an Incentive Stock Option
shall be set by the Administrator; provided that the exercise price per share for any Incentive Stock Option shall not be less than 100% of the Fair Market Value on the date of grant. 
  
 (b) Ten Percent Owners. An Incentive Stock Option
shall be granted to any individual who, at the date of grant, owns stock possessing more than ten percent of the total combined voting power of all classes of Stock of the Company or any “subsidiary corporation” of the Company or
“parent corporation” of the Company (each within the meaning of Section 424 of the Code) only if such Option is granted at an exercise price per share that is not less than 110% of Fair Market Value on the date of grant and the Option is
exercisable for no more than five years from the date of grant. 
  

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 (c) Transfer Restriction. An Incentive Stock Option shall not be transferable by
the Participant other than by will or by the laws of descent or distribution. 
  
 (d) Expiration of Incentive Stock Options. No Award of an Incentive Stock Option may be made pursuant to this Plan after the Expiration Date. 
  
 (e) Right to Exercise. During a Participant’s lifetime, an Incentive Stock Option may be
exercised only by the Participant. 
  
 5.3 Substitution
of Stock Appreciation Rights. The Administrator may provide in the Award Agreement evidencing the grant of an Option that the Administrator, in its sole discretion, shall have to right to substitute a Stock Appreciation Right for such Option at
any time prior to or upon exercise of such Option, subject to the provisions of Section 7.3 hereof; provided that such Stock Appreciation Right shall be exercisable for the number of shares of Stock for which such substituted Option would
have been exercisable. 
  
 5.4 Paperless Exercise. In the
event that the Company establishes, for itself or using the services of a third party, an automated system for the exercise of Options, such as a system using an internet website or interactive voice response, then the paperless exercise of Options
by a Participant may be permitted through the use of such an automated system. 
  
 5.5 Granting of Options to Independent Directors. The Board may from time to time, in its sole discretion, and subject to the limitations of the Plan: 
  
 (a) Select from among the Independent Directors (including
Independent Directors who have previously been granted Options under the Plan) such of them as in its opinion should be granted Options; 
  
 (b) Subject to Section 3.3, determine the number of shares of Stock that may be purchased upon exercise of the Options granted to such
selected Independent Directors; and 
  
 (c)
Subject to the provisions of this Article 5, determine the terms and conditions of such Options, consistent with the Plan. Options granted to Independent Directors shall be Non-Qualified Stock Options. 
  
 ARTICLE 6 
  
 RESTRICTED STOCK AWARDS 
  
 6.1 Grant of Restricted Stock. The Administrator is authorized to make Awards of Restricted Stock to any Eligible Individual selected by the
Administrator in such amounts and subject to such terms and conditions as determined by the Administrator. All Awards of Restricted Stock shall be evidenced by a written Restricted Stock Award Agreement. 
  
 6.2 Issuance and Restrictions. Restricted Stock shall be
subject to such repurchase restrictions, forfeiture restrictions, restrictions on transferability and other restrictions as the Administrator may impose (including, without limitation, limitations on the right to vote 

  

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Restricted Stock or the right to receive dividends on the Restricted Stock). These restrictions may lapse separately or in combination at such times,
pursuant to such circumstances or installments or otherwise as the Administrator determines at the time of the grant of the Award or thereafter. Alternatively, these restrictions may lapse pursuant to the satisfaction of one or more Performance
Goals or other specific performance goals as the Administrator determines to be appropriate at the time of the grant of the Award or thereafter, in each case on a specified date or dates or over any period or periods determined by the Administrator.

  
 6.3 Repurchase or Forfeiture. Except as
otherwise determined by the Administrator at the time of the grant of the Award or thereafter, upon termination of employment or service during the applicable restriction period, Restricted Stock that is at that time subject to restrictions shall be
forfeited or subject to repurchase by the Company under such terms as the Administrator shall determine; provided, however, that the Administrator may (a) provide in any Restricted Stock Award Agreement that restrictions or forfeiture
conditions relating to Restricted Stock will be waived in whole or in part in the event of terminations resulting from specified causes, and (b) in other cases waive in whole or in part restrictions or forfeiture conditions relating to Restricted
Stock. 
  
 6.4 Certificates for Restricted
Stock. Restricted Stock granted pursuant to the Plan may be evidenced in such manner as the Administrator shall determine. If certificates representing shares of Restricted Stock are registered in the name of the Participant, certificates must
bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock, and the Company may, at its discretion, retain physical possession of the certificate until such time as all applicable restrictions
lapse. 
  
 ARTICLE 7 
  
 STOCK APPRECIATION RIGHTS 
  
 7.1 Grant of Stock Appreciation Rights. A Stock Appreciation
Right may be granted to any Eligible Individual selected by the Administrator. A Stock Appreciation Right may be granted (a) in connection and simultaneously with the grant of an Option, (b) with respect to a previously granted Option, or (c)
independent of an Option. A Stock Appreciation Right shall be subject to such terms and conditions not inconsistent with the Plan as the Administrator shall impose and shall be evidenced by an Award Agreement. 
  
 7.2 Coupled Stock Appreciation Rights. 
  
 (a) A Coupled Stock Appreciation Right
(“CSAR”) shall be related to a particular Option and shall be exercisable only when and to the extent the related Option is exercisable. 
  
 (b) A CSAR may be granted to an Eligible Individual for no more than the number of shares subject to the simultaneously or previously
granted Option to which it is coupled. 
  
 (c) A
CSAR shall entitle the Participant (or other person entitled to exercise the Option pursuant to the Plan) to surrender to the Company the unexercised portion of the 

  

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Option to which the CSAR relates (to the extent then exercisable pursuant to its terms) and to receive from the Company in exchange therefor an amount
determined by multiplying (i) the amount (if any) by which the Fair Market Value of a share of Stock on the date of exercise of the CSAR exceeds the per share exercise price of the Option to which the CSAR relates, by (ii) the number of shares of
Stock with respect to which the CSAR shall have been exercised, subject to any limitations the Administrator may impose. 
  
 7.3 Independent Stock Appreciation Rights. 
  
 (a) An Independent Stock Appreciation Right (“ISAR”) shall be unrelated to any Option and shall have a term set by the
Administrator. An ISAR shall be exercisable in such installments as the Administrator may determine. An ISAR shall cover such number of shares of Stock as the Administrator may determine. The exercise price per share of Stock subject to each ISAR
shall be set by the Administrator. 
  
 (b)
An ISAR shall entitle the Participant (or other person entitled to exercise the ISAR pursuant to the Plan) to exercise all or a specified portion of the ISAR (to the extent then exercisable pursuant to its terms) and to receive from the Company an
amount determined by multiplying (i) the amount (if any) by which the Fair Market Value of a share of Stock on the date of exercise of the ISAR exceeds the exercise price per share of the ISAR, by (ii) the number of shares of Stock with respect to
which the ISAR shall have been exercised, subject to any limitations the Administrator may impose. 
  
 7.4 Payment. Payment of the amounts determined under Sections 7.2(c) and 7.3(b) above shall be in cash, in Stock (based on its Fair Market
Value as of the date the Stock Appreciation Right is exercised) or a combination of both, as determined by the Administrator. 
  
 ARTICLE 8 
  
 OTHER TYPES OF AWARDS 
  
 8.1 Dividend Equivalents. 
  
 (a) Any Eligible Individual selected by the Administrator may be granted Dividend Equivalents based on the dividends on the shares of Stock that are subject to any Award, to be credited as of dividend payment dates,
during the period between the date the Award is granted and the date the Award is exercised, vests or expires, as determined by the Administrator. Such Dividend Equivalents shall be converted to cash or additional shares of Stock by such formula and
at such time and subject to such limitations as may be determined by the Administrator. 
  
 (b) Dividend Equivalents granted with respect to Options or SARs that are intended to be Qualified Performance-Based Compensation shall be
payable, with respect to pre-exercise periods, regardless of whether such Option or SAR is subsequently exercised. 
  

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 8.2 Stock Payments. Any Eligible Individual selected by the Administrator may receive Stock
Payments in the manner determined from time to time by the Administrator; provided, that unless otherwise determined by the Administrator such Stock Payments shall be made in lieu of base salary, bonus, or other cash compensation otherwise
payable to such Eligible Individual. The number of shares shall be determined by the Administrator and may be based upon the Performance Goals or other specific performance goals determined appropriate by the Administrator. 
  
 8.3 Restricted Stock Units. The Administrator is authorized to make
Awards of Restricted Stock Units to any Eligible Individual selected by the Administrator in such amounts and subject to such terms and conditions as determined by the Administrator. At the time of grant, the Administrator shall specify the date or
dates on which the Restricted Stock Units shall become fully vested and nonforfeitable, and may specify such conditions to vesting as it deems appropriate. Alternatively, Restricted Stock Units may become fully vested and nonforfeitable pursuant to
the satisfaction of one or more Performance Goals or other specific performance goals as the Administrator determines to be appropriate at the time of the grant of the Restricted Stock Units or thereafter, in each case on a specified date or dates
or over any period or periods determined by the Administrator. At the time of grant, the Administrator shall specify the maturity date applicable to each grant of Restricted Stock Units which shall be no earlier than the vesting date or dates of the
Award and may be determined at the election of the grantee. On the maturity date, the Company shall transfer to the Participant one unrestricted, fully transferable share of Stock for each Restricted Stock Unit scheduled to be paid out on such date
and not previously forfeited. The Administrator shall specify the purchase price, if any, to be paid by the Participant to the Company for such shares of Stock. 
  

8.4 Other Stock-Based Awards. Any Eligible Individual selected by the Administrator may be granted one or more Awards that provide such Eligible
Individual with shares of Stock or the right to purchase shares of Stock or that have a value derived from the value of, or an exercise or conversion privilege at a price related to, or that are otherwise payable in shares of Stock and which may be
linked to any one or more of the Performance Goals or other specific performance goals determined appropriate by the Administrator, in each case on a specified date or dates or over any period or periods determined by the Administrator. 

 
 8.5 Term. Except as otherwise provided herein, the term of any
Award of Dividend Equivalents, Stock Payments, Restricted Stock Units or Other Stock-Based Awards shall be set by the Administrator in its discretion. 
  
 8.6 Exercise or Purchase Price. The Administrator may establish the exercise or purchase price, if any, of any Award of Stock Payments, Restricted
Stock Units or Other Stock-Based Award; provided, however, that such price shall not be less than the par value of a share of Stock on the date of grant, unless otherwise permitted by applicable state law. 
  
 8.7 Form of Payment. Payments with respect to any Awards granted under
Sections 8.1, 8.2, 8.3 or 8.4 shall be made in cash, in Stock or a combination of both, as determined by the Administrator. 
  

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 8.8 Award Agreement. All Awards under this Article 8 shall be subject to such additional terms and
conditions as determined by the Administrator and shall be evidenced by a written Award Agreement. 
  
 ARTICLE 9 
  
 PERFORMANCE-BASED AWARDS 
  
 9.1
Purpose. The purpose of this Article 9 is to provide the Administrator the ability to qualify Awards other than Options and SARs and that are granted pursuant to Articles 6 and 8 as Qualified Performance-Based Compensation. If the
Administrator, in its discretion, decides to grant a Performance-Based Award to a Covered Employee, the provisions of this Article 9 shall control over any contrary provision contained in Articles 6 or 8; provided, however, that the
Administrator may in its discretion grant Awards to Covered Employees that are based on Performance Criteria or Performance Goals but that do not satisfy the requirements of this Article 9. 
  
 9.2 Applicability. This Article 9 shall apply only to those
Covered Employees selected by the Administrator to receive Performance-Based Awards. The designation of a Covered Employee as a Participant for a Performance Period shall not in any manner entitle the Participant to receive an Award for the period.
Moreover, designation of a Covered Employee as a Participant for a particular Performance Period shall not require designation of such Covered Employee as a Participant in any subsequent Performance Period and designation of one Covered Employee as
a Participant shall not require designation of any other Covered Employees as a Participant in such period or in any other period. 
  
 9.3 Procedures with Respect to Performance-Based Awards. To the extent necessary to comply with the Qualified Performance-Based Compensation
requirements of Section 162(m)(4)(C) of the Code, with respect to any Award granted under Articles 6 and 8 which may be granted to one or more Covered Employees, no later than ninety (90) days following the commencement of any fiscal year in
question or any other designated fiscal period or period of service (or such other time as may be required or permitted by Section 162(m) of the Code), the Administrator shall, in writing, (a) designate one or more Covered Employees, (b) select the
Performance Criteria applicable to the Performance Period, (c) establish the Performance Goals, and amounts of such Awards, as applicable, which may be earned for such Performance Period, and (d) specify the relationship between Performance Criteria
and the Performance Goals and the amounts of such Awards, as applicable, to be earned by each Covered Employee for such Performance Period. Following the completion of each Performance Period, the Administrator shall certify in writing whether the
applicable Performance Goals have been achieved for such Performance Period. In determining the amount earned by a Covered Employee, the Administrator shall have the right to reduce or eliminate (but not to increase) the amount payable at a given
level of performance to take into account additional factors that the Administrator may deem relevant to the assessment of individual or corporate performance for the Performance Period. 
  
 9.4 Payment of Performance-Based Awards. Unless otherwise provided in the applicable Award Agreement, a
Participant must be employed by the Company or a Subsidiary 

  

 13 








 
on the day a Performance-Based Award for such Performance Period is paid to the Participant. Furthermore, a Participant shall be eligible to receive payment
pursuant to a Performance-Based Award for a Performance Period only if the Performance Goals for such period are achieved. 
  
 9.5 Additional Limitations. Notwithstanding any other provision of the Plan, any Award which is granted to a Covered Employee and is
intended to constitute Qualified Performance-Based Compensation shall be subject to any additional limitations set forth in Section 162(m) of the Code (including any amendment to Section 162(m) of the Code) or any regulations or rulings issued
thereunder that are requirements for qualification as qualified performance-based compensation as described in Section 162(m)(4)(C) of the Code, and the Plan shall be deemed amended to the extent necessary to conform to such requirements.

  
 ARTICLE 10 
  
 PROVISIONS APPLICABLE TO AWARDS 
  
 10.1 Stand-Alone and Tandem Awards. Awards granted pursuant to the
Plan may, in the discretion of the Administrator, be granted either alone, in addition to, or in tandem with, any other Award granted pursuant to the Plan. Awards granted in addition to or in tandem with other Awards may be granted either at the
same time as or at a different time from the grant of such other Awards. 
  
 10.2 Award Agreement. Awards under the Plan shall be evidenced by Award Agreements that set forth the terms, conditions and limitations for each Award which may include the term of an Award, the provisions
applicable in the event the Participant’s employment or service terminates, and the Company’s authority to unilaterally or bilaterally amend, modify, suspend, cancel or rescind an Award. 
  
 10.3 Limits on Transfer. No right or interest of a Participant in any
Award may be pledged, encumbered, or hypothecated to or in favor of any party other than the Company or a Subsidiary, or shall be subject to any lien, obligation, or liability of such Participant to any other party other than the Company or a
Subsidiary. Except as otherwise provided by the Administrator, no Award shall be assigned, transferred, or otherwise disposed of by a Participant other than by will or the laws of descent and distribution. The Administrator by express provision in
the Award or an amendment thereto may permit an Award (other than an Incentive Stock Option) to be transferred to, exercised by and paid to certain persons or entities related to the Participant, including but not limited to members of the
Participant’s family, charitable institutions, or trusts or other entities whose beneficiaries or beneficial owners are members of the Participant’s family and/or charitable institutions, or to such other persons or entities as may be
expressly approved by the Administrator, pursuant to such conditions and procedures as the Administrator may establish. Any permitted transfer shall be subject to the condition that the Administrator receive evidence satisfactory to it that the
transfer is being made for estate and/or tax planning purposes (or to a “blind trust” in connection with the Participant’s termination of employment or service with the Company or a Subsidiary to assume a position with a governmental,
charitable, educational or similar non-profit institution) and on a basis consistent with the Company’s lawful issue of securities. 
  

 14 








 10.4 Beneficiaries. Notwithstanding Section 10.3, a Participant may, in the manner determined by
the Administrator, designate a beneficiary to exercise the rights of the Participant and to receive any distribution with respect to any Award upon the Participant’s death. A beneficiary, legal guardian, legal representative, or other person
claiming any rights pursuant to the Plan is subject to all terms and conditions of the Plan and any Award Agreement applicable to the Participant, except to the extent the Plan and Award Agreement otherwise provide, and to any additional
restrictions deemed necessary or appropriate by the Administrator. If the Participant is married and resides in a community property state, a designation of a person other than the Participant’s spouse as his or her beneficiary with respect to
more than 50% of the Participant’s interest in the Award shall not be effective without the prior written consent of the Participant’s spouse. If no beneficiary has been designated or survives the Participant, payment shall be made to the
person entitled thereto pursuant to the Participant’s will or the laws of descent and distribution. Subject to the foregoing, a beneficiary designation may be changed or revoked by a Participant at any time provided the change or revocation is
filed with the Administrator. 
  
 10.5 Stock Certificates.
Notwithstanding anything herein to the contrary, the Company shall not be required to issue or deliver any certificates evidencing shares of Stock pursuant to the exercise of any Award, unless and until the Board has determined, with advice of
counsel, that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any exchange on which the shares of Stock are listed or traded.
All Stock certificates delivered pursuant to the Plan are subject to any stop-transfer orders and other restrictions as the Administrator deems necessary or advisable to comply with federal, state, or foreign jurisdiction, securities or other laws,
rules and regulations and the rules of any national securities exchange or automated quotation system on which the Stock is listed, quoted, or traded. The Administrator may place legends on any Stock certificate to reference restrictions applicable
to the Stock. In addition to the terms and conditions provided herein, the Administrator may require that a Participant make such reasonable covenants, agreements, and representations as the Administrator, in its discretion, deems advisable in order
to comply with any such laws, regulations, or requirements. The Administrator shall have the right to require any Participant to comply with any timing or other restrictions with respect to the settlement or exercise of any Award, including a
window-period limitation, as may be imposed in the discretion of the Administrator. 
  
 ARTICLE 11 
  
 CHANGES IN
CAPITAL STRUCTURE 
  
 11.1 Adjustments. 
  
 (a) In the event of any stock dividend, stock split,
combination or exchange of shares, merger, consolidation, spin-off, recapitalization, distribution of Company assets to stockholders (other than normal cash dividends), or any other corporate event affecting the Stock or the share price of the
Stock, the Administrator may make such proportionate adjustments, if any, as the Administrator in its discretion may deem appropriate to reflect such change with respect to (i) the aggregate number and type of shares that may be issued under the
Plan (including, but not limited to, adjustments of the limitations in Sections 3.1 and 3.3); (ii) the 

  

 15 








 
terms and conditions of any outstanding Awards (including, without limitation, any applicable performance targets or criteria with respect thereto); and
(iii) the grant or exercise price per share for any outstanding Awards under the Plan. Any adjustment affecting an Award intended as Qualified Performance-Based Compensation shall be made consistent with the requirements of Section 162(m) of the
Code. 
  
 (b) In the event of any transaction or
event described in Section 11.1(a) or any unusual or nonrecurring transactions or events affecting the Company, any affiliate of the Company, or the financial statements of the Company or any affiliate (including without limitation any Change in
Control), or of changes in applicable laws, regulations or accounting principles, and whenever the Administrator determines that such action is appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan or with respect to any Award under the Plan, to facilitate such transactions or events or to give effect to such changes in laws, regulations or principles, the Administrator, in its sole discretion and
on such terms and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction or event and either automatically or upon the Participant’s request, is hereby authorized to
take any one or more of the following actions: 
  
 (i) To provide for either (A) termination of any such Award in exchange for an amount of cash, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights (and,
for the avoidance of doubt, if as of the date of the occurrence of the transaction or event described in this Section 11.1(b) the Administrator determines in good faith that no amount would have been attained upon the exercise of such Award or
realization of the Participant’s rights, then such Award may be terminated by the Company without payment) or (B) the replacement of such Award with other rights or property selected by the Administrator in its sole discretion; 
  
 (ii) To provide that such Award be assumed by the successor
or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments
as to the number and kind of shares and prices; and 
  
 (iii) To make adjustments in the number and type of shares of Stock (or other securities or property) subject to outstanding Awards, and in the number and kind of outstanding Restricted Stock and/or in the terms and conditions of (including
the grant or exercise price), and the criteria included in, outstanding options, rights and awards and options, rights and awards which may be granted in the future; 
  
 (iv) To provide that such Award shall be exercisable or payable or fully vested with respect to all shares
covered thereby, notwithstanding anything to the contrary in the Plan or the applicable Award Agreement; and 
  
 (v) To provide that the Award cannot vest, be exercised or become payable after such event. 
  

 16 








 11.2 Acceleration Upon a Change in Control. Notwithstanding Section 11.1, and except as may
otherwise be provided in any applicable Award Agreement, if a Change in Control occurs and a Participant’s Awards are not continued, converted, assumed, or replaced by (a) the Company or a parent or Subsidiary of the Company, or (b) a successor
or a parent or subsidiary of such successor, such Awards shall become fully exercisable and all forfeiture restrictions on such Awards shall lapse. Upon, or in anticipation of, a Change in Control, the Administrator may cause any and all Awards
outstanding hereunder to terminate at a specific time in the future, including but not limited to the date of such Change in Control, and shall give each Participant the right to exercise such Awards during a period of time as the Administrator, in
its sole and absolute discretion, shall determine. 
  
 11.3 No
Other Rights. Except as expressly provided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend, any increase or decrease in the number of
shares of stock of any class or any dissolution, liquidation, merger, or consolidation of the Company or any other corporation. Except as expressly provided in the Plan or pursuant to action of the Administrator under the Plan, no issuance by the
Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Stock subject to an Award or the grant or
exercise price of any Award. 
  
 ARTICLE 12 
  
 ADMINISTRATION 
  
 12.1 Administrator. The “Administrator” of the Plan
shall be the Compensation Committee of the Board (or another committee or a subcommittee of the Board to which the Board delegates administration of the Plan) (such committee, the “Committee”), which Committee shall consist solely
of two or more members of the Board each of whom is both an “outside director,” within the meaning of Section 162(m) of the Code, and a Non-Employee Director. Notwithstanding the foregoing: (a) the full Board, acting by a majority of its
members in office, shall conduct the general administration of the Plan with respect to all Awards granted to Independent Directors and for purposes of such Awards the term “Administrator” as used in this Plan shall be deemed to
refer to the Board and (b) the Committee may delegate its authority hereunder to the extent permitted by Section 12.5. Appointment of Committee members shall be effective upon acceptance of appointment. The Board may abolish the Committee at any
time and revest in the Board the administration of the Plan. Committee members may resign at any time by delivering written notice to the Board. Vacancies in the Committee may only be filled by the Board. 
  
 12.2 Action by the Administrator. A majority of the Administrator
shall constitute a quorum. The acts of a majority of the members present at any meeting at which a quorum is present, and, subject to applicable law and the Bylaws of the Company, acts approved in writing by a majority of the Administrator in lieu
of a meeting, shall be deemed the acts of the Administrator. Each member of the Administrator is entitled to, in good faith, rely or act upon any report or other information furnished to that member by any officer or other employee of the Company or
any Subsidiary, the Company’s independent certified public accountants, or any 

  

 17 








 
executive compensation consultant or other professional retained by the Company to assist in the administration of the Plan. 
  
 12.3 Authority of Administrator. Subject to any specific designation
in the Plan, the Administrator has the exclusive power, authority and discretion to: 
  
 (a) Designate Participants to receive Awards; 
  
 (b) Determine the type or types of Awards to be granted to each Participant; 
  
 (c) Determine the number of Awards to be granted and the
number of shares of Stock to which an Award will relate; 
  
 (d) Determine the terms and conditions of any Award granted pursuant to the Plan, including, but not limited to, the exercise price, grant price, or purchase price, any reload provision, any restrictions or
limitations on the Award, any schedule for lapse of forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations or waivers thereof, any provisions related to non-competition and recapture of gain on an Award, based
in each case on such considerations as the Administrator in its sole discretion determines; provided, however, that the Administrator shall not have the authority to accelerate the vesting or waive the forfeiture of any Performance-Based
Awards; 
  
 (e) Determine whether, to what
extent, and pursuant to what circumstances an Award may be settled in, or the exercise price of an Award may be paid in, cash, Stock, other Awards, or other property, or an Award may be canceled, forfeited, or surrendered; 
  
 (f) Prescribe the form of each Award Agreement, which need
not be identical for each Participant; 
  
 (g)
Decide all other matters that must be determined in connection with an Award; 
  
 (h) Establish, adopt, or revise any rules and regulations as it may deem necessary or advisable to administer the Plan; 
  
 (i) Interpret the terms of, and any matter arising pursuant to, the Plan or any Award Agreement; and 
  
 (j) Make all other decisions and determinations that may be
required pursuant to the Plan or as the Administrator deems necessary or advisable to administer the Plan. 
  
 12.4 Decisions Binding. The Administrator’s interpretation of the Plan, any Awards granted pursuant to the Plan, any Award Agreement and all
decisions and determinations by the Administrator with respect to the Plan are final, binding, and conclusive on all parties. 
  
 12.5 Delegation of Authority. To the extent permitted by applicable law, the Committee may from time to time delegate to a committee of one or more
members of the Board or one or more officers of the Company the authority to grant or amend Awards to Participants 

  

 18 








 
other than (a) senior executives of the Company who are subject to Section 16 of the Exchange Act, (b) Covered Employees, or (c) officers of the Company (or
members of the Board) to whom authority to grant or amend Awards has been delegated hereunder. Any delegation hereunder shall be subject to the restrictions and limits that the Committee specifies at the time of such delegation, and the Committee
may at any time rescind the authority so delegated or appoint a new delegatee. At all times, the delegatee appointed under this Section 12.5 shall serve in such capacity at the pleasure of the Committee. 
  
 ARTICLE 13 
  
 EFFECTIVE AND EXPIRATION DATE 
  
 13.1 Effective Date. The Plan will be effective as of the date during
which the “Effective Time” occurs (as defined in the Merger Agreement) (the “Effective Date”), subject to the approval of the Plan by the Board, Encore Credit Corp. (the sole stockholder of the Company immediately prior to
the “Effective Time” (as defined in the Merger Agreement) and the stockholders of Encore Credit Corp. (immediately prior to the “Effective Time” (as defined in the Merger Agreement)). Pursuant to the Merger Agreement, the
stockholders of Encore Credit Corp. (immediately prior to the “Effective Time” (as defined in the Merger Agreement)) shall become the stockholders of the Company at the “Effective Time” (as defined in the Merger Agreement).

  
 13.2 Expiration Date. The Plan will expire on, and no
Award may be granted pursuant to the Plan after, the earlier of the tenth anniversary of (i) the date this Plan is approved by the Board or (ii) the date this Plan is approved by the Company’s stockholders (the “Expiration
Date”). Any Awards that are outstanding on the tenth anniversary of the Effective Date shall remain in force according to the terms of the Plan and the applicable Award Agreement. Each Award Agreement shall provide that it will expire on
the tenth anniversary of the date of grant of the Award to which it relates. 
  
 ARTICLE 14 
  
 AMENDMENT,
MODIFICATION, AND TERMINATION 
  
 14.1 Amendment,
Modification, And Termination. The Board or the Committee may terminate, amend or modify the Plan; provided, however, that (a) to the extent necessary to comply with any applicable law, regulation, or stock exchange rule, the Company
shall obtain stockholder approval of any Plan amendment in such a manner and to such a degree as required, and (b) stockholder approval is required for any amendment to the Plan that increases the number of shares available under the Plan (other
than any adjustment as provided by Article 11). Notwithstanding any provision in this Plan to the contrary, absent approval of the stockholders of the Company, no Option may be amended to reduce the per share exercise price of the shares subject to
such Option below the per share exercise price as of the date the Option is granted and, except as permitted by Article 11, no Option may be granted in exchange for, or in connection with, the cancellation or surrender of an Option having a higher
per share exercise price. 
  

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 14.2 Awards Previously Granted. No termination, amendment, or modification of the Plan shall
adversely affect in any material way any Award previously granted pursuant to the Plan without the prior written consent of the Participant. 
  
 ARTICLE 15 
  
 GENERAL PROVISIONS 
  
 15.1 No Rights to Awards. No Participant, employee, or other person shall have any claim to be granted any Award pursuant to the Plan, and neither the Company nor the Administrator is obligated to treat
Participants, employees, and other persons uniformly. 
  
 15.2
No Stockholders Rights. No Award gives the Participant any of the rights of a stockholder of the Company unless and until shares of Stock are in fact issued to such person in connection with such Award. 
  
 15.3 Withholding. The Company or any Subsidiary shall have the
authority and the right to deduct or withhold, or require a Participant to pay an amount sufficient to satisfy federal, state, local and foreign taxes (including the Participant’s FICA obligation) required by law to be withheld with respect to
any taxable event concerning a Participant arising as a result of this Plan. The Administrator may in its discretion and in satisfaction of the foregoing requirement allow a Participant to elect to have the Company or a Subsidiary, as applicable,
withhold shares of Stock otherwise issuable under an Award (or allow the return of shares of Stock) having a Fair Market Value equal to the sums required to be withheld. Notwithstanding any other provision of the Plan, the number of shares of Stock
which may be withheld with respect to the issuance, vesting, exercise or payment of any Award (or which may be repurchased from the Participant of such Award within six months after such shares of Stock were acquired by the Participant from the
Company) in order to satisfy the Participant’s federal, state, local and foreign income and payroll tax liabilities with respect to the issuance, vesting, exercise or payment of the Award shall be limited to the number of shares which have a
Fair Market Value on the date of withholding or repurchase equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes that are
applicable to such supplemental taxable income. 
  
 15.4 No
Right to Employment or Services. Nothing in the Plan or any Award Agreement shall interfere with or limit in any way the right of the Company or any Subsidiary to terminate any Participant’s employment or services at any time, nor confer
upon any Participant any right to continue in the employ or service of the Company or any Subsidiary. 
  
 15.5 Unfunded Status of Awards. The Plan is intended to be an “unfunded” plan for incentive compensation. With respect to any payments
not yet made to a Participant pursuant to an Award, nothing contained in the Plan or any Award Agreement shall give the Participant any rights that are greater than those of a general creditor of the Company or any Subsidiary. 
  
 15.6 Indemnification. To the extent allowable pursuant to applicable
law, the Administrator (and each member thereof) shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any
claim, action, suit, or 

  

 20 








 
proceeding to which he or she may be a party or in which he or she may be involved by reason of any action or failure to act pursuant to the Plan and against
and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding against him or her; provided he or she gives the Company an opportunity, at its own expense, to handle and defend the same before
he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled pursuant to the Company’s
Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless. 
  
 15.7 Relationship to other Benefits. No payment pursuant to the Plan shall be taken into account in determining any benefits pursuant to any
pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder. 
  
 15.8 Expenses. The expenses of administering the Plan shall be borne
by the Company and its Subsidiaries. 
  
 15.9 Titles and
Headings. The titles and headings of the Sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. 
  
 15.10 Fractional Shares. No fractional shares of Stock shall be issued
and the Administrator shall determine, in its discretion, whether cash shall be given in lieu of fractional shares or whether such fractional shares shall be eliminated by rounding up or down as appropriate. 
  
 15.11 Limitations Applicable to Section 16 Persons. Notwithstanding
any other provision of the Plan, the Plan, and any Award granted or awarded to any Participant who is then subject to Section 16 of the Exchange Act, shall be subject to any additional limitations set forth in any applicable exemptive rule under
Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted by applicable law, the Plan and Awards granted or awarded hereunder
shall be deemed amended to the extent necessary to conform to such applicable exemptive rule. 
  
 15.12 Government and Other Regulations. The obligation of the Company to make payment of awards in Stock or otherwise shall be subject to all applicable laws, rules, and regulations, and to such approvals by
government agencies as may be required. The Company shall be under no obligation to register pursuant to the Securities Act of 1933, as amended, any of the shares of Stock paid pursuant to the Plan. If the shares paid pursuant to the Plan may in
certain circumstances be exempt from registration pursuant to the Securities Act of 1933, as amended, the Company may restrict the transfer of such shares in such manner as it deems advisable to ensure the availability of any such exemption.

  

 21 








 15.13 Section 83(b) Election Prohibited. No Participant may make an election under Section 83(b)
of the Code with respect to any Award under the Plan without the consent of the Administrator, which the Administrator may grant or withhold in its sole discretion. 
  
 15.14 Restrictions on Awards. This Plan shall be interpreted and construed in a manner consistent with the
Company’s status as a REIT. No Award shall be granted or awarded, and with respect to an Award already granted under the Plan, such Award shall not be exercisable: 
  
 (a) to the extent such Award or exercise could cause the Participant to be in violation of the Ownership
Limit (as defined in the Company’s Articles of Incorporation, as amended from time to time); or 
  
 (b) if, in the discretion of the Administrator, such Award or exercise could impair the Company’s status as a REIT. 
  
 15.15 Governing Law. The Plan and all Award Agreements shall be
construed in accordance with and governed by the laws of the State of California, without regard to the conflicts of law principles thereof. 
  
 15.16 Conflicts with Company’s Articles of Incorporation. Notwithstanding any other provision of the Plan, no Participant shall acquire or
have any right to acquire any Stock, and shall not have any other rights under the Plan, which are prohibited under the Company’s Articles of Incorporation, as amended from time to time. 
  
 * * * * * 
  
 I hereby certify that the foregoing Plan was duly adopted by the Board of Directors of ECC Capital Corp. on
                                     , 2005.

  
 * * * * * 
  
 I hereby certify that the foregoing Plan was approved by the stockholders of
ECC Capital Corp. on                                 
    , 2004. 
  
 Executed on this
             day of
                                    , 2005. 
  

	
	
	 
	 Secretary, ECC Capital Corp.

	
	* * * * *


  
 I hereby certify
that the foregoing Plan was approved by the stockholders of Encore Capital Corp. on
                                 , 2005. 
  
 Executed on this
             day of
                                , 2005. 
  

	
	
	 
	 Secretary, Encore Capital Corp.



  

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