NEW CENTURY FINANCIAL CORPORATION 2004 PERFORMANCE INCENTIVE PLAN DIRECTOR RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.11
NEW CENTURY FINANCIAL CORPORATION
2004 PERFORMANCE INCENTIVE PLAN
DIRECTOR RESTRICTED STOCK AWARD AGREEMENT
2004 PERFORMANCE INCENTIVE PLAN
DIRECTOR RESTRICTED STOCK AWARD AGREEMENT
THIS DIRECTOR RESTRICTED STOCK AWARD AGREEMENT (this “Award Agreement”) is dated as of
(the “Award Date”) by and between New Century Financial Corporation, a Maryland
corporation (the “Corporation”), and (the “Director”).
W I T N E S S E T H
WHEREAS, pursuant to the New Century Financial Corporation 2004 Performance Incentive Plan
(the “Plan”), the Corporation hereby grants to the Director, effective as of the date hereof, a
restricted stock award (the “Award”), upon the terms and conditions set forth herein and in the
Plan.
NOW THEREFORE, in consideration of services rendered and to be rendered by the Director, and
the mutual promises made herein and the mutual benefits to be derived therefrom, the parties agree
as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined herein
shall have the meaning assigned to such terms in the Plan.
2. Grant. Subject to the terms of this Award Agreement, the Corporation hereby grants
to the Director an Award with respect to an aggregate of restricted shares of Common Stock
of the Corporation (the “Restricted Stock”). The Corporation acknowledges that the consideration
for the Restricted Stock shall be the services rendered to the Corporation by the Director prior to
the applicable vesting date, the fair value of which is not less than the par value per share of
the Corporation’s Common Stock.
3. Vesting. Subject to Section 8 below, the Award shall vest, and restrictions (other
than those set forth in Section 8.1 of the Plan) shall lapse, with respect to one-third of the
total number of shares of Restricted Stock (subject to adjustment under Section 7.1 of the Plan) on
each of the first, second and third anniversaries of the Award Date.
4. Continuance of Services. The Director agrees to serve as a member of the Board in
accordance with the Corporation’s Articles of Amendment and Restatement, bylaws, and applicable
law. The vesting schedule requires continued service through each applicable vesting date as a
condition to the vesting of the applicable installment of the Award and the rights and benefits
under this Award Agreement. Service for only a portion of the vesting period, even if a
substantial portion, will not entitle the Director to any proportionate vesting or avoid or
mitigate a termination of rights and benefits upon or following a termination of services as
provided in Section 8 below or under the Plan. Nothing contained in this Award Agreement or the
Plan constitutes a continued service commitment by the Corporation or interferes with the right of
the Corporation to increase or decrease the compensation of the Director from the rate in existence
at any time.
5. Dividend and Voting Rights. After the Award Date, the Director shall be entitled
to cash dividends and voting rights with respect to the shares of Restricted Stock subject to the
Award even though such shares are not vested, provided that such rights shall terminate immediately
as to any shares of Restricted Stock that are forfeited pursuant to Section 8 below.
6. Restrictions on Transfer. Prior to the time that they have become vested pursuant
to Section 3 hereof or Section 7 of the Plan, neither the Restricted Stock, nor any interest
therein, amount payable in respect thereof, or Restricted Property (as defined in Section 9 hereof)
may be sold, assigned, transferred, pledged or otherwise disposed of, alienated or encumbered,
either voluntarily or involuntarily. The transfer restrictions in the preceding sentence shall not
apply to transfers to the Corporation.
7. Stock Issuance.
(a) Book Entry Form. The Corporation shall issue the shares of Restricted Stock
subject to the Award in book entry form, registered in the name of the Director with notations
regarding the applicable restrictions on transfer imposed under this Award Agreement; provided,
however, that the Corporation may, in its discretion, elect to issue such shares in certificate
form as provided in Section 7(b) below.
(b) Certificates to be Held by Corporation; Legend. Any certificates representing
shares of Restricted Stock that may be delivered to the Director by the Corporation prior to
vesting shall be redelivered to the Corporation to be held by the Corporation until the
restrictions on such shares shall have lapsed and the shares shall thereby have become vested or
the shares represented thereby have been forfeited hereunder. Such certificates shall bear the
following legend and any other legends the Corporation may determine to be necessary or advisable
to comply with all applicable laws, rules and regulations:
“The ownership of this certificate and the shares of stock evidenced hereby and any
interest therein are subject to substantial restrictions on transfer under an
Agreement entered into between the registered owner and New Century Financial
Corporation. A copy of such Agreement is on file in the office of the Secretary of
New Century Financial Corporation.”
(c) Delivery of Certificates Upon Vesting. Promptly after the vesting of any shares
of Restricted Stock pursuant to Section 3 hereof or Section 7 of the Plan, the Corporation shall,
as applicable, either remove the notations on any shares of Restricted Stock issued in book entry
form which have vested or deliver to the Director a certificate or certificates evidencing the
number of shares of Restricted Stock which have vested (or, in either case, such lesser number of
shares as may be permitted pursuant to Section 8.5 of the Plan). The Director (or the beneficiary
or personal representative of the Director in the event of the Director’s death or incapacity, as
the case may be) shall deliver to the Corporation any representations or other documents or
assurances as the Corporation or its counsel may determine to be necessary or advisable in order to
ensure compliance with all applicable laws, rules and regulations with respect to the grant of the
Award and the delivery of shares of Common Stock in respect thereof. The shares so delivered shall
no longer be restricted shares hereunder.
(d) Stock Power; Power of Attorney. If the Corporation elects to issue share
certificates to the Director, the Director shall be required to execute a stock power, in a form
prescribed by the Corporation, with respect to such shares. The Corporation shall not deliver any
share certificates in accordance with this Award Agreement unless and until the Corporation shall
have received such stock power executed by such Director. The Director, by acceptance of the
Award, shall be deemed to appoint, and does so appoint by execution of this Award Agreement, the
Corporation and each of its authorized representatives as the Director’s attorney(s)-in-fact to
effect any transfer of unvested forfeited shares (or shares otherwise reacquired by the Corporation
hereunder) to the Corporation as may be required pursuant to the Plan or this Award Agreement and
to execute such documents as the Corporation or such representatives deem necessary or advisable in
connection with any such transfer.
8. Effect of Termination of Director’s Services.
(a) General. Subject to earlier vesting as provided in Section 7 of the Plan and
except as expressly provided in this Section 8, if the Director ceases to be a member of the Board
for any reason, the Director’s shares of Restricted Stock (and related Restricted Property) shall
be forfeited to the Corporation to the extent such shares have not become vested upon the
Director’s Severance Date (as defined below). Upon the occurrence of any forfeiture of shares of
Restricted Stock hereunder, such unvested, forfeited shares and related Restricted Property shall
be automatically transferred to the Corporation, without any other action by the Director (or the
Director’s beneficiary or personal representative, in the event of the Director’s death or
disability, as applicable). No consideration shall be paid by the Corporation with respect to such
transfer. The Corporation may exercise its powers under Section 7(d) hereof and take any other
action necessary or advisable to evidence such transfer. The Director (or the Director’s
beneficiary or personal representative, in the event of the Director’s death or disability, as
applicable) shall deliver any additional documents of transfer that the Corporation may request to
confirm the transfer of such unvested, forfeited shares and related Restricted Property to the
Corporation.
(b) Death, Disability or Retirement. If the Director ceases to be a member of the
Board due to death, Disability or Retirement, the Director’s shares of Restricted Stock (and
related Restricted Property), to the extent not previously vested, shall automatically become fully
vested as of the Director’s Severance Date. For purposes of the Award, “Disability” means a
permanent and total disability (within the meaning of Section 22(e)(3) of the Code or as otherwise
determined by the Administrator). For purposes of the Award, “Retirement” means the cessation of
the Director’s services as a member of the Board at any time after the Director has attained age
66.
Notwithstanding any other provision of this Section 8, the Director’s “Severance Date” shall
be the last day that the Director is a member of the Board; provided, however, that if the Director
ceases to be a member of the Board (regardless of the reason) but, immediately thereafter, is
employed by the Corporation or one of its Subsidiaries, the Director’s Severance Date shall not be
the date the Director ceases to be a member of the Board but instead shall be the last day that the
Director is either or both (1) a member of the Board and/or (2) employed by the Corporation or a
Subsidiary.
9. Adjustments Upon Specified Events. Upon the occurrence of certain events relating
to the Corporation’s stock contemplated by Section 7.1 of the Plan, the Administrator shall make
adjustments if appropriate in the number and kind of securities that may become vested under an
Award. If any adjustment shall be made under Section 7.1 of the Plan or an event described in
Section 7.3 of the Plan shall occur and the shares of Restricted Stock are not fully vested upon
such event or prior thereto, the restrictions applicable to such shares of Restricted Stock shall
continue in effect with respect to any consideration or other securities (the “Restricted Property”
and, for the purposes of this Agreement, “Restricted Stock” shall include “Restricted Property”,
unless the context otherwise requires) received in respect of such Restricted Stock. Such
Restricted Property shall vest at such times and in such proportion as the shares of Restricted
Stock to which the Restricted Property is attributable vest, or would have vested pursuant to the
terms hereof if such shares of Restricted Stock had remained outstanding. To the extent that the
Restricted Property includes any cash (other than regular cash dividends provided for in Section 5
hereof), such cash shall be invested, pursuant to policies established by the Administrator, in
interest bearing, FDIC-insured (subject to applicable insurance limits) deposits of a depository
institution selected by the Administrator, the earnings on which shall be added to and become a
part of the Restricted Property.
10. Tax Withholding. The Corporation shall be entitled to require a cash payment by
or on behalf of the Director and/or to deduct from other compensation payable to the Director any
sums required by federal, state or local tax law to be withheld with respect to the vesting of any
Restricted Stock or other tax withholding event with respect to the Award. Alternatively, the
Director or other person in whom the Restricted Stock vests may irrevocably elect, in such manner
and at such time or times prior to any applicable tax date as may be permitted or required under
Section 8.5 of the Plan and rules established by the Administrator, to have the Corporation
withhold and reacquire shares of Restricted Stock at their fair market value at the time of vesting
to satisfy any withholding obligations of the Corporation or its Subsidiaries with respect to such
vesting. Any election to have shares so held back and reacquired shall be subject to such rules
and procedures, which may include prior approval of the Administrator, as the Administrator may
impose, and shall not be available if the Director makes or has made an election pursuant to
Section 83(b) of the Code with respect to such Award or if withholding obligations arise other than
in connection with the vesting of such shares.
11. Notices. Any notice to be given under the terms of this Award Agreement shall be
in writing and addressed to the Corporation at its principal office to the attention of the
Secretary, and to the Director at the Director’s last address reflected on the Corporation’s
payroll records, or at such other address as either party may hereafter designate in writing to the
other. Any notice shall be delivered in person or shall be enclosed in a properly sealed envelope,
addressed as aforesaid, registered or certified, and deposited (postage and registry or
certification fee prepaid) in a post office or branch post office regularly maintained by the
United States Government. Any such notice shall be given only when received, but if the Director
is no longer a member of the Board, shall be deemed to have been duly given five (5) business days
after the date mailed in accordance with the foregoing provisions of this Section 11.
12. Plan. The Award and all rights of the Director under this Award Agreement are
subject to all of the terms and conditions of the provisions of the Plan, incorporated herein by
reference. In the event of a conflict or inconsistency between the terms and conditions of this
Award Agreement and of the Plan, the terms and conditions of the Plan shall govern. The
Director agrees to be bound by the terms of the Plan and this Award Agreement. The Director
acknowledges having read and understanding the Plan, the Prospectus for the Plan, and this Award
Agreement. Unless otherwise expressly provided in other sections of this Award Agreement,
provisions of the Plan that confer discretionary authority on the Board or the Administrator do not
(and shall not be deemed to) create any rights in the Director unless such rights are expressly set
forth herein or are otherwise in the sole discretion of the Board or the Administrator so conferred
by appropriate action of the Board or the Administrator under the Plan after the date
hereof.
13. Entire Agreement. This Award Agreement and the Plan together constitute the
entire agreement and supersede all prior understandings and agreements, written or oral, of the
parties hereto with respect to the subject matter hereof. The Plan and this Award Agreement may be
amended pursuant to Section 8.6 of the Plan. Such amendment must be in writing and signed by the
Corporation. The Corporation may, however, unilaterally waive any provision hereof in writing to
the extent such waiver does not adversely affect the interests of the Director hereunder, but no
such waiver shall operate as or be construed to be a subsequent waiver of the same provision or a
waiver of any other provision hereof.
14. Counterparts. This Award Agreement may be executed simultaneously in any number
of counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
15. Section Headings. The section headings of this Award Agreement are for
convenience of reference only and shall not be deemed to alter or affect any provision hereof.
16. Governing Law. This Award Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Maryland without regard to conflict of law
principles thereunder.
IN WITNESS WHEREOF, the Corporation has caused this Award Agreement to be executed on its
behalf by a duly authorized officer and the Director has hereunto set his or her hand as of the
date and year first above written.
| NEW CENTURY FINANCIAL CORPORATION, a Maryland corporation |
DIRECTOR | |||||||
By: |
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| Name: | Xxxx Xxxxxxx | |||||||
| Title: | Vice Chairman, President and Chief Operating Officer |
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