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EXHIBIT 10.11(A)
1998 Plan
Executive
---------
(retirement vesting/
from treasury with
complete tax gross up)
NORTH FORK BANCORPORATION, INC.
RESTRICTED STOCK AGREEMENT
DATE OF GRANT: _______________ NUMBER OF SHARES: _______________
AGREEMENT, dated the Date of Grant set forth above, between North Fork
Bancorporation, Inc., a Delaware corporation (the "Company"), and _____________
_______________________________ ("Grantee").
WHEREAS, Grantee is a valued and trusted key employee of the Company or one
of its subsidiaries; and
WHEREAS, the Company has elected to award to Grantee shares of "Restricted
Stock" pursuant to and in accordance with the Company's 1998 Stock Compensation
Plan (the "Plan"), in order that Grantee thereby may be induced to acquire and
maintain an ownership interest in the Common Stock of the Company ("Common
Stock") and to work for the success of the Company and its subsidiaries;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants contained herein, the parties hereto agree as follows:
1. RESTRICTED STOCK AWARD. The Company hereby grants and awards to Grantee,
subject to the conditions and restrictions set forth in this Agreement and in
the Plan, that number of shares of Common Stock identified above opposite the
heading "Number of Shares" (the "Shares"), which Shares will be "Restricted
Stock" within the meaning of Sections 2(u) and 9 of the Plan. As of the Date of
Grant, the Shares will be issued from the treasury of the Company in the name of
Grantee or a nominee of Grantee, provided, however, that a certificate or
certificates representing the Shares will not be delivered to Grantee until such
later date as is identified in Section 3 below.
2. RESTRICTIONS ON TRANSFER, FORFEITABILITY PRIOR TO VESTING.
(a) Except as otherwise specified by the committee of the Board of
Directors of the Company (the "Board") charged with administering the Plan from
time to time (the "Committee"), the Shares and rights relating thereto may not
be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of,
and Grantee agrees not to sell, assign, transfer, pledge, hypothecate or
otherwise dispose of such Shares or rights, prior to the Vesting Date (as
defined in Section 2(b)
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below). If Grantee ceases to be an Affiliate of the Company (as defined below)
prior to such Vesting Date, Grantee shall immediately forfeit any and all
unvested Shares together with all rights relating thereto, and the full
ownership of such Shares and rights shall revert to the Company, and Grantee
shall have no further rights under this Agreement. For purposes of the foregoing
sentence, Grantee shall be an "Affiliate of the Company" if Grantee is employed
by the Company or any of its subsidiaries or is serving the Company under a
Consulting Agreement (as defined in Section 2(b) below). A leave of absence
granted by the Company for reasons including, but not limited to, military
service or illness and transfers of employment between the Company and any of
its subsidiaries shall not be deemed a termination of employment of Grantee. On
the Vesting Date, the restrictions on transferability of the Shares set forth in
the first sentence of this Section 2(a) and the forfeitability of the Shares set
forth in the second sentence of this Section 2(a) shall lapse and expire, and
the Shares, if not previously forfeited, will become freely transferable,
subject only to such further limitations on transfer, if any, as may exist under
applicable securities laws or any other agreement then binding upon Grantee.
(b) The "Vesting Date" for all the Shares subject hereto shall be that date
when there occurs the first to occur of the following "Vesting Events":
(i) Grantee's attaining normal retirement age under the principal
retirement plan of the Company in effect at such time (the "Retirement
Plan"), or the "early retirement" of Grantee under the Retirement Plan
prior to attaining normal retirement age with the approval of the Board or
the Committee, which approval for early retirement required under this
subsection (b)(i) may be withheld for any reason or no reason (other than
unlawful discrimination) and shall be required in order for the date of
early retirement to constitute the Vesting Date hereunder even if such
approval is not required for early retirement under the Retirement Plan;
(ii) Grantee's death or Disability (as defined in Section 2(d) below);
or
(iii) the occurrence of a Change in Control of the Company (as defined
in Section 7 below);
provided, however, that if the first to occur of subsections (b)(i), (b)(ii) or
(b)(iii), above, is the Grantee's attaining normal retirement age or the
approved early retirement of Grantee in accordance with subsection (b)(i) above,
and if, as of the date of such occurrence ("Grantee's Retirement Date"), the
Board or the Committee determines, in the exercise of its reasonable judgment,
that it is highly probable that some or all of the taxable compensation income
that would be recognized by Grantee as a result of the vesting of the Shares as
of Grantee's Retirement Date would be non-deductible to the Company for federal
income tax purposes for the taxable year of the Company in which Grantee's
Retirement Date falls as a result of Section 162(m) of the Internal Revenue Code
of 1986, as amended (the "Code"), or any successor provision of federal income
tax law then in effect, then
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Grantee's attaining normal retirement age or the approved early retirement of
Grantee shall not constitute a Vesting Event under this Agreement and Grantee's
Retirement Date shall not be the Vesting Date of the Shares hereunder, but
rather on Grantee's Retirement Date, without any further action on the part of
Grantee or the Company, there shall automatically come into existence a
post-retirement consultancy agreement between Grantee and the Company
("Consulting Agreement"), which Consulting Agreement shall consist of such
mutual duties, obligations and undertakings, and shall continue for at least
such minimum period of time (the "Minimum Consulting Period"), as are set forth
in Exhibit A attached hereto. In the event such a Consulting Agreement comes
into effect, a Vesting Event within the meaning of subsection (b)(i) above shall
be the expiration of the Minimum Consulting Period under the Consulting
Agreement following Grantee's Retirement Date, and if such occurrence is the
first Vesting Event to occur, the Vesting Date shall be 11:59 p.m. on the last
day of the Minimum Consulting Period. To the extent that Grantee may have the
right under the Retirement Plan, separate and apart from this Agreement and
approved early retirement under subsection 2(b)(i), above, to elect early
retirement without otherwise obtaining approval of the Company, the Board or the
Committee, Grantee may request in advance that the Board or the Committee make a
preliminary determination as to whether Grantee's election of early retirement
as of any particular date would result in an automatic Consulting Agreement
hereunder, and if so requested the Board or the Committee shall exercise its
good faith judgment in making such a preliminary determination and communicating
the same to Grantee for his consideration before electing early retirement.
(c) Notwithstanding any other provision of this Agreement to the contrary,
the Committee may, in its sole discretion, at any time or from time to time and
with respect to any or all of the Shares, accelerate the Vesting Date of the
Shares, if in its judgment the performance of Grantee has warranted such action
or such action is in the best interest of the Company.
(d) For purposes of this Agreement, "Disability" shall have the meaning set
forth in Section 22(e)(3) of the Code, as determined by the Committee in good
faith, upon receipt of and in reliance on sufficient competent medical advice.
3. CERTIFICATES. One or more certificates representing the Shares will be
held by the Company or by its transfer agent, together with a stock power to be
executed by Grantee in favor of the Company, until the Vesting Date of the
Shares under Section 2(b), at which time a certificate or certificates
representing the Shares will be issued to Grantee.
4. DIVIDENDS AND VOTING. From and after the Date of Grant with respect to
the Shares and until any subsequent transfer or forfeiture thereof by Grantee,
Grantee shall be treated as the sole beneficial owner of such Shares, having all
rights of a common stockholder of the Company with respect thereto, except as
otherwise may be set forth in this Agreement. Specifically, and without
limitation, Grantee shall have the following rights:
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(a) Grantee shall be entitled to receive all dividends, payable in stock,
in cash or in kind, or other distributions, declared on or with respect to any
Shares as of a record date that occurs on or after the Date of Grant hereunder
and prior to any transfer or forfeiture of such Shares; provided that any such
dividends or distributions payable in equity securities of the Company or its
affiliates, including shares of Common Stock or any series of Preferred Stock of
the Company, or any warrants, options or rights to purchase any of the
foregoing, received by Grantee prior to the Vesting Date shall be received and
held by Grantee subject to the same restrictions on transfer and the same
conditions regarding forfeiture as apply to the Shares with respect to which
such dividends or distributions are paid; and
(b) Grantee shall be entitled to exercise all voting rights with respect to
the Shares, if the record date for the exercise of such voting rights occurs on
or after the Date of Grant hereunder and prior to any transfer or forfeiture of
such Shares.
In the event of forfeiture of any or all of the Shares by Grantee, Grantee shall
not be required to return to the Company any dividends or distributions
previously paid to Grantee with respect to such Shares, other than any dividends
or distributions payable in the form of equity securities as described in
subsection (a) of this Section 4, above.
5. DESIGNATION OF BENEFICIARY. Grantee may designate a person or persons to
receive, in the event of the death of Grantee, any Shares that may then vest.
Such designation must be made either in the space indicated at the end of this
Agreement or upon forms supplied by and delivered to the Company and may be
revoked in writing. If Grantee fails effectively to designate a beneficiary, the
estate of Grantee will be deemed to be the beneficiary of Grantee with respect
to any such Shares then vesting.
6. ADJUSTMENTS. In the event of any change in the outstanding shares of
Common Stock by reason of any stock dividend or stock split, recapitalization,
merger, sale, consolidation, spinoff, reorganization, combination, delivery of
stock rights or warrants, exchange of shares, or other similar corporate change,
an appropriate adjustment will be made by the Committee to the number of Shares
then subject to this Agreement, consistent with equitable considerations;
provided, however, that if the Company shall deliver additional shares of Common
Stock or other securities for consideration, no such adjustment shall be made.
No such adjustment may materially change the value of benefits available to
Grantee as a result of the prior award of the Shares.
7. CHANGE IN CONTROL. A Change in Control of the Company (as defined below)
constitutes a Vesting Event under Section 2(b) of this Agreement.
For purposes of this Agreement, a "Change in Control of the Company" shall
be deemed to have occurred as of the first date that any of the following
occurs:
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(a) Any individual, corporation (other than the Company), partnership,
trust, association, pool, syndicate, or any other entity or any group of persons
acting in concert (other than any of the foregoing that is controlled by or
under common control with the Company) becomes the "beneficial owner," as that
concept is defined in Rule 13d-3 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended, as the result
of any one or more transactions (including gifts and stock repurchases but
excluding transactions described in subsection (c), below), of securities of the
Company possessing twenty-five percent (25%) or more of the Voting Power (as
defined below) of the Company;
(b) Approved Directors constitute less than a majority of the entire Board,
with "Approved Directors" defined to mean the members of the Board as of the
Date of Grant hereunder and any individuals who subsequently become members of
the Board (i) having been elected by stockholders after being nominated or
approved by a majority of the Approved Directors on the Board prior to such
election, or (ii) having been appointed to the Board to fill a vacancy with the
approval of a majority of Approved Directors on the Board prior to such
appointment; or
(c) The Company has entered into a binding agreement for a Sale of the
Company (as defined below) and has received all required corporate, regulatory
and other approvals for consummating such Sale of the Company, and the
consummation thereof is expected by the Company to occur within fifteen (15)
days.
For purposes of subsection (c) of the preceding paragraph, "Sale of the
Company" shall mean:
(i) Any consolidation, merger or stock-for-stock-exchange involving
the Company or the securities of the Company in which the holders of voting
securities of the Company immediately prior to the consummation of such
transaction will own, as a group, immediately after such consummation,
voting securities of the Company (or, if the Company is not to survive such
transaction, voting securities of the Surviving Corporation, as defined
below) having less than fifty percent (50%) of the Voting Power of the
Company (or the Surviving Corporation), excluding any securities of the
Surviving Corporation owned by any members of such group prior to such
transaction and any securities to be received in such transaction by any
members of such group which represent disproportionate percentage increases
in their share holdings vis-a-vis the other members of such group; or
(ii) Any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions), of all, or substantially all, of the
assets of the Company to a party which is not controlled by or under common
control with the Company prior to such transaction or series of
transactions.
For purposes of the preceding sentence, the "Surviving Corporation" in any
transaction in which the
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Company does not survive shall mean the corporation that issues securities
and/or other consideration to the stockholders of the Company in connection with
such transaction, or, if such issuing corporation is controlled directly or
indirectly by another corporation, the ultimate controlling corporation of such
issuing corporation.
For purposes of this Section 7, the "Voting Power" of a corporation at a
given time shall mean the total number of votes entitled to be cast generally in
an election of directors of such corporation at such time by all holders of
outstanding equity securities of such corporation.
8. EFFECT ON EMPLOYMENT. The award of Shares and related rights to Grantee
provided for herein shall not, in and of itself, confer upon Grantee any right
to continue in the employment of the Company or its subsidiaries or to continue
to perform services therefor and shall not in any way interfere with any right
of the Company or its subsidiaries to terminate the services of Grantee as an
employee or officer at any time.
9. TAX PAYMENTS. The Company shall pay on behalf of Grantee any and all
taxes, federal, state or local, payable by Grantee on or as a result of the
vesting of the Shares awarded hereunder, including any taxes or additional taxes
payable by Grantee on or as a result of amounts received by or on behalf of
Grantee under any other agreement, contract, plan or arrangement with the
Company or any of its subsidiaries which would not have been payable absent such
vesting. Taxes payable hereunder on behalf of Grantee shall include, without
limitation, all income and excise taxes, including excise taxes under Section
4999(a) of the Code, and also shall include all income and excise taxes payable
by Grantee as a result of payments of taxes by the Company on behalf of Grantee
under this Section 9.
10. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware.
11. EFFECT OF PLAN. Grantee acknowledges that in the event of any
inconsistency between the provisions of this Agreement and the Plan, the
provisions of the Plan will control.
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IN WITNESS WHEREOF, the parties hereto have, personally or by a duly
authorized representative, executed this Agreement as of the Date of Grant first
above written.
NORTH FORK BANCORPORATION, INC.
By: _________________________________
(Authorized Officer)
"GRANTEE"
________________________________________
DESIGNATION OF BENEFICIARY
_______________________________
(Relationship to Grantee)
________________________________________
(Name of Beneficiary)
________________________________________
(Xxxxxx Xxxxxxx)
________________________________________
(City, State, Zip Code)
________________________________________
(Social Security Number)
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Exhibit A
Key Terms of Consulting Agreement
The Consulting Agreement between Grantee and the Company referred to in
Section 2(b) of the Restricted Stock Agreement to which this Exhibit A is
attached (the "Agreement") shall contain the following key terms and provisions:
1. Grantee will perform, and the Company will expect Grantee to perform,
commencing on Grantee's Retirement Date and continuing until termination of the
Consulting Agreement, personal consulting services for the Company of a
substantial nature and involving duties and tasks of the sort typical and
suitable for retiring executives such as Grantee to perform under such
continuing consulting arrangements. The identification of specific duties and
tasks to be performed by Grantee will be within the overall control and
discretion of the Board, provided that in the daily performance of his tasks
Grantee will act as an independent contractor.
2. In return for his services as consultant, Grantee will receive from the
Company for the duration of the Consulting Agreement a monthly amount, payable
in cash, equal to one-eighteenth of Grantee's final annual base salary as an
executive officer of the Company. Grantee shall be eligible for such other
consideration, including participation in such compensatory plans of the Company
that do not limit participation therein to employees, as the Board or the
Committee may deem appropriate.
3. During the term of the Consulting Agreement, Grantee shall not at any
time be an "executive officer" of the Company within the meaning of Item 402 of
Regulation S-K promulgated by the Securities and Exchange Commission, or any
successor regulation in effect from time to time.
4. The parties intend that the Consulting Agreement shall continue for at
least a minimum period of time after Grantee's Retirement Date extending from
such date until (x) the last day of the first calendar month in the fiscal year
of the Company following the fiscal year of the Company in which Grantee's
Retirement Date occurs, or (y) the 90th day after Grantee's Retirement Date,
whichever is later (such minimum duration, the "Minimum Consulting Period"). The
Consulting Agreement will terminate on the last day of the Minimum Consulting
Period, unless terminated before such date or extended beyond such date pursuant
to the provisions of Section 5 of this Exhibit A.
5. The Company may terminate the Consulting Agreement before the last day
of the Minimum Consulting Period if and only if the Board determines by a
majority of the entire Board that Grantee has not adequately performed his
assigned consulting tasks and duties thereunder, after notice and a reasonable
opportunity to correct such non-performance. At any time prior to the last
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day of the Minimum Consulting Period, the Company may advise Grantee that it is
willing to extend the Consulting Agreement beyond such last day, for a definite
or indefinite period of time beyond such last day, and Grantee may accept such
offer of extension, in which event the Consulting Agreement shall continue until
such later date as the Company may then or subsequently designate as the final
termination date. No such offer and acceptance of an extension of the Consulting
Agreement, however, will affect the date of the Vesting Event under subsection
(i) of Section 2(b) of the Agreement, which date shall be the last day of the
Minimum Consulting Period if a Consulting Agreement described herein is entered
into and becomes effective under Section 2(b) of the Agreement. Nothing herein
shall preclude Grantee from discontinuing his services to the Company under the
Consulting Agreement at any time, with or without prior notice.
6. The Consulting Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware. It shall be binding upon and
shall inure to the benefit of the respective parties' heirs, successors and
assigns. Capitalized terms used herein and not otherwise defined herein shall
have the meaning given such terms in the Agreement.
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