DORAL FINANCIAL CORPORATION 2008 STOCK INCENTIVE PLAN Restricted Stock Award Agreement
EXHIBIT 10.1
DORAL FINANCIAL CORPORATION
2008 STOCK INCENTIVE PLAN
2008 STOCK INCENTIVE PLAN
You (the “Participant”) are hereby awarded shares (“Shares”) of restricted
stock (“Restricted Stock”) subject to the terms and conditions set forth in this Restricted
Stock Award Agreement (this “Award Agreement” or “Share-Based Award”) and in the
Doral Financial Corporation 2008 Stock Incentive Plan (“Plan”). A copy of the Plan is
attached as Exhibit A. You should carefully review these documents and consult with your
personal financial advisor, in order to fully understand the implications of this Award Agreement,
including your tax consequences.
By executing this Award Agreement, you agree to be bound by all of the Plan’s terms and
conditions as if they had been set out verbatim below. In addition, you recognize and agree that
all determinations, interpretations, or other actions respecting the Plan and this Award Agreement
will be made by the Board of Directors, and shall be final, conclusive and binding on all parties,
including you and your heirs and representatives. Capitalized terms are defined in the Plan or in
this Award Agreement.
1. Specific Terms. Your Restricted Stock have the following terms:
Name of Participant
|
[Name] | |
Number of Shares Subject to
Share- Based Award |
25,000 | |
Grant Date
|
[•], 2011 | |
Vesting
|
50% of the Number of Shares stated above will vest twelve (12) calendar months after the Grant Date, and the remaining 50% will vest twenty-four (24) calendar months after the Grant Date, provided that you remain throughout the vesting term a member of the Board of Directors. In the event of your death during the vesting term, vesting shall accelerate to 100%. | |
| In addition, 100% of the Number of Shares stated above shall vest upon the occurrence of any Change of Control whether or not your membership on the Board of Directors of the Company terminates concurrently therewith. For purposes of this Award Agreement, the definition of Change of Control shall have the meaning ascribed to it in Schedule A attached hereto and incorporated herewith. | ||
| All Shares subject to this Award Agreement shall be subject to adjustment as provided in the Plan. |
2. Termination of Status as a Director. Prior to a Change in Control this Award Agreement
shall be canceled and become automatically null and void immediately after you are no longer a
member of the Board of Directors for any reason other than your death, but only to the extent you
have not become vested, pursuant to the foregoing terms, on or at the time your membership on the
Board of Directors ends.
3. Voting Rights. As the owner of record of any Restricted Stock you qualify to receive
pursuant to this Award Agreement, you will be entitled to vote such Restricted Stock, provided you
hold them on the particular record date for determining shareholders of record entitled to vote.
4. Dividends. You will be entitled to receive any cash dividends that are paid with
respect to your Shares of Restricted Stock between the date of this Award Agreement and your
receipt of Shares pursuant to a vesting event. With respect to any dividends that are paid in
shares with respect to your Shares of Restricted Stock between the date of this Award Agreement and
your receipt of Shares pursuant to a vesting event, such shares shall be issued to you as
additional Shares of Restricted Stock subject to the same terms, conditions and vesting
restrictions contained in Section 1 as the Restricted Stock with respect to which the dividend is
paid. To the extent that either your membership on the Board of Directors ends prior to a Change
in Control for any reason other than your death or before vesting of the Restricted Stock subject
to this Award Agreement, you will forfeit all Share-based dividends (but not cash dividends)
attributable to all such non-vested Shares of Restricted Stock.
5. Issuance and Vesting of Restricted Stock. The Company will hold all Shares of
Restricted Stock in escrow, in book entry form, until vesting occurs. You will be reflected as the
owner of record on the Company’s books and records of any Shares of Restricted Stock credited to
you pursuant to this Award Agreement. If you forfeit any Shares of Restricted Stock, they will be
transferred back to the Company. If the Shares of Restricted Stock vest, upon satisfaction of any
tax withholding requirements, your Shares of Restricted Stock will be reflected on the Company’s
books and records as vested Shares.
6. Section 83(b) Election Notice. If you make an election under Section 83(b) of the
Internal Revenue Code of 1986 (the “Code”), as amended, with respect to the Shares
underlying your Restricted Stock (a “Section 83(b) election”), you agree to provide a copy
of such election to the Company within 10 days after filing that election with the Internal Revenue
Service. Exhibit B contains a suggested form of Section 83(b) election.
7. Designation of Beneficiary. Notwithstanding anything to the contrary contained herein
or in the Plan, following the execution of this Award Agreement, you may expressly designate a
death beneficiary (the “Beneficiary”) to your interest, if any, in this Share-Based Award
and any underlying Shares. You shall designate the Beneficiary by completing and executing a
designation of beneficiary agreement substantially in the form attached hereto as Exhibit C
(the “Designation of Death Beneficiary”) and delivering an executed copy of the Designation
of
Beneficiary to the Company. To the extent you do not duly designate a beneficiary who survives
you, your estate will automatically be your beneficiary.
8. Restrictions on Transfer of Award. Your rights under this Award Agreement may not be
sold, pledged or otherwise transferred without the prior written consent of the Committee.
9. Notices. Any notice or communication required or permitted by any provision of this
Award Agreement to be given to you shall be in writing and shall be delivered electronically,
personally, or sent by certified mail, return receipt requested, addressed to you at the last
address that the Company had for you on its records. Each party may, from time to time, by notice
to the other party hereto, specify a new address for delivery of notices relating to this Award
Agreement. Any such notice shall be deemed to be given as of the date such notice is personally or
electronically delivered or properly mailed.
10. Binding Effect. Except as otherwise provided in this Award Agreement or in the Plan,
every covenant, term and provision of this Award Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legatees, legal representatives,
successors, transferees and assigns.
11. Modifications. This Award Agreement may be modified or amended at any time, in
accordance with Section 4.2 of the Plan and provided that you must consent in writing to any
modification that adversely and materially affects any rights or obligations under this Award
Agreement.
12. Headings. Section and other headings contained in this Award Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope or
intent of this Award Agreement or any provision hereof.
13. Severability. Every provision of this Award Agreement and of the Plan is intended to
be severable. If any term hereof is illegal or invalid for any reason, such illegality or
invalidity shall not affect the validity or legality of the remaining terms of this Award
Agreement.
14. Counterparts. This Award Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
15. Plan Governs. By signing this Award Agreement, you acknowledge that you have received
a copy of the Plan and that your Award Agreement is subject to all the provisions contained in the
Plan, the provisions of which are made a part of this Award Agreement and your Award is subject to
all interpretations, amendments, rules and regulations which from time to time may be promulgated
and adopted pursuant to the Plan. In the event of a conflict between the provisions of this Award
Agreement and those of the Plan, the provisions of the Plan shall control. This Award Agreement is
not an Option Contract as defined in the Plan but is
a Share-Based Award and accordingly provisions applicable to Option Contracts only in the Plan such
as Section 3(b) do not apply to this Share-Based Award.
16. Not a Contract of Employment. By executing this Award Agreement you acknowledge and
agree that (i) any person who is terminated before full vesting of an award, such as the one
granted to you by this Award Agreement, could claim that he or she was terminated to preclude
vesting; (ii) you promise never to make such a claim; (iii) nothing in this Award Agreement or the
Plan confers on you any right to continue as a member of the Board of Directors or in any other
relationship with the Company, nor shall it affect in any way your right or the Company’s
stockholders’ right to terminate your membership on the Board of Directors or any other
relationship you may have with the Company at any time for any or no reason; and (iv) the Company
would not have granted this Award Agreement to you but for these acknowledgements and agreements.
17. Securities Law Restrictions. Regardless of whether the offering and sale of Shares
under the Plan have been registered under the Securities Act of 1933, as amended (the
“Securities Act”), or have been registered or qualified under the securities laws of any
state, the Company at its discretion may impose restrictions upon the sale, pledge or other
transfer of such Shares (including the placement of appropriate legends on stock certificates or
the imposition of stop-transfer instructions) if, in the judgment of the Company, such restrictions
are necessary or desirable in order to achieve compliance with the Securities Act or the securities
laws of any state or any other law or to enforce the intent of this Award Agreement.
18. Governing Law. The laws of the Commonwealth of Puerto Rico shall govern the validity
of this Award Agreement, the construction of its terms, and the interpretation of the rights and
duties of the parties hereto.
BY YOUR SIGNATURE BELOW, along with the signature of the Company’s representative, you and the
Company agree that the Restricted Stock are awarded under and governed by the terms and conditions
of this Award Agreement and the Plan. In addition, you hereby agree to join and become a party to
and be bound by the Shareholders Agreement.
| DORAL FINANCIAL CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| PARTICIPANT The undersigned Participant hereby accepts the terms of this Award Agreement and the Plan and joins the Shareholders Agreement. |
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| By: | ||||
| Name of Participant: | ||||
EXHIBIT B
DORAL FINANCIAL CORPORATION
2008 STOCK INCENTIVE PLAN
2008 STOCK INCENTIVE PLAN
Section 83(b) Election Form
Attached is an Internal Revenue Code Section 83(b) Election Form. IF YOU WISH TO MAKE A SECTION
83(b) ELECTION, YOU MUST DO SO WITHIN 30 DAYS AFTER THE DATE THE RESTRICTED SHARES COVERED BY THE
ELECTION WERE TRANSFERRED TO YOU. In order to make the election, you must completely fill out the
attached form and file one copy with the Internal Revenue Service office where you file your tax
return. In addition, one copy of the statement also must be submitted with your income tax return
for the taxable year in which you make this election. Finally, you also must submit a copy of the
election form to the Company within 10 days after filing that election with the Internal Revenue
Service. A Section 83(b) election normally cannot be revoked.
DORAL FINANCIAL CORPORATION
DORAL FINANCIAL CORPORATION 2008 STOCK INCENTIVE PLAN
__________________________
DORAL FINANCIAL CORPORATION 2008 STOCK INCENTIVE PLAN
__________________________
Election to Include Value of Restricted Stock in Gross Income
in Year of Transfer Under Internal Revenue Code Section 83(b)
___________________________
in Year of Transfer Under Internal Revenue Code Section 83(b)
___________________________
Pursuant to Section 83(b) of the Internal Revenue Code, I hereby elect within 30 days after
receiving the property described herein to be taxed immediately on its value specified in item 5
below.
| 1. | My General Information: |
Name: |
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Address: |
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S.S.N. |
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or T.I.N.: |
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| 2. | Description of the property with respect to which I am making this election: | |
| ____________________ shares of ___________ stock of Doral Financial Corporation (the “Restricted Stock”). |
| 3. | The Restricted Stock were transferred to me on ______________ ___, 20_. This election relates to the 20____ calendar taxable year. |
4. The Restricted Stock are subject to the following restrictions:
| The Restricted Stock are forfeitable until they are earned in accordance with Section 1 the Restricted Share Award Agreement (“Award Agreement”) made under the Doral Financial Corporation 2008 Stock Incentive Plan. The Restricted Stock generally are not transferable until my interest becomes vested and nonforfeitable, pursuant to the Award Agreement and the Plan. |
| 5. | Fair market value: |
| The fair market value at the time of transfer (determined without regard to any restrictions other than restrictions which by their terms never will lapse) of the Restricted Stock with respect to which I am making this election is $_____ per share. |
| 6. | Amount paid for Restricted Stock: |
| The amount I paid for the Restricted Stock is $____ per share. |
| 7. | Furnishing statement to employer: |
| A copy of this statement has been furnished to my employer, _____________. If the transferor of the Restricted Stock is not my employer, that entity also has been furnished with a copy of this statement. |
| 8. | Award Agreement or Plan not affected: |
| Nothing contained herein shall be held to change any of the terms or conditions of the Award Agreement or the Plan. |
Dated: ____________ __, 20_.
| Taxpayer | ||||
EXHIBIT C
DORAL FINANCIAL CORPORATION
2008 STOCK INCENTIVE PLAN
2008 STOCK INCENTIVE PLAN
Designation of Death Beneficiary
In connection with the Awards designated below that I have received pursuant to the Doral
Financial Corporation 2008 Stock Incentive Plan, I hereby designate the person specified below as
the beneficiary upon my death of my interest in such Awards. This designation shall remain in
effect until revoked in writing by me.
Name of Beneficiary: |
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Address: |
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Social Security No.: |
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This beneficiary designation relates to any and all of my rights under the following Award or
Awards:
| o | any Award that I have received or ever receive under the Plan. | ||
| o | the Restricted Stock Award that I received pursuant to an award agreement dated _________ __, ____ between myself and the Company. |
I understand that this designation operates to entitle the above named beneficiary, in the
event of my death, to any and all of my rights under the Award(s) designated above from the date
this form is delivered to the Company until such date as this designation is revoked in writing by
me, including by delivery to the Company of a written designation of beneficiary executed by me on
a later date.
| Date: | ||||
| By: | ||||
| Name of Participant | ||||
Sworn to before me this
____day of ____________, 20__
___________________________
Notary Public
County of _________________
State of __________________
____day of ____________, 20__
___________________________
Notary Public
County of _________________
State of __________________
Schedule A
“Change in Control” will be deemed to have taken place if:
(i) any “person” (as such term is used in Section 3(a)(9) and Section 13(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) other than the Company or
any employee benefit plan of the Company or any of it subsidiaries, (x) becomes the
“beneficial owner” (as such term is used in Rule 13d-3 promulgated under the Exchange Act)
of Company securities having more than 50% of the combined voting power of the then
outstanding securities of the Company that may be cast for the election of directors of the
Company (other than as a result of the issuance of securities initiated by the Company in
the ordinary course of business) (“Voting Securities”) or (y) becomes the “beneficial owner”
of the Company of 25% or more of the Voting Securities of the Company and such person has
the power to appoint or elect a majority of the member of the Board; or
(ii) persons who, as of the effective date of this Award Agreement, constitute the Board
(the “Incumbent Directors”) cease for any reason, including without limitation, as a result
of a tender offer, proxy contest, merger or similar transaction, to constitute at least a
majority thereof, provided that any person becoming a director of the Company subsequent to
the effective date of this Award Agreement shall be considered an Incumbent Director if such
person’s election or nomination for election was approved by a vote of at least 50% of the
Incumbent Directors; but provided further, that any such person whose initial
assumption of office is in connection with an actual or threatened election contest relating
to the election of members of the Board or other actual or threatened solicitation of
proxies or consents by or on behalf of a “person” (as defined in Section 13(d) and 14(d) of
the Exchange Act) other than the Board, including by reason of agreement intended to avoid
or settle any such actual or threatened contest or solicitation, shall not be considered an
Incumbent Director; or
(iii) as the result of, or in connection with, any cash tender or exchange offer, merger or
other business combination, or any combination of the foregoing transactions, the holders of
all the Company’s securities entitled to vote generally in the election of directors of the
Company immediately prior to such transaction constitute, following such transaction, less
than a majority of the combined voting power of the then-outstanding securities of the
surviving entity (or in the event each entity survives, the ultimate parent entity resulting
from such transaction) (the “Surviving Entity”) entitled to vote generally in the election
to elect directors of the Surviving Entity after such transaction.
