NEW YORK MORTGAGE TRUST, INC. FORM OF RESTRICTED STOCK AWARD AGREEMENT
Exhibit
10.2
NEW
YORK MORTGAGE TRUST, INC.
FORM OF RESTRICTED STOCK
AWARD AGREEMENT
This
RESTRICTED STOCK AGREEMENT, is entered into as of July __, 2009 (the
"Agreement"), by and between, New York Mortgage Trust, Inc., a Maryland
corporation (the "Company"), and _______________ (the "Recipient"). Capitalized
terms used but not otherwise defined in this Agreement shall have the respective
meanings set forth in the New York Mortgage Trust, Inc. 2005 Stock Incentive
Plan (the "Plan").
WHEREAS,
on July __, 2009 (the “Date of Grant”), the Compensation Committee (the
"Committee") of the Board of Directors (the "Board") of the Company granted the
Recipient a Restricted Stock Award, pursuant to which the Recipient shall
receive shares of the Company's Common Stock, par value $.01 per share ("Common
Stock"), pursuant to and subject to the terms and conditions of the
Plan.
NOW,
THEREFORE, in consideration of the Recipient's services to the Company and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Number of Shares;
Restrictions. The Company hereby grants the Recipient a Restricted Stock
Award (the "Stock Award") of ________ shares of restricted Common Stock (the
"Restricted Shares") pursuant to the terms of this Agreement and the provisions
of the Plan. The Restricted Shares may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of and shall be subject
to a risk of forfeiture until the lapse of the Restricted Period, as defined in
Section 2 below.
2. Lapse of Restrictions;
Restricted Period. The restrictions set forth in Section 1
above shall lapse and a portion of the Restricted Shares shall become
unrestricted and freely tradable only as follows: (i) one-third of the
Restricted Shares shall become nonforfeitable and transferable on the date
hereof, (ii) one-third of the Restricted Shares shall become unrestricted and
freely tradable on July __, 2010 and (iii) one-third of the Restricted Shares
shall become unrestricted and freely tradable on July __, 2011 (collectively,
the “Restricted Period”).
3. Change of
Control. The provisions of the Plan applicable to a Change of
Control shall apply to the Restricted Shares, and in the event of a Change of
Control, the Committee may take such actions as it deems appropriate pursuant to
the Plan. Notwithstanding the preceding sentence, if a Change of
Control occurs, all of the Restricted Shares shall become immediately
unrestricted and freely transferable by the Recipient on the date of the Change
of Control.
4. Rights of
Stockholder. From and after the Date of Grant and for so long
as the Restricted Shares are held by or for the benefit of the Recipient, the
Recipient shall have all the rights of a stockholder of the Company with respect
to the Restricted Shares, including but not limited to the right to receive
dividends and the right to vote such Restricted Shares. Dividends
paid on Restricted Shares shall be paid at the dividend payment date for the
Common Stock in cash or shares of Common Stock. Stock distributed in
connection with a Common Stock split or Common Stock dividend shall be subject
to restrictions and a risk of forfeiture to the same extent as the Restricted
Shares with respect to which such Common Stock has been
distributed.
5. Termination of Membership on
Board of Trustees. In the event that Recipient ceases to be a
member of the Board of Directors of the Company (the “Board”) for any reason
prior to the lapse of the Restricted Period, then the Restricted Shares that are
at that time subject to restrictions set forth herein shall be forfeited to the
Company without payment of any consideration by the Company, and neither the
Recipient or any of his or her successors, heirs, assigns, or personal
representatives shall thereafter have any further rights or interests in such
Restricted Shares or certificates; provided, however, that in the event the
Recipient’s status as a member of the Board is discontinued due to the death of
the Recipient, the Restricted Shares shall become fully nonforfeitable upon the
date of death of such Recipient.
6. Miscellaneous.
(a) Entire Agreement.
This Agreement and the Plan contain the entire understanding and agreement of
the Company and the Recipient concerning the subject matter hereof, and
supersede all earlier negotiations and understandings, written or oral, between
the parties with respect thereto.
(b) Conflicting
Provisions. This Agreement is made under and subject to the
provisions of the Plan, and all of the provisions of the Plan are hereby
incorporated by reference into this Agreement. In the event of any conflict
between the provisions of this Agreement and the provisions of the Plan, the
provisions of the Plan shall govern. By signing this Agreement, the Recipient
confirms that he or she has received a copy of the Plan and has had an
opportunity to review the contents thereof.
(c) No Guarantee of Continued
Membership on Board. The Recipient acknowledges and agrees that nothing
herein shall be deemed to create any implication concerning the adequacy of the
Recipient's services to the Company or any of its subsidiaries or shall be
construed as an agreement by the Company or any of its subsidiaries, express or
implied with respect to Recipient’s continued membership on the
Board.
(d) Assignment and
Transfer. Except as the Committee may otherwise permit
pursuant to the Plan, the rights and interests of the Recipient under this
Agreement may not be sold, assigned, encumbered, pledged, or otherwise
transferred except in the event of the death of the Recipient, by will or by the
laws of descent and distribution. In the event of any attempt by the
Recipient to sell, assign, encumber, pledge or otherwise transfer its rights and
interests hereunder, except as provided in this Agreement, or in the event of
the levy or any attachment, execution or similar process upon the rights or
interests hereby conferred, the Company may terminate the Restricted Shares by
notice to the Recipient, and the Restricted Shares and all rights hereunder
shall thereupon become null and void. The rights and protections of
the Company hereunder shall extend to any successors or assigns of the
Company. This Agreement may be assigned by the Company without the
Recipient’s consent.
(e) Stock Power. With respect to any
Restricted Shares that are forfeited in accordance with Section 5, the
Participant hereby irrevocably appoints the Company’s Chief of Executive Officer
and the Company’s Secretary as the Participant’s attorneys to transfer any
forfeited Restricted Shares on the books of the Company with full power of
substitution in the premises. The Company’s Chief Executive Officer
and Secretary shall use the authority granted in this Section 6(e) to cancel any
Restricted Shares that are forfeited in accordance with Section
5.
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(f) Payment of
Taxes. The Recipient acknowledges that he or she is
responsible for paying, from time to time as required by applicable law, federal
and state income and other applicable taxes with respect to the Stock
Award.
(g) Captions. The
captions and section numbers appearing in this Agreement are inserted only as a
matter of convenience. They do not define, limit, construe or describe the scope
or intent of the provisions of this Agreement.
(h) Counterparts. This
Agreement may be executed in counterparts, each of which when signed by the
Company or the Recipient will be deemed an original and all of which together
will be deemed the same agreement.
(i) Notices. Any
notice to the Company provided for in this Agreement shall be addressed to the
Company in care of the Secretary at the headquarters of the Company, and any
notice to the Recipient shall be addressed to the Recipient at his current home
address shown on the records of the Company, or such other address as the
Recipient may designate to the Company in writing pursuant to the procedures of
this Section 6(g). Any notice shall be given by personal delivery, by
first class U.S. Mail, or by facsimile.
(j)
Amendments.
Subject to the provisions of the Plan, this Agreement may be amended or modified
at any time by an instrument in writing signed by the parties
hereto.
(k) Governing Law. This
Agreement and the rights of all persons claiming hereunder will be construed and
determined in accordance with the laws of the State of Maryland without giving
effect to the choice of law principles thereof.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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NEW
YORK MORTGAGE TRUST, INC.
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Attest:
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________________________________
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By:
______________________________
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RECIPIENT
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_________________________________
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[Name]
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