EXHIBIT 10.97
EMPLOYMENT AGREEMENT OF
XXXXXX X. XXXXX
AGREEMENT made this ___ day of ________, 2004, between New York Mortgage
Trust, Inc., a Maryland corporation (the "Company"), and Xxxxxx X. Xxxxx (the
"Executive").
The Executive is presently employed as the Chief Operating Officer of the
Company. The Board of Directors of the Company (the "Board") recognizes that the
Executive's contribution to the growth and success of the Company has been
substantial. The Board desires to provide for the continued employment of the
Executive and to make certain changes in the Executive's employment arrangements
with the Company which the Board has determined will reinforce and encourage the
continued attention and dedication to the Company of the Executive as a member
of the Company's management, in the best interest of the Company and its
shareholders. The Executive is willing to commit himself to continue to serve
the Company, on the terms and conditions herein provided. The Executive's
continued employment with the Company is contingent on his execution of this
Employment Agreement.
In order to effect the foregoing, the Company and the Executive wish to
enter into an employment agreement on the terms and conditions set forth below.
Accordingly, in consideration of the premises and the respective covenants and
agreements of the parties herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to continue to employ the Executive,
and the Executive hereby agrees to continue to serve the Company, on the terms
and conditions set forth herein.
2. Term. The employment of the Executive by the Company as provided in Section 1
will commence on the closing date of the Company's initial public offering and
end on December 31, 2007, unless further extended or sooner terminated as
hereinafter provided. Commencing on January 1, 2005, and each January 1
thereafter, the term of the Executive's employment shall automatically be
extended for one additional calendar year, unless, not later than the October 31
immediately preceding such January 1, the Company or the Executive shall have
given written notice to the other that it does not wish that the Term of this
Agreement is to be automatically extended as described above. For purposes of
this Agreement, "Term" shall mean the actual duration of Executive's employment
hereunder, taking into account any extensions or notices not to extend pursuant
to this Section 2 or termination of employment pursuant to Section 7.
3. Position and Duties. The Executive shall serve as the Chief Operating Officer
of the Company and shall have such responsibilities, duties and authority as he
may have as of the date hereof (or any position to which he may be promoted
after the date hereof) and as may from time to time be assigned to the Executive
by the Board that are consistent with such responsibilities, duties and
authority. The Executive shall also serve as a senior executive officer of
certain subsidiaries of the Company, with positions, titles and responsibilities
that are suitable for the Chief Operating Officer of the Company, at the
reasonable request of the Board without additional compensation. The Executive
shall devote substantially all his working time and
efforts to the business and affairs of the Company; provided, that nothing in
this Agreement shall preclude Executive from serving as a director or trustee in
any other firm or from pursuing personal real estate investments and other
personal investments, as long as such activities do not interfere with
Executive's performance of his duties hereunder or violate Section 9 or 10 of
this Agreement.
4. Place of Performance. In connection with the Executive's employment by the
Company, the Executive shall be based at the principal executive offices of the
Company in New York, New York, except for required travel on the Company's
business to an extent substantially consistent with present business travel
obligations.
5. Compensation and Related Matters.
(a) Base Salary. The Company shall pay the Executive a base salary
annually (the "Base Salary"), which shall be payable in periodic installments
according to the Company's normal payroll practices. The initial Base Salary
shall be $212,000. During the Terms, the Board or the Compensation Committee of
the Board (the "Compensation Committee") shall review the Base Salary at least
once a year to determine whether the Base Salary should be increased effective
the following January 1; provided, however, that on January 1, 2005, the initial
Base Salary shall be increased to $250,000, and on each January 1 thereafter
during the Term, the Base Salary shall be increased by a minimum positive amount
equal to the Base Salary in effect on January 1 of the prior year multiplied by
the increase in the Consumer Price Index for such year. The amount of the
increase shall be determined before March 31 of each year and shall be
retroactive to January 1. The Base Salary, including any increases, shall not be
decreased during the Term. For purposes of this Agreement, the term "Base
Salary" shall mean the amount established and adjusted from time to time
pursuant to this Section 6(a).
(b) Annual Cash Incentive Awards. The Executive shall be eligible to
participate in the Company's annual cash incentive bonus plan adopted by the
Compensation Committee for each fiscal year during the Term of this Agreement
("Bonus Plan"), subject to the terms and conditions of the Bonus Plan. If the
Executive or the Company, as the case may be, satisfies the performance criteria
contained in such Bonus Plan for a fiscal year, he shall receive an annual
Incentive Bonus (as defined below) in an amount determined by the Compensation
Committee and subject to ratification by the Board, if required. If the
Executive or the Company, as the case may be, fails to satisfy the performance
criteria contained in such Bonus Plan for a fiscal year, the Compensation
Committee may determine whether any Incentive Bonus shall be payable to
Executive for that year, subject to ratification by the Board, if required.
Beginning January 1, 2005, the Bonus Plan shall contain both individual and
group goals established by the Compensation Committee. Notwithstanding the
foregoing, in no event shall the annual Incentive Bonus payable to Executive for
the period from the Effective Date through December 31, 2004 be less than
$100,000, irrespective of whether the Company or the Executive satisfies the
performance criteria contained in the Bonus Plan as in effect for the 2004
fiscal year (the "Guaranteed Bonus"). The annual Incentive Bonus (including for
the 2004 fiscal year the Guaranteed Bonus plus the incremental portion of the
annual Incentive Bonus in excess of the Guaranteed Bonus amount, if any) shall
be paid to the Executive no later than thirty (30) days after the date the
Compensation Committee determines whether the criteria in the Bonus Plan for
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such fiscal year were satisfied. The annual Incentive Bonus for the future years
during the Term shall be paid to the Executive no later than thirty (30) days
after the date the Compensation Committee determines whether the criteria in the
Bonus Plan for such fiscal year were satisfied. For purposes of this Agreement,
the term "Incentive Bonus" shall mean the amount established pursuant to this
Section 6(b).
(c) Stock Based Awards. The Company has established the 2004 Stock
Incentive Plan ("Stock Incentive Plan"). Subject to the terms and conditions of
the Stock Incentive Plan, the Executive shall be eligible to participate in the
Stock Incentive Plan, and shall be eligible to receive annual stock option
and/or restricted stock awards under the Stock Incentive Plan. The Compensation
Committee shall approve any such awards made to the Executive pursuant to the
Stock Incentive Plan.
(i) 2004 Stock Incentive Plan Option Grants. Option awards under the
Stock Incentive Plan will have an exercise price per share equal to the closing
price of the Company's common stock on the trading day immediately preceding the
date of grant, will have a term of ten (10) years and will vest and become
exercisable with respect to 1/3 of the underlying shares of Company common stock
on the first, second and third anniversaries, respectively, of the date of
grant; provided, however, that the Executive will be 100% vested in all
outstanding option awards, including the unvested portion of such awards, upon
(i) a Change in Control (as defined herein), (ii) a termination by the Company
without Cause (as defined herein), (iii) a termination by the Executive for Good
Reason (as defined herein), (iv) the Executive's death, or (v) the Disability
(as defined below) of the Executive, and that the Executive will forfeit all
unvested options if he is terminated for Cause or he terminates his employment
hereunder for other than Good Reason.
(ii) 2004 Stock Incentive Plan Restricted Stock Awards. The Stock
Incentive Plan provides for the issuance of shares of Company common stock as
restricted common stock ("Restricted Stock Grants") to the extent that such
shares of common stock are available thereunder. Restricted Stock Grants awarded
to the Executive shall be subject to forfeiture restrictions that will terminate
with respect to 1/3 of the awarded shares on the first, second and third
anniversaries of the date of the issuance; provided, however, that with respect
to the Initial Restricted Stock Grant (as defined below), 33.3% of such shares
will be fully vested and unrestricted upon issuance and the forfeiture
restrictions with respect to the remaining 66.7% of such shares will terminate
with respect to 22.3% of the awarded shares on the first anniversary of the date
of issuance, 22.2% of the awarded shares on the second anniversary of the date
of issuance and 22.2% of the awarded shares on the third anniversary of the date
of issuance. Upon completion of the Company's initial public offering of its
common stock (the "IPO"), the Company shall grant to the Executive a Restricted
Stock Grant of 29,205 shares of Company common stock (the "Initial Restricted
Stock Grant"). In the event the underwriters in the IPO exercise their
over-allotment option, the Company shall promptly increase the number of shares
of Company common stock granted to the Executive in the Initial Restricted Stock
Grant by a percentage equal to the percentage of over-allotment option shares
issued relative to the number of initial shares issued in the IPO, e.g. if the
underwriters exercise their full 15% over-allotment option, the Company will
increase the Initial Restricted Stock Grant by 4,381 shares, or 15%, and there
additional shares of common stock will be deemed to be part of the Initial
Restricted Stock
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Grant. Notwithstanding the foregoing, the Executive will be 100% vested and all
restrictions on each outstanding Restricted Stock Grant will lapse upon (i) a
Change in Control (as defined herein), (ii) a termination by the Company without
Cause (as defined herein), (iii) a termination by the Executive for Good Reason
(as defined herein), (iv) the Executive's death, (v) the Disability (as defined
below) of the Executive, or (vi) the Company's failure to renew this Agreement,
and that the Executive will forfeit all shares with respect to which the
forfeiture restrictions have not terminated if he is terminated for Cause or he
terminates for other than Good Reason. The common stock issued as Restricted
Stock Grants will have voting and dividend rights.
For purposes of this Agreement:
"Acquiring Person" means that a Person, considered alone or as part of a
"group" within the meaning of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended, is or becomes directly or indirectly the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of securities representing at
least fifty percent (50%) of the Company's then outstanding securities entitled
to vote generally in the election of the Board.
"Continuing Director" means any member of the Board, while a member of the
Board and (i) who was a member of the Board on the closing date of the Company's
initial public offering of the Common Stock or (ii) whose nomination for or
election to the Board was recommended or approved by a majority of the
Continuing Directors.
"Control Change Date" means the date on which a Change in Control occurs.
If a Change in Control occurs on account of a series of transactions, the
"Control Change Date" is the date of the last of such transactions.
"Change in Control" means (i) a Person is or becomes an Acquiring Person;
(ii) holders of the securities of the Company entitled to vote thereon approve
any agreement with a Person (or, if such approval is not required by applicable
law and is not solicited by the Company, the closing of such an agreement) that
involves the transfer of all or substantially all of the Company's total assets
on a consolidated basis, as reported in the Company's consolidated financial
statements filed with the Securities and Exchange Commission; (iii) holders of
the securities of the Company entitled to vote thereon approve a transaction
(or, if such approval is not required by applicable law and is not solicited by
the Company, the closing of such a transaction) pursuant to which the Company
will undergo a merger, consolidation, or statutory share exchange with a Person,
regardless of whether the Company is intended to be the surviving or resulting
entity after the merger, consolidation, or statutory share exchange, other than
a transaction that results in the voting securities of the Company carrying the
right to vote in elections of persons to the Board outstanding immediately prior
to the closing of the transaction continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least 50% (fifty percent) of the Company's voting securities carrying
the right to vote in elections of persons to the Company's Board, or such
securities of such surviving entity, outstanding immediately after the closing
of such transaction; (iv) the Continuing Directors cease for any reason to
constitute a majority of the Board; (v) holders of the securities of the Company
entitled to vote thereon approve a plan of complete liquidation of the
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Company or an agreement for the sale or liquidation by the Company of all or
substantially all of the Company's assets (or, if such approval is not required
by applicable law and is not solicited by the Company, the commencement of
actions constituting such a plan or the closing of such an agreement); or (vi)
the Board adopts a resolution to the effect that, in its judgment, as a
consequence of any one or more transactions or events or series of transactions
or events, a Change in Control of the Company has effectively occurred. The
Board shall be entitled to exercise its sole and absolute discretion in
exercising its judgment and in the adoption of such resolution, whether or not
any such transaction(s) or event(s) might be deemed, individually or
collectively, to satisfy any of the criteria set forth in subparagraphs (i)
through (v) above.
"Person" means any human being, firm, corporation, partnership, or other
entity. "Person" also includes any human being, firm, corporation, partnership,
or other entity as defined in sections 13(d)(3) and 14(d)(2) of the Exchange
Act. The term "Person" does not include the Company or any Related Entity, and
the term Person does not include any employee-benefit plan maintained by the
Company or any Related Entity, or any person or entity organized, appointed, or
established by the Company or any Related Entity for or pursuant to the terms of
any such employee-benefit plan, unless the Board determines that such an
employee-benefit plan or such person or entity is a "Person".
"Related Entity" means any entity that is part of a controlled group of
corporations or is under common control with the Company within the meaning of
Sections 1563(a), 414(b) or 414(c) of the Code.
(d) Benefits.
(i) Vacation. The Executive shall be entitled to four (4) weeks of
paid vacation per full calendar year. The Executive shall be entitled to cash in
lieu of any unused vacation time. The Executive shall not be entitled to carry
over any unused vacation time from year to year.
(ii) Sick and Personal Days. The Executive shall be entitled to sick
and personal days in accordance with the policies of the Company.
(iii) Employee Benefits.
(A) Participation in Employee Benefit Plans. Subject to the
terms of any applicable plans, policies or programs, the Executive and his
spouse and eligible dependents, if any, and their respective designated
beneficiaries where applicable, will be eligible for and entitled to participate
in any Company sponsored employee benefit plans, including but not limited to
benefits such as group health, dental, accident, disability insurance, group
life insurance, and a 401(k) plan, as such benefits may be offered from time to
time, on a basis no less favorable than that applicable to other executives of
the Company.
(B) Disability Insurance. The Company will maintain, at its
cost, a renewable long-term Disability plan that, subject to the terms of such
plan and any applicable plans, policies or programs, provides for payment of not
less than 60% of the Executive's Base
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Salary for so long as any long-term Disability of the Executive continues. In
addition, the Company shall reimburse the Executive the amount of the premiums
payable by the Executive with respect to a personal supplemental long-term
disability insurance policy providing for benefits equal to at least 40% of the
Executive's Base Salary for so long as any long-term Disability of the Executive
continues.
(iv) Annual Physical. If the Executive desires an annual physical
examination, the Company shall provide, at its cost, a medical examination for
the Executive on an annual basis by a licensed physician in the New York, New
York metropolitan area selected by the Executive. The results of the examination
and any medical information or records regarding the examination will be
provided by the physician to the executive, and not to the Company.
(v) Directors and Officers Insurance. During the Term and for a
period of 24 months thereafter, the Executive shall be entitled to director and
officer insurance coverage for his acts and omissions while an officer and
director of the Company on a basis no less favorable to him than the coverage
provided to current officers and directors.
(vi) Life Insurance. The Company will purchase a whole life policy
for the benefit of the Executive or the Executive's designated beneficiaries
with a death benefit of $1.5 million. The Executive shall be entitled to
reimbursement of any income tax that the Executive incurs with respect to the
Company's payment of premiums.
(vii) Key Man Life Insurance. The Company may purchase on the life
of the Executive up to $15.0 million of key man life insurance with the Company
as the beneficiary of the death benefit.
(viii) Expenses, Office and Secretarial Support. The Executive shall
be entitled to reimbursement of all reasonable expenses, in accordance with the
Company's policy as in effect from time to time and on a basis no less favorable
than that applicable to other executives of the Company, including, without
limitation, telephone, reasonable travel and reasonable entertainment expenses
incurred by the Executive in connection with the business of the Company,
promptly upon the presentation by the Executive of appropriate documentation.
The Executive shall also be entitled to appropriate office space, administrative
support, and such other facilities and services as are suitable to the
Executive's positions and adequate for the performance of the Executive's
duties.
6. Termination. The Executive's employment hereunder may be terminated without
any breach of this Agreement only under the following circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, in the written opinion of a qualified physician
reasonably agreed to by the Company and the Executive, the Executive shall
become unable to perform his duties hereunder due to Disability, the Company may
terminate the Executive's employment hereunder. As used in this Agreement, the
term "Disability" shall mean inability of the Executive, due to physical or
mental condition, to perform the essential functions of the Executive's job,
after
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consideration of the availability of reasonable accommodations, for more than
180 total calendar days during any period of 12 consecutive months.
(c) For Cause. The Company may terminate the Executive's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder upon a determination
by at least a majority of the members of the Board at a meeting of the Board
called and held for such purpose (after reasonable notice is provided to the
Executive of such meeting, the purpose thereof and the particulars of the basis
for such meeting and the Executive is given an opportunity, together with
counsel, to be heard before the Board) that Executive (i) has committed fraud or
misappropriated, stolen or embezzled funds or property from the Company or an
affiliate of the Company or secured or attempted to secure personally any profit
in connection with any transaction entered into on behalf of the Company or any
affiliate of the Company, (ii) has been convicted of, or entered a plea of
guilty or "nolo contendre" to, a felony which in the reasonable opinion of the
Board brings Executive into disrepute or is likely to cause material harm to the
Company's (or any affiliate of the Company) business, customer or supplier
relations, financial condition or prospects, (iii) has, notwithstanding not less
than 30 days' prior written notice from the Board, willfully failed to perform
(other than by reason of illness or temporary disability ) his material duties
hereunder, (iv) has knowingly violated or breached any material law or
regulation to the material detriment of the Company or any affiliates of the
Company or its business, or (v) has breached any non-competition, non-disclosure
or non-solicitation agreement between Executive and the Company which causes or
is reasonably likely to cause material harm to the Company. For purposes of this
provision, no act or failure to act, on the part of the Executive, shall be
considered "willful" unless it is done, or omitted to be done, by the Executive
in bad faith or without reasonable belief that his action or omission was in the
best interests of the Company. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board or based upon the
advice of counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best interests of
the Company. Any notice of termination delivered by the Company to Executive
that purports to notify Executive of a termination for Cause, but where the
Company has not otherwise followed the procedures set forth in the definition of
"Cause" above, shall be deemed to constitute a notice of termination without
Cause pursuant to Section 7(d) hereof. Neither a notice from the Company to
Executive that a meeting of the Board has been scheduled to determine whether
grounds for a termination for "Cause" exist, nor the holding of such a meeting,
shall itself be construed as a notice of termination for such purpose.
(d) Without Cause. The Company may at any time terminate the Executive's
employment hereunder without Cause.
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(e) Termination by the Executive.
(i) The Executive may terminate his employment hereunder (A) for
Good Reason, (B) at any time upon 30 days written notice following receipt by
the Executive of written notification by the Company that it does not intend to
extend the Term of this Agreement as provided in Section 2 (a "Notice of
Non-Renewal"), or (C) at any time after the date hereof by giving sixty (60)
days prior notice of his intention to terminate.
(ii) For purposes of this Agreement, "Good Reason" shall mean (A) a
failure by the Company to comply with any material provision of this Agreement
(other than the Company's payment obligations referred to in clause (E) below)
which has not been cured within thirty (30) days after notice of such
noncompliance has been given by the Executive to the Company, (B) the assignment
to the Executive of any material duties inconsistent with the Executive's
position with the Company or a substantial adverse alteration in the nature or
status of the Executive's responsibilities without the consent of the Executive,
(C) without the consent of the Executive, a material reduction in employee
benefits other than a reduction generally applicable to similarly situated
executives of the Company, (D) without the consent of the Executive, relocation
of the Company's principal place of business outside a fifty (50) mile radius of
Midtown Manhattan, or (E) any failure by the Company to pay the Executive Base
Salary or any Incentive Bonus to which he is entitled under the Bonus Plan which
failure has not been cured within ten (10) days after notice of such
noncompliance has been given by the Executive to the Company or any failure of
the Compensation Committee to approve a Bonus Plan for any fiscal year.
(f) Any termination of the Executive's employment by the Company or by the
Executive (other than termination pursuant to subsection (a) or (b) of this
Section 7) shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 14. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
(g) "Date of Termination" shall mean (i) if the Executive's employment is
terminated by his death, the date of his death, (ii) if the Executive's
employment is terminated pursuant to subsection (b) above, the date as of which
the physician's written opinion is received by the Company, (iii) if the
Executive's employment is terminated pursuant to subsection (c) above, the date
specified in the Notice of Termination, and (iv) if the Executive's employment
is terminated for any other reason, the date sixty (60) days following the date
on which a Notice of Termination is given.
7. Compensation Upon Termination, Death or During Disability.
(a) Disability. During any period that the Executive fails to perform his
duties hereunder as a result of his incapacity due to a physical or mental
condition ("disability period"), the Executive shall continue to receive his
full Base Salary at the rate then in effect for such disability period (and
shall not be eligible for payments under the disability plans, programs and
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policies maintained by the Company or in connection with employment by the
Company ("Disability Plans")) until his employment is terminated pursuant to
Section 7(b) hereof, and upon such termination, the Executive shall, within ten
(10) days of such termination, be entitled to all amounts to which the Executive
is entitled pursuant to the Disability Plans. The Executive's rights under any
long-term Disability Plan shall be determined in accordance with the provisions
of such plan, but in no event will the Company maintain a long-term Disability
plan that provides for payment of less than 60% of the Executive's Base Salary.
In addition, upon the Executive's termination in accordance with Section 7(b)
hereof, all stock options, restricted stock grants awards and any other equity
awards granted by the Company to the Executive shall become fully vested,
unrestricted and exercisable as of the Date of Termination.
(b) Death. If the Executive's employment is terminated by his death, the
Company shall within ten (10) days following the date of the Executive's death,
pay to the Executive's designated beneficiary(ies) any amounts due to the
Executive under Section 6(d) through the date of and as a result of his death,
an amount equal to the Executive's annual Base Salary for the year in which the
termination took place, and an amount equal to the Executive's target Bonus for
the year in which the termination took place, together with any other amounts to
which the Executive is entitled pursuant to death benefit plans, programs and
policies. In addition, all stock options, restricted stock awards and any other
equity awards granted by the Company to the Executive shall become fully vested,
unrestricted and exercisable as of the Date of Termination.
(c) Cause or other than Good Reason. If the Executive's employment shall
be terminated by the Company for Cause or by the Executive for other than Good
Reason, the Company shall pay the Executive his full Base Salary through the
Date of Termination at the rate in effect at the time Notice of Termination is
given and reimburse the Executive for all reasonable and customary expenses
incurred by the Executive in performing services hereunder prior to the Date of
Termination in accordance with Section 6(d), and the Company shall have no
further obligations to the Executive under this Agreement.
(d) Termination by the Company without Cause (other than for death or
Disability) or Termination by the Executive for Good Reason. If the Company
shall terminate the Executive's employment other than for death, Disability
pursuant to Section 7(b) or Cause, or the Executive shall terminate his
employment for Good Reason, then:
(i) the Company shall pay the Executive any earned and accrued but
unpaid installment of Base Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given and all other unpaid and pro
rata amounts to which the Executive is entitled as of the Date of Termination
under any compensation plan or program of the Company, including without
limitation, the approved annual Bonus Plan for the year in which the Date of
Termination occurs and all accrued but unused vacation time, such payments to be
made in a lump sum on or before the tenth day following the Date of Termination;
(ii) in lieu of any further salary payments to the Executive for
periods subsequent to the Date of Termination, the Company shall pay as
liquidated damages to the Executive an amount equal to the product of (A) the
sum of (1) the Executive's Base Salary in effect as of the Date of Termination
and (2) the Executive's highest Annual Bonus earned in the
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last three fiscal years, and (B) the lesser of three (3) or the quotient of the
number of whole months remaining in the term of this Agreement as of the Date of
Termination divided by twelve (12); such payment to be made in a lump sum on or
before the tenth day following the Date of Termination. In addition, all stock
options, restricted stock awards and any other equity awards granted by the
Company to the Executive shall become fully vested, unrestricted and exercisable
as of the Date of Termination;
(iii) In the case of a termination of the Executive's employment by
the Company without Cause or for Disability, or by the Executive for Good
Reason, the Company shall pay the full cost for the Executive to participate in
the health insurance plan in which the Executive was enrolled immediately prior
to the Date of Termination for a period of eighteen (18) months, provided that
the Executive's continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the Executive's
participation in any such plan or program is barred, the Company shall arrange
to provide the Executive with benefits substantially similar to those which the
Executive would otherwise have been entitled to receive under such plan from
which his continued participation is barred; and
(iv) The obligations of the Company to make any payments to
Executive required under Section 8(d)(ii) hereof shall be conditioned on the
execution and delivery by the Executive of a general release of claims in form
and substance reasonably satisfactory to the Company.
(e) Upon Receipt by the Executive of a Notice of Non-Renewal. If the
Company delivers to the Executive a Notice of Non-Renewal, and the Executive
elects to terminate his employment with the Company as a result of such Notice
of Non-Renewal pursuant to Section 7(e)(i)(B), then:
(i) the Company shall pay the Executive any earned and accrued but
unpaid installment of Base Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given and all other unpaid and pro
rata amounts to which the Executive is entitled as of the Date of Termination
under any compensation plan or program of the Company, including without
limitation, the approved annual Bonus Plan for the year in which the Date of
Termination occurs and all accrued but unused vacation time, such payments to be
made in a lump sum on or before the tenth day following the Date of Termination;
(ii) in lieu of any further salary payments to the Executive for
periods subsequent to the Date of Termination, the Company shall pay as
liquidated damages to the Executive an amount equal to the sum of (A) an amount
equal to the Executive's annual Base Salary as then in effect and (B) an amount
equal to the Executive's highest Annual Bonus earned during the preceding three
fiscal years; such payment to be made in a lump sum on or before the tenth day
following the Date of Termination. In addition, all stock options, restricted
stock awards and any other equity awards granted by the Company to the Executive
shall become fully vested, unrestricted and exercisable as of the Date of
Termination;
(iii) the Company shall pay the full cost for the Executive to
participate in the health insurance plan in which the Executive was enrolled
immediately prior to the Date of
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Termination for a period of eighteen (18) months, provided that the Executive's
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that the Executive's participation in any
such plan or program is barred, the Company shall arrange to provide the
Executive with benefits substantially similar to those which the Executive would
otherwise have been entitled to receive under such plan from which his continued
participation is barred; and
(iv) The obligations of the Company to make any payments to
Executive required under Section 8(e)(ii) hereof shall be conditioned on the
execution and delivery by the Executive of a general release of claims in form
and substance reasonably satisfactory to the Company.
8. Nondisclosure. The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its affiliated companies, and their respective
businesses, which shall have been obtained by the Executive during the
Executive's employment by the Company or any of its affiliated companies and
which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement).
After termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company or as may otherwise
be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. The agreement made in this Section 9 shall be in addition to,
and not in limitation or derogation of, any obligations otherwise imposed by law
or by separate agreement upon the Executive in respect of confidential
information of the Company.
9. Non-Competition and Non-Solicitation. During the Executive's employment with
the Company and for a period of twenty four (24) months following the
Executive's Date of Termination (or, in the case of any resignation by the
Executive following receipt of a Notice of Non-Renewal, for a period of only
twelve (12) months following the Executive's Date of Termination), the Executive
shall not, for himself or herself or on behalf of or in conjunction with any
other person, persons, company, firm, partnership, corporation, business, group
or other entity (each, a "Person"), work in the principal line of business
engaged in, or planned to be engaged in, by the Company at the Date of
Termination within any state where the Company is doing business or has plans
for commencing business as of the Date of Termination. The Executive's passive
ownership of less than five percent (5%) of the securities of a public company
shall not be treated as an action in competition with the Company.
(a) Executive hereby acknowledges and agrees that his employment with the
Company places him in a position of trust and confidence with respect to the
business operations, customers, prospects and personnel of the Company. He
agrees that, due to his position and knowledge, his engaging in any business
that competes in the principal line of business as the Company will cause the
Company significant and irreparable harm.
(b) In consideration of the compensation and benefits extended to him
under this Agreement, Executive agrees that, during the term of Executive's
employment by the Company and for twenty four (24) months following the Date of
Termination (or, in the case of any
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resignation by the Executive following receipt of a Notice of Non-Renewal, for a
period of only twelve (12) months following the Executive's Date of
Termination), the Executive shall not, for any reason whatsoever, directly or
indirectly, for himself or herself or on behalf of or in conjunction with any
other Person with whom the Executive works or is affiliated:
(i) solicit and/or hire any Person who is on the Date of
Termination, or has been within six (6) months prior to the Date of Termination,
an employee of the Company or its affiliates;
(ii) solicit, induce or attempt to induce any Person who is, at the
Date of Termination, or has been within six (6) months prior to the Date of
Termination, an actual customer, client, business partner, or a prospective
customer, client, business partner (i.e., a customer, client or business partner
who is party to a written proposal (including, with respect to the Company's
borrowers, a mortgage loan application) or letter of intent with the Company, in
each case written less than six (6) months prior to the Date of Termination) of
the Company, for the purpose or with the intent of (A) inducing or attempting to
induce such Person to cease doing business with the Company or its affiliates,
(B) enticing or attempting to entice such Person to do business with Executive
or any affiliate of Executive, or (C) in any way interfering with the
relationship between such Person and the Company or its affiliates; or
(iii) solicit, induce or attempt to induce any Person who is or that
is, at the time of the Date of Termination, or has been within six (6) months
prior to the Date of Termination, a supplier, licensee or consultant of, or
provider of goods or services to the Company or its affiliates, for the purpose
or with the intent of (A) inducing or attempting to induce such Person to cease
doing business with the Company or its affiliates or (B) in any way interfering
with the relationship between such Person and the Company or its affiliates.
(c) Because of the difficulty of measuring economic losses to the Company
as a result of a breach of the foregoing covenants, and because of the immediate
and irreparable damage that could be caused to the Company for which it would
have no other adequate remedy, Executive agrees that the foregoing covenants in
this Section 10, in addition to and not in limitation of any other rights,
remedies or damages available to the Company at law, in equity or under this
Agreement, shall be enforced by the Company in the event of the breach or
threatened breach by Executive, by injunctions and/or restraining orders.
(d) It is agreed by the parties that the covenants contained in this
Section 10 impose a fair and reasonable restraint on Executive in light of the
activities and business of the Company on the date of the execution of this
Agreement and the current plans of the Company; but it is also the intent of the
Company and Executive that such covenants be construed and enforced in
accordance with the changing activities, business and locations of the Company
and its affiliates throughout the term of these covenants. Executive also
acknowledges that this restraint will not prevent him from earning a living in
his chosen field of work.
(e) The covenants in this Section 10 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any
other covenant. Moreover, in the event any court of competent jurisdiction shall
determine that the scope, time or
12
territorial restrictions set forth herein are unreasonable, then it is the
intention of the parties that such restrictions be enforced to the fullest
extent that such court deems reasonable, and the Agreement shall thereby be
reformed to reflect the same.
(f) All of the covenants in this Section 10 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company
whether predicated on this Agreement or otherwise shall not constitute a defense
to the enforcement by the Company of such covenants. It is specifically agreed
that the duration of the period during which the agreements and covenants of
Executive made in this Section 10 shall be effective shall be computed by
excluding from such computation any time during which Executive is in violation
of any provision of this Section 10.
(g) Notwithstanding any of the foregoing, if any applicable law, judicial
ruling or order shall reduce the time period during which Executive shall be
prohibited from engaging in any competitive activity described in Section 10
hereof, the period of time for which Executive shall be prohibited pursuant to
Section 10 hereof shall be the maximum time permitted by law.
10. Successors; Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of successors and permitted assigns of the parties. This
Agreement may not be assigned, nor may performance of any duty hereunder be
delegated, by either party without the prior written consent of the other;
provided, however, the Company may assign this Agreement to any successor to its
business, including but not limited to in connection with any subsequent merger,
consolidation, sale of all or substantially all of the assets or stock of the
Company or similar transaction involving the Company or a successor corporation.
11. Additional Payments by the Company.
(a) If it is determined (as hereafter provided) that any payment or
distribution by the Company to or for the benefit of the Executive, whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise pursuant to or by reason of any other agreement, policy,
plan, program or arrangement, including without limitation any option, share
appreciation right or similar right, or the lapse or termination of any
restriction on or the vesting or exercisability of any of the foregoing (a
"Payment"), would be subject to the excise tax imposed by Section 4999 of the
Code (or any successor provision thereto) or to any similar tax imposed by state
or local law, or any interest or penalties with respect to such excise tax (such
tax or taxes, together with any such interest and penalties, are hereafter
collectively referred to as the "Excise Tax"), then Executive will be entitled
to receive an additional payment or payments (a "Gross-Up Payment") in an amount
such that, after payment by Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise Tax, imposed
upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) All determinations required to be made under this Section 12,
including whether an Excise Tax is payable by Executive and the amount of such
Excise Tax and whether a Gross-Up Payment is required and the amount of such
Gross-Up Payment, will be made by the Company's then current outside auditors;
provided that if that firm is unwilling or unable to
13
provide such services, another accounting firm may be selected by the Company
(such accounting firm the "Accounting Firm"). The Company will direct the
Accounting Firm to submit its determination and detailed supporting calculations
to both the Company and Executive within 30 calendar days after the date of the
change in control or the date of Executive's termination of employment, if
applicable, and any other such time or times as may be requested by the Company
or Executive. If the Accounting Firm determines that any Excise Tax is payable
by Executive, the Company will pay the required Gross-Up Payment to Executive no
later than five calendar days prior to the due date for Executive's income tax
return on which the Excise Tax is included. If the Accounting Firm determines
that no Excise Tax is payable by Executive, it will, at the same time as it
makes such determination, furnish Executive with an opinion that he has
substantial authority not to report any Excise Tax on his federal, state, local
income or other tax return. Any determination by the Accounting Firm as to the
amount of the Gross-Up Payment will be binding upon the Company and Executive.
As a result of the uncertainty in the application of Section 4999 of the Code
(or any successor provision thereto) and the possibility of similar uncertainty
regarding applicable state or local tax law at the time of any determination by
the Accounting Firm hereunder, it is possible that Gross-Up Payments which will
not have been made by the Company should have been made (an "Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts or fails to pursue its remedies pursuant to Section
12(f) hereof and Executive thereafter is required to make a payment of any
Excise Tax, Executive shall so notify the Company, which will direct the
Accounting Firm to determine the amount of the Underpayment that has occurred
and to submit its determination and detailed supporting calculations to both the
Company and Executive as promptly as possible. Any such Underpayment will be
promptly paid by the Company to, or for the benefit of, Executive within five
business days after receipt of such determination and calculations.
(c) The Company and Executive will each provide the Accounting Firm access
to and copies of any books, records and documents in the possession of the
Company or Executive, as the case may be, reasonably requested by the Accounting
Firm, and otherwise cooperate with the Accounting Firm in connection with the
preparation and issuance of the determination contemplated by Section 12(b)
hereof.
(d) The federal, state and local income or other tax returns filed by
Executive will be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
Executive. To the extent the Excise Tax has not been previously withheld from
amounts paid to the Executive, Executive will make proper payment of the amount
of any Excise Tax, and at the request of the Company, provide to the Company
true and correct copies (with any amendments) of his federal income tax return
as filed with the Internal Revenue Service and corresponding state and local tax
returns, if relevant, as filed with the applicable taxing authority, and such
other documents reasonably requested by the Company, evidencing such payment. If
prior to the filing of Executive's federal income tax return, or corresponding
state or local tax return, if relevant, the Accounting Firm determines that the
amount of the Gross-Up Payment should be reduced, Executive will within five
business days pay to the Company the amount of such reduction.
14
(e) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by Sections
12(b) and 12(d) hereof will be borne by the Company. If such fees and expenses
are initially advanced by Executive, the Company will reimburse Executive the
full amount of such fees and expenses within five business days after receipt
from Executive of a statement therefore and reasonable evidence of his payment
thereof.
(f) Executive will notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of a Gross-Up Payment. Such notification will be given as promptly as
practicable but no later than ten (10) business days after Executive actually
receives notice of such claim and Executive will further apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid (in each case, to the extent known by Executive). Executive will not pay
such claim prior to the earlier of (x) the expiration of the 30-calendar-day
period following the date on which he gives such notice to the Company and (y)
the date that any payment of amount with respect to such claim is due. If the
Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive will:
(i) provide the Company with any written records or documents in his
possession relating to such claim reasonably requested by the Company;
(ii) take such action in connection with contesting such claim as
the Company reasonably requests in writing from time to time, including without
limitation accepting legal representation with respect to such claim by an
attorney competent in respect of the subject matter and reasonably selected by
the Company;
(iii) cooperate with the Company in good faith in order effectively
to contest such claim; and
(iv) permit the Company to participate in any proceedings relating
to such claim; provided, however, that the Company will bear and pay directly
all costs and expenses (including interest and penalties) incurred in connection
with such contest and will indemnify and hold harmless Executive, on an
after-tax basis, for and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without limiting the foregoing
provisions of this Section 12(f), the Company will control all proceedings taken
in connection with the contest of any claim contemplated by this Section 12(f)
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim (provided that Executive may participate therein at his
own cost and expense) and may, at its option, either direct Executive to pay the
tax claimed and xxx for a refund or contest the claim in any permissible manner,
and Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company will determine; provided, however, that if the
Company directs Executive to pay the tax claimed and xxx for a refund, the
Company will advance the amount of such payment to Executive on an interest-free
basis and will indemnify and hold Executive harmless, on an after-tax basis,
from any Excise Tax or income tax, including
15
interest or penalties with respect thereto, imposed with respect to such
advance; and provided further, however, that any extension of the statute of
limitations relating to payment of taxes for the taxable year of Executive with
respect to which the contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, the Company's control of any such contested
claim will be limited to issues with respect to which a Gross-Up Payment would
be payable hereunder and Executive will be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(g) If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 12(f) hereof, Executive receives any refund with
respect to such claim, Executive will (subject to the Company's complying with
the requirements of Section 12(f)) hereof) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
any taxes applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 12(f) hereof, a determination is
made that Executive will not be entitled to any refund with respect to such
claim and the Company does not notify Executive in writing of its intent to
contest such denial or refund prior to the expiration of 30 calendar days after
such determination, then such advance will be forgiven and will not be required
to be repaid and the amount of such advance will offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid pursuant to this Section 12.
If, after the receipt by Executive of a Gross-Up Payment but before the payment
by Executive of the Excise Tax, it is determined by the Accounting Firm that the
Excise Tax payable by Executive is less than the amount originally computed by
the Accounting Firm and consequently that the amount of the Gross-Up Payment is
larger than that required by this Section 12, Executive shall promptly refund to
the Company the amount by which the Gross-Up Payment initially made to Executive
exceeds the Gross-Up Payment required under this Section 12.
12. Continued Performance. Provisions of this Agreement shall survive any
termination of Executive's employment hereunder if so provided herein or if
necessary or desirable fully to accomplish the purposes of such provisions,
including, without limitation, the obligations of the Executive under the terms
and conditions of Sections 9 and 10. Any obligation of the Company to make
payments to or on behalf of the Executive under Section 8 is expressly
conditioned upon the Executive's continued performance of the Executive's
obligations under Sections 9 and 10 for the time periods stated in Sections 9
and 10. The Executive recognizes that, except to the extent, if any, provided in
Section 8, the Executive will earn no compensation from the Company after the
Date of Termination.
13. Notices. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Xxxxxx X. Xxxxx
c/o New York Mortgage Trust, Inc.
0xx Xxxxx
00
0000 Xxxxxx of the Americas
Xxx Xxxx, XX 00000
If to the Company:
New York Mortgage Trust, Inc.
7th Floor
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Compensation Committee
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. Miscellaneous. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer of the Company as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles.
(a) Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
(b) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall deemed to be in an original but all of which
together will constitute one and the same instrument.
(c) Disputes. Any dispute or controversy arising under or in connection
with this Agreement shall, at the Executive's sole discretion, be settled
exclusively by such judicial remedies as the Executive may seek to pursue or by
arbitration conducted before a panel of three arbitrators in New York, New York
in accordance with the rules of the American Arbitration Association then in
effect; provided, however, that the Company shall be entitled to seek a
restraining order or injunction in any court of competent jurisdiction with
respect to any violation or threatened violation of the provisions of Sections 9
or 10 of this Agreement and the Executive hereby consents that such restraining
order or injunction may be granted without the necessity of the Company's
posting any bond. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. The expenses of arbitration shall be borne by the Company.
17
(d) Executive's Legal Expenses. In the event that the Executive institutes
any proceeding to enforce his rights under, or to recover damages for breach of
this Agreement, the Executive, if he is the prevailing party, shall be entitled
to recover from the Company any actual expenses for attorney's fees and
disbursements incurred by him.
(e) Indemnification. The Company shall indemnify and hold Executive
harmless to the maximum extent permitted by the laws of the State of Maryland
(and the law of any other appropriate jurisdiction after any reincorporation of
the Company) against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees incurred by Executive, in connection with
the defense of, or as a result of any action or proceeding (or any appeal from
any action or proceeding) in which Executive is made or is threatened to be made
a party by reason of the fact that he is or was an officer or trustee of the
Company, regardless of whether such action or proceeding is one brought by or in
the right of the Company to procure a judgment in its favor (or other than by or
in the right of the Company); provided, however, that this indemnification
provision shall not apply to any action or proceeding relating to a dispute
between the Company and the Executive based on any alleged breach or violation
of this Agreement.
(f) Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein.
[Signatures next page]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
NEW YORK MORTGAGE TRUST, INC.
Attest:
By:_______________________________ By:_____________________________________
Name:
Title:
XXXXXX X. XXXXX
Attest:
By:_____________________________ ________________________________________
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