EXHIBIT 10.93
EMPLOYMENT AGREEMENT OF
XXXXX X. XXXX
AGREEMENT made this ___ day of __________, 2004, between New York
Mortgage Trust, Inc., a Maryland corporation (the "Company"), and Xxxxx X. Xxxx
(the "Executive").
The Executive is presently employed as the Co-Chief Executive 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 Co-Chief
Executive 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 Co-Chief Executive 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 $390,000. 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 by 5%, 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. The annual Incentive
Bonus 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
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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 94,860 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 14,229 shares, or 15%, and there
additional shares of common stock will be deemed to be part of the Initial
Restricted Stock 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.
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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 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.
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"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 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
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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 $3.0 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 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 (other than
Executive) 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
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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.
(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
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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
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
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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 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
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(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 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
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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 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
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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 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.
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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 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
13
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.
(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:
14
(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 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
15
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:
Xxxxx X. Xxxx
c/o New York Mortgage Trust, Inc.
7th Floor
0000 Xxxxxx xx xxx Xxxxxxxx
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
16
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.
(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.
17
(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]
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:
XXXXX X. XXXX
Attest:
By:_____________________________ _______________________________________
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