BIMINI CAPITAL MANAGEMENT, INC. (FORMERLY OPTEUM INC. AND FORMERLY BIMINI MORTGAGE MANAGEMENT, INC.) PHANTOM SHARE AWARD AGREEMENT
(FORMERLY
OPTEUM INC. AND
FORMERLY
BIMINI MORTGAGE MANAGEMENT, INC.)
2003
LONG
TERM INCENTIVE COMPENSATION PLAN
AGREEMENT
by and between Bimini Capital Management, Inc., a Maryland corporation (the
“Company”) and (the “Grantee”), dated as of the ___ day of
___________, 200_.
WHEREAS,
the Company maintains the Bimini Capital Management, Inc. (formerly Opteum
Inc.
and formerly Bimini Mortgage Management, Inc.) 2003 Long Term Incentive
Compensation Plan, as it may be amended from time to time (the “Plan”)
(capitalized terms used but not defined herein shall have the respective
meanings ascribed thereto by the Plan);
WHEREAS,
the Grantee is an employee of the Company or one of its
Subsidiaries;
WHEREAS,
the Committee has determined that it is in the best interests of the Company
and
its shareholders to grant Phantom Shares to the Grantee subject to the terms
and
conditions set forth below.
NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Grant
of Phantom Shares. The Company hereby grants the Grantee _____________
Phantom Shares. The Phantom Shares are subject to the terms and
conditions of this Agreement, and are also subject to the provisions of the
Plan. The Plan is hereby incorporated herein by reference as though
set forth herein in its entirety.
2. Vesting.
The
Phantom Shares shall be subject to
the following:
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(a)
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The
Phantom Shares shall vest, except as provided herein, if and as employment
continues, pursuant to the following
schedule:
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Number
of Phantom Shares
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Vesting
Date
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(b)
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Upon
Termination of Service, all Phantom Shares which have not vested
prior to
or concurrently with such Termination of Service shall thereupon,
and with
no further action, be forfeited by the
Grantee.
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(c)
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The
Phantom Shares shall fully vest upon (i) Termination of Service by
the
Company without Cause or for Disability, (ii) Termination of Service
by
the Grantee for “Good Reason” (as defined below), within 30 days of the
occurrence (or initial occurrence, in the case of a continuing condition)
thereof, (iii) the Grantee's death while employed or (iv) the occurrence
of a Change of Control while employed. For these purposes,
“Good Reason” shall mean, without the Grantee's prior consent, a
material diminution by the Company in the Grantee's title, duties
or
responsibilities; provided that (i) if the Grantee wishes to terminate
for
Good Reason, the Grantee shall give notice to the Company, and (ii)
Good
Reason shall not be deemed to exist if the Company cures any such
diminution within a reasonable period (which shall be at least 15
days)
after receipt of such notice.
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3.
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Distributions
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Distributions
to the Grantee attributable to the Grantee’s receipt of Phantom Shares hereunder
will be distributed as soon as practicable after the first day of the month
following the date on which the Phantom Shares vest. Other than in
accordance with an election permitted by the Committee, distributions made
to
the Grantee will be made as a single delivery of Common Stock.
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4.
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Dividend
Equivalent Rights.
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A
Dividend Equivalent Right is hereby granted to the Grantee, consisting of the
right to receive, with respect to each Phantom Share, cash in an amount equal
to
the cash dividend distributions paid in the ordinary course on a Share to the
Company's common shareholders (each, a "Dividend Payment"), as set forth
below. For each Phantom Share then outstanding, whether or not then
vested, if a cash dividend is payable in the ordinary course on a Share, the
Company shall make a payment to the Grantee in an amount equal to the applicable
Dividend Payment, on or about the date of the Dividend Payment; provided that
the Grantee may elect, in accordance with such procedures as may be prescribed
by the Committee, to receive, in lieu of such Dividend Payment, a number of
additional Phantom Shares equal to (x) the otherwise payable Dividend Payment,
divided by (y) the Fair Market Value of a Share on the date of the Dividend
Payment.
5. Tax
Withholding.
Upon
the
making of a distribution in respect of Phantom Shares or Dividend Equivalent
Rights, the Grantee may, in accordance with procedures set forth by the
Committee, make a written election to have amounts (which may include Shares)
withheld by the Company from the distribution otherwise to be made, or to
deliver previously owned Shares (not subject to restrictions hereunder), in
order to satisfy the liability for such withholding taxes. In the
event that the Grantee makes, and the Committee permits, such an election,
any
Shares so withheld or delivered shall have an aggregate Fair Market Value on
the
date of exercise sufficient to satisfy the applicable withholding
taxes.
6. Miscellaneous.
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(a)
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The
value of a Phantom Share may decrease depending upon the performance
of a
Share from time to time. Neither the Company nor the Committee,
nor any other party associated with the Plan, shall be held liable
for any
decrease in the value of my Phantom Shares. If the value of my
Phantom Shares decreases, there will be a decrease in the value of
what is
distributed to the Grantee under the Plan and this
Agreement.
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(b)
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With
respect to this Agreement, (i) the Phantom Shares are mere bookkeeping
entries, (ii) the obligations of the Company under the Plan are unsecured
and constitute a mere promise by the Company to make benefit payments
in
the future, (iii) to the extent that any person acquires a right
to
receive payments from the Company under the Plan, such right shall
be no
greater than the right of any general unsecured creditor of the Company,
(iv) all payments under the Plan (including distributions of Shares)
shall
be paid from the general funds of the Company and (v) no special
or
separate fund shall be established or other segregation of assets
made to
assure such payments (except that the Company may in its discretion
establish a mere bookkeeping reserve to meet its obligations under
the
Plan). The Plan is intended to be an arrangement that is
unfunded for tax purposes and for purposes of Title I of the Employee
Retirement Income Security Act of 1974, as
amended.
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(c)
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The
Grantee shall take whatever additional actions and execute whatever
additional documents the Company may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more
of the
obligations or restrictions imposed on the Grantee pursuant to the
express
provisions of the Plan. The issuance of shares of Common Stock,
if applicable, and delivery of the certificate or certificates therefor,
shall be subject to any delay necessary to complete (i) the listing
of
such Shares on any stock exchange upon which shares of the same class
are
then listed, (ii) such registration or other qualification of such
Phantom
Shares under any state or federal law, rule, or regulation as the
Company
may determine to be necessary or advisable, and (iii) the making
of
provision for the payment or withholding of any taxes required to
be
withheld pursuant to any applicable law, in respect of the receipt
of such
Common Stock.
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(d)
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THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
FLORIDA, WITHOUT REFERENCE TO PRINCIPLES
OF CONFLICT OF LAWS. The
captions of this Agreement are not part of the provisions hereof
and shall
have no force or effect. This Agreement may not be amended or
modified except by a written agreement executed by the parties hereto
or
their respective successors and legal representatives. The
invalidity or unenforceability of any provision of this Agreement
shall
not affect the validity or enforceability of any other provision
of this
Agreement.
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(e)
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The
Committee may make such rules and regulations and establish such
procedures for the administration of this Agreement as it deems
appropriate. Without limiting the generality of the foregoing,
the Committee may interpret this Agreement, with such interpretations
to
be conclusive and binding on all persons and otherwise accorded the
maximum deference permitted by law. In the event of any
dispute or disagreement as to the interpretation of this Agreement
or of
any rule, regulation or procedure, or as to any question, right or
obligation arising from or related to this Agreement, the decision
of the
Committee shall be final and binding upon all
persons.
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(f)
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All
notices hereunder shall be in writing, and if to the Company, shall
be
delivered to the Board or mailed to its principal office, addressed
to the
attention of the Board; and if to the Grantee, shall be delivered
personally, sent by facsimile transmission or mailed to the Grantee
at the
address appearing in the records of the Company. Such addresses
may be changed at any time by written notice to the other party given
in
accordance with this paragraph
6(f).
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(g)
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The
failure of the Grantee or the Company to insist upon strict compliance
with any provision of this Agreement or the Plan, or to assert any
right
the Grantee or the Company, respectively, may have under this Agreement
or
the Plan, shall not be deemed to be a waiver of such provision or
right or
any other provision or right of this Agreement or the
Plan.
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(h)
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Nothing
in this Agreement shall confer on the Grantee any right to continue
in the
employ or other service of the Company or its Subsidiaries or interfere
in
any way with the right of the Company or its Subsidiaries and its
shareholders to terminate the Grantee’s employment or other service at any
time.
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(i)
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This
Agreement contains the entire agreement between the parties with
respect
to the subject matter hereof and supersedes all prior agreements,
written
or oral, with respect thereto.
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IN
WITNESS WHEREOF, the Company and the Grantee have executed this Agreement as
of
the day and year first above written.
By:
Name:
Title:
_______________________________________
[Grantee]
NYA
764218.2
