REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
REGISTRATION
RIGHTS AGREEMENT, dated as of January 18, 2008 (this “Agreement”),
between NEW YORK MORTGAGE TRUST, INC., a Maryland corporation (the “Company”),
and
each of JMP Group Inc., JMP Realty Trust, Inc., Harvest Opportunity Partners
II,
L.P., Harvest Opportunity Partners Offshore Fund, Ltd., Harvest Small Cap
Partners, L.P. and Harvest Small Cap Offshore, Ltd. (collectively, the
“Investors”).
WHEREAS,
the Investors have acquired on the date hereof an aggregate of 1,000,000 shares
of Series A Cumulative Redeemable Convertible preferred stock of the Company
(“Series A Preferred Stock”) pursuant to the terms of a Stock Purchase Agreement
dated as of November 30, 2007 between the Company and each of the Investors,
as
amended by Amendment No. 1 to Stock Purchase Agreement dated January 3, 2008,
as
amended by Amendment No. 2 to Stock Purchase Agreement dated January 4, 2008,
as
amended by Amendment No. 3 to Stock Purchase Agreement dated January 16, 2008,
as amended by Amendment No. 4 to Stock Purchase Agreement dated January 17,
2008, as amended by Amendment No. 5 to Stock Purchase Agreement dated January
18, 2008 (collectively, the “Purchase
Agreement”);
and
WHEREAS,
pursuant to the Purchase Agreement, the Company has agreed to grant certain
registration rights, subject to the terms and conditions set forth in this
Agreement, with respect to shares of common stock, $0.01 par value per share,
of
the Company (“Common Stock”), that may be issued to the Investors upon
conversion of the Series A Preferred Stock pursuant to the Articles
Supplementary of the Company establishing and fixing the rights and preferences
of the Series A Preferred Stock, as filed with the Department of Assessment
and
Taxation of the State of Maryland (“Articles Supplementary”);
WHEREAS,
the Company and the Investors wish to set forth their agreement with respect
to
certain rights and obligations regarding the registration of shares of the
Common Stock.
In
consideration of the foregoing and of the mutual agreements contained herein
and
in the Purchase Agreement, the Company and the Investors hereby agree as
follows:
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1.
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DEFINITIONS.
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As
used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
“Affiliate”
means,
with respect to any Person, (i) each Person that, directly or indirectly,
owns or controls, whether beneficially or as a trustee, guardian or other
fiduciary, 25% or more of the capital stock having ordinary voting power in
the
election of directors of such Person, (ii) each Person that controls, is
controlled by or is under common control with such Person or any Affiliate
of
such Person, or (iii) each of such Person’s executive officers and
directors. For the purpose of this definition, “control” of a Person shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
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“Articles
Supplementary”
shall
have the meaning set forth in the recitals.
“Board
of Directors”
means
the board of directors of the Company from time to time.
“Commission”
means
the United States Securities and Exchange Commission.
“Common
Stock”
has
the
meaning specified in the recitals to this Agreement.
“Company”
has
the
meaning
specified in the recitals to this Agreement.
“Controlling
Person”
has
the
meaning specified in Section 7(a).
“End
of
Suspension Notice”
has
the
meaning specified in Section 6(b).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Fully
Diluted Basis”
means
at any date as of which the number of shares of Common Stock is to be
determined, on a basis including all shares of Common Stock outstanding at
such
date and the maximum shares of Common Stock issuable in respect of Common Stock
Equivalents (giving effect to the then current respective conversion prices)
and
other rights to purchase (directly or indirectly) shares of Common Stock or
Common Stock Equivalents, outstanding on such date, to the extent such rights
to
convert, exchange or exercise thereunder are presently exercisable. For purposes
of this definition, “Common Stock Equivalents” means any security or obligation
which is by its terms convertible into shares of Common Stock and any option,
warrant or other subscription or purchase right with respect to Common
Stock.
“Holder”
shall
mean each owner of any Registrable Shares from time to time.
“Indemnified
Party”
has
the
meaning specified in Section 7(c).
“Indemnifying
Party”
has
the
meaning specified in Section 7(c).
“Liabilities”
has
the
meaning specified in Section 7(a).
“Material
Adverse Change” or “Material Adverse Effect”
shall
mean any event, circumstance, change or effect that would reasonably be likely,
individually or in the aggregate, to have a material adverse effect on the
assets, business, operations, earnings, properties or condition (financial
or
otherwise), of the Company and its subsidiaries taken as a whole; provided,
however, that none of the following shall be deemed to constitute or shall
be
taken into account in determining whether there has been a Material Adverse
Effect: any event, circumstance, change or effect arising out of or attributable
to (a) changes in the economy or financial markets, including, prevailing
interest rates and market conditions, generally in the United States or that
are
the result of acts of war or terrorism, or (b) changes that are caused by
factors generally affecting the industry in which the Company and its
subsidiaries operate.
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“Person”
means
any individual, corporation, partnership, joint venture, association, joint
stock company, trust, fund, unincorporated association or organization or
government or other agency or political subdivision thereof.
“Piggyback
Registrations”
has
the
meaning specified in Section 2.2(a).
“Purchase
Agreement”
has
the
meaning specified in the recitals.
“Purchaser
Indemnitee”
has
the
meaning specified in Section 7(a).
“Registrable
Securities”
means
(i) any Common Stock that may be issued upon conversion of the Series A
Preferred Stock pursuant to the Articles Supplementary, (ii) the Series A
Preferred Stock and (iii) any shares or other securities issued in respect
of
such Registrable Securities by reason of or in connection with any stock
dividend, stock distribution, stock split, purchase in any rights offering
or in
connection with any exchange for or replacement of such Registrable Securities
or any combination of shares, recapitalization, merger or consolidation, or
any
other equity securities issued pursuant to any other pro rata distribution
with
respect to the Registrable Securities. Any Registrable Security will cease
to be
a Registrable Security when: (a) a registration statement covering such
Registrable Security has been declared effective by the Commission and the
Registrable Security has been disposed of pursuant to such effective
registration statement, (b) the Registrable Security is sold under circumstances
in which all of the applicable conditions of Rule 144 (or any similar provisions
then in force) under the Securities Act are met or (c) the Registrable Security
has been otherwise transferred, the Company has delivered a new certificate
or
other evidence of ownership for the Registrable Security not bearing a legend
restricting further transfer, and the Registrable Security may be resold without
subsequent registration under the Securities Act.
“Registration
Expenses”
means
all expenses incident to the Company’s performance of or compliance with this
Agreement, including without limitation all Commission and stock exchange or
NASDAQ Stock Market registration and filing fees and expenses, fees and expenses
of compliance with securities or blue sky laws (including without limitation
reasonable fees and disbursements of one counsel for all underwriters or holders
as a group in connection with blue sky qualifications of the Registrable
Securities), rating agency fees, printing expenses, messenger, telephone and
delivery expenses, the fees and expenses incurred in connection with the listing
of the securities to be registered on each securities exchange or national
market system on which similar securities issued by the Company are then listed,
fees and disbursements of counsel for the Company and all independent certified
public accountants (including the expenses of any annual audit, special audit
and “cold comfort” letters required by or incident to such performance and
compliance), securities laws liability insurance (if the Company so desires),
the fees and expenses of any “qualified independent underwriter” that is
required to be retained by any holder of Registrable Securities pursuant to
the
rules and regulations of the Financial Industry Regulatory Authority (“FINRA”)
customarily paid by issuers or sellers of securities (but not including any
underwriting discounts or commissions attributable to the sale of Registrable
Securities by the sellers of Registrable Securities) and the reasonable fees
of
counsel selected pursuant to Section 6 hereof by the Holders in connection
with each such registration.
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“Registration
Statement”
means
a
registration statement of the Company that covers the resale of Registrable
Shares pursuant to the provisions of this Agreement, including any prospectus
included in such registration statement, amendments and supplements to such
registration statement or prospectus, including pre- and post-effective
amendments, all exhibits thereto and all material incorporated by reference
or
deemed to be incorporated by reference, if any, in such registration
statement.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Series A
Preferred Stock”
has
the
meaning specified in the recitals.
“Shelf
Registration Statement”
has
the
meaning specified in Section 2.1(a).
“Suspension
Event”
has
the
meaning specified in Section 6(b).
“Suspension
Notice”
has
the
meaning specified in Section 6(b).
“Underwritten
Offering”
means
a
sale of securities of the Company to an underwriter or underwriters for
reoffering to the public.
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2.
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REGISTRATION
RIGHTS.
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2.1 MANDATORY
REGISTRATION RIGHTS.
(a) As
set
forth in Section 4 hereof, the Company agrees to file with the Commission
on or before June 30, 2008 a shelf Registration Statement on Form S-11 or such
other form under the Securities Act then available to the Company providing
for
the resale of any Registrable Securities pursuant to Rule 415 from time to
time
by the Holders (a “Shelf
Registration Statement”).
The
Company shall use its commercially reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission as soon as
practicable thereafter, and, for this purpose, the Company shall be entitled
to
consider the advice of the managing underwriter(s) of a public offering of
the
Common Stock which is then pending as to the effect that the effectiveness
of
the Shelf Registration Statement could reasonably be expected to have on the
marketing of the public offering. Any Shelf Registration Statement shall provide
for the resale from time to time, and pursuant to any method or combination
of
methods legally available (including, without limitation, an Underwritten
Offering, a direct sale to purchasers or a sale through brokers or agents,
which
may include sales over the internet) by the Holders of any and all Registrable
Securities.
(b) PRIORITY
ON SHELF REGISTRATION STATEMENT.
The
Company will not include in any Shelf Registration Statement any securities
that
are not Registrable Securities without the prior written consent of the Holders.
If the managing underwriters of a Shelf Registration Statement advise the
Company in writing that in their opinion the number of Registrable Securities
and, if permitted hereunder, other securities requested to be included in such
offering exceeds the number of Registrable Securities and other securities,
if
any, which can be sold therein without adversely affecting the marketability
of
the offering, the Company will include in such registration, (i) first, the
Registrable; and (ii) second, other securities, if any, requested to be
included in such registration, pro rata among the holders of such other
securities, on the basis of the number of shares of other securities owned
by
each such holder and requested to be included therein.
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(c) SELECTION
OF UNDERWRITERS.
Subject
to an engagement agreement to which the Company is a party, the Company shall
have the right to select the investment banker or bankers, underwriters and
managers to administer any Underwritten Offering under a Shelf Registration
Statement; PROVIDED, HOWEVER, that such investment banker or bankers,
underwriters and managers shall be reasonably satisfactory to the Holders.
All
Holders proposing to distribute their Registrable Securities through such
Underwritten Offering shall enter into an underwriting agreement in customary
form with the managing underwriters selected for such underwriting and furnish
to the Company such information in writing as the Company may reasonably request
for inclusion in the Shelf Registration Statement; PROVIDED,
HOWEVER,
that no
Holder shall be required to make any representations or warranties to or
agreements with the Company or the managing underwriters other than
representations, warranties or agreements as are customary and reasonably
requested by the managing underwriters. If any Holder disapproves of the terms
of such Underwritten Offering, such Holder may elect to withdraw therefrom
by
written notice to the Company and the managing underwriter delivered at least
ten (10) business days prior to the effective date of the Shelf Registration
Statement. Any Registrable Securities excluded or withdrawn from such
Underwritten Offering shall be excluded and withdrawn from the Shelf
Registration Statement.
2.2 RIGHT
TO PIGGYBACK REGISTRATION.
(a) If
at any
time following the date of this Agreement and prior to the registration of
Registrable Securities pursuant to Section 2(a), the Company proposes for any
reason to register any shares of Common Stock under the Securities Act (other
than pursuant to a registration statement on Form S-4 or Form S-8 (or a similar
or successor form)) with respect to an offering of Common Stock by the Company
for its own account or for the account of any of its stockholders, it shall
at
each such time promptly give written notice to the Holders of its intention
to
do so (but in no event less than 30 days before the anticipated filing date)
and
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after receipt of the Company’s notice (a “Piggyback
Registration”).
Such
notice shall offer the Holders the opportunity to register such number of shares
of Registrable Securities as each Holder my request and shall indicate the
intended method of distribution of such Registrable Securities.
(b) The
Company shall use its commercially reasonable best efforts to cause the managing
underwriter or underwriters of a proposed Underwritten Offering to permit the
shares of Registrable Securities requested to be included in the Registration
Statement for such offering to be included (on the same terms and conditions
as
the Common Stock of the Company included therein to the extent appropriate).
Notwithstanding the foregoing, if in the reasonable judgment of the managing
underwriter or underwriters due to the size of the offering which the Company
or
such other persons or entities intends to make, the success of the offering
would be adversely affected by inclusion of the Registrable Securities requested
to be included, then, if the offering is by the Company for its own account
or
is an offering by other holders registering shares of Common Stock of the
Company pursuant to demand registration rights, then the number of shares of
Common Stock to be offered for the accounts of Holders and other holders
registering shares of Common Stock of the Company pursuant to similar piggyback
registration rights shall be reduced pro rata based on the relative percentage
ownership of all shares of Common Stock then outstanding owned by the Holders
and such other holders to the extent necessary to reduce the total number of
shares of Common Stock to be included in such offering to the amount recommended
by such managing underwriter or underwriters.
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(c) In
all
Piggyback Registrations, the Company will pay the registration expenses of
the
Holders, and each Holder shall pay all underwriting discounts or commissions,
fees of counsel to the Holders or transfer taxes, if any, relating to the sale
or disposition of Registrable Securities pursuant to a Piggyback
Registration.
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3.
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HOLDBACK
AGREEMENTS.
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(a) The
Holders agree not to effect any public sale or distribution (including sales
pursuant to Rule 144 under the Securities Act) of equity securities,
including, without limitation, the Common Stock, of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and the 90-day period beginning on the effective
date of any Shelf Registration Statement or Piggyback Registration for a public
offering to be underwritten on a firm commitment basis (except as part of such
underwritten registration), unless the investment bankers or underwriters
managing the public offering otherwise agree.
(b) The
Company agrees to use its commercially reasonable best efforts to cause each
of
its directors and executive officers and each holder of at least 5% (on a Fully
Diluted Basis) of the Company’s equity securities, including, without
limitation, Common Stock, or any securities convertible into or exchangeable
or
exercisable for such securities, purchased from the Company at any time after
the date of this Agreement (other than in a registered public offering or
distribution or securities issued pursuant to the Company’s 2005 Stock Inventive
Plan) to agree not to effect any public sale or distribution (including sales
pursuant to Rule 144 under the Securities Act) of any such securities
during such period (except as part of such underwritten registration), unless
the underwriters managing the public offering or distribution otherwise agree.
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4.
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RULE
144 AND 144A
REPORTING.
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With
a
view to making available the benefits of certain rules and regulations of the
Commission that may permit the sale of the Registrable Securities to the public
without registration, the Company agrees to, so long as any Holder owns any
Registrable Securities:
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(a) use
its
commercially reasonable best efforts to make
and
keep public information available, as those terms are understood and defined
in
Rule 144(c) under the Securities Act;
(b) use
its
commercially reasonable best efforts to file with the Commission in a timely
manner all reports and other documents required to be filed by the Company
under
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements); and
(c) furnish
to any Holder promptly upon request (i) a written statement by the Company
that
it has complied with the reporting requirements of Rule 144 (at any time after
ninety (90) days after the effective date of the first registration statement
filed by the Company), the Securities Act and the Exchange Act, or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual
or
quarterly report of the Company and such other reports and documents of the
Company and (iii) such other information as a Holder may reasonably request
in
availing itself of any rule or regulation of the Commission allowing a Holder
to
sell any such Registrable Securities without registration or pursuant to such
form.
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REGISTRATION
PROCEDURES.
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Whenever
the Holders have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company will use its commercially reasonable
best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Company will as expeditiously as reasonably
practicable:
(a) Prepare
and file with the Commission a Registration Statement with respect to such
Registrable Securities and use its commercially reasonable best efforts to
cause
such Registration Statement to become effective (provided that before filing
a
Registration Statement or prospectus or any amendments or supplements thereto,
the Company will furnish to counsel selected by the Holders copies of all such
documents proposed to be filed);
(b) Subject
to Section 7, prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective
for
a period of not less than one year and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such
Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement;
(c) Furnish
to the Holders such number of copies of such Registration Statement, each
amendment and supplement thereto, the prospectus included in such Registration
Statement (including each preliminary prospectus) and such other documents
as
such seller may reasonably request in order to facilitate the disposition of
the
Registrable Securities;
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(d) Use
its
commercially reasonable best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
of
the United States of America as the Holders reasonably request and shall
maintain such qualification in effect so long as required; (provided that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subsection, (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process (i.e.,
service
of process which is not limited solely to securities law violations) in any
such
jurisdiction);
(e) notify
each Holder promptly and, if requested by any Holder, confirm such advice in
writing (i) when a Registration Statement registering the Registrable
Securities has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of the issuance by the
Commission or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iii) of any request by the Commission or any other
federal, state or foreign governmental authority for amendments or supplements
to a Registration Statement or related prospectus or for additional information,
and (iv) of the happening of any event during the period a Registration
Statement is effective as a result of which such Registration Statement covering
the Registrable Securities or the related prospectus or any document
incorporated by reference therein contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading (which information
shall
be accompanied by an instruction to suspend the use of the prospectus until
the
requisite changes have been made);
(f) Use
its
commercially reasonable best efforts to cause all such Registrable Securities
to
be listed on each securities exchange on which similar securities issued by
the
Company are then listed and, if not so listed, to be listed on the NASDAQ Stock
Market and, if listed on the NASDAQ Stock Market, use its commercially
reasonable best efforts to secure designation of all such Registrable Securities
covered by such Registration Statement as a “national market system security”
within the meaning of Rule 11Aa2-1 of the Commission;
(g) Provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of such Registration Statement;
(h) Enter
into such customary agreements (including underwriting agreements in customary
form) and take all such other reasonable actions as the Holders or the
underwriters, if any, reasonably request in order to expedite or facilitate
the
disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
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(i) Use
its
commercially reasonable best efforts to make available, subject to any
confidentiality agreements reasonably requested by the Company, for inspection
by one representative appointed by the Holders any underwriter participating
in
any disposition pursuant to such Registration Statement and any attorney,
accountant or other agent retained by such representative of the Holders or
underwriter, all financial and other records, pertinent corporate documents
and
properties of the Company, and cause the Company’s officers, directors,
employees and independent accountants to supply all information reasonably
requested by any Holder, such underwriter, attorney, accountant or agent in
connection with such Registration Statement;
(j) Otherwise
use its commercially reasonable best efforts to comply with all applicable
rules
and regulations of the Commission, and, if required, make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day
of
the Company’s first full calendar quarter after the effective date of the
Registration Statement, which earnings statement shall satisfy the provisions
of
Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) use
its
commercially reasonable best efforts to avoid the issuance of any stop order
suspending the effectiveness of a Registration Statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any equity securities, including, without limitation, the
Common Stock, included in such Registration Statement for sale in any
jurisdiction; in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification
of
any equity securities, including, without limitation, the Common Stock, included
in such Registration Statement for sale in any jurisdiction, the Company will
use its commercially reasonable best efforts promptly to obtain the withdrawal
of such order;
(l) Use
its
commercially reasonable best efforts to cause such Registrable Securities
covered by such Registration Statement to be registered with or approved by
such
other governmental agencies or authorities as may be reasonably necessary to
enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(m) Except
as
provided in Section 7, upon the occurrence of any event contemplated by Section
5(e)(iv) of this Agreement, use its commercially reasonable best efforts to
promptly prepare a supplement or post-effective amendment to a Registration
Statement or the related prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such prospectus will not
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the statements therein,
in
the light of the circumstances under which they were made, not misleading,
and,
upon request, promptly furnish to each requesting Holder a reasonable number
of
copies each such supplement or post-effective amendment;
(n) if
requested by the managing underwriter(s), if any, or any Holders of Registrable
Securities
(i) as promptly as practicable incorporate in a prospectus supplement or
post-effective amendment relating to the Registrable Securities
such
material information as the managing underwriter(s), if any, or such Holders
indicate in writing relates to them or that they reasonably request be included
therein and (ii) use its commercially reasonable best efforts to make all
required filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received written notification
of
the matters to be incorporated in such prospectus supplement or post-effective
amendment;
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(o) in
the
case of an Underwritten Offering, use its commercially reasonable best efforts
to furnish to each Holder of Registrable Securities covered by such Registration
Statement and the underwriters a signed counterpart, addressed to each such
Holder and the underwriters, of: (i) an opinion of counsel for the Company,
dated the date of each closing under the underwriting agreement, reasonably
satisfactory to such Holder and the underwriters; and (ii) a “comfort”
letter, dated the effective date of such Registration Statement and the date
of
each closing under the underwriting agreement, signed by the independent public
accountants who have certified the Company's financial statements included
in
such Registration Statement, covering substantially the same matters with
respect to such Registration Statement (and the prospectus included therein)
and
with respect to events subsequent to the date of such financial statements,
as
are customarily covered in accountants' letters delivered to underwriters in
underwritten public offerings of securities and such other financial matters
as
such Holder and the underwriters may reasonably request;
(p) provide
a
CUSIP number for all Registrable Securities, not later than the effective date
of the Registration Statement;
and
(q) if
requested by any holder of Registrable Securities, obtain a “cold comfort”
letter from the Company’s independent registered public accounting firm in
customary form and covering such matters of the type customarily covered by
“cold comfort” letters as the Investors reasonably request.
It
shall
be a condition precedent to the obligation of the Company to take any action
pursuant to this Agreement in respect of the securities which are to be
registered at the request of the Holders that the Holders shall furnish to
the
Company such information regarding the Registrable Securities held by the
Holders and the intended method of disposition thereof as the Company shall
reasonably request in connection with such registration.
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6.
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REGISTRATION
EXPENSES.
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(a) Except
as
otherwise expressly provided in this Agreement, all Registration Expenses will
be borne by the Company. To the extent Registration Expenses are not required
to
be paid by the Company pursuant to this Agreement, each holder of securities
included in any registration or qualification hereunder will pay those
Registration Expenses allocable to the registration or qualification of such
holders’ securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered
or qualified.
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(b) Except
as
otherwise expressly provided in this Agreement, in connection with each Shelf
Registration Statement and any Piggyback Registration, the Company will
reimburse the Holders covered by such Registration Statement for the reasonable
fees and disbursements of one United States legal counsel, which counsel shall
be selected (i) in the case of a Shelf Registration Statement by the Holders
holding a majority of the Registrable Securities, and (ii) in all other cases,
by the Holders of a majority of the Registrable Securities, and in each case
in
consultation with the Company.
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7.
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BLACK
OUT PERIOD.
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(a) Subject
to the provisions of this Section 7, the Company shall have the right, but
not the obligation, from time to time to suspend the use of the Registration
Statement, following the effectiveness of a Registration Statement (and the
filings with any international, federal or state securities commissions), the
Company, by written notice to the Holders, may direct the Holders to suspend
sales of the Registrable Shares pursuant to a Registration Statement for such
times as the Company reasonably may determine is necessary and advisable
if a majority of the independent members of the Board of Directors of the
Company shall have determined in good faith, after the advice of counsel, that
the Company is required by law, rule or regulation, or that it is in the best
interests of the Company, to (i) supplement the prospectus or (ii) file a
post-effective amendment to the Registration Statement in the case of (i) or
(ii) to incorporate information into the Registration Statement for the purpose
of (1) including in the Registration Statement any prospectus required
under Section 10(a)(3) of the Securities Act; (2) reflecting in the
prospectus any facts or events arising after the effective date of the
Registration Statement (or of the most-recent post-effective amendment) that,
individually or in the aggregate, represents a fundamental change in the
information set forth therein; or (3) including in the prospectus any
material information with respect to the plan of distribution not disclosed
in
the Registration Statement or any material change to such information; PROVIDED,
HOWEVER, that the foregoing provisions (i) and (ii) shall only apply to a Shelf
Registration Statement filed on Form S-11 under the Securities Act. In no event
may a suspension in the case of (i) last for more than five (5) business days
in
any singular instance and in the case of (i) and (ii) cumulatively last for
more
than an aggregate of ninety (90) days in any rolling twelve (12) month period
commencing on the Closing Date or for more than an aggregate of sixty (60)
days
in any rolling ninety (90) day period, except as a result of a refusal by the
Commission to declare any post-effective amendment to the Registration Statement
effective after the Company shall have used all commercially reasonable best
efforts to cause such post-effective amendment to be declared effective, in
which case the suspension shall be terminated immediately following the
effective date of the post-effective amendment to the Registration Statement.
Upon the occurrence of any such suspension, the Company shall use its
commercially reasonable best efforts to cause the Registration Statement to
become effective or to promptly amend or supplement the Registration Statement
on a post-effective basis or to take such action as is necessary to make resumed
use of the Registration Statement compatible with the Company’s best interests,
as applicable, so as to permit the Holders to resume sales of the Registrable
Shares as soon as possible.
11
(b) In
the
case of an event that causes the Company to suspend the use of a Registration
Statement (a “Suspension
Event”),
the
Company shall give written notice (a “Suspension
Notice”)
to the
Holders to suspend sales of the Registrable Shares pursuant to the Registration
Statement and such notice shall state generally the basis for the notice and
that such suspension shall continue only for so long as the Suspension Event
or
its effect is continuing and the Company is using its commercially reasonable
best efforts and taking all reasonable steps to terminate suspension of the
use
of the Registration Statement as promptly as possible. No Holder shall effect
any sales of the Registrable Shares pursuant to such Registration Statement
(or
such filings) at any time after it has received a Suspension Notice from the
Company and prior to receipt of an End of Suspension Notice (as defined below).
Each Holder agrees to keep confidential the fact that the Company has issued
a
Suspension Notice and the contents thereof. If so directed by the Company,
each
Holder will deliver to the Company all copies, other than permanent file copies
then in such Holder’s possession, of the prospectus covering the Registrable
Shares at the time of receipt of the Suspension Notice. The Holders may
recommence effecting sales of the Registrable Shares pursuant to the
Registration Statement (or such filings) following further notice to such effect
(an “End
of
Suspension Notice”)
from
the Company, which End of Suspension Notice shall be given by the Company to
the
Holders in the manner described above promptly following the conclusion of
any
Suspension Event.
(c) Notwithstanding
any provision herein to the contrary, if the Company shall give a Suspension
Notice pursuant to this Section 7, the Company agrees that it shall extend
the period of time during which the applicable Registration Statement shall
be
maintained effective pursuant to this Agreement by the number of days during
the
period from the date of receipt by the Holders of the Suspension Notice to
and
including the date of receipt by the Holders of the End of Suspension Notice
and
copies of the supplemented or amended prospectus necessary to resume
sales; PROVIDED
that such period of time shall not be extended beyond the date that securities
are no longer Registrable Securities.
|
8.
|
INDEMNIFICATION
AND
CONTRIBUTION.
|
(a) The
Company agrees to indemnify and hold harmless (i) each Holder and any
underwriter (as determined in the Securities Act) for such Holder,
(ii) each Person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange
Act), any such Person described in clause (i) (any of the Persons referred
to in
this clause (ii) being hereinafter referred to as a “Controlling
Person”),
and
(iii) the respective officers, directors, partners, employees,
representatives and agents of any such Person or any Controlling Person (any
Person referred to in clause (i), (ii) or (iii) may hereinafter be referred
to
as a “Purchaser
Indemnitee”),
to
the fullest extent lawful, from and against any and all losses, claims, damages,
judgments, actions, out-of-pocket expenses, and other liabilities (the
“Liabilities”),
including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, including the reasonable fees and expenses of counsel to any
Purchaser Indemnitee, joint or several, directly or indirectly related to,
based
upon, arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
or
prospectus included in such Registration Statement (as amended or supplemented
if the Company shall have furnished to such Purchaser Indemnitee any amendments
or supplements thereto), or any preliminary prospectus or any other document
used to sell the Registrable Shares, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading, except insofar as such Liabilities arise out of or are
based upon (i) any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information relating
to
any Purchaser Indemnitee furnished to the Company or any underwriter in writing
by such Purchaser Indemnitee expressly for use therein, or (ii) any untrue
statement contained in or omission from a preliminary prospectus if a copy
of
the prospectus (as then amended or supplemented, if the Company shall have
furnished to or on behalf of the Holder participating in the distribution
relating to the relevant Registration Statement any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder to the Person
asserting any such Liabilities who purchased Registrable Shares, if such
prospectus (or prospectus as amended or supplemented) is required by law to
be
sent or given at or prior to the written confirmation of the sale of such
Registrable Shares to such Person and the untrue statement contained in or
omission from such preliminary prospectus was corrected in the prospectus (or
the prospectus as amended or supplemented), or (iii) any use of any Registration
Statement or prospectus included therein during a period when a stop order
has
been issued in respect thereof or any action or proceedings for that purpose
have been initiated, or use of a Registration Statement or a prospectus included
therein (including any preliminary prospectus) that has been suspended pursuant
to Sections 5(e)(ii), 5(e)(iii), or 5(e)(iv) of this Agreement; provided that,
with respect to this subsection (iii), the Holder using such Registration
Statement or prospectus (including any preliminary Prospectus) received the
notice required by Section 5(e) hereof in advance of such use. The Company
shall
notify the Holders promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation), or litigation
of
which it shall have become aware in connection with the matters addressed by
this Agreement which involves the Company or a Purchaser Indemnitee. The
indemnity provided for herein shall remain in full force and effect regardless
of any investigation made by or on behalf of any Purchaser
Indemnitee.
12
(b) In
connection with any Registration Statement in which a Holder of Registrable
Shares is participating, and as a condition to such participation, such Holder
agrees, severally and not jointly, to indemnify and hold harmless the Company,
each Person who signs the Registration Statement, each Person who controls
the
Company within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act and the respective partners, directors,
officers, members, representatives, employees and agents of the Company, such
Person or Controlling Person to the same extent as the foregoing indemnity
from
the Company to each Purchaser Indemnitee, but only with reference to untrue
statements or omissions or alleged untrue statements or omissions made in
reliance upon and in strict conformity with information relating to such
Purchaser Indemnitee furnished to the Company in writing by such Purchaser
Indemnitee expressly for use in any Registration Statement or related
prospectus, any amendment or supplement thereto or any related preliminary
prospectus. The liability of any Purchaser Indemnitee pursuant to this paragraph
shall in no event exceed the net proceeds received by such Purchaser Indemnitee
from sales of Registrable Shares giving rise to such obligations.
(c) If
any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person
in respect of which indemnity may be sought pursuant to paragraph (a) or (b)
above, such Person (the “Indemnified
Party”)
shall
promptly notify the Person against whom such indemnity may be sought (the
“Indemnifying
Party”),
in
writing, of the commencement thereof (but the failure to so notify an
Indemnifying Party shall not relieve it from any liability which it may have
under this Section 8, except to the extent the Indemnifying Party is
materially prejudiced by the failure to give notice), and the Indemnifying
Party, upon request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and
any
others the Indemnifying Party may reasonably designate in such proceeding and
shall assume the defense of such proceeding and shall pay the reasonable fees
and expenses actually incurred by such counsel related to such proceeding.
Notwithstanding the foregoing, in any such proceeding, any Indemnified Party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party, unless
(i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed in writing to the contrary, (ii) the Indemnifying Party failed
within a reasonable time after notice of commencement of the action to assume
the defense and employ counsel reasonably satisfactory to the Indemnified Party,
(iii) the Indemnifying Party and its counsel do not actively and vigorously
pursue the defense of such action or (iv) the named parties to any such
action (including any impleaded parties), include both such Indemnified Party
and the Indemnifying Party, or any Affiliate of the Indemnifying Party, and
such
Indemnified Party shall have been reasonably advised by counsel that, either
(x) there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnifying Party or
such Affiliate of the Indemnifying Party or (y) a conflict may exist
between such Indemnified Party and the Indemnifying Party or such Affiliate
of
the Indemnifying Party (in which case the Indemnifying Party shall not have
the
right to assume nor direct the defense of such action on behalf of such
Indemnified Party, it being understood, however, that the Indemnifying Party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel),
for
all such Indemnified Parties, which firm shall be designated in writing by
those
Indemnified Parties who sold a majority of the Registrable Shares sold by all
such Indemnified Parties and any such separate firm for the Company, the
directors, the officers and such control Persons of the Company as shall be
designated in writing by the Company). The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld, but if settled with
such consent or if there is a final judgment for the plaintiff, the Indemnifying
Party agrees to indemnify any Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes
an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding.
13
(d) If
the
indemnification provided for in paragraphs (a) and (b) of this Section 8 is
for any reason held to be unavailable to an Indemnified Party in respect of
any
Liabilities referred to therein (other than by reason of the exceptions provided
therein) or is insufficient to hold harmless a party indemnified thereunder,
then each Indemnifying Party under such paragraphs, in lieu of indemnifying
such
Indemnified Party thereunder, shall contribute to the amount paid or payable
by
such Indemnified Party as a result of such Liabilities (i) in such
proportion as is appropriate to reflect the relative benefits of the Indemnified
Party on the one hand and the Indemnifying Party(ies) on the other in connection
with the statements or omissions that resulted in such Liabilities, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of
the Indemnifying Party(ies) and the Indemnified Party, as well as any other
relevant equitable considerations. The relative fault of the Company on the
one
hand and any Purchaser Indemnitees on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by such Purchaser Indemnitees
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The
parties agree that it would not be just and equitable if contribution pursuant
to this Section 8 were determined by pro
rata
allocation (even if such Indemnified Parties were treated as one entity for
such
purpose), or by any other method of allocation that does not take account of
the
equitable considerations referred to in paragraph 8(d) above. The amount paid
or
payable by an Indemnified Party as a result of any Liabilities referred to
in
paragraph 8(d) shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8, in no event
shall a Purchaser Indemnitee be required to contribute any amount in excess
of
the amount by which proceeds received by such Purchaser Indemnitee from sales
of
Registrable Shares exceeds the amount of any damages that such Purchaser
Indemnitee has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of this
Section 8, each Person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act)
a Holder shall have the same rights to contribution as such Holder and each
Person, if any, who controls (within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act) the Company, and each officer,
director, partner, employee, representative, agent or manager of the Company
shall have the same rights to contribution as the Company. Any party entitled
to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party
or
parties from whom contribution may be sought, but the omission to so notify
such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 8
or otherwise, except to the extent that any party is materially prejudiced
by
the failure to give notice. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act), shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
14
(f) The
indemnity and contribution agreements contained in this Section 8 will be
in addition to any liability which the Indemnifying Parties may otherwise have
to the Indemnified Parties referred to above. The Purchaser Indemnitee's
obligations to contribute pursuant to this Section 8 are several in
proportion to the respective number of Registrable Shares sold by each of the
Purchaser Indemnitees hereunder and not joint.
9. PARTICIPATION
IN UNDERWRITTEN REGISTRATIONS. No
Person
may participate in any registration hereunder which is underwritten unless
such
Person (a) agrees to sell such Person’s securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
customary questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
|
10.
|
MISCELLANEOUS.
|
(a) NOTICES.
All
notices or other communication required or permitted hereunder shall be in
writing and shall be delivered personally, telecopied or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telecopied or sent by certified, registered
or express mail or, if mailed, five days after the date of deposit in the United
States mail, as follows:
If
to the
Company:
New
York
Mortgage Trust, Inc.
1301
Avenue of the Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: President
Fax:
000-000-0000
15
With
a
copy to:
Hunton
& Xxxxxxxx LLP
000
Xxxx
Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. XxXxx, Esq.
Fax:
000-000-0000
If
to the
Investors:
JMP
Group, Inc.
000
Xxxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxx Xxxxxxx
Fax:
(000) 000-0000
With
a
copy to:
Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP
0000
X
Xxxxxx, X.X.
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxx, Esq.
Fax:
(000) 000-0000
Any
party
may by notice given in accordance with this Section 9(a) designate another
address or person for receipt of notices hereunder.
(b) AMENDMENT
AND WAIVER.
(i) No
failure or delay on the part of any party hereto in exercising any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single
or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the parties hereto at law, in equity or
otherwise.
(ii) Any
amendment, supplement or modification of or to any provision of this Agreement,
any waiver of any provision of this Agreement, and any consent to any departure
by any party from the terms of any provision of this Agreement, shall be
effective, (a) only if it is made or given in writing and signed by the
Company and by the holders of at least 66-2/3% of the Registrable Securities
and
(b) only in the specific instance and for the specific purpose for which
made or given.
(c) SPECIFIC
PERFORMANCE.
The
parties hereto intend that each of the parties have the right to seek damages
or
specific performance in the event that any other party hereto fails to perform
such party’s obligations hereunder. Therefore, if any party shall institute any
action or proceeding to enforce the provisions hereof, any party against whom
such action or proceeding is brought hereby waives any claim or defense therein
that the plaintiff party has an adequate remedy at law.
16
(d) HEADINGS.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(e) SEVERABILITY.
If any
one or more of the provisions contained herein, or the application thereof
in
any circumstance, is held invalid, illegal or unenforceable in any respect
for
any reason, the validity, legality and enforceability of any such provision
in
every other respect and of the remaining provisions hereof shall not be in
any
way impaired, unless the provisions held invalid, illegal or unenforceable
shall
substantially impair the benefits of the remaining provisions hereof.
(f) ENTIRE
AGREEMENT.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein.
This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(g) TERM
OF AGREEMENT.
The
provisions of this Agreement shall become effective upon the execution hereof
and shall terminate as provided herein.
(h) VARIATIONS
IN PRONOUNS.
All
pronouns and any variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require.
(i) GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(j) FURTHER
ASSURANCES.
Each of
the parties shall, and shall cause their respective Affiliates to, execute
such
instruments and take such action as may be reasonably required or desirable
to
carry out the provisions hereof and the transactions contemplated hereby.
(k) SUCCESSORS
AND ASSIGNS.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors, heirs, legatees and legal representatives. This
Agreement is not assignable except in connection with a transfer of Shares
in
accordance with this Agreement.
(l) COUNTERPARTS.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, and all of which taken together shall constitute one and
the
same instrument.
17
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
|
COMPANY:
|
NEW
YORK MORTGAGE TRUST, INC.
|
|
| |
|
|
|
/s/
Xxxxx Xxxx
|
||
|
Name:
Xxxxx Xxxx
|
||
|
Title:
Co-Chief Executive Officer
|
||
|
INVESTORS:
|
JMP
GROUP INC.
|
|
| |
|
|
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
||
|
Title:
|
||
|
JMP
REALTY TRUST, INC.
|
||
| |
|
|
|
/s/
Xxx X. Xxxxxx
|
||
|
Name:
Xxx X. Xxxxxx
|
||
|
Title:
President
|
||
|
HARVEST
OPPORTUNITY PARTNERS II, L.P.
|
||
| |
|
|
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
||
|
Title:
|
||
|
HARVEST
OPPORTUNITY PARTNERS OFFSHORE FUND, LTD.
|
||
| |
|
|
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
||
|
Title:
|
||
|
HARVEST
SMALL CAP PARTNERS, L.P.
|
||
| |
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
||
|
Name:
Xxxxxxx X. Xxxxx
|
||
|
Title:
Portfolio Manager
|
||
|
HARVEST
SMALL CAP OFFSHORE, LTD.
|
||
| |
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
||
|
Name:
Xxxxxxx X. Xxxxx
|
||
|
Title:
Portfolio Manager
|
||
18
