New York Mortgage Trust, Inc. New York Mortgage Trust, Inc. Form of Stock Award Agreement
Exhibit
10.1
New
York Mortgage Trust, Inc.
| Form of Stock Award Agreement |
Page
1
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New
York Mortgage Trust, Inc.
THIS
AGREEMENT dated the ___ day of July, 2009, between NEW YORK MORTGAGE TRUST,
INC., a Maryland corporation (the “Company”), and
________________________________, (the “Participant”), is made pursuant and
subject to the provisions of the Company’s 2005 Stock Incentive Plan (the
“Plan”), a copy of which has been made available to the
Participant. All terms used herein that are defined in the Plan have
the same meaning given them in the Plan.
1. Stock
Award. Pursuant to the Plan, the Company, on July __, 2009,
(the “Date of Grant”) granted to the Participant, subject to the terms and
conditions of the Plan and subject further to the terms and conditions herein
set forth, a Stock Award covering _____________ shares of Common Stock of the
Company, hereafter described as the “Shares.”
2. Restrictions. Except
as provided in this Stock Award Agreement (“Agreement”), the Shares are
nontransferable and are subject to a substantial risk of
forfeiture.
3. Vesting. The
Participant’s interest in one-third of the Shares granted under this Agreement
shall become nonforfeitable and transferable (“Vested”) on the date hereof and
each of the first and second anniversaries of the Date of Grant.
4. Death or Disability. If the
Participant’s employment with the Company is terminated due to the death of the
Participant, the Shares shall become fully vested and non-forfeitable upon the
date of death. If the Participant’s employment with the Company is
terminated due to disability of the Participant, the Shares shall become fully
vested and non-forfeitable upon the date of the termination of such
Participant’s employment. For purposes of this Agreement, the term
“Disability” means that the Participant is permanently and totally disabled
within the meaning of section 22(e)(3) of the Code.
5. Change in
Control. If there is Change in Control of the Company, the
Shares shall become fully vested and non-forfeitable immediately upon the
occurrence of the event causing the Change in Control. For purposes of this
Agreement, the term Change in Control shall have the meaning ascribed to it in
Section 1.06 of the Plan; provided, however, that if any Participant has a
separate written employment agreement that specifically defines Change in
Control, such definition shall be used for that Participant only.
6. Forfeiture. Except
as provided in Paragraphs 4 and 5, all Shares that are not then Vested shall be
forfeited upon the termination of the Participant’s employment with the Company
and its Affiliates.
7. Fractional
Shares. Fractional shares shall not Vest hereunder, and when
any provision hereof may cause a fractional share to Vest, any Vesting in such
fractional share shall be postponed until such fractional share and other
fractional shares equal a Vested whole share.
8. Change in Capital
Structure. The terms of this Agreement shall be adjusted as
the Board determines is equitably required in the event the Company effects one
or more stock dividends, stock split-ups, subdivisions or consolidations of
shares or other similar changes in capitalization.
9. Governing Law. This
Agreement shall be governed by the laws of the State of Maryland.
10. Stock Power. With
respect to any Shares that are forfeited in accordance with Paragraph 6 or
withheld in accordance with Paragraph 12, the Participant hereby irrevocably
appoints the Company’s Chief of Executive Officer and the Company’s Secretary as
the Participant’s attorneys to transfer any forfeited Shares on the books of the
Company with full power of substitution in the premises. The
Company’s Chief Executive Officer and Secretary shall use the authority granted
in this Paragraph 10 to cancel any Shares that are forfeited in accordance with
Paragraph 6 or withheld in accordance with Paragraph 12.
11. Settlement. Each
Share that is earned and vested in accordance with this Agreement shall be
settled by the issuance of a whole share of Common Stock.
12. Tax
Withholding. Vested Shares are treated as compensation and are
taxed at normal federal and state income tax rates. The Participant
must also pay Medicare tax (“FICA – HI”) and social security taxes (“FICA-
OASDI” and as may be limited by an annual cap of total
compensation). Prior to any release of any vested
Shares in the form of Common Stock, cash or a combination thereof, the
participant must pay, in advance, all of the Participant’s share of federal and
state income and related payroll taxes on such Shares. Participant
hereby consents to whatever the action the Company directs to satisfy the
minimum statutory federal and state withholding requirements, if any, which the
Company determines are applicable.
Participant’s
who are subject to the Company’s Xxxxxxx Xxxxxxx Policy are only permitted to
trade the Vested Shares during the Company’s open period trading window as
established by the Company’s policies and procedures manual, Corporate
Governance: Xxxxxxx Xxxxxxx Policy.
13. Shareholder
Rights. The Participant shall have all of the rights of a
shareholder with respect to the Shares, including the right to vote the Shares
and receive dividends thereon, from the Date of Grant and prior to a forfeiture
of the Shares. Stock distributed in connection with a Common Stock
split or Common Stock dividend shall be subject to restrictions and a risk of
forfeiture to the same extent as the Shares with respect to which such Common
Stock has been distributed. On and after the date that any Shares are
forfeited in accordance with Paragraph 6, the Participant shall have no further
rights as a shareholder with respect to the forfeited Shares. The
Company shall retain custody of the certificates evidencing the Shares until the
Shares become Vested in accordance with Paragraphs 3, 4 or 5, at which time the
Company shall deliver to the Participant a certificate evidencing the Vested
Shares.
14. No Right to Continued
Employment. This Agreement does not confer upon the
Participant any right with respect to continuance of employment by the Company
or an Affiliate nor shall it interfere in any way with the right of the Company
or an Affiliate to terminate the Participant’s employment at any
time.
15. Conflicts. In the
event of any conflict between the provisions of the Plan as in effect on the
date hereof and the provisions of this Agreement, the provisions of the Plan
shall govern. Moreover, in the event of any conflict between the
provisions of this Agreement and a separate written employment agreement between
the Participant and the Company, the provisions of the separate written
employment agreement between the Participant and the Company shall
govern. All references herein to the Plan shall mean the Plan as in
effect on the date hereof.
16. Participant Bound by
Plan. The Participant hereby acknowledges that a copy of the
Plan has been made available to the Participant and agrees to be bound by all
the terms and provisions thereof.
17. Binding
Effect. Subject to the limitations stated above and in the
Plan, this Agreement shall be binding upon and inure to the benefit of the
legatees, distributees, and personal representatives of the Participant and the
successors of the Company.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly
authorized officer, and the Participant has affixed his signature
hereto.
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NEW
YORK MORTGAGE TRUST, INC.
By: __________________________________
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______________________________________
Participant
- Signature
______________________________________
Participant
- Handwritten Name
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