展览10.1
纽约抵押信托公司
2017股权激励计划
延期股票单位授予通知
根据不时修订的纽约按揭信托公司 2017 股票激励计划的条款和条件（」计划」)，纽约按揭信托有限公司（」公司」) 特此向下列个人授予（」您」或」参与者」) 延期股票单位数量（」数据传输系统」) 如下所述。DSU 的此奖项（此」奖项」) 受本文所列明的条款约束，随附的延期股票单位协议中所载的条款： 展品 A （」协议」)，该计划及 (如适用) 附的初始延期表格如下 附件 B 在授予日期之前由本公司与您之间签订（如适用，」延期表格」），每一个都以参考方式纳入本文。本文所使用但未定义的大写字词应具有本计划中所述的含义。
参与者: | [●] | ||||
授予日期: | [●] （这个“授予日期”) | ||||
延期股份单位总数: | [●] | ||||
分配时间表: | 除非在协议中明确规定，否则该计划及本文件所载的其他条款和条件中规定，DSU将于获授日次年份的日历年度之后的公司股东年度大会前一天，只要您从获授日起至该授予日期连续为公司或联属公司提供服务，便可完全取得。 第三节 除协议明确规定外，在计划及其他条款和条件所载之下，DSU将于授出日期之次年日历年度中股东周年大会前一日完全取得，但您需从授予日期起至该取得日期间持续为公司或其联属公司提供服务。 | ||||
通过您在下面的签名，即表示您同意受计划、协议及本延期存款单位授权通知的条款和条件约束（此」拨款通知」)。您承认您已完整审阅协议、计划和本补助通知，并完全了解本协议、计划和本补助通知的所有条文。您同意接受委员会就根据本协议、本计划或本补助通知所产生的任何问题或决定作出具有约束力、确定性和最终决定权。本拨款通知可以以一或多个对应文件（包括可携式文件格式（.pdf）和传真对应）执行，每份通知均视为原件，但所有文件一并构成一个相同的协议。
[签名页在后面]
证明如下：公司已由一名适任官员代表签署本授予通知，受奖人已经签署此授予通知，依上述中提供的所有目的生效。
纽约抵押信托公司
作者：
姓名:
职称:
参与者
名称: [●]
签名页
推迟股票单位授予通知
展览A
延后股票单位协议
此推迟的股份单位协议（与此协议附随的授予通知书一同，本「协议」是由纽约按揭信托有限公司，一家马里兰州公司（本「权益代理”和【●】（以下简称“参与者」）订立，日期为授予通知书中的授予日期，本协议随附于授予通知书之间。在本文件中使用但未特别定义的大写字词应符合计划或授予通知书中指定的含义。
1. 奖励就参与者对公司或联属公司的过去和/或持续服务，以及出自其他良好而有价值的考虑，在赋予通知书中设定的授予日期起生效，公司特此授予参与者通知书中设定的DSU数量，条件如通知书、本协议和计划中所设定的，计划已作为本协议的一部分，通过参考被纳入本协议，并且必要时还要参考推迟表。若计划与本协议之间存在任何不一致，则计划的条款为准。 在授予率达到的情况下，每个DSU代表有权收到公司的一股普通股，此后称为一「股」，受限于通知书、本协议、计划以及必要时的推迟表中所设定的条款与条件。 在DSUs经过授予和根据此处描述的方式结算之前，参与者将无权收到DSUs相关的股份或其他支付，除非计划或本协议明确规定另外。 在本奖项得以结算之前，DSUs和本奖项代表公司的一种无抵押债务，仅可从公司的一般资产支付。A类普通股（即「股份」）就参与者对公司或联属公司的过去和/或持续服务，以及出自其他良好而有价值的考虑，在赋予通知书中设定的授予日期起生效，公司特此授予参与者通知书中设定的DSU数量，条件如通知书、本协议和计划中所设定的，计划已作为本协议的一部分，通过参考被纳入本协议，并且必要时还要参考推迟表。若计划与本协议之间存在任何不一致，则计划的条款为准。 在授予率达到的情况下，每个DSU代表有权收到公司的一股普通股，此后称为一「股」，受限于通知书、本协议、计划以及必要时的推迟表中所设定的条款与条件。 在DSUs经过授予和根据此处描述的方式结算之前，参与者将无权收到DSUs相关的股份或其他支付，除非计划或本协议明确规定另外。 在本奖项得以结算之前，DSUs和本奖项代表公司的一种无抵押债务，仅可从公司的一般资产支付。
附件A-1
2. DSU的分配权； 控制变更除非另有规定, 否则 第3(a)条的责任）DSU将按照授予通知书中设定的分配时间表进行分配。在控股权变更发生（如计划中所定义），任何未分配的DSU将在控股权变更日期当日完全分配并且不可丧失，并将有资格按照第一句进行结算。 第5条除非DSU如上所述已经分配，否则参与者将无权收取任何与DSU基础股票相关的分红或其他分配（或其他所有权权利）；然而，本 第二节 并非旨在改变参与者根据 第4节。碎股应不得在此条款下发放，当任何此处条款可能导致碎股发放时，任何对该碎股的发放应推迟，直至该碎股及其他碎股合计等于一个有份的整数股。
3. 终止服务的影响.
(a) 因死亡或残疾终止服务关系如果参与者与公司或任何联属公司之服务关系因参与者死亡而终止，任何未取得的DSUs将于死亡日当天变为完全取得并且不可丧失，并按照第二条款的规定结算。 第5条如果参与者与公司或任何联属公司之服务关系因参与者残疾而终止，任何未取得的DSUs将于参与者服务条款终止之日变为完全取得并不可丧失，并按照第二条款的规定结算。 第5条根据本协议，“伤残“指的是参与者符合法典第22(e)(3)条所界定的永久和完全残疾的含义。”
(b) 其他服务终止。 除非另有规定 第3(a)条的责任），若参加者与公司或附属公司的服务关系因任何原因终止，任何未解除限制性股票单位（DSUs）（以及由此类DSUs及持有人身份所产生的所有权利）将自动于终止日期终止，并将不经公司进一步操作而被没收，并且对公司而言将免费且无需提前通知，未解除限制性股票单位的部分（以及由此类DSUs及持有人身份所产生的所有权利）将依据所述文件的第二句完成结算。 第5条.
A-2
4. Dividend Equivalents. Notwithstanding anything to the contrary contained herein, each DSU subject to this Award is hereby granted in tandem with a corresponding dividend equivalent (“DER”), which DER shall remain outstanding from the Date of Grant until the earlier of the settlement or forfeiture of the DSU to which the DER corresponds. Each vested DER entitles the Participant to receive payments, subject to and in accordance with this Agreement, in an amount equal to any dividends paid by the Company in respect of the Share underlying the DSU to which such DER relates. The Company shall establish, with respect to each unvested DSU, a separate DER bookkeeping account for such DSU (a “DER Account”), which shall be credited (without interest) on the applicable dividend payment dates with an amount equal to any dividends paid during the period that such unvested DSU remains outstanding with respect to the Share underlying the DSU to which such DER relates. Upon the date that the DSU becomes vested, the DER (and the DER Account) with respect to such vested DSU shall become vested. Similarly, upon the forfeiture of a DSU, the DSU (and the DER Account) with respect to such forfeited DSU shall also be forfeited. Payment of credited amounts in the DER Account with respect to any vested DERs that relate to vested DSUs that have not yet been settled in accordance with Section 5 shall be made as soon as practicable, and within sixty (60) days, after the date that such DER vests. Following vesting of the DSUs under Section 2 or 3 but prior to the settlement of such vested DSUs in accordance with Section 5, amounts shall no longer be credited to the DER Account but instead each vested DER shall entitle the Participant to receive payments of any dividends paid by the Company in respect of the Share underlying the vested DSU to which such vested DER relates, such payment to be made on or promptly following the date that the Company pays such dividend. The Participant shall not be entitled to receive any interest with respect to the payment of DERs. DERs shall not entitle the Participant to any payments relating to the dividends paid after the earlier to occur of the date that the applicable vested DSU is settled in accordance with Section 5 or the forfeiture of the DSU underlying such DER. The DERs and any amounts that may become payable in respect thereof will be treated separately from the DSUs for purposes of Section 409A of the Internal Revenue Code of 1986, as amended, including the guidance and regulations promulgated thereunder and successor provisions, guidance and regulations thereto (“Section 409A”) (including for the designation of the time and form of payments required by Section 409A).
5. Settlement of DSUs. Following vesting of the DSUs under Section 2, the Company shall deliver to the Participant a number of Shares equal to the number of vested DSUs subject to this Award either (a) as soon as practicable following the applicable vesting date but in no event later than sixty (60) days after such vesting date or (b) if applicable, at the time elected by the Participant under the Deferral Form. Notwithstanding anything to the contrary contained herein or the Deferral Form (if applicable), following any termination of the Participant’s service relationship with the Company or an Affiliate under Section 3, the Company shall deliver to the Participant a number of Shares equal to such number of vested DSUs (if any) as soon as practicable following the applicable date of termination but in no event later than sixty (60) days after such date of termination. All Shares issued hereunder shall be delivered either by delivering one or more certificates for such Shares to the Participant or by entering such Shares in book-entry form, as determined by the Committee in its sole discretion The value of Shares shall not bear any interest owing to the passage of time. Neither this Section 5 nor any action taken under this Agreement will be construed to create a trust or a funded or secured obligation of any kind.
A-3
6. Tax Consequences. The Participant acknowledges there may be adverse tax consequences on the receipt, vesting or settlement of this Award or disposition of the underlying Shares and that the Participant has been advised, and is advised, to consult a tax advisor. The Participant represents that the Participant is in no manner relying on the Board, the Committee, the Company or any of its Affiliates or any of their respective managers, directors, officers, employees or authorized representatives (including, without limitation, attorneys, accountants, consultants, bankers, lenders, prospective lenders and financial representatives) for tax advice or an assessment of such tax consequences. The Participant further agrees to indemnify and hold the Company and its Affiliates harmless for any damages, costs, expenses, taxes, judgments or other actions or amounts resulting from any actions or inactions of the Participant regarding the tax consequences of this Award or the underlying shares.
7. Non-Transferability. During the lifetime of the Participant, the DSUs may not be sold, pledged, assigned or transferred in any manner other than by will, divorce or the laws of descent and distribution, unless and until the Shares underlying the DSUs have been issued, and all restrictions applicable to such Shares have lapsed. Neither the DSUs nor any interest or right therein shall be liable for the debts, contracts or engagements of the Participant or his or her successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means, whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect, except to the extent that such disposition is permitted by the preceding sentence.
8. Rights as a Stockholder. Neither the Participant nor any person claiming under or through the Participant shall have rights as a stockholder of the Company with respect to any Shares that may become deliverable hereunder unless and until the Participant has become the holder of record of such Shares, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of any such Shares, except as otherwise specifically provided for in the Plan or this Agreement.
9. Execution of Receipts and Releases. Any issuance or transfer of Shares or other property to the Participant or the Participant’s legal representative, heir, legatee or distributee, in accordance with this Agreement shall be in full satisfaction of all claims of such person hereunder. As a condition precedent to such payment or issuance, the Company may require the Participant or the Participant’s legal representative, heir, legatee or distributee to execute (and not revoke within any time provided to do so) a release and receipt therefor in such form as it shall determine appropriate; provided, however, that any review period under such release will not modify the date of settlement with respect to vested DSUs.
A-4
10. No Right to Continued Service or Awards. Nothing in the adoption of the Plan, nor the award of the DSUs thereunder pursuant to the Grant Notice and this Agreement, shall confer on the Participant the right to a continued service relationship with the Company or any Affiliate or affect in any way the right of the Company or any such Affiliate to terminate such service relationship. The grant of the DSUs is a one-time benefit and creates no contractual or other right to receive a grant of Awards or benefits in lieu of Awards in the future. Any future Awards will be granted at the sole discretion of the Company.
11. Legal and Equitable Remedies. The Participant acknowledges that a violation or attempted breach of any of the Participant's covenants and agreements in this Agreement will cause such damage as will be irreparable, the exact amount of which would be difficult to ascertain and for which there will be no adequate remedy at law, and accordingly, the parties hereto agree that the Company and its Affiliates shall be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining the Participant or the affiliates, partners or agents of the Participant from such breach or attempted violation of such covenants and agreements, as well as to recover from the Participant any and all costs and expenses sustained or incurred by the Company or any Affiliate in obtaining such an injunction, including, without limitation, reasonable attorneys' fees. The parties to this Agreement agree that no bond or other security shall be required in connection with such injunction. Any exercise by either of the parties to this Agreement of its rights pursuant to this Section 11 shall be cumulative and in addition to any other remedies to which such party may be entitled.
12. Notices. All notices and other communications under this Agreement shall be in writing and shall be delivered to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
If to the Company, unless otherwise designated by the Company in a written notice to the Participant (or other holder):
New York Mortgage Trust, Inc.
90 Park Avenue
90 Park Avenue
New York, New York 10016
Attn: Compensation Committee
If to the Participant, at the Participant’s last known address on file with the Company.
Any notice that is delivered personally or by overnight courier or telecopier in the manner provided herein shall be deemed to have been duly given to the Participant when it is mailed by the Company or, if such notice is not mailed to the Participant, upon receipt by the Participant. Any notice that is addressed and mailed in the manner herein provided shall be conclusively presumed to have been given to the party to whom it is addressed at the close of business, local time of the recipient, on the fourth day after the day it is so placed in the mail.
A-5
13. Consent to Electronic Delivery; Electronic Signature. In lieu of receiving documents in paper format, the Participant agrees, to the fullest extent permitted by law, to accept electronic delivery of any documents that the Company may be required to deliver (including, but not limited to, prospectuses, prospectus supplements, grant or award notifications and agreements, account statements, annual and quarterly reports and all other forms of communications) in connection with this and any other Award made or offered by the Company. Electronic delivery may be via a Company electronic mail system or by reference to a location on a Company intranet to which the Participant has access. The Participant hereby consents to any and all procedures the Company has established or may establish for an electronic signature system for delivery and acceptance of any such documents that the Company may be required to deliver, and agrees that his or her electronic signature is the same as, and shall have the same force and effect as, his or her manual signature.
14. Agreement to Furnish Information. The Participant agrees to furnish to the Company all information requested by the Company to enable it to comply with any reporting or other requirement imposed upon the Company by or under any applicable statute or regulation.
15. Entire Agreement; Amendment. This Agreement and, if applicable, the Deferral Form constitute the entire agreement of the parties with regard to the subject matter hereof, and contains all the covenants, promises, representations, warranties and agreements between the parties with respect to the DSUs granted hereby. Without limiting the scope of the preceding sentence, except as provided therein, all prior understandings and agreements, if any, among the parties hereto relating to the subject matter hereof are hereby null and void and of no further force and effect. The Committee may, in its sole discretion, amend this Agreement from time to time in any manner that is not inconsistent with the Plan; provided, however, that except as otherwise provided in the Plan or this Agreement, any such amendment that materially reduces the rights of the Participant shall be effective only if it is in writing and signed by both the Participant and an authorized officer of the Company.
16. Severability and Waiver. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then the invalidity or unenforceability of such provision shall not affect the validity or enforceability of any other provision of this Agreement, and all other provisions shall remain in full force and effect. Waiver by any party of any breach of this Agreement or failure to exercise any right hereunder shall not be deemed to be a waiver of any other breach or right. The failure of any party to take action by reason of such breach or to exercise any such right shall not deprive the party of the right to take action at any time while or after such breach or condition giving rise to such rights continues.
17. Clawback. Notwithstanding any provision in the Grant Notice, this Agreement or the Plan to the contrary, to the extent required by (a) applicable law, including, without limitation, the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, any Securities and Exchange Commission rule or any applicable securities exchange listing standards and/or (b) any policy that may be adopted or amended by the Board from time to time, including the Company’s Clawback Policy, all Shares issued hereunder shall be subject to forfeiture, repurchase, recoupment and/or cancellation to the extent necessary to comply with such law(s) and/or policy and only as it relates to the Company.
A-6
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
19. Successors and Assigns. The Company may assign any of its rights under this Agreement without the Participant’s consent. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein and in the Plan, this Agreement will be binding upon the Participant and the Participant's beneficiaries, executors, administrators and the person(s) to whom the DSUs may be transferred by will or the laws of descent or distribution.
20. Headings. Headings are for convenience only and are not deemed to be part of this Agreement.
21. Counterparts. The Grant Notice may be executed in one or more counterparts, including by way of any electronic or digital signature, subject to applicable law, each of which shall be deemed an original and all of which together shall constitute one instrument. Delivery of an executed counterpart of the Grant Notice by facsimile or portable document format (.pdf) attachment to electronic mail shall be effective as delivery of a manually executed counterpart of the Grant Notice.
22. Section 409A. Notwithstanding anything herein or in the Plan to the contrary, the DSUs and the DERs granted under this Agreement are intended to comply with the limitations and requirements of Section 409A and will be limited, construed and interpreted in accordance with such intent. Notwithstanding the foregoing, the Company and its Affiliates make no representations that the DSUs or the DERs provided under this Agreement comply with Section 409A and in no event shall the Company or any Affiliate be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A. Each payment under this Agreement is considered a separate payment for Section 409A.
A-7
EXHIBIT B
INITIAL DEFERRAL FORM
Please complete this Initial Deferral Form (this “Deferral Form”) and return a signed copy to the Company’s Chief Financial Officer, no later than the day immediately preceding the Date of Grant if you would like to defer settlement of the DSUs.
Participant: [●]
NOTE: This Deferral Form relates to the DSUs. If you do not wish to make a deferral election, you do not have to take any action and payment of the DSUs will be made to you at the time specified in the Agreement. If you do wish to make a deferral election, this Deferral Form must be completed, signed by you and returned to the Company as described herein.
1. Deferral of the DSUs
In making this election, these rules apply:
•Unless otherwise specified, capitalized terms used but not defined in this Deferral Form will have the meaning attributed to them in the Agreement or the Plan, as applicable.
•You must select a settlement date below for the DSUs, which notwithstanding anything to the contrary in the Agreement, will be the dates on which you will receive payment of the DSUs if the DSUs vest.
2. Election of Settlement Date for the DSUs
I hereby elect to receive payment of vested DSUs (if the DSUs vest) on the following date (please select one):
A Change in Control;
The date that is the third anniversary of the Date of Grant; or
The earliest to occur of the following two dates:
a. The date of a Change in Control; or
b. The date that is the third anniversary of the Date of Grant.
Exhibit B-1
3. Signature
I understand that this Deferral Form will become effective upon receipt by the Company but in no event later than the time that is immediately prior to the Date of Grant. Once I have elected the settlement date for the DSUs by filing this Deferral Form, I understand that (a) the settlement election will be effective as of the effective date specified in the preceding sentence, (b) the settlement election will control over any contrary settlement date specified in the first sentence of Section 5 of the Agreement with respect to the DSUs, and (c) the settlement election may not be changed at any time (except to the extent any subsequent change complies with Section 409A).
By signing this Deferral Form, I acknowledge my understanding of, and agreement with, the terms in this Deferral Form, the Agreement, and the Plan.
NEW YORK MORTGAGE TRUST, INC.
By:
Name:
Title:
PARTICIPANT
Name: [●]
B-2