Exhibit
10.1
AMENDED
AND RESTATED
EMPLOYMENT
AGREEMENT OF
STEVEN
R. MUMMA
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
“Agreement”) is made and entered into this 11th day of
February, 2009, between New York Mortgage Trust, Inc., a Maryland
corporation (the “Company”), and Steven R. Mumma (the
“Executive”). This Agreement amends, restates and
supersedes in all respects that certain Employment Agreement, dated
as of the 18 th
day
of January, 2008, by and between the Company and the
Executive.
The
Executive is presently employed as the Chief Executive Officer,
President and Chief Financial Officer of the
Company. The Board of Directors of the Company (the
“Board”) recognizes that the Executive’s
contribution to the growth and success of the Company has been
substantial. The Board desires to provide for the
continued employment of the Executive and to make certain changes
in the Executive’s employment arrangements with the Company
which the Board has determined will reinforce and encourage the
continued attention and dedication to the Company of the Executive
as a member of the Company’s management, in the best interest
of the Company and its shareholders. The Executive is
willing to commit himself to continue to serve the Company, on the
terms and conditions herein provided. The
Executive’s continued employment with the Company is
contingent on his execution of this Employment
Agreement.
In
order to effect the foregoing, the Company and the Executive wish
to enter into an employment agreement on the terms and conditions
set forth below. Accordingly, in consideration of the
premises and the respective covenants and agreements of the parties
herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1.
Employment . The Company hereby agrees to
continue to employ the Executive, and the Executive hereby agrees
to continue to serve the Company, on the terms and conditions set
forth herein.
2.
Term . The Term of this Employment Agreement will
commence on February 11, 2009 and end on December 31, 2009, unless
further extended or sooner terminated as hereinafter
provided. “Term” shall mean the actual
duration of Executive’s employment hereunder, taking into
account any extensions or termination of employment pursuant to
Section 6.
3.
Position and Duties . The Executive shall serve
as the Chief Executive Officer, President and Chief Financial
Officer of the Company and shall have such responsibilities, duties
and authority as he may have as of the date hereof (or any position
to which he may be promoted after the date hereof) and as may from
time to time be assigned to the Executive by the Board that are
consistent with such responsibilities, duties and
authority. The Executive shall also serve as a senior
executive officer of certain subsidiaries of the Company, with
positions, titles and responsibilities that are suitable for the
Chief Executive Officer, President and Chief Financial Officer of
the Company, at the reasonable request of the Board without
additional compensation. The Executive understands that
the Company may hire another person in the future to assume the
position of Chief Financial Officer and that, in such event, the
Executive would be required to resign as Chief Financial
Officer. The Executive shall devote substantially all
his working time and efforts to the business and affairs of the
Company; provided, that nothing in this Agreement shall preclude
Executive from serving as a director or trustee in any other firm
or from pursuing personal real estate investments and other
personal investments, as long as such activities do not interfere
with Executive’s performance of his duties
hereunder.
4.
Place of Performance . In connection with the
Executive’s employment by the Company, the Executive shall be
based at the principal executive offices of the Company in New
York, New York, except for required travel on the Company’s
business to an extent substantially consistent with present
business travel obligations.
5. Compensation
and Related Matters.
(a)
Base Salary . The Company shall pay the Executive
a base salary annually (the “Base Salary”), which shall
be payable in periodic installments according to the
Company’s normal payroll practices. The initial
Base Salary shall be $200,000 effective retroactively to
January 1, 2009. During the Term, the Board or the
Compensation Committee of the Board (the “Compensation
Committee”) shall review the Base Salary at least once a year
to determine whether the Base Salary should be increased effective
the following January 1. Any increase shall be
determined before March 31 of each year and shall be retroactive to
January 1. The Base Salary, including any increases,
shall not be decreased during the Term. For purposes of
this Agreement, the term “Base Salary” shall mean the
amount established and adjusted from time to time pursuant to this
Section 5(a).
(b) Cash
Incentive Awards.
(i)
Annual Cash Bonus . The Executive shall be
eligible to participate in the Company’s annual cash
incentive bonus plan adopted by the Compensation Committee for each
fiscal year (including any partial year) during the Term of this
Agreement (“Bonus Plan”). If the Executive
or the Company, as the case may be, satisfies the performance
criteria contained in such Bonus Plan for a fiscal year, he shall
receive an annual Incentive Bonus (as defined below) in an amount
determined by the Compensation Committee and subject to
ratification by the Board, if required. If the Executive
or the Company, as the case may be, fails to satisfy the
performance criteria contained in such Bonus Plan for a fiscal
year, the Compensation Committee may determine whether any
Incentive Bonus shall be payable to Executive for that year,
subject to ratification by the Board, if required. The
Bonus Plan shall contain both individual and corporate performance
goals for each fiscal year established by the Compensation
Committee. The annual Incentive Bonus shall be paid to
the Executive no later than thirty (30) days after the date the
Compensation Committee determines whether the criteria in the Bonus
Plan for such fiscal year were satisfied.
(ii)
Definition of Incentive Bonus . For purposes of
this Agreement, the term “Incentive Bonus” shall mean
any annual cash bonus payable pursuant to
Section 5(b)(i) and any special bonus payable pursuant to
Section 5(b)(ii). The total target Incentive Bonus
for 2009, assuming the Company and Executive achieve the
performance goals established in the Bonus Plan to be established
by the Compensation Committee referred to in
Section 5(b)(i) are achieved, shall be in the range of
$300,000 to $600,000.
(c)
Stock Based Awards . The Company has established
the 2004 Stock Incentive Plan (“Stock Incentive
Plan”). Subject to the terms and conditions of the
Stock Incentive Plan, as amended from time to time, the Executive
shall be eligible to participate in the Stock Incentive Plan, and
shall be eligible to receive restricted stock awards under the
Stock Incentive Plan. The Compensation Committee shall
approve any such awards made to the Executive pursuant to the Stock
Incentive Plan.
(i)
Stock Incentive Plan Restricted Stock Awards
. Any Stock Incentive Plan provides for the issuance of
shares of Company common stock as restricted common stock
(“Restricted Stock Grants”) to the extent that such
shares of common stock are available
thereunder. Restricted Stock Grants awarded to the
Executive shall vest such that 1/3 of the awarded shares are vested
upon issuance, 1/3 shall vest on the first anniversary of the date
of issuance, and 1/3 shall vest on the second anniversary of the
date of issuance. Notwithstanding the foregoing, the
Executive will be 100% vested and all restrictions on each
outstanding Restricted Stock Grant will lapse upon (i) a
Change in Control (as defined herein), (ii) a termination by
the Company without Cause (as defined herein), (iii) a
termination by the Executive for Good Reason (as defined herein),
(iv) the Executive’s death, (v) the Disability (as
defined below) of the Executive, and that the Executive will
forfeit all unvested shares if he is terminated for Cause or he
terminates for other than Good Reason. The common stock issued as
Restricted Stock Grants will have voting and dividend
rights.
For
purposes of this Agreement:
“Acquiring
Person” means that a Person, considered alone or as part of a
“group” within the meaning of Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended, is or becomes
directly or indirectly the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of securities representing at least
fifty percent (50%) of the Company’s then outstanding
securities entitled to vote generally in the election of the Board;
provided, however, that JMP Group and its affiliates shall not be
deemed to be an Acquiring Person for purposes of this
Agreement.
“Continuing
Director” means any member of the Board, while a member of
the Board and (i) who was a member of the Board on the closing
date of the Company’s initial public offering of the Common
Stock or (ii) whose nomination for or election to the Board
was recommended or approved by a majority of the Continuing
Directors.
“Control
Change Date” means the date on which a Change in Control
occurs. If a Change in Control occurs on account of a
series of transactions, the “Control Change Date” is
the date of the last of such transactions.
“Change
in Control” means (i) a Person is or becomes an
Acquiring Person; (ii) holders of the securities of the
Company entitled to vote thereon approve any agreement with a
Person (or, if such approval is not required by applicable law and
is not solicited by the Company, the closing of such an agreement)
that involves the transfer of all or substantially all of the
Company’s total assets on a consolidated basis, as reported
in the Company’s consolidated financial statements filed with
the Securities and Exchange Commission; (iii) holders of the
securities of the Company entitled to vote thereon approve a
transaction (or, if such approval is not required by applicable law
and is not solicited by the Company, the closing of such a
transaction) pursuant to which the Company will undergo a merger,
consolidation, or statutory share exchange with a Person,
regardless of whether the Company is intended to be the surviving
or resulting entity after the merger, consolidation, or statutory
share exchange, other than a transaction that results in the voting
securities of the Company carrying the right to vote in elections
of persons to the Board outstanding immediately prior to the
closing of the transaction continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) at least 50% (fifty percent) of the
Company’s voting securities carrying the right to vote in
elections of persons to the Company’s Board, or such
securities of such surviving entity, outstanding immediately after
the closing of such transaction; (iv) the Continuing Directors
or directors who are affiliated with JMP Group or its affiliates
cease for any reason to constitute a majority of the Board; or
(v) the Board adopts a resolution to the effect that, in its
judgment, as a consequence of any one or more transactions or
events or series of transactions or events, a Change in Control of
the Company has effectively occurred. The Board shall be entitled
to exercise its sole and absolute discretion in exercising its
judgment and in the adoption of such resolution, whether or not any
such transaction(s) or event(s) might be deemed, individually or
collectively, to satisfy any of the criteria set forth in
subparagraphs (i) through
(v) above. Notwithstanding the foregoing, for
purposes of this Agreement, (a) the issuance and sale by the
Company of its Series A Convertible Preferred Stock and any
conversion of such Series A Convertible Preferred Stock into shares
of the Company’s common stock shall not be deemed to be a
Change of Control, (b) any acquisition by JMP Group or one or more
of its affiliates of (A) fifty percent (50%) or more of the voting
securities of the Company entitled to vote in the election of
directors, whether by merger, share exchange, tender offer, stock
purchase, consolidation or other form of business combination, or
(B) assets of the Company in a transaction that involves a transfer
of assets that requires approval by the Company’s
shareholders under the Maryland General Corporation Law, shall not
be deemed to be a Change of Control, and (c) any issuance by the
Company of newly issued shares of its capital stock in a private or
public offering of securities for cash shall not be deemed to be a
Change of Control.
“Person”
means any human being, firm, corporation, partnership, or other
entity. “Person” also includes any human
being, firm, corporation, partnership, or other entity as defined
in sections 13(d)(3) and 14(d)(2) of the Exchange
Act. The term “Person” does not include the
Company or any Related Entity, and the term Person does not include
any employee-benefit plan maintained by the Company or any Related
Entity, or any person or entity organized, appointed, or
established by the Company or any Related Entity for or pursuant to
the terms of any such employee-benefit plan, unless the Board
determines that such an employee-benefit plan or such person or
entity is a “Person”.
“Related
Entity” means any entity that is part of a controlled group
of corporations or is under common control with the Company within
the meaning of Sections 1563(a), 414(b) or 414(c) of the
Code.
(d) Benefits.
(i)
Vacation . The Executive shall be entitled to
four (4) weeks of paid vacation per full calendar
year. The Executive shall be entitled to cash in lieu of
any unused vacation time. The Executive shall not be
entitled to carry over any unused vacation time from year to
year.
(ii)
Sick and Personal Days . The Executive shall be
entitled to sick and personal days in accordance with the policies
of the Company.
(iii) Employee
Benefits.
(A)
Participation in Employee Benefit Plans . Subject
to the terms of any applicable plans, policies or programs, the
Executive and his spouse and eligible dependents, if any, and their
respective designated beneficiaries where applicable, will be
eligible for and entitled to participate in any Company sponsored
employee benefit plans, including but not limited to benefits such
as group health, dental, accident, disability insurance, group life
insurance, and a 401(k) plan, as such benefits may be offered from
time to time, on a basis no less favorable than that applicable to
other executives of the Company.
(B)
Disability Insurance . The Company shall
reimburse the Executive the amount of the premiums paid by the
Executive on, at the Executive’s cost, a renewable long-term
Disability plan that, subject to the terms of such plan and any
applicable plans, policies or programs, provides for payment of not
less than $240,000.00 for so long as any long-term Disability of
the Executive continues. In addition, the Company shall
reimburse the Executive the amount of the premiums payable by the
Executive with respect to a personal supplemental long-term
disability insurance policy providing for benefits equal to at
least 100% of the Executive’s Base Salary for so long as any
long-term Disability of the Executive continues. The
Company shall not be obligated to reimburse the Executive for such
amounts until the Executive has presented the Company with a
statement documenting such payments.
(C)
Annual Physical . If the Executive desires an
annual physical examination, the Company shall provide, at its
cost, a medical examination for the Executive on an annual basis by
a licensed physician in the New York, New York metropolitan area
selected by the Executive. The results of the
examination and any medical information or records regarding the
examination will be provided by the physician to the executive, and
not to the Company.
(D)
Directors and Officers Insurance . During the
Term and for a period of 24 months thereafter, the Executive shall
be entitled to director and officer insurance coverage for his acts
and omissions while an officer and director of the Company on a
basis no less favorable to him than the coverage provided to
current officers and directors.
(E)
Life Insurance . The Company shall reimburse the
Executive the amount of the premiums paid by the Executive on a
whole life policy for the benefit of the Executive or the
Executive’s designated beneficiaries with a death benefit of
$3.0 million. The Executive shall be entitled to
reimbursement of any income tax that the Executive incurs with
respect to the Company’s payment of premiums. The
Company shall not be obligated to reimburse the Executive for such
amounts until the Executive has presented the Company with a
statement documenting such payments.
(F)
Key Man Life Insurance . The Company may purchase
on the life of the Executive up to $15.0 million of key man life
insurance with the Company as the beneficiary of the death
benefit.
(iv)
Expenses, Office and Systems Support . The
Executive shall be entitled to reimbursement of all reasonable
expenses, in accordance with the Company’s policy as in
effect from time to time and on a basis no less favorable than that
applicable to other executives of the Company, including, without
limitation, telephone, reasonable travel and reasonable
entertainment expenses incurred by the Executive in connection with
the business of the Company, upon the presentation by the Executive
of appropriate documentation. The Executive shall also
be entitled to appropriate office space, systems support and other
critical services necessary for the performance of the
Executive’s duties.
6.
Termination . The Executive’s employment
hereunder may be terminated without any breach of this Agreement
only under the following circumstances:
(a)
Death . The Executive’s employment
hereunder shall terminate upon his death.
(b)
Disability . If, in the written opinion of a
qualified physician reasonably agreed to by the Company and the
Executive, the Executive shall become unable to perform his duties
hereunder due to Disability, the Company may terminate the
Executive’s employment hereunder. As used in this
Agreement, the term “Disability” shall mean inability
of the Executive, due to physical or mental condition, to perform
the essential functions of the Executive’s job, after
consideration of the availability of reasonable accommodations, for
more than 180 total calendar days during any period of 12
consecutive months.
(c)
For Cause . The Company may terminate the
Executive’s employment hereunder for Cause. For
purposes of this Agreement, the Company shall have
“Cause” to terminate the Executive’s employment
hereunder upon a determination by at least a majority of the
members of the Board (other than Executive) at a meeting of the
Board called and held for such purpose (after reasonable notice is
provided to the Executive of such meeting, the purpose thereof and
the particulars of the basis for such meeting and the Executive is
given an opportu
