Form of 2009 Manager Equity Incentive Plan



 Exhibit 10.5 
 BAYVIEW MORTGAGE CAPITAL, INC. 
 FORM OF 2009 MANAGER EQUITY INCENTIVE PLAN 
 Section 1. Purpose of the Plan 
 The
purpose of the Plan is to aid the Company and its Affiliates in attracting, rewarding, and retaining Bayview Fund Management, LLC (“BFM”), or any other entity that is engaged as the Company’s manager from time to time and to
motivate BFM and such other managers to stimulate their efforts toward the Company’s continued success, long-term growth and profitability by providing incentives through the granting of Awards. The Company expects that it will benefit from the
added interest which BFM and such other managers will have in the welfare of the Company as a result of their proprietary interest in the Company’s success. 
 Section 2. Definitions 
 The following capitalized terms used in the Plan have the respective
meanings set forth in this Section: 
 (a) Act: The Securities Exchange Act of 1934, as amended, or any successor
thereto. 
 (b) Affiliate: Any entity directly or indirectly controlling, controlled by, or under common control with,
the Company or any other entity designated by the Board in which the Company or stockholder of the Company has an interest. 
 (c) Award: An Option, Stock Appreciation Right or Other Share-Based Award granted pursuant to the Plan. 
 (d)
BFM: Bayview Fund Management, LLC. 
 (e) Beneficial Owner: A “beneficial owner,” as such term is
defined in Rule 13d-3 and 13d-5 under the Act (or any successor rule thereto). 
 (f) Board: The Board of Directors of
the Company. 
 (g) Change in Control: The occurrence of any of the following events: 
  

	 	i.	 any “person,” including a “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding the Company, the
Manager, any entity controlling, controlled by or under common control with the Company or the Manager, any director, fiduciary or other person or entity holding securities under any employee benefit plan of the Company or any such entity, and with
respect to any particular Participant, such Participant and any “group” (as such term is used in Section 13(d)(3) of the Exchange Act) of which such Participant is a member), is or becomes the “beneficial owner” (as defined
in Rule 13(d)(3) under the 











	 	 
Exchange Act), directly or indirectly, of shares of the Company representing 50% or more of either (A) the combined voting power of the Company’s
then outstanding securities or (B) the then outstanding Shares (other than as a result of an acquisition of securities directly from the Company); or 


  

	 	ii.	any consolidation or merger of the Company where the shareholders of the Company immediately prior to the consolidation or merger, would not, immediately after the consolidation or
merger, beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares representing in the aggregate 50% or more of the combined voting power of the securities of the surviving or resulting entity in
the consolidation or merger (or of its ultimate parent entity, if any); or 

  

	 	iii.	there shall occur (A) any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all
or substantially all of the assets of the Company, other than a sale or transfer by the Company of all or substantially all of the Company’s assets to an entity at least 50% of the combined voting power of the securities of which are owned by
“persons” (as defined above) who were shareholders of the Company immediately prior to such sale or transfer or (B) the approval by shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company;
or 

  

	 	iv.	the termination of the Management Agreement; or 

  

	 	v.	the members of the Board at the beginning of any consecutive 24-calendar-month period (the “Incumbent Directors”) cease for any reason other than due to death to
constitute at least a majority of the members of the Board; provided that any director whose election, or nomination for election by the Company’s shareholders, was approved or ratified by a vote of a majority of the members of the Board then
still in office who were Incumbent Directors at the beginning of such 24-calendar-month period shall be deemed to be an Incumbent Director for purposes of the foregoing. 

 Notwithstanding the foregoing, for any Awards that constitute a nonqualified deferred compensation plan within the meaning of Section 409A(d) of the
Code and provide for an accelerated payment in connection with a Change in Control, Change in Control shall have the same meaning as set forth in any regulations, revenue procedure, revenue rulings or other pronouncements issued by the Secretary of
the United States Treasury pursuant to Section 409A of the Code, applicable to such plans. 
  

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 (h) Code: The Internal Revenue Code of 1986, as amended, or any successor thereto.

 (i) Committee: The Compensation Committee of the Board or such other committee as may be appointed by the Board in
accordance with Section 4 of the Plan. The Board may exercise any power or right of the Committee. 
 (j) Company:
Bayview Mortgage Capital, Inc., a Maryland corporation. 
 (k) Effective Date: The date the initial public offering of
shares of the Company’s common stock is completed. 
 (l) Fair Market Value: On a given date, (i) if there
should be a public market for the Shares on such date, the closing price of the Shares as reported on such date on the Composite Tape of the principal national securities exchange on which such Shares are listed or admitted to trading, or, if the
Shares are not listed or admitted on any national securities exchange, the closing price on such date as quoted on the National Association of Securities Dealers Automated Quotation System (or such market in which such prices are regularly quoted)
(the “NASDAQ”), or, if no sale of Shares shall have been reported on the Composite Tape of any national securities exchange or quoted on the NASDAQ on such date, then the immediately preceding date on which sales of the Shares have been so
reported or quoted shall be used; provided that, in the event of an initial public offering of the Shares of the Company, the Fair Market Value on the date of such initial public offering shall be the price at which the initial public offering was
made, and (ii) if there should not be a public market for the Shares on such date, the Fair Market Value shall be the value established by the Committee in its sole discretion in accordance with any applicable requirements of Section 409A
of the Code. 
 (m) Group: A “group” as such term is used in Sections 13(d) and 14(d) of the Act, acting in
concert. 
 (n) Management Agreement: The Management Agreement between the Company and the Manager, dated as of
[                    ], 2009, as the same may be amended from time to time. 
 (o) Manager: Bayview Fund Management, LLC, a Delaware limited liability company, or any successor or assign. 
 (p) Option: An option to purchase Shares granted pursuant to Section 6 of the Plan. 
 (q) Option Price: The purchase price per Share under the terms of an Option, as determined pursuant to Section 6(a) of the
Plan. 
 (r) Other Share-Based Awards: Awards granted pursuant to Section 9 of the Plan. 
  

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 (s) Participant: BFM, or any other entity that is engaged as the Company’s
manager from time to time. 
 (t) Person: A “person,” as such term is used for purposes of Section 13(d)
or 14(d) of the Act (or any successor section thereto). 
 (u) Plan: The 2009 Manager Equity Incentive Plan.

 (v) RSU: A restricted stock unit, granted pursuant to Section 8 of the Plan, which represents the right to
receive a Share. 
 (w) Shares: Shares of common stock of the Company, subject to adjustment pursuant to Section 9
of the Plan. 
 (x) Stock Appreciation Right: A stock appreciation right granted in connection with or independent of
the grant of an Option, pursuant to Section 7 of the Plan. 
 Section 3. Shares Subject to the Plan 
 Subject to this Section 3, and subject to adjustments as provided in Section 9, the total number of Shares that may be issued with respect to
Awards granted under the Plan, in the aggregate, may not exceed [    ]% of the authorized number of Shares of the Company on the Effective Date, or
[            ] Shares; provided, however, that no Award may cause the total number of Shares subject to all outstanding Awards to exceed [    ]% of the
number of Shares outstanding on a fully diluted basis (assuming, if applicable, the exercise of all outstanding options and the conversion of all warrants and convertible securities into Shares) at the time of the Award. The Shares that may be used
hereunder may consist, in whole or in part, of unissued Shares or previously issued Shares that have been reacquired by the Company, as determined by the Chief Financial Officer of the Company (or the Chief Financial Officer’s designee) from
time to time, unless otherwise determined by the Committee. The issuance of Shares upon the exercise or payment of an Award shall reduce the total number of Shares available under the Plan, as applicable. Shares which are subject to Awards that
terminate, lapse or are cancelled may again be used to satisfy Awards under the Plan. If the Option Price of any Option granted under the Plan is satisfied by delivering Shares to the Company in accordance with the terms of Section 6(b) of the
Plan (including through a net settlement), only the number of Shares issued net of the Shares delivered shall be deemed delivered for purposes of determining the maximum number of Shares available under the Plan. If, in accordance with the terms of
the Plan, a Participant pays the Option Price for an Option or satisfies any tax withholding requirement with respect to any taxable event arising as a result of this Plan by either tendering previously-owned Shares or having the Company withhold
Shares, then such Shares shall not be deemed to have been delivered for purposes of determining the maximum number of Shares available under the Plan. If any Other Share-Based Awards under Section 8 are paid out in cash, then the underlying
Shares may again be made the subject of Awards under the Plan. 
  

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 Section 4. Administration 
 The Plan shall be administered by the Committee, which may delegate its duties and powers in whole or in part as it determines, including to a
subcommittee consisting of at least two individuals who are intended to qualify as “non-employee directors” within the meaning of Rule 16b-3 under the Act (or any successor rule thereto). The following items shall not count against the
aggregate number of Shares available for grants under the Plan set forth in Section 3 above: (i) the payment in cash of dividends or dividend equivalents under any outstanding Award; (ii) any Award that is settled in cash rather than
by issuance of Shares; or (iii) Awards granted through the assumption of, or in substitution for, outstanding awards previously granted to individuals who become senior managers as a result of a merger, consolidation, acquisition or other
corporate transaction involving the Company or any Subsidiary. The Committee is authorized to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, and to make any other determinations that it deems
necessary or desirable for the administration of the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan in the manner and to the extent the Committee deems necessary or desirable. Any
decision of the Committee in the interpretation and administration of the Plan, as described herein, shall lie within its sole and absolute discretion and shall be final, conclusive and binding on all parties concerned (including, but not limited
to, Participants and their beneficiaries or successors). The Committee shall have the full power and authority to establish the terms and conditions of any Award consistent with the provisions of the Plan and to waive any such terms and conditions
at any time, in its sole discretion (including, without limitation, accelerating or waiving any vesting conditions and/or accelerating any payment). No member of the Committee shall be personally liable for any action, determination or
interpretations taken or made in good faith with respect to this Plan or Awards made hereunder, and all members of the Committee shall be fully indemnified and protected by the Company in respect of any such action, determination or interpretation.

 Section 5. Limitations 
 No Award may be granted under the Plan after the tenth anniversary of the earlier of (i) the date that the stockholders adopt the Plan or (ii) the date the Board adopts the Plan, but Awards theretofore granted may extend beyond
that date and will continue to be governed by the terms of the Plan. 
 Section 6. Terms and Conditions of Options 
 Options granted under the Plan shall be, as determined by the Committee, non-qualified stock options (or other types of Options in jurisdictions outside
the United States), as evidenced by the related Award, and shall be subject to the foregoing, the following terms and conditions, and to such other terms and conditions, not inconsistent therewith, as the Committee shall determine: 
 (a) Option Price; Exercisability. Any Option granted under the Plan shall have an Option Price of not less than the Fair Market
Value of one Share on the date the Option is granted, and may be vested and exercisable in installments at such time and upon such terms and conditions, as may be determined by the Committee, but in no event shall an Option be exercisable more than
ten years after the date it is granted. 
  

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 (b) Exercise of Options. Except as otherwise provided in the Plan or in an Award,
an Option may be exercised for all, or from time to time any part, of the Shares for which it is then exercisable. For purposes of this Section 6 of the Plan, the exercise date of an Option shall be the later of the date a notice of exercise is
received by the Company and, if applicable, the date payment is received by the Company pursuant to clauses (i) through (vi) in the following sentence. Except as otherwise provided in an Award, the purchase price for the Shares as to which
an Option is exercised shall be paid in full at the time of exercise at the election of the Participant: (i) in cash or its equivalent (e.g., by check); (ii) to the extent permitted by the Committee, in Shares having a Fair Market Value
equal to the aggregate Option Price for the Shares being purchased and satisfying such other requirements as may be imposed by the Committee; (iii) partly in cash and, to the extent permitted by the Committee, partly in such Shares;
(iv) to the extent permitted by applicable law through the delivery of irrevocable instructions to a broker to sell Shares obtained upon the exercise of the Option and deliver promptly to the Company an amount out of the proceeds of such sale
equal to the aggregate Option Price for the Shares being purchased, (v) to the extent permitted by the Committee, through net settlement in Shares (a “cashless exercise”) or (vi) by any other means which the Committee determines
to be consistent with the Plan’s purpose and applicable law. The Committee may also authorize the Company to make or facilitate loans to Participants to enable them to exercise Options to the extent not prohibited by applicable law. The
Committee may permit Participants to exercise Options in joint-tenancy with the Participant’s spouse. 
 (c)
Attestation. Wherever in this Plan or any agreement evidencing an Award a Participant is permitted to pay the Option Price (or taxes relating to the exercise of an Option) by delivering Shares, the Participant may, subject to procedures
satisfactory to the Committee (and to the extent permitted by applicable law), satisfy such delivery requirement by presenting proof of record ownership of such Shares, or, to the extent permitted by the Committee, beneficial ownership of such
Shares, in which case the Company shall treat the Option as exercised without further payment and shall withhold such number of Shares from the Shares acquired by the exercise of the Option. 
 Section 7. Terms and Conditions of Stock Appreciation Rights 
 (a) Grants. The Committee also may grant (i) a Stock Appreciation Right independent of an Option or (ii) a Stock
Appreciation Right in connection with an Option, or a portion thereof. A Stock Appreciation Right granted pursuant to clause (ii) of the preceding sentence (A) may be granted at the time the related Option is granted or at any time prior
to the exercise or cancellation of the related Option, (B) shall cover the same number of Shares covered by an Option (or such lesser number of Shares as the Committee may determine) and (C) shall be subject to the same terms and
conditions as such Option except for such additional limitations as are contemplated by this Section 7 (or such additional limitations as may be included in a Stock Appreciation Right Award). 
 (b) Terms. The exercise price per Share of a Stock Appreciation Right shall be an amount determined by the Committee but in no
event shall such amount be less than the greater of (i) the Fair Market Value of a Share on the date the Stock Appreciation Right is granted or, in the case of a Stock Appreciation Right granted in conjunction with an Option, or a portion
thereof, the Option Price of the related Option 

  

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and (ii) the minimum amount permitted by applicable laws, rules, by-laws or policies of regulatory authorities or stock exchanges. Each Stock
Appreciation Right granted independent of an Option shall entitle a Participant upon exercise to a payment from the Company of an amount equal to (i) the excess of (A) the Fair Market Value on the exercise date of one Share over
(B) the exercise price per Share, times (ii) the number of Shares covered by the Stock Appreciation Right. Each Stock Appreciation Right granted in conjunction with an Option, or a portion thereof, shall entitle a Participant to surrender
to the Company the unexercised Option, or any portion thereof, and to receive from the Company in exchange therefor an amount equal to (i) the excess of (A) the Fair Market Value on the exercise date of one Share over (B) the Option
Price, times (ii) the number of Shares covered by the Option, or portion thereof, which is surrendered. The date a notice of exercise is received by the Company shall be the exercise date. Payment shall be made in Shares or in cash, or partly
in Shares and partly in cash (any such Shares valued at such Fair Market Value), all as shall be determined by the Committee. Stock Appreciation Rights may be exercised from time to time upon actual receipt by the Company of written notice of
exercise stating the number of Shares with respect to which the Stock Appreciation Right is being exercised. No fractional Shares will be issued in payment for Stock Appreciation Rights, but instead cash will be paid for a fraction or, if the
Committee should so determine, the number of Shares will be rounded downward to the next whole Share. 
 (c)
Limitations. The Committee may impose, in its discretion, such conditions upon the exercisability of Stock Appreciation Rights as it may deem fit; provided that no Stock Appreciation Right may remain exercisable more than 10 years after the
date of grant. 
 Section 8. Other Share-Based Awards 
 The Committee, in its sole discretion, may grant Awards of Shares, Awards of restricted Shares, Awards of RSUs and other Awards that are
valued in whole or in part by reference to, or are otherwise based on the Fair Market Value, of Shares (“Other Share-Based Awards”). Such Other Share-Based Awards shall be in such form, and dependent on such conditions, as the
Committee shall determine, including, without limitation, the right to receive one or more Shares (or the equivalent cash value of such Shares) upon the completion of a specified period of service, the occurrence of an event and/or the attainment of
performance objectives. Other Share-Based Awards may be granted alone or in addition to any other Awards granted under the Plan. Subject to the provisions of the Plan, the Committee shall determine: (i) to whom and when Other Share-Based Awards
will be made; (ii) the number of Shares to be awarded under (or otherwise related to) such Other Share-Based Awards; (iii) whether such Other Share-Based Awards shall be settled in cash, Shares or a combination of cash and Shares; and
(iv) all other terms and conditions of such Other Share-Based Awards (including, without limitation, the vesting provisions thereof and provisions ensuring that all Shares so awarded and issued shall be fully paid and non-assessable).

  

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 Section 9. Adjustments Upon Certain Events 
 Subject to Section 17 below, the following provisions shall apply to all Awards granted under the Plan: 
 (a) Generally. In the event of any change in the outstanding Shares after the Effective Date by reason of any Share dividend or
split, reorganization, recapitalization, merger, consolidation, spin-off or combination transaction or exchange of Shares or other corporate exchange, or any distribution to stockholders of Shares other than regular cash dividends or any transaction
similar to the foregoing, the Committee in its sole discretion and without liability to any person shall make such substitution or adjustment, if any, as it deems to be equitable, as to (i) the number or kind of Shares or other securities
available for issuance, issued or reserved for issuance pursuant to the Plan and pursuant to outstanding Awards; (ii) the maximum amounts of Awards that may be granted during a calendar year to any Participant pursuant to Section 3;
(iii) the Option Price or exercise price of any Stock Appreciation Right; and/or (iv) any other affected terms of any Award. 
 (b) Change in Control. In the event of a Change in Control after the Effective Date, the Committee may, in its sole discretion, provide for: (i) the accelerated vesting (including transferability) or
exercisability of any outstanding Awards then held by Participants that are otherwise unexercisable or unvested, as the case may be, to the extent determined by the Committee and as of a date selected by the Committee; (ii) the earning of all
or any outstanding performance shares or incentive awards; (iii) the termination of an Award upon the consummation of the Change in Control, and the payment of a cash amount in exchange for the cancellation of an Award which, in the case of
Options and Stock Appreciation Rights, may equal the excess, if any, of the Fair Market Value of the Shares in the Change in Control subject to such Options or Stock Appreciation Rights over the aggregate exercise price of such Options or Stock
Appreciation Rights; and/or (iv) the issuance of substitute Awards that will substantially preserve the otherwise applicable terms of any affected Awards previously granted hereunder. 
 (c) Termination of Management Agreement. Upon termination of the Management Agreement either (i) by the Company for
“cause” (as defined in the Management Agreement), (ii) by the Manager for any reason other than for “cause” (as defined in the Management Agreement) or other than due to an adverse change in the Manager’s compensation
thereunder, all unvested Awards then held by a Participant hereunder and all accrued and unpaid dividends or dividend equivalents related thereto shall be immediately cancelled and forfeited without consideration. Upon termination of the Management
Agreement for any reason other than as enumerated in the immediately preceding sentence, any Award that was not previously vested will become fully vested and/or payable, and any performance conditions imposed with respect to the Award will be
deemed to be fully achieved; provided, however, that for any Award subject to Section 409A of the Code, no payment may be made to a Participant hereunder unless the termination of the Management Agreement also constitutes a “separation
from service” within the meaning of Section 409A of the Code. 
  

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 Section 10. No Right to Employment or Awards 
 The granting of an Award under the Plan shall impose no obligation on the Company or any Affiliate to continue the employment or service or consulting
relationship of a Participant and shall not lessen or affect the Company’s or Affiliate’s right to terminate the employment or service or consulting relationship of such Participant. No Participant or other person shall have any claim to
be granted any Award, and there is no obligation for uniformity of treatment of Participants, or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto
need not be the same with respect to each Participant (whether or not such Participants are similarly situated). 
 Section 11. Successors
and Assigns 
 The Plan shall be binding on all successors and assigns of the Company and a Participant, including without limitation,
the estate of such Participant and the executor, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or representative of the Participant’s creditors. 
 Section 12. Transferability of Awards 
 Unless otherwise permitted by the Committee on such terms and conditions as it shall determine, an Award shall not be transferable or assignable by the Participant other than by will or by the laws of descent and distribution; provided,
however, that, notwithstanding the foregoing, BFM shall be permitted to and shall assign any Award granted to it hereunder to Bayview Asset Management, LLC, and Bayview Asset Management, LLC may assign an Award (or any part thereof) to any officer,
director or employee of Bayview Asset Management, LLC or any of its affiliates. An Award exercisable after the death of a Participant may be exercised by the legatees, personal representatives or distributees of the Participant. 
 Section 13. Amendments or Termination 
 Subject to Section 9 of the Plan, the Board may amend, alter or discontinue the Plan, but no amendment, alteration or discontinuation shall be made which would: (a) increase the maximum number of Shares available for Awards under
the Plan (including the limits applicable to the different types of Awards) or change the class of eligible Participants under the Plan other than amendments having such purpose that are approved by a majority of the Stockholders of the Company that
are present and entitled to vote on such matter at a meeting duly convened for such purposes (or such other standard of Stockholder vote as may be required by applicable state or federal law); (b) without the consent of a Participant, diminish
any of the rights of the Participant under any Award theretofore granted to such Participant under the Plan; or (c) be prohibited by applicable law or otherwise require stockholder approval; provided, however, that the Committee may amend the
Plan in such manner as it deems necessary to permit Awards to meet the requirements of the Code or other applicable laws. Notwithstanding any provision herein to the contrary, the repricing of Options or Stock Appreciation Rights is prohibited
without prior approval of the Company’s stockholders. For this purpose, a “repricing” means any of the following (or any other action that has the same effect as any of the following): (A) changing the terms of an Option or Stock
Appreciation Right to lower its Option Price or grant price (other than as contemplated by Section 9(a)(iii) above); (B) any other action that is treated as a “repricing” under generally accepted accounting principles; and
(C) repurchasing for cash or 

  

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canceling an Option or Stock Appreciation Right at a time when its Option Price or grant price is greater than the Fair Market Value of the underlying Shares
in exchange for another Award, unless the cancellation and exchange occurs in connection with a change in capitalization or similar change under Section 9 above. Such cancellation and exchange would be considered a “repricing”
regardless of whether it is treated as a “repricing” under generally accepted accounting principles and regardless of whether it is voluntary on the part of the Participant.” 
 Without limiting the generality of the foregoing, to the extent applicable, notwithstanding anything herein to the contrary, this Plan and Awards issued
hereunder shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretative guidance issued thereunder, including without limitation any such regulations or other guidance that may
be issued after the Effective Date. Notwithstanding any provision of the Plan to the contrary, in the event that the Committee reasonably determines that any amounts payable hereunder may be taxable to a Participant under Section 409A of the
Code and related Department of Treasury guidance prior to payment to such Participant of such amount, the Company may (a) adopt such amendments to the Plan and Awards and appropriate policies and procedures, including amendments and policies
with retroactive effect, that the Committee determines necessary or appropriate to preserve the intended tax treatment of the benefits provided by the Plan and Awards hereunder and/or (b) take such other actions as the Committee determines
necessary or appropriate to comply with the requirements of Section 409A of the Code, provided that under no circumstances shall the Company or any affiliate be liable for or indemnify any Participant for any additional taxes or other amounts
that may be imposed upon such Participant pursuant to or as a result of Section 409A of the Code. 
 Section 14. International
Participants 
 With respect to Participants, if any, who reside or work outside the United States of America, the Committee may, in its
sole discretion, amend the terms of the Plan or Awards with respect to such Participants in order to conform such terms with the provisions of local law, and the Committee may, where appropriate, establish one or more sub-plans to reflect such
amended or varied provisions. 
 Section 15. Choice of Law; Waiver of Jury Trial; Attorneys’ Fees 
 (a) The Plan shall be governed by and construed and interpreted in accordance with the laws of the State of Florida. 
 (b) EACH PARTY HEREBY KNOWINGLY, VOLUNTARY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THE PLAN AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. 
 (c) In the event of a dispute with reference to the Plan, the prevailing party shall be entitled to attorneys’ fees and costs incurred in resolving such dispute at all levels, including appeals. 
  

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 Section 16. Effectiveness of the Plan 
 The Plan shall be effective as of the Effective Date. 
 Section 17. Section 409A 
 No Award shall be granted, deferred, accelerated, transferred, paid
out or modified under this Plan in a manner that would result in the imposition of a penalty tax under Section 409A upon a Participant. In the event that it is reasonably determined by the Committee that, as a result of Section 409A,
payments in respect of any Award under the Plan may not be made at the time contemplated by the terms of the Plan or the relevant Award agreement, as the case may be, without causing the Participant holding such Award to be subject to an income tax
penalty under Section 409A, the Company will make such payment on the first day that would not result in the Participant incurring any tax liability under Section 409A. 
 Section 18. Tax Withholding 
 The
Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state, and local taxes (including the Participant’s FICA obligation) required by law to
be withheld with respect to any taxable event arising as a result of this Plan. In that regard, the Company may cause any such tax withholding obligation to be satisfied by the Company withholding Shares having a Fair Market Value on the date the
tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction. In the alternative, the Company may permit Participants to elect to satisfy the tax withholding obligation, in whole or in part, by either
(i) having the Company withhold Shares having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction or (ii) tendering previously acquired Shares
having an aggregate Fair Market Value equal to the minimum statutory total tax which could be imposed on the transaction (provided that the Shares which are tendered must have been held by the Participant for at least six (6) months prior to
their tender unless such Shares had been acquired by the Participant on the open market). All such elections shall be irrevocable, made in writing, signed by the Participant, and shall be subject to any restrictions or limitations that the
Committee, in its sole discretion, deems appropriate. 
  

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