Form of Nonqualified Stock Option Agreement



 Exhibit 10.4 
 FORM OF NONQUALIFIED STOCK OPTION AGREEMENT 
 THIS AGREEMENT (the “Agreement”), is made
effective as of the [            ] day of [            ], 200[    ] (hereinafter called the “Date of
Grant”), between Bayview Mortgage Capital, Inc., a Maryland corporation (hereinafter called the “Company”), and [            ] (hereinafter called the
“Participant”): 
 RECITALS: 
 WHEREAS, the Company has adopted the 2009 Non-Executive Director and Officer Incentive Plan for Bayview Mortgage Capital, Inc. (the “Plan”), which Plan is incorporated herein by reference and made a part of
this Agreement; capitalized terms not otherwise defined herein shall have the same meanings as in the Plan; 
 WHEREAS, the Committee has
determined that it would be in the best interests of the Company and its stockholders to grant the option provided for herein to certain Participants who have performed or are expected to perform service for the Company with the Company’s
manager or otherwise [or, if an independent director, for the Company] pursuant to the Plan and the terms set forth herein; and 
 WHEREAS,
the Participant has been designated by the Company to receive the stock option award provided for herein. 
 NOW THEREFORE, in consideration
of the mutual covenants hereinafter set forth, the parties agree as follows: 
 1. Grant of the Option. Subject to the terms and
conditions of the Plan and the additional terms and conditions set forth in this Agreement, the Company hereby grants to the Participant the right and option (the “Option”) to purchase, all or any part of an aggregate of
[            ] Shares. The purchase price of the Shares subject to the Option shall be $[            ] per Share (the
“Option Price”). The Option is intended to be [a qualified stock option] OR [a non-qualified stock option], and [is not] OR [is] intended to be treated as an option that complies with Section 422 of the Internal Revenue Code of 1986,
as amended. 
 The Company intends that this Option not be considered to provide for the deferral of compensation under Section 409A of
the Code and that this Agreement shall be so administered and construed. Further, the Company may modify the Plan and this Option to the extent necessary to fulfill this intent. 
 2. Vesting. 
 (a)
Subject to the Participant’s continued service to the Company with the Company’s manager or otherwise [or, if an independent director, to the Company], the Option shall vest and become exercisable as follows [    ]. At
any time, the portion of the Option which has become vested and exercisable as described above (or pursuant to Section 2(b) or 2(c) below) is hereinafter referred to as the “Vested Portion.” 









 (b) If the Participant’s service to the Company with the Company’s manager or
its Affiliates or otherwise [or, if an independent director, to the Company] terminates or is terminated for any reason, the Option shall, to the extent not then vested, be canceled by the Company without consideration. If the Participant’s
service to the Company with the Company’s manager or its Affiliates or otherwise [or, if an independent director, to the Company] terminates or is terminated due to death or disability, the vested portion of the Option will be exercisable by
the Participant (or, in the event of the Participant’s death, the Participant’s beneficiary) for one year after the Participant’s termination. If the Participant’s service to the Company with the Company’s manager or its
Affiliates or otherwise [or, if an independent director, to the Company] terminates or is terminated for any reason other than death or disability, the vested portion of the Option is exercisable for a period of ninety days following the
Participant’s termination; provided that, no vested portion of the Option is exercisable if the Participant’s termination is with cause. 
 (c) Notwithstanding any other provisions of this Agreement to the contrary, in the event a Change in Control occurs, the Option shall, to the extent not then vested and not previously forfeited, immediately become
fully vested and exercisable, subject to Section 9(b) of the Plan. 
 3. Exercise of Option. 
 (a) Period of Exercise. Subject to the provisions of the Plan and this Agreement, the Participant may exercise all or any part of
the Vested Portion of the Option at any time prior to the [            ] anniversary of the Date of Grant. 
 (b) Method of Exercise. 
 (i) Subject to Section 3(a), all or any part of the Vested Portion of the Option may be exercised by delivering to the Company at its principal office written notice of intent to so exercise; provided that the
Option may be exercised with respect to whole Shares only. Such notice shall specify the number of Shares for which the Option is being exercised and shall be accompanied by payment in full of the Option Price. No Participant shall have any rights
to dividends or other rights of a stockholder with respect to Shares subject to an Option until the Participant has given written notice of exercise of the Option, paid in full for such Shares and, if applicable, has satisfied any other conditions
imposed by the Committee pursuant to the Plan. 
 (ii) Notwithstanding any other provision of the Plan or this Agreement to
the contrary, the Option may not be exercised prior to the completion of any registration or qualification of the Option or the Shares under applicable state and federal securities or other laws, or under any ruling or regulation of any governmental
body or national securities exchange, in each case that the Committee shall in its sole discretion determine to be necessary or advisable. 
 (iii) Upon the Company’s determination that the Vested Portion of the Option has been validly exercised as to any of the Shares, the Company shall issue certificates in the Participant’s name for such
Shares. However, the Company shall not be liable to the Participant for damages relating to any delays in issuing the certificates to the Participant, any loss of the certificates, or any mistakes or errors in the issuance of the certificates or in
the certificates themselves. 
  

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 4. No Right to Continued Employment. The granting of the Option evidenced hereby and this
Agreement shall impose no right upon the Participant to continue in the employ or service to the Company with the Company’s manager or its Affiliates or otherwise [or, if an independent director, to the Company] and shall not lessen or affect
the Company’s or the Company’s manager’s [or, if an independent director, the Company’s] right to terminate the employ or service of such Participant at any time. 
 5. Legend on Certificates. The certificates representing the Shares purchased by exercise of the Option shall be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which such Shares are listed, and any applicable
Federal or state laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. 
 6. Transferability. The Option may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant and any such purported assignment, alienation, pledge,
attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate. Notwithstanding the foregoing, subject to such terms and conditions as the Committee shall require in connection therewith, the
Participant may transfer all or part of the Option to an immediate family member of the Participant or to a life transferee of the Participant through a divorce proceeding (each, a “Permitted Transferee”); provided that the Participant
gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the Participant in writing that such transfer would comply with the requirements of the Plan (including, without
limitation, the requirement that no such transfer may result in the imposition of taxation under Section 409A of the Code), this Agreement, and any other terms and conditions as the Committee shall require in connection with such transfer. The
Company may issue replacement Option agreements that reflect such transfer, and may require the applicable Permitted Transferee to sign such agreement. Unless otherwise provided pursuant to a replacement Option agreement which reflects such
transfer, all of the terms and conditions of any Option so transferred in accordance with the immediately preceding sentence shall apply to the Permitted Transferee to the same extent as the Participant and any reference in the Plan or in this
Agreement to the Participant shall be deemed to refer to the Permitted Transferee, except that (a) Permitted Transferees shall not be entitled to transfer any Options, other than to the Participant or by will or the laws of descent and
distribution, (b) Permitted Transferees shall not be entitled to exercise any transferred Options unless there shall be in effect a registration statement on an appropriate form covering the Shares to be acquired pursuant to the exercise of
such Option if the Committee determines that such a registration statement is necessary or appropriate, (c) the Committee or the Company shall not be required to provide any notice to Permitted Transferees, whether or not such notice is or
would otherwise have been required to be given to the Participant under the Plan or otherwise, and (d) the consequences of termination of the Participant’s service to the Company with the Company’s manager or its Affiliates or
otherwise [or, if an independent director, to the Company] under the terms of the Plan and this Agreement shall continue to be applied with respect to the Participant and the Permitted Transferees. 
  

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 7. Withholding. The Participant may be required to pay to the Company or any Affiliate and the
Company or any Affiliate shall have the right and is hereby authorized to withhold, any applicable withholding taxes in respect of the Option, its grant, exercise, vesting or any payment or transfer under or with respect to the Option and to take
such other action as may be necessary in the opinion of the Committee to satisfy all obligations for the payment of such withholding taxes. Without limiting the generality of the foregoing, to the extent permitted by the Committee, the Participant
may satisfy, in whole or in part, the foregoing withholding liability by delivery of Shares held by the Participant (which are not subject to any pledge or other security interest and which have been vested and held by the Participant for no less
than six months (or such other period as established from time to time by the Committee or United States generally accepted accounting principles)) or by having the Company withhold from the number of Shares otherwise issuable pursuant to the
exercise of the Option a number of Shares with a Fair Market Value not in excess of the statutory minimum withholding liability. 
 8.
Securities Laws. Upon the acquisition of any Shares pursuant to the exercise of the Vested Portion of the Option, the Participant will make or enter into such written representations, warranties and agreements as the Committee may reasonably
request in order to comply with applicable securities laws or with this Agreement. 
 9. Notices. Any notice necessary under this
Agreement shall be addressed to the Company in care of its Secretary at the principal executive office of the Company and to the Participant at the address appearing in the corporate records of the Company for the Participant or to either party at
such other address as either party hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee. 
 10. Choice of Law; Waiver of Jury Trial; Attorneys’ Fees. 
 (a) This Agreement 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 THIS AGREEMENT 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 this Agreement, the prevailing party shall be entitled to attorneys’ fees and costs
incurred in resolving such dispute at all levels, including appeals. 
 11. Option Subject to Plan. By entering into this Agreement
the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan. The Option and the Shares issuable upon exercise are subject to the Plan. The terms and provisions of the Plan as it may be amended from time to
time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail. 
  

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 12. Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. 
 13. Entire Agreement.
This Agreement sets forth a complete understanding between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings with respect thereto. Any modification, amendment or waiver to this
Agreement will be effective only if it is in writing signed by the Company and the Participant. The failure of any party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of that or any other provision of
this Agreement. 
 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. 
  

			
	BAYVIEW MORTGAGE CAPITAL, INC.
		
	By:	 	 



			
	Name:	 	
	Title:	 	


  

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 Agreed and acknowledged as of the date first above written: 
  

			
	[                                        
                                    ]
		
	By:	 	 


			
	Name:	 	
	Title:	 	

  

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