bmnm10q11072007ex10-5.htm


    BIMINI
      CAPITAL MANAGEMENT, INC.

     

    (FORMERLY
      OPTEUM INC. AND

     

    FORMERLY
      BIMINI MORTGAGE MANAGEMENT, INC.)

     

    2003
      LONG
      TERM INCENTIVE COMPENSATION PLAN

     

    PHANTOM
      SHARE AWARD AGREEMENT

     

    AGREEMENT
      by and between Bimini Capital Management, Inc., a Maryland corporation (the
      “Company”) and (the “Grantee”), dated as of the ___ day of
      ___________, 200_.

     

    WHEREAS,
      the Company maintains the Bimini Capital Management, Inc. (formerly Opteum
      Inc.
      and formerly Bimini Mortgage Management, Inc.) 2003 Long Term Incentive
      Compensation Plan, as it may be amended from time to time (the “Plan”)
      (capitalized terms used but not defined herein shall have the respective
      meanings ascribed thereto by the Plan);

     

    WHEREAS,
      the Grantee is an employee of the Company or one of its
      Subsidiaries;

     

    WHEREAS,
      the Committee has determined that it is in the best interests of the Company
      and
      its shareholders to grant Phantom Shares to the Grantee subject to the terms
      and
      conditions set forth below.

     

    NOW,
      THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

     

    1.           Grant
      of Phantom Shares. The Company hereby grants the Grantee _____________
      Phantom Shares.  The Phantom Shares are subject to the terms and
      conditions of this Agreement, and are also subject to the provisions of the
      Plan.  The Plan is hereby incorporated herein by reference as though
      set forth herein in its entirety.

     

    2.           Vesting.

     

    The
      Phantom Shares shall be subject to
      the following:

     

    
      	
               

            	
              (a)

            	
              The
                Phantom Shares shall vest, except as provided herein, if and as employment
                continues, pursuant to the following
                schedule:

            


    

     

    
      	
              Number
                of Phantom Shares

            	
              Vesting
                Date

            
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 


    

     

    
      	
               

            	
              (b)

            	
              Upon
                Termination of Service, all Phantom Shares which have not vested
                prior to
                or concurrently with such Termination of Service shall thereupon,
                and with
                no further action, be forfeited by the
                Grantee.

            


    

     

    
      	
               

            	
              (c)

            	
              The
                Phantom Shares shall fully vest upon (i) Termination of Service by
                the
                Company without Cause or for Disability, (ii) Termination of Service
                by
                the Grantee for “Good Reason” (as defined below), within 30 days of the
                occurrence (or initial occurrence, in the case of a continuing condition)
                thereof, (iii) the Grantee's death while employed or (iv) the occurrence
                of a Change of Control while employed.  For these purposes,
                “Good Reason” shall mean, without the Grantee's prior consent, a
                material diminution by the Company in the Grantee's title, duties
                or
                responsibilities; provided that (i) if the Grantee wishes to terminate
                for
                Good Reason, the Grantee shall give notice to the Company, and (ii)
                Good
                Reason shall not be deemed to exist if the Company cures any such
                diminution within a reasonable period (which shall be at least 15
                days)
                after receipt of such notice.

            


    

     

    
      	
               

            	
              3.

            	
              Distributions

            


    

     

    Distributions
      to the Grantee attributable to the Grantee’s receipt of Phantom Shares hereunder
      will be distributed as soon as practicable after the first day of the month
      following the date on which the Phantom Shares vest.  Other than in
      accordance with an election permitted by the Committee, distributions made
      to
      the Grantee will be made as a single delivery of Common Stock.

     

    
      	
               

            	
              4.

            	
              Dividend
                Equivalent Rights.

            


    

     

    A
      Dividend Equivalent Right is hereby granted to the Grantee, consisting of the
      right to receive, with respect to each Phantom Share, cash in an amount equal
      to
      the cash dividend distributions paid in the ordinary course on a Share to the
      Company's common shareholders (each, a "Dividend Payment"), as set forth
      below.  For each Phantom Share then outstanding, whether or not then
      vested, if a cash dividend is payable in the ordinary course on a Share, the
      Company shall make a payment to the Grantee in an amount equal to the applicable
      Dividend Payment, on or about the date of the Dividend Payment; provided that
      the Grantee may elect, in accordance with such procedures as may be prescribed
      by the Committee, to receive, in lieu of such Dividend Payment, a number of
      additional Phantom Shares equal to (x) the otherwise payable Dividend Payment,
      divided by (y) the Fair Market Value of a Share on the date of the Dividend
      Payment.

     

    5.           Tax
      Withholding.

     

    Upon
      the
      making of a distribution in respect of Phantom Shares or Dividend Equivalent
      Rights, the Grantee may, in accordance with procedures set forth by the
      Committee, make a written election to have amounts (which may include Shares)
      withheld by the Company from the distribution otherwise to be made, or to
      deliver previously owned Shares (not subject to restrictions hereunder), in
      order to satisfy the liability for such withholding taxes.  In the
      event that the Grantee makes, and the Committee permits, such an election,
      any
      Shares so withheld or delivered shall have an aggregate Fair Market Value on
      the
      date of exercise sufficient to satisfy the applicable withholding
      taxes.

     

    6.           Miscellaneous.

     

    
      	
               

            	
              (a)

            	
              The
                value of a Phantom Share may decrease depending upon the performance
                of a
                Share from time to time.  Neither the Company nor the Committee,
                nor any other party associated with the Plan, shall be held liable
                for any
                decrease in the value of my Phantom Shares.  If the value of my
                Phantom Shares decreases, there will be a decrease in the value of
                what is
                distributed to the Grantee under the Plan and this
                Agreement.

            


    

     

    
      	
               

            	
              (b)

            	
              With
                respect to this Agreement, (i) the Phantom Shares are mere bookkeeping
                entries, (ii) the obligations of the Company under the Plan are unsecured
                and constitute a mere promise by the Company to make benefit payments
                in
                the future, (iii) to the extent that any person acquires a right
                to
                receive payments from the Company under the Plan, such right shall
                be no
                greater than the right of any general unsecured creditor of the Company,
                (iv) all payments under the Plan (including distributions of Shares)
                shall
                be paid from the general funds of the Company and (v) no special
                or
                separate fund shall be established or other segregation of assets
                made to
                assure such payments (except that the Company may in its discretion
                establish a mere bookkeeping reserve to meet its obligations under
                the
                Plan).  The Plan is intended to be an arrangement that is
                unfunded for tax purposes and for purposes of Title I of the Employee
                Retirement Income Security Act of 1974, as
                amended.

            


    

     

    
      	
               

            	
              (c)

            	
              The
                Grantee shall take whatever additional actions and execute whatever
                additional documents the Company may in its reasonable judgment deem
                necessary or advisable in order to carry out or effect one or more
                of the
                obligations or restrictions imposed on the Grantee pursuant to the
                express
                provisions of the Plan.  The issuance of shares of Common Stock,
                if applicable, and delivery of the certificate or certificates therefor,
                shall be subject to any delay necessary to complete (i) the listing
                of
                such Shares on any stock exchange upon which shares of the same class
                are
                then listed, (ii) such registration or other qualification of such
                Phantom
                Shares under any state or federal law, rule, or regulation as the
                Company
                may determine to be necessary or advisable, and (iii) the making
                of
                provision for the payment or withholding of any taxes required to
                be
                withheld pursuant to any applicable law, in respect of the receipt
                of such
                Common Stock.

            


    

     

    
      	
               

            	
              (d)

            	
              THIS
                AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
                FLORIDA, WITHOUT REFERENCE TO PRINCIPLES
                OF CONFLICT OF LAWS. The
                captions of this Agreement are not part of the provisions hereof
                and shall
                have no force or effect.  This Agreement may not be amended or
                modified except by a written agreement executed by the parties hereto
                or
                their respective successors and legal representatives.  The
                invalidity or unenforceability of any provision of this Agreement
                shall
                not affect the validity or enforceability of any other provision
                of this
                Agreement.

            


    

     

    
      	
               

            	
              (e)

            	
              The
                Committee may make such rules and regulations and establish such
                procedures for the administration of this Agreement as it deems
                appropriate.  Without limiting the generality of the foregoing,
                the Committee may interpret this Agreement, with such interpretations
                to
                be conclusive and binding on all persons and otherwise accorded the
                maximum deference permitted by law.   In the event of any
                dispute or disagreement as to the interpretation of this Agreement
                or of
                any rule, regulation or procedure, or as to any question, right or
                obligation arising from or related to this Agreement, the decision
                of the
                Committee shall be final and binding upon all
                persons.

            


    

     

    
      	
               

            	
              (f)

            	
              All
                notices hereunder shall be in writing, and if to the Company, shall
                be
                delivered to the Board or mailed to its principal office, addressed
                to the
                attention of the Board; and if to the Grantee, shall be delivered
                personally, sent by facsimile transmission or mailed to the Grantee
                at the
                address appearing in the records of the Company.  Such addresses
                may be changed at any time by written notice to the other party given
                in
                accordance with this paragraph
                6(f).

            


    

     

    
      	
               

            	
              (g)

            	
              The
                failure of the Grantee or the Company to insist upon strict compliance
                with any provision of this Agreement or the Plan, or to assert any
                right
                the Grantee or the Company, respectively, may have under this Agreement
                or
                the Plan, shall not be deemed to be a waiver of such provision or
                right or
                any other provision or right of this Agreement or the
                Plan.

            


    

     

    
      	
               

            	
              (h)

            	
              Nothing
                in this Agreement shall confer on the Grantee any right to continue
                in the
                employ or other service of the Company or its Subsidiaries or interfere
                in
                any way with the right of the Company or its Subsidiaries and its
                shareholders to terminate the Grantee’s employment or other service at any
                time.

            


    

     

    
      	
               

            	
              (i)

            	
              This
                Agreement contains the entire agreement between the parties with
                respect
                to the subject matter hereof and supersedes all prior agreements,
                written
                or oral, with respect thereto.

            


    

     

    IN
      WITNESS WHEREOF, the Company and the Grantee have executed this Agreement as
      of
      the day and year first above written.

     

    BIMINI
      CAPITAL MANAGEMENT, INC.

     

    


     

    By:                                                                

    Name:

    Title:

    


    
 

     

    _______________________________________

     

    [Grantee]

     

    NYA
      764218.2