Document

                                                                                                                                                  Exhibit 10.11

ANNALY CAPITAL MANAGEMENT, INC.


RSU Award Agreement 


            THIS RSU AWARD AGREEMENT (this “Agreement”), dated as of «Grant_Month» «Grant_Day», «Grant Year» is between Annaly Capital Management, Inc., a Maryland corporation (the “Company”) and «Name» (the “Participant”), and governs the RSUs granted by the Company to the Participant in accordance with and subject to the provisions of the Annaly Capital Management, Inc. 2020 Equity Incentive Plan (the “Plan”).  A Prospectus describing the Plan has been delivered to the Participant.  The Plan itself is available upon request.  All terms used in this Agreement that are defined in the Plan have the same meaning given them in the Plan.


            1.         Grant of RSUs.  Effective as of «Grant_Month» «Grant_Day», «Grant_Year» (the “Date of Grant”), the Company granted the Participant a total of «Shares» RSUs in accordance with the Plan and subject to the terms and conditions set forth in the Plan and this Agreement.  Each RSU represents the right to receive a Share upon settlement of the vested RSUs as set forth herein.  


            2.         Grant of Dividend Equivalent Rights.  Effective as of the Date of Grant, the Company also granted the Participant Dividend Equivalent Rights in accordance with the Plan and subject to the terms and conditions set forth in the Plan and this Agreement.  The Dividend Equivalent Rights entitle the Participant to be credited with additional RSUs (the “Additional RSUs”) with respect to cash dividends (other than extraordinary cash dividends) paid on Shares during the period beginning on the Date of Grant and ending on the earlier of the date that the vested RSUs and vested Additional RSUs are settled in accordance with Section 4 of this Agreement or the date that the RSUs and Additional RSUs are forfeited in accordance with Section 3 of this Agreement.  On each date that cash dividends (other than extraordinary cash dividends) are paid on Shares, the Participant shall be credited with Additional RSUs as follows:  The cash dividend per Share shall be multiplied by the number of RSUs and Additional RSUs outstanding and credited to the Participant on the dividend payment date and the resulting product shall be divided by the Fair Market Value on the dividend payment date.  Each Additional RSU represents the right to receive a Share upon settlement of the vested Additional RSUs as set forth herein.


            3.         Vesting.  The Participant’s interest in the RSUs shall become vested and nonforfeitable to the extent provided in Sections 3(a) through (g) below.


                        (a)        Continued Service.  The Participant’s interest in the RSUs shall become vested and nonforfeitable in accordance with the following schedule, subject to the Participant’s continuous Service (as defined below) from the Date of Grant through the applicable vesting date:


(i)         on the first anniversary of the Date of Grant, the number of RSUs that most nearly equals (but does not exceed) one-third of the RSUs granted to the Participant shall become vested and nonforfeitable;


    



        

(ii)        on the second anniversary of the Date of Grant, the number of RSUs that most nearly equals (but does not exceed) one-third of the RSUs granted to the Participant shall become vested and nonforfeitable; and


(iii)       on the third anniversary of the Date of Grant, the remaining number of RSUs shall become vested and nonforfeitable.  
For purposes of this Agreement, “Service” means service to the Company or an Affiliate as an employee, Non-Employee Director, or other bona fide service provider (whether as a consultant, advisor or otherwise). The Participant’s change in position or duties shall not result in interrupted or terminated Service, so long as the Participant continues to be an employee, Non-Employee Director, or other bona fide service provider to the Company or an Affiliate.


                        (b)        Change in Control.  The Participant’s interest in all of the RSUs granted to the Participant (if not sooner vested) shall become vested and nonforfeitable in connection with a Change in Control in accordance with the provisions of Section 10(b) of the Plan, subject to the requirements of Section 21 of the Plan (regarding potential adjustments as a result of Section 280G and related provisions of the Code).  For any Participant who is not a Non-Employee Director, for purposes of Section 10(b)(ii) of the Plan (regarding vesting of the RSUs during the two-year period following a Change in Control if the RSUs are assumed, converted or replaced in the transaction), the following terms have the following meanings:


                        (i)         “Cause” shall be as defined in any employment agreement, offer letter, or similar agreement between the Participant and the Company or an Affiliate, and if there is no such agreement or definition, “Cause” shall mean that the Participant is found by the Company to have (i) committed an act of fraud or dishonesty in the course of the Service; (ii) been convicted of (or plead no contest with respect to) a crime constituting a felony or a crime of comparable magnitude under applicable law (as determined by the Company in its sole discretion); (iii) failed to perform the Participant’s job duties where such failure is materially injurious to the Company and its Affiliates, or to the business interests or reputation of the Company and its Affiliates; (iv) materially breached any written policy applicable to the Participant’s Service including, but not limited to, the Company’s Code of Business Conduct and Ethics; or (v) materially breached any Service-related covenants under any agreement with the Company or an Affiliate; provided, however, that with respect to any breach or failure that is curable by the Participant, as determined by the Company in good faith, the Company has provided the Participant written notice of the material breach or failure and the Participant has not cured such breach or failure, as determined by the Company in good faith, within fifteen (15) days following the date the Company provides such notice.


                        (ii)        “Good Reason” shall be as defined in any employment agreement, offer letter, or similar agreement between the Participant and the Company or an Affiliate, and if there is no such applicable definition, termination of Service for Good Reason shall not be applicable to the Participant under Section 10(b)(ii) of the Plan.


                        (c)        Death or Disability.  The Participant’s interest in all of the RSUs granted to the Participant (if not sooner vested) shall become vested and nonforfeitable on the date that (i) the Participant’s Service terminates if on account of the Participant’s death or (ii) the Participant has a total and permanent disability within the meaning of Section 22(e)(3) of the Code and (ii) the Participant remains in Service from the Date of Grant until the date the Service 
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ends on account of the Participant’s death or the date the Participant has a total and permanent disability.  The Participant’s beneficiary shall receive payment with respect to the RSUs (and any Additional RSUs) in the event of the Participant’s death.  The beneficiary shall be the Participant’s surviving spouse, if any, and if no surviving spouse, then the Participant’s estate, provided that the Company, in its discretion, may permit the Participant to designate a beneficiary in accordance with such written procedures as the Company may establish.


                        (d)       Vesting Required by Employment Agreement.  Notwithstanding any provision herein to the contrary, if the Participant terminates Service under conditions that would provide full or partial vesting of the Award in accordance with a written employment agreement, offer letter, or similar agreement between the Company and the Participant, then the Participant’s interest in the RSUs shall become vested and nonforfeitable to the extent provided by such written agreement.  Any such vesting shall be subject to the terms and conditions of the applicable written agreement, including any requirement that the Participant provide the Company with a release of claims.


                        (e)        Involuntary Termination without Cause.  Notwithstanding any provision herein to the contrary, if the Participant’s Service is terminated by the Company for any reason other than Cause (as defined in Section 3(b)(i) above) and other than as set forth in Sections 3(c) and (d) above, then subject to the conditions of this Section 3(e), the RSUs shall continue to become earned, vested and settled in accordance with the schedule set forth in Section 3(a) above.  In order to continue to earn and become vested in the RSUs, the Participant must (i) sign and not revoke a release of claims in such form as required by the Company no later than 60 days after such termination of Service, and (ii) comply with any post-employment covenants applicable to the Participant under any written agreement with the Company.  For the avoidance of doubt, if Section 3(d) applies to the Participant, this Section 3(e) shall not apply.


                        (f)        Additional RSUs.  The Participant’s interest in the Additional RSUs shall become vested and nonforfeitable on the date, and to the extent that, the underlying RSUs in respect of which the Additional RSUs were credited, become vested and nonforfeitable. 


                        (g)        Cancellation/Forfeiture in All Other Cases.  Except as provided in this Section 3, any RSUs and Additional RSUs that are not vested and nonforfeitable on or before the date that the Participant terminates Service (including voluntary termination for any reason or involuntary termination for Cause) shall be canceled and forfeited on the date that Service terminates and all of the Participant’s rights to such RSUs and Additional RSUs shall immediately terminate without any payment of consideration by the Company.


            4.         Settlement.  Except as provided in Section 5, RSUs and Additional RSUs that become vested and nonforfeitable shall be settled by the issuance of an equal number of Shares.  A fractional Share will not be issued but will instead be disregarded.  The issuance shall be made no later than thirty days after the date of vesting; provided that any RSUs and Additional RSUs outstanding on the date of a Change in Control that become vested as a result of the closing of the Change in Control shall be settled on the date of the Change in Control.  If the RSUs or Additional RSUs are deferred compensation that is subject to the requirements of Section 409A of the Code, the timing of payment shall be subject to the requirements of Section 18 of the Plan.   Upon any vesting of RSUs and Additional RSUs, the Committee reserves the right to issue to the Participant, in full satisfaction of the delivery of Shares, a single cash payment equal to the Fair 
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Market Value of Shares on the day preceding the date of payment or a combination of Shares and cash payment based on the Fair Market Value on the day preceding the date of payment. References in this Agreement to Shares issuable in connection with the RSUs and Additional RSUs will include the potential issuance of its cash equivalent pursuant to such right.


            5.         Responsibility for Taxes.  


                        (a)        General.  Regardless of any action the Company takes with respect to any or all income tax, payroll tax or other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items owed by the Participant is and remains the Participant’s responsibility and that the Company or an Affiliate that the Participant provides Services to (the “Employer”) (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including the grant or vesting of the RSUs and Additional RSUs or the subsequent sale of any Shares acquired upon vesting; and (ii) does not commit to structure the terms of the grant or any aspect of the Award to reduce or eliminate the Participant’s liability for Tax-Related Items.


                        (b)        Withholding.  Prior to vesting of any RSUs and Additional RSUs, the Participant shall pay or make adequate arrangements satisfactory to the Company to satisfy all withholding obligations of the Company or Employer.  In this regard, the Participant authorizes the Company and/or Employer to withhold all applicable Tax-Related Items legally payable by the Participant from the Participant’s wages or other cash compensation paid to the Participant by the Company or Employer or from proceeds of the sale of any Shares.  Alternatively, or in addition, to the extent permissible under applicable law, the Company or Employer may (i) sell or arrange for the sale of any Shares that the Participant acquires to meet the withholding obligation for Tax-Related Items, and/or (ii) retain a number of the RSUs and Additional RSUs otherwise payable, provided that the Company only retains a number of RSUs and Additional RSUs necessary to satisfy no more than the required withholding amount (not to exceed maximum statutory rates).  Finally, the Participant shall pay to the Company and/or Employer any amount of Tax-Related Items that the Company may be required to withhold as a result of the Participant’s participation in the Plan that cannot be satisfied by the means previously described.  The Company may refuse to deliver any Shares or make any payment with respect to any earned and vested RSUs and Additional RSUs if the Participant fails to comply with the Participant’s obligations in connection with the Tax-Related Items as described in this Section 5.


            6.         Transferability; Unfunded Arrangement.  Until such time as the RSUs and Additional RSUs become earned and vested in accordance with this Agreement, the RSUs and Additional RSUs, and any rights relating thereto, may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant, other than in connection with the Participant’s death.  Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the RSUs and Additional RSUs or the rights relating thereto shall be wholly ineffective and, if any such attempt is made, the RSUs and Additional RSUs will be forfeited by the Participant and all of the Participant’s rights to such RSUs and Additional RSUs shall immediately terminate without any payment of consideration by the Company. RSUs and Additional RSUs constitute an unfunded and unsecured obligation of the Company.  


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7.         Shareholder Rights.  The Participant shall not have any rights as a shareholder of the Company with respect to the RSUs and Additional RSUs until, and then to the extent that, Shares are issued in settlement of the RSUs and Additional RSUs.  Upon the issuance of Shares in settlement of the RSUs and Additional RSUs, the Participant shall have all the rights of a shareholder of the Company with respect to those Shares, including the right to vote the Shares and to receive all dividends on the Shares.


            8.         No Right to Continued Service.  This Agreement and the grant of the RSUs and Dividend Equivalent Rights does not give the Participant any rights with respect to continued Service.  This Agreement and the grant of the RSUs and Dividend Equivalent Rights shall not interfere with the right of the Company, the Manager or an Affiliate to terminate the Participant’s Service.


            9.         Governing Law; Venue.  This Agreement shall be governed by the laws of the State of Maryland except to the extent that Maryland law would require the application of the laws of another state. Any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Award or this Agreement shall be litigated solely and exclusively in the state or federal courts located in the City of New York, New York unless otherwise required by applicable law, and the parties agree that such courts are convenient forums. Each party hereby submits to the personal jurisdiction of such courts for purposes of any such actions or proceedings.


            10.       Conflicts.  In the event of any conflict between the provisions of the Plan as in effect on the Date of Grant and this Agreement, the provisions of the Plan shall govern.  All references herein to the Plan shall mean the Plan as in effect on the Date of Grant.


            11.       Participant Bound by Plan.  The Participant hereby acknowledges that a copy of the Plan has been made available to the Participant and the Participant agrees to be bound by all the terms and provisions of the Plan.


            12.       Binding Effect.  Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon the Participant and the Participant’s successors in interest and the Company and any successors of the Company.


            13.       Counterparts.  This Agreement may be executed in counterparts and each counterpart shall be deemed an original document and all counterparts shall constitute a single document.


            14.       Further Assurances.  The Participant agrees, upon demand of the Company, to do all acts and execute, deliver and perform all additional documents, instruments and agreements which may be reasonably required by the Company to implement the provisions and purposes of this Agreement and the Plan.


            15.       Recovery of Compensation.  In accordance with Section 20 of the Plan, the Award is subject to the requirements of (i) Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations thereunder, (ii) any policies adopted by the Company to implement such requirements, and (iii) the Company’s Policy on Recovery (Clawback) of 
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Incentive Compensation from Executives, as in effect from time to time, all to the extent determined by the Committee to be applicable to the Participant.


            16.       Notice Requirements.  The vesting and receipt of benefits under this Award is specifically conditioned on the Participant’s compliance with the requirements of the Company’s Notice and Garden Leave Policy as attached to this Agreement as Exhibit A (the “Policy”).  In addition to any remedies set forth in the Policy and to the extent allowed by and consistent with applicable law, if it is determined at any time that the Participant has materially breached the terms and conditions of the Policy, the Company will be entitled to (i) cause any unvested portion of the Award to be immediately canceled without any payment of consideration by the Company and (ii) recover from the Participant in its sole discretion some or all of the Shares (or proceeds received by the Participant from a sale of such Shares) paid to the Participant pursuant to this Agreement. 


[signature page follows]
































































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            IN WITNESS WHEREOF, the Company and the Participant have executed this Agreement as of the date first set forth above.






______________________________
«Name»




ANNALY CAPITAL MANAGEMENT, INC.






By: «Signature_Name»


Title: «Signature_Title»




























































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Exhibit A


Notice and Garden Leave Policy


1.         Overview.  This Notice and Garden Leave Policy (the “Policy”) applies to Participants who are executive officers of the Company.  Given the strategic importance of these positions, each Participant occupying an executive officer position acknowledges and agrees that the Company and its Affiliates (collectively, the “Company Group”), its client relationships and/or its business opportunities would likely suffer irreparable harm were the Participant to resign or otherwise end the Participant’s employment with the Company Group without providing sufficient notice to the Company.  This Policy is intended to protect those interests of the Company Group, and the Award is provided in consideration for the Participant’s agreement to comply with the Policy.


2.         Notice Requirement.


(a)        Notice Period.  In consideration of the Award, the Participant agrees to provide the Company with 90 days of prior written notice of the Participant’s intent to end the Participant’s employment with the Company Group (the “Notice Period”).


(b)        Compensation and Job Role During Notice Period.  During the Notice Period the Participant will be paid the Participant’s base salary pursuant to the Company’s regular payroll practices and will be eligible to continue to participate in the employee benefit plans in which the Participant was enrolled prior to submitting the Participant’s notice of resignation, with the exception that (i) the Participant will not continue to accrue paid time off during the notice period and (ii) the Participant will not continue to accrue any time or other interest under any bonus plans.  The Participant will be expected to perform all duties and tasks assigned to the Participant during the Notice Period, including all assignments related to the transition of the Participant’s duties and responsibilities, and the Participant will devote all of the Participant’s working time, labor, skill and energies to the business and affairs of the Company.


(c)        Duty of Loyalty.  During the Notice Period the Participant will continue to owe the Company Group a duty of loyalty, and the Participant will remain bound by all fiduciary duties and obligations owed to the Company Group as an employee, as well as abide by all non-competition, non-disclosure and non-solicitation agreements that the Participant has entered into with the Company.   Consistent with that duty of loyalty, the Participant agrees that during the Participant’s period of employment, including the Notice Period, and regardless of whether the Participant’s title, position or responsibilities change at any point, the Participant will not directly or indirectly (i) become employed or engaged by (whether as an employee, consultant, proprietor, partner, director or otherwise) any competitor of the Company Group, (ii) solicit, divert, take away or do business with (or attempt to solicit, divert, take away or do business with) any of the Company Group’s clients, customers or business partners; or (iii) solicit, induce or attempt to induce any officer, manager, consultant or employee of the Company Group to terminate his or her employment or engagement, or entice or attempt to entice away from the Company Group any person who is an officer, manager, consultant, or employee of the Company Group.


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(d)       Notice Process.  Any notice that the Participant may be required or permitted to give to the Company under the Policy shall be in writing and may be delivered personally, by intraoffice mail, by fax, by electronic mail or other electronic means, or via a postal service, postage prepaid, to such electronic mail or postal address and directed to such person as the Company may notify the Participant from time to time.


3.         Waiver of Notice Period; Garden Leave.


(a)        Waiver of Notice Period.  Upon receipt of the Participant’s notice of resignation and at any time during the Notice Period, the Company may, in its sole discretion, waive the remainder of the Notice Period, in which case the Participant’s employment will be terminated upon receipt of written notice from the Company.  Under such circumstances, the Company will not be obliged to provide the Participant with pay in lieu of notice and, in turn, the Participant will no longer be bound by the specific non-competition restriction under the Participant’s duty of loyalty outlined in Section 2(c).  The Participant will continue to be bound by any post-employment non-competition, non-disclosure and non-solicitation restrictions in agreements the Participant entered into with the Company. 


(b)        Garden Leave.  Alternatively, the Company may, in its sole discretion, retain the Participant as an employee during the Notice Period and direct the Participant not to report to work, in which case the Participant will be placed on paid leave (the “Garden Leave”).  While on Garden Leave, the Participant will remain bound by all fiduciary obligations owed as an employee of the Company Group, the non-competition restriction under the Participant’s duty of loyalty set out in Section 2(c), as well as any non-competition, non-disclosure and non-solicitation agreements between the Participant and the Company. For purposes of clarity, while on Garden Leave the Participant will (i) remain an employee of the Company Group; (ii) continue to be paid the Participant’s base salary; and (iii) continue to be eligible to participate in the same benefit plans in which the Participant was enrolled prior to submitting the Participant’s notice of resignation, with the exception that (A) the Participant will not continue to accrue paid time off during the Garden Leave and (B) the Participant will not continue to accrue any time or other interest under any bonus plans. During the Garden Leave, the Participant must be reasonably available during normal business hours to answer questions and provide advice to the Company.  


4.         Enforcement.  The Participant agrees that because the Participant’s services are personal and unique and because the Participant will have access to and will be acquainted with the Company Group’s confidential information and/or its customer relationships, to the fullest extent permitted by law, this Policy will be enforceable by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights or remedies that the Company may have for breach of this Policy.  For the avoidance of doubt, this Section 4 does not limit the Company’s right to forfeit or seek recoupment with respect to the Award as set forth in Section 16 of the Agreement.


            5.         Amendment and Termination of Policy.  The Company reserves the right to amend or terminate the Policy at any time, provided that (i) no such action will result in materially more burdensome duties and obligations for a Participant without the Participant’s prior written consent, and (ii) any such action impacting an executive officer of the Company shall be subject to the approval of the Committee.
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