Unassociated Document


    


    Exhibit
10.1

    


    SEPARATION AGREEMENT AND
GENERAL RELEASE

    


    This
Separation Agreement and General Release (this “Separation
Agreement”) is made by and between NEW YORK MORTGAGE TRUST, INC., a
Maryland corporation (the “Company”), and DAVID
A. AKRE (“Executive”).  The
Company and the Executive may be referred to collectively herein from time to
time as “the
Parties.”

    


    WHEREAS,
the Company and Executive are parties to that certain Employment Agreement,
dated as of January 18, 2008, by and between the Company and Executive (the
“Employment
Agreement”); and

    


    WHEREAS,
Executive and the Company have mutually agreed that Executive’s employment with
the Company shall terminate effective as of the Separation Date (as defined
below) and that, effective immediately upon execution and delivery by the
Parties of this Agreement, the Employment Agreement shall be terminated and
shall have no further force or effect whatsoever; and

    


    WHEREAS,
this Separation Agreement shall supersede and replace in all respects any and
all agreements and understandings between the Company and Executive relating to
Executive’s employment by and/or separation from the Company, including but not
limited to any provisions in the Employment Agreement that would, by their
terms, survive the expiration of such Employment Agreement.

    


    NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Parties agree as follows:

    


    
      	
              1.

            	
              Effective Date of
      Agreement.  This Separation Agreement shall become
      effective and enforceable on the eighth day after the Separation Date (as
      defined below) (the “Effective
      Date”).  Once effective, all of the terms, conditions,
      benefits and restrictions of this Separation Agreement shall be fully
      enforceable and binding on the
Parties.

            


    

    


    
      	
              2.

            	
              Termination of
      Employment.

            


    

    


    
      	
               
      

            	
              a.

            	
              Executive
      hereby resigns his employment and any and all positions he holds with the
      Company and each of its subsidiaries and affiliates, including but not
      limited to his positions as Co-Chief Executive Officer of the Company, a
      director of the Company, and any and all other positions he holds with the
      Company or any of its subsidiaries or affiliates, in each case effective
      as of the Separation Date (as defined below).  Effective on the
      Separation Date, the Executive shall have no further duties or
      responsibilities to be performed for the Company or any of its
      subsidiaries or affiliates, other than as specified herein, and shall have
      no authority to act or endeavor to act on behalf of the Company or any of
      its subsidiaries or affiliates for any reason whatsoever.  For
      purposes of this Separation Agreement, Executive’s “Separation
      Date” shall be February 3,
2009.

            


    

     

    
      	
               
      

            	
              b.

            	
              Executive
      will not receive any compensation or benefits from the Company after the
      Separation Date, except as expressly hereinafter provided in this
      Separation Agreement.  Executive and the Company each
      acknowledges and agrees that valid consideration exists for the promises
      contained in this Separation
Agreement.

            


    

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      	
              3.

            	
              Consideration to
      Executive.

            


    

    


    
      	
               
      

            	
              a.

            	
              The
      Company shall pay Executive’s accrued Annual Salary that is payable
      through and including the Separation Date in accordance with the Company’s
      normal payroll practices on the Company’s next succeeding payroll payment
      date following the Separation Date.

            


    

    


    
      	
               
      

            	
              b.

            	
              The
      Company shall arrange through ADP, the Company’s payroll agent, for
      delivery to Executive, within one (1) business day after the Effective
      Date, of a check in the amount of $250,000 (Two Hundred and Fifty Thousand
      Dollars and No Cents), less applicable withholding taxes, made payable to
      the Executive (the “Separation
      Payment”).

            


    

    


    
      	
               
      

            	
              c.

            	
              For
      the period from the Separation Date until the earlier of August 9, 2010
      (the date that is 18 months after the Separation Date) and the date on
      which the Executive is eligible to receive similar coverage under another
      employer’s group health insurance plan, Executive shall be eligible to
      continue coverage for Executive and his dependents under the existing
      group health insurance plan maintained by the Company for the benefit of
      its officers and employees provided Executive timely provides the
      requisite election notice required under the Consolidated Omnibus Budget
      Reconciliation Act
      (“COBRA”).  During the period that Executive elects to
      continue such coverage, Executive shall pay the monthly premiums for such
      coverage and the Company shall reimburse such premium payments within five
      (5) business days after Executive presents evidence of payment to the
      Company.  Executive shall promptly notify the Company when
      Executive becomes eligible to receive similar coverage under another
      employer’s group health insurance
plan.

            


    

     

    
      	
               
      

            	
              d.

            	
              The
      Company agrees to reimburse Executive for the actual reasonable out of
      pocket business expenses incurred by the Executive in connection with the
      performance of his duties as Co-Chief Executive Officer of the Company
      prior to the date of this Agreement, subject to delivery by the Executive
      to the Company of receipts and other appropriate supporting documentation
      reasonably requested by the
Company.

            


    

    


    
      	
               
      

            	
              e.

            	
              Executive
      agrees that he will not retain any data or files that constitute
      Confidential Information (as hereinafter
  defined).

            


    

    


    
      	
               
      

            	
              f.

            	
              The
      Executive understands and agrees that the payments payable to Executive
      under Sections 3(a), 3(b) and 3(c) will be treated by the Company as
      compensation expense.

            


    

    


    
      	
              4.

            	
              Waiver, Release of
      Claims, and Covenant Not to
Sue.

            


    

    


    
      	
               
      

            	
              a.

            	
              Executive,
      for himself, his agents, personal representatives, heirs and assigns,
      hereby unconditionally releases and forever discharges the Company and all
      of its affiliated entities and subsidiaries, as well as their respective
      officers, directors, partners, owners, employees, agents, representatives,
      financial advisors, predecessors and successors, and all of their
      respective affiliates, whether in their individual or representative
      capacities (collectively “Released
      Parties”), from any and all liability of every kind and nature
      whatsoever arising out of or connected in any way with Executive’s
      employment, or termination of employment, by the Company and any of its
      affiliates or subsidiaries, or any other matter relating to the Company or
      any of its affiliates or subsidiaries, or the business or assets of any of
      them, both as to matters now known and those discovered hereafter,
      including, without limitation, any and all claims for monetary relief,
      injunctive relief, attorney fees, costs, back pay or unpaid wages, fringe
      benefits, employment or reinstatement that could have been raised under
      common law, wrongful discharge, breach of any contractual rights, both
      express or implied, breach of any covenant of good faith and fair dealing,
      both express or implied, any tort, any claim of invasion of privacy, any
      legal restrictions on the Released Parties’ rights to terminate employees,
      and any federal, state, or other governmental statute, regulation,
      ordinance, or directive, specifically including, without limitation, Title
      VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
      the Family and Medical Leave Act, the Fair Labor Standards Act, the
      Employee Retirement Income Security Act, the Securities Act of 1933, the
      Securities Exchange Act of 1934, and state securities laws.  The
      foregoing also includes any and all claims Executive could have brought or
      could bring as a partner, member, director, officer or employee of any of
      the Released Parties and any and all claims Executive may have, in his
      capacity as a shareholder, with respect to events occurring prior to the
      Separation Date.  Executive covenants not to sue the Released
      Parties with respect to any of the released claims or potential claims
      described above.  The foregoing release does not waive or
      infringe Executive’s right to receive the payments and benefits described
      in Section 3 hereof.  Notwithstanding anything herein to the
      contrary, this Separation Agreement shall not impact or release any rights
      that Executive may have, under the bylaws of the Company, applicable
      insurance policies of the Company, including but not limited to the
      Company’s existing director and officer liability insurance policy, and/or
      under applicable law, to indemnification with respect to liabilities,
      costs, losses and claims arising from or related to Executive’s service as
      an officer, director or employee of the Company, any parent, subsidiary or
      affiliate of the Company, or any of the Released
  Parties.

            


    

     

    
      
         

      

      
        page 2 of
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              b.

            	
              The
      Company hereby unconditionally releases and forever discharges Executive,
      his agents, personal representatives, heirs and assigns, from any and all
      liability whatsoever for any acts, occurrences or omissions arising out of
      or connected in any way with Executive’s performance or discharge of his
      duties as a director or officer of the Company, employment, prospective
      employment, or termination of employment by the Company and any of its
      affiliates or subsidiaries, or any other matter relating to the Company or
      any of its affiliates or subsidiaries, or the business or assets of any of
      them, both as to matters now known and those discovered hereafter, except
      to the extent that the Executive has engaged in any fraudulent or criminal
      conduct in the performance of his duties while employed by the Company
      (the “Released
      Claims”); provided, however, the
      Released Claims shall not include, and the Company is not releasing the
      Executive for liability with respect to, existing third party claims
      against the Company for which the Executive is not entitled to receive
      indemnification from the Company in accordance with the Company’s Charter,
      Bylaws or Maryland law.  Except as provided in the immediately
      preceding sentence, the Released Claims shall include, without limitation,
      any and all claims for monetary relief, injunctive relief, attorney fees,
      costs and claims the Company could have brought or could bring against
      Executive as a shareholder, partner, member, director, officer or employee
      of any of the Released Parties.  The Company covenants not to
      sue the Executive with respect to any of the Released Claims except to the
      extent that the Company determines in good faith that the Executive has
      engaged in any fraudulent or criminal conduct in the performance of his
      duties while employed by the Company; provided, that the Company will
      reimburse Executive for all reasonable attorneys fees and other defense
      costs if the Company brings suit against Executive alleging fraudulent or
      criminal conduct and Executive is successful on the merits in defending
      the action as determined by a final non-appealable
  order.

            


    

     

    
      	
               
      

            	
              c.

            	
              The
      Parties expressly understand and agree that the waivers, releases and
      covenants not to sue set forth in clauses (a) and (b) above do not
      preclude either Party from acting to enforce the terms, conditions,
      rights, obligations and requirements of this Separation Agreement as
      provided herein.

            


    

    


    
      	
               
      

            	
              d.

            	
              This
      Separation Agreement is intended by the Parties to comply with the
      requirements of the Older Workers Benefits Protection Act (29 U.S.C. §
      626(f)).  To that end the Parties acknowledge that (a) Executive
      has read and understands the terms of this Separation Agreement and he
      accepts them knowingly and voluntarily, (b) the claims released by
      Executive pursuant to this Separation Agreement include claims arising
      under the Age Discrimination in Employment Act (29 U.S.C. § 626 et. seq.),
      (c) Executive does not waive any of his rights or claims that may arise
      after the date this Separation Agreement is effective, (d) the
      consideration provided in Section 3 of this Separation Agreement in
      exchange for Executive’s release of claims is in addition to anything of
      value which Executive is already entitled to receive from the Company, (e)
      Executive has been advised in writing to consult with an attorney prior to
      signing this Separation Agreement, (f) Executive has been given a period
      of up to 21 days in which to consider the terms of this Separation
      Agreement, and (g) Executive has a period of 7 days following the date he
      signs this Separation Agreement to revoke it, and the Separation Agreement
      shall not become effective or enforceable until the revocation period has
      expired, as provided for in Section 1
herein.

            


    

    


    
      	
              5.

            	
              Nondisclosure of
      Confidential Information.  Executive shall keep
      confidential all secret or Confidential Information, knowledge or data
      relating to the Company or any of its affiliated companies, and their
      respective businesses and properties, which shall have been obtained by
      the Executive during the Executive’s employment by the Company or any of
      its affiliated companies, except for secret or Confidential Information,
      knowledge or data which becomes public knowledge (other than as a result
      of any act by the Executive or any representatives of the Executive in
      violation of this Separation Agreement).  Executive shall not,
      without the prior written consent of the Company or as may otherwise be
      required by law or legal process, communicate or divulge any such
      information, knowledge or data to anyone other than the Company and those
      designated by it.  The agreement made in this Section 5
      shall be in addition to, and not in limitation or derogation of, any
      obligations otherwise imposed by law upon the Executive in respect of
      confidential information of the Company.  “Confidential
      Information,” as used in this Separation Agreement, means any and
      all confidential information (whether recorded in documentary form or by
      electronic or other means) relating to the properties, business methods,
      corporate plans, business plans, strategic plans, employee information
      (including compensation, qualifications, and utilization), management
      systems, finances, existing or developing business opportunities,
      processes under development or development projects of the Company or any
      of its affiliates or subsidiaries, or relating to the marketing or sales
      of any past, present or future property or asset of any of
      them.  Confidential Information also includes any other
      information in respect of which the Company owes an obligation of
      confidentiality to any third party, knowledge of which Executive acquired
      at any time during his employment by the Company or any of its affiliated
      companies and which is not readily ascertainable to persons not connected
      with the Company either at all or without significant expenditure of
      labor, skill or money.  Confidential Information does not
      include, however, information which (a) is or becomes generally available
      to the public other than as a result of a disclosure by the Executive or
      any of his representatives, or (b) becomes available to Executive on a
      non-confidential basis from a person other than the Company or any of its
      representatives who is not known by Executive to be bound by a
      confidentiality agreement with the Company or any of its
      affiliates.  The nondisclosure obligation set forth in this
      Paragraph is in addition to any fiduciary duties of Executive to maintain
      the confidentiality of the Company’s Confidential Information and, to the
      extent not otherwise provided herein, the Company’s trade
      secrets.

            


    

     

    
      
         

      

      
        page 3 of
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              6.

            	
              Consultation in
      Advance of Action.  Before Executive engages in any
      action which may reasonably be construed as a violation of this Separation
      Agreement, or as to which Executive believes the application of the
      Separation Agreement is not clear, specifically including the provisions
      of Section 5 above, Executive agrees to contact and confer with the Chief
      Executive Officer of the Company, or his designee, regarding Executive’s
      intended action, to make a good faith effort to avoid a violation, and to
      discuss the availability of alternative courses of action that would not
      result in a violation.  Both Parties agree to engage in such
      discussions in good faith.

            


    

    


    
      	
              7.

            	
              Injunctive and
      Contractual Relief.  Executive understands and agrees
      that the covenants contained in Sections 5 and 16 are special, unique and
      of an extraordinary character.  Because of the difficulty of
      measuring economic losses to the Company as a result of a breach of these
      covenants, and because of the immediate and irreparable damage that could
      be caused to the Company for which it would have no other adequate remedy,
      in the event of any default, breach or threatened breach of these covenant
      by Executive, the Company shall be entitled to institute and prosecute
      legal proceedings to enforce its rights hereunder, and shall be entitled
      specifically to injunctive relief and to such other and further relief as
      may be available to the Company at law and/or in
      equity.  Executive hereby waives any right to require the
      posting of a bond in the event the Company seeks injunctive and/or other
      equitable relief to enforce this Separation Agreement.  The
      rights, obligations and remedies provided in this section shall be in
      addition to, and not in lieu of, any rights, obligations and/or remedies
      imposed by applicable law under statutes enforcing the protection of trade
      secrets and other confidential and proprietary
  information.

            


    

    


    
      	
              8.

            	
              Covenant to Cooperate
      in Legal Proceedings.  The Executive agrees to cooperate
      in good faith with and provide reasonable assistance to the Company, upon
      its reasonable request, with respect to the defense or prosecution of any
      litigation, investigation or other legal proceeding involving the
      Company.

            


    

    


    
      	
              9.

            	
              Severability.  The
      Parties understand and agree that every Section, and each subpart,
      sub-paragraph or provision therein, of this Separation Agreement is
      separable, severable and divisible from the rest of the Separation
      Agreement.  If any Section, subpart, sub-paragraph or provision
      herein is ruled invalid, illegal, unenforceable or void by any arbitrator,
      regulatory agency or court of competent jurisdiction, the Parties
      understand and agree that the remainder of this Separation Agreement shall
      continue to be enforceable to the fullest extent permitted by
      law.  If the Company defaults on any its payment obligations to
      the Executive hereunder and fails to correct such default within 48 hours
      after receiving written notice of the default from the Executive, the
      Executive shall have no further obligations under this Agreement; provided, however, if
      the Company does not make a payment to Executive hereunder because the
      Company disputes in good faith its obligation to make such payment as a
      result of a failure on the part of Executive to comply with his
      obligations under this Agreement, then the failure to make such payment
      shall not be deemed to be a payment default hereunder unless and until
      such dispute is resolved in favor of the
  Executive.

            


    

    


    
      	
              10.

            	
              Choice of Governing
      Law and Venue.  The Parties (a) understand and agree that
      the validity, interpretation, construction and performance of this
      Separation Agreement, as well as the rights of the Parties under this
      Separation Agreement, shall be governed in accordance with the laws of the
      State of New York, without regard to its conflicts of law principles; and
      (b) irrevocably and unconditionally submit to the exclusive jurisdiction
      of the courts of the State of New York and federal courts sitting in the
      State of New York with respect to all actions and proceedings arising out
      of or relating to this Separation Agreement and the transactions
      contemplated hereby.

            


    

    


    
      	
              11.

            	
              Full
      Integration.  This Separation Agreement constitutes the
      entire agreement between the parties regarding the resignation of
      Executive’s employment with the Company.  It fully supersedes
      any and all prior oral or written representations, communications or
      agreements between the parties pertaining to its subject matter, including
      the Employment Agreement.  The Parties understand and agree that
      by executing this Separation Agreement, the Parties mutually and
      voluntarily release one another from each and every of their respective
      rights and obligations under the Employment Agreement and agree that the
      Employment Agreement shall be void and shall have no further force or
      effect whatsoever.  The Parties further acknowledge that no
      written or oral representations inconsistent with or additional to the
      terms and conditions of this Separation Agreement have been made or
      reached.  Except as provided herein, the parties further agree
      that no modification, amendment or waiver of any of the provisions of this
      Separation Agreement shall be effective unless made in writing,
      specifically referring to this Separation Agreement, and signed by
      Executive and the Company.

            


    

    


    
      
         

      

      
        page 4 of
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              12.

            	
              Disputes.  Each
      Party to this Separation Agreement shall be entitled to seek any and all
      relief to which it or he, as applicable, is entitled with respect to any
      violation or threatened violation by the other Party of this Separation
      Agreement.  Except as otherwise set forth herein, in the event a
      Party institutes any proceeding to enforce his or its legal rights under,
      or to recover damages for breach by the other Party of, this Separation
      Agreement, the prevailing Party shall be entitled to recover from the
      other Party any actual expenses for attorney’s fees and disbursements
      incurred by such prevailing Party.

            


    

    


    
      	
              13.

            	
              No
      Waiver.  The Parties acknowledge and agree that the
      failure to enforce at any time any of the provisions of this Separation
      Agreement or to require at any time performance by any party of any of the
      provisions hereto shall in no way be construed as a waiver of such
      provision or affect the validity of this Separation Agreement or any part
      thereof, or the right of each party thereafter to enforce each and every
      provision in accordance with the terms of this Separation
      Agreement.

            


    

    


    
      	
              14.

            	
              Assignability.  This
      Separation Agreement is not assignable by Executive but is assignable by
      the Company.  This Separation Agreement shall be binding upon
      and inure to the benefit of the Company and its successors and
      assigns.  The Company agrees to cause its successors and assigns
      to assume the Company’s liabilities and obligations set forth in this
      Separation Agreement.

            


    

    


    
      	
              15.

            	
              Non-Disclosure of
      Agreement.  The Parties agree to keep any and all matters
      relating to this Separation Agreement, including its existence, terms and
      the negotiations and circumstances which led to this Separation Agreement,
      confidential such that they will not disclose such matters to any person
      or entity at any time; provided that (1) the Company may disclose such
      matters to (i) any of its officers, directors, partners, owners, agents,
      auditors, representatives and employees (and their respective advisors),
      to the extent necessary to implement this Separation Agreement, (ii) any
      prospective purchaser of the Company’s business in order to comply with
      the Company’s disclosure obligations to or due diligence requests by any
      prospective purchaser of the Company’s business, (iii) through filings
      with the Securities and Exchange Commission in order to comply with its
      public company reporting and disclosure obligations, and (iv) any party to
      the extent required by law, and (2) Executive may disclose this Separation
      Agreement to his counsel, his tax and financial advisors and his immediate
      family members, and the Executive may discuss his separation from the
      Company and this Separation Agreement with persons with whom he has a
      personal relationship to the extent such persons inquire of him regarding
      these matters so long as the Executive does not misrepresent in any manner
      the terms of his separation.

            


    

    


    
      	
              16.

            	
              Non-Disparagement.  The
      Parties agree that they will not take any action or make any comment which
      impugns, defames, disparages, criticizes, negatively characterizes or
      casts in an unfavorable light, the other.  Executive’s
      obligation under this Paragraph shall apply to the Company and to the
      Released Parties, including their officers, directors, management,
      employees, agents and other representatives.  Executive agrees
      not to voluntarily provide assistance or information to any person or
      entity pursuing any claim, charge or complaint against the Company, except
      that nothing herein shall be interpreted to limit Executive’s right to
      confer with counsel or to provide truthful testimony pursuant to subpoena
      or notice of deposition or as otherwise required by
  law.

            


    

    


    
      	
              17.

            	
              Counterparts.  This
      Separation Agreement may be executed in counterparts, each of which shall
      be deemed an original for all
purposes.

            


    

    


    [Remainder
of page intentionally left blank]

    


    
      
         

      

      
        page 5 of
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    Both
Parties have read this Separation Agreement, understand and agree to its terms
and enter into it voluntarily.  By signing below, Executive
acknowledges that he is receiving a signed copy of this Separation
Agreement.

    


    IN
WITNESS WHEREOF, the parties hereto have caused this Separation Agreement to be
signed as of the day and year first below written.

     

    
      
        	 
      	
                NEW
      YORK MORTGAGE TRUST, INC.

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                /s/ Steven
      R. Mumma

              
	
                Date:
      February 3, 2009

              	
                By:

              	
                Steven
      R. Mumma

              
	 
      	
                Title:

              	
                Chief
      Executive Officer

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                Date:
      February 3, 2009

              	
                /s/ David A. Akre

              
	 
      	
                DAVID
      A. AKRE

              


      

    

     

    
      
         

      

      
        page 6 of
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