ex10-1.htm


    Exhibit
10.1

    


    Description of the Company’s
2010 Stock Incentive Plan

     

    This
summary is qualified in its entirety by the detailed provisions of the New York
Mortgage Trust, Inc. (the “Company”) 2010 Stock Incentive Plan (the “2010
Plan”). The purpose of the 2010 Plan is to provide incentives to our employees,
non-employee directors and other service providers to stimulate their efforts
toward our continued success, long-term growth and profitability and to attract,
reward and retain key personnel.

     

    Administration. The 2010 Plan
is administered by the Compensation Committee of our Board of Directors. The
Compensation Committee may delegate to one or more of our officers all or part
of the Compensation Committee’s authority and duties under the 2010 Plan, except
as to participants who are subject to Section 16 of the Securities Exchange Act
of 1934. This summary uses the term “Compensation Committee” to refer to the
Compensation Committee and any delegate of the Compensation
Committee.

     

    Subject
to the terms of the 2010 Plan, the Compensation Committee may select
participants who receive awards and will determine the types of awards and the
terms and conditions of awards. The Compensation Committee also may interpret
the provisions of the 2010 Plan.

     

    Shares of Common Stock Issuable
Through the 2010 Plan.  A total of 1,190,00 shares of our
common stock are authorized to be issued under the 2010 Plan, representing
approximately 10% of our outstanding common stock on a fully-diluted
basis.  The closing sale price of a share of our common stock, as
quoted on the Nasdaq Capital Market on March 22, 2009, was $7.99.

     

    Source of Shares. The shares
of our common stock issuable under the 2010 Plan consist of authorized but
unissued shares. If any shares covered by an award are not issued or are
forfeited, if an award is settled in cash or if an award otherwise terminates
without issuance and delivery of any shares of common stock, then the number of
shares of common stock that are forfeited, terminated or settled in cash will
again be available for making awards under the 2010 Plan.

     

    Eligibility. Awards may be
made under the 2010 Plan to our or our affiliates’ employees, non-employee
directors and to any other individual who provides services to us or an
affiliate and whose participation in the 2010 Plan is determined, by our Board
of Directors, to be in our best interests of our Company.

     

    We
currently have four full-time employees and four non-employee directors, all of
whom will be eligible participants under the 2010 Plan.

     

    Options. The 2010 Plan
permits the grant of options to purchase shares of common stock intended to
qualify as incentive stock options under the Internal Revenue Code, and stock
options that do not qualify as incentive stock options, referred to as
nonqualified stock options. The exercise price of each stock option may not be
less than 100% of the fair market value of our common stock on the date of
grant. The Compensation Committee may, in its sole discretion and without the
consent of the participant, grant options in substitution for options held by
employees of companies that we may acquire. In this case, the exercise price
would be adjusted to preserve the acquisition date intrinsic value of the
employee’s stock option from his or her former employer.

     

    The term
of each stock option will be fixed by the Compensation Committee but may not
exceed 10 years from the date of grant. The Compensation Committee will
determine at what time or times each option may be exercised and the period of
time, if any, after termination of employment during which options may be
exercised. The exercisability of options may be accelerated by the Compensation
Committee. Except in the case of certain changes in our capitalization, such as
a stock dividend, stock split-up, extraordinary cash dividend, subdivision or
consolidations of shares that affect the number of shares of our common stock or
the fair market value of our common stock, the exercise price of an option may
not be reduced after its grant without the approval of our
stockholders.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    In
general, an optionee may pay the exercise price of an option by cash, certified
check, by tendering shares of common stock (which, if acquired from us, have
been held by the optionee for at least six months) or by means of a
broker-assisted cashless exercise. Stock options granted under the 2010 Plan may
not be sold, transferred, pledged or assigned other than by will or under
applicable laws of descent and distribution. However, we may permit limited
transfers of nonqualified options for the benefit of immediate family members of
participants to help with estate planning concerns.

     

    Stock Awards. The 2010 Plan
also permits the grant of shares of our common stock in the form of stock
awards. A participant’s rights in the stock award may be nontransferable or
forfeitable or both for a period of time or subject to the attainment of certain
goals tied to the performance criteria described below. These performance goals
may include, for example, a requirement that we or any of our affiliates or the
participant achieve objectives based on any of the performance criteria listed
below. Unrestricted shares of common stock, which are shares of common stock
awarded at no cost to the participant or for a purchase price determined by the
Compensation Committee and which are vested and transferable upon grant, may
also be issued under the 2010 Plan.

     

    Incentive Awards. Incentive
awards entitle the participant to receive shares of common stock or, in the
discretion of the Compensation Committee, a cash payment, subject to the
attainment of objectives based on the performance criteria described below. All
incentive awards shall be finally determined exclusively by the Compensation
Committee under the procedures established by the Compensation Committee.
Incentive awards are nontransferable except by will or by the laws of descent
and distribution.  In addition, the Compensation Committee may permit
limited transfers of incentive awards for the benefit of immediate family
members of participants to help with estate planning concerns.

     

    Performance Shares. The 2010
Plan also allows the grant of performance share awards, meaning the right to
receive common stock, cash or a combination of common stock and cash in the
future. The participant will be entitled to receive payment pursuant to the
performance shares only upon the satisfaction of performance objectives and
other criteria prescribed by the Compensation Committee. The performance
measurement period will be at least three years from the date of the award;
provided, however, that the performance measurement period shall be at least one
year from the date of the award if the payment is contingent on the attainment
of the objectives stated with respect to performance criteria listed below. To
the extent the performance shares are earned, our payment obligation may be
settled in cash, by shares of our common stock or a combination of the two. .
Performance Shares are nontransferable except by will or by the laws of descent
and distribution.  In addition, the Compensation Committee may permit
limited transfers of performance shares for the benefit of immediate family
members of participants to help with estate planning concerns.

     

    Stock Appreciation Rights.
Stock appreciation rights, or SAR, may be awarded under the 2010 Plan. Stock
appreciation rights entitle the participant to receive a number of shares of
common stock, cash or a combination of shares and cash, based on the increase in
the fair market value of the shares from their grant date fair market
value.  The term of any SAR will be determined by the Compensation
Committee, but in no event will an SAR related to an incentive stock option have
a term of more than 10 years from the date the related incentive stock option
was granted.  Stock appreciation rights are nontransferable except by
will or by the laws of descent and distribution.  In addition, the
Compensation Committee may permit limited transfers of stock appreciation rights
for the benefit of immediate family members of participants to help with estate
planning concerns.

     

    Performance Criteria. Section
162(m) of the Internal Revenue Code limits publicly traded companies to an
annual deduction for federal income tax purposes of $1,000,000 for compensation
paid to each of their chief executive officer, chief financial officer and the
other three highest compensated executive officers. However, performance-based
compensation is excluded from this limitation. The 2010 Plan is designed to
permit the Compensation Committee to grant awards that qualify as
performance-based for purposes of satisfying the conditions of Section 162(m).
Accordingly, the 2010 Plan provides that no individual may receive awards in any
calendar year covering more than 250,000 shares of Common stock. In addition, no
individual may receive more than $2,000,000 in any calendar year under an
incentive award.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    The
Compensation Committee will use one or more of the following business criteria,
on a consolidated basis, and/or with respect to an affiliate or specified
business unit (except with respect to the total stockholder return and earnings
per share criteria), in establishing performance goals for awards (other than
options and stock appreciation rights) that are intended to qualify as
performance-based compensation under Section 162(m) of the Internal Revenue
Code:

     

    
      	 
      	
              •

            	
              total
      stockholder return;

            
	 
      	
              •

            	
              total
      stockholder return as compared to total return (on a comparable basis) of
      a publicly available index such as, but not limited to, the Standard &
      Poor’s 500 Stock Index;

            
	 
      	
              •

            	
              net
      income;

            
	 
      	
              •

            	
              pretax
      earnings;

            
	 
      	
              •

            	
              funds
      from operations;

            
	 
      	
              •

            	
              earnings
      before interest, taxes, depreciation and amortization;

            
	 
      	
              •

            	
              operating
      margin;

            
	 
      	
              •

            	
              earnings
      per share;

            
	 
      	
              •

            	
              return
      on equity, capital, assets or investments;

            
	 
      	
              •

            	
              operating
      earnings;

            
	 
      	
              •

            	
              working
      capital;

            
	 
      	
              •

            	
              ratio
      of debt to stockholders’ equity; and

            
	 
      	
              •

            	
              revenue.

            


    

     

    Adjustments for Stock Dividends and
Similar Events. Our Board of Directors will make appropriate adjustments
in the number and terms of outstanding awards and the number of shares of common
stock available for issuance under the 2010 Plan, including the individual
limitations on awards, to reflect common stock dividends, stock splits, spin-off
and other similar events listed in the 2010 Plan.

     

    Change in Control. The 2010
Plan provides that the Compensation Committee is authorized to take certain
actions if there is a change in control of our Company.  The
Compensation Committee may prescribe that (i) outstanding awards will become
vested or exercisable upon the change in control, (ii) outstanding awards will
be replace with substitute awards issued by the surviving company in the change
in control or (iii) outstanding awards will be cancelled in exchange for a
payment equal to the amount received by our stockholders in the transaction or,
in the case of options and stock appreciation rights, the amount by which that
value exceeds the option exercise price or initial value of the stock
appreciation right.

     

    Under the
2010 Plan, a change in control is generally defined to include (i) the
acquisition by any person of the direct or indirect beneficial ownership of at
least 50% of our outstanding voting securities; (ii) the transfer of all or
substantially all of our assets; (iii) a merger, consolidation or statutory
share exchange where our stockholders hold less than 50% of the voting power of
the surviving or resulting entity; (iv) our directors, including subsequent
directors recommended or approved by our directors, cease to constitute a
majority of our Board of Directors; or (v) the complete liquidation of our
Company or of all or substantially all of our assets.

     

    Amendment or Termination of the
Plan. While our Board of Directors may terminate or amend the 2010 Plan
at any time, no amendment may adversely impair the rights of participants with
respect to outstanding awards. In addition, any amendment will be contingent on
approval of our stockholders to the extent required by law, the rules of the
NASDAQ Stock Market or other exchange on which our common stock is then listed
or if the amendment would increase the benefits accruing to participants under
the 2010 Plan, materially increase the aggregate number of shares of common
stock that may be issued under the 2010 Plan, or materially modify the
requirements as to eligibility for participation in the 2010 Plan.

     

    Unless
terminated earlier, the 2010 Plan will terminate in 2020, but will continue to
govern unexpired awards.