UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-A
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR 12(g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
NEW
YORK MORTGAGE TRUST, INC.
(Exact
Name of Registrant as Specified in its Charter)
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Maryland
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47-0934168
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(State
of Incorporation)
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(IRS
Employer Identification No.)
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1301
Avenue of the Americas
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New
York, New York
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10019
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Securities
registered pursuant to Section 12(b) of the Act:
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Title
of Each Class
to
be so Registered
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Name
of Each Exchange on Which
Each
Class is to be Registered:
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Common
Stock, $0.01 par value per share
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The
NASDAQ Stock Market LLC
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If
this
form relates to the registration of a class of securities pursuant to Section
12(b) of the Exchange Act and is effective pursuant to General Instruction
A.(c), please check the following box. x
If
this
form relates to the registration of a class of securities pursuant to Section
12(g) of the Exchange Act and is effective pursuant to General Instruction
A.(d), please check the following box. o
Securities
Act registration statement file number to which this form relates (if
applicable):
Securities
registered pursuant to Section 12(g) of the Act: None
Item
1. Description of Registrant’s Securities to be
Registered.
The
following summary description of our capital stock does not purport to be
complete and is subject to and qualified in its entirety by reference to
Maryland law, and our charter and our bylaws, copies of which are filed as
exhibits to this registration statement.
General
Our
charter provides that we may issue up to 400,000,000 shares of common stock,
par
value $0.01 per share, and 200,000,000 shares of preferred stock, par value
$0.01 per share. As of May 28, 2008, 9,320,094 shares of common stock and
1,000,000 shares of preferred stock were issued and outstanding. Under Maryland
law, our stockholders are not generally liable for our debts or obligations.
Our
charter authorizes our board of directors to amend our charter to increase
or
decrease the aggregate number of shares of capital stock of any class or series
that we have the authority to issue, without your approval.
Voting
Rights of Common Stock
Subject
to the provisions of our charter regarding restrictions on the transfer and
ownership of shares of common stock, each outstanding share of common stock
entitles the holder to one vote on all matters submitted to a vote of
stockholders, including the election of directors, and, except as provided
with
respect to any other class or series of shares of our stock, the holders of
our
common stock possess the exclusive voting power. There is no cumulative voting
in the election of directors, which means that the holders of a majority of
the
sum of our outstanding shares of common stock and outstanding shares of Series
A
Cumulative Convertible Redeemable preferred stock (“Series A Preferred Stock”),
on an “as-converted” basis, voting together as a single class, can elect all of
the directors then standing for election. Under Maryland law, a Maryland
corporation generally cannot dissolve, amend its charter, merge, sell all or
substantially all of its assets, or engage in a share exchange or engage in
similar transactions outside the ordinary course of business unless approved
by
the affirmative vote of stockholders holding at least two-thirds of the shares
entitled to vote on the matter, unless a lesser percentage (but not less than
a
majority of all the votes entitled to be cast on the matter) is set forth in
the
corporation’s charter. Our charter provides for approval by a majority of all
the votes entitled to be cast on the matter for the matters described in the
preceding sentence.
Dividends,
Liquidation and Other Rights
All
of
our outstanding shares of common stock are duly authorized, fully paid and
nonassessable. Holders of our shares of common stock are entitled to receive
dividends when authorized by our board of directors and declared by us out
of
assets legally available for the payment of dividends. They also are entitled
to
share ratably in our assets legally available for distribution to our
stockholders in the event of our liquidation, dissolution or winding up, after
payment of or adequate provision for all of our known debts and liabilities.
These rights are subject to the preferential rights of any other class or series
of our stock and to the provisions of our charter regarding restrictions on
transfer and ownership of our stock.
Holders
of our shares of common stock have no appraisal, preference, conversion,
exchange, sinking fund or redemption rights and have no preemptive rights to
subscribe for any of our securities. Subject to the restrictions on transfer
of
capital stock contained in our charter
and
to
the ability of the board of directors to create shares of common stock with
differing voting rights, all shares of common stock have equal dividend,
liquidation and other rights.
Our
charter also authorizes our board of directors to classify and reclassify any
unissued shares of our common stock and preferred stock into any other classes
or series of classes of our stock, as discussed below, to establish the number
of shares in each class or series and to set the terms, preferences, conversion
and other rights, voting powers, restrictions, limitations as to dividends
or
other distributions, qualifications and terms or conditions of redemption for
each such class or series. Thus, our board of directors could authorize the
issuance of shares of preferred stock with terms and conditions that could
have
the effect of delaying, deferring or preventing a transaction or a change of
control that might involve a premium price for you or otherwise be in your
best
interest.
Preferred
Stock
Our
charter authorizes our board of directors to reclassify any unissued shares
of
common stock into preferred stock, to classify any unissued shares of preferred
stock and to reclassify any previously classified but unissued shares of any
series of preferred stock previously authorized by our board of directors.
Prior
to issuance of shares of each class or series of preferred stock, our board
of
directors is required by Maryland law and our charter to fix, subject to our
charter restrictions on transfer and ownership, the terms, preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications and terms or conditions of
redemption for each class or series. Thus, our board could authorize the
issuance of shares of preferred stock with terms and conditions that could
have
the effect of delaying, deferring or preventing a transaction or a change of
control that might involve a premium price for you or otherwise be in your
best
interest.
In
connection with our issuance and sale of 1.0 million shares of our Series A
Preferred Stock on January 18, 2008, we filed Articles Supplementary to our
charter designating the terms of the Series A Preferred Stock with the Maryland
State Department of Assessment and Taxation. On May 27, 2008, we completed
a
one-for-two reverse stock split on shares of our common stock. The following
summary describes the terms of the Series A Preferred Stock after
giving effect to the completion of the one-for-two reverse stock split on
shares of our common stock. The following summary of the terms of our Series
A
Preferred Stock does not purport to be complete and is qualified in its entirety
by reference to the Articles Supplementary to our charter, which is filed as
an
exhibit to this registration statement.
Series
A Preferred Stock
Rank
The
Series A Preferred Stock, with respect to dividend rights and rights upon
liquidation, dissolution or winding up of our company, ranks: (a) prior or
senior to any class or series of common stock of our company and any other
class
or series of equity securities of
our
company, if the holders of Series A Preferred Stock shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up in preference or priority to the holders of shares of such class
or series, or junior stock; (b) on a parity with any class or series of equity
securities of our company if, pursuant to the specific terms of such class
or
series of
equity
securities, the holders of such class or series of equity securities and
the
Series A Preferred Stock shall be entitled to the receipt of dividends and
of
amounts distributable upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the other,
or
parity stock; (c) junior to any class or series of equity securities of
our
company if, pursuant to the specific terms of such class or series, the holders
of such class or series shall be entitled to the receipt of dividends or amounts
distributable upon liquidation, dissolution or winding up in preference or
priority to the holders of the Series A Preferred Stock, or senior stock; and
(d) junior to all existing and future indebtedness of our company. The term
“equity securities” does not include convertible debt securities, which will
rank senior to the Series A Preferred Stock prior to conversion.
Dividends
Holders
of shares of Series A Preferred Stock are entitled to receive, when and as
authorized by the board of directors and declared by our company, out of funds
legally available for the payment of distributions, cumulative preferential
quarterly cash dividends at the rate of the greater of (i) two and one half
percent (2.5%) per quarter of the $20.00 per share liquidation preference of
the
Series A Preferred Stock (equivalent to a fixed annual amount of $2.00 per
share) or (ii) the quotient of the quarterly dividend declared by our company
on
shares of our common stock divided by the conversion price (defined below).
In
the event we fail to file a resale registration statement under the Securities
Act of 1933, as amended, with the Securities and Exchange Commission, or SEC,
on
or before June 30, 2008, or the Registration Deadline, pursuant to the
Registration Rights Agreement, holders of Series A Preferred Stock will be
entitled to receive, when and as authorized by the board of directors and
declared by us, out of funds legally available for the payment of distributions,
an additional cumulative preferential cash dividend at the rate of one-half
percent (0.5%) per quarter of the $20.00 liquidation preference per share
(equivalent to $0.10 per quarter per share) for each calendar quarter after
the
Registration Deadline until such resale registration statement has been filed
by
us, or the Registration Penalty Dividend; provided,
however,
that
such Registration Penalty Dividend will not be due and payable if a majority
of
the independent directors determine in good faith that the failure to file
the
resale registration statement by the Registration Deadline is due to
circumstances beyond our ultimate control or the result of any action or
inaction of any of the holders of the Series A Preferred Stock. Dividends will
accumulate on a daily basis and be cumulative from (but excluding) the original
date of issuance and be payable quarterly in arrears on or before the last
day
of each January, April, July and October of each year (each such day being
hereinafter called a Dividend Payment Date) to holders of record of the Series
A
Preferred Stock at the close of business on
the
last business day of March, June, September and December immediately preceding
such Dividend Payment Date. The first dividend was payable based on a full
quarter and was paid on March 31, 2008 to stockholders of record as of March
31,
2008. Any dividend payable on the Series A Preferred Stock for any partial
dividend period will be computed on the basis of twelve 30-day months and a
360-day year. Holders of Series A Preferred Stock shall not be entitled to
receive any dividends in excess of cumulative dividends on the Series A
Preferred Stock and no interest shall be paid in respect of any dividend payment
or payments on the Series A Preferred Stock that may be in arrears.
When
dividends are not paid in full upon the Series A Preferred Stock or any other
class or series of parity stock, all dividends declared upon the Series A
Preferred Stock and any other class or series of parity stock shall be declared
ratably in proportion to the respective amounts of
dividends
accumulated, accrued and unpaid on the Series A Preferred Stock and the parity
stock. Except as set forth in the preceding sentence, unless dividends on the
Series A Preferred Stock equal to the full amount of accumulated, accrued and
unpaid dividends have been or contemporaneously are declared and paid, or
declared and a sum sufficient for the payment thereof set apart for such payment
for all past dividend periods, no dividends will be declared or paid or set
aside for payment by us with respect to any class or series of parity stock.
Unless full cumulative dividends on the Series A Preferred Stock have been
paid
or declared and set apart for payment for all past dividend periods, no
dividends (or other cash or property) will be declared or paid or set apart
for
payment by us with respect to any shares of junior stock, nor shall any shares
of junior stock be redeemed, purchased or otherwise acquired (except for
purposes of an employee benefit plan) for any consideration. Notwithstanding
the
above, we are not prohibited from (i) declaring or paying or setting apart
for payment any dividend or distribution on any shares of parity stock or
(ii) redeeming, purchasing or otherwise acquiring any parity stock, in each
case, if such declaration, payment, redemption, purchase or other acquisition
is
necessary to maintain our qualification as a real estate investment trust,
or
REIT, under the Internal Revenue Code of 1986, as amended, or Internal Revenue
Code.
No
dividends on shares of Series A Preferred Stock may be declared by our board
of
directors or paid or set apart for payment by us at such time as the terms
and provisions of any agreement of our company prohibits such declaration,
payment or setting apart for payment or provides that such declaration, payment
or setting apart for payment would constitute a breach thereof or a default
thereunder, or if such declaration or payment shall be restricted or prohibited
by law.
Liquidation
Preference
Upon
any
voluntary or involuntary liquidation, dissolution or winding up of our company,
before any payment or distribution by us shall be made to or set apart for
the
holders of any shares of junior stock, the holders of shares of Series A
Preferred Stock will be entitled to receive a liquidation preference of $20.00
per share, or the Liquidation Preference, plus an amount equal to all
accumulated, accrued and unpaid dividends (whether or not earned or declared)
to
the date of final distribution to such holders. Until the holders of the Series
A Preferred Stock have been paid the Liquidation Preference in full, plus an
amount equal to all accumulated, accrued and unpaid dividends (whether or not
earned or declared)
to the date of final distribution to such holders, no payment shall be made
to
any holder of junior stock upon the liquidation, dissolution or winding up
of
our company.
If
upon
any liquidation, dissolution or winding up of our company, our assets, or
proceeds thereof, distributable among the holders of Series A Preferred Stock
shall be insufficient to pay in full the above described preferential amount
and
liquidating payments on any other shares of any class or series of parity stock,
then such assets,
or
the
proceeds thereof, will be distributed among the holders of Series A Preferred
Stock and any such other holder of parity stock ratably in the same proportion
as the respective amounts that would be payable on the Series A Preferred Stock
and any such other parity stock if all amounts payable thereon were paid in
full. A voluntary or involuntary liquidation, dissolution or winding up of
our
company shall not include a consolidation or merger of our company with one
or
more corporations, a sale, lease, conveyance or transfer of all or substantially
all of our assets or business, or a statutory share exchange.
Upon
any
liquidation, dissolution or winding up of our company, after payment has
been made in full to the holders of Series A Preferred Stock and any holders
of
parity stock, any other series or class or classes of junior stock will be
entitled to receive any and all assets remaining to be paid or
distributed.
Redemption
Except
as
set forth below under “Special Optional Redemption by Company” or certain other
exceptions, the Series A Preferred Stock is not redeemable prior to
December 31, 2010. To the extent any shares of the Series A Preferred Stock
are not converted into shares of our common stock as set forth below, we will
redeem the Series A Preferred Stock, in whole but not in part, on or about
December 31, 2010 at a cash redemption price equal to 100% of the
Liquidation Preference, plus all accrued and unpaid dividends to the date fixed
for redemption, or the redemption date. If full cumulative dividends on all
outstanding shares of Series A Preferred Stock have not been paid or declared
and set apart for payment, no shares of Series A Preferred Stock may be redeemed
unless all outstanding shares of Series A Preferred Stock are simultaneously
redeemed.
Special
Optional Redemption by Company
At
any
time following a Change of Control Optional Conversion Termination Date (as
defined in the Articles Supplementary), we will have the option upon written
notice to the holders of record of the then outstanding shares of Series A
Preferred Stock (in accordance with the notice requirements provided in the
Articles Supplementary) to redeem the then outstanding shares of Series A
Preferred Stock, in whole but not in part, within 90 days after the Change
of
Control Optional Conversion Termination Date, for a cash redemption price equal
to 100% of the Liquidation Preference, plus all accrued and unpaid dividends
to
the redemption date. Upon any redemption of the Series A Preferred Stock
pursuant to this special optional redemption by our company, we will pay any
accrued and unpaid dividends to the redemption date, whether or not authorized,
unless the redemption date falls after a dividend payment record date and prior
to the corresponding Dividend Payment Date, in which case each holder of the
Series A Preferred Stock at the close of business on such dividend payment
record date will be entitled to the distribution payable on such shares on
the
corresponding Dividend Payment Date notwithstanding the redemption of such
shares before the Dividend Payment Date. A “change of control” has the meaning
ascribed to it in the Articles Supplementary.
Conversion
Optional
Conversion
Subject
to the requirements sets forth in the Articles Supplementary for such
conversion, a holder of any shares of the Series A Preferred Stock has the
right, at its option, to convert all or any portion of its outstanding Series
A
Preferred Stock, or the Optional Conversion Right, into the number of fully
paid
and non-assessable shares of our common stock at a conversion rate of one share
of common stock per $8.00 liquidation preference, or the Conversion Rate, which
is equivalent to a conversion price of approximately $8.00 per share of our
common stock, or the Conversion Price (subject to adjustment as described
below). Such holder shall surrender to us such shares of Series A Preferred
Stock to be converted in accordance with the provisions set forth in the
Articles Supplementary.
If
a
holder of shares of Series A Preferred Stock exercises its Optional Conversion
Right, upon delivery of the Series A Preferred Stock for conversion, those
shares of Series A Preferred Stock shall cease to cumulate dividends as of
the
end of the day immediately preceding the conversion date (as defined in the
Articles Supplementary) and the holder shall not receive any cash payment
representing accrued and unpaid dividends of the Series A Preferred Stock,
except in those limited circumstances discussed below. Except as provided below,
we will make no payment for accrued and unpaid dividends, whether or not in
arrears, on the Series A Preferred Stock converted at a holder’s election
pursuant to a conversion right, or for dividends on shares of our common stock
issued upon such conversion.
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if
we receive a conversion notice after the Dividend Record Date but
prior to
the corresponding Dividend Payment Date, the holder on the Dividend
Record
Date shall receive on that Dividend Payment Date accrued dividends
on
those shares of Series A Preferred Stock, notwithstanding the conversion
of those shares of Series A Preferred Stock prior to that Dividend
Payment
Date; provided,
however,
that at the time that such holder surrenders the Series A Preferred
Stock
for conversion, the holder shall pay to us an amount equal to the
dividend
that has accrued and that shall be paid on the related Dividend Payment
Date; and
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a
holder of shares of Series A Preferred Stock on a Dividend Record
Date who
exercises its Optional Conversion Right and converts such Series
A
Preferred Stock into our common stock on or after the corresponding
Dividend Payment Date shall be entitled to receive the dividend payable
on
such Series A Preferred Stock on such Dividend Payment Date, and
the
converting holder need not include payment of the amount of such
dividend
upon surrender for conversion of the Series A Preferred
Stock.
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However,
if we receive a conversion notice before the close of business on a Dividend
Record Date, the holder shall not be entitled to receive any portion of the
dividend payable on such converted Series A Preferred Stock on the corresponding
Dividend Payment Date.
Mandatory
Conversion
Each
outstanding share of Series A Preferred Stock will be converted into the number
of fully paid and non-assessable shares of our common stock at the Conversion
Rate (subject to
adjustment
as described below) upon satisfaction of the following conditions, or the
Mandatory Conversion:
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we
have obtained the requisite approval(s), if any, of our common
stockholders in connection with the issuance of the Series A Preferred
Stock or any of our common stock issuable upon conversion of such
shares
of Series A Preferred Stock;
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the
resale registration statement registering for resale the Series A
Preferred Stock or the common stock into which it is
convertible has been declared effective by the SEC;
and
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the
number of shares of our common stock issuable upon conversion of
the
outstanding shares of Series A Preferred Stock equal a number that
is less
than ten percent (10%) of our then outstanding common
stock.
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provided,
however, that
no
such Mandatory Conversion will occur if such conversion would result in our
company being consolidated for accounting purposes as a subsidiary of JMP Group,
Inc. Upon exercise of the Mandatory Conversion right and the surrender of shares
of the Series A Preferred Stock by a holder thereof, we will issue and deliver
or cause to be issued and delivered to such holder, or to such other person
on
such holder’s written order, certificates representing the number of validly
issued, fully paid and non-assessable shares of our common stock to which a
holder of shares of Series A Preferred Stock being converted, or a holder’s
transferee, shall be entitled.
To
exercise this Mandatory Conversion right, we must issue a press release prior
to
the opening of business on any trading day not more than five trading days
following any date on which we became aware that the conditions set forth above
for the Mandatory Conversion have been satisfied, announcing the satisfaction
of
the Mandatory Conversion conditions. The conversion date, or the Mandatory
Conversion Date, will be on the date that is five trading days after the date
on
which we issue such press release. Each conversion shall be deemed to have
been
made at the close of business on the Mandatory Conversion Date so that the
rights of the holder thereof as to the Series A Preferred Stock being converted
shall cease except for the right to receive the number of fully paid and
non-assessable shares of our common stock at the Conversion Rate (subject to
adjustment as described below), and the person entitled to receive shares of
our
common stock will be treated for all purposes as having become the record holder
of those shares of common stock at that time.
If
we
exercise the Mandatory Conversion right and the Mandatory Conversion Date is
a
date that is on, or after the close of business on, any Dividend Record Date
and
prior to the close of business on the corresponding Dividend Payment Date,
all
dividends, including accrued and unpaid dividends, whether or not in arrears,
with respect to the Series A Preferred Stock called for conversion on such
date,
will be payable on such Dividend Payment Date to the record holder of such
shares on such record date. However, if we exercise the Mandatory Conversion
right and the Mandatory Conversion Date is a date that is prior to the close
of
business on any Dividend Record Date, the holder shall not be entitled to
receive any portion of the dividend payable for such period on such converted
shares on the corresponding Dividend Payment Date; provided,
however,
that all
unpaid dividends that are in arrears as of the Mandatory Conversion Date will
be
payable to the holder of the Series A Preferred Stock.
Conversion
Rate Adjustments
If
we
shall, at any time or from time to time after the original issue date of the
Series A Preferred Stock while any shares of Series A Preferred Stock are
outstanding, effect one or more stock dividends, stock split-ups (including
reverse splits), subdivisions or consolidations of shares of our common stock,
the Conversion Rate shall be appropriately adjusted to reflect such stock
dividends, stock split-ups, subdivisions or consolidations of shares of common
stock. For example, on May 27, 2008, we completed a one-for-two reverse stock
on
shares of our common stock. Upon completion of this reverse stock split, the
Conversion Rate was automatically adjusted to one share of common stock per
$8.00 liquidation preference from one share of common stock per $4.00
liquidation preference. In addition, if during the period in which shares of
the
Series A Preferred Stock remain outstanding we issue or sell any shares of
common stock (excluding any equity awards granted under our 2005 Stock Plan)
for
a price per share that is less than the Conversion Price at the time of such
issuance or sale, the Conversion Rate immediately will be adjusted by
multiplying the Conversion Rate by the quotient of (x) the Conversion Price
at
the time of such issuance or sale divided by (y) the product of the Conversion
Price at the time of such issuance or sale multiplied by (a) an amount equal
to
the sum of (i) the number of shares of common stock outstanding and deemed
to be
outstanding immediately prior to such sale plus the number of shares of common
stock to be issued upon such issuance or sale multiplied by the Conversion
Price
at the time of such issuance or sale and (ii) the total consideration received
and deemed to be received by us upon such issuance and sale and (b) dividing
the
result by an amount equal to (i) the sum of (A) the amount determined in (a)
and
(B) the product of the number of shares issued or sold multiplied by the
Conversion Price at the time of such issuance or sale, minus (ii) the
consideration received.
Voting
Rights
Holders
of the Series A Preferred Stock have the same voting rights as holders of our
common stock and will vote together with holders of common stock as a single
class, except as set forth below.
If
and
whenever distributions on any shares of Series A Preferred Stock or any
series or
class
of parity stock are in arrears for six or more quarterly periods (whether or
not
consecutive), the number of directors then constituting the board of directors
will be increased by two and the holders of such shares of Series A Preferred
Stock (voting together as a single class with all other shares of parity stock
of any other class or series which is entitled to similar voting rights
(excluding common stock, or the Voting Preferred Stock), will be entitled to
vote for the election of the two additional directors of our company at any
annual meeting of stockholders or at a special meeting of the holders of the
Series A Preferred Stock and of the Voting Preferred Stock called for that
purpose. We must call such special meeting upon the request of any holder of
record of shares of Series A Preferred Stock. Whenever dividends in arrears
on
outstanding shares of the Series A Preferred Stock and the Voting Preferred
Stock have been paid and dividends thereon for the current quarterly dividend
period have been paid or declared and set apart for payment, then the right
of
the holders of the Series A Preferred Stock to elect such additional two
directors will cease and the terms of office of such directors will terminate,
with the number of directors constituting the board of directors being reduced
accordingly.
The
affirmative vote or consent of at least 66 2/3
percent
of the votes entitled to be cast by the holders of the outstanding Series A
Preferred Stock and the holders of all other classes or series of preferred
stock of our company entitled to vote on such matters, voting as a single class,
will be required to (i) authorize the creation of, the increase in the
authorized amount of, or issuance of any shares of any class of senior stock
or
any security convertible into shares of any class of
senior
stock or (ii) amend, alter or repeal any provision of, or add any provision
to, the charter, including the Articles Supplementary for the Series A Preferred
Stock, if such action would materially adversely affect the voting powers,
rights or preferences of the holders of the Series A Preferred Stock. The
amendment of the charter to authorize, create, or increase the authorized amount
of junior stock or any class of parity stock, is not deemed to materially
adversely affect the voting powers, rights or preferences of the holders of
Series A Preferred Stock.
With
respect to the exercise of the above described voting rights, each share of
Series A Preferred Stock is entitled to a number of votes equal to the
Conversion Rate then in effect. The foregoing voting provisions will not apply
if, at or prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding Series A Preferred
Stock shall have been redeemed or called for redemption upon proper notice
and
sufficient funds shall have been deposited in trust to effect such
redemption.
Power
to Issue Additional Shares of Common Stock and Preferred
Stock
We
believe that the power of our board of directors to issue additional authorized
but unissued shares of our common stock or preferred stock and to classify
or
reclassify unissued shares of our common stock or preferred stock and thereafter
to cause us to issue such classified or reclassified shares of stock provides
us
with increased flexibility in structuring possible future financings and
acquisitions and in meeting other needs which might arise. The additional
classes or series, as well as our common stock, are available for issuance
without further action by our stockholders, unless stockholder action is
required by applicable law or the rules of any stock exchange or automated
quotation system on which our securities may be listed or traded. Although
our
board of directors has no intention at the present time of doing so, it could
authorize us to issue a class or series that could, depending upon the terms
of
such class or series, delay, defer or prevent a transaction or a change in
control of us that might involve a premium price for holders of our common
stock
or otherwise be in your best interest.
Restrictions
on Ownership and Transfer
In
order
to qualify as a REIT under the Internal Revenue Code, our shares of stock must
be beneficially owned by 100 or more persons during at least 335 days of a
taxable year of 12 months or during a proportionate part of a shorter taxable
year. Also, no more than 50% of the value of our outstanding shares of capital
stock may be owned, directly or constructively, by five or fewer individuals
(as
defined in the Internal Revenue Code to include certain entities) during the
last half of any taxable year. In addition, if certain “disqualified
organizations” hold our stock, although the law on the matter is unclear, a tax
might be imposed on us if a portion of our assets is treated as a taxable
mortgage pool. In addition, a tax will be imposed on us if certain disqualified
organizations hold our stock and we hold a residual interest in a real estate
mortgage investment conduit, or REMIC.
To
help
us to qualify as a REIT, our charter, subject to certain exceptions, contains
restrictions on the number of shares of our capital stock that a person may
own
and prohibits certain entities from owning our stock. Our charter provides
that
generally no person may own, or be deemed to own by virtue of the attribution
provisions of the Internal Revenue Code, either (i) more than 9.9% in value
of
our outstanding shares of capital stock or (ii) more than 9.9% in value or
in
number of shares, whichever is more restrictive, of our outstanding common
stock.
Our
board
of directors is permitted under our charter to waive these ownership limits
on a
case by case basis so long as the waiver will not cause us to fail to comply
with applicable REIT ownership requirements under the Code. Our charter
prohibits the following “disqualified organizations” from owning our stock: the
United States; any state or political subdivision of the United States; any
foreign government; any international organization; any agency or
instrumentality of any of the foregoing; any other tax-exempt organization,
other than a farmer’s cooperative described in Section 521 of the Internal
Revenue Code, that is exempt from both income taxation and from taxation under
the unrelated business taxable income provisions of the Internal Revenue Code;
and any rural electrical or telephone cooperative.
Our
charter also prohibits any person from (a) beneficially or constructively owning
shares of our capital stock that would result in us being “closely held” under
Section 856(h) of the Internal Revenue Code, and (b) transferring shares of
our
capital stock if such transfer would result in our capital stock being
beneficially owned by fewer than 100 persons. Any person who acquires or
attempts or intends to acquire beneficial ownership of shares of our capital
stock that will or may violate any of the foregoing restrictions on
transferability and ownership will be required to give notice immediately to
us
and provide us with such other information as we may request in order to
determine the effect of such transfer on our status as a REIT. The foregoing
restrictions on transferability and ownership will not apply if our board of
directors determines that it is no longer in our best interests to attempt
to
qualify, or to continue to qualify, as a REIT.
Our
board
of directors, in its sole discretion, may exempt a person from the above
ownership limits and any of the restrictions described in the first sentence
of
the paragraph directly above. However, the board of directors may not grant
an
exemption to any person unless the board of directors obtains such
representations, covenants and undertakings as the board of directors may deem
appropriate in order to determine that granting the exemption would not result
in our losing our status as a REIT. As a condition of granting the exemption,
our board of directors may require a ruling from the Internal Revenue Service
or
an opinion of counsel, in either case in form and substance satisfactory to
the
board of directors, in its sole discretion, in order to determine or ensure
our
status as a REIT.
Any
transfer that results in our shares of stock being owned by fewer than 100
persons will be void. However, if any transfer of our shares of stock occurs
which, if effective, would result in any person beneficially or constructively
owning shares of stock in excess or in violation of the above transfer or
ownership limitations, known as a prohibited owner, then that number of shares
of stock, the beneficial or constructive ownership of which otherwise would
cause such person to violate the transfer or ownership limitations (rounded
up
to the nearest whole share), will be automatically transferred to a charitable
trust for the exclusive benefit of a charitable beneficiary, and the prohibited
owner will not acquire any rights in such shares. This automatic transfer will
be considered effective as of the close of business on the business day before
the violative transfer. If the transfer to the charitable trust would not be
effective for any reason to prevent the violation of the above transfer or
ownership limitations, then the transfer of that number of shares of stock
that
otherwise would cause any person to violate the above limitations will be void.
Shares of stock held in the charitable trust will continue to constitute issued
and outstanding shares of our stock. The prohibited owner will not benefit
economically from ownership of any shares of stock held in the charitable trust,
will have no rights to dividends or other distributions and will not possess
any
rights to vote or other rights attributable to the shares of stock held in
the
charitable trust. The trustee of the charitable trust will be
designated
by us and must be unaffiliated with us or any prohibited owner and will have
all
voting rights and rights to dividends or other distributions with respect to
shares of stock held in the charitable trust, and these rights will be exercised
for the exclusive benefit of the trust’s charitable beneficiary. Any dividend or
other distribution paid before our discovery that shares of stock have been
transferred to the trustee will be paid by the recipient of such dividend or
distribution to the trustee upon demand, and any dividend or other distribution
authorized but unpaid will be paid when due to the trustee. Any dividend or
distribution so paid to the trustee will be held in trust for the trust’s
charitable beneficiary. Subject to Maryland law, effective as of the date that
such shares of stock have been transferred to the trustee, the trustee, in
its
sole discretion, will have the authority to:
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·
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rescind
as void any vote cast by a prohibited owner prior to our discovery
that
such shares have been transferred to the trustee;
and
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·
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recast
such vote in accordance with the desires of the trustee acting for
the
benefit of the trust’s beneficiary.
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However,
if we have already taken irreversible corporate action, then the trustee will
not have the authority to rescind and recast such vote.
Within
20
days of receiving notice from us that shares of stock have been transferred
to
the charitable trust, and unless we buy the shares first as described below,
the
trustee will sell the shares of stock held in the charitable trust to a person,
designated by the trustee, whose ownership of the shares will not violate the
ownership limitations in our charter. Upon the sale, the interest of the
charitable beneficiary in the shares sold will terminate and the trustee will
distribute the net proceeds of the sale to the prohibited owner and to the
charitable beneficiary. The prohibited owner will receive the lesser
of:
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·
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the
price paid by the prohibited owner for the shares or, if the prohibited
owner did not give value for the shares in connection with the event
causing the shares to be held in the charitable trust (for example,
in the
case of a gift or devise), the market price of the shares on the
day of
the event causing the shares to be held in the charitable trust;
and
|
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·
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the
price per share received by the trustee from the sale or other disposition
of the shares held in the charitable trust (less any commission and
other
expenses of a sale).
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The
trustee may reduce the amount payable to the prohibited owner by the amount
of
dividends and distributions paid to the prohibited owner that are owed by the
prohibited owner to the trustee. Any net sale proceeds in excess of the amount
payable to the prohibited owner will be paid immediately to the charitable
beneficiary. If, before our discovery that shares of stock have been transferred
to the charitable trust, such shares are sold by a prohibited owner,
then:
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·
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such
shares will be deemed to have been sold on behalf of the charitable
trust;
and
|
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·
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to
the extent that the prohibited owner received an amount for such
shares
that exceeds the amount that the prohibited owner was entitled to
receive
as described above, the excess must be paid to the trustee upon
demand.
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In
addition, shares of stock held in the charitable trust will be deemed to have
been offered for sale to us, or our designee, at a price per share equal to
the
lesser of:
|
|
· |
the
price per share in the transaction that resulted in such transfer
to the
charitable trust (or, in the case of a gift or devise, the market
price at
the time of the gift or devise);
and
|
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·
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the
market price on the date we, or our designee, accept such
offer.
|
We
may
reduce the amount payable to the prohibited owner by the amount of dividends
and
distributions paid to the prohibited owner that are owed by the prohibited
owner
to the trustee. We may pay the amount of such reduction to the trustee for
the
benefit of the charitable beneficiary. We will have the right to accept the
offer until the trustee has sold the shares of stock held in the charitable
trust. Upon such a sale to us, the interest of the charitable beneficiary in
the
shares sold will terminate and the trustee will distribute the net proceeds
of
the sale to the prohibited owner and any dividends or other distributions held
by the trustee will be paid to the charitable beneficiary.
All
certificates representing shares of our capital stock will bear a legend
referring to the restrictions described above.
Every
holder of more than 5% (or such lower percentage as required by the Internal
Revenue Code or the regulations promulgated thereunder) in value of all classes
or series of our capital stock, including shares of common stock, within 30
days
after the end of each taxable year, will be required to give written notice
to
us stating the name and address of such holder, the number of shares of each
class and series of shares of our stock that the holder beneficially owns and
a
description of the manner in which the shares are held. Each holder shall
provide to us such additional information as we may request in order to
determine the effect, if any, of the holder’s beneficial ownership on our status
as a REIT and to ensure compliance with our ownership limitations. In addition,
each stockholder shall upon demand be required to provide to us such information
as we may request, in good faith, in order to determine our status as a REIT
and
to comply with the requirements of any taxing authority or governmental
authority or to determine such compliance.
Our
ownership limitations could delay, defer or prevent a transaction or a change
in
control of us that might involve a premium price for holders of our common
stock
or might otherwise be in the best interest of our stockholders.
Transfer
Agent and Registrar
The
transfer agent and registrar for our shares of common stock is American Stock
Transfer & Trust Company.
Other
Information
The
information set forth under the caption “Certain Provisions
of
Maryland Law and Our Charter and Bylaws”
in our
registration
statement on Form S-3, dated as of April 4, 2008, is incorporated herein by
reference.
Item
2. Exhibits.
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Exhibit
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Description
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3.1(a)
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|
Articles
of Amendment and Restatement of New York Mortgage Trust, Inc.
(Incorporated by reference to Exhibit 3.1 to the Company’s Registration
Statement on Form S-11 as filed with the Securities and Exchange
Commission (Registration No. 333-111668), effective June 23,
2004).
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|
|
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3.1(b)
|
|
Articles
of Amendment of New York Mortgage Trust, Inc. (Incorporated by reference
to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on
October 4, 2007).
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|
Exhibit
|
|
Description
|
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3.1(c)
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|
Articles
of Amendment of the Registrant (Incorporated by reference to Exhibit
3.2
to the Company’s Current Report on Form 8-K filed on October 4,
2007).
|
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|
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3.1(d)
|
|
Articles
of Amendment of New York Mortgage Trust, Inc. (Incorporated by
reference
to Exhibit 3.1(d) to the Company’s Current Report on Form 8-K filed on May
16, 2008).
|
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|
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3.1(e)
|
|
Articles
of Amendment of New York Mortgage Trust, Inc. (Incorporated by
reference
to Exhibit 3.1(e) to the Company’s Current Report on Form 8-K filed on May
16, 2008).
|
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3.2(a)
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|
Bylaws
of New York Mortgage Trust, Inc. (Incorporated by reference to
Exhibit 3.2
to the Company’s Registration Statement on Form S-11 as filed with the
Securities and Exchange Commission (Registration No. 333-111668),
effective June 23, 2004).
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3.2(b)
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Amendment
No. 1 to Bylaws of New York Mortgage Trust, Inc.
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4.1
|
|
Form
of Common Stock Certificate. (Incorporated by reference to Exhibit
4.1 to
the Company’s Registration Statement on Form S-11 as filed with the
Securities and Exchange Commission (Registration No. 333-111668),
effective June 23, 2004).
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|
|
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4.2(a)
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|
Junior
Subordinated Indenture between The New York Mortgage Company, LLC
and
JPMorgan Chase Bank, National Association, as trustee, dated
September 1, 2005. (Incorporated by reference to Exhibit 4.1 to the
Company’s Current Report on Form 8-K as filed with the Securities and
Exchange Commission on September 6, 2005).
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|
|
|
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4.2(b)
|
|
Amended
and Restated Trust Agreement among The New York Mortgage Company,
LLC, JPMorgan Chase Bank, National Association, Chase Bank USA,
National
Association and the Administrative Trustees named therein, dated
September 1, 2005. (Incorporated by reference to Exhibit 4.2 to the
Company’s Current Report on Form 8-K as filed with the Securities and
Exchange Commission on September 6, 2005).
|
| |
|
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4.3(a)
|
|
Articles
Supplementary Establishing and Fixing the Rights and Preferences
of
Series A Cumulative Redeemable Convertible Preferred Stock of the
Company (Incorporated by reference to Exhibit 4.1 to the Company’s Current
Report on Form 8-K filed on January 25, 2008).
|
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|
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4.3(b)
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|
Form
of Series A Cumulative Redeemable Convertible Preferred Stock Certificate
(Incorporated by reference to Exhibit 4.2 to the Company’s Current Report
on Form 8-K filed on January 25,
2008).
|
SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
NEW
YORK MORTGAGE TRUST, INC.
Date: June
3,
2008
Name:
David A. Akre
Title:
Co-Chief Executive Officer
EXHIBIT
INDEX
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Exhibit
|
|
Description
|
| |
|
|
|
3.1(a)
|
|
Articles
of Amendment and Restatement of New York Mortgage Trust, Inc.
(Incorporated by reference to Exhibit 3.1 to the Company’s Registration
Statement on Form S-11 as filed with the Securities and Exchange
Commission (Registration No. 333-111668), effective June 23,
2004).
|
|
|
|
|
|
3.1(b)
|
|
Articles
of Amendment of New York Mortgage Trust, Inc. (Incorporated by reference
to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on
October 4, 2007).
|
| |
|
|
|
3.1(c)
|
|
Articles
of Amendment of the Registrant (Incorporated by reference to Exhibit
3.2
to the Company’s Current Report on Form 8-K filed on October 4,
2007).
|
| |
|
|
|
3.1(d)
|
|
Articles
of Amendment of New York Mortgage Trust, Inc. (Incorporated by reference
to Exhibit 3.1(d) to the Company’s Current Report on Form 8-K filed on May
16, 2008).
|
| |
|
|
|
3.1(e)
|
|
Articles
of Amendment of New York Mortgage Trust, Inc. (Incorporated by reference
to Exhibit 3.1(e) to the Company’s Current Report on Form 8-K filed on May
16, 2008).
|
| |
|
|
|
3.2(a)
|
|
Bylaws
of New York Mortgage Trust, Inc. (Incorporated by reference to Exhibit
3.2
to the Company’s Registration Statement on Form S-11 as filed with the
Securities and Exchange Commission (Registration No. 333-111668),
effective June 23, 2004).
|
| |
|
|
|
3.2(b)
|
|
Amendment
No. 1 to Bylaws of New York Mortgage Trust, Inc.
|
|
|
|
|
|
4.1
|
|
Form
of Common Stock Certificate. (Incorporated by reference to Exhibit
4.1 to
the Company’s Registration Statement on Form S-11 as filed with the
Securities and Exchange Commission (Registration No. 333-111668),
effective June 23, 2004).
|
|
|
|
|
|
4.2(a)
|
|
Junior
Subordinated Indenture between The New York Mortgage Company, LLC
and
JPMorgan Chase Bank, National Association, as trustee, dated
September 1, 2005. (Incorporated by reference to Exhibit 4.1 to the
Company’s Current Report on Form 8-K as filed with the Securities and
Exchange Commission on September 6, 2005).
|
|
|
|
|
|
4.2(b)
|
|
Amended
and Restated Trust Agreement among The New York Mortgage Company,
LLC, JPMorgan Chase Bank, National Association, Chase Bank USA, National
Association and the Administrative Trustees named therein, dated
September 1, 2005. (Incorporated by reference to Exhibit 4.2 to the
Company’s Current Report on Form 8-K as filed with the Securities and
Exchange Commission on September 6, 2005).
|
| |
|
|
|
4.3(a)
|
|
Articles
Supplementary Establishing and Fixing the Rights and Preferences
of
Series A Cumulative Redeemable Convertible Preferred Stock of the
Company (Incorporated by reference to Exhibit 4.1 to the Company’s Current
Report on Form 8-K filed on January 25, 2008).
|
| |
|
|
|
4.3(b)
|
|
Form
of Series A Cumulative Redeemable Convertible Preferred Stock Certificate
(Incorporated by reference to Exhibit 4.2 to the Company’s Current Report
on Form 8-K filed on January 25, 2008).
|
|
|
|
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