As filed with the Securities and Exchange Commission on March 28, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUTHERLAND ASSET MANAGEMENT CORPORATION
(Exact name of registrant as specified in its charter)
|
Maryland
|
90-072143
|
|
|
|
|
1140 Avenue of the Americas, 7
th
Floor
|
10036
|
|
(Address of principal executive offices) |
|
Sutherland Asset Management Corporation 2012 Equity Incentive Plan
(Full title of the plan)
Thomas Capasse
Chief Executive Officer
Sutherland Asset Management Corporation
1140 Avenue of the Americas, 7th Floor
New York, NY 10036
(212) 257 4600
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
|
Large accelerated filer ☐ |
Accelerated filer ☒ |
|
Non-accelerated filer ☐ (Do not check if a smaller reporting company) |
Smaller reporting company ☐ |
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
Title of Each Class of
|
Amount to be
|
Proposed Maximum
|
Proposed Maximum
|
Amount of
|
|
Common Stock, par value $0.0001 per share |
1,643,570 |
$14.28 |
$23,470,180 |
$2,721 |
|
|
(1) |
|
Represents the maximum number of shares of Common Stock, par value $0.0001 per share (the “Common Stock”), issuable under the Sutherland Asset Management Corporation 2012 Equity Incentive Plan (the “Plan”) as of March 27, 2017. Pursuant to the Plan, the maximum number of shares of Common Stock reserved for the grant of awards thereunder is equal to 5% of the shares of Common Stock issued and outstanding from time to time on a fully diluted basis. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, (the “Securities Act”), this registration statement also covers an additional indeterminate amount of shares to be offered or sold pursuant to the Plan and shares that may become issuable under the Plan by reason of certain corporate transactions or events, including any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant’s outstanding shares of Common Stock. |
|
|
(2) |
|
Represents the average of the high and the low sale prices of the Common Stock on the New York Stock Exchange on March 24, 2017. |
|
|
(3) |
|
Computed in accordance with Rule 457(h) under the Securities Act. |
i
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 2. Registrant Information and Employee Plan Annual Information.*
* The documents containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
1
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by Sutherland Asset Management Corporation (the “Company”) with the SEC are incorporated by reference in this registration statement:
(a) The Company's joint proxy statement/prospectus, dated August 26, 2016, filed pursuant to Rule 424(b) under the Securities Act;
(b) Annual Report on Form 10-K with respect to the year ended December 31, 2016, filed with the SEC on March 15, 2017;
(c) Current Report on Form 8-K, filed with the SEC on February 21, 2017;
(d) Current Report on Form 8-K, filed with the SEC on February 13, 2017; and
(e) The description of the Company’s Common Stock, contained in the Company’s Registration Statement on Form 8-A filed with the SEC on February 6, 2013 to register the Common Stock under the Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this registration statement shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this registration statement, modifies or supersedes such prior statement. Any statement contained in this registration statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this registration statement modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Maryland law permits a Maryland corporation to include in its charter a provision eliminating the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (1) actual receipt of an improper benefit or profit in money, property or services or (2) active and deliberate dishonesty that is established by a final judgment and is material to the cause of action. Our charter contains such a provision which eliminates the liability of our directors and officers to the maximum extent permitted by Maryland law.
Our charter authorizes us to obligate ourselves, and our bylaws obligate us, to the maximum extent permitted by Maryland law, to indemnify any present or former director or officer or any individual who, while a director or officer of the Company and at our request, serves or has served another corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, member, manager, partner or trustee who is, or is threatened to be, made a party to, or
2
witness in, a proceeding by reason of his or her service in any such capacity from and against any claim or liability to which that individual may become subject or which that individual may incur by reason of such service and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. Our charter and bylaws also permit us to indemnify and advance expenses to any individual who served a predecessor of the Company in any of the capacities described above and any employee or agent of the Company or a predecessor of the Company.
The Maryland General Corporation Law (“MGCL”) requires a Maryland corporation (unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity. The MGCL permits a Maryland corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities unless it is established that (1) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (A) was committed in bad faith or (B) was the result of active and deliberate dishonesty, (2) the director or officer actually received an improper personal benefit in money, property or services or (3) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. Under the MGCL, a Maryland corporation may not indemnify a director or officer in a suit by or in the right of the corporation in which the director or officer was adjudged to be liable to the corporation or in a proceeding in which the director or officer was adjudged to be liable on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses. In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of (1) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation and (2) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met.
In addition, we have entered into indemnification agreements with each of our directors and executive officers that provide for indemnification to the maximum extent permitted by Maryland law.
Item 7. Exemption from Registration Claimed.
Not applicable.
|
|
Description |
|
3.1* |
Articles of Amendment and Restatement of ZAIS Financial Corp. (incorporated by reference to Exhibit 3.1 of the Registrant’s Form S-11, as amended (Registration No. 333-185938)) |
|
3.2* |
Articles Supplementary of ZAIS Financial Corp. (incorporated by reference to Exhibit 3.2 of the Registrant’s Form S-11, as amended (Registration No. 333-185938)) |
|
3.3* |
Articles of Amendment and Restatement of Sutherland Asset Management Corporation (incorporated by reference to Exhibit 3.1 of the Registrant's Current Report on Form 8-K filed November 4, 2016) |
|
3.4* |
Amended and Restated Bylaws of ZAIS Financial Corp. (incorporated by reference to Exhibit 3.3 of the Registrant’s Annual Report on Form 10-K filed on March 13, 2014) |
|
3.5* |
Amended and Restated Bylaws of Sutherland Asset Management Corporation (incorporated by reference to Exhibit 3.5 of the Registrant's Annual Report on Form 10-K filed on March 15, 2017) |
|
5.1 |
Opinion of Clifford Chance US LLP (including consent of such firm) |
|
10.1* |
Sutherland Asset Management Corporation 2012 Equity Incentive Plan (incorporated by reference to Exhibit 10.5 of the Registrant's Current Report on Form 8-K filed November 4, 2016) |
|
10.2 |
Form of Restricted Stock Unit Award Agreement |
|
23.1 |
Consent of Clifford Chance US LLP (included in Exhibit 5.1) |
|
23.2 |
Consent of Deloitte and Touche LLP for Sutherland Asset Management Corporation |
|
24.1 |
Power of Attorney (included on signature page of this Form S-8) |
* Previously filed.
3
|
|
(a) |
|
The undersigned registrant hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
4
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S–8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on March 28, 2017.
|
|
SUTHERLAND ASSET MANAGEMENT CORPORATION |
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Thomas E. Capasse |
|
|
Name: |
Thomas E. Capasse |
|
|
Title: |
Chairman of the Board and Chief Executive Officer |
Each person whose signature appears below constitutes and appoints Thomas E. Capasse, Jack J. Ross and Frederick C. Herbst, and each of them, with full power to act without the other, as such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this Form S-8 and any and all amendments thereto, and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the date indicated.
|
Signature |
|
Title |
|
Date |
|
|
By: |
/s/ Thomas E. Capasse |
|
Chairman of the Board and Chief |
|
March 28, 2017 |
|
|
Thomas E. Capasse |
|
Executive Officer
|
|
|
|
By: |
/s/ Frederick C. Herbst |
|
Chief Financial Officer |
|
March 28, 2017 |
|
|
Frederick C. Herbst |
|
(Principal Accounting and Financial Officer) |
|
|
|
By: |
/s/ Jack J. Ross |
|
President and Director |
|
March 28, 2017 |
|
|
Jack J. Ross |
|
|
|
|
|
By: |
/s/ Frank P. Filipps |
|
Director |
|
March 28, 2017 |
|
|
Frank P. Filipps |
|
|
|
|
|
By: |
/s/ Todd M. Sinai |
|
Director |
|
March 28, 2017 |
|
|
Todd M. Sinai |
|
|
|
|
|
By: |
/s/ J. Mitchell Reese |
|
Director |
|
March 28, 2017 |
|
|
J. Mitchell Reese |
|
|
|
|
|
By: |
/s/ David Holman |
|
Director |
|
March 28, 2017 |
|
|
David Holman |
|
|
|
|
5
Exhibit 5.1
March 28, 2017
Sutherland Asset Management Corporation
1140 Avenue of the Americas, 7
th
Floor
New York, NY 10036
(212) 257-4600
Ladies and Gentlemen:
We have acted as counsel to Sutherland Asset Management Corporation (the “Company”) in connection with the offer and sale by the Company of 1,643,570 shares (the “Shares”) of its common stock, par value $0.0001 per share (the “Common Stock”), pursuant to its 2012 Equity Incentive Plan (the “Plan”). The Common Stock is being sold pursuant to the Company's Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”).
In rendering the opinion expressed below, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, documents, certificates and other instruments as in our judgment are necessary or appropriate. As to factual matters relevant to the opinion set forth below, we have, with your permission, relied upon certificates of officers of the Company and public officials.
Based on the foregoing, and such other examination of law as we have deemed necessary, we are of the opinion that the Shares have been duly and validly authorized and, when issued and sold in the manner contemplated by the Registration Statement and the Plan, will be legally issued, fully paid and non assessable.
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Clifford Chance US LLP
- 1 -
Exhibit 10.2
SUTHERLAND ASSET MANAGEMENT CORPORATION
2012 EQUITY INCENTIVE PLAN
FORM OF RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS AGREEMENT is made by and between Sutherland Asset Management Corporation, a Maryland corporation (the “ Company ”), and [●] (the “ Grantee ”), dated as of the [●] day of March, 2017.
WHEREAS, the Company maintains the Sutherland Asset Management Corporation 2012 Equity Incentive Plan (the “ Plan ”) (capitalized terms used but not defined herein shall have the respective meanings ascribed thereto by the Plan);
WHEREAS, in accordance with the Plan, the Company may from time to time issue awards of Restricted Stock Units (“ RSUs ”) (also generally known and referred to under the Plan as Phantom Shares) to individuals and persons who provide services to, among others, the Company and Waterfall Asset Management, LLC (the “ Manager ”);
WHEREAS, the Grantee, as the Manager, an officer, director, advisor, employee or other personnel of the Company, the Subsidiaries or the Manager (or with the consent of the Board or the Compensation Committee of the Company (the “ Compensation Committee ”), any of the respective affiliates of the Company, the Subsidiaries, or the Manager, or any joint venture affiliate of the Company) or another person expected to provide significant services (of a type expressly approved by the Committee as covered services) to one or more of the Company, the Subsidiaries and the Manager, is an Eligible Person under the terms of the Plan; and
WHEREAS, in accordance with the Plan, the Committee has determined that it is in the best interests of the Company and its stockholders to grant RSUs to the Grantee subject to the terms and conditions set forth below.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Grant of RSUs .
The Company hereby grants the Grantee 10,000 RSUs. The RSUs are subject to the terms and conditions of this Agreement, and are also subject to the provisions of the Plan. The Plan is hereby incorporated herein by reference as though set forth herein in its entirety. To the extent such terms or conditions in this Agreement conflict with any provision of the Plan, the terms and conditions set forth in the Plan shall govern. Where the context permits, references to the Company shall include any successor to the Company. If this Agreement is not executed and returned to the Company by the Grantee by [●], 2017 this award will be null and void ab initio and the Grantee will have no rights hereunder.
2. Restrictions .
The RSUs awarded pursuant to this Agreement and the Plan shall be subject to the terms and conditions set forth in this Paragraph 2.
(a) Subject to clauses (b) and (c) below, the RSUs granted hereunder shall vest, solely to the extent the Grantee has not had a Termination of Service, in accordance with the following schedule:
|
Vesting Date |
Shares Vested |
|
Date hereof |
5,000 |
|
[First Vesting Date] |
1,250 |
|
[Second Vesting Date] |
1,250 |
|
[Third Vesting Date] |
1,250 |
|
[Fourth Vesting Date] |
1,250 |
(b) Subject to clause (c) below, upon the Grantee’s Termination of Service for any reason, all unvested RSUs shall thereupon, and with no further action, be forfeited by the Grantee, and neither the Grantee nor any of his or her successors, heirs, assigns, or personal representatives shall thereafter have any further rights or interests in such RSUs.
(c) Termination of Service as an employee shall not be treated as a termination of employment for purposes of this Paragraph 2 if the Grantee continues without interruption to serve thereafter as an officer or director of the Company, or in such other capacity as determined by the Committee (or if no Committee is appointed, the Board), and the termination of such successor service shall be treated as the applicable termination.
3. Voting and Other Rights .
The Grantee shall have no rights of a stockholder (including the right to distributions or dividends), and will not be treated as an owner of Shares for tax purposes, except with respect to Shares that have been issued. Notwithstanding the foregoing, a DER, often referred to as a dividend equivalent right, is hereby granted to the Grantee, consisting of the right to receive, with respect to each outstanding and non-forfeited RSU, cash in an amount equal to the cash dividend distributions paid in the ordinary course on a Share to the Company’s common stockholders, as set forth below. All DERs (if any) payable on an outstanding and non-forfeited RSU, whether or not then vested, shall be paid not later than 30 days after any ordinary cash dividend distributions on Shares are paid to the Company’s common stockholders. Under no circumstances shall the Grantee be entitled to receive both (i) a distribution and a DER with respect to a vested RSU (or its associated Share) or (ii) a distribution and a DER with respect to an unvested RSU.
4. Settlement .
- 2 -
One Share of Common Stock of the Company shall be issued to the Grantee in settlement of each vested RSU not later than [60][365] days following the [applicable][final] Vesting Date (as set forth in Paragraph 2(a) above) (either by delivering one or more certificates for such Share or by entering such Share in book‑entry form, as determined by the Company in its discretion). Such issuance shall constitute payment of the RSUs. References herein to issuances to the Grantee shall include issuances to any beneficial owner or other person to whom (or to which) the Shares are issued. The Company’s obligation to issue Shares or otherwise make any payment with respect to vested RSUs is subject to the condition precedent that the Grantee or other person entitled under the Plan to receive any Shares with respect to the vested RSUs deliver to the Company any representations or other documents or assurances required pursuant to Paragraph 5(l) and the Company may meet any obligation to issue Shares by having one or more of its Subsidiaries or affiliates issue the Shares. The Grantee shall have no further rights with respect to any RSUs, including with respect to any DER granted in connection with the RSU, that are paid or that terminate pursuant to Paragraph 2(b). For the avoidance of doubt, to the extent the terms of this Paragraph 4 conflict with any terms of the Plan relating to the settlement of RSU or DERs, the terms of this Paragraph 4 shall govern.
5. Miscellaneous .
(a) The value of an RSU may decrease depending upon the Fair Market Value of a Share from time to time. Neither the Company, the Committee, the Manager, nor any other party associated with the Plan, shall be held liable for any decrease in the value of the RSUs. If the value of such RSUs decrease, there will be a decrease in the underlying value of what is distributed to the Grantee under the Plan and this Agreement.
(b) Participation in the Plan confers no rights or interests other than as herein provided. With respect to this Agreement, (i) the RSUs are bookkeeping entries, (ii) the obligations of the Company under the Plan are unsecured and constitute a commitment by the Company to make benefit payments in the future, (iii) to the extent that any person acquires a right to receive payments from the Company under the Plan, such right shall be no greater than the right of any general unsecured creditor of the Company, (iv) all payments under the Plan (including distributions of Shares) shall be paid from the general funds of the Company in the manner specified in Paragraph 5(f) and (v) no special or separate fund shall be established or other segregation of assets made to assure such payments (except that the Company may in its discretion establish a bookkeeping reserve to meet its obligations under the Plan). The RSUs shall be used solely as a device for the determination of the payment to eventually be made to the Grantee if the RSUs vest pursuant to Paragraph 2. The award of RSUs is intended to be an arrangement that is unfunded for tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended.
(c) Governing Law; Venue; Waiver of Jury Trial . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAW WHICH COULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF MARYLAND. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified except by a written agreement executed by the parties hereto or their respective successors and legal representatives. The
- 3 -
invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
(d) The Committee may construe and interpret this Agreement and establish, amend and revoke such rules, regulations and procedures for the administration of this Agreement as it deems appropriate. In this connection, the Committee may correct any defect or supply any omission, or reconcile any inconsistency in this Agreement or in any related agreements, in the manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. All decisions and determinations by the Committee in the exercise of this power shall be final and binding upon the Company and the Grantee.
(e) All notices hereunder shall be in writing, and if to the Company or the Committee, shall be delivered to the Board or mailed to its principal office, addressed to the attention of the Board; and if to the Grantee, shall be delivered personally, sent by facsimile transmission or mailed to the Grantee at the address appearing in the records of the Company. Such addresses may be changed at any time by written notice to the other party given in accordance with this Paragraph 5(e).
(f) If the grant made hereby is made to an affiliate of the Manager in consideration of services rendered thereby, and is in turn made by such affiliate of the Manager in consideration of the services rendered by the Grantee, for purposes of the provisions in Paragraphs 2(a) through 2(c) above relating to employment with the Company (and the termination thereof), and also for purposes of any references in the Plan to an employment agreement, “Company,” as the context so requires, shall include Manager and its affiliates to the extent that the Grantee is a provider of services to such entities.
(g) The failure of the Grantee or the Company to insist upon strict compliance with any provision of this Agreement or the Plan, or to assert any right the Grantee or the Company, respectively, may have under this Agreement or the Plan, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement or the Plan.
(h) The Company or the Manager shall be entitled to withhold from any payments or deemed payments any amount of tax withholding it determines to be required by law.
(i) Notwithstanding anything to the contrary contained in this Agreement, to the extent that the Board determines that the Plan or the RSU is subject to Section 409A of the Code and fails to comply with the requirements of Section 409A of the Code, the Board reserves the right (without any obligation to do so or to indemnify the Grantee for failure to do so), without the consent of the Grantee, to amend or terminate the Plan and this Agreement and/or amend, restructure, terminate or replace the RSU in order to cause the RSU to either not be subject to Section 409A of the Code or to comply with the applicable provisions of such section.
(j) The terms of this Agreement shall be binding upon the Grantee and upon the Grantee’s heirs, executors, administrators, personal representatives, transferees, assignees and successors in interest and upon the Company and its successors and assignees, subject to the terms of the Plan.
(k) Unless otherwise permitted in the sole discretion of the Committee, (i) neither this Agreement nor any rights granted herein shall be assignable by the Grantee, and (ii) no purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any RSUs or Shares by any holder thereof in violation of the provisions of this
- 4 -
Agreement or the Plan will be valid, and the Company will not transfer any of said RSUs or Shares on its books nor will any Shares be entitled to vote, nor will any distributions be paid thereon, unless and until there has been full compliance with said provisions to the satisfaction of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce said provisions.
(l) The Grantee hereby agrees to perform all acts, and to execute and deliver any documents, that may be reasonably necessary to carry out the provisions of this Agreement, including but not limited to all acts and documents related to compliance with securities, tax and other applicable laws and regulations.
(m) The Grantee hereby represents and agrees that the Grantee is not acquiring the RSUs or the Shares with a view to distribution thereof.
(n) Nothing in this Agreement shall confer on the Grantee any right to continue in the employ or other service of the Company, its Subsidiaries or any other Participating Companies or interfere in any way with the right of any such entity and its stockholders to terminate the Grantee’s employment or other service at any time. Employment or service for only a portion of the vesting period, even if a substantial portion, will not entitle the Grantee to any proportionate vesting or avoid or mitigate a termination of rights and benefits upon or following a Termination of Service as provided in this Agreement or under the Plan.
(o) This Agreement and the Plan contain the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect thereto.
(p) This Agreement may be executed in any number of counterparts, including via facsimile, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
(q) Except as otherwise provided in the Plan or clause (i) above, no amendment or modification hereof shall be valid unless it shall be in writing and signed by all parties hereto.
- 5 -
IN WITNESS WHEREOF, the Company and the Grantee have executed this Agreement as of the day and year first above written.
|
|
SUTHERLAND ASSET MANAGEMENT CORPORATION |
|
|
|
|
|
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
The undersigned hereby accepts and agrees to all of the terms and provisions of this Agreement.
|
|
|
|
|
[GRANTEE] |
|
|
|
|
|
|
[Signature Page to Award Agreement]
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement on Form S-8 of our report relating to the consolidated financial statements of Sutherland Asset Management Corporation dated March 15, 2017 appearing in the Annual Report on Form 10-K of Sutherland Asset Management Corporation for the year ended December 31, 2016.
/s/ Deloitte & Touche LLP
March 28, 2017