Form of Deferred Stock Unit Grant Notice and Agreement under the 2021 Equity Incentive

Contract Categories: Human Resources - Bonus & Incentive Agreements
EX-10.19 3 orc10K20211231x1019.htm EXHIBIT 10.19 orc10K20211231x1019
 
 
 
 
Exhibit 10.19
ORCHID ISLAND CAPITAL, INC.
2021 EQUITY INCENTIVE PLAN
DEFERRED STOCK UNIT GRANT NOTICE
Pursuant
 
to
 
the
 
terms
 
and
 
conditions
 
of
 
the
 
Orchid
 
Island
 
Capital,
 
Inc.
 
2021
 
Equity
Incentive
 
Plan,
 
as
 
amended
 
from
 
time
 
to
 
time
 
(the
 
“
Plan
”),
 
Orchid
 
Island
 
Capital,
 
Inc.
(the “
Company
”)
 
hereby
 
grants
 
to
 
the
 
individual
 
listed
 
below
 
(“
you
”
 
or
 
the
 
“
Participant
”)
 
the
number of Deferred
 
Stock Units
 
(the “
DSUs
”) set forth
 
below in this
 
Deferred Stock Unit
 
Grant
Notice
 
(this
 
“
Grant
 
Notice
”).
 
This
 
award
 
of
 
DSUs
 
(this “
Award
”)
 
is
 
subject
 
to
 
the
 
terms
 
and
conditions
 
set forth
 
herein,
 
in the
 
Deferred Stock
 
Unit Agreement
 
attached
 
hereto as
 
Exhibit
 
A
(the “
Agreement
”) and
 
the Plan,
 
each of
 
which is
 
incorporated herein
 
by reference.
 
Capitalized
terms used but not defined herein shall have the meanings set forth in the Plan.
Participant:
 
Date of Grant:
 
Award Type
 
and
Description:
Other Equity-Based Award granted pursuant to
 
Article X of
 
the Plan.
Total
 
Number of
Deferred Stock Units:
 
By
 
signing
 
below,
 
you
 
agree
 
to
 
be
 
bound
 
by
 
the
 
terms
 
and
 
conditions
 
of
 
the
 
Plan,
 
the
Agreement and this Grant Notice.
 
You
 
acknowledge that you have
 
reviewed the Agreement, the
Plan and this Grant
 
Notice in their entirety
 
and fully understand all provisions
 
of the Agreement,
the Plan
 
and this
 
Grant Notice.
 
You
 
hereby agree
 
to accept
 
as binding,
 
conclusive and
 
final all
decisions or
 
interpretations
 
of the
 
Committee
 
regarding any
 
questions or
 
determinations arising
under the Agreement, the Plan or this Grant Notice.
 
This Grant Notice may be executed in one or
more counterparts (including portable
 
document format (.pdf) and
 
facsimile counterparts), each of
which shall be
 
deemed to be
 
an original, but
 
all of which
 
together shall constitute
 
one and
 
the same
agreement.
[Signature Page Follows]
 
 
 
 
IN WITNESS WHEREOF
, the Company has caused this Grant Notice to be executed
by an officer thereunto duly authorized, and the Participant has executed this Grant Notice,
effective for all purposes as provided above.
COMPANY
Orchid Island Capital, Inc.
By:
 
Name:
 
Title:
PARTICIPANT
 
Name:
 
Address:
 
 
 
 
 
 
 
 
 
 
 
 
EXHIBIT A
DEFERRED STOCK UNIT AGREEMENT
This
 
Deferred
 
Stock
 
Unit
 
Agreement
 
(together
 
with
 
the
 
Grant
 
Notice
 
to
 
which
 
this
Agreement is
 
attached, this “
Agreement
”) is
 
made as
 
of the
 
Date of
 
Grant set
 
forth in
 
the Grant
Notice (the “
Date of Grant
”) by and between Orchid Island Capital, Inc., a Maryland corporation
(the “
Company
”), and _________ (the “
Participant
”). Capitalized terms used but not specifically
defined herein shall have the meanings specified in the Plan or the Grant Notice.
1.
Award
.
 
In consideration
 
of the
 
Participant’s
 
past and/or
 
continued service
 
to the
Company
 
or
 
its
 
Affiliates
 
and
 
for
 
other
 
good
 
and
 
valuable
 
consideration,
 
the
 
receipt
 
and
sufficiency
 
of
 
which
 
is
 
hereby
 
acknowledged,
 
effective
 
as
 
of
 
the
 
Date
 
of
 
Grant,
 
the
 
Company
hereby grants to the
 
Participant the number of
 
DSUs set forth in the
 
Grant Notice on the
 
terms and
conditions set forth
 
in the Grant Notice,
 
this Agreement and the
 
Plan, which is incorporated
 
herein
by reference as
 
a part of
 
this Agreement. In the
 
event of any
 
inconsistency between the
 
Plan and
this Agreement, the terms of the Plan shall control.
 
Each DSU represents the right to receive one
share of
 
Common
 
Stock,
 
subject
 
to
 
the
 
terms
 
and
 
conditions
 
set
 
forth
 
in
 
the
 
Grant Notice,
 
this
Agreement and the Plan.
 
Unless and until
 
the DSUs are
 
delivered in accordance
 
with Section 4,
the Participant
 
will have
 
no right
 
to receive
 
any Common
 
Stock or
 
other payments
 
in respect
 
of
the DSUs.
 
The DSUs shall be credited to a separate account maintained for the Participant on
 
the
books and records of the
 
Company (the “
Account
”). Prior to settlement of
 
this Award,
 
the DSUs
and this Award represent
 
an unsecured obligation of the Company, payable only from the general
assets of the Company.
2.
Vesting
 
of DSUs
.
 
The DSUs shall be 100% vested on the Date of Grant.
3.
Dividend Equivalent Rights
.
 
(a)
In the event that the Company
 
declares and pays a dividend in
 
respect of its
outstanding
 
shares of
 
Common Stock
 
and, on
 
the record
 
date for
 
such dividend,
 
the Participant
holds DSUs granted pursuant to
 
this Agreement that have
 
not been settled, the Company
 
shall pay
to
 
the
 
Participant
 
an
 
amount
 
equal
 
to
 
the
 
dividends
 
the
 
Participant
 
would
 
have
 
received
 
if
 
the
Participant was the holder
 
of record, as of
 
such record date,
 
of the number
 
of shares of Common
Stock relating to the portion of the Participant’s DSUs that have not been
 
settled as of such record
date (the “
Dividend Equivalents
”), unless payment is deferred pursuant to Section 3(b).
 
(b)
Notwithstanding
 
Section
 
3(a),
 
the
 
Participant
 
may
 
elect
 
to
 
defer
 
the
payment
 
of
 
any
 
Dividend
 
Equivalents
 
pursuant
 
to
 
the
 
Dividend
 
Equivalents
 
Deferral
 
Election
Form attached hereto
 
as Exhibit
 
C. Any such
 
deferral election must
 
be made in
 
compliance with
such rules and procedures as the Committee prescribes. If any Dividend Equivalents are deferred,
the Company shall credit the amount of
 
such Dividend Equivalents to the
 
Account in the form of
additional DSUs
 
based on
 
the Fair
 
Market Value
 
of a
 
share of
 
Common Stock
 
on the
 
date such
Dividend Equivalent would
 
be paid pursuant to
 
Section 3(a). Any
 
such additional DSUs
 
shall be
considered
 
DSUs
 
under
 
this
 
Agreement
 
and
 
shall
 
be
 
entitled
 
to
 
receive
 
Dividend
 
Equivalents
pursuant to
 
this Section
 
3; provided,
 
however,
 
that any
 
such additional
 
DSUs shall
 
be settled
 
in
 
 
 
 
 
 
 
 
 
 
accordance with
 
the deferral
 
election made
 
pursuant to
 
this Section
 
3(b), rather
 
than pursuant
 
to
Section 4.
4.
Settlement of DSUs
.
 
(a)
As
 
soon
 
as
 
administratively
 
practicable
 
following
 
the
 
vesting
 
of
 
DSUs
pursuant to Section
 
2, but in no
 
event later than
 
30 days after
 
such vesting date, the
 
Company shall
deliver
 
to
 
the
 
Participant
 
a
 
number
 
of
 
shares
 
of
 
Common
 
Stock
 
equal
 
to
 
the
 
number
 
of
 
DSUs
subject to this Award,
 
unless delivery is deferred pursuant to Section 4(b). All shares of Common
Stock issued
 
hereunder shall
 
be delivered
 
either
 
by delivering
 
one or
 
more
 
certificates
 
for such
shares
 
to
 
the
 
Participant
 
or
 
by
 
entering
 
such
 
shares
 
in
 
book-entry
 
form,
 
as
 
determined
 
by
 
the
Committee in its sole discretion.
 
The value of shares
 
of Common Stock shall not
 
bear any interest
owing
 
to
 
the
 
passage
 
of
 
time.
 
Neither
 
this
 
Section
 
3
 
nor
 
any
 
action
 
taken
 
pursuant
 
to
 
or
 
in
accordance
 
with
 
this
 
Agreement
 
shall
 
be
 
construed
 
to
 
create
 
a
 
trust
 
or
 
a
 
funded
 
or
 
secured
obligation of any kind.
(b)
Notwithstanding Section
 
4(a), the
 
Participant may
 
elect to
 
defer the
 
delivery
of
 
the
 
DSUs
 
pursuant
 
to
 
the
 
Deferred
 
Stock
 
Units
 
Deferral
 
Election
 
Form
 
attached
 
hereto
 
as
Exhibit B. Any such deferral
 
election must be made in
 
compliance with such rules and
 
procedures
as the Committee prescribes.
5.
Tax
 
Withholding
.
 
To
 
the
 
extent
 
that
 
the
 
receipt,
 
vesting
 
or
 
settlement
 
of
 
this
Award
 
results in compensation
 
income or wages
 
to the Participant
 
for federal, state,
 
local and/or
foreign tax purposes, the Participant shall make arrangements satisfactory to the Company for the
satisfaction of obligations for the payment of withholding
 
taxes and other tax obligations relating
to
 
this
 
Award,
 
which
 
arrangements
 
include
 
the
 
delivery
 
of
 
cash
 
or
 
cash
 
equivalents,
 
Common
Stock (including previously owned
 
Common Stock, net settlement,
 
a broker-assisted sale,
 
or other
cashless withholding or
 
reduction of the
 
amount of shares
 
otherwise issuable or
 
delivered pursuant
to this Award), other property,
 
or any other legal consideration the Committee
 
deems appropriate.
If such
 
tax obligations
 
are satisfied
 
through net
 
settlement or
 
the surrender
 
of previously
 
owned
Common Stock,
 
the maximum
 
number of
 
shares of
 
Common Stock
 
that may
 
be so
 
withheld (or
surrendered) shall be the number of shares
 
of Common Stock that have an
 
aggregate Fair Market
Value
 
on the date of withholding or surrender
 
equal to the aggregate amount of such tax
 
liabilities
determined
 
based
 
on
 
the
 
greatest
 
withholding
 
rates
 
for
 
federal,
 
state,
 
local
 
and/or
 
foreign
 
tax
purposes,
 
including
 
payroll
 
taxes,
 
that
 
may
 
be
 
utilized
 
without
 
creating
 
adverse
 
accounting
treatment
 
for
 
the
 
Company
 
with
 
respect
 
to
 
this
 
Award,
 
as
 
determined
 
by
 
the
 
Committee.
 
The
Participant acknowledges that there may be adverse tax consequences upon the
 
receipt, vesting or
settlement of this Award
 
or disposition of the underlying
 
shares and that the
 
Participant has been
advised,
 
and
 
hereby
 
is
 
advised,
 
to
 
consult
 
a
 
tax
 
advisor.
 
The
 
Participant
 
represents
 
that
 
the
Participant
 
is
 
in
 
no
 
manner
 
relying
 
on
 
the
 
Board,
 
the
 
Committee,
 
the
 
Company
 
or
 
any
 
of
 
its
Affiliates
 
or
 
any
 
of
 
their
 
respective
 
managers,
 
directors,
 
officers,
 
employees
 
or
 
authorized
representatives
 
(including,
 
without
 
limitation,
 
attorneys,
 
accountants,
 
consultants,
 
bankers,
lenders, prospective lenders and financial representatives) for tax advice or an assessment of such
tax consequences.
6.
Non-Transferability
.
 
None of the
 
DSUs, the Dividend
 
Equivalents or any
 
interest
or right therein may be
 
sold, pledged, assigned or transferred in
 
any manner other than by will
 
or
 
 
 
the laws of descent and distribution, unless
 
and until the shares of Common Stock underlying
 
the
DSUs
 
have been
 
issued,
 
and
 
all
 
restrictions
 
applicable to
 
such
 
shares have
 
lapsed.
 
Neither the
DSUs nor any interest
 
or right therein shall
 
be liable for the
 
debts, contracts or engagements
 
of the
Participant
 
or
 
his
 
or
 
her
 
successors
 
in
 
interest
 
or
 
shall
 
be
 
subject
 
to
 
disposition
 
by
 
transfer,
alienation,
 
anticipation,
 
pledge,
 
encumbrance,
 
assignment
 
or
 
any
 
other
 
means,
 
whether
 
such
disposition
 
be
 
voluntary
 
or
 
involuntary
 
or
 
by
 
operation
 
of
 
law
 
by
 
judgment,
 
levy,
 
attachment,
garnishment or
 
any other
 
legal or
 
equitable proceedings
 
(including bankruptcy),
 
and any
 
attempted
disposition thereof shall
 
be null and
 
void and of
 
no effect, except
 
to the extent
 
that such disposition
is expressly permitted by the preceding sentence.
7.
Compliance
 
with
 
Applicable
 
Law
.
 
Notwithstanding
 
any
 
provision
 
of
 
this
Agreement to the contrary,
 
the issuance of shares
 
of Common Stock hereunder will
 
be subject to
compliance with
 
all requirements
 
of applicable
 
law
 
with respect
 
to such
 
securities and
 
with the
requirements of
 
any stock
 
exchange or market
 
system upon
 
which the
 
Common Stock
 
may then
be listed.
 
No shares of Common Stock will be issued hereunder if such
 
issuance would constitute
a violation
 
of any
 
applicable law
 
or regulation
 
or the
 
requirements of
 
any stock
 
exchange or
 
market
system upon which the Common Stock may then be listed.
 
In addition, shares of Common Stock
will not be issued hereunder
 
unless (a) a registration statement
 
under the Securities Act
 
is in effect
at the
 
time of
 
such issuance
 
with respect
 
to the
 
shares to
 
be issued
 
or (b)
 
in the
 
opinion of
 
legal
counsel to the Company, the shares to
 
be issued are permitted to be issued in accordance with the
terms of
 
an applicable
 
exemption from
 
the registration
 
requirements of
 
the Securities
 
Act.
 
The
inability of the
 
Company to obtain
 
from any regulatory
 
body having jurisdiction
 
the authority,
 
if
any,
 
deemed by the
 
Company’s
 
legal counsel to
 
be necessary for
 
the lawful
 
issuance and sale
 
of
any shares of Common Stock hereunder
 
will relieve the Company of any liability in
 
respect of the
failure
 
to
 
issue
 
such
 
shares
 
as
 
to
 
which
 
such
 
requisite
 
authority
 
has
 
not
 
been
 
obtained.
 
As
 
a
condition to any issuance of Common Stock hereunder, the Company may require
 
the Participant
to satisfy any requirements that may be necessary or
 
appropriate to evidence compliance with any
applicable
 
law
 
or
 
regulation
 
and
 
to
 
make
 
any
 
representation
 
or
 
warranty
 
with
 
respect
 
to
 
such
compliance as may be requested by the Company.
8.
Legends
.
 
If a stock
 
certificate is
 
issued with
 
respect to shares
 
of Common
 
Stock
delivered hereunder,
 
such certificate
 
shall bear
 
such legend
 
or legends
 
as the
 
Committee deems
appropriate in order to
 
reflect the restrictions set
 
forth in this Agreement
 
and to ensure compliance
with the terms and provisions
 
of this Agreement, the rules,
 
regulations and other requirements
 
of
the Securities
 
and Exchange
 
Commission, any
 
applicable laws
 
or the
 
requirements of
 
any stock
exchange
 
on
 
which
 
the
 
Common
 
Stock
 
is
 
then
 
listed.
 
If
 
the
 
shares
 
of
 
Common
 
Stock
 
issued
hereunder are
 
held in
 
book-entry form,
 
then such
 
entry will
 
reflect that
 
the shares
 
are subject
 
to
the restrictions set forth in this Agreement.
9.
Rights as a
 
Stockholder
. The Participant
 
shall have no
 
rights as a
 
stockholder of
the Company with
 
respect to any
 
shares of Common
 
Stock that may
 
become deliverable
 
hereunder
unless and until the Participant has become
 
the holder of record of such shares of
 
Common Stock,
and no
 
adjustments shall
 
be made
 
for dividends
 
in cash
 
or other
 
property,
 
distributions or
 
other
rights in respect of
 
any such shares
 
of Common Stock,
 
except as otherwise
 
specifically provided
for in the Plan or this Agreement.
 
 
 
 
10.
Execution
 
of
 
Receipts
 
and
 
Releases
.
 
Any
 
issuance
 
or
 
transfer
 
of
 
shares
 
of
Common Stock or
 
other property to
 
the Participant or
 
the Participant’s
 
legal representative, heir,
legatee or distributee, in accordance with this Agreement
 
shall be in full satisfaction of all
 
claims
of such
 
person hereunder.
 
As a
 
condition precedent
 
to such
 
payment or
 
issuance, the
 
Company
may require the Participant
 
or the Participant’s
 
legal representative, heir,
 
legatee or distributee to
execute (and not revoke
 
within any time provided
 
to do so) a
 
release and receipt therefor
 
in such
form
 
as
 
it
 
shall
 
determine
 
appropriate;
 
provided,
 
however,
 
that
 
any
 
review
 
period
 
under
 
such
release will not modify the date of settlement with respect to vested DSUs.
11.
No Right to Continued
 
Service or Awards
. Nothing in the
 
adoption of the Plan,
nor
 
the
 
award
 
of
 
the
 
DSUs
 
thereunder
 
pursuant
 
to
 
the
 
Grant
 
Notice
 
and
 
this
 
Agreement,
 
shall
confer upon the Participant the right to a continued
 
service relationship with the Company or any
Affiliate, or any other entity,
 
or affect in any way the right
 
of the Company or any such Affiliate,
or any other
 
entity to terminate
 
such service relationship
 
at any time.
 
The grant of
 
the DSUs is
 
a
one-time benefit and does not create any contractual or other right
 
to receive a grant of Awards or
benefits in lieu
 
of Awards
 
in the future. Any
 
future Awards
 
will be granted
 
at the sole
 
discretion
of the Company.
12.
Notices
.
 
All notices
 
and other
 
communications under
 
this Agreement
 
shall be
 
in
writing and shall be
 
delivered to the parties
 
at the following addresses
 
(or at such other
 
address for
a party as shall be specified by like notice):
If to the
 
Company, unless otherwise designated by the
 
Company in a written
 
notice
to the Participant (or other holder):
Orchid Island Capital, Inc.
Attn: Bob Cauley
 
3305 Flamingo Drive
 
Vero
 
Beach, Florida 32963
 
If to the Participant, to the address for the Participant indicated on the signature
page to the Grant Notice (as such address may be updated by the Participant providing written
notice to such effect to the Company).
 
Any notice
 
that is
 
delivered personally
 
or by
 
overnight courier
 
or telecopier
 
in the
 
manner provided
herein shall
 
be deemed
 
to have
 
been duly
 
given to
 
the Participant
 
when it
 
is mailed
 
by the
 
Company
or, if such
 
notice is not mailed
 
to the Participant, upon receipt
 
by the Participant. Any notice
 
that
is
 
addressed and
 
mailed
 
in
 
the
 
manner herein
 
provided
 
shall
 
be
 
conclusively
 
presumed to
 
have
been given to the party
 
to whom it is addressed
 
at the close of business,
 
local time of the recipient,
on the fourth day after the day it is so placed in the mail.
 
13.
Consent
 
to
 
Electronic
 
Delivery;
 
Electronic
 
Signature
.
 
In
 
lieu
 
of
 
receiving
documents in paper format, the Participant agrees, to the
 
fullest extent permitted by law, to accept
electronic delivery of any documents that the Company may
 
be required to deliver (including, but
not limited to,
 
prospectuses, prospectus supplements,
 
grant or award
 
notifications and agreements,
account
 
statements,
 
annual
 
and
 
quarterly
 
reports
 
and
 
all
 
other
 
forms
 
of
 
communications)
 
in
connection with
 
this and
 
any other
 
Award made or offered
 
by the
 
Company. The Participant
 
hereby
 
 
 
 
 
consents to any and all
 
procedures the Company has established or
 
may establish for an electronic
signature system
 
for delivery
 
and acceptance
 
of any
 
such documents
 
that the
 
Company may
 
be
required to deliver, and agrees
 
that his or her
 
electronic signature is
 
the same as, and
 
shall have the
same force and effect as, his or her manual signature.
14.
Agreement
 
to
 
Furnish
 
Information
.
 
The
 
Participant
 
agrees
 
to
 
furnish
 
to
 
the
Company all information requested by the
 
Company to enable it to
 
comply with any reporting or
other requirement imposed upon the Company by or under any applicable statute or regulation.
15.
Entire Agreement; Amendment
.
 
This Agreement, the Grant Notice and
 
the Plan
constitute the entire agreement
 
of the parties with regard
 
to the subject matter hereof,
 
and contains
all the covenants,
 
promises, representations, warranties
 
and agreements between
 
the parties with
respect to the DSUs
 
granted hereby; provided, however, that the terms
 
of this Agreement shall not
modify
 
and
 
shall
 
be
 
subject
 
to
 
the
 
terms
 
and
 
conditions
 
of
 
any
 
consulting
 
and/or
 
severance
agreement between the Company (or
 
an Affiliate or other entity) and
 
the Participant in effect as of
the date
 
a determination
 
is to
 
be made
 
under this
 
Agreement.
 
Without
 
limiting the
 
scope of
 
the
preceding sentence,
 
except as
 
provided therein,
 
all prior
 
understandings and
 
agreements, if
 
any,
among the parties
 
hereto relating to
 
the subject matter
 
hereof are hereby
 
null and
 
void and of
 
no
further force and
 
effect.
 
The Committee may,
 
in its sole
 
discretion, amend this
 
Agreement from
time to time
 
in any manner
 
that is
 
not inconsistent with
 
the Plan; provided,
 
however, that
 
except
as otherwise provided in the Plan or this Agreement, any such amendment that materially reduces
the
 
rights
 
of
 
the
 
Participant
 
shall
 
be
 
effective
 
only
 
if
 
it
 
is
 
in
 
writing
 
and
 
signed
 
by
 
both
 
the
Participant and an authorized officer of the Company.
16.
Severability and Waiver
.
 
If a court of competent jurisdiction
 
determines that any
provision of this Agreement is invalid or unenforceable, then the invalidity or unenforceability of
such
 
provision
 
shall
 
not
 
affect
 
the
 
validity
 
or
 
enforceability
 
of
 
any
 
other
 
provision
 
of
 
this
Agreement, and all
 
other provisions shall
 
remain in full
 
force and effect.
 
Waiver
 
by any party
 
of
any breach of this Agreement or failure to exercise
 
any right hereunder shall not be deemed to be
a waiver
 
of any
 
other breach
 
or right.
 
The failure
 
of any
 
party to
 
take action
 
by reason
 
of such
breach or
 
to exercise
 
any such
 
right shall
 
not deprive
 
the party
 
of the
 
right to
 
take action
 
at any
time while or after such breach or condition giving rise to such rights continues.
17.
Clawback
.
 
Notwithstanding any provision in the Grant Notice, this Agreement or
the Plan to the contrary, to the extent required
 
by (a) applicable law, including, without limitation,
the requirements
 
of the
 
Dodd-Frank Wall
 
Street Reform
 
and Consumer
 
Protection Act
 
of 2010,
any
 
Securities
 
and
 
Exchange
 
Commission
 
rule
 
or
 
any
 
applicable
 
securities
 
exchange
 
listing
standards and/or (b) any policy
 
that may be adopted or
 
amended by the Board
 
from time to time,
all
 
shares
 
of
 
Common
 
Stock
 
issued
 
hereunder
 
shall
 
be
 
subject
 
to
 
forfeiture,
 
repurchase,
recoupment and/or cancellation to the extent necessary to comply with such law(s) and/or policy.
18.
Governing
 
Law
.
 
THIS
 
AGREEMENT
 
SHALL
 
BE
 
GOVERNED
 
BY
 
AND
CONSTRUED
 
IN
 
ACCORDANCE
 
WITH
 
THE
 
LAWS
 
OF
 
THE
 
STATE
 
OF
 
MARYLAND
APPLICABLE TO CONTRACTS
 
MADE AND
 
TO BE PERFORMED
 
THEREIN, EXCLUSIVE
OF THE CONFLICT OF LAWS PROVISIONS OF MARYLAND
 
LAW.
 
 
 
 
19.
Successors
 
and
 
Assigns
.
 
The
 
Company
 
may
 
assign
 
any
 
of
 
its
 
rights
 
under
 
this
Agreement without the Participant’s
 
consent.
 
This Agreement will
 
be binding upon
 
and inure to
the benefit of
 
the successors
 
and assigns
 
of the
 
Company.
 
Subject to
 
the restrictions
 
on transfer
set
 
forth
 
herein
 
and
 
in
 
the
 
Plan,
 
this
 
Agreement
 
will
 
be
 
binding
 
upon
 
the
 
Participant
 
and
 
the
Participant's beneficiaries, executors, administrators and the person(s) to whom the DSUs may be
transferred by will or the laws of descent or distribution.
20.
Headings
. Headings are for
 
convenience only and are
 
not deemed to be part
 
of this
Agreement.
21.
Counterparts
.
 
The
 
Grant
 
Notice
 
may
 
be
 
executed
 
in
 
one
 
or
 
more
 
counterparts,
each of
 
which shall
 
be deemed
 
an original
 
and all
 
of which
 
together shall
 
constitute one
 
instrument.
 
Delivery of an executed counterpart
 
of the Grant Notice by
 
facsimile or portable document format
(.pdf)
 
attachment
 
to
 
electronic
 
mail
 
shall
 
be
 
effective
 
as
 
delivery
 
of
 
a
 
manually
 
executed
counterpart of the Grant Notice.
22.
Section 409A
. Notwithstanding anything
 
herein or in
 
the Plan to
 
the contrary,
 
the
DSUs granted
 
pursuant to this
 
Agreement are
 
intended to comply
 
with the applicable
 
requirements
of Section
 
409A, as
 
amended from
 
time to
 
time, and
 
the guidance
 
and regulations
 
promulgated
thereunder
 
and
 
successor
 
provisions,
 
guidance
 
and
 
regulations
 
thereto
 
(the
 
“
Nonqualified
Deferred Compensation Rules
”) and shall
 
be construed and
 
interpreted in accordance
 
with such
intent.
 
If
 
the
 
Participant
 
is
 
deemed
 
to
 
be
 
a
 
“specified
 
employee”
 
within
 
the
 
meaning
 
of
 
the
Nonqualified Deferred Compensation Rules, as determined by the Committee, at a time when the
Participant becomes
 
eligible for
 
settlement of
 
the DSUs
 
upon the
 
Participant’s
 
“separation from
service” within the meaning of the Nonqualified Deferred Compensation Rules, then
 
to the extent
necessary
 
to
 
prevent
 
any
 
accelerated
 
or
 
additional
 
tax
 
under
 
the
 
Nonqualified
 
Deferred
Compensation Rules,
 
such settlement
 
will be
 
delayed until
 
the earlier
 
of: (a)
 
the date
 
that is
 
six
months
 
following
 
the
 
Participant’s
 
separation
 
from
 
service
 
and
 
(b)
 
the
 
Participant’s
 
death.
 
Notwithstanding the
 
foregoing, the
 
Company and
 
its Affiliates
 
make no
 
representations that
 
the
DSUs provided
 
under this
 
Agreement are
 
compliant with
 
the Nonqualified
 
Deferred Compensation
Rules and
 
in no
 
event shall
 
the Company
 
or any
 
Affiliate be
 
liable for
 
all or
 
any portion
 
of any
taxes, penalties,
 
interest or
 
other expenses
 
that may
 
be incurred
 
by the
 
Participant on
 
account of
non-compliance with the Nonqualified Deferred Compensation Rules.
 
 
 
 
EXHIBIT B
DEFERRED STOCK UNITS
DEFERRAL ELECTION FORM
Please complete this Deferred Stock Units Deferral Election Form (the “
DSU Election Form
”)
and return a signed copy to Bob Cauley no later than 5:00pm EST on December 31, 2021 (the
“
Election Deadline
”).
 
Name:
 
______________________________________
NOTE: This DSU Election Form will apply to all grants of Deferred Stock Units (the
“
DSUs
”) you may receive from Orchid Island Capital, Inc. (the “
Company
”) on and after
January 1, 2022 until such time as a new signed DSU Election Form is received by the
Company.
 
Any new signed DSU Election Form must be received by the Company no later
than December 31 of the calendar year preceding the calendar in which it is intended to
apply.
1.
Settlement of DSUs
In making this election, the following rules apply:
 
●
Unless
 
otherwise specified,
 
capitalized terms
 
used
 
but
 
not
 
defined in
 
this
 
DSU
 
Election
Form shall
 
have the
 
meaning attributed
 
to them
 
in the
 
Deferred Stock
 
Unit Grant
 
Notice
(the “
Grant Notice
”), the Deferred
 
Stock Unit Agreement
 
(the “
Agreement
”) or the
 
Orchid
Island Capital,
 
Inc. 2021
 
Equity Incentive
 
Plan, as
 
amended from
 
time to
 
time (the
 
“
Plan
”),
as applicable.
 
●
You must complete this DSU
 
Election Form
 
by the Election
 
Deadline and select
 
a payment
date on
 
which you
 
will receive
 
the shares
 
of Common
 
Stock underlying
 
the DSUs.
 
You
must
 
complete
 
this
 
DSU
 
Election
 
Form
 
even
 
if
 
you
 
want
 
the
 
shares
 
of
 
Common
 
Stock
underlying your DSUs to be paid to you at the default time specified in the Agreement.
 
●
Notwithstanding the
 
foregoing, if
 
you fail
 
to complete
 
and timely
 
submit this
 
DSU Election
Form, the
 
shares of
 
Common Stock
 
underlying your
 
DSUs will
 
be paid
 
to you
 
at the
 
default
time specified in the Agreement.
 
2.
Deferral Election
I hereby irrevocably elect to receive the shares of Common Stock issuable pursuant
to any DSUs granted to me under the Plan or any successor plan thereto in 2022 and any
future calendar years, until such time as a new signed DER Election Form is received by
the Company, upon the earlier to occur of my death, disability (as defined in Treasury
Regulation Section 1.409A-3(i)(4)), a Change in Control, or
 
(
select only one of the following
):
 
☐
 
(a)
 
The default time specified in the Agreement.
 
 
 
 
☐
 
(b)
 
The
 
date
 
I
 
incur
 
a
 
separation
 
from
 
service
 
with
 
the
 
Company,
determined
 
in
 
accordance
 
with
 
the
 
Company’s
 
written
 
and
 
generally
 
applicable
policies.
☐
 
(c)
 
The
 
anniversary of the
 
date of
 
I incur a
 
separation from
service with the
 
Company,
 
determined in accordance
 
with the Company’s
 
written
and generally applicable policies.
☐
 
(d)
 
As soon as
 
administratively feasible following
 
________________
___, _____ (
insert applicable date
).
3.
 
Signature
I understand that my rights to the shares of Common Stock underlying the DSUs are
subject to the rights of the general creditors of the Company in the event of its insolvency.
 
I further understand that this DSU Election Form will become effective and irrevocable as of
5:00pm EST on December 31, 2021, which is the Election Deadline.
Once I have elected the
time of settlement of my DSUs by filing this completed DSU Election Form, I understand
that (a) the settlement election will be irrevocable and (b) the settlement election will
control over any contrary payment time or event specified in Section 4 of the Agreement.
 
I
acknowledge that, if I do not complete and timely submit this DSU Election Form, the shares of
Common Stock underlying my DSUs will be paid to me at the default time specified in the
Agreement.
By executing this DSU Election Form, I hereby acknowledge my understanding of, and
agreement with, the terms and provisions set forth in this DSU Election Form, the Grant Notice,
the Agreement and the Plan.
 
PARTICIPANT
 
 
Name:
 
Date:
 
 
 
 
 
 
 
 
EXHIBIT C
DIVIDEND EQUIVALENTS
DEFERRAL ELECTION FORM
Please complete this Dividend Equivalents Deferral Election Form (the “
DER Election Form
”)
and return a signed copy to Bob Cauley no later than 5:00pm EST on December 31, 2021 (the
“
Election Deadline
”).
 
Name:
 
______________________________________
NOTE: This DER Election Form will apply to all Dividend Equivalents you may receive
from Orchid Island Capital, Inc. (the “
Company
”) pursuant to an award of Deferred Stock
Units on and after January 1, 2022 until such time as a new signed DER Election Form is
received by the Company. Any new signed DSU Election Form must be received
 
by the
Company no later than December 31 of the calendar year preceding the calendar in which
it is intended to apply.
1.
Settlement of Dividend Equivalents
In making this election, the following rules apply:
 
●
Unless
 
otherwise specified,
 
capitalized terms
 
used
 
but
 
not
 
defined in
 
this
 
DER
 
Election
Form shall
 
have the
 
meaning attributed
 
to them
 
in the
 
Deferred Stock
 
Unit Grant
 
Notice
(the “
Grant Notice
”), the Deferred
 
Stock Unit Agreement
 
(the “
Agreement
”) or the
 
Orchid
Island Capital,
 
Inc. 2021
 
Equity Incentive
 
Plan, as
 
amended from
 
time to
 
time (the
 
“
Plan
”),
as applicable.
 
●
You must complete this DER
 
Election Form
 
by the Election
 
Deadline and select
 
a payment
date on which you will receive the Dividend Equivalents (or the shares of Common Stock
underlying any
 
reinvested Dividend
 
Equivalents). You
 
must complete
 
this DER
 
Election
Form
 
even
 
if
 
you
 
want
 
the
 
Dividend
 
Equivalents
 
to
 
be
 
paid
 
to
 
you
 
at
 
the
 
default
 
time
specified in the Agreement.
 
●
Notwithstanding the
 
foregoing, if
 
you fail
 
to complete
 
and timely
 
submit this
 
DER Election
Form,
 
the
 
Dividend
 
Equivalents
 
will
 
be
 
paid
 
to
 
you
 
at
 
the
 
default
 
time
 
specified
 
in
 
the
Agreement.
 
2.
Deferral Election
I hereby irrevocably elect to receive _____% of the Dividend Equivalents (or the
shares of Common Stock underlying any reinvested Dividend Equivalents)
issuable
pursuant to any Deferred Stock Units granted to me under the Plan or any successor plan
thereto in 2022 and any future calendar years (the “Deferred Dividend Equivalents”), until
such time as a new signed DER Election Form is received by the Company, upon the
 
 
earlier to occur of my death, disability (as defined in Treasury
 
Regulation Section 1.409A-
3(i)(4)), a Change in Control, or
 
(
select only one of the following
):
 
☐
 
(a)
 
The
 
date
 
I
 
incur
 
a
 
separation
 
from
 
service
 
with
 
the
 
Company,
determined
 
in
 
accordance
 
with
 
the
 
Company’s
 
written
 
and
 
generally
 
applicable
policies.
☐
 
(b)
 
The
 
anniversary of the
 
date of
 
I incur a
 
separation from
service with the
 
Company,
 
determined in accordance
 
with the Company’s
 
written
and generally applicable policies.
☐
 
(c)
 
As soon as
 
administratively feasible following
 
________________
___, _____ (
insert applicable date
).
For
 
the
 
avoidance
 
of
 
doubt,
 
if
 
less
 
than
 
100%
 
of
 
the
 
Dividend
 
Equivalents
 
(or
 
the
shares
 
of
 
Common
 
Stock
 
underlying
 
any
 
reinvested
 
Dividend
 
Equivalents)
 
are
 
Deferred
Dividend
 
Equivalents
 
pursuant
 
to
 
this
 
Section
 
2
 
of
 
the
 
DER
 
Election
 
Form,
 
then
 
any
Dividend Equivalents (or
 
the shares of
 
Common Stock underlying
 
any reinvested Dividend
Equivalents)
 
that
 
are
 
not
 
Deferred
 
Dividend
 
Equivalents
 
will
 
be
 
paid
 
at
 
the
 
default
 
time
specified in the Agreement.
 
3.
 
Signature
I understand that my rights to the Deferred Dividend Equivalents are subject to the rights
of the general creditors of the Company in the event of its insolvency.
 
I further understand
that this DER Election Form will become effective and irrevocable as of 5:00pm EST on
December 31, 2021, which is the Election Deadline.
Once I have elected the time of settlement
of my Deferred Dividend Equivalents by filing this completed DER Election Form, I
understand that (a) the settlement election will be irrevocable and (b) the settlement
election will control over any contrary payment time or event specified in Section 3 of the
Agreement for the Deferred Dividend Equivalents.
 
I acknowledge that, if I do not complete
and timely submit this DER Election Form, none of the Dividend Equivalents (or the shares of
Common Stock underlying any reinvested Dividend Equivalents) will become Deferred
Dividend Equivalents and all Dividend Equivalents (or the shares of Common Stock underlying
any reinvested Dividend Equivalents) will be paid to me at the default time specified in the
Agreement.
 
 
By executing this DER Election Form, I hereby acknowledge my understanding of, and
agreement with, the terms and provisions set forth in this DER Election Form, the Grant Notice,
the Agreement and the Plan.
 
PARTICIPANT
 
 
Name:
 
Date: