S-8

As filed with the Securities and Exchange Commission on June 16, 2021

Registration No. 333-

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_________________

FORM S‑8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

_________________

New York Mortgage Trust, Inc.

(Exact name of registrant as specified in its charter)

Maryland (State or other jurisdiction of incorporation or organization) 47-0934168 (I.R.S. Employer Identification No.)

90 Park Avenue

New York, New York 10016

(Address of principal executive offices, including zip code)

____________________

New York Mortgage Trust, Inc.2017 Equity Incentive Plan

(Full title of the plan)

Steven R. MummaChief Executive Officer

New York Mortgage Trust, Inc.90 Park Avenue

New York, New York 10016
(212) 792-0107

(Name, address and telephone number of agent for service)

Copies to:

Christopher C. Green
Vinson & Elkins L.L.P.
2200 Pennsylvania Avenue NW
Suite 500 West
Washington, DC 20037
(202) 639-6500

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

Large accelerated filer ý	Accelerated filer o	Non-accelerated filer  o	Smaller reporting company o
			Emerging growth company o

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.        o

CALCULATION OF REGISTRATION FEE

Title of securities    to be registered	Amount to be    registered (1)(2)	Proposed    maximum offering    price per share (3)	Proposed    maximum aggregate    offering price (3)	Amount of    registration fee
Common Stock, $0.01 par value per share	33,000,000 shares	$4.72	$155,760,000	$16,993.42

(1)This Registration Statement on Form S-8 (this “Registration Statement”) registers an aggregate of 33,000,000 shares of common stock, $0.01 par value per share (the “Common Stock”), of New York Mortgage Trust, Inc. (the “Registrant”) that may be delivered with respect to awards under the New York Mortgage Trust, Inc. 2017 Equity Incentive Plan (as amended from time to time, the “Plan”), which shares consist of shares of Common Stock reserved and available for delivery with respect to awards under the Plan and shares of Common Stock that may again become available for delivery with respect to awards under the Plan pursuant to the share counting, share recycling and other terms and conditions of the Plan.

(2)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover an indeterminate number of additional shares of Common Stock that may become issuable as a result of stock splits, stock dividends or similar transactions pursuant to the adjustment or anti-dilution provisions of the Plan.

(3)The proposed maximum offering price per share and proposed maximum aggregate offering price for the shares of Common Stock have been estimated solely for purposes of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act based upon the average of the high and low prices for a share of Common Stock as reported on the NASDAQ Stock Market on June 11, 2021.

REGISTRATION OF ADDITIONAL SECURITIES PURSUANT TO GENERAL INSTRUCTION E

This Registration Statement on Form S-8 (the “Registration Statement”) is being filed by the Registrant to register an additional 33,000,000 shares of Common Stock reserved and available for delivery under the Plan. Such shares consist of shares of Common Stock that became available for delivery under the Plan pursuant to the Second Amendment to the Plan and shares of Common Stock that may again become available for delivery with respect to awards under the Plan pursuant to the share counting, share recycling and other terms and conditions of the Plan. The Second Amendment to the Plan was adopted by the board of directors of the Registrant on April 19, 2021 and approved by the stockholders of the Registrant on June 14, 2021.

Accordingly, the contents of the prior Registration Statements on Form S-8 filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on May 22, 2017 (File No. 333-218165) relating to the Plan and on July 1, 2019 (File No. 333-232452) relating to the First Amendment to the Plan (collectively, the “Prior Registration Statements”), including periodic reports that the Registrant filed after the Prior Registration Statements to maintain current information about the Registrant, are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form S-8, except as amended hereby. The Prior Registration Statements are currently effective.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8.    Exhibits.

Exhibit Number	Description
4.1	Articles of Amendment and Restatement of New York Mortgage Trust, Inc., as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K (File No. 001-32216) filed with the Commission on February 28, 2020).
4.2	Amended and Restated Bylaws of New York Mortgage Trust, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-32216) filed with the Commission on April 23, 2020).
4.3	Articles Supplementary designating the Registrant’s 7.75% Series B Cumulative Redeemable Preferred Stock (the “Series B Preferred Stock”) (incorporated by reference to Exhibit 3.3 of the Registrant’s Registration Statement on Form 8-A (File No. 001-32216) as filed with the Commission on May 31, 2013).
4.4	Articles Supplementary classifying and designating 2,550,000 additional shares of the Registrant’s Series B Preferred Stock (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (File No. 001-32216) as filed with the Commission on March 20, 2015).
4.5	Articles Supplementary classifying and designating the 7.875% Series C Cumulative Redeemable Preferred Stock (the “Series C Preferred Stock”) (incorporated by reference to Exhibit 3.5 of the Registrant’s Registration Statement on Form 8-A (File No. 001-32216) as filed with the Commission on April 21, 2015).
4.6	Articles Supplementary classifying and designating 2,460,000 additional shares of the Series C Preferred Stock (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2019).
4.7	Articles Supplementary classifying and designating the 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock (the “Series D Preferred Stock”) (Incorporated by reference to Exhibit 3.6 to the Registrant’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on October 10, 2017).
4.8	Articles Supplementary classifying and designating 2,650,000 additional shares of the Series D Preferred Stock (Incorporated by reference to Exhibit 3.3 of the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2019).
4.9	Articles Supplementary classifying and designating the 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock (the “Series E Preferred Stock”) (Incorporated by reference to Exhibit 3.9 to the Registrant’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on October 15, 2019).
4.10	Articles Supplementary classifying and designating 3,000,000 additional shares of the Series E Preferred Stock (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 27, 2019).

4.11	Form of Common Stock Certificate (incorporated by reference to Exhibit 4.01 to the Registrant’s Registration Statement on Form S-11 as filed with the Commission (Registration No. 333-111668), effective June 23, 2004).
4.12	Form of Certificate representing the Series B Preferred Stock (incorporated by reference to Exhibit 3.4 of the Registrant’s Registration Statement on Form 8-A (File No. 001-32216) as filed with the Commission on May 31, 2013).
4.13	Form of Certificate representing the Series C Preferred Stock (incorporated by reference to Exhibit 3.6 of the Registrant’s Registration Statement on Form 8-A (File No. 001-32216) as filed with the Commission on April 21, 2015).
4.14	Form of Certificate representing the Series D Preferred Stock (Incorporated by reference to Exhibit 3.7 to the Registrant’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on October 10, 2017).
4.15	Form of Certificate representing the Series E Preferred Stock (Incorporated by reference to Exhibit 3.10 to the Registrant’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on October 15, 2019).
4.16	Indenture, dated January 23, 2017, between New York Mortgage Trust, Inc. and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File No. 001-32216) filed with the Commission on January 23, 2017).
4.17	First Supplemental Indenture, dated January 23, 2017, between New York Mortgage Trust, Inc. and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K (File No. 001-32216) filed with the Commission on January 23, 2017).
4.18	Form of 6.25% Senior Convertible Notes Due 2022 of New York Mortgage Trust, Inc. (incorporated by reference to Exhibit 4.3 to the Registrant’s Current Report on Form 8-K (File No. 001-32216) filed with the Commission on January 23, 2017).
	Certain instruments defining the rights of holders of long-term debt securities of the Registrant and its subsidiaries are omitted pursuant to Item 601(b)(4)(iii) of Regulation S-K. The Registrant hereby undertakes to furnish to the Commission, upon request, copies of any such instruments
4.19	New York Mortgage Trust, Inc. 2017 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 001-32216) filed with the Commission on May 15, 2017).
4.20	First Amendment to the New York Mortgage Trust, Inc. 2017 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K (File No. 001-32216) filed with the Commission on June 28, 2019).
4.21	Indenture, dated as of April 27, 2021, between New York Mortgage Trust, Inc. and UMB Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File No. 001-32216) filed with the Commission on April 27, 2021).
4.22	Second Amendment to the New York Mortgage Trust, Inc. 2017 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 001-32216) filed with the Commission on June 14, 2021).

5.1*	Opinion of Venable LLP.
23.1*	Consent of Grant Thornton LLP.
23.2*	Consent of Venable LLP (included in the opinion filed as Exhibit 5.1 to this Registration Statement).
24.1*	Power of Attorney (included on the signature page of this Registration Statement).
*Filed herewith.

SIGNATURES

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 June 16, 2021.

New York Mortgage Trust, Inc.
By:	/s/ Kristine R. Nario-Eng
Name:	Kristine R. Nario-Eng
Title:	Chief Financial Officer

POWER OF ATTORNEY

KNOWN ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below authorizes and appoints Steven R. Mumma, Jason T. Serrano, Kristine R. Nario-Eng and Nathan R. Reese, and each of them, any of whom may act without the joinder of the other, as such person’s true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any additional registration statement pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully and to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or agents, or their substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on June 16, 2021.

Signature	Title
/s/ Steven R. Mumma	Chairman of the Board and Chief Executive Officer
Steven R. Mumma	(Principal Executive Officer)
/s/ Kristine R. Nario-Eng	Chief Financial Officer
Kristine R. Nario-Eng	(Principal Financial Officer and Principal Accounting Officer)
/s/ Jason T. Serrano	President and Director
Jason T. Serrano
/s/ David R. Bock	Director
David R. Bock
/s/ Michael B. Clement	Director
Michael B. Clement
/s/ Alan L. Hainey	Director
Alan L. Hainey
/s/ Steven G. Norcutt	Director
Steven G. Norcutt
/s/ Lisa A. Pendergast	Director
Lisa A. Pendergast

EX-5.1

Exhibit 5.1

June 16, 2021

New York Mortgage Trust, Inc.

90 Park Avenue

New York, New York 10016

Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We have served as Maryland counsel to New York Mortgage Trust, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration by the Company of 33,000,000 shares (the “Shares”) of Common Stock, $0.01 par value per share (the “Common Stock”), of the Company, covered by the above-referenced Registration Statement, and all amendments and supplements thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “1933 Act”). The Shares will be issued pursuant to the New York Mortgage Trust, Inc. 2017 Equity Incentive Plan, as amended by the First Amendment to the New York Mortgage Trust, Inc. 2017 Equity Incentive Plan and the Second Amendment to the New York Mortgage Trust, Inc. 2017 Equity Incentive Plan (collectively, the “Plan”).

In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):

1.The Registration Statement in the form in which it was transmitted to the Commission under the 1933 Act;

2.The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

3.The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;

4.A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;

New York Mortgage Trust, Inc.

June 16, 2021

Page 2

5.Resolutions adopted by the Board of Directors of the Company, or a duly authorized committee thereof, relating to, among other things, the Plan and the issuance of the Shares (the “Resolutions”), certified as of the date hereof by an officer of the Company;

6.The Plan;

7.The Company’s Current Report on Form 8-K, filed with the Commission on May 15, 2017, reporting the results of matters voted on by the Company’s stockholders at the Company’s 2017 annual meeting of stockholders;

8.The Company’s Current Report on Form 8-K, filed with the Commission on June 28, 2019, reporting the results of matters voted on by the Company’s stockholders at the Company’s 2019 annual meeting of stockholders;

9.The Company’s Current Report on Form 8-K, filed with the Commission on June 14, 2021, reporting the results of matters voted on by the Company’s stockholders at the Company’s 2021 annual meeting of stockholders

10.A certificate executed by an officer of the Company, dated as of the date hereof; and

11.Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.

In expressing the opinion set forth below, we have assumed the following:

1.Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.

2.Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.

3.Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.

New York Mortgage Trust, Inc.

June 16, 2021

Page 3

4.All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.

5.The Shares will not be issued in violation of the restrictions on transfer and ownership contained in Article VII of the Charter or in violation of any limitation set forth in the Plan.

6.Upon issuance of any of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.

7.Each option, award, right or other security exercisable or exchangeable for a Share pursuant to the Plan (each, an “Award”) will be duly authorized and validly granted in accordance with the Plan, and each Award will be exercised or exchanged in accordance with the terms of the Plan and such Award, including any option or award agreement entered into in connection therewith.

8.Upon issuance of any of the Shares, the total number of shares of Common Stock issued pursuant to the Plan and then outstanding will not exceed 43,170,000.

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:

1.The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.

2.The issuance of the Shareshas been duly authorized and, when issued and delivered by the Company pursuant to the Resolutions, the Plan and any option or award agreement entered into in connection therewith, the Shares will be validly issued, fully paid and nonassessable.

New York Mortgage Trust, Inc.

June 16, 2021

Page 4

The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning federal law or any other state law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.

Very truly yours,

/s/ Venable LLP

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We have issued our reports dated February 26, 2021 with respect to the consolidated financial statements and internal control over financial reporting of New York Mortgage Trust, Inc. included in the Annual Report on Form 10-K for the year ended December 31, 2020, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement.

/s/ GRANT THORNTON LLP

New York, New York

June 16, 2021