EXHIBIT 10.9
FORM OF
RESTRICTED STOCK AGREEMENT
PURSUANT TO THE
ARBOR REALTY TRUST, INC.
2003 OMNIBUS STOCK INCENTIVE PLAN
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is made by
and between [Insert Name of Grantee] ("Grantee") and Arbor Realty Trust, Inc., a
Maryland corporation (the "Company"), as of [Insert Date of Agreement].
WHEREAS, Grantee is currently [a director of the Company] [an
executive officer of the Company] [an employee of the Company] [an employee of
Arbor Commercial Mortgage, LLC, a New York limited liability company ("ACM"),
who provides consulting services to the Company that are not in connection with
the offer or sale of securities in a capital raising transaction or promoting or
maintaining a market for securities of the Company (a "Consultant") pursuant to
the terms of that certain Management Agreement, dated as of July 1, 2003 (the
"Management Agreement"), by and among the Company, Arbor Realty Limited
Partnership, a Delaware limited partnership and the operating partnership of the
Company ("ARLP") and ACM, which provides for the management of the operations of
the Company and ARLP by ACM]; and
WHEREAS, the Company has adopted the Arbor Realty Trust, Inc.
2003 Omnibus Stock Incentive Plan (the "Plan"), which provides for awards of
restricted stock to selected officers, directors, employees, consultants and
advisors; and
WHEREAS, on [Insert Date of Agreement] (the "Date of Grant"),
the Board of Directors (the "Board") of the Company awarded the Grantee [Insert
Number of Shares] shares of the Company's common stock, par value $0.01 (the
"Common Stock"), pursuant to, and subject to the terms and provisions of the
Plan.
NOW, THEREFORE, in consideration of the Grantee's services to
the Company and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant of Restricted Stock. Company hereby grants to
Grantee [Insert Number of Shares] shares of restricted Common Stock and Grantee
hereby accepts such shares, pursuant to and subject to the terms and provisions
of the Plan and the Agreement (the "Restricted Stock").
2. Incorporation by Reference, Etc. The provisions of
the Plan are hereby incorporated herein by reference. Except as otherwise
expressly set forth herein, this Agreement shall be construed in accordance with
the provisions of the Plan and any capitalized terms not otherwise defined in
this Agreement shall have the definitions set forth in the Plan. The
Administrator shall have final authority to interpret and construe the Plan and
this Agreement and to make any and all determinations thereunder, and its
decision shall be binding and conclusive upon the Grantee and his/her legal
representative in respect of any questions arising under the Plan or this
Agreement.
3. Escrow of Restricted Stock. To insure the
availability for delivery of the Grantee's Restricted Stock, the Grantee hereby
appoints the Secretary of the Company, or any other person designated by the
Company as escrow agent, as its attorney-in-fact to assign and transfer unto the
Company such Restricted Stock, if any, forfeited by the Grantee pursuant to
Section 6 below and shall, upon execution of this Agreement, deliver and deposit
with the Secretary of the Company, or such other person designated by the
Company, the share certificates representing the Restricted Stock, together with
the stock assignment duly endorsed in blank, attached hereto as Exhibit A. The
Restricted Stock and stock assignment shall be held by the Secretary in escrow,
pursuant to the Joint Escrow Instructions of the Company and the Grantee
attached hereto as Exhibit B, until the Restricted Period (as defined below) has
lapsed with respect to the shares of Restricted Stock, or until such time as
this Agreement no longer is in effect. Upon such time as the Restricted Period
has lapsed pursuant to the schedule set forth in Section 4 below and subject to
the forfeiture provisions of Section 6 below, the escrow agent shall promptly
deliver to the Grantee the certificate or certificates representing such shares
of Restricted Stock in the escrow agent's possession belonging to the Grantee in
accordance with the terms of the Joint Escrow Instructions, and the escrow agent
shall be discharged of all further obligations hereunder; provided, however,
that the escrow agent shall nevertheless retain such certificate or certificates
if so required pursuant to other restrictions imposed pursuant to this
Agreement.
4. Restrictions and Restricted Period.
a. Restrictions. Shares of Restricted Stock granted
hereunder may not be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of and shall be subject to a risk of forfeiture as described
in Section 6 below until the lapse of the Restricted Period (as defined below).
b. Restricted Period. Unless the Restricted Period is
previously terminated pursuant to Section 6 of this Agreement, the restrictions
set forth above shall lapse and the shares of Restricted Stock shall become
fully and freely transferable (provided, that such transfer is otherwise in
accordance with federal and state securities laws) and non-forfeitable as to
[Insert Vesting Terms] of the shares of Restricted Stock (rounded down to the
nearest whole share) on the Date of Grant and as to an additional [Insert
Vesting Terms] of the shares of Restricted Stock (rounded down to the nearest
whole share) on the [Insert Vesting Dates] anniversary of the Date of Grant (the
"Restricted Period") as set forth below:
Date of Grant or Release Fraction of Shares Released
from Restricted Period from Restricted Period
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[Insert Date of Agreement] [Insert Vesting Terms]
[Insert Vesting Date] [Insert Vesting Terms]
[Insert Vesting Date] [Insert Vesting Terms]
[Insert Vesting Date] [Insert Vesting Terms]
Notwithstanding anything to the contrary, the release of the shares of
Restricted Stock hereunder shall be conditioned upon Grantee making adequate
provision for federal, state or other tax withholding obligations, if any, which
arise upon the release of the shares from the Restricted Period (unless a
Section 83(b) election has been filed), whether by withholding, direct payment
to the Company, or otherwise.
c. Change in Control. Notwithstanding anything in
this Agreement to the contrary, in the event of a Change in Control, all
restrictions shall lapse as of the date of the Change in Control. A "Change in
Control" shall occur if:
i. any "person", as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), is or becomes the "beneficial owner", as
such term is used in Rule 13d-3 under the Exchange Act, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such person any securities acquired
directly from the Company or its affiliates) representing 25% or more
of the combined voting power of the Company's then outstanding
securities, excluding any person who becomes such a beneficial owner in
connection with a transaction described in clause (A) of paragraph
(iii) below; or
ii. the following individuals cease for
any reason to constitute a majority of the number of directors then
serving: individuals who, on the date hereof, constitute the Board and
any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by
the Board or nomination for election by the Company's stockholders was
approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on the date
hereof or whose appointment, election or nomination for election was
previously so approved or recommended; or
iii. there is consummated a merger or
consolidation of the Company or any direct or indirect subsidiary of
the Company with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof), at least 60% of the combined voting power of the securities
of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (B) a
merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in
which no person is or becomes the "beneficial owner", directly or
indirectly, of securities of the Company (not including in the
securities "beneficially owned", as such term is used in Rule 13d-3
under the Exchange Act, by such person any securities acquired directly
from the Company or its affiliates) representing 25% or more of the
combined voting power of the Company's then outstanding securities; or
iv. the stockholders of the Company
approve a plan of complete liquidation or dissolution of the Company or
there is consummated an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets, other than
a sale or disposition by the Company of all or substantially all of the
Company's assets to an entity, at least 60% of the combined voting
power of the voting securities of which are owned by stockholders of
the Company in substantially the same proportions as their ownership of
the Company immediately prior to such sale.
5. Rights of a Stockholder. From and after the Date of
Grant and for so long as the Restricted Stock is held by or for the benefit of
the Grantee, the Grantee shall have all the rights of a stockholder of the
Company with respect to the Restricted Stock, including, but not limited to, the
right to receive dividends and the right to vote such shares of Restricted
Stock.
6. Cessation of Service. In the event of the Cessation
of Service (as defined below), the shares of Restricted Stock and any and all
accrued but unpaid dividends that at that time have not been released from the
Restricted Period, shall be forfeited to the Company without payment of any
consideration by the Company, and neither the Grantee nor any of his successors,
heirs, assigns, or personal representatives shall thereafter have any further
rights or interests in such shares of Restricted Stock or certificates.
The "Cessation of Service" means the cessation of all services of
Grantee to the Company which shall be deemed to occur [at the time of Grantee's
termination of employment by the Company for any reason.] [at such time that the
Grantee no longer serves as a director of the Company for any reason.] [at such
time that the Grantee no longer serves as an executive officer of the Company
for any reason.] [at such time that the Grantee no longer serves as a Consultant
for any reason. For the avoidance of doubt, the cessation of Grantee's service
as a Consultant shall be deemed to occur upon the earlier of (i) the cessation
of the Grantee's employment with ACM, or (ii) the later of the termination or
regular expiration of (A) the Management Agreement or (B) the Origination Period
(as defined in the Management Agreement).]
[Insert the following Section 7 in the Restricted Stock Agreement with
each director and executive officer:
7. Representations and Warranties of the Grantee. The
Grantee hereby
represents and warrants to the Company and to each officer, director,
controlling person and agent of the Company:
a. The Grantee is an individual "accredited
investor", as defined in Rule 501(a)(4) under the Securities Act of 1933, as
amended (the "Securities Act"), in that the Grantee is a director, executive
officer or general partner of the Company.
b. The Grantee is acquiring the Restricted Stock not
with a view to distribution or resale thereof or with any present intention of
offering or selling the shares of Restricted Stock in violation of the
Securities Act, the Plan, this Agreement or the Articles of Incorporation of the
Company and the Grantee will not sell or offer to sell or otherwise transfer the
shares of Restricted Stock in violation of the Securities Act, the Plan, this
Agreement or the Articles of Incorporation of the Company.
c. The Grantee acknowledges that the Grantee has been
provided an opportunity to examine all documents and ask questions of, and has
received answers thereto from the Company and its representatives regarding the
business, management, and financial affairs of the Company and its subsidiaries,
and the Grantee has obtained all information requested by him or her of the
Company and its subsidiaries with respect to the acquisition of the Restricted
Stock.
d. The Grantee has reviewed the terms and conditions
of the Plan, provided to the Grantee by the Company, and the Grantee has
conducted his or her own examination of the Company, the offering of the
Restricted Stock and the Plan, including the merits and risks involved, in
making an investment decision with respect to the Restricted Stock. The Grantee
represents that the offering of the Restricted Stock was made only through
direct, personal communication between the Grantee and the Company and its
representatives and not through public solicitation or advertising.
e. The Grantee understands that (i) the shares of
Restricted Stock have not been registered under the Securities Act, in reliance
on an exemption from the registration requirements of the Securities Act
pursuant to Section 4(2) thereof; (ii) the Company has no obligation to register
the Restricted Stock under the Securities Act or any state securities laws;
(iii) the shares or Restricted Stock are subject to strict restrictions on
transferability and may only be transferred in accordance with the Plan, this
Agreement, the Articles of Incorporation of the Company and the Securities Act;
(iv) the certificates, if any, representing shares of the Restricted Stock will
bear a legend to such effect, and (v) the Company will make a notation on its
transfer books to such effect.
f. The Grantee is able to bear the economic risk of
an investment in the Restricted Stock and has adequate income independent of any
income produced from an investment in the Restricted Stock to sustain a loss of
all of his or her investment in the Restricted Stock without economic hardship
if such loss should occur.
g. The Grantee is a bona fide resident and
domiciliary of the state set forth on the signature page hereof and has no
present intention to become a resident of any other state or jurisdiction.
h. The Grantee acknowledges that the Company will
rely upon the Grantee's acknowledgements, representations and warranties set
forth in this Agreement, and the Grantee agrees to notify the Company promptly
if any representation or warranty in this Agreement ceases to be accurate and
complete.]
8. Certificates. Restricted Stock granted herein may be
evidenced in such manner as the Administrator shall determine. If certificates
representing the shares of Restricted Stock are registered in the name of the
Grantee, then the Company shall retain physical possession of the certificate.
9. Legends. All certificates representing any of the
shares of Restricted Stock subject to the provisions of this Agreement shall
have endorsed thereon the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS UPON TRANSFER AS SET FORTH IN A
RESTRICTED STOCK AGREEMENT, DATED AS OF [INSERT DATE OF
AGREEMENT], BETWEEN THE COMPANY AND THE HOLDER OF THE SHARES,
A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY."
10. Tax Consequences. Set forth below is a brief summary
as of the Date of Grant of certain United States federal tax consequences of the
award of the Restricted Stock. THIS SUMMARY DOES NOT ADDRESS SPECIFIC STATE,
LOCAL OR FOREIGN TAX CONSEQUENCES THAT MAY BE APPLICABLE TO GRANTEE. GRANTEE
UNDERSTANDS THAT THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE.
The Grantee shall recognize ordinary income at the time or
times the restrictions lapse with respect to the shares of Restricted Stock that
have been released from the Restricted Period in an amount equal to the Fair
Market Value (as such value is determined in accordance with Section 1(k) of the
Plan) of such shares of Restricted Stock on each such date and the Company shall
be required to collect all the applicable withholding taxes with respect to such
income. The obligations of the Company under the Plan are conditioned on your
making arrangements for the payment of any such taxes.
11. Section 83(b) Election. The Grantee hereby
acknowledges that he has been informed that, with respect to the grant of
Restricted Stock, an election may be filed by the Grantee with the Internal
Revenue Service, within 30 days of the Date of Grant, electing pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as amended, to be taxed
currently on the Fair Market Value of the Restricted Stock on the Date of Grant.
THE GRANTEE ACKNOWLEDGES THAT IT IS THE GRANTEE'S SOLE RESPONSIBILITY AND NOT
THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN
IF THE GRANTEE REQUESTS THE
COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON THE GRANTEE'S BEHALF.
BY SIGNING THIS AGREEMENT, THE GRANTEE REPRESENTS THAT HE HAS REVIEWED WITH HIS
OWN TAX ADVISORS THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THAT HE IS RELYING SOLELY ON
SUCH ADVISORS AND NOT ON ANY STATEMENTS OR REPRESENTATIONS OF THE COMPANY OR ANY
OF ITS AGENTS. THE GRANTEE UNDERSTANDS AND AGREES THAT HE (AND NOT THE COMPANY)
SHALL BE RESPONSIBLE FOR ANY TAX LIABILITY THAT MAY ARISE AS A RESULT OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
12. Termination of this Agreement. Upon termination of
this Agreement, all rights of the Grantee hereunder shall cease.
13. Miscellaneous.
a. Notices. Any notice required or permitted under
this Agreement shall be deemed given when delivered personally, or when
deposited in a United States Post Office, postage prepaid, addressed, as
appropriate, to the Grantee either at his address herein below set forth or such
other address as he may designate in writing to the Company, or to the Company
to the attention of the Secretary, at the Company's address or such other
address as the Company may designate in writing to the Grantee.
b. Failure to Enforce Not a Waiver. The failure of
the Company or the Grantee to enforce at any time any provision of this
Agreement shall in no way be construed to be a waiver of such provision or of
any other provision hereof.
c. Governing Law. This Agreement shall be governed by
and construed according to the laws of the State of New York without giving
effect to the choice of law principles thereof.
d. Amendments. This Agreement may be amended or
modified at any time by an instrument in writing signed by the parties hereto.
e. Agreement Not a Contract of Employment. Neither
the grant of Restricted Stock, this Agreement nor any other action taken in
connection herewith shall constitute or be evidence of any agreement or
understanding, express or implied, that the Grantee is an employee of the
Company or any subsidiary of the Company.
f. Entire Agreement; Plan Controls. This Agreement
and the Plan contain the entire understanding and agreement of the parties
hereto concerning the subject matter hereof, and supersede all earlier
negotiations and understandings, written or oral, between the parties hereto
with respect thereto. This Agreement is made under and subject to the provisions
of the Plan, and all of the provisions of the Plan are hereby incorporated by
reference into this Agreement. In the event of any conflict between the
provisions of this Agreement and the provisions of the Plan, the provisions of
the Plan shall govern. By
signing this Agreement, the Grantee confirms that he has received a copy of the
Plan and has had an opportunity to review the contents thereof.
g. Captions. The captions and headings of the
sections and subsections of this Agreement are included for convenience only and
are not to be considered in construing or interpreting this Agreement.
h. Counterparts. This Agreement may be executed in
counterparts, each of which when signed by the Company or the Grantee will be
deemed an original and all of which together will be deemed the same agreement.
i. Assignment. The Company may assign its rights and
delegate its duties under this Agreement. If any such assignment or delegation
requires consent of any state securities authorities, the parties hereto agree
to cooperate in requesting such consent. This Agreement shall inure to the
benefit of the successors and assigns of the Company and, subject to the
restrictions on transfer herein set forth, be binding upon the Grantee, his
heirs, executors, administrators, successors and assigns.
j. Severability. This Agreement will be severable,
and the invalidity or unenforceability of any term or provision hereof will not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any invalid or unenforceable term or
provision, the parties hereto intend that there be added as a part of this
Agreement a valid and enforceable provision as similar in terms to such invalid
or unenforceable provision as may be possible.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ARBOR REALTY TRUST, INC.
By: ________________________
Name:
Title:
The undersigned hereby accepts and agrees to all the terms and
provisions of the foregoing Agreement.
GRANTEE:
___________________________
[Insert Name of Grantee]
Number of Shares of Restricted Stock: [Insert Number of Shares]
Address: ______________
______________
______________
State/Province of Residence: _________________
Social Security Number: ______________________
EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, [Insert Name of Grantee] (the "Grantee") hereby
assigns and transfers unto Arbor Realty Trust, Inc., a Maryland corporation (the
"Company"), ____________ shares of Company's common stock, par value $0.01 per
share, standing in his name on the books of said corporation represented by
Certificate No. _____ herewith and does hereby irrevocably constitute and
appoint the Secretary to transfer the said stock on the books of the within
named corporation with full power of substitution in the premises.
This Assignment Separate from Certificate may be used only in
accordance with the Restricted Stock Agreement (the "Agreement") between the
Company and the Grantee dated [Insert Date of Agreement].
Dated: _____________, _____ ____________________________
[Insert Name of Grantee]
INSTRUCTIONS: Please do not fill in any blanks other than the signature line.
The purpose of this Assignment Separate from Certificate is to return the shares
to the Company in the event the Grantee forfeits any of such shares as set forth
in the Agreement, without requiring additional signatures on the part of the
Grantee. This Assignment Separate from Certificate must be delivered to the
Company with the above Certificate No. _____.
EXHIBIT B
JOINT ESCROW INSTRUCTIONS
[Insert Date of Agreement]
Arbor Realty Trust, Inc.
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Attention:
Dear Mr. :
As Escrow Agent for both Arbor Realty Trust, Inc., a Maryland
corporation (the "Company"), and [Insert Name of Grantee] ("Grantee") of a
certain number of shares of the Company's common stock, $0.01 par value per
share (the "Shares") granted by the Company to the Grantee pursuant to the terms
of that certain Restricted Stock Agreement between the Company and Grantee,
dated [Insert Date of Agreement] (the "Agreement") you are hereby authorized and
directed to hold the documents delivered to you pursuant to the terms of the
Agreement, in accordance with the instructions set forth below. Except as
otherwise expressly set forth herein, these instructions shall be construed in
accordance with the provisions of the Agreement and any capitalized terms not
otherwise defined herein shall have the definitions set forth in the Agreement.
1. In the event that the Grantee forfeits any Shares pursuant
to the Agreement, you are directed (a) to date the Assignment Separate From
Certificate necessary for the transfer to the Company, (b) to fill in the number
of Shares being transferred, and (c) to deliver same, together with the
certificate evidencing the Shares to be transferred, to the Company or its
assignee.
2. Grantee hereby irrevocably authorizes the Company to
deposit with you any certificates evidencing the Shares to be held by you
hereunder and any additions and substitutions to said Shares as set forth in the
Agreement. Grantee does hereby irrevocably constitute and appoint you as
Grantee's attorney-in-fact and agent for the term of this escrow to execute with
respect to such Shares all documents necessary or appropriate to make such
Shares negotiable and to complete any transaction herein contemplated, including
but not limited to, the filing with any applicable state blue sky authority of
any required applications for consent to, or notice of transfer of, the Shares.
Subject to the provisions of this Section 2, Grantee shall exercise all rights
and privileges of a shareholder of the Company while the stock is being held by
you.
3. Upon written request of the Grantee, unless the Grantee has
forfeited Shares pursuant to Section 6 of the Agreement, you will deliver to
Grantee a certificate or certificates representing the aggregate number of
Shares that are not then subject to the Restricted Period. Within 60 days after
Grantee's Cessation of Service as defined in
Section 6 of the Agreement, you will deliver to Grantee, or Grantee's
representative, as the case may be, a certificate or certificates representing
the aggregate number of Shares held or issued pursuant to the Agreement and not
forfeited to the Company or its assignees pursuant to the Agreement.
4. If at the time of termination of this escrow you should
have in your possession any documents, securities, or other property belonging
to Grantee, you shall deliver all of the same to Grantee and shall be discharged
of all further obligations hereunder.
5. Your duties hereunder may be altered, amended, modified or
revoked only by a writing signed by all of the parties hereto.
6. You shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
you to be genuine and to have been signed or presented by the proper party or
parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Grantee while acting in
good faith, and any act done or omitted by you pursuant to the advice of your
own attorneys shall be conclusive evidence of such good faith.
7. You are hereby expressly authorized to disregard any and
all warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law and are hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case you obey or comply with any such order, judgment or decree, you
shall not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
8. You shall not be liable in any respect on account of the
identity, authorities or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
9. You shall not be liable for the outlawing of any rights
under the Statute of Limitations with respect to these Joint Escrow Instructions
or any documents deposited with you.
10. You shall be entitled to employ such legal counsel and
other experts as you may deem necessary and proper to advise you in connection
with your obligations hereunder, may rely upon the advice of such counsel, and
may pay such counsel reasonable compensation therefor.
11. Your responsibilities as Escrow Agent hereunder shall
terminate if you shall cease to be an officer or agent of the Company or if you
shall resign by written notice to each party. In the event of any such
termination, the Company shall appoint a successor Escrow Agent.
12. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
13. It is understood and agreed that should any dispute arise
with respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such disputes shall have been settled either by mutual written agreement
of the parties concerned or by a final order decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
14. All notices and other communications under these Joint
Escrow Instructions shall be in writing and shall be given by facsimile or first
class mail, certified or registered with return receipt requested, and shall be
deemed to have been duly given three days after mailing or 24 hours after
transmission by facsimile to the respective parties named below at the following
addresses or at such other addresses as a party may designate by ten day's
advance written notice to each of the other parties hereto:
If to Company or to the
Escrow Agent:
Arbor Realty Trust, Inc.
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Attention: Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
If to the Grantee: ______________________
______________________
______________________
Facsimile: ________
15. By signing these Joint Escrow Instructions, you become a
party hereto only for the purpose of said Joint Escrow Instructions; you do not
become a party to the Agreement.
16. This instrument shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and permitted
assigns.
17. These Joint Escrow Instructions shall be governed by the
internal substantive laws, but not the choice of law rules, of the State of New
York.
GRANTEE: ARBOR REALTY TRUST, INC.
____________________________ By: ___________________________
[Insert Name of Grantee] Name:
Title:
____________________________
Print Name
____________________________
____________________________
Residence Address
ESCROW AGENT:
__________________________
Secretary
EXHIBIT C
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include in taxpayer's gross income
for the current taxable year the amount of any compensation taxable to taxpayer
in connection with taxpayer's receipt of the property described below:
1. The name address, taxpayer identification number and taxable year of
the undersigned are as follows:
NAME OF TAXPAYER: __________________________________________________
NAME OF SPOUSE: ____________________________________________________
ADDRESS: ___________________________________________________________
IDENTIFICATION NO. OF TAXPAYER: ____________________________________
IDENTIFICATION NO. OF SPOUSE: ______________________________________
TAXABLE YEAR: _________________________________
2. The property with respect to which the election is made is described as
follows: _______ shares (the "Shares") of the Common Stock of Arbor Realty
Trust, Inc. (the "Company").
3. The date on which the property was transferred is: _____________, 20__.
4. The property is subject to the following restrictions:
The Shares may not be transferred and are subject to forfeiture under the terms
of an agreement between the taxpayer and the Company. These restrictions lapse
upon the satisfaction of certain conditions in such agreement.
5. The fair market value at the time of transfer, determined without
regard to any restriction other than a restriction which by its terms will never
lapse, of such property is: $ ______________.
6. The amount (if any) paid for such property is: $ ______________.
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services
in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
except with the consent of the Commissioner.
Dated: _________________, 20__ _____________________
Signature of Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: _________________, 20__ _____________________
Signature of Spouse
of Taxpayer