FORM OF NOMINEE PARTICIPATION AND INDEMNIFICATION AGREEMENT
Exhibit 6
Arbor
Realty Trust, Inc. ("Arbor"),
a Maryland
corporation, and the person named on the signature page hereof as the
"Nominee"
(the "Nominee"),
intending
to be legally bound, hereby agree as follows:
1. Participation
in Proxy Solicitation. Nominee hereby
agrees
to serve as
a member of a slate of nominees (the
"Slate") to stand for election as a director of CBRE Realty Finance,
Inc. ("CBRE"), a Maryland corporation,
in connection with a proxy solicitation (the "Proxy
Solicitation") to be
conducted by Arbor in respect of the 2008 annual meeting of stockholders
of CBRE
(including any adjournment,
or postponement,
rescheduling or continuation
thereof or any
special
meeting held in lieu thereof), and to serve as a director
of CBRE if elected
pursuant to the Proxy Solicitation. Nominee agrees
to solicit
proxies in such manner as Arbor may request from time to time in support
of
Nominee’s
election. In no event shall
any
Nominee purchase any
securities of CBRE
without Arbor's prior written
consent.
2. Information
and Consent. Nominee acknowledges
that
Arbor has provided to Nominee a questionnaire
(a "Questionnaire") in
which Nominee
will provide Arbor with information
necessary for Arbor to make appropriate disclosure to CBRE
and for Arbor to use in
creating the proxy materials to be sent to stockholders of CBRE and filed
with
the Securities and Exchange Commission (“SEC”)
in
connection with the Proxy
Solicitation. Nominee
agrees
(i) to
promptly complete and sign the Questionnaire
and return it to
the person indicated therein, and (ii) that Nominee’s
responses
in the Questionnaire will be
true, complete and correct in all respects. In addition, Nominee
agrees
that, concurrently with Nominee’s
execution of this Agreement,
Nominee
will execute and return to Arbor Nominee’s
consent to being nominated for election
as a director of CBRE and, if elected, consent to serve
as a director of CBRE in the form of
Exhibit A
hereto. Nominee
acknowledges and agrees that
Arbor may: (i)
forward
Nominee’s
consent to CBRE and (ii)
in Arbor’s
discretion, disclose the
information provided by Nominee
in the
Questionnaire as well as
the existence and contents of this Agreement, including,
without
limitation, to CBRE
and
in the proxy materials to
be filed with the
SEC
and mailed to CBRE stockholders in
connection with the Proxy Solicitation.
3. Fees
and
Expenses. Arbor
will pay Nominee a one-time
fee of $5,000
in consideration
for
serving as a nominee. In addition, Arbor will
pay, or cause to be
paid, the entire expense
of the Proxy Solicitation,
including attorneys'
and
proxy solicitors' fees and any costs
relating to the
preparation and mailing
of
materials relating to the Proxy Solicitation. Nominee
will not receive any
consideration from Arbor for Nominee’s
services as a director of CBRE if
elected.
4. Indemnification. To
the fullest extent
permitted by Maryland
General Corporation
Law, as amended ("MGCL"),
and other applicable law,
Arbor agrees to
indemnify Nominee against and hold
Nominee harmless from any and all liabilities, losses, claims, damages
and
expenses (including reasonable attorneys' fees and expenses) arising
out of Nominee’s participation
in the Proxy
Solicitation; provided,
however,
that Arbor
shall not be liable in any such case to
the extent that any such liability, loss, claim, damage, or expense
arises (i) out
of any
inaccurate written information
supplied by Nominee for
inclusion in proxy
solicitation materials or any other
filings made with any federal or state governmental agency or (ii) from
bad faith, willful misconduct or
gross negligence on Nominee's part. Promptly after receipt by Nominee
of notice of any claim or
the commencement of any action, proceeding or investigation in respect
of which
indemnity or reimbursement may be sought as provided above, Nominee will
notify
Arbor
in writing of the receipt or
commencement thereof, but the failure to notify Arbor
shall
not relieve Arbor
from any obligation or liability which
he
may have pursuant to this Agreement or
otherwise except to the extent that such omission materially prejudices
Arbor's
rights. In case any
such action, proceeding
or
investigation is
brought against Nominee, Arbor
will be entitled to participate therein
and to assume the defense thereof with counsel of Arbor’s
choice who shall be reasonably
satisfactory to Nominee. After notice from Arbor
to Nominee of Arbor's
election to assume the defense thereof,
Arbor will
not be liable to Nominee under this
Agreement for any legal expenses subsequently incurred for services rendered
by
any other counsel retained by Nominee in connection with the defense
being
conducted by counsel chosen by Arbor. For
the avoidance of doubt, Arbor
shall not be responsible for any
settlement of any claim against Nominee
covered by this indemnity without
Arbor’s
prior written
consent. Notwithstanding
anything to the contrary
contained herein, Arbor
shall not indemnify Nominee
for any action taken by or on behalf of Nominee that occurs prior to
the date
hereof or subsequent to the conclusion of the Proxy Solicitation or such
earlier
time as Nominee is no longer a nominee on the Slate for election to
CBRE’s
board of directors
(the "CBRE
Board")
or for any actions taken by Nominee as
a director of CBRE if Nominee is elected.
5. Nonexclusivity.
The rights of Nominee hereunder to
indemnification shall be in addition to any other indemnification rights
the
Nominee may have (including,
if elected to the
CBRE Board,
under
the Articles of Amendment
and
Restatement or
Amended and Restated Bylaws of CBRE or
the MGCL or otherwise). To
the extent that
a change in the
MGCL (whether by
statute or
judicial decision) permits greater indemnification by
agreement than would be
afforded currently under this Agreement, it is the intent of the parties
hereto
that the Nominee shall enjoy by this Agreement the greater benefits so
afforded
by such change.
2
6. Fiduciary
Duties. Each of
Arbor and Nominee recognize
that should Nominee be elected to the board of directors of CBRE, all actions taken
in
Nominee’s
capacity as a director of CBRE shall
be governed by applicable law and Nominee’s
fiduciary duties to CBRE and the
stockholders of CBRE, and there is no agreement
between Arbor and
Nominee governing the decisions Nominee will make as a director of
CBRE if elected.
7. No
Construction of Employment
or
Partnership Relationship. Nothing contained
herein
shall be construed as giving Nominee any right to be retained in
the employ of
Arbor or
any of its affiliates
or associates
or construed to create any partnership
or similar relationship among Arbor and
Nominee, or to empower or authorize
any Nominee to act on behalf of or otherwise to bind or obligate Arbor
or any of Arbor’s
affiliates or associates.
8. No
Duplication of
Payments. Arbor shall
not be liable under this Agreement
to make any indemnification payment in connection with any claim made
against
Nominee to the extent that Nominee has otherwise actually received payment
(under any insurance
policy, Articles of
Amendment and Restatement
or Amended and Restated
Bylaws of CBRE or
otherwise) of the amounts otherwise
indemnifiable hereunder.
9. Subrogation.
In the event of any payment to Nominee
under this Agreement
relating to a claim indemnified hereunder, Arbor
shall be subrogated to the extent of
such payment to all of the rights of recovery of Nominee, and Nominee
shall take
all actions requested by Arbor
which Arbor deems
necessary to secure such rights,
including, without
limitation, the
execution of all necessary
documents.
10. Governing
Law. This
Agreement shall be governed by and construed by and enforced in accordance
with
the laws of the State of Maryland
applicable to contracts to be performed
in such state without
giving effect to the principles of conflicts of law thereof or of any
other
jurisdiction. Each of the parties
hereto
(a) consents
to submit itself to the personal
jurisdiction of any federal court located in the City of Baltimore,
Maryland, or
any Maryland state court located in
the city of Baltimore, Maryland,
in the event any dispute arises out
of this Agreement,
(b) agrees that
it shall
not attempt to deny or defeat such personal jurisdiction by motion or
other
request for leave from any such court and (c)
agrees that it shall
not bring any action relating to this Agreement in any court other than
a
federal or state court sitting in the City of Baltimore,
Maryland.
3
11. Binding
Effect. This Agreement
shall be binding upon and inure to the benefit of and be enforceable
by the parties
hereto and their respective successors, assigns, spouses, heirs, and
personal and legal
representatives.
12. Severability. The
provisions in this
Agreement shall be severable in the
event that any of the provisions
hereof (including any
provision within a single section, paragraph or sentence) are held by
a court of
competent jurisdiction to be invalid, void or otherwise unenforceable,
and the
remaining provisions shall remain enforceable to the fullest extent permitted
by
law. Furthermore, to the
fullest extent possible, the provisions of this Agreement (including,
without
limitation, each portion of this Agreement containing any provision held
to be
invalid, void or otherwise unenforceable, that is not itself invalid,
void
or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid,
void or unenforceable.
13. Miscellaneous. This
Agreement (i) may only
be modified by a written instrument executed by each party hereto,
(ii) sets forth the
parties' entire agreement with respect to the subject matter hereof,
and
supersedes any prior or contemporaneous arrangements, agreements
or understandings, written or oral, with respect to said subject matter,
and
(iii) may be executed in
one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument. All notices given hereunder
shall be in writing and shall be deemed to have been duly given when
delivered
personally or mailed by postage prepaid
certified mail, return receipt requested, to the addresses specified
for such
purposes by any party hereto.
4
IN
WITNESS WHEREOF, each of the parties hereto, intending to be legally
bound
hereby, has executed and delivered this Agreement, as of the date set
forth
below such party’s signature below.
|
ARBOR
REALTY TRUST, INC.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Date:
|
|||
|
NOMINEE
|
||
|
Name
(Print)
|
||
|
Address:
|
||
|
Date:
|
||
[Nominee
Participation and Indemnification Agreement Signature Page]
EXHIBIT
A
FORM
OF CONSENT NOTICE
January___,
2008
CBRE
Realty Finance, Inc.
000
Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxx,
XX 00000
Attention: Xxxxx
X. Xxx, Secretary
Dear
Xx. Xxx:
You
are hereby notified that the undersigned consents to (i) being named
as a
nominee in the notice provided by Arbor Realty Trust, Inc. ("Arbor")
of its
intention to nominate the undersigned as a director of CBRE Realty Finance,
Inc.
("CBRE") at the 2008 annual meeting of stockholders, or any other meeting
of
stockholders held in lieu thereof, and any adjournments, postponements,
reschedulings or continuations thereof (the "Annual Meeting"), (ii) being
named
as a nominee in any proxy statement filed by Arbor in connection with
the
solicitation of proxies or written consents for election of the undersigned
at
the Annual Meeting, and (iii) serving as a director of CBRE if elected
at the
Annual Meeting.
|
Very
truly yours,
|
||
|
Name:
|
||
