EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
ARBOR REALTY TRUST, INC.
AND
ARBOR COMMERCIAL MORTGAGE, LLC
TABLE OF CONTENTS
1. CERTAIN DEFINITIONS............................................................................... 3
2. DEMAND REGISTRATIONS.............................................................................. 5
(a) Right to Request Registration.............................................................. 5
(b) Number of Demand Registrations............................................................. 5
(c) Priority on Demand Registrations........................................................... 5
(d) Restrictions on Demand Registrations....................................................... 6
(e) Selection of Underwriters.................................................................. 7
(f) Other Registration Rights.................................................................. 7
(g) Effective Period of Demand Registrations................................................... 7
3. PIGGYBACK REGISTRATIONS........................................................................... 7
(a) Right to Piggyback......................................................................... 7
(b) Priority on Primary Registrations.......................................................... 8
(c) Priority on Secondary Registrations........................................................ 8
(d) Selection of Underwriters.................................................................. 8
(e) Other Registrations........................................................................ 8
4. SHELF REGISTRATIONS............................................................................... 8
5. HOLDBACK AGREEMENT................................................................................ 9
6. REGISTRATION PROCEDURES........................................................................... 10
7. REGISTRATION EXPENSES............................................................................. 13
8. INDEMNIFICATION................................................................................... 14
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS....................................................... 16
10. RULE 144.......................................................................................... 16
11. MISCELLANEOUS..................................................................................... 16
(a) Notices.................................................................................... 16
(b) No Waivers................................................................................. 17
(c) Expenses................................................................................... 17
(d) Successors and Assigns..................................................................... 17
(e) Governing Law.............................................................................. 17
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(f) Jurisdiction............................................................................... 18
(g) Waiver of Jury Trial....................................................................... 18
(h) Counterparts; Effectiveness................................................................ 18
(i) Entire Agreement........................................................................... 18
(j) Captions................................................................................... 18
(k) Severability............................................................................... 18
(l) Amendments................................................................................. 19
(m) Aggregation of Stock....................................................................... 19
(n) Equitable Relief........................................................................... 19
ii
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made and entered into as of July
1, 2003, between Arbor Realty Trust, Inc., a Maryland corporation (the
"Company"), and Arbor Commercial Mortgage, LLC, a New York limited liability
company ("ACM").
In consideration of the mutual covenants and agreements herein
contained and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. CERTAIN DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any Person means any other Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Person. The term "control" (including the
terms "controlled by" and "under common control with") as used with respect to
any Person means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Business Day" means any day on which commercial banks are open for
business in New York, New York.
"Common Stock" means common stock, par value $.01 per share, of the
Company.
"Contribution Agreement" means the contribution agreement, dated as of
July 1, 2003, by and among ACM, the Company, and Arbor Realty Limited
Partnership, a Delaware limited partnership (the "Operating Partnership").
"Conversion Shares" means any of the shares of Common Stock issuable
upon redemption of the Partnership Units.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means any holder of record of Registrable Common Stock (as
defined below) and any transferees of such Registrable Common Stock from such
Holders. For purposes of this Agreement, the Company may deem and treat the
registered holder of Registrable Common Stock as the Holder and absolute owner
thereof, and the Company shall not be affected by any notice to the contrary.
"Partnership Units" means operating partnership units of the Operating
Partnership.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, incorporated organization,
association, corporation, institution, public benefit corporation, government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof) or any other entity.
"Prospectus" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Common Stock covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
"Redemption Date" shall have the meaning set forth in the Operating
Partnership Agreement.
"Registrable Common Stock" means the Conversion Shares upon original
issuance thereof and at all times subsequent thereto, including upon the
transfer thereof by the original Holder or any subsequent Holder and any
securities issued in respect of such securities by reason of or in connection
with any exchange for or replacement of such securities or any stock dividend,
stock distribution, stock split, purchase in any rights offering or in
connection with any combination of shares, recapitalization, merger or
consolidation, or any other equity securities issued pursuant to any other pro
rata distribution with respect to the Common Stock, until, in the case of any
such securities, the earliest to occur of (i) the date on which it has been
registered effectively pursuant to the Securities Act and disposed of in
accordance with the Registration Statement relating to it or (ii) the date on
which either it is distributed to the public pursuant to Rule 144 or is saleable
pursuant to Rule 144(k) promulgated by the Commission pursuant to the Securities
Act. All references herein to a "Holder" or "Holder of Registrable Common Stock"
shall include the holder or holders of Partnership Units to the extent of the
Conversion Shares then underlying such Partnership Units. For purposes of
determining the number of shares of Registrable Common Stock held by a Holder
and the number of shares of Registrable Common Stock outstanding, for purposes
of this Agreement (including the definition of "Holder") but not for any other
purpose, any holder of record of Partnership Units shall be deemed to be a
Holder of the number of Conversion Shares issuable upon conversion of such
Partnership Units and all such Conversion Shares shall be deemed to be
outstanding shares of Registrable Common Stock.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Common Stock pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all materials incorporated by reference in such Registration
Statement.
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"Rule 415" means Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" shall have the meaning set forth in
Section 4 hereof.
"underwritten registration or underwritten offering" means a
registration in which securities of the Company are sold to underwriters for
reoffering to the public.
2. DEMAND REGISTRATIONS.
(a) Right to Request Registration. Any time after the Redemption
Date any Holder or Holders who together hold a majority of the Registrable
Common Stock ("Initiating Holders") may request registration under the
Securities Act of all or part of the Registrable Common Stock ("Demand
Registration") provided, that if the Company is eligible to use a Shelf
Registration Statement (as defined in Section 4 hereof), the Holders shall be
required to request that the Company register their Registrable Common Stock on
a Shelf Registration Statement rather than requesting Demand Registrations and
shall not be entitled to request any Demand Registrations while such Shelf
Registration is effective and available for registration of the Registrable
Common Stock.
Within 10 days after receipt of any such request for Demand
Registration, the Company shall give written notice of such request to all other
Holders of Registrable Common Stock and shall, subject to the provisions of
Section 2(d) hereof, include in such registration all such Registrable Common
Stock with respect to which the Company has received written requests for
inclusion therein within 20 days after the receipt of the Company's notice.
(b) Number of Demand Registrations. Subject to the provisions of
Section 2(a), the Initiating Holders of Registrable Common Stock shall be
entitled to request an aggregate of six (6) Demand Registrations. A registration
shall not count as one of the permitted Demand Registrations (i) until it has
become effective, (ii) if the Initiating Holder(s) requesting such registration
is not able to register and sell at least 50% of the Registrable Common Stock
requested by such Initiating Holder(s) to be included in such registration or
(iii) in the case of a Demand Registration that would be the last permitted
Demand Registration requested hereunder, if the Initiating Holder(s) requesting
such registration is not able to register and sell all of the Registrable Common
Stock requested to be included by such Initiating Holder in such registration.
(c) Priority on Demand Registrations. If the managing underwriters
of the requested Demand Registration advise the Company in writing that in their
opinion the number of shares of Registrable Common Stock proposed to be included
in any such
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registration exceeds the number of securities that can be sold in such offering
and/or that the number of shares of Registrable Common Stock proposed to be
included in any such registration would adversely affect the price per share of
the Company's equity securities to be sold in such offering, the Company shall
include in such registration only the number of shares of Registrable Common
Stock that, in the opinion of such managing underwriters, can be sold. If the
number of shares that can be sold is less than the number of shares of
Registrable Common Stock proposed to be registered, the amount of Registrable
Common Stock to be so sold shall be allocated among the Holders pro rata on the
basis of Registrable Common Stock offered for such registration by each Holder
electing to participate in such registration. If the number of shares that can
be sold exceeds the number of shares of Registrable Common Stock proposed to be
sold, such excess shall be allocated pro rata among the other holders of Common
Stock, if any, desiring to participate in such registration based on the amount
of such Common Stock initially requested to be registered by such holders or as
such holders may otherwise agree.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within three months after the
effective date of a previous Demand Registration, a previous Shelf Registration
(as hereinafter defined) or a previous registration under which the Initiating
Holders had piggyback rights pursuant to Section 3 hereof wherein the Initiating
Holders were permitted to register, and sold, at least 50% of the shares of
Registrable Common Stock requested to be included therein. In no event shall the
Company be obligated to effect more than two (2) Demand Registrations hereunder
in any single eighteen (18) month period, with the first such period measured
from the date of the first Demand Registration and ending on the same date
during the eighteenth month following such Demand Registration, whether or not a
Business Day. The Company may (i) postpone for up to ninety (90) days the filing
or the effectiveness of a Registration Statement for a Demand Registration if,
based on the good faith judgment of the Company's board of directors, such
postponement or withdrawal is necessary in order to avoid premature disclosure
of a matter the board has determined would not be in the best interest of the
Company to be disclosed at such time or (ii) postpone the filing of a Demand
Registration in the event the Company shall be required to prepare audited
financial statements as of a date other than its fiscal year end (unless the
stockholders requesting such registration agree to pay the expenses of such an
audit); provided, however, that in no event shall the Company withdraw a
Registration Statement under clause (i) after such Registration Statement has
been declared effective; and provided, further, however, that in any of the
events described in clause (i) or (ii) above, the Initiating Holders requesting
such Demand Registration shall be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration shall not count as one of the
permitted Demand Registrations. The Company shall provide written notice to the
Initiating Holders requesting such Demand Registration of (x) any postponement
or withdrawal of the filing or effectiveness of a Registration Statement
pursuant to this Section 2(d), (y) the Company's decision to file or seek
effectiveness of such Registration Statement following such withdrawal or
postponement and (z) the effectiveness of such Registration Statement. The
Company may defer the filing of a particular Registration Statement pursuant to
this Section 2(d) only once.
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(e) Selection of Underwriters. If any of the Registrable Common
Stock covered by a Demand Registration or a Shelf Registration pursuant to
Section 4 hereof is to be sold in an underwritten offering, the Initiating
Holders shall have the right to select the managing underwriter(s) to administer
the offering subject to the approval of the Company, which will not be
unreasonably withheld.
(f) Other Registration Rights. The Company shall not grant to any
Person the right, other than as set forth herein and to employees of the Company
with respect to registrations on Form S-8 (or any successor forms thereto), to
request the Company to register any securities of the Company except such rights
as are not more favorable than or inconsistent with the rights granted to the
Holders herein. In the event the Company grants rights that are more favorable
other than as permitted under the first sentence of this subsection 2(f), the
Company will make such provisions available to the Holders and will enter into
any amendments necessary to confer such rights on the Holders.
(g) Effective Period of Demand Registrations. After any Demand
Registration filed pursuant to this Agreement has become effective, the Company
shall use its best efforts to keep such Demand Registration effective for a
period equal to 180 days from the date on which the SEC declares such Demand
Registration effective (or if such Demand Registration is not effective during
any period within such 180 days, such 180-day period shall be extended by the
number of days during such period when such Demand Registration is not
effective), or such shorter period that shall terminate when all of the
Registrable Common Stock covered by such Demand Registration has been sold
pursuant to such Demand Registration. If the Company shall withdraw any Demand
Registration pursuant to subsection (d) of this Section 2 (a "Withdrawn Demand
Registration"), the Initiating Holders of the Registrable Common Stock remaining
unsold and originally covered by such Withdrawn Demand Registration shall be
entitled to a replacement Demand Registration that (subject to the provisions of
this Section 2) the Company shall use its best efforts to keep effective for a
period commencing on the effective date of such Demand Registration and ending
on the earlier to occur of the date (i) which is 180 days from the effective
date of such Demand Registration and (ii) on which all of the Registrable Common
Stock covered by such Demand Registration has been sold. Such additional Demand
Registration otherwise shall be subject to all of the provisions of this
Agreement.
3. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. At any time after the Redemption Date,
whenever the Company proposes to register any of its common equity securities
under the Securities Act (other than a registration statement on Form S-8 or on
Form S-4 or any similar successor forms thereto), whether for its own account or
for the account of one or more stockholders of the Company, and the registration
form to be used may be used for any registration of Registrable Common Stock (a
"Piggyback Registration"), the Company shall give prompt written notice (in any
event within 10 business days after its receipt of notice of any exercise of
other demand registration rights) to all Holders of its intention to effect such
a registration and, subject to Sections 3(b) and 3(c), shall include in such
registration all Registrable Common Stock with respect to which the Company has
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received written requests for inclusion therein within 20 days after the receipt
of the Company's notice. The Company may postpone or withdraw the filing or the
effectiveness of a Piggyback Registration at any time in its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number that can be sold in such offering and/or that the number of shares of
Registrable Common Stock proposed to be included in any such registration would
adversely affect the price per share of the Company's equity securities to be
sold in such offering, the underwriting shall be allocated among the Company and
all Holders pro rata on the basis of the Common Stock and Registrable Common
Stock offered for such registration by the Company and each Holder,
respectively, electing to participate in such registration.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of a holder of
the Company's securities other than Registrable Common Stock ("Non-Holder
Securities"), and the managing underwriters advise the Company in writing that
in their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in such offering and/or that
the number of shares of Registrable Common Stock proposed to be included in any
such registration would adversely affect the price per share of the Company's
equity securities to be sold in such offering, the underwriting shall be
allocated among the holders of Non-Holder Securities and all Holders pro rata on
the basis of the Non-Holder Securities and Registrable Common Stock offered for
such registration by the holder of Non-Holder Securities and each Holder,
respectively, electing to participate in such registration.
(d) Selection of Underwriters. If any Piggyback Registration is an
underwritten primary offering, the Company shall have the right to select the
managing underwriter or underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a
Registration Statement with respect to Registrable Common Stock pursuant to
Sections 2 or 4 hereof or pursuant to this Section 3, and if such previous
registration has not been withdrawn or abandoned, the Company shall not be
obligated to cause to become effective any other registration of any of its
securities under the Securities Act, whether on its own behalf or at the request
of any holder or holders of such securities, until a period of at least three
months has elapsed from the effective date of such previous registration.
4. SHELF REGISTRATIONS.
(a) At the Holders' election (such election to be made if the
Holders may not elect to exercise any Demand Registrations, subject to Section
4(b) below), if at any time that the Company is eligible to use Form S-11, Form
S-3 or any successor thereto then available to the Company providing for the
resale pursuant to Rule 415 from time to time by the Holders of any and all
Registrable Common Stock (a "Shelf Registration
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Statement") any Holder or Holders requests that the Company file a Shelf
Registration Statement for a public offering of all or any portion of the
Registrable Common Stock held by such Holders, then the Company shall use its
best efforts to register under the Securities Act pursuant to a Shelf
Registration Statement, for public sale in accordance with the method of
disposition specified in such notice, the number of shares of Registrable Common
Stock specified in such notice. Whenever the Company is required by this Section
4 to use its best efforts to effect the registration of Registrable Common
Stock, each of the procedures and requirements of Section 2 (including but not
limited to the requirement that the Company notify all Holders from whom notice
has not been received and provide them with the opportunity to participate in
the offering) shall apply to such registration. There is no limitation on the
number of registrations pursuant to this Section 4 that the Company is obligated
to effect until the earliest to occur of the date on which all of the
Registrable Common Stock either (i) has been registered effectively pursuant to
the Securities Act and disposed of in accordance with the Registration Statement
relating to it or (ii) distributed to the public pursuant to Rule 144 or is
saleable pursuant to Rule 144(k) promulgated by the Commission pursuant to the
Securities Act.
(b) If at any time the Company is not eligible to use a Shelf
Registration Statement, the Holders may during such time exercise Demand
Registration Rights, regardless of any previous exercise of their rights under
Section 4(a).
5. HOLDBACK AGREEMENT.
In connection with an underwritten primary or secondary offering to the
public, each Holder agrees not to sell or otherwise transfer or dispose of any
shares of Registrable Common Stock (or other securities) of the Company held by
them (other than Registrable Common Stock included in such offering in
accordance with the terms hereof) for a period equal to the lesser of one
hundred eighty (180) days following the effective date of a registration
statement of the Company filed under the Securities Act or such shorter period
as the managing underwriter shall agree to, provided that all other stockholders
who own more than five percent (5%) of the outstanding Common Stock of the
Company and all officers and directors of the Company enter into similar
agreements. Such agreement shall be in writing in form satisfactory to the
Company and the managing underwriter. The Company may impose stop-transfer
instructions with respect to the shares of Registrable Common Stock (or other
securities) subject to the foregoing restriction until the end of said period.
The foregoing shall not apply to (i) transactions relating to shares of Common
Stock acquired in open market transactions after the effective date of the
underwritten primary or secondary offering to the public, (ii) the exercise of
any warrants or stock options to purchase shares of capital stock of the Company
(provided that such limitation does not affect limitations on any actions
specified in the first sentence of this Section 5 with respect to the shares
issuable upon such exercise), (iii) transfers to Affiliates of a Holder where
the transferee agrees to be bound by the terms hereof, (iv) to any corporation
controlled by a Holder or trust for the direct or indirect benefit of the
undersigned or the immediate family of a Holder, provided that in the case of a
transfer to any such trust that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein, and provided further that any such
transfer shall not involve a disposition for value other than for the benefit of
the
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undersigned's immediate family, (v) charitable dispositions of Securities, or
(vi) as pledges of Registrable Common Stock in connection with the purchase of
such Registrable Common Stock upon the exercise of employee stock options
following termination of employment with the Company, provided that the lender
or lenders to whom such Registrable Common Stock are pledged agree in writing to
be bound by the terms of this restriction.
6. REGISTRATION PROCEDURES.
Whenever the Holders request that any Registrable Common Stock be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Common Stock in
accordance with the intended methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Common Stock and use its best efforts to cause such
Registration Statement to become effective as soon as practicable thereafter;
and before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, furnish to the Holders of Registrable Common Stock covered
by such Registration Statement and the underwriter or underwriters, if any,
copies of all such documents proposed to be filed, including documents
incorporated by reference in the Prospectus and, if requested by such Holders,
the exhibits incorporated by reference, and such Holders shall have the
opportunity to object to any information pertaining to such Holders that is
contained therein and the Company will make the corrections reasonably requested
by such Holders with respect to such information prior to filing any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto;
(b) prepare and file with the SEC such amendments and supplements
to such Registration Statement and the Prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective for a period
of not less than 180 days, in the case of a Demand Registration or a Shelf
Registration, or such shorter period as is necessary to complete the
distribution of the securities covered by such Registration Statement and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement;
(c) furnish to each seller of Registrable Common Stock such number
of copies of such Registration Statement, each amendment and supplement thereto,
the Prospectus included in such Registration Statement (including each
preliminary Prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Common Stock
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Common Stock under such other securities or blue sky laws of such jurisdictions
as any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or
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advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Common Stock owned by such seller (provided,
that the Company will not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this subparagraph (d), (ii) subject itself to taxation in any such jurisdiction
or (iii) consent to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Common Stock, at any
time when a Prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of any event as a result of which the
Prospectus included in such Registration Statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of such Registrable Common Stock, such Prospectus
shall not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(f) in the case of an underwritten offering, enter into such
customary agreements (including underwriting agreements in customary form) and
take all such other actions as the Holders of a majority of number of shares of
the Registrable Common Stock being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Common Stock (including, without limitation, effecting a stock split or a
combination of shares and making members of senior management of the Company
available to participate in, and cause them to cooperate with the underwriters
in connection with, "road-show" and other customary marketing activities
(including one-on-one meetings with prospective purchasers of the Registrable
Common Stock)) and cause to be delivered to the underwriters and the sellers, if
any, opinions of counsel to the Company in customary form, covering such matters
as are customarily covered by opinions for an underwritten public offering as
the underwriters may request and addressed to the underwriters and the sellers;
(g) make available, for inspection by any seller of Registrable
Common Stock, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement;
(h) to use its best efforts to cause all such Registrable Common
Stock to be listed on each securities exchange on which securities of the same
class issued by the Company are then listed or, if no such similar securities
are then listed, on Nasdaq or a national securities exchange selected by the
Company;
(i) provide a transfer agent and registrar for all such
Registrable Common Stock not later than the effective date of such Registration
Statement;
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(j) if requested, cause to be delivered, immediately prior to the
effectiveness of the Registration Statement (and, in the case of an underwritten
offering, at the time of delivery of any Registrable Common Stock sold pursuant
thereto), letters from the Company's independent certified public accountants
addressed to each selling Holder (unless such selling Holder does not provide to
such accountants the appropriate representation letter required by rules
governing the accounting profession) and each underwriter, if any, stating that
such accountants are independent public accountants within the meaning of the
Securities Act and the applicable rules and regulations adopted by the SEC
thereunder, and otherwise in customary form and covering such financial and
accounting matters as are customarily covered by letters of the independent
certified public accountants delivered in connection with primary or secondary
underwritten public offerings, as the case may be;
(k) make generally available to its stockholders a consolidated
earnings statement (which need not be audited) for the 12 months beginning after
the effective date of a Registration Statement as soon as reasonably practicable
after the end of such period, which earnings statement shall satisfy the
requirements of an earning statement under Section 11(a) of the Securities Act;
(l) promptly notify each seller of Registrable Common Stock and
the underwriter or underwriters, if any:
(i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any Prospectus
supplement or post-effective amendment to the
Registration Statement has been filed and, with
respect to the Registration Statement or any
post-effective amendment, when the same has become
effective;
(ii) of any written request by the SEC for amendments or
supplements to the Registration Statement or
Prospectus;
(iii) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to the
issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement; and
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification
of any Registrable Common Stock for sale under the
applicable securities or blue sky laws of any
jurisdiction.
At all times after the Company has filed a registration statement with
the SEC pursuant to the requirements of either the Securities Act or the
Exchange Act, the Company shall file all reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and take such further action as any Holders may
reasonably request, all to the extent required to
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enable such Holders to be eligible to sell Registrable Common Stock pursuant to
Rule 144 (or any similar rule then in effect).
The Company may require each seller of Registrable Common Stock as to
which any registration is being effected to furnish to the Company any other
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each seller of Registrable Common Stock agrees by having its stock
treated as Registrable Common Stock hereunder that, upon notice of the happening
of any event as a result of which the Prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits any material
fact necessary to make the statements therein not misleading (a "Suspension
Notice"), such seller will forthwith discontinue disposition of Registrable
Common Stock until such seller is advised in writing by the Company that the use
of the Prospectus may be resumed and is furnished with a supplemented or amended
Prospectus as contemplated by Section 6(e) hereof, and, if so directed by the
Company, such seller will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such seller's possession, of
the Prospectus covering such Registrable Common Stock current at the time of
receipt of such notice; provided, however, that such postponement of sales of
Registrable Common Stock by the Holders shall not exceed ninety (90) days in the
aggregate in any one year. If the Company shall give any notice to suspend the
disposition of Registrable Common Stock pursuant to a Prospectus, the Company
shall extend the period of time during which the Company is required to maintain
the Registration Statement effective pursuant to this Agreement by the number of
days during the period from and including the date of the giving of such notice
to and including the date such seller either is advised by the Company that the
use of the Prospectus may be resumed or receives the copies of the supplemented
or amended Prospectus contemplated by Section 6(e). In any event, the Company
shall not be entitled to deliver more than three (3) Suspension Notices in any
one year.
7. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, listing application fees, printing expenses, transfer agent's and
registrar's fees, cost of distributing Prospectuses in preliminary and final
form as well as any supplements thereto, and fees and disbursements of counsel
for the Company and all independent certified public accountants and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses") (but not including any underwriting discounts or
commissions attributable to the sale of Registrable Common Stock or fees and
expenses of more than one counsel representing the Holders of Registrable Common
Stock), shall be borne by the Company. In addition, the Company shall pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expense
of any annual audit or quarterly
13
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
they are to be listed.
(b) In connection with each registration initiated hereunder
(whether a Demand Registration, Shelf Registration or a Piggyback Registration),
the Company shall reimburse the Holders covered by such registration or sale for
the reasonable fees and disbursements of one law firm chosen by the Holders of a
majority of the number of shares of Registrable Common Stock included in such
registration or sale.
(c) The obligation of the Company to bear the expenses described
in Section 7(a) and to reimburse the Holders for the expenses described in
Section 7(b) shall apply irrespective of whether a registration, once properly
demanded, if applicable, becomes effective, is withdrawn or suspended, is
converted to another form of registration and irrespective of when any of the
foregoing shall occur; provided, however, that Registration Expenses for any
Registration Statement withdrawn solely at the request of a Holder of
Registrable Common Stock (unless withdrawn following postponement of filing by
the Company in accordance with Section 2(d)(i) or (ii)) or any supplements or
amendments to a Registration Statement or Prospectus resulting from a
misstatement furnished to the Company by a Holder shall be borne by such Holder.
8. INDEMNIFICATION.
(a) The Company shall indemnify, to the fullest extent permitted
by law, each Holder, its officers, directors and Affiliates and each Person who
controls such Holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses arising out of or based upon
any untrue or alleged untrue statement of material fact contained in any
Registration Statement, Prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading or any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act or applicable "blue sky" laws, except insofar as the same are made
in reliance and in conformity with information relating to such Holder furnished
in writing to the Company by such Holder expressly for use therein or caused by
such Holder's failure to deliver to such Holder's immediate purchaser a copy of
the Registration Statement or Prospectus or any amendments or supplements
thereto (if the same was required by applicable law to be so delivered) after
the Company has furnished such Holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the Holders.
(b) In connection with any Registration Statement in which a
Holder of Registrable Common Stock is participating, each such Holder shall
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such Registration Statement
or Prospectus and, shall indemnify, to the fullest extent permitted by law, the
Company, its officers, directors, Affiliates, and each Person who controls the
Company (within the meaning of the
14
Securities Act) against all losses, claims, damages, liabilities and expenses
arising out of or based upon any untrue or alleged untrue statement of material
fact contained in the Registration Statement, Prospectus or preliminary
Prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that the
same are made in reliance and in conformity with information relating to such
Holder furnished in writing to the Company by such Holder expressly for use
therein or caused by such Holder's failure to deliver to such Holder's immediate
purchaser a copy of the Registration Statement or Prospectus or any amendments
or supplements thereto (if the same was required by applicable law to be so
delivered) after the Company has furnished such Holder with a sufficient number
of copies of the same; provided, however, that the obligation to indemnify shall
be several, not joint and several, among such Holders and the liability of each
such Holder shall be in proportion to and limited to the net amount received by
such Holder from the sale of Registrable Common Stock pursuant to such
Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party there may be one or more legal or equitable defenses
available to such indemnified party which are in addition to or may conflict
with those available to another indemnified party with respect to such claim.
Failure to give prompt written notice shall not release the indemnifying party
from its obligations hereunder.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to this
Section 8 is due in accordance with the terms hereof, but is held by a court to
be unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified Person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
which result in such losses, claims, damages, liabilities or expenses as well as
15
any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified Person on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified party, and by such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no event shall the liability of any selling Holder be
greater in amount than the amount of net proceeds received by such Holder upon
such sale or the amount for which such indemnifying party would have been
obligated to pay by way of indemnification if the indemnification provided for
under Section 8(a) or 8(b) hereof had been available under the circumstances.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any registration hereunder that is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
10. RULE 144.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and it will take such further action
as any Holder may reasonably request to make available adequate current public
information with respect to the Company meeting the current public information
requirements of Rule 144(c) under the Securities Act (to the extent such
information is available), to the extent required to enable such Holder to sell
Registrable Common Stock without registration under the Securities Act within
the limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Holder, the
Company will deliver to such Holder a written statement as to whether it has
complied with such information and requirements.
11. MISCELLANEOUS.
(a) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile or similar writing) and
shall be given,
If to the Company:
Arbor Realty Trust, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx: Xxxxxxxxx X. Xxxxxx
00
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx & Bird LLP
000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No.(000) 000-0000
If to a transferee Holder, to the address of such Holder set forth in
the transfer documentation provided to the Company;
in each case with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or such other address or facsimile number as such party (or transferee) may
hereafter specify for the purpose by notice to the other parties. Each such
notice, request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section and the appropriate facsimile confirmation is received or (b) if
given by any other means, when delivered at the address specified in this
Section.
(b) No Waivers. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(c) Expenses. Except as otherwise provided for herein or otherwise
agreed to in writing by the parties, all costs and expenses incurred in
connection with the preparation of this Agreement shall be paid by the Company.
(d) Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, it being understood that subsequent Holders
of the Registrable Common Stock are intended third party beneficiaries hereof.
(e) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of New York, without regard to
principles of conflicts of law.
17
(f) Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in the County and State of New York, and each
of the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 10(a) shall be deemed
effective service of process on such party.
(g) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(h) Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
(i) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the transactions contemplated
herein. No provision of this Agreement or any other agreement contemplated
hereby is intended to confer on any Person other than the parties hereto any
rights or remedies.
(j) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(k) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
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(l) Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
without the prior written consent of the holders of a majority of the Conversion
Shares (as constituted on the date hereof); provided, further, that the consent
or agreement of the Company shall be required with regard to any termination,
amendment, modification or supplement of, or waivers or consents to departures
from, the terms hereof, which affect the Company's obligations hereunder.
(m) Aggregation of Stock. All Registrable Common Stock held by or
acquired by any Affiliated Persons will be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
(n) Equitable Relief. The parties hereto agree that legal remedies
may be inadequate to enforce the provisions of this Agreement and that equitable
relief, including specific performance and injunctive relief, may be used to
enforce the provisions of this Agreement.
[Execution Page Follows]
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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
ARBOR REALTY TRUST, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer, Treasurer and Secretary
ARBOR COMMERCIAL MORTGAGE, LLC
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
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