EXHIBIT 4.5
EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
ARBOR REALTY TRUST, INC.
AND
JMP SECURITIES LLC
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of July 1, 2003, by and between ARBOR REALTY TRUST, INC., a
Maryland corporation (the "Company") and JMP SECURITIES LLC, a Delaware limited
liability company ("JMP"), for the benefit of (i) JMP and purchasers from JMP as
initial purchaser under the Purchase/Placement Agreement (as defined below) of
units of the Company (the "Units"), each of which consists of five (5) shares of
the Company's $.01 par value per share common stock ("Common Stock") and one
warrant (each a "Warrant" or collectively the "Warrants") to purchase a share of
Common Stock; (ii) the participants ("Participants") in the private placement by
the Company of the Units; and (iii) each of their respective direct and indirect
transferees.
This Agreement is made pursuant to the Purchase/Placement Agreement
(the "Purchase/Placement Agreement"), dated June 26, 2003, by and between the
Company, Arbor Realty Limited Partnership, Arbor Commercial Mortgage, LLC and
JMP. In order to induce JMP to enter into the Purchase/Placement Agreement, the
Company has agreed to provide the registration rights provided for in this
Agreement to JMP, the Participants and their direct and indirect transferees.
The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Purchase/Placement Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
Additional Dividends: As defined in Section 5(d) hereof.
Affiliate: As to any specified Person, (i) any Person directly or
indirectly controlling, controlled by or under common control with such other
Person and (ii) any executive officer, director, trustee or general partner of
such Person.
Business Day: With respect to any act to be performed hereunder, each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York or other applicable place where such
act is to occur are authorized or obligated by applicable law, regulation or
executive order to close.
Commission: The Securities and Exchange Commission.
Common Stock: As defined in the preamble.
Company: As defined in the preamble.
Controlling Person: As defined in Section 6(a) hereof.
End Of Suspension Notice: As defined in Section 5(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
Holder: Each record owner of any Registrable Securities from time to
time, including JMP and its Affiliates.
Indemnified Party: As defined in Section 6(c) hereof.
Indemnifying Party: As defined in Section 6(c) hereof.
Ipo Registration Statement: As defined in Section 2 hereof.
Liabilities: As defined in Section 6(a) hereof.
NASD: The National Association of Securities Dealers, Inc.
Participants: As defined in the preamble.
Partnership Units: As defined in the preamble.
Person: An individual, partnership, corporation, trust, unincorporated
organization, government or agency or political subdivision thereof, or any
other legal entity.
Proceeding: An action, claim, suit or proceeding (including without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or, to the knowledge of the Person subject thereto,
threatened.
Prospectus: The prospectus included in any Registration Statement,
including any preliminary prospectus, and all other amendments and supplements
to any such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
Purchaser Indemnitee: As defined in Section 6(a) hereof.
Purchase/Placement Agreement: As defined in the preamble.
Registrable Securities: All or any portion of the Units, the shares of
Common Stock comprising the Units, the Warrants, and the shares of Common Stock
underlying the Warrants issued from time to time 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 (a) 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, (b) 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 or (c) the
date on which it is sold to the Company.
Registration Default: As defined in Section 5(d) hereof.
Registration Expenses: Any and all expenses incident to the performance
of or compliance with this Agreement, including, without limitation: (i) all
Commission, securities exchange, NASD registration, listing, inclusion and
filing fees, (ii) all fees and expenses incurred in connection with compliance
with international, federal or state securities or blue sky laws (including,
without limitation, any registration, listing and filing fees and reasonable
fees and disbursements of counsel in connection with blue sky qualification of
any of the Registrable Securities and the preparation of a blue sky memorandum
and compliance with the rules of the NASD), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, duplicating, printing,
delivering and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements, certificates and any other documents relating to the performance
under and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing or inclusion of any of the Registrable Securities on
any securities exchange or The Nasdaq Stock Market pursuant to Section 4(n) of
this Agreement, (v) the fees and disbursements of counsel for the Company and of
the independent public accountants (including, without limitation, the expenses
of any special audit and "cold comfort" letters required by or incident to such
performance), and reasonable fees and disbursements of one counsel for the
selling Holders and (vi) any fees and disbursements customarily paid in issues
and sales of securities (including the fees and expenses of any experts retained
by the Company in connection with any Registration Statement), but excluding
brokers' or underwriters' discounts and commissions, if any, relating to the
sale or disposition of Registrable Securities by a Holder.
Registration Statement: Any registration statement of the Company that
covers the resale of Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
Rule 144: Rule 144 promulgated by the Commission 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.
Rule 144A: Rule 144A promulgated by the Commission 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.
Rule 158: Rule 158 promulgated by the Commission 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.
Rule 415: Rule 415 promulgated by the Commission 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.
Rule 424: Rule 424 promulgated by the Commission 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.
Rule 429: Rule 429 promulgated by the Commission 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.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the Commission pursuant thereto.
Shelf Registration Statement: As defined in Section 2 hereof.
Suspension Event: As defined in Section 5(b) hereof.
Suspension Notice: As defined in Section 5(b) hereof.
Underwritten Offering: A sale of securities of the Company on a
firm-commitment basis to an underwriter or underwriters for reoffering to the
public.
Units: As defined in the Preamble
Warrants: As defined in the Preamble.
2. REGISTRATION RIGHTS
As set forth in Section 4 hereof, the Company agrees to file with the
Commission no later than December 31, 2003 and to use its best efforts to cause
to be declared effective by the Commission on or before December 31, 2003, but
in any event no later than June 30, 2004, either (i) a Registration Statement on
Form S-11 or such other form under the Securities Act providing for the initial
public offering of shares of Common Stock (an "IPO Registration Statement"),
which IPO Registration Statement will provide for the resale by the Holders of
any and all Registrable Securities (subject to Section 2(a)(ii) hereof) or (ii)
subject to Section 2(b) hereof, a shelf Registration Statement on Form S-11 or
such other form under the Securities Act 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 Securities (a "Shelf Registration Statement").
(a) IPO REGISTRATION. If the Company files an IPO Registration
Statement, the Company will notify each Holder of the proposed filing and afford
each Holder of Registrable Securities an opportunity to include in such IPO
Registration Statement all or any part of the Registrable Securities then held
by such Holder. Each Holder desiring to include in any such IPO Registration
Statement all or part of the Registrable Securities held by such Holder shall,
within twenty (20) days after receipt of the above-described notice from the
Company, so notify the Company of the number of Registrable Securities such
Holder wishes to include in such IPO Registration Statement and complete, sign
and return the selling stockholder questionnaire included with the notice.
(i) RIGHT TO TERMINATE REGISTRATION. The Company shall
have the right to terminate or withdraw any IPO Registration Statement
initiated by it prior to its effectiveness whether or not any Holder
has elected to include Registrable Securities in such registration.
(ii) UNDERWRITING. If an IPO Registration Statement is for
an Underwritten Offering, then the Company shall so advise the Holders
of Registrable Securities. In such event, the right of any such
Holder's Registrable Securities to be included in a registration
pursuant to this Section 2(a) shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting
agreement in customary form with the representatives of underwriters
selected for such underwriting and complete and execute any
questionnaires, powers of attorney, indemnities, 90 day lock-up
agreements, securities escrow agreements and other documents reasonably
required under the terms of such underwriting, and furnish to the
Company such information as the Company may reasonably request in
writing for inclusion in the Registration Statement; provided, however,
that no Holder shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other
than representations, warranties or agreements
regarding such Holder and such Holder's intended method of distribution
for the securities to be registered and any other representation
required by law. Notwithstanding any other provision of this Agreement,
if the representatives of the underwriters determine in good faith that
marketing factors require a limitation on the number of shares to be
underwritten, then the representatives of the underwriters may exclude
securities (including Registrable Securities of Holders) from the
registration, and the underwriting shall be allocated among the Company
and all Holders pro rata on the basis of Registrable Securities offered
for such registration by the Company and each Holder electing to
participate in such registration. If any Holder disapproves of the
terms of any such underwriting, such Holder may elect to withdraw
therefrom by notice to the Company and the underwriter, delivered at
least five (5) Business Days prior to the effective date of the
Registration Statement. Any Registrable Securities excluded or
withdrawn from such underwriting shall be excluded and withdrawn from
the registration.
(iii) HOLD-BACK AGREEMENT. By electing to include
Registrable Securities in any registration pursuant to this Section
2(a), the Holder of the Registrable Securities shall be deemed to have
agreed not to effect any public sale or distribution of securities of
the Company of the same or similar class or classes of the securities
included in the Registration Statement or any securities convertible
into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 or Rule 144A under the Securities Act, during
such periods as reasonably requested (but in no event for a period
longer than thirty (30) days prior to and one hundred eighty (180) days
following the effective date of the IPO Registration Statement) by the
representatives of the underwriters, if an Underwritten Offering, or by
the Company in any other registration.
(iv) REGISTRABLE SECURITIES NOT SOLD UNDER IPO
REGISTRATION STATEMENT. If (w) the Company terminates or withdraws the
IPO Registration Statement prior to its effectiveness or the
distribution of all Registrable Securities, if any, registered
thereunder, (x) the underwriters exercise their right pursuant to
Section 2(a)(ii) of this Agreement to exclude any Registrable
Securities from the IPO Registration Statement, (y) any Holder elects
to withdraw or not to include any Registrable Securities in the IPO
Registration Statement, or (z) any Registrable Securities are otherwise
not registered under and distributed pursuant to the IPO Registration
Statement, then the Company shall file a Shelf Registration Statement
relating to any Registrable Securities not registered under and
distributed pursuant to an IPO Registration Statement as soon as
practicable, but in no event later than (a) in the case of the
withdrawal or abandonment of the offering pursuant to the IPO
Registration Statement, the date which is the later of December 31,
2003 or thirty (30) days after the earlier of the withdrawal or
abandonment of the offering pursuant to the IPO Registration Statement
or (b) the date one hundred eighty (180) days after the consummation of
the offering pursuant to the IPO Registration Statement.
(b) SHELF REGISTRATION. If the Company elects to file a Shelf
Registration Statement or is otherwise required to file a Shelf Registration
Statement pursuant to this Section 2, it shall notify each Holder of the
proposed filing and afford each Holder an opportunity to include in such Shelf
Registration Statement all or any part of the Registrable Securities then held
by such Holder. Each Holder desiring to include in any such Shelf Registration
Statement all or part of the Registrable Securities held by such Holder shall,
within twenty (20) days after receipt of the above-described notice from the
Company, so notify the Company of the number of Registrable Securities such
Holder wishes to include in such Shelf Registration Statement and complete, sign
and return the selling stockholder questionnaire included with the notice. The
Company shall cause the Shelf Registration Statement to be declared effective by
the Commission no later than June 30, 2004 or, in the case of a Shelf
Registration Statement filed pursuant to Section 2(a)(iv), within eighty (80)
days after the filing thereof with the Commission. Any Shelf Registration
Statement shall provide for the resale from time of time, and pursuant to any
method or combination of methods legally available (including, without
limitation, an Underwritten Offering, a direct sale to purchasers, a sale
through brokers or agents, or a sale over the internet) by the Holders of any
and all Registrable Securities.
(c) EXPENSES. The Company shall pay all Registration Expenses in
connection with the registration of the Registrable Securities pursuant to this
Agreement. Each Holder participating in a registration pursuant to this Section
2 shall bear such Holder's proportionate share (based on the total number of
Registrable Securities sold in such registration) of all discounts, commissions
or other amounts payable to underwriters or brokers in connection with a
registration of Registrable Securities pursuant to this Agreement.
3. RULES 144 AND 144A REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission that may at any time permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
(a) make available adequate current public information, as defined
in Rule 144, at all times after the one year has elapsed from the date of this
Agreement and any Registrable Securities are not eligible for resale under Rule
144(k) promulgated by the Commission;
(b) file with the Commission in a timely manner all reports and
other documents required to be filed by the Company under the Securities Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements);
(c) so long as a Holder owns any Registrable Securities, if the
Company is not required to file reports and other documents under the Securities
Act and the Exchange Act, it will make available other information as required
by, and so long as necessary to permit sales of Registrable Securities pursuant
to, Rule 144 or Rule 144A; and
(d) so long as a Holder owns any Registrable Securities, to
furnish to the Holder promptly upon request a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at any time
prior to ninety (90) days after the effective date of the first Registration
Statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to the reporting requirements of the Exchange Act), a copy of
the most recent annual or quarterly report of the Company, and such other
reports and documents of the Company, and take such further actions, as a Holder
may reasonably request in availing itself of any Rule or regulation of the
Commission allowing a Holder to sell any such Registrable Securities without
registration.
4. REGISTRATION PROCEDURES
In connection with the obligations of the Company with respect to any
registration pursuant to this Agreement, the Company shall use its best efforts
to effect or cause to be effected the registration of the Registrable Securities
under the Securities Act to permit the sale of such Registrable Securities by
the Holder or Holders in accordance with the Holder's or Holders' intended
method or methods of distribution, and the Company shall:
(a) prepare and file with the Commission, as specified in this
Agreement, a Registration Statement, which Registration Statement shall comply
as to form in all material respects with the requirements of the applicable form
and include all financial statements required by the Commission to be filed
therewith, and use its best efforts to cause such Registration Statement to
become effective as soon as practicable after filing and to remain effective,
subject to Section 5 hereof, until the earlier of (i) the date on which all such
Registrable Securities are sold in accordance with the intended distribution of
such Registrable Securities, (ii) none of the Units, the shares of Common Stock
comprising the Units, the Warrants or the shares of Common Stock underlying the
Warrants or any portion thereof are Registrable Securities or (iii) the second
anniversary of the effective date of such Registration Statement (subject to
extension as provided in Section 5(c) hereof), provided, however, that the
Company shall not be required to cause any IPO Registration Statement to remain
effective for any period longer than ninety (90) days following the effective
date of such IPO Registration Statement (subject to extension as provided in
Section 5(c) hereof); provided, further, that if the Company has an effective
Shelf Registration Statement on Form S-11 under the Securities Act and becomes
eligible to use Form S-3 or such other short-form registration statement form
under the Securities Act, the Company may, upon thirty (30) Business Days prior
notice to all Holders of Registrable Securities, register any Registrable
Securities registered but not yet distributed under the effective Shelf
Registration Statement on such a short-form Shelf Registration Statement and,
once the short-form Shelf Registration Statement is declared effective,
de-register such shares under the previous Registration Statement or transfer
the filing fees from the previous Shelf Registration Statement (such transfer
pursuant to Rule 429, if applicable) unless any Holder of Registrable Securities
registered under the initial Shelf Registration Statement notifies the Company
within twenty (20) Business Days of receipt of the Company notice that such a
registration under a new Shelf Registration Statement and de-registration of the
initial Shelf Registration
Statement would interfere with its distribution of Registrable Securities
already in progress; the Company shall furnish at a reasonable time prior to the
filing thereof with the Commission, a copy of any Registration Statement and
each amendment or supplement, if any, to the Prospectus included therein
(including any documents incorporated by reference therein) and shall use its
best efforts to reflect in each such document, when so filed with the
Commission, such comments as JMP or such other representative of all the Holders
may reasonably propose.
(b) subject to Section 4(i) of this Agreement, (i) prepare and
file with the Commission such amendments and post-effective amendments to each
such Registration Statement as may be necessary to keep such Registration
Statement effective for the period described in Section 4(a) hereof; (ii) cause
each Prospectus contained therein to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424; and (iii)
comply in all material respects with the provisions of the Securities Act with
respect to the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof;
(c) furnish to the Holders of Registrable Securities, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities; the Company consents to the use
of such Prospectus, including each preliminary Prospectus, by the Holders of
Registrable Securities, if any, in connection with the offering and sale of the
Registrable Securities covered by any such Prospectus;
(d) use its best efforts to register or qualify, or obtain
exemption from the registration or qualification requirements for, all
Registrable Securities by the time the applicable Registration Statement is
declared effective by the Commission under all applicable state securities or
"blue sky" laws of such jurisdictions as JMP shall reasonably request in
writing, keep each such registration or qualification or exemption effective
during the period such Registration Statement is required to be kept effective
pursuant to Section 4(a) and do any and all other acts and things that may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction or to register as a broker
or dealer in such jurisdiction where it would not otherwise be required to
qualify but for this Section 4(d) and except as may be required by the
Securities Act, (ii) subject itself to taxation in any such jurisdiction, or
(iii) submit to the general service of process in any such jurisdiction;
(e) use its best efforts to cause all Registrable Securities
covered by such Registration Statement to be registered and approved by such
other governmental agencies or authorities as may be necessary to enable the
Holders thereof to consummate the disposition of such Registrable Securities;
(f) notify JMP and each Holder of Registrable Securities promptly
and, if requested by JMP or any Holder, confirm such advice in writing (i) when
a Registration Statement has become effective, when any post-effective
amendments become effective or upon the filing of a supplement to any
Prospectus, (ii) of the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any Proceeding for that purpose, (iii) of any
request by the Commission or any other federal or state governmental authority
for amendments or supplements to a Registration Statement or related Prospectus
or for additional information (such notice to be accompanied by an instruction
to suspend the use of the Prospectus until the requisite changes have been
made), (iv) of the happening of any event during the period a Registration
Statement is effective as a result of which such Registration Statement or the
related Prospectus or any document incorporated by reference therein contains
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, or any document incorporated by reference therein,
in light of the circumstances under which they were made) not misleading (such
notice to be accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made) and (v) at the request of any such
Holder, promptly to furnish to such Holder a reasonable number of copies of a
supplement to or an amendment of such Prospectus as may be necessary so that, as
thereafter delivered to the purchaser of such securities, such Prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(g) make every reasonable effort to avoid the issuance of, or if
issued, to obtain the withdrawal of, any order enjoining or suspending the use
or effectiveness of a Registration Statement or suspending the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, as promptly as practicable;
(h) upon request, furnish to each requesting Holder of Registrable
Securities, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment or supplement thereto (including
documents incorporated therein by reference or exhibits thereto, if requested);
(i) except as provided in Section 5, upon the occurrence of any
event contemplated by Section 4(f)(iv) hereof, prepare as promptly as
practicable a supplement or post-effective amendment to a Registration Statement
or the related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(j) if requested by the representative of the underwriters, if
any, or any Holders of Registrable Securities being sold in connection with such
offering, (i) as promptly as practicable incorporate in a Prospectus supplement
or post-effective amendment such information as the representative of the
underwriters, if any, or such Holders indicate relates to them or otherwise
reasonably request be included therein and (ii) make all required filings of
such Prospectus supplement or such post- effective amendment as soon as
practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(k) use its best efforts to furnish to each Holder of Registrable
Securities covered by a Registration Statement for an Underwritten Offering and
the underwriters a signed counterpart, addressed to each such Holder and the
underwriters of: (i) an opinion of counsel for the Company, dated as of the date
of each closing of the sale of Registrable Securities pursuant to such
Registration Statement for an Underwritten Offering, reasonably satisfactory to
the underwriters, covering such matters as are customarily covered in opinions
delivered to underwriters in underwritten public offerings of securities; and
(ii) a "comfort" letter, dated the effective date of such Registration Statement
for an Underwritten Offering and the date of each closing under the underwriting
agreement, signed by the independent public accountants who have certified the
Company's financial statements included in such Registration Statement for an
Underwritten Offering, covering substantially the same matters with respect to
such Registration Statement for an Underwritten Offering (and the Prospectus
included therein) and with respect to events subsequent to the date of such
financial statements, as are customarily covered in accountants' letters
delivered to underwriters in underwritten public offerings of securities and
such other financial matters as the underwriters may reasonably request;
(l) enter into customary agreements (including in the case of an
Underwritten Offering, an underwriting agreement in customary form) and take all
other action in connection therewith in order to expedite or facilitate the
distribution of the Registrable Securities included in such Registration
Statement and, in the case of an Underwritten Offering, make representations and
warranties to the underwriters in such form and scope as are customarily made by
issuers to underwriters in underwritten offerings, to make the same
representations and warranties to the Holders of Registrable Securities covered
by such Registration Statement and confirm the same to the extent customary if
and when requested;
(m) make available for inspection by one representative of the
Holders and the representative of any underwriters participating in any
disposition pursuant to a Registration Statement and one law firm and one
accounting firm retained by each representative of such Holders or underwriters,
all financial and other records, corporate documents and properties of the
Company and cause the officers, directors and employees of the Company to supply
all information reasonably requested by any such representative, the
representative of the underwriters, counsel thereto or accountants in connection
with a Registration Statement; provided, however, that such records, documents
or information that the Company determines, in good faith, to be confidential
and notifies such representatives, representative of the underwriters, counsel
thereto or accountants are confidential shall not be disclosed by the
representatives, representative of the underwriters, counsel thereto or
accountants unless (i) the disclosure of such records, documents or information
is necessary to avoid or correct a material misstatement or omission in a
Registration Statement or Prospectus, (ii) the release of such records,
documents or information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, or (iii) such records, documents or information
have been generally made available to the public by the Company;
(n) use its best efforts (including, without limitation, seeking
to cure any deficiencies cited by the exchange or market in the Company's
listing or inclusion application) to list or include all Registrable Securities
on the Nasdaq Stock Market (unless the Company qualifies and chooses to list all
Registrable Securities on the New York Stock Exchange, in which event the
Company shall use its best efforts to list all Registrable Securities on the New
York Stock Exchange);
(o) prepare and file in a timely manner all documents and reports
required by the Exchange Act and, to the extent the Company's obligation to file
such reports pursuant to Section 15(d) of the Exchange Act expires prior to the
expiration of the effectiveness period of the Registration Statement as required
by Section 4(a) hereof, the Company shall register the class of securities
represented by the Registrable Securities under the Exchange Act and shall
maintain such registration through the effectiveness period required by Section
4(a) hereof;
(p) provide a CUSIP number for the class of securities represented
by the Registrable Securities, not later than the effective date of the
Registration Statement;
(q) (i) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, (ii) make generally
available to its stockholders, as soon as reasonably practicable, earnings
statements covering at least twelve (12) months beginning after the effective
date of the Registration Statement that satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder, no later than forty-five (45)
days after the end of each fiscal year of the Company and (iii) not file any
Registration Statement or Prospectus or amendment or supplement to such
Registration Statement or Prospectus to which the Holders of at least 66 and
2/3% of Registrable Securities covered by any Registration Statement shall have
reasonably objected on the grounds that such Registration Statement or
Prospectus or amendment or supplement does not comply in all material respects
with the requirements of the Securities Act, such Holders having been furnished
with a copy thereof at least two (2) Business Days prior to the filing thereof;
(r) provide and cause to be maintained a registrar and transfer
agent for all Registrable Securities covered by any Registration Statement from
and after a date not later than the effective date of such Registration
Statement;
(s) in connection with any sale or transfer of the Registrable
Securities (whether or not pursuant to a Registration Statement) that will
result in the security being delivered no longer being Registrable Securities,
cooperate with the Holders and the representative of the underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing
the Registrable Securities to be sold, which certificates shall not bear any
transfer restrictive legends and to enable such Registrable Securities to be in
such denominations and registered in such names as the representative of the
underwriters, if any, or the Holders may request at least two (2) Business Days
prior to any sale of the Registrable Securities; and
(t) upon effectiveness of the first Registration Statement filed
under this Agreement, the Company will take such actions and make such filings
as are necessary to effect the registration of the Common Stock under the
Exchange Act simultaneously with or immediately following the effectiveness of
the Registration Statement.
The Company may require the Holders of Registrable Securities to
furnish to the Company such information regarding the proposed distribution by
such Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing or as shall be required to effect the registration
of the Registrable Securities and no Holder shall be entitled to be named as a
selling stockholder in any Registration Statement and no Holder shall be
entitled to use the Prospectus forming a part thereof if such Holder does not
provide such information to the Company.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4(f)(iii) or
4(f)(iv) hereof, such Holder will immediately discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus. If so directed
by the Company, such Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
5. BLACK-OUT PERIOD; ADDITIONAL DIVIDENDS
(a) Subject to the provisions of this Section 5 and a good faith
determination by a majority of the Board of Directors of the Company that it is
in the best interests of the Company to suspend the use of the Registration
Statement, following the effectiveness of a Registration Statement (and the
filings with any international, federal or state securities commissions), the
Company, by notice to JMP and to the Holders, may direct the Holders to suspend
sales of the Registrable Securities pursuant to the Registration Statement for a
period not to exceed thirty (30) days in any three month period or ninety (90)
days in the aggregate in any twelve (12) month period, if any of the following
events shall occur: (i) a primary Underwritten Offering by the Company where the
Company is advised by the representative of the underwriters for such
Underwritten Offering that the sale of Registrable Securities pursuant to the
Registration Statement would have a material adverse effect on the Company's
primary offering; or (ii) pending negotiations relating
to, or the consummation of, a transaction or the occurrence of an event (x) that
would require additional disclosure of material information by the Company in
the Registration Statement (or such filings) and which has not been so
disclosed, (y) as to which the Company has a bona fide business purpose for
preserving confidentiality, or (z) that renders the Company unable to comply
with Commission requirements, in each case under circumstances that would make
it unduly burdensome to cause the Registration Statement (or such filings) to
become effective or to promptly amend or supplement the Registration Statement
on a post-effective basis, as applicable. Upon the occurrence of any such
suspension, the Company shall use its best efforts to cause the Registration
Statement to become effective or to promptly amend or supplement the
Registration Statement on a post-effective basis or to take such action as is
necessary to make resumed use of the Registration Statement compatible with the
Company's best interests, as applicable, so as to permit the Holders to resume
sales of the Registrable Securities as soon as possible.
(b) Subject to the limitations in Section 5(a), in the case of an
event that causes the Company to suspend the effectiveness of a Registration
Statement pursuant to Section 5(a) (a "Suspension Event"), the Company shall
give notice (a "Suspension Notice") to JMP and to the Holders to suspend sales
of the Registrable Securities the Suspension Notice shall state that such
suspension shall continue only for so long as the Suspension Event or its effect
is continuing and the Company is taking all reasonable steps to terminate
suspension of the effectiveness of the Registration Statement as promptly as
possible. The Holders shall not effect any sales of the Registrable Securities
pursuant to such Registration Statement (or such filings) at any time after it
has received a Suspension Notice from the Company and prior to receipt of an End
of Suspension Notice. If so directed by the Company, each Holder will deliver to
the Company (at the expense of the Company) all copies other than permanent file
copies then in such Holder's possession of the Prospectus covering the
Registrable Securities at the time of receipt of the Suspension Notice. The
Holders may recommence effecting sales of the Registrable Securities pursuant to
the Registration Statement (or such filings) following further notice to such
effect (an "End of Suspension Notice") from the Company, which End of Suspension
Notice shall be given by the Company to the Holders and JMP in the manner
described above promptly following the conclusion of any Suspension Event and
its effect.
(c) If the Company shall give a Suspension Notice pursuant to this
Section 5, the Company agrees that it shall extend the period of time during
which the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from the date of the giving of
the Suspension Notice to and including the date when Holders shall have received
the End of Suspension Notice and copies of the supplemented or amended
Prospectus necessary to resume sales.
(d) If (i) the IPO Registration Statement, if required to be
filed, is not filed with the Commission on or prior to December 31, 2003, (ii)
the IPO Registration Statement is not declared effective by the Commission by
June 30, 2004, (iii) the Shelf Registration Statement, if required to be filed,
is not filed with the Commission on or
prior to the later of December 31, 2003, or thirty (30) days after the earlier
of the withdrawal or abandonment of the offering pursuant to the IPO
registration statement (iv) the Shelf Registration Statement, if required to be
filed, is not filed within one hundred eighty (180) days of the consummation of
the offering pursuant to the IPO Registration Statement, (v) the Shelf
Registration Statement is not declared effective by the Commission by June 30,
2004 or in the case of a Shelf Registration Statement required to be filed
pursuant to Section 2(a)(iv), the Shelf Registration Statement is not declared
effective by the Commission within eighty (80) days after the filing thereof or
(vi) after the IPO Registration Statement or the Shelf Registration Statement
has been declared effective such Registration Statement ceases to be effective
or usable in connection with resales of Registrable Securities during a period
in which it is required to be effective without being succeeded immediately by
any additional Registration Statement or post-effective amendment covering the
Registrable Securities, which has been filed and declared effective, a
"Registration Default" will be deemed to have occurred. In the case of a
Registration Default, the Company will pay additional dividends ("Additional
Dividends") to each holder of Registrable Securities who has complied with such
Holder's obligations under this Agreement. Additional Dividends will paid by the
Company out of funds required to be allocated and distributed to the entities
through which the Company holds its interest in Arbor Realty Limited
Partnership, a Delaware limited partnership (the "OP") out of the OP's income.
The amount of Additional Dividends payable during any quarter in which a
Registration Default has occurred and is continuing shall be $.0625 per share of
Common Stock which constitutes or underlies a Registrable Security (subject to
adjustment in the event of a stock split, stock recombination, stock dividend
and the like) and shall escalate at the end of such quarter and at the end of
each quarter thereafter by an additional $.0625 per share of Common Stock which
constitutes or underlies a Registrable Security (subject to adjustment in the
event of a stock split, stock recombination, stock dividend and the like);
provided that, such Additional Dividends shall not exceed $.25 per share of
Common Stock which constitutes or underlies a Registrable Security (subject to
adjustment in the event of a stock split, stock recombination, stock dividend
and the like) per quarter. Following the cure of all Registration Defaults,
Additional Dividends will cease to accrue with respect to such Registration
Default. To the extent a Registration Default is cured during a quarter, partial
Additional Dividends shall be payable for such quarter and shall be calculated
on the basis of a ninety day quarter consisting of three equal thirty day
months. All accrued Additional Dividends shall be paid by wire transfer of
immediately available funds or by federal funds check by the Company on the
first Business Day of each quarter following a Registration Default. In the
event that any Additional Dividends are not paid when due, such overdue
Additional Dividends, if any, shall bear interest until paid at the maximum
interest rate allowed by law, compounded quarterly. The parties hereto agree
that the Additional Dividends provided for in this Section 5(d) constitute a
reasonable estimate of the damages that may be incurred by Holders by reason of
a Registration Default.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless (i) JMP and
each Holder of Registrable Securities, (ii) each Person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act), any such Person (any of the Persons referred to in this clause
(ii) being hereinafter referred to as a "Controlling Person"), and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any such Person or any Controlling Person (any Person referred to in clause
(i), (ii) or (iii) may hereinafter be referred to as an "Purchaser Indemnitee"),
to the fullest extent lawful, from and against any and all losses, claims,
damages, judgments, actions, out-of-pocket expenses, and other liabilities (the
"Liabilities"), including without limitation and as incurred, reimbursement of
all reasonable costs of investigating, preparing, pursuing or defending any
claim or action, or any Proceeding by any governmental agency or body, commenced
or threatened, including the reasonable fees and expenses of counsel to any
Purchaser Indemnitee, joint or several, directly or indirectly related to, based
upon, arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus (as amended or supplemented if the Company shall have furnished to
such Purchaser Indemnitee any amendments or supplements thereto), or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
Liabilities arise out of or are based upon (x) any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Purchaser Indemnitee furnished to the Company
or any underwriter in writing by such Purchaser Indemnitee expressly for use
therein, (y) any untrue statement contained in or omission from a Prospectus if
a copy of the corrected Prospectus (as then amended or supplemented, if the
Company shall have furnished to or on behalf of the Holder participating in the
distribution relating to the relevant Registration Statement any amendments or
supplements thereto) was not sent or given by or on behalf of such Holder to the
Person asserting any such Liabilities who purchased Registrable Securities, if
such Prospectus (or Prospectus as amended or supplemented) is required by law to
be sent or given at or prior to the written confirmation of the sale of such
Shares to such Person and the untrue statement contained in or omission from
such Prospectus was corrected (or the Prospectus as amended or supplemented), or
(z) use of any Registration Statement, Prospectus or any preliminary Prospectus
during a period when a stop order has been issued in respect thereof or any
Proceeding for that purpose have been initiated, or use of a Prospectus or any
preliminary Prospectus has been suspended pursuant to Sections 4(f)(ii),
4(f)(iii), 4(f)(iv) or 5(a); provided, however, in each case, that the Company
provided prior notice of such stop order, initiation of Proceedings or
suspension. The Company shall notify the Holders promptly of the institution,
threat or assertion of any claim, Proceeding (including any governmental
investigation), or litigation of which it shall have become aware in connection
with the matters addressed by this Agreement which involves the Company or a
Purchaser Indemnitee. The indemnity provided for herein shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Purchaser Indemnitee.
(b) In connection with any Registration Statement in which a
Holder of Registrable Securities is participating, such Holder agrees, severally
and not jointly, to indemnify and hold harmless the Company, each Person who
signs the Registration Statement, each Person who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act and the respective partners, directors, officers, members, representatives,
employees and agents of such Person or Controlling Person to the same extent as
the foregoing indemnity from the Company to each Purchaser Indemnitee, but only
with reference to untrue statements or omissions or alleged untrue statements or
omissions made in reliance upon and in strict conformity with information
relating to such Purchaser Indemnitee furnished to the Company in writing by
such Purchaser Indemnitee expressly for use in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary Prospectus.
The liability of any Purchaser Indemnitee pursuant to this paragraph shall in no
event exceed the net proceeds received by such Purchaser Indemnitee from sales
of Registrable Securities giving rise to such obligations.
(c) If any suit, action, Proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to paragraph (a)
or (b) above, such Person (the "Indemnified Party"), shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party"), in
writing of the commencement thereof (but the failure to so notify an
Indemnifying Party shall not relieve it from any liability which it may have
under this Section 6, except to the extent the Indemnifying Party is materially
prejudiced by the failure to give notice), and the Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel reasonably satisfactory
to the Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may reasonably designate in such Proceeding and shall pay the
reasonable fees and expenses actually incurred by such counsel related to such
Proceeding. Notwithstanding the foregoing, in any such Proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party,
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed in writing to the contrary, (ii) the Indemnifying Party failed within a
reasonable time after notice of commencement of the action to assume the defense
and employ counsel reasonably satisfactory to the Indemnified Party, (iii) the
Indemnifying Party and its counsel do not actively and vigorously pursue the
defense of such action or (iv) the named parties to any such action (including
any impleaded parties), include both such Indemnified Party and the Indemnifying
Party, or any Affiliate of the Indemnifying Party, and such Indemnified Party
shall have been reasonably advised by counsel that, either (x) there may be one
or more legal defenses available to it which are different from or additional to
those available to the Indemnifying Party or such Affiliate of the Indemnifying
Party or (y) a conflict may exist between such Indemnified Party and the
Indemnifying Party or such Affiliate of the Indemnifying Party (in which case
the Indemnifying Party shall not have the right to assume nor direct the defense
of such action on behalf of such Indemnified Party, it being understood,
however, that the Indemnifying Party shall not, in connection with any one such
action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel), for all such Indemnified Parties, which firm shall be
designated, in the case of Purchaser Indemnities, in writing by those
Indemnified Parties who sold a majority of the Registrable Securities sold by
all such Indemnified Parties and any such separate firm for the Company, the
directors, the officers and such control Persons of the Company as shall be
designated in writing by the Company. The Indemnifying Party shall not be liable
for any settlement of any Proceeding effected without its written consent, which
consent shall not be unreasonably withheld, but if settled with such consent or
if there be a final, non-appealable judgment for the plaintiff, the Indemnifying
Party agrees to indemnify any Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened Proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b)
of this Section 6 is for any reason held to be unavailable to an Indemnified
Party in respect of any Liabilities referred to therein (other than by reason of
the exceptions provided therein) or is insufficient to hold harmless a party
indemnified thereunder, then each Indemnifying Party under such paragraphs, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such Liabilities
(i) in such proportion as is appropriate to reflect the relative benefits of the
Indemnified Party on the one hand and the Indemnifying Party(ies) on the other
in connection with the statements or omissions that resulted in such
Liabilities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Indemnifying Party(ies) and the Indemnified Party, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and any Purchaser Indemnitees 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 Company or by such Purchaser Indemnitees
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
(even if such indemnified parties were treated as one entity for such purpose),
or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph 6(d) above. The amount paid or payable
by an Indemnified Party as a result of any Liabilities referred to paragraph
6(d) shall be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, in no event
shall a Purchaser Indemnitee be required to contribute any amount in excess of
the amount by which proceeds received by such Purchaser Indemnitee from sales of
Registrable Securities exceeds the amount of any damages that such Purchaser
Indemnitee has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of this
Section 6, each Person, if any, who controls (within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act) JMP or a Holder of Registrable
Securities shall have the same rights to contribution as JMP or such Holder, as
the case may be, and each Person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act) the Company, and
each officer, director, partner, employee, representative, agent or manager of
the Company shall have the same rights to contribution as the Company. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or Proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 6 or otherwise, except to the extent that any party is materially
prejudiced by the failure to give notice. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act),
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 6 will be in addition to any liability which the indemnifying parties
may otherwise have to the indemnified parties referred to above. The Purchaser
Indemnitee's obligations to contribute pursuant to this Section 6 are several in
proportion to the respective number of Shares sold by each of the Purchaser
Indemnitees hereunder and not joint.
7. MARKET STAND-OFF AGREEMENT
Each Holder hereby agrees that it shall not, to the extent requested by
the Company or an underwriter of securities of the Company, sell or otherwise
transfer or dispose of any Registrable Securities or other shares of Common
Stock of the Company or any securities convertible into or exchangeable or
exercisable for shares of Common Stock of the Company then owned by such Holder
(other than to donees or partners of the Holder who agree to be similarly bound)
within thirty (30) days prior to and one hundred eighty (180) days following
either (x) the effective date of an IPO Registration Statement of the Company
filed under the Securities Act or (y) the date of an Underwritten Offering
pursuant to a Shelf Registration Statement of the Company filed under the
Securities Act; provided, however, that with respect to the one hundred eighty
(180)-day restriction that follows the effective date of an IPO Registration
Statement, such agreement shall not be applicable to Registrable Securities sold
pursuant to such Registration Statement.
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the
securities subject to this Section 7 and to impose stop transfer instructions
with respect to the Registrable Securities and such other securities of each
Holder (and the securities of every other Person subject to the foregoing
restriction) until the end of such period.
8. MARKET MAKING
In connection with the listing of the Registrable Securities, JMP shall
act as a market maker and shall use its reasonable efforts to engage additional
market makers as may be required under the rules and regulations of the Nasdaq
Stock Market or the New York Stock Exchange, as applicable. JMP shall have no
obligation to act as a market maker or use its reasonable efforts to engage
additional market makers after the Company completes a subsequent underwritten
public offering of its common shares.
9. TERMINATION OF THE COMPANY'S OBLIGATION
Subject to Section 11(j) of this Agreement, the Company shall have no
obligation pursuant to this Agreement with respect to any Registrable Securities
proposed to be sold by a Holder in a registration pursuant to this Agreement if,
in the opinion of counsel to the Company, all such Registrable Securities
proposed to be sold by a Holder may be sold in a three-month period without
registration under the Securities Act pursuant to Rule 144 under the Securities
Act.
10. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Holders of a majority of the shares of
Common Stock and Common Stock equivalents representing or underlying the then
outstanding Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company that would allow such holder
or prospective holder (a) to include such securities in any Registration
Statement filed pursuant to the terms hereof, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of such holder's or
prospective holder's securities will not reduce the amount of Registrable
Securities of the Holders that is included, or (b) to have his securities
registered on a registration statement that could be declared effective prior
to, or within one hundred twenty (120) days of, the effective date of any
Registration Statement filed pursuant to this Agreement.
11. MISCELLANEOUS
(a) Remedies. In the event of a breach by the Company of any of
its obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein or, in the
case of JMP, in the Purchase/Placement Agreement, or granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. Subject to
Section 6, the Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given, without the written consent of the Company and Holders
beneficially owning not less than fifty percent (50%) of the shares of Common
Stock and Common Stock equivalents representing or underlying the then
outstanding Registrable Securities; provided, however, that for purposes of this
Agreement, Registrable Securities that are owned, directly or indirectly, by an
Affiliate of the Company shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
Notwithstanding the foregoing, a waiver or consent to or departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of a Holder whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders may be given by such Holder; provided,
however, that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(c) Notices. All notices and other communications, provided for or
permitted hereunder shall be made in writing by delivered by facsimile (with
receipt confirmed), overnight courier or registered or certified mail, return
receipt requested, or by telegram
(i) if to a Holder of Registrable Securities, at the most
current address given by the transfer agent and registrar of the
Registrable Securities to the Company; and
(ii) if to the Company at the offices of the Company at
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000,
Attention: Xxxxxxxxx X. Xxxxxx; (facsimile: (000) 000-0000) or to such
other address as the Company may have furnished to JMP in writing in
accordance with this Agreement.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation and without the need for an express
assignment or assumption, subsequent Holders of Registrable Securities. The
Company agrees that the Holders shall be third party beneficiaries to the
agreements made hereunder by JMP and the Company, and each Holder shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights hereunder; provided,
however, that such Holder fulfills all of its obligations hereunder.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY STATE COURT IN THE STATE OF NEW YORK OR ANY
FEDERAL COURT SITTING IN STATE OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(h) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties hereto that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(i) Entire Agreement. This Agreement, together with the
Purchase/Placement Agreement, is intended by the parties hereto as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein.
(j) Survival. This Agreement is intended to survive the
consummation of the transactions contemplated by the Purchase/Placement
Agreement. The indemnification
and contribution obligations under Section 6 of this Agreement shall survive the
termination of the Company's obligations under Sections 2 or 9 of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ARBOR REALTY TRUST, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------
Xxxxxxxxx X. Xxxxxx
Chief Financial Officer
JMP SECURITIES LLC
By: /s/ Xxxxxx X. Xxxx
---------------------------
Xxxxxx X. Xxxx
Managing Director
