EXHIBIT 10.11
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into this ____ day
of _______, 2003 ("Agreement"), by and between Arbor Realty Trust, Inc., a
Maryland corporation (the "Company"), and_____________________("Indemnitee").
WHEREAS, at the request of the Company, Indemnitee currently serves as
a [DIRECTOR] [OFFICER] of the Company and may, therefore, be subjected to
claims, suits or proceedings arising as a result of his service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as such
[DIRECTOR] [OFFICER], the Company has agreed to indemnify and to advance
expenses and costs incurred by Indemnitee in connection with any such claims,
suits or proceedings, to the fullest extent permitted by law; and
WHEREAS, the parties by this Agreement desire to set forth their
agreement regarding indemnification and advance of expenses;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Definitions. For purposes of this Agreement:
(a) "Change in Control" means a change in control of the
Company occurring after the Effective Date of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or in response to any similar item on any similar
schedule or form) promulgated under the Securities Exchange Act of 1934
(the "Act"), whether or not the Company is then subject to such
reporting requirement; provided, however, that, without limitation,
such a Change in Control shall be deemed to have occurred if after the
Effective Date (i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Act), directly or indirectly, of securities of
the Company representing 15% or more of the combined voting power of
the Company's then outstanding securities without the prior approval of
at least two-thirds of the members of the Board of Directors in office
immediately prior to such person attaining such percentage interest;
(ii) there occurs a proxy contest, or the Company is a party to a
merger, consolidation, sale of assets, plan of liquidation or other
reorganization not approved by at least two-thirds of the members of
the Board of Directors then in office, as a consequence of which
members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of
Directors thereafter; or (iii) during any period of two consecutive
years, other than as a result of an event described in clause (a)(ii)
of this Section 1, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any new
director whose election or
nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds of the directors then still in office who
were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
(b) "Corporate Status" means the status of a person who is or
was a director, trustee, officer, employee or agent of the Company or
of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which such person is or was serving at
the request of the Company.
(c) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) "Effective Date" means the date set forth in the first
paragraph of this Agreement.
(e) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred, in the
geographic region in which the expenses are incurred or the services
are provided, in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a
witness in a Proceeding.
(f) "Independent Counsel" means a law firm, or a member of a
law firm, selected by the board of directors by vote as set forth in
Section 9(b), that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnitee in any matter material to
either such party, or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person
who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either
the Company or Indemnitee in an action to determine Indemnitee's rights
under this Agreement. If a Change of Control has not occurred,
Independent Counsel shall be selected by the Board of Directors, with
the approval of Indemnitee, which approval will not be unreasonably
withheld. If a Change of Control has occurred, Independent Counsel
shall be selected by Indemnitee, with the approval of the Board of
Directors, which approval will not be unreasonably withheld.
(g) "Proceeding" includes any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, whether
civil, criminal, administrative or investigative (including on appeal),
except one (i) initiated by an Indemnitee pursuant to Section 11 of
this Agreement to enforce his rights under this Agreement or (ii)
pending or completed on or before the Effective Date, unless otherwise
specifically agreed in writing by the Company and Indemnitee.
Section 2. Services by Indemnitee. Indemnitee will serve as a
[DIRECTOR] [OFFICER] of the Company. However, this Agreement shall not impose
any obligation on Indemnitee or the Company to continue Indemnitee's service to
the Company beyond any period otherwise required by law or by other agreements
or commitments of the parties, if any.
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Section 3. Indemnification - General. The Company shall indemnify, and
advance Expenses to, Indemnitee (a) as provided in this Agreement and (b)
otherwise to the fullest extent permitted by Maryland law in effect on the date
hereof and as amended from time to time; provided, however, that no change in
Maryland law shall have the effect of reducing the benefits available to
Indemnitee hereunder based on Maryland law as in effect on the date hereof. The
rights of Indemnitee provided in this Section 3 shall include, without
limitation, the rights set forth in the other sections of this Agreement,
including any additional indemnification permitted by Section 2-418(g) of the
Maryland General Corporation Law ("MGCL").
Section 4. Proceedings Other Than Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the rights of indemnification provided
in this Section 4 if, by reason of his Corporate Status, he is, or is threatened
to be, made a party to or a witness in any threatened, pending, or completed
Proceeding, other than a Proceeding by or in the right of the Company. Pursuant
to this Section 4, Indemnitee shall be indemnified against all judgments,
penalties, fines, amounts paid in settlement and all Expenses actually and
reasonably incurred by him or on his behalf in connection with a Proceeding by
reason of his Corporate Status unless it is established that (i) the act or
omission of Indemnitee was material to the matter giving rise to the Proceeding
and (a) was committed in bad faith or (b) was the result of active and
deliberate dishonesty, (ii) Indemnitee actually received an improper personal
benefit in money, property or services, or (iii) in the case of any criminal
Proceeding, Indemnitee had reasonable cause to believe that his conduct was
unlawful.
Section 5. Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 5
if, by reason of his Corporate Status, he is, or is threatened to be, made a
party to or a witness in any threatened, pending or completed Proceeding brought
by or in the right of the Company to procure a judgment in its favor. Pursuant
to this Section 5, Indemnitee shall be indemnified against all amounts paid in
settlement and all Expenses actually and reasonably incurred by him or on his
behalf in connection with such Proceeding unless it is established that (i) the
act or omission of Indemnitee was material to the matter giving rise to such a
Proceeding and (a) was committed in bad faith or (b) was the result of active
and deliberate dishonesty or (ii) Indemnitee actually received an improper
personal benefit in money, property or services.
Section 6. Court-Ordered Indemnification. Notwithstanding any other
provision of this Agreement, a court of appropriate jurisdiction, upon
application of a [DIRECTOR] [OFFICER] and such notice as the court shall
require, may order indemnification in the following circumstances:
(a) if it determines a [DIRECTOR] [OFFICER] is entitled to
reimbursement under Section 2-418(d)(1) of the MGCL, the court shall
order indemnification, in which case the [DIRECTOR] [OFFICER] shall be
entitled to recover the expenses of securing such reimbursement; or
(b) if it determines that the [DIRECTOR] [OFFICER] is fairly
and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the [DIRECTOR]
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[OFFICER] (i) has met the standards of conduct set forth in Section
2-418(b) of the MGCL or (ii) has been adjudged liable for receipt of an
improper personal benefit under Section 2-418(c) of the MGCL, the court
may order such indemnification as the court shall deem proper. However,
indemnification with respect to any Proceeding by or in the right of
the Company or in which liability shall have been adjudged in the
circumstances described in Section 2-418(c) of the MGCL shall be
limited to Expenses.
Section 7. Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, and
without limiting any such provision, to the extent that Indemnitee is, by reason
of his Corporate Status, made a party to and is successful, on the merits or
otherwise, in the defense of any Proceeding, he shall be indemnified for all
Expenses actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee under this Section 7 for all Expenses actually and reasonably
incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section 8. Advance of Expenses. The Company shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding to which Indemnitee is, or is threatened to be, made a party or a
witness, within ten days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by a written
affirmation by Indemnitee of Indemnitee's good faith belief that the standard of
conduct necessary for indemnification by the Company as authorized by law and by
this Agreement has been met and a written undertaking by or on behalf of
Indemnitee, in substantially the form attached hereto as Exhibit A or in such
form as may be required under applicable law as in effect at the time of the
execution thereof, to reimburse any Expenses advanced to Indemnitee if it shall
ultimately be determined that such standard of conduct has not been met or as
required by Section 7 if Indemnitee is wholly or partly unsuccessful. The
undertaking required by this Section 8 shall be an unlimited general obligation
by or on behalf of Indemnitee and shall be accepted without reference to
Indemnitee's financial ability to repay such advanced Expenses.
Section 9. Procedure for Determination of Entitlement to
Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available
to Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification. The Secretary of
the Company shall, promptly upon receipt of such a request for
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indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 9(a) hereof, a determination,
if required by applicable law, with respect to Indemnitee's entitlement
thereto shall promptly be made in the specific case: (i) if a Change in
Control shall have occurred, by Independent Counsel in a written
opinion to the Board of Directors, a copy of which shall be delivered
to Indemnitee; or (ii) if a Change of Control shall not have occurred,
(A) by the Board of Directors (or a duly authorized committee thereof)
by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (B) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if
obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a
copy of which shall be delivered to Indemnitee, or (C) if so directed
by a majority of the members of the Board of Directors, by the
stockholders of the Company; and, if it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall
be made within ten days after such determination. Indemnitee shall
cooperate with the person, persons or entity making such determination
with respect to Indemnitee's entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available
to Indemnitee and reasonably necessary to such determination. Any costs
or Expenses (including reasonable attorneys' fees and disbursements)
incurred by Indemnitee in so cooperating with the person, persons or
entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby agrees to indemnify and hold
Indemnitee harmless therefrom.
Section 10. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 9(a) of this
Agreement, and the Company shall have the burden of proof to overcome
that presumption in connection with the making of any determination
contrary to that presumption.
(b) The termination of any Proceeding by judgment, order,
settlement, conviction, a plea of nolo contendere or its equivalent, or
an entry of an order of probation prior to judgment, does not create a
presumption that Indemnitee did not meet the requisite standard of
conduct described herein for indemnification.
Section 11. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 9 of
this Agreement that Indemnitee is not entitled to indemnification under
this Agreement, (ii) advance of
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Expenses is not timely made pursuant to Section 8 of this Agreement,
(iii) no determination of entitlement to indemnification shall have
been made pursuant to Section 9(b) of this Agreement within 30 days
after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to Section 7 of this
Agreement within ten days after receipt by the Company of a written
request therefor, or (v) payment of indemnification is not made within
ten days after a determination has been made that Indemnitee is
entitled to indemnification, Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of Maryland, or in
any other court of competent jurisdiction, of his entitlement to such
indemnification or advance of Expenses. Alternatively, Indemnitee, at
his option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the commercial Arbitration Rules of the
American Arbitration Association. Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration within
180 days following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 11(a); provided,
however, that the foregoing clause shall not apply in respect of a
proceeding brought by Indemnitee to enforce his rights under Section 7
of this Agreement.
(b) In any judicial proceeding or arbitration commenced
pursuant to this Section 11 the Company shall have the burden of
proving that Indemnitee is not entitled to indemnification or advance
of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to
Section 9(b) of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration commenced pursuant to this
Section 11, absent a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's statement
not materially misleading, in connection with the request for
indemnification.
(d) In the event that Indemnitee, pursuant to this Section 11,
seeks a judicial adjudication of or an award in arbitration to enforce
his rights under, or to recover damages for breach of, this Agreement,
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company for, any and all Expenses actually and
reasonably incurred by him in such judicial adjudication or
arbitration. If it shall be determined in such judicial adjudication or
arbitration that Indemnitee is entitled to receive part but not all of
the indemnification or advance of Expenses sought, the Expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated.
Section 12. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly upon being
served with or receiving any summons, citation, subpoena, complaint,
indictment, information, notice, request or other document relating to
any Proceeding which may result in the right to indemnification or the
advance of Expenses hereunder; provided, however, that the failure to
give any such notice shall not disqualify Indemnitee from the right, or
otherwise affect in any manner any right of Indemnitee, to
indemnification or the advance
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of Expenses under this Agreement unless the Company's ability to defend
in such Proceeding or to obtain proceeds under any insurance policy is
materially and adversely prejudiced thereby, and then only to the
extent the Company is thereby actually so prejudiced.
(b) Subject to the provisions of the last sentence of this
Section 12(b) and of Section 12(c) below, the Company shall have the
right to defend Indemnitee in any Proceeding which may give rise to
indemnification hereunder; provided, however, that the Company shall
notify Indemnitee of any such decision to defend within 15 calendar
days following receipt of notice of any such Proceeding under Section
12(a) above. The Company shall not, without the prior written consent
of Indemnitee, which shall not be unreasonably withheld or delayed,
consent to the entry of any judgment against Indemnitee or enter into
any settlement or compromise which (i) includes an admission of fault
of Indemnitee or (ii) does not include, as an unconditional term
thereof, the full release of Indemnitee from all liability in respect
of such Proceeding, which release shall be in form and substance
reasonably satisfactory to Indemnitee. This Section 12(b) shall not
apply to a Proceeding brought by Indemnitee under Section 11 above or
Section 18 below.
(c) Notwithstanding the provisions of Section 12(b) above, if
in a Proceeding to which Indemnitee is a party by reason of
Indemnitee's Corporate Status, (i) Indemnitee reasonably concludes,
based upon the advice of counsel approved by the Company, which
approval of counsel shall not be unreasonably withheld, that he may
have separate defenses or counterclaims to assert with respect to any
issue which may not be consistent with other defendants in such
Proceeding, (ii) Indemnitee reasonably concludes, based upon the advice
of counsel approved by the Company, which approval of counsel shall not
be unreasonably withheld, that an actual or apparent conflict of
interest or potential conflict of interest exists between Indemnitee
and the Company, or (iii) if the Company fails to assume the defense of
such Proceeding in a timely manner, Indemnitee shall be entitled to be
represented by separate legal counsel of Indemnitee's choice, subject
to the prior approval of the Company, which shall not be unreasonably
withheld, at the expense of the Company. In addition, if the Company
fails to comply with any of its obligations under this Agreement or in
the event that the Company or any other person takes any action to
declare this Agreement void or unenforceable, or institutes any
Proceeding to deny or to recover from Indemnitee the benefits intended
to be provided to Indemnitee hereunder, Indemnitee shall have the right
to retain counsel of Indemnitee's choice, subject to the prior approval
of the Company, which shall not be unreasonably withheld, at the
expense of the Company, to represent Indemnitee in connection with any
such matter.
Section 13. Non-Exclusivity; Survival of Rights; Insurance;
Subrogation.
(a) The rights of indemnification and advance of Expenses as
provided by this Agreement shall not be deemed exclusive of any other
rights to which Indemnitee may at any time be entitled under applicable
law, the Charter or Bylaws of the Company, any agreement or a
resolution of the stockholders entitled to vote generally in the
election of directors or of the Board of Directors, or otherwise. No
amendment, alteration or repeal of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee
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under this Agreement in respect of any action taken or omitted by such
Indemnitee in his Corporate Status prior to such amendment, alteration
or repeal.
(b) In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all papers required
and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to
the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
Section 14. Insurance. The Company will use its reasonable best efforts
to acquire directors and officers liability insurance, on terms and conditions
deemed appropriate by the Board of Directors of the Company, with the advice of
counsel, covering Indemnitee or any claim made against Indemnitee for service as
a director or officer of the Company and covering the Company for any
indemnification or advance of expenses made by the Company to Indemnitee for any
claims made against Indemnitee for service as a director or officer of the
Company. Without in any way limiting any other obligation under this Agreement,
the Company shall indemnify Indemnitee for any payment by Indemnitee arising out
of the amount of any deductible or retention and the amount of any excess of the
aggregate of all judgments, penalties, fines, settlements and reasonable
expenses incurred by Indemnitee in connection with a Proceeding over the
coverage of any insurance referred to in the previous sentence.
Section 15. Indemnification for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, whether instituted
by the Company or any other party, and to which Indemnitee is not a party, he
shall be advanced all reasonable Expenses and indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith.
Section 16. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue until and terminate ten
years after the date that Indemnitee shall have ceased to serve as a
director, trustee, officer, employee, or agent of the Company or of any
other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which Indemnitee served at the request of the
Company; provided, that the rights of Indemnitee hereunder shall
continue until the final termination of any Proceeding then pending in
respect of which Indemnitee is granted rights of indemnification or
advance of Expenses hereunder and of any proceeding commenced by
Indemnitee pursuant to Section 11 of this Agreement relating thereto.
(b) The indemnification and advance of Expenses provided by,
or granted pursuant to, this Agreement shall be binding upon and be
enforceable by the parties
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hereto and their respective successors and assigns (including any
direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business or assets of the
Company), shall continue as to an Indemnitee who has ceased to be a
director, trustee, officer, employee or agent of the Company or of any
other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person is or was serving at the
request of the Company, and shall inure to the benefit of Indemnitee
and his or her spouse, assigns, heirs, devisees, executors and
administrators and other legal representatives.
(c) The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all or a substantial part, of the business and/or
assets of the Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken
place.
Section 17. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (b) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
Section 18. Exception to Right of Indemnification or Advance of
Expenses. Notwithstanding any other provision of this Agreement, Indemnitee
shall not be entitled to indemnification or advance of Expenses under this
Agreement with respect to any Proceeding brought by Indemnitee, unless (a) the
Proceeding is brought to enforce indemnification under this Agreement or
otherwise or (b) the Company's Bylaws, as amended, the Charter, a resolution of
the stockholders entitled to vote generally in the election of directors or of
the Board of Directors or an agreement approved by the Board of Directors to
which the Company is a party expressly provide otherwise.
Section 19. Identical Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
Agreement. One such counterpart signed by the party against whom enforceability
is sought shall be sufficient to evidence the existence of this Agreement.
Section 20. Headings. The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.
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Section 21. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 22. Notice by Indemnitee. Indemnitee shall promptly notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advance of Expenses covered
hereunder.
Section 23. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to Indemnitee, to: The address set forth on the
signature page hereto.
(b) If to the Company to:
Arbor Realty Trust, Inc.
Xxxxx 000
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Corporate Secretary
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 24. Governing Law. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Maryland, without regard to its conflicts of laws rules.
Section 25. Miscellaneous. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ATTEST: ARBOR REALTY TRUST, INC.
_________________________ By: ___________________________ (SEAL)
Name: __________________________________
Title: _________________________________
WITNESS: INDEMNITEE
_________________________ _________________________________________
Name: ___________________________________
Address: ________________________________
_________________________________________
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EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Directors of Arbor Realty Trust, Inc.
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain
Indemnification Agreement dated the ___ day of ________, 2003, by and between
Arbor Realty Trust, Inc. (the "Company") and the undersigned Indemnitee (the
"Indemnification Agreement"), pursuant to which I am entitled to advance of
expenses in connection with [DESCRIPTION OF PROCEEDING] (the "Proceeding").
Terms used herein and not otherwise defined shall have the meanings
specified in the Indemnification Agreement.
I am subject to the Proceeding by reason of my Corporate Status or by
reason of alleged actions or omissions by me in such capacity. I hereby affirm
that at all times, insofar as I was involved as [A DIRECTOR] [AN OFFICER] of the
Company, in any of the facts or events giving rise to the Proceeding, I (1)
acted in good faith and honestly, (2) did not receive any improper personal
benefit in money, property or services and (3) in the case of any criminal
proceeding, had no reasonable cause to believe that any act or omission by me
was unlawful.
In consideration of the advance of expenses by the Company for
reasonable attorney's fees and related expenses incurred by me in connection
with the Proceeding (the "Advanced Expenses"), I hereby agree that if, in
connection with the Proceeding, it is established that (1) an act or omission by
me was material to the matter giving rise to the Proceeding and (a) was
committed in bad faith or (b) was the result of active and deliberate dishonesty
or (2) I actually received an improper personal benefit in money, property or
services or (3) in the case of any criminal proceeding, I had reasonable cause
to believe that the act or omission was unlawful, then I shall promptly
reimburse the Advanced Expenses to the Company.
IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on
this ___ day of ____________________, 200__.
WITNESS: INDEMNITEE:
____________________________ _____________________________(SEAL)
Name: ________________________
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