Exhibit 10.16
FORM OF SUBSCRIPTION AGREEMENT
DATED AS OF APRIL __, 2004
BY AND BETWEEN
ARBOR REALTY TRUST, INC.
AND
KOJAIAN VENTURES, L.L.C.
FORM OF SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement") made as of April __, 2004 by and
between ARBOR REALTY TRUST, INC., a Maryland corporation (the "Company") and
KOJAIAN VENTURES, L.L.C., a Michigan limited liability company ("Kojaian").
RECITALS:
WHEREAS, the Company intends to issue and sell ____________ shares (the
"Company Shares") of its common stock, par value $.01 per share (the "Common
Stock"), to Wachovia Securities, UBS Securities LLC and JMP Securities LLC, as
Underwriters (collectively, the "Underwriters"), and (ii) certain stockholders
of the Company intend to sell _______ shares of Common Stock to the
Underwriters, (the "Selling Stockholder Shares" and together with the Company
Shares, the "IPO Shares") each for reoffering to the public pursuant to a
prospectus (the "IPO Prospectus") included in the Company's registration
statement on Form S-11 (No. 333-110472), as amended (the "Registration
Statement");
WHEREAS, Kojaian desires to purchase from the Company, and the Company
desires to issue and sell to Kojaian, ___________ shares of Common Stock
pursuant to a prospectus (the "Kojaian Prospectus") included in the Registration
Statement.
NOW, THEREFORE, in consideration of the premises and of the respective
representations and warranties hereinafter set forth and the respective
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
SALE OF COMMON STOCK
1.1 Issuance and Sale of Common Stock. Subject to the terms and conditions
herein stated, the Company agrees to issue and sell to Kojaian on the Closing
Date (as defined below), and Kojaian agrees to purchase from the Company on the
Closing Date, an aggregate of ___________ shares of Common Stock (the "Kojaian
Shares"), at a purchase price of $__ per share, which price shall equal the per
share price at which the IPO Shares are offered and sold to the public pursuant
to the IPO Prospectus (the "Purchase Price").
1.2 Consideration. As full and total consideration for the issuance and
sale by the Company to Kojaian of the Kojaian Shares, Kojaian shall pay to the
Company on the Closing Date in immediately available funds an aggregate sum of
$___________ (the "Aggregate Purchase Price").
1.3 Closing. (a) The issuance and sale of the Kojaian Shares (the
"Closing") shall take place at 9:00 a.m., New York Time, at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP, New York, New York on or before April
__, 2004, or at such other time and date as the parties hereto may mutually
agree, which date shall in all cases be concurrent with the date of the issuance
and sale of the IPO Shares to the Underwriters pursuant to the Underwriting
Agreement of even date herewith (the "Underwriting Agreement"), among the
Company, the Selling Stockholders and the Underwriters. Such time and date, as
same may be adjourned, is sometimes hereinafter referred to as the "Closing
Date."
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company warrants and
represents, as of the date hereof and as of the Closing Date as if such
representations and warranties were made on the Closing Date, as follows:
2.1 Existence and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Maryland.
2.2 Corporate Power and Authority. The Company has all requisite power and
authority to enter into and perform all of its obligations under this Agreement
and to issue the Kojaian Shares and to carry out the transactions contemplated
hereby.
2.3 Authorization of Agreement. The Company has taken all corporate
actions necessary to authorize it to enter into and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby and
no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement, the issuance of the Kojaian Shares or to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable in accordance with its terms, except as
such may be limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights generally, and by general equitable principles.
2.4 Authorization of Securities. The Kojaian Shares have been duly
authorized for issuance and sale to Kojaian pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against payment
of the Aggregate Purchase Price, the Kojaian Shares will be duly and validly
issued, fully paid, non-assessable; no holder of the Kojaian Shares is or will
be subject to personal liability by reason of being such a holder; and the
issuance of the Kojaian Shares is not subject to any preemptive rights, rights
of first refusal or other similar rights of any securityholder of the Company or
any other person.
2.5 No Conflicts. None of the execution, delivery or performance of this
Agreement by the Company conflicts with the articles of incorporation or the
by-laws of the Company, in each case as in effect on the date hereof, or result
in any material breach
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of, or constitutes a material default under any material contract, agreement or
instrument to which the Company is a party or by which it or any of its assets
is bound.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF KOJAIAN. Kojaian hereby represents,
warrants and agrees, as of the date hereof and as of the Closing Date, as if
made on the Closing Date, as follows:
3.1 Existence and Good Standing. Kojaian is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Michigan.
3.2 Corporate Power and Authority. Kojaian has all requisite power and
authority to enter into and perform all of its obligations under this Agreement
and to carry out the transactions contemplated hereby.
3.3 Authorization of Agreement. Kojaian has taken all company actions
necessary to authorize it to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby and no other
corporate proceedings on the part of Kojaian are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Kojaian and constitutes a
legal, valid and binding obligation of Kojaian enforceable in accordance with
its terms, except as such may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally, and by
general equitable principles.
3.4 No Conflicts. None of the execution, delivery or performance of this
Agreement by Kojaian conflicts with the articles of organization or operating
agreement of Kojaian, in each case as in effect on the date hereof, or result in
any material breach of, or constitutes a material default under any material
contract, agreement or instrument to which Kojaian is a party or by which it or
any of its assets is bound.
3.5 Brokers or Finders. No agent, broker, person or firm acting on behalf
of Kojaian is, or will be, entitled to any commission or broker's or finder's
fees from any of the parties hereto, or from any person controlling or
controlled by or under common control with any of the parties hereto, in
connection with any of the transactions contemplated by this Agreement. Kojaian
agrees to indemnify and hold the Company harmless with respect to the foregoing.
ARTICLE IV
CONDITIONS.
4.1 Conditions. Consummation of the transactions contemplated hereby on
the Closing Date is conditioned upon the following: (a) the occurrence of the
closing under the Underwriting Agreement, and (d) the receipt of the Aggregate
Purchase Price by the Company.
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ARTICLE V
MISCELLANEOUS
5.1 Governing Law. The interpretation and construction of this Agreement,
and all matters relating hereto, shall be governed by the laws of the State of
New York applicable to agreements executed and to be performed solely within
such State, and each of the parties hereto irrevocably consents to the venue and
jurisdiction of the federal and state courts located in the State of New York.
5.2 Headings. The Article and Section captions used herein are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
5.3 Notices. All notices, requests, demands, other communications and
deliveries required or desired to be given hereunder shall only be effective if
given in writing by hand, by certified or registered mail, return receipt
requested, postage prepaid, or by U.S. express mail service, or by private
overnight mail service (e.g. Federal Express), or by facsimile transmission. Any
such notice, request, demand, other communication or delivery shall be deemed to
have been received (a) on the business day actually received if given by hand or
facsimile transmission, (b) on the business day immediately subsequent to
mailing, if sent by U.S. express mail service or private overnight mail service,
or (c) three (3) business days following the mailing thereof, if mailed by
certified or registered mail, postage prepaid, return receipt requested, and all
such notices shall be sent to the following addresses (or to such other address
or addresses as a party may have advised the other in the manner provided
herein):
if to Kojaian, to:
00000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attn: C. Xxxxxxx Xxxxxxx
with a copy simultaneously by like means to:
Barris, Sott, Denn & Driker, P.L.L.C.
000 X. Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attn: Xxxxxxx Xxxxxx, Esq.
if to the Company to:
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Arbor Realty Trust, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attn: Chief Executive Officer
with a copy simultaneously by like means:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxx, III, Esq.
5.4 Successors and Assigns. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
5.5 Counterparts. This Agreement may be executed in two or more original
or facsimile counterparts, all of which taken together shall constitute one
instrument.
5.6 Entire Agreement. This Agreement, including the other documents
referred to herein or annexed as Schedules hereto that form a part hereof,
contains the entire understanding of the parties hereto with respect to the
subject matter contained herein and therein and supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
5.7 Amendments. This Agreement may not be changed orally, but only by an
agreement in writing signed by the parties hereto.
5.8 Severability. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof will not in any way be affected or impaired
thereby.
5.9 Third Party Beneficiaries. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto.
5.10 Survivability. The respective representations, warranties,
obligations, and agreements of the Company and Kojaian contained herein shall
survive the Closing Date indefinitely.
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5.11 Waiver of Jury Trial. The parties hereto waive all right to trial by
jury of any action, suit or proceeding brought to enforce or defend any rights
or remedies arising under or in connection with this Agreement or the
transaction contemplated hereby whether grounded in tort, contract or otherwise.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
ARBOR REALTY TRUST, INC.,
a Maryland corporation
By:
---------------------------------------
Name:
Title:
KOJAIAN VENTURES, L.L.C.,
a Michigan limited liability company
By: Kojaian Ventures-MM, Inc.,
a Michigan corporation,
the Manager of Kojaian Ventures, L.L.C.
---------------------------------------
Name: C. Xxxxxxx Xxxxxxx
Title: President
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