EXHIBIT 10.8
ARBOR REALTY TRUST, INC.
2003 OMNIBUS STOCK INCENTIVE PLAN
(AS AMENDED AND RESTATED ON JULY 29, 2004)
SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS.
The name of this plan is the Arbor Realty Trust, Inc. 2003 Omnibus
Stock Incentive Plan, as amended (the "Plan"). The Plan was adopted by the Board
(defined below) on June 25, 2003 and approved by the stockholders of the Company
(defined below) on July 1, 2003, and was subsequently approved by the Board on
June 23, 2004 to be amended and restated, subject to the approval of the
Company's stockholders. The purpose of the Plan is to enable the Company to
attract and retain highly qualified personnel who will contribute to the
Company's success and to provide incentives to Participants (defined below) that
are linked directly to stockholder value and will therefore inure to the benefit
of all stockholders of the Company.
For purposes of the Plan, the following terms shall be defined as
set forth below:
(a) "Administrator" means the Board, or if and to the extent the
Board does not administer the Plan, the Committee in accordance with Section 2
below.
(b) "Award" means any award under the Plan.
(c) "Award Agreement" means, with respect to each Award, the signed
written agreement between the Company and the Participant setting forth the
terms and conditions of the Award.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor thereto.
(f) "Committee" means any committee the Board may appoint to
administer the Plan. If at any time or to any extent the Board shall not
administer the
Plan, then the functions of the Board specified in the Plan shall be exercised
by the Committee.
(g) "Common Stock" means the common stock, par value $.01 per share,
of the Company.
(h) "Company" means Arbor Realty Trust, Inc., a Maryland corporation
(or any successor corporation).
(i) "Disability" means the inability of a Participant to perform
substantially his or her duties and responsibilities to the Company or to any
Parent or Subsidiary by reason of a physical or mental disability or infirmity
(i) for a continuous period of six months, or (ii) at such earlier time as the
Participant submits medical evidence satisfactory to the Administrator that the
Participant has a physical or mental disability or infirmity that will likely
prevent the Participant from returning to the performance of the Participant's
work duties for six months or longer. The date of such Disability shall be the
last day of such six-month period or the day on which the Participant submits
such satisfactory medical evidence, as the case may be.
(j) "Eligible Recipient" means an officer, director, employee,
consultant (including employees of the Manager who provide services to the
Company) or advisor of the Company or of any Parent or Subsidiary.
(k) "Fair Market Value" as of a particular date shall mean the fair
market value of a share of Common Stock as determined by the Administrator in
its sole discretion; provided, however, that (i) if the Common Stock is admitted
to trading on a national securities exchange, fair market value of a share of
Common Stock on any date shall be the closing sale price reported for such share
on such exchange on such date or, if no sale was reported on such date, on the
last date preceding such date on which a sale was reported, (ii) if the Common
Stock is admitted to quotation on the National Association of Securities Dealers
Automated Quotation ("Nasdaq") System or other comparable quotation system and
has been designated as a National Market System ("NMS") security, fair market
value of a share of Common Stock on any date shall be the closing sale price
reported for such share on such system on such date or, if no sale was reported
on such date, on the last date preceding such date on which a sale was reported,
or (iii) if the Common Stock is admitted to quotation on the Nasdaq System but
has not been designated as an NMS security, fair market value of a share of
Common Stock on any date shall be the average of the highest bid and lowest
asked prices of such share on such system
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on such date or, if no bid and ask prices were reported on such date, on the
last date preceding such date on which both bid and ask prices were reported.
(l) "Manager" means Arbor Commercial Mortgage, LLC, a New York
limited liability company.
(m) "Parent" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if each of the
corporations in the chain (other than the Company) owns stock possessing 50% or
more of the combined voting power of all classes of stock in one of the other
corporations in the chain.
(n) "Participant" means any Eligible Recipient selected by the
Administrator, pursuant to the Administrator's authority in Section 2 below, to
receive awards of Restricted Stock.
(o) "Restricted Stock" means Shares subject to certain restrictions
granted pursuant to Section 6 below.
(p) "Shares" means shares of Common Stock reserved for issuance
under the Plan, as adjusted pursuant to Sections 3 and 4, and any successor
security.
(q) "Subsidiary" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company, if each of the
corporations (other than the last corporation) in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Board or, at the Board's sole
discretion, by the Committee, which shall be appointed by the Board, and which
shall serve at the pleasure of the Board. Pursuant to the terms of the Plan, the
Administrator shall have the power and authority:
(a) to select those Eligible Recipients who shall be Participants;
(b) to determine whether and to what extent awards of Restricted
Stock are to be granted hereunder to Participants;
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(c) to determine the number of Shares to be covered by each Award
granted hereunder;
(d) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of each Award granted hereunder; and
(e) to determine the terms and conditions, not inconsistent with the
terms of the Plan, which shall govern all written instruments evidencing awards
of Restricted Stock granted hereunder.
The Administrator shall have the authority, in its sole discretion,
to adopt, alter and repeal such administrative rules, guidelines and practices
governing the Plan as it shall from time to time deem advisable; to interpret
the terms and provisions of the Plan and any Award issued under the Plan (and
any Award Agreement relating thereto); and to otherwise supervise the
administration of the Plan.
All decisions made by the Administrator pursuant to the provisions
of the Plan shall be final, conclusive and binding on all persons, including the
Company and the Participants.
SECTION 3. SHARES SUBJECT TO PLAN.
The total number of shares of Common Stock reserved and available
for issuance under the Plan shall be 435,000 shares. Such shares may consist, in
whole or in part, of authorized and unissued shares or treasury shares.
To the extent that any Shares subject to any award of Restricted
Stock are forfeited, such Shares shall again be available for issuance in
connection with future Awards granted under the Plan.
SECTION 4. CORPORATE TRANSACTIONS.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend or other change in corporate structure
affecting the Common Stock, an equitable substitution or proportionate
adjustment shall be made in (i) the aggregate number of Shares reserved for
issuance under the Plan, and (ii) the kind, number and purchase price of Shares
subject to outstanding awards of
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Restricted Stock granted under the Plan, in each case as may be determined by
the Administrator, in its sole discretion. Such other substitutions or
adjustments shall be made as may be determined by the Administrator, in its sole
discretion. In connection with any event described in this paragraph, the
Administrator may provide, in its sole discretion, for the cancellation of any
outstanding awards and payment in cash or other property therefor.
SECTION 5. ELIGIBILITY.
Eligible Recipients shall be eligible to be granted awards of
Restricted Stock or other awards. The Participants under the Plan shall be
selected from time to time by the Administrator, in its sole discretion, from
among the Eligible Recipients.
SECTION 6. RESTRICTED STOCK.
Awards of Restricted Stock may be issued either alone or in addition
to other Awards granted under the Plan. The Administrator shall determine the
Eligible Recipients to whom, and the time or times at which, awards of
Restricted Stock shall be made; the number of Shares to be awarded; the price,
if any, to be paid by the Participant for the acquisition of Restricted Stock;
the Restricted Period (as defined in Section 6(b)) applicable to awards of
Restricted Stock. The Administrator may also condition the grant of the award of
Restricted Stock upon any such criteria as the Administrator may determine, in
its sole discretion. The provisions of the awards of Restricted Stock need not
be the same with respect to each Participant.
(a) Awards and Certificates. The prospective recipient of awards of
Restricted Stock shall not have any rights with respect to any such Award,
unless and until such recipient has executed an Award Agreement evidencing the
Award (a "Restricted Stock Award Agreement") and delivered a fully executed copy
thereof to the Company, within a period of sixty days (or such other period as
the Administrator may specify) after the award date. Except as otherwise
provided below in Section 6(b), each Participant who is granted an award of
Restricted Stock shall be issued a stock certificate in respect of such shares
of Restricted Stock, which certificate shall be registered in the name of the
Participant and shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to any such Award.
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The Company may require that the stock certificates evidencing
Restricted Stock granted hereunder be held in the custody of the Company until
the restrictions thereon shall have lapsed, and that, as a condition of any
award of Restricted Stock, the Participant shall have delivered a stock power,
endorsed in blank, relating to the Shares covered by such Award.
(b) Restrictions and Conditions. The awards of Restricted Stock
granted pursuant to this Section 6 shall be subject to the following
restrictions and conditions:
(i) Subject to the provisions of the Plan and the Restricted
Stock Award Agreement governing any such Award, during such period as may
be set by the Administrator commencing on the date of grant (the
"Restricted Period"), the Participant shall not be permitted to sell,
transfer, pledge or assign shares of Restricted Stock awarded under the
Plan; provided, however, that the Administrator may, in its sole
discretion, provide for the lapse of such restrictions in installments and
may accelerate or waive such restrictions in whole or in part based on
such factors and such circumstances as the Administrator may determine, in
its sole discretion.
(ii) Except as provided in Section 6(b)(i), the Participant
shall generally have the rights of a stockholder of the Company with
respect to Restricted Stock during the Restricted Period. Certificates for
unrestricted Shares shall be delivered to the Participant promptly after,
and only after, the Restricted Period shall expire without forfeiture in
respect of such awards of Restricted Stock except as the Administrator, in
its sole discretion, shall otherwise determine.
(iii) The rights of Participants granted awards of Restricted
Stock upon termination of employment or service as a director, consultant
or advisor to the Company or to any Parent or Subsidiary terminates for
any reason during the Restricted Period shall be set forth in the
Restricted Stock Award Agreement governing such Awards.
SECTION 7. AMENDMENT AND TERMINATION.
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The Board may amend, alter or discontinue the Plan, but no
amendment, alteration, or discontinuation shall be made that would impair the
rights of a Participant under any Award theretofore granted without such
Participant's consent. To the extent necessary and desirable, the Board shall
obtain approval of the stockholders (as described below), for any amendment that
would:
(a) except as provided in Sections 3 or 4 of the Plan, increase the
total number of Shares reserved for issuance under the Plan; or
(b) change the class of officers, directors, employees, consultants
and advisors eligible to participate in the Plan.
The Administrator may amend the terms of any Award theretofore
granted, prospectively or retroactively, but, subject to Section 4 of Plan, no
such amendment shall impair the rights of any Participant without his or her
consent.
SECTION 8. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for incentive
compensation. With respect to any payments not yet made to a Participant by the
Company, nothing contained herein shall give any such Participant any rights
that are greater than those of a general creditor of the Company.
SECTION 9. GENERAL PROVISIONS.
(a) Shares shall not be issued pursuant to any Award granted
hereunder unless such Award and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and the requirements of any stock exchange
upon which the Common Stock may then be listed, and shall be further subject to
the approval of counsel for the Company with respect to such compliance.
(b) The Administrator may require each person acquiring Shares to
represent to and agree with the Company in writing that such person is acquiring
the Shares without a view to distribution thereof. The certificates for such
Shares may include any legend which the Administrator deems appropriate to
reflect any restrictions on transfer.
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All certificates for Shares delivered under the Plan shall be
subject to such stock-transfer orders and other restrictions as the
Administrator may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Common Stock is then listed, and any applicable Federal or state
securities law, and the Administrator may cause a legend or legends to be placed
on any such certificates to make appropriate reference to such restrictions.
(c) Nothing contained in the Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to stockholder
approval, if such approval is required; and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of the
Plan shall not confer upon any Eligible Recipient any right to continued
employment or service with the Company or any Parent or Subsidiary, as the case
may be, nor shall it interfere in any way with the right of the Company or any
Parent or Subsidiary to terminate the employment or service of any of its
Eligible Recipients at any time.
(d) Each Participant shall, no later than the date as of which the
value of an Award first becomes includible in the gross income of the
Participant for Federal income tax purposes, pay to the Company, or make
arrangements satisfactory to the Administrator regarding payment of, any
Federal, state, or local taxes of any kind required by law to be withheld with
respect to such Award. The obligations of the Company under the Plan shall be
conditional on the Participant's making of such payments or arrangements, and
the Company shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment of any kind otherwise due to the Participant.
(e) No member of the Board or the Administrator, nor any officer or
employee of the Company acting on behalf of the Board or the Administrator,
shall be personally liable for any action, determination, or interpretation
taken or made in good faith with respect to the Plan, and all members of the
Board or the Administrator and each and any officer or employee of the Company
acting on their behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Company in respect of any such action,
determination or interpretation.
SECTION 10. STOCKHOLDER APPROVAL; EFFECTIVE DATE OF PLAN.
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(a) The grant of any Award hereunder shall be contingent upon
stockholder approval of the Plan being obtained within 12 months before or after
the date the Board adopts the Plan.
(b) Subject to the approval of the Plan by the stockholders of the
Company within twelve (12) months before or after the date the Plan is adopted
by the Board, the Plan shall be effective as of June 25, 2003 (the "Effective
Date").
SECTION 11. TERM OF PLAN.
No Award shall be granted pursuant to the Plan on or after the tenth
anniversary of the Effective Date, but Awards theretofore granted may extend
beyond that date.
SECTION 12. GOVERNING LAW.
This Plan and all questions relating to its validity,
interpretation, performance and enforcement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of New York,
notwithstanding any New York or other conflict-of-law provisions to the
contrary.
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