AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 2004
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ARBOR REALTY TRUST, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 20-0057959
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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333 EARLE OVINGTON BOULEVARD
SUITE 900
UNIONDALE, NEW YORK 11553
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
ARBOR REALTY TRUST, INC. 2003 OMNIBUS STOCK INCENTIVE PLAN,
AS AMENDED AND RESTATED
(FULL TITLE OF THE PLAN)
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FREDERICK C. HERBST
333 EARLE OVINGTON BOULEVARD
SUITE 900
UNIONDALE, NEW YORK 11553
(516) 832-7408
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER SHARE(3) OFFERING PRICE FEE
- -------------------------------------------- ------------- ---------------- ------------------ --------------
Common stock, par value $0.01 per share 287,901 23.56 $6,782,947.56 $798.35
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers additional shares that may become
issuable under the Arbor Realty Trust, Inc. 2003 Omnibus Stock Incentive
Plan, as amended and restated, by reason of certain corporate transactions
or events, including any stock dividend, stock split, recapitalization or
any other similar transaction effected without the receipt of
consideration which results in an increase in the number of the
registrant's outstanding shares of common stock.
(2) Represents the remaining number of shares of common stock issuable under
the Arbor Realty Trust, Inc. 2003 Omnibus Stock Incentive Plan, as amended
and restated.
(3) Computed in accordance with Rule 457(h) under the Securities Act by
averaging the high and low sales prices of Arbor Realty Trust, Inc. common
stock as reported by the New York Stock Exchange on December 16, 2004.
EXPLANATORY NOTE
This registration statement registers shares of common stock, par value
$0.01 per share (the "Common Stock"), of Arbor Realty Trust, Inc. (the
"Company") that may be issued and sold under the Arbor Realty Trust, Inc. 2003
Omnibus Stock Incentive Plan, as amended and restated (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* The documents containing the information specified in Part I of Form S-8
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents need
not be filed with the Securities and Exchange Commission (the "SEC") either as
part of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference in this registration statement pursuant to Item 3 of
Part II of this registration statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the SEC are incorporated by
reference in this registration statement:
(a) The Company's prospectus, dated July 13, 2004, filed pursuant to Rule
424(b) under the Securities Act and that contains (i) the consolidated balance
sheet of the Company as of December 31, 2003, and the related consolidated
statements of income, stockholders equity, and cash flows for the period from
June 24, 2003 (Inception) to December 31, 2003 and (ii) the consolidated
statement of revenue and direct operating expenses of the Structured Finance
Business of Arbor Commercial Mortgage, LLC and Subsidiaries for the six months
ended June 30, 2003;
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2004, June 30, 2004 and September 30, 2004 and Form 10-Q/A filed
on November 17, 2004; the Company's Current Reports on Form 8-K dated June 14,
2004, June 24, 2004, July 30, 2004, September 30, 2004, December 13, 2004 and
December 20, 2004; and
(c) The description of the Common Stock contained in the Registration
Statement on Form 8-A, dated April 5, 2004, filed with the SEC by the Company to
register the Common Stock under the Securities and Exchange Act of 1934 as
amended (the "Exchange Act"), including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this registration statement shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in this registration statement, or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference in this registration statement, modifies or supersedes such prior
statement. Any statement contained in this registration statement shall be
deemed to be modified or superseded to the extent that a statement contained in
a subsequently filed document that is or is deemed to be incorporated by
reference in this registration statement modifies or supersedes such prior
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this registration
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Common Stock offered hereby has been passed
upon for the Company by Venable LLP, Baltimore, Maryland.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Maryland law permits a Maryland corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit or profit in money,
property or services or (b) active and deliberate dishonesty established by a
final judgment and which is material to the cause of action. The Company's
charter contains such a provision which eliminates directors' and officers'
liability to the maximum extent permitted by Maryland law.
The charter authorizes the Company, to the maximum extent permitted by
Maryland law, to indemnify any present or former director or officer or any
individual who, while a director of the Company and at the request of the
Company, serves or has served another corporation, real estate investment trust,
partnership, joint venture, trust, employee benefit plan or other enterprise as
a director, officer, partner or trustee, from and against any claim or liability
to which that person may become subject or which that person may incur by reason
of his or her status as a present or former
director or officer of the Company and to pay or reimburse their reasonable
expenses in advance of final disposition of a proceeding. The bylaws obligate
the Company, to the maximum extent permitted by Maryland law, to indemnify any
present or former director or officer or any individual who, while a director of
the Company and at the request of the Company, serves or has served another
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise as a director, officer, partner or
trustee and who is made a party to the proceeding by reason of his service in
that capacity from and against any claim or liability to which that person may
become subject or which that person may incur by reason of his or her status as
a present or former director or officer of the Company and to pay or reimburse
their reasonable expenses in advance of final disposition of a proceeding. The
charter and bylaws also permit the Company to indemnify and advance expenses to
any person who served a predecessor of the Company in any of the capacities
described above and any employee or agent of the Company or a predecessor of the
Company.
Maryland law requires a corporation (unless its charter provides
otherwise, which the Company's charter does not) to indemnify a director or
officer who has been successful in the defense of any proceeding to which he is
made a party by reason of his service in that capacity. Maryland law permits a
corporation to indemnify its present and former directors and officers, among
others, against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service in those or other capacities unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (i) was committed in
bad faith or (ii) was the result of active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal proceeding, the director
or officer had reasonable cause to believe that the act or omission was
unlawful. However, under Maryland law, a Maryland corporation may not indemnify
for an adverse judgment in a suit by or in the right of the corporation or for a
judgment of liability on the basis that personal benefit was improperly
received, unless in either case a court orders indemnification and then only for
expenses. In addition, Maryland law permits a corporation to advance reasonable
expenses to a director or officer upon the corporation's receipt of (a) a
written affirmation by the director or officer of his good faith belief that he
has met the standard of conduct necessary for indemnification by the corporation
and (b) a written undertaking by him or on his behalf to repay the amount paid
or reimbursed by the corporation if it is ultimately determined that the
standard of conduct was not met.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
The Company has also agreed to indemnify its directors and executive
officers to the maximum extent permitted by Maryland law, and pay such persons'
expenses in defending any civil or criminal proceeding in advance of final
disposition of such proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
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4.1 Form of certificate for common stock*
5.1 Opinion of Venable LLP relating to the legality of the securities being registered hereby
10.1 Arbor Realty Trust, Inc. 2003 Omnibus Stock Incentive Plan, as amended and restated**
23.1 Consent of Ernst & Young LLP, independent registered public accounting firm
23.2 Consent of Venable LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on signature page)
* Incorporated by reference to the Company's Registration Statement on Form
S-11 (Registration No. 333-110472), as amended. Such registration
statement was originally filed with the Securities and Exchange Commission
on November 13, 2003.
** Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 2004.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in City of Uniondale, State of New York, on December 17, 2004.
ARBOR REALTY TRUST, INC.
By: /s/ Frederick C. Herbst
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Name: Frederick C. Herbst
Title: Chief Financial Officer and Treasurer
POWER OF ATTORNEY
Each of the undersigned officers and directors of Arbor Realty Trust,
Inc., a Maryland corporation, hereby constitutes and appoints Frederick C.
Herbst and Walter K. Horn and each of them, severally, as his attorney-in-fact
and agent, with full power of substitution and resubstitution, in his name and
on his behalf, to sign in any and all capacities this Registration Statement and
any and all amendments (including post-effective amendments) and exhibits to
this Registration Statement and any and all applications and other documents
relating thereto, with the Securities and Exchange Commission, with full power
and authority to perform and do any and all acts and things whatsoever which any
such attorney or substitute may deem necessary or advisable to be performed or
done in connection with any or all of the above-described matters, as fully as
each of the undersigned could do if personally present and acting, hereby
ratifying and approving all acts of any such attorney or substitute.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
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/s/ Ivan Kaufman Chairman of the Board, Chief December 17, 2004
- ------------------------------------ Executive Officer and
Ivan Kaufman President (Principal
executive officer)
/s/ Frederick C. Herbst Chief Financial Officer and December 17, 2004
- ------------------------------------ Treasurer
Frederick C. Herbst (Principal financial officer)
/s/ William Helmreich Director December 17, 2004
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William Helmreich
SIGNATURE TITLE DATE
/s/ Walter K. Horn Director December 17, 2004
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Walter K. Horn
/s/ C. Michael Kojaian Director December 17, 2004
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C. Michael Kojaian
/s/ Melvin F. Lazar Director December 17, 2004
- ------------------------------------
Melvin F. Lazar
/s/ Joseph Martello Director December 17, 2004
- ------------------------------------
Joseph Martello
/s/ Jonathan A. Bernstein Director December 17, 2004
- ------------------------------------
Jonathan A. Bernstein
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
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4.1 Form of certificate for common stock*
5.1 Opinion of Venable LLP relating to the legality of the securities
being registered hereby
10.1 Arbor Realty Trust, Inc. 2003 Omnibus Stock Incentive Plan, as amended
and restated**
23.1 Consent of Ernst & Young LLP, independent registered public accounting
firm
23.2 Consent of Venable LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on signature page)
99.1 Arbor Realty Trust, Inc. 2003 Omnibus Stock Incentive Plan, as amended
and restated**
* Incorporated by reference to the Company's Registration Statement on Form
S-11 (Registration No. 333-110472), as amended. Such registration statement
was originally filed with the Securities and Exchange Commission on November
13, 2003.
** Incorporated by reference to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 2004.