2003 OMNIBUS STOCK INCENTIVE
PLAN
Approved by the Company’s
Stockholders on June 18, 2009
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 and restated (the
“Plan”).
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)
“ Exercise Price ” means the per share price, if
any, at which a holder of an Option may purchase the Shares
issuable upon exercise of the Option.
(l)
“ 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 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.
(m)
“ Incentive Stock Option ” means any Option
intended to be designated as an “incentive stock
option” within the meaning of Section 422 of the
Code.
(n)
“ Manager ” means Arbor Commercial Mortgage,
LLC, a New York limited liability company.
(o)
“ Nonqualified Stock Option ” means any Option
that is not an Incentive Stock Option, including any Option that
provides (as of the time such Option is granted) that it will not
be treated as an Incentive Stock Option.
(p)
“ Option ” means an option to purchase Shares
granted pursuant to Section 6 below.
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(q)
“ 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.
(r)
“ Participant ” means any Eligible Recipient
selected by the Administrator, pursuant to the
Administrator’s authority in Section 2 below, to receive
grants of Options and/or awards of Restricted Stock.
(s)
“ Restricted Stock ” means Shares subject to
certain restrictions granted pursuant to Section 6
below.
(t)
“ Shares ” means shares of Common Stock reserved
for issuance under the Plan, as adjusted pursuant to
Sections 3 and 4, and any successor security.
(u)
“ 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 Options or awards of
Restricted Stock are to be granted hereunder to
Participants;
(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
Options or awards of Restricted Stock granted hereunder.
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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 2,385,000 shares. Such shares may
consist, in whole or in part, of authorized and unissued shares or
treasury shares.
To
the extent that (i) an Option expires or is otherwise
terminated without being exercised, or (ii) 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,
(ii) the kind, number and Exercise Price of Shares subject to
outstanding Options granted under the Plan, and (iii) the
kind, number and purchase price of Shares subject to outstanding
awards of 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.
Eligible
Recipients may be granted Options and/or awards of Restricted
Stock.
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The
Participants under the Plan shall be selected from time to time by
the Administrator, in its sole discretion, from among the Eligible
Recipients.
The
Administrator shall have the authority to grant to any Eligible
Recipient who is an employee of the Company or of any Parent or
Subsidiary (including directors who are also officers of the
Company) Incentive Stock Options, Nonqualified Stock Options, or
both types of Options, and/or Restricted Stock. Non-employee
Directors of the Company or of any Parent or Subsidiary,
consultants (including employees of the Manager who provide
services to the Company) or advisors who are not also employees of
the Company or of any Parent or Subsidiary may only be granted
Options that are Nonqualified Stock Options and/or Restricted
Stock.
Options
may be granted alone or in addition to other awards of Restricted
Stock granted under the Plan. Any Option granted under the Plan
shall be in such form as the Administrator may from time to time
approve, and the provisions of each Option need not be the same
with respect to each Participant. Participants who are granted
Options shall enter into an Award Agreement with the Company, in
such form as the Administrator shall determine, which Award
Agreement shall set forth, among other things, the Exercise Price
of the Option, the term of the Option and provisions regarding
exercisability of the Option granted thereunder.
The
Options granted under the Plan may be of two types:
(i) Incentive Stock Options and (ii)
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