AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 24, 1999
REGISTRATION NO. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
RECKSON SERVICE INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-3383642
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
225 BROADHOLLOW ROAD
MELVILLE, NEW YORK 11747
(516) 719-7400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------
RECKSON SERVICE INDUSTRIES, INC. 1998 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
-----------------------
SCOTT RECHLER
PRESIDENT, CHIEF EXECUTIVE OFFICER AND DIRECTOR
RECKSON SERVICE INDUSTRIES, INC.
225 BROADHOLLOW ROAD
MELVILLE, NEW YORK 11747
(516) 719-7400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Title of Securities Amount to Proposed maximum Proposed maximum Amount of registration
to be registered be registered offering price per aggregate offering fee
unit price
- ---------------------------------- ---------------------- ------------------------- ------------------------ ----------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Common Stock, par value
$.01 per share............... 100,000 (1) $12.91 (2) $1,291,000 (3) $359 (4)
===================================================================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
1998 Employee Stock Option Plan with respect to which no additional
consideration will be paid (i) in the event of a stock dividend, reverse
stock split, split up, recapitalization or capital adjustments and (ii)
that are issuable pursuant to dividend equivalent rights relating to
stock options issued under the 1998 Employee Stock Option Plan.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act").
(3) Calculated pursuant to Rule 457(c) and (h) under the Securities Act based
on the average of the high and low prices for the Common Stock reported
in the consolidated reporting system for last reported over-the-counter
securities on August 19, 1999.
(4) In accordance with Rule 457(h), the filing fee is based on the maximum
number of the registrant's securities issuable under the 1998 Employee
Stock Option Plan that are covered by this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of
Form S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
Such documents and the documents incorporated by reference herein pursuant to
Item 3 of Part II hereof, 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.
Reckson Service Industries, Inc. (the "Company") hereby incorporates
by reference the documents listed in (a), (b), (c) and (d) below which have
previously been filed with the Securities and Exchange Commission.
(a) The Annual Report on Form 10-K for the year ended December
31, 1998.
(b) The quarterly reports on Form 10-Q for the quarters ended
March 31, 1999 and June 30, 1999.
(c) The current reports on Form 8-K (including Form 8-KA) and
filed on January 19, 1999, January 25, 1999, March 24, 1999,
April 16, 1999, July 16, 1999 and August 13, 1999,
respectively.
(d) The description of the Company's Common Stock contained in
the section entitled "Description of RSI Capital Stock" in
the Company's registration statement on Form S-1, as
amended, filed on January 16, 1998 pursuant to the
Securities Act.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
remaining unsold shall be deemed to be incorporated by reference herein 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
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (the "Delaware Law") provides
that a corporation may limit the liability of each director to the corporation
of its stockholders for monetary damages except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders; (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law; (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases, and
(iv) for any transaction from which the director derives an improper personal
benefit. The First Amended and Restated Certificate of Incorporation and
Bylaws of the Company (the "Amended and Restated Certificate of Incorporation"
and "Bylaws", respectively) provide for the elimination and limitation of the
personal liability of directors of the Company for monetary damages to the
fullest extent permitted by the Delaware Law. In addition, the Amended and
Restated Certificate of Incorporation and Bylaws provide that if the Delaware
Law is amended to authorize the further elimination or limitation of the
liability of a director, then the liability of the directors shall be
eliminated or limited to the fullest extent permitted by the Delaware Law, as
so amended. The effect of this provision is to eliminate the rights of the
Company or any stockholder to seek non-monetary relief such as an injunction
or rescission in the event of a breach of a director's duty of care. In
addition, the Bylaws provide that the Company shall, to the fullest extent
permitted by the Delaware law, as amended from time to time, indemnify and
advance expenses to each of its currently acting and former directors,
officers, members of the management advisory committee, employees and agents.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
3(a)* Certificate of Incorporation of the Company.
3(b)* Bylaws of the Company.
3(c)** Amended and Restated Certificate of Incorporation of the Company.
4(a)* Specimen Share Certificate of Common Stock.
4(b) Reckson Service Industries, Inc. 1998 Employee Stock Option Plan.
5 Opinion of Brown & Wood LLP.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
23(b) Consent of Ernst & Young LLP.
23(c) Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on page 5).
* Previously filed as an exhibit to Registration Statement on Form
S-1 (No. 333-44419) and incorporated herein by reference.
** Previously filed as an exhibit to Annual Report on Form 10-K (No.
001-14183) and incorporated herein by reference.
ITEM 9. UNDERTAKINGS
The undersigned registrants hereby undertake:
(a)(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;
(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;
provided, however that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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 the 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) 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 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at the 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 provisions referred to in Item 6 of
this registration statement, 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, Reckson
Service Industries, Inc. certifies that is 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 The Township of Huntington, State
of New York, on August 23, 1999.
RECKSON SERVICE INDUSTRIES, INC.
By: /s/ SCOTT RECHLER
-----------------------------
(Scott Rechler)
President, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that we, the undersigned officers
and directors of Reckson Service Industries, Inc. hereby severally constitute
Scott H. Rechler, Mitchell D. Rechler, and Michael Maturo, and each of them
singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement filed herewith and any and all amendments to
said Registration Statement, and generally to do all such things in our names
and in our capacities as officers and directors to enable Reckson Service
Industries, Inc. to comply with the provisions of the Securities Act of 1933,
and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ SCOTT H. RECHLER President, Chief Executive Officer and Director August 23, 1999
- ------------------------
(Scott H. Rechler)
/s/ MICHAEL MATURO Executive Vice President, Chief Financial Officer and Director August 23, 1999
- ------------------------ (Financial Officer and Accounting Officer)
(Michael Maturo)
/s/ DONALD J. RECHLER Chairman of the Board and Director August 23, 1999
- ------------------------
(Donald J. Rechler)
/s/ ROGER M. RECHLER Member of Management Advisory Committee and Director August 23, 1999
- ------------------------
(Roger M. Rechler)
/s/ MITCHELL D. RECHLER Secretary, Member of Management Advisory Committee and August 23, 1999
- ------------------------ Director
(Mitchell D. Rechler)
/s/ GREGG M. RECHLER Member of Management Advisory Committee and Director August 23, 1999
- ------------------------
(Gregg M. Rechler))
/s/ PAUL AMORUSO Director August 23, 1999
- ------------------------
(Paul Amoruso)
/s/ RONALD COOPER Director August 23, 1999
- ------------------------
(Ronald Cooper)
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
3(a)* Certificate of Incorporation of the Company.
3(b)* Bylaws of the Company.
3(c)** Amended and Restated Certificate of Incorporation of the Company.
4(a)* Specimen Share Certificate of Common Stock.
4(b) Reckson Service Industries, Inc. 1998 Employee Stock Option Plan. 7
5 Opinion of Brown & Wood LLP. 17
23(a) Consent of Brown & Wood LLP (included as part of
Exhibit 5).
23(b) Consent of Ernst & Young LLP. 18
23(c) Consent of PricewaterhouseCoopers LLP. 19
24 Power of Attorney (included on page 5).
</TABLE>
* Previously filed as an exhibit to Registration Statement on Form
S-11 (No. 333-44419) and incorporated herein by reference.
** Previously filed as an exhibit to Annual Report on Form 10-K (No.
001-14183) and incorporated herein by reference.
EXHIBIT 4(b)
RECKSON SERVICE INDUSTRIES, INC.
1998 EMPLOYEE STOCK OPTION PLAN
ARTICLE 1. GENERAL
1.1. Purpose. The purpose of the Reckson Service Industries, Inc.
1998 Stock Option Plan (the "Plan") is to provide for a broad base of
officers, directors and key employees, as defined in Section 1.3, of Reckson
Service Industries, Inc. (the "Company") and certain of its Affiliates (as
defined below) an equity-based incentive to maintain and enhance the
performance and profitability of the Company.
1.2. Administration.
(a) The Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Company (the "Board"), which
Committee shall consist of two or more directors, or by the Board. It is
intended that the directors appointed to serve on the Committee shall be
"non-employee directors" (within the meaning of Rule 16b-3 promulgated under
the Securities Exchange Act of 1934 (the "Act")); however, the mere fact that
a Committee member shall fail to qualify under either of these requirements
shall not invalidate any award made by the Committee which award is otherwise
validly made under the Plan. The members of the Committee shall be appointed
by, and may be changed at any time and from time to time in the discretion of,
the Board.
(b) The Committee shall have the authority (i) to exercise all of the powers
granted to it under the Plan, (ii) to construe, interpret and implement the
Plan and any Plan Agreements executed pursuant to the Plan, (iii) to
prescribe, amend and rescind rules relating to the Plan, (iv) to make any
determination necessary or advisable in administering the Plan, and (v) to
correct any defect, supply any omission and reconcile any inconsistency in the
Plan. The Committee shall have no authority to interpret or administer Article
5 of the Plan or to take any action with respect to any awards thereunder.
(c) The determination of the Committee on all matters relating to the Plan or
any Plan Agreement shall be conclusive.
(d) No member of the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any award hereunder.
(e) Notwithstanding anything to the contrary contained herein, the Board may,
in its sole discretion, at any time and from time to time, resolve to
administer the Plan, in which case, the term Committee as used herein shall be
deemed to mean the Board.
1.3. Persons Eligible for Awards. Awards under the Plan may be made
to such officers, directors and key employees ("key personnel") of the Company
or its Affiliates as the Committee shall from time to time in its sole
discretion select. No member of the Board who is not an officer or employee of
the Company or an Affiliate shall be eligible to receive any Awards under the
Plan.
1.4. Types of Awards Under Plan.
(a) Awards may be made under the Plan in the form of (i) stock options
("options"), (ii) restricted stock awards, and (iii) unrestricted stock awards
in lieu of cash compensation, all as more fully set forth in Articles 2 and 3.
(b) Options granted under the Plan will be "nonqualified" stock options
("NQSOs"). Grants of options made under the Plan may also be made in lieu of
cash fees otherwise payable to Directors of the Company or cash bonuses
payable to employees of the Company or any Affiliate.
1.5. Shares Available for Awards.
(a) Subject to Section 4.5 (relating to adjustments upon changes in
capitalization), as of any date the total number of shares of Common Stock
with respect to which awards may be granted under the Plan, shall equal the
excess (if any) of 100,000 shares of Common Stock, over (i) the number of
shares of Common Stock subject to outstanding awards, (ii) the number of
shares in respect of which options have been exercised, or grants of
restricted or unrestricted Common Stock have been made pursuant to the Plan,
and (iii) the number of shares issued subject to forfeiture restrictions which
have lapsed.
In accordance with (and without limitation upon) the preceding sentence,
awards may be granted in respect of the following shares of Common Stock:
shares covered by previously-granted awards that have expired, terminated or
been cancelled for any reason whatsoever (other than by reason of exercise or
vesting).
(b) Shares of Common Stock that shall be subject to issuance pursuant to the
Plan shall be authorized and unissued or treasury shares of Common Stock, or
shares of Common Stock purchased on the open market or from shareholders of
the Company for such purpose.
(c) Without limiting the generality of the foregoing, the Committee may, with
the grantee's consent, cancel any award under the Plan and issue a new award
in substitution therefor upon such terms as the Committee may in its sole
discretion determine, provided that the substituted award shall satisfy all
applicable Plan requirements as of the date such new award is made.
1.6. Definitions of Certain Terms.
(a) The term "Affiliate" as used herein means Reckson Strategic Venture
Partners, LLC, RSVP Holdings LLC and such other companies as the Committee may
determine in its sole discretion, and any person or entity as subsequently
approved by the Board which, at the time of reference, directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, the Company.
(b) The term "Cause" shall mean a finding by the Committee that the recipient
of an award under the Plan has (i) acted with gross negligence or willful
misconduct in connection with the performance of his material duties to the
Company or its Affiliates; (ii) defaulted in the performance of his material
duties to the Company or its Affiliates and has not corrected such action
within 15 days of receipt of written notice thereof; (iii) willfully acted
against the best interests of the Company or its Affiliates, which act has had
a material and adverse impact on the financial affairs of the Company or its
Affiliates; or (iv) been convicted of a felony or committed a material act of
common law fraud against the Company, its Affiliates or their employees and
such act or conviction has, or the Committee reasonably determines will have,
a material adverse effect on the interests of the Company or its Affiliates.
(c) The term "Common Stock" as used herein means the shares of common stock of
the Company as constituted on the effective date of the Plan, and any other
shares into which such common stock shall thereafter be changed by reason of a
recapitalization, merger, consolidation, split-up, combination, exchange of
shares or the like.
(d) The "fair market value" (or "FMV") as of any date and in respect of any
share of Common Stock shall be:
(i) if the Common Stock is listed for trading on the New
York Stock Exchange, the closing price, regular way, of the
Common Stock as reported on the New York Stock Exchange
Composite Tape, or if no such reported sale of the Common
Stock shall have occurred on such date, on the next
preceding date on which there was such a reported sale; or
(ii) if the Common Stock is not so listed but is listed on
another national securities exchange or authorized for
quotation on the National Association of Securities Dealers
Inc.'s NASDAQ National Market System ("NASDAQ/NMS"), the
closing price, regular way, of the Common Stock on such
exchange or NASDAQ/NMS, as the case may be, on which the
largest number of shares of Common Stock have been traded in
the aggregate on the preceding twenty trading days, or if no
such reported sale of the Stock shall have occurred on such
date on such exchange or NASDAQ/NMS, as the case may be, on
the preceding date on which there was such a reported sale
on such exchange or NASDAQ/NMS, as the case may be; or
(iii) if the Stock is not listed for trading on a national
securities exchange or authorized for quotation on
NASDAQ/NMS, the average of the closing bid and asked prices
as reported by the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") or, if no such
prices shall have been so reported for such date, on the
next preceding date for which such prices were so reported;
or if not quoted on NASDAQ, as determined in good faith by
the Committee.
1.7. Agreements Evidencing Awards.
(a) Options and restricted stock awards granted under the Plan shall be
evidenced by written agreements. Any such written agreements shall (i) contain
such provisions not inconsistent with the terms of the Plan as the Committee
may in its sole discretion deem necessary or desirable and (ii) be referred to
herein as "Plan Agreements."
(b) Each Plan Agreement shall set forth the number of shares of Common Stock
subject to the award granted thereby.
(c) Each Plan Agreement with respect to the granting of an option shall set
forth the amount (the "option exercise price") payable by the grantee to the
Company in connection with the exercise of the option evidenced thereby. The
option exercise price per share shall not be less than 100% of the fair market
value of a share of Common Stock on the date the option is granted.
ARTICLE 2. STOCK OPTIONS
2.1. Option Awards.
(a) Grant of Stock Options. The Committee may grant options to purchase shares
of Common Stock in such amounts and subject to such terms and conditions as
the Committee shall from time to time in its sole discretion determine,
subject to the terms of the Plan.
(b) Dividend Equivalent Rights. To the extent expressly provided by the
Committee at the time of the grant, each NQSO granted under this Section 2.1
shall also generate Dividend Equivalent Rights ("DERs"), which shall entitle
the grantee to receive an additional share of Common Stock for each DER
received upon the exercise of the NQSO, at no additional cost, based on the
formula set forth herein. As of the last business day of each calendar
quarter, the amount of dividends paid by the Company on each share of Common
Stock with respect to that quarter shall be divided by the FMV per share to
determine the actual number of DERs accruing on each share subject to the
NQSO. Such amount of DERs shall be multiplied by the number of shares covered
by the NQSO to determine the number of DERs which accrued during such quarter.
The provisions of this Section 2.1(b) shall not be amended more than once
every six months other than to comport with changes in the Code, the Employee
Retirement Income Security Act ("ERISA") or the rules thereunder.
For example. Assume that a grantee holds a NQSO to purchase 600 shares of
Common Stock. Further assume that the dividend per share for the first quarter
was $0.10, and that the FMV per share on the last business day of the quarter
was $20. Therefore, .005 DER would accrue per share for that quarter and such
grantee would receive three DERs for that quarter (600 X .005). For purposes
of determining how many DERs would accrue during the second quarter, the NQSO
would be considered to be for 603 shares of Common Stock.
2.2. Exercisability of Options. Subject to the other provisions
of the Plan:
(a) Exercisability Determined by Plan Agreement. Each Plan Agreement shall set
forth the period during which and the conditions subject to which the option
shall be exercisable (including, but not limited to vesting of such options),
as determined by the Committee in its discretion.
(b) Partial Exercise Permitted. Unless the applicable Plan Agreement otherwise
provides, an option granted under the Plan may be exercised from time to time
as to all or part of the full number of shares for which such option is then
exercisable, in which event the DERs relating to the portion of the option
being exercised shall also be exercised.
(c) Notice of Exercise; Exercise Date.
(i) An option shall be exercisable by the filing of a
written notice of exercise with the Company, on such form
and in such manner as the Committee shall in its sole
discretion prescribe, and by payment in accordance with
Section 2.4.
(ii) Unless the applicable Plan Agreement otherwise
provides, or the Committee in its sole discretion otherwise
determines, the date of exercise of an option shall be the
date the Company receives such written notice of exercise
and payment.
2.3. Limitation on Exercise. Notwithstanding any other provision of
the Plan, no Plan Agreement shall permit an ISO to be exercisable more than 10
years after the date of grant.
2.4. Payment of Option Price.
(a) Tender Due Upon Notice of Exercise. Unless the applicable Plan Agreement
otherwise provides or the Committee in its sole discretion otherwise
determines, any written notice of exercise of an option shall be accompanied
by payment of the full purchase price for the shares being purchased.
(b) Manner of Payment. Payment of the option exercise price shall be made in
any combination of the following:
(i) by certified or official bank check payable to the
Company (or the equivalent thereof acceptable to the
Committee);
(ii) by personal check (subject to collection), which may in
the Committee's discretion be deemed conditional;
(iii) with the consent of the Committee in its sole
discretion, by delivery of previously acquired shares of
Common Stock owned by the grantee for at least six months
having a fair market value (determined as of the option
exercise date) equal to the portion of the option exercise
price being paid thereby, provided that the Committee may
require the grantee to furnish an opinion of counsel
acceptable to the Committee to the effect that such delivery
would not result in the grantee incurring any liability
under Section 16(b) of the Act and does not require any
Consent (as defined in Section 4.2); and
(iv) with the consent of the Committee in its sole
discretion, by the full recourse promissory note and
agreement of the grantee providing for payment with interest
on the unpaid balance accruing at a rate not less than that
needed to avoid the imputation of income under Section 7872
of the Internal Revenue Code of 1986 (the "Code") and upon
such terms and conditions (including the security, if any,
therefor) as the Committee may determine; and
(v) by withholding shares of Common Stock from the shares
otherwise issuable pursuant to the exercise.
(c) Cashless Exercise. Payment in accordance with Section 2.4(b) may be deemed
to be satisfied, if and to the extent provided in the applicable Plan
Agreement, by delivery to the Company of an assignment of a sufficient amount
of the proceeds from the sale of Common Stock acquired upon exercise to pay
for all of the Common Stock acquired upon exercise and an authorization to the
broker or selling agent to pay that amount to the Company, which sale shall be
made at the grantee's direction at the time of exercise, provided that the
Committee may require the grantee to furnish an opinion of counsel acceptable
to the Committee to the effect that such delivery would not result in the
grantee incurring any liability under Section 16 of the Act and does not
require any Consent (as defined in Section 4.2).
(d) Issuance of Shares. As soon as practicable after receipt of full payment,
the Company shall, subject to the provisions of Section 4.2, deliver to the
grantee one or more certificates for the shares of Common Stock so purchased,
which certificates may bear such legends as the Company may deem appropriate
concerning restrictions on the disposition of the shares in accordance with
applicable securities laws, rules and regulations or otherwise.
2.5. Default Rules Concerning Termination of Employment.
Subject to the other provisions of the Plan and unless the applicable Plan
Agreement otherwise provides:
(a) General Rule. All options granted to a grantee shall terminate upon the
grantee's termination of employment for any reason except to the extent
post-employment exercise of the option is permitted in accordance with this
Section 2.5.
(b) Termination for Cause. All unexercised or unvested options granted to a
grantee shall terminate and expire on the day a grantee's employment is
terminated for Cause.
(c) Regular Termination; Leave of Absence. If the grantee's employment
terminates for any reason other than as provided in subsection (b), (d) or (f)
of this Section 2.5, any awards granted to such grantee which were exercisable
immediately prior to such termination of employment may be exercised, and any
awards subject to vesting may continue to vest, until the earlier of either:
(i) 90 days after the grantee's termination of employment and (ii) the date on
which such options terminate or expire in accordance with the provisions of
the Plan (other than this Section 2.5) and the Plan Agreement; provided that
the Committee may, in its sole discretion, determine such other period for
exercise in the case of a grantee whose employment terminates solely because
the grantee's employer ceases to be an Affiliate or the grantee transfers
employment with the Company's consent to a purchaser of a business disposed of
by the Company. The Committee may, in its sole discretion, determine (i)
whether any leave of absence (including short-term or long-term disability or
medical leave) shall constitute a termination of employment for purposes of
the Plan and (ii) the effect, if any, of any such leave on outstanding awards
under the Plan.
(d) Retirement. If a grantee's employment terminates by reason of retirement
(i.e., the voluntary termination of employment by a grantee after attaining
the age of 55), the options exercisable by the grantee immediately prior to
the grantee's retirement shall be exercisable by the grantee until the earlier
of (i) 12 months after the grantee's retirement and (ii) the date on which
such options terminate or expire in accordance with the provisions of the Plan
(other than this Section 2.5) and the Plan Agreement.
(e) Death After Termination. If a grantee's employment terminates in the
manner described in subsections (c) or (d) of this Section 2.5 and the grantee
dies within the period for exercise provided for therein, the options
exercisable by the grantee immediately prior to the grantee's death shall be
exercisable by the personal representative of the grantee's estate or by the
person to whom such options pass under the grantee's will (or, if applicable,
pursuant to the laws of descent and distribution) until the earlier of (i) 12
months after the grantee's death and (ii) the date on which such options
terminate or expire in accordance with the provisions of subsections (c) or
(d) of this Section 2.5.
(f) Death Before Termination. If a grantee dies while employed by the Company
or any Affiliate, all options granted to the grantee but not exercised before
the death of the grantee, whether or not exercisable by the grantee before the
grantee's death, shall immediately become and be exercisable by the personal
representative of the grantee's estate or by the person to whom such options
pass under the grantee's will (or, if applicable, pursuant to the laws of
descent and distribution) until the earlier of (i) 12 months after the
grantee's death and (ii) the date on which such options terminate or expire in
accordance with the provisions of the Plan (other than this Section 2.5) and
the Plan Agreement.
ARTICLE 3. RESTRICTED STOCK AND UNRESTRICTED STOCK AWARDS
3.1. Restricted Stock Awards.
(a) Grant of Awards. The Committee may grant restricted stock awards, alone or
in tandem with other awards, under the Plan in such amounts and subject to
such terms and conditions as the Committee shall from time to time in its sole
discretion determine; provided, however, that the grant of any such restricted
stock awards may be made only in lieu of cash compensation and bonuses. The
vesting of a restricted stock award granted under the Plan may be conditioned
upon the completion of a specified period of employment with the Company or
any Affiliate, upon the attainment of specified performance goals, and/or upon
such other criteria as the Committee may determine in its sole discretion.
(b) Payment. Each Plan Agreement with respect to a restricted stock award
shall set forth the amount (if any) to be paid by the grantee with respect to
such award. If a grantee makes any payment for a restricted stock award which
does not vest, appropriate payment may be made to the grantee following the
forfeiture of such award on such terms and conditions as the Committee may
determine. The Committee shall have the authority to make or authorize loans
to finance, or to otherwise accommodate the financing of, the acquisition or
exercise of a restricted stock award.
(c) Forfeiture upon Termination of Employment. Unless the applicable Plan
Agreement otherwise provides or the Committee otherwise determines, (i) if a
grantee's employment terminates for any reason (including death) before all of
his restricted stock awards have vested, such awards shall terminate and
expire upon such termination of employment, and (ii) in the event any
condition to the vesting of restricted stock awards is not satisfied within
the period of time permitted therefor, such unvested shares shall be returned
to the Company.
(d) Issuance of Shares. The Committee may provide that one or more
certificates representing restricted stock awards shall be registered in the
grantee's name and bear an appropriate legend specifying that such shares are
not transferable and are subject to the terms and conditions of the Plan and
the applicable Plan Agreement, or that such certificate or certificates shall
be held in escrow by the Company on behalf of the grantee until such shares
vest or are forfeited, all on such terms and conditions as the Committee may
determine. Unless the applicable Plan Agreement otherwise provides, no share
of restricted stock may be assigned, transferred, otherwise encumbered or
disposed of by the grantee until such share has vested in accordance with the
terms of such award. Subject to the provisions of Section 4.2, as soon as
practicable after any restricted stock award shall vest, the Company shall
issue or reissue to the grantee (or to the grantee's designated beneficiary in
the event of the grantee's death) one or more certificates for the Common
Stock represented by such restricted stock award.
(e) Grantees' Rights Regarding Restricted Stock. Unless the applicable Plan
Agreement otherwise provides: (i) a grantee may vote and receive dividends on
restricted stock awarded under the Plan; and (ii) any stock received as a
distribution with respect to a restricted stock award shall be subject to the
same restrictions as such restricted stock.
3.2. Unrestricted Shares. The Committee may issue stock under the
Plan, alone or in tandem with other awards, in such amounts and subject to
such terms and conditions as the Committee shall from time to time in its sole
discretion determine; provided, however, that the grant of any such
unrestricted stock awards may be made only in lieu of cash compensation and
bonuses.
ARTICLE 4. MISCELLANEOUS
4.1. Amendment of the Plan; Modification of Awards.
(a) Plan Amendments. The Board may, without stockholder approval, at any time
and from time to time suspend, discontinue or amend the Plan in any respect
whatsoever, except that (i) no such amendment shall impair any rights under
any award theretofore made under the Plan without the consent of the grantee
of such award and (ii) except as and to the extent otherwise permitted by
Section 4.5 or 4.11, no such amendment shall cause the Plan to fail to satisfy
any applicable requirement under Rule 16b-3 without stockholder approval.
(b) Award Modifications. Subject to the terms and conditions of the Plan
(including Section 4.1(a)), the Committee may amend outstanding Plan
Agreements with such grantee, including, without limitation, any amendment
which would (i) accelerate the time or times at which an award may vest or
become exercisable and/or (ii) extend the scheduled termination or expiration
date of the award, provided, however, that no modification having a material
adverse effect upon the interest of a grantee in an award shall be made
without the consent of such grantee.
4.2. Restrictions.
(a) Consent Requirements. If the Committee shall at any time determine that
any Consent (as hereinafter defined) is necessary or desirable as a condition
of, or in connection with, the granting of any award under the Plan, the
acquisition, issuance or purchase of shares or other rights hereunder or the
taking of any other action hereunder (each such action being hereinafter
referred to as a "Plan Action"), then such Plan Action shall not be taken, in
whole or in part, unless and until such Consent shall have been effected or
obtained to the full satisfaction of the Committee. Without limiting the
generality of the foregoing, the Committee shall be entitled to determine not
to make any payment whatsoever until Consent has been given if (i) the
Committee may make any payment under the Plan in cash, Common Stock or both,
and (ii) the Committee determines that Consent is necessary or desirable as a
condition of, or in connection with, payment in any one or more of such forms.
(b) Consent Defined. The term "Consent" as used herein with respect to any
Plan Action means (i) any and all listings, registrations or qualifications in
respect thereof upon any securities exchange or other self-regulatory
organization or under any federal, state or local law, rule or regulation,
(ii) the expiration, elimination or satisfaction of any prohibitions,
restrictions or limitations under any federal, state or local law, rule or
regulation or the rules of any securities exchange or other self-regulatory
organization, (iii) any and all written agreements and representations by the
grantee with respect to the disposition of shares, or with respect to any
other matter, which the Committee shall deem necessary or desirable to comply
with the terms of any such listing, registration or qualification or to obtain
an exemption from the requirement that any such listing, qualification or
registration be made, and (iv) any and all consents, clearances and approvals
in respect of a Plan Action by any governmental or other regulatory bodies or
any parties to any loan agreements or other contractual obligations of the
Company or any Affiliate.
4.3. Non-transferability. No award granted to any grantee under the
Plan or under any Plan Agreement shall be assignable or transferable by the
grantee other than by will or by the laws of descent and distribution. During
the lifetime of the grantee, all rights with respect to any award granted to
the grantee under the Plan or under any Plan Agreement shall be exercisable
only by the grantee.
4.4. Withholding Taxes.
(a) Whenever under the Plan shares of Common Stock are to be delivered
pursuant to an award, the Committee may require as a condition of delivery
that the grantee remit an amount sufficient to satisfy all federal, state and
other governmental withholding tax requirements related thereto. Whenever cash
is to be paid under the Plan, the Company may, as a condition of its payment,
deduct therefrom, or from any salary or other payments due to the grantee, an
amount sufficient to satisfy all federal, state and other governmental
withholding tax requirements related thereto or to the delivery of any shares
of Common Stock under the Plan.
(b) Without limiting the generality of the foregoing, (i) a grantee may elect
to satisfy all or part of the foregoing withholding requirements by delivery
of unrestricted shares of Common Stock owned by the grantee for at least six
months (or such other period as the Committee may determine) having a fair
market value (determined as of the date of such delivery by the grantee) equal
to all or part of the amount to be so withheld, provided that the Committee
may require, as a condition of accepting any such delivery, the grantee to
furnish an opinion of counsel acceptable to the Committee to the effect that
such delivery would not result in the grantee incurring any liability under
Section 16(b) of the Act and (ii) the Committee may permit any such delivery
to be made by withholding shares of Common Stock from the shares otherwise
issuable pursuant to the award giving rise to the tax withholding obligation
(in which event the date of delivery shall be deemed the date such award was
exercised).
4.5. Adjustments Upon Changes in Capitalization. If and to the extent
specified by the Committee, the number of shares of Common Stock which may be
issued pursuant to awards under the Plan, the maximum number of options which
may be granted to any one person in any year, the number of shares of Common
Stock subject to awards, the option exercise price of options theretofore
granted under the Plan, and the amount payable by a grantee in respect of an
award, shall be appropriately adjusted (as the Committee may determine) for
any change in the number of issued shares of Common Stock resulting from the
subdivision or combination of shares of Common Stock or other capital
adjustments, or the payment of a stock dividend after the effective date of
the Plan, or other change in such shares of Common Stock effected without
receipt of consideration by the Company; provided that any awards covering
fractional shares of Common Stock resulting from any such adjustment shall be
eliminated. Adjustments under this Section shall be made by the Committee,
whose determination as to what adjustments shall be made, and the extent
thereof, shall be final, binding and conclusive.
4.6. Right of Discharge Reserved. Nothing in the Plan or in any Plan
Agreement shall confer upon any person the right to continue in the employment
of the Company or an Affiliate or affect any right which the Company or an
Affiliate may have to terminate the employment of such person.
4.7. No Rights as a Stockholder. No grantee or other person shall
have any of the rights of a stockholder of the Company with respect to shares
subject to an award until the issuance of a stock certificate to him for such
shares. Except as otherwise provided in Section 4.5, no adjustment shall be
made for dividends, distributions or other rights (whether ordinary or
extraordinary, and whether in cash, securities or other property) for which
the record date is prior to the date such stock certificate is issued. In the
case of a grantee of an award which has not yet vested, the grantee shall have
the rights of a stockholder of the Company if and only to the extent provided
in the applicable Plan Agreement.
4.8. Nature of Payments.
(a) Any and all awards or payments hereunder shall be granted, issued,
delivered or paid, as the case may be, in consideration of services performed
for the Company or for its Affiliates by the grantee.
(b) No such awards and payments shall be considered special incentive payments
to the grantee or, unless otherwise determined by the Committee, be taken into
account in computing the grantee's salary or compensation for the purposes of
determining any benefits under (i) any pension, retirement, life insurance or
other benefit plan of the Company or any Affiliate or (ii) any agreement
between the Company or any Affiliate and the grantee.
(c) By accepting an award under the Plan, the grantee shall thereby waive any
claim to continued exercisability or vesting of an award or to damages or
severance entitlement related to non-continuation of the award beyond the
period provided herein or in the applicable Plan Agreement, notwithstanding
any contrary provision in any written employment contract with the grantee,
whether any such contract is executed before or after the grant date of the
award.
4.9. Non-Uniform Determinations. The Committee's determinations under
the Plan need not be uniform and may be made by it selectively among persons
who receive, or are eligible to receive, awards under the Plan (whether or not
such persons are similarly situated). Without limiting the generality of the
foregoing, the Committee shall be entitled, among other things, to make
non-uniform and selective determinations, and to enter into non-uniform and
selective Plan Agreements, as to (a) the persons to receive awards under the
Plan, (b) the terms and provisions of awards under the Plan, and (c) the
treatment of leaves of absence pursuant to Section 2.7(c).
4.10. Other Payments or Awards. Nothing contained in the Plan shall
be deemed in any way to limit or restrict the Company, any Affiliate or the
Committee from making any award or payment to any person under any other plan,
arrangement or understanding, whether now existing or hereafter in effect.
4.11. Reorganization.
(a) In the event that the Company is merged or consolidated with another
corporation and, whether or not the Company shall be the surviving
corporation, there shall be any change in the shares of Common Stock by reason
of such merger or consolidation, or in the event that all or substantially all
of the assets of the Company are acquired by another person, or in the event
of a reorganization or liquidation of the Company (each such event being
hereinafter referred to as a "Reorganization Event") or in the event that the
Board shall propose that the Company enter into a Reorganization Event, then
the Committee may in its discretion, by written notice to a grantee, provide
that his options will be terminated unless exercised within 30 days (or such
longer period as the Committee shall determine in its sole discretion) after
the date of such notice; provided that if, and to the extent that, the
Committee takes such action with respect to the grantee's options not yet
exercisable, the Committee shall also accelerate the dates upon which such
options shall be exercisable. The Committee also may in its discretion by
written notice to a grantee provide that all or some of the restrictions on
any of the grantee's awards may lapse in the event of a Reorganization Event
upon such terms and conditions as the Committee may determine.
(b) Whenever deemed appropriate by the Committee, the actions referred to in
Section 4.11(a) may be made conditional upon the consummation of the
applicable Reorganization Event.
4.12. Section Headings. The section headings contained herein are for
the purposes of convenience only and are not intended to define or limit the
contents of said sections.
4.13. Effective Date and Term of Plan.
(a) The Plan has been adopted and shall be effective as of July 27, 1998.
(b) The Plan shall terminate as of July 27, 2008, and no awards shall
thereafter be made under the Plan. Notwithstanding the foregoing, all awards
made under the Plan prior to such termination date shall remain in effect
until such awards have been satisfied or terminated in accordance with the
terms and provisions of the Plan and the applicable Plan Agreement.
4.14. Governing Law. The Plan shall be governed by the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state.
EXHIBIT 5
Brown & Wood LLP
One World Trade Center
New York, New York 10048-0057
Telephone: 212-839-5300
Facsimile: 212-839-5599
August 24, 1999
Reckson Service Industries, Inc.
225 Broadhollow Road
Melville, New York 11747
Dear Sirs:
We have acted as counsel for Reckson Service Industries, Inc., a
Delaware corporation (the "Company"), in connection with the proposed filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, of a Registration Statement on Form S-8 (the "Registration
Statement") for the purpose of registering 100,000 shares of Common Stock, par
value $.01 per share (the "Common Stock") of Reckson Service Industries, Inc.
In such capacity, we have examined the First Amended and Restated Certificate
of Incorporation and Bylaws of the Company, the Reckson Service Industries,
Inc. 1998 Employee Stock Option Plan (the "Plan"), and such other documents of
the Company as we have deemed necessary or appropriate for the purposes of the
opinion expressed herein.
Based upon the foregoing, we advise you that, in our opinion when the
shares of Common Stock to be issued pursuant to the Plan have been issued and
paid for in accordance with the terms of the Plan and the Registration
Statement, such shares will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name wherever appearing in the
Registration Statement and any amendment thereto.
Very truly yours,
/s/ Brown & Wood LLP
EXHIBIT 23(b)
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration Statement
(Form S-8), pertaining to the Reckson Service Industries, Inc. 1998 Stock
Option Plan of Reckson Service Industries, Inc. (the "Company") for the
registration of 100,000 shares of common stock of our reports dated (i) March
12, 1999, with respect to the consolidated financial statements of the Company
included in its Annual Report (Form 10-K) for the year ended December 31, 1998
and for the period July 15, 1997 to December 31, 1997 filed with the
Securities and Exchange Commission on March 31, 1999, (ii) March 12, 1999,
with respect to the consolidated financial statements of Interoffice
Superholdings Corporation and Subsidiaries for the period November 9, 1998 to
December 31, 1998 included in the Company's Form 10-K filed with the
Securities and Exchange Commission on March 31, 1999, (iii) March 5, 1999,
with respect to the consolidated financial statements of RSVP Holdings, LLC
for the period February 26, 1998 to December 31, 1998, included in the
Company's Form 10-K filed with the Securities and Exchange Commission on March
31, 1999, (iv) January 4, 1999, with respect to the combined financial
statements of Xebec Management Services, inc. and affiliate for the years
ended December 31, 1997 and 1996, included in the Company's Form 8-K filed
with the Securities and Exchange Commission on January 19, 1999, (v) September
18, 1998, with respect to the consolidated financial statements of InterOffice
(Holdings) Corporation and Subsidiaries for the years ended December 31, 1997,
1996 and 1995 included in the Company's Form 8-K filed with the Securities and
Exchange Commission on January 19, 1999.
/s/ Ernst & Young LLP
New York, New York
August 18, 1999
Exhibit 23(c)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement of Reckson Service Industries, Inc. on Form S-8 of our report dated
February 26, 1999 relating to the consolidated financial statements of
ALLIANCE NATIONAL Incorporated and Subsidiaries, which appears in Reckson
Service Industries, Inc.'s Current Report on Form 8-K/A dated March 24, 1999.
/s/ PricewaterhouseCoopers LLP
New York, New York
August 20, 1999
