AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 16, 1999
REGISTRATION NO. 333-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
RECKSON ASSOCIATES REALTY CORP.
(Exact name of registrant as specified in its charter)
MARYLAND 11-3233650
- ---------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
225 BROADHOLLOW ROAD
MELVILLE, NEW YORK 11747
(516) 694-6900
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
________________________
RECKSON ASSOCIATES REALTY CORP. 1996 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
________________________
DONALD RECHLER
CHAIRMAN AND CO-CHIEF EXECUTIVE OFFICER
RECKSON ASSOCIATES REALTY CORP.
225 BROADHOLLOW ROAD
MELVILLE, NEW YORK 11747
(516) 694-6900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------- ---------------------- ------------------------- ------------------------ ----------------------
Title of Securities Amount to Proposed maximum Proposed maximum Amount of registration
to be registered be registered offering price per unit aggregate offering fee
price
- ---------------------------------- ---------------------- ------------------------- ------------------------ ----------------------
<S> <C> <C> <C>
Common Stock, par value $.01 per
share............................ 200,000 (1) $19.44 (2) $3,888,000 (3) $1,081 (4)
- ---------------------------------- ---------------------- ------------------------- ------------------------ ----------------------
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
1996 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 1996 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
on the New York Stock Exchange on September 15, 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 1996 Employee
Stock Option Plan that are covered by this Registration Statement.
<PAGE>
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 Associates Realty Corp. (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) filed on
February 5, 1999, March 1, 1999, March 26, 1999, May 11, 1999, June
7, 1999, June 25, 1999 and August 25, 1999.
(d) The description of the Company's Common Stock contained in Item 1 of
the Company's registration statement on Form 8-A, as amended, filed
on May 9, 1995 pursuant to Section 12 of the Exchange 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 Maryland General Corporation Law, as amended from time to time (the
"MGCL"), 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 as
being material to the cause of action. The Amended and Restated Articles of
Incorporation contain such a provision which eliminates such liability to the
maximum extent permitted by Maryland law.
The Amended and Restated Articles of Incorporation authorize the Company,
to the maximum extent permitted by Maryland law, to obligate itself to
indemnify and to pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to (a) any present or former director or officer
or (b) any individual who, while a director of the Company and at the request
of the Company, serves or has served another corporation, partnership, joint
venture, trust, employee benefit plan or any other enterprise as a director,
officer, partner or trustee of such corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise. The Bylaws of the Company
obligate it, to the maximum extent permitted by Maryland law, to indemnify and
to pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any present or former director or officer who is made a
party to the proceeding by reason of his service in that capacity or (b) any
individual who, while a director of the Company and at the request of the
Company, serves or has served another corporation, partnership, joint venture,
trust, employee benefit plan or any other enterprise as a director, officer,
partner or trustee of such corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise and who is made a party to the
proceeding by reason of his service in that capacity. The Amended and Restated
Articles of Incorporation 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 to any employee or agent of the Company
or a predecessor of the Company.
MGCL requires a corporation (unless its charter provides otherwise, which
the Amended and Restated Articles of Incorporation do not) to indemnify a
director or officer who has been successful, on the merits or otherwise, in
the defense of any proceeding to which he is made a party by reason of his
service in that capacity. MGCL 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, a
Maryland corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation. In addition, the MGCL requires the Company,
as a condition to advancing expenses, to obtain (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 Company as authorized by the
Bylaws and (b) a written statement by or on his behalf to repay the amount
paid or reimbursed by the Company if it shall ultimately be determined that
the standard of conduct was not met.
The Company has entered into indemnification agreements with each of its
executive officers and directors. The indemnification agreements require,
among other matters, that the Company indemnify its executive officers and
directors to the fullest extent permitted by law and advance to the executive
officers and directors all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. Under these
agreements, the Company must also indemnify and advance all expenses incurred
by executive officers and directors seeking to enforce their rights under the
indemnification agreements and may cover executive officers and directors
under the Company's directors' and officers' liability insurance. Although
indemnification agreements offer substantially the same scope of coverage
afforded the Bylaws, they provide greater assurance to directors and executive
officers that indemnification will be available, because, as contracts, they
cannot be modified unilaterally in the future by the Board of Directors or the
stockholders to eliminate the rights they provide.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
4(a)* Articles V, VI, and VII of the Amended and Restated Articles of
Incorporation of the Company.
4(b)* Articles II, VII and IX of the By-Laws of the Company.
4(c) Reckson Associates Realty Corp. 1996 Employee Stock Option Plan, as
amended through September 8, 1999.
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 6).
* Previously filed as an exhibit to Registration Statement on Form S-11
(No. 333-1280) 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Reckson
Associates Realty Corp. 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 September 8, 1999.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Donald J. Rechler
---------------------------------------
Donald J. Rechler
Chairman of the Board, Co-Chief Executive
Officer and Director
(Principal Executive Officer)
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Reckson Associates Realty Corp. hereby severally constitute Scott
H. Rechler, Mitchell D. Rechler, and J. 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 Associates
Realty Corp. 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
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<S> <C> <C>
/s/ Donald J. Rechler Chairman of the Board, Co-Chief Executive Officer and Director September 8, 1999
- --------------------------- (Principal Executive Officer)
Donald J. Rechler
/s/ Scott H. Rechler President, Co-Chief Executive Officer and Director September 8, 1999
- --------------------------- (Principal Executive Officer)
Scott H. Rechler
/s/ J. Michael Maturo Executive Vice President, Treasurer and Chief Financial Officer September 8, 1999
- --------------------------- (Principal Financial Officer and Principal Accounting Officer)
J. Michael Maturo
/s/ Roger M. Rechler Vice-Chairman of the Board, Executive Vice President and Director September 8, 1999
- ---------------------------
Roger M. Rechler
Executive Vice President, Co-Chief Operating Officer and Director
- ---------------------------
Mitchell D. Rechler
Director
- ---------------------------
Harvey R. Blau
Director
- ---------------------------
Leonard Feinstein
/s/ Herve A. Kevenides Director September 8, 1999
- ---------------------------
Herve A. Kevenides
/s/ John V.N. Klein Director September 8, 1999
- ---------------------------
John V.N. Klein
/s/ Lewis S. Ranieri Director September 8, 1999
- ---------------------------
Lewis S. Ranieri
/s/ Conrad D. Stephenson Director September 8, 1999
- ------------------------
Conrad D. Stephenson
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
4(a)* Articles V, VI and VII of the Amended and Restated
Articles of Incorporation of the Company.
4(b)* Articles II, VII and IX of the By-Laws of the
Company.
4(c) Reckson Associates Realty Corp. 1996 Employee Stock
Option Plan, as amended through September 8, 1999. 8
5 Opinion of Brown & Wood LLP. 18
23(a) Consent of Brown & Wood LLP (included as part of
Exhibit 5).
23(b) Consent of Ernst & Young LLP. 19
23(c) Consent of PricewaterhouseCoopers LLP. 20
24 Power of Attorney (included on page 6).
</TABLE>
* Previously filed as an exhibit to Registration Statement on Form S-11
(No. 333-1280) and incorporated herein by reference.
EXHIBIT 4(c)
RECKSON ASSOCIATES REALTY CORP.
1996 EMPLOYEE STOCK OPTION PLAN
AS AMENDED THROUGH SEPTEMBER 8, 1999
ARTICLE 1. GENERAL
1.1. Purpose. The purpose of the Reckson Associates Realty Corp. 1996
Employee Stock Option Plan (the "Plan") is to provide for certain employees,
as defined in Section 1.3, of Reckson Associates Realty Corp. (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. It is
the further purpose of this Plan to permit the granting of awards that will
constitute performance based compensation for certain executive officers, as
described in Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"), and regulations promulgated thereunder.
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. 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")) and "outside directors" (within the meaning
of Code Section 162(m)); 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.
(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
any key employee ("key personnel") of the Company or its Affiliates as the
Committee shall from time to time in its sole discretion select and who either
(a) is not an officer or director of the Company at the time of grant or (b)
has not previously been employed by the Company and is being issued an award
hereunder as an inducement essential to his or her entering into an employment
contract with the Company.
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 may be either (i) "nonqualified" stock
options ("NQSOs") or (ii) options intended to qualify for incentive stock
option treatment described in Code Section 422 ("ISOs").
(c) All options when granted are intended to be NQSOs, unless the applicable
Plan agreement explicitly states that the option is intended to be an ISO. If
an option is intended to be an ISO, and if for any reason such option (or any
portion thereof) shall not qualify as an ISO, then, to the extent of such
nonqualification, such option (or portion) shall be regarded as a NQSO
appropriately granted under the Plan provided that such option (or portion)
otherwise meets the Plan's requirements relating to NQSOs.
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 400,000 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) In any year, a person eligible for awards under the Plan may not be
granted options under the Plan covering a total of more than 75,000 shares of
Common Stock.
(c) 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.
(d) 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 Operating Partnership,
L.P., Reckson FS Limited Partnership, Reckson Executive Centers, L.L.C.,
Reckson Finance, Inc., Reckson Management Group, Inc. and Reckson Construction
Group, Inc., 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) 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.
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 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 Code Section 7872 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 employee 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) 36 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.
2.6. Special ISO Requirements. In order for a grantee to receive special
tax treatment with respect to stock acquired under an option intended to be an
ISO, the grantee of such option must be, at all times during the period
beginning on the date of grant and ending on the day three months before the
date of exercise of such option, an employee of the Company or any of the
Company's parent or subsidiary corporations (within the meaning of Code
Section 424), or of a corporation or a parent or subsidiary corporation of
such corporation issuing or assuming a stock option in a transaction to which
Code Section 424(a) applies. If an option granted under the Plan is intended
to be an ISO, and if the grantee, at the time of grant, owns stock possessing
more than 10% of the total combined voting power of all classes of stock of
the grantee's employer corporation or of its parent or subsidiary corporation,
then (i) the option exercise price per share shall in no event be less than
110% of the fair market value of the Common Stock on the date of such grant
and (ii) such option shall not be exercisable after the expiration of five
years after the date such option is granted.
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.
(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 no such amendment shall impair any rights under any
award theretofore made under the Plan without the consent of the grantee of
such award.
(b) Award Modifications. Subject to the terms and conditions of the Plan, 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. Nontransferability. 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 and provided further, that each ISO granted under the Plan shall
not be adjusted in a manner that causes such option to fail to continue to
qualify as an ISO within the meaning of Code Section 422. 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 shall be deemed adopted and become effective upon the approval
thereof by the Board.
(b) The Plan shall terminate 10 years after the date on which it becomes
effective, 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 10048-0557
Telephone: 212-839-5300
Facsimile: 212-839-5599
September 8, 1999
Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Dear Sirs:
We have acted as counsel for Reckson Associates Realty Corp., a Maryland
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 200,000 shares of Common Stock, par
value $.01 per share (the "Common Stock") of Reckson Associates Realty Corp.
In such capacity, we have examined the Articles of Incorporation and By-Laws
of the Company, the Reckson Associates Realty Corp. 1996 Employee Stock Option
Plan, as amended through September 8, 1999 (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 Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8), pertaining to the Reckson Associates Realty Corp. 1996 Stock
Option Plan, as amended through September 8, 1999, of Reckson Associates
Realty Corp. (the "Company") for the registration of 200,000 shares of common
stock of our reports dated (i) February 11, 1999, with respect to the
consolidated financial statements and schedule of the Company for the years
ended December 31, 1998 and 1997 included in its Annual Report (Form 10-K) and
Form 8-K filed with the Securities and Exchange Commission on March 16, 1999
and March 1, 1999, respectively and (ii) March 4, 1999 with respect to the
combined statement of revenues and certain expenses of 919 Third Avenue (as
defined therein) for the year ended December 31, 1998 included in the Company's
Form 8-K filed with the Securities and Exchange Commission on May 11, 1999.
/s/ Ernst & Young LLP
New York, New York
September 8, 1999
Exhibit 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Reckson Associates Realty Corporation ("Reckson") of our report
dated February 26, 1998, on our audits of the financial statements and
financial statement schedules of Tower Realty Trust, Inc. as of December 31,
1997 and for the period from March 27, 1997 through December 31, 1997 and
Tower Predecessor for the period from January 1, 1997 through October 15, 1997
and as of and for the year ended December 31, 1996 and 1995, which report is
included in Reckson's Form 8-K dated February 5, 1999.
/s/ PricewaterhouseCoopers LLP
New York, New York
September 15, 1999
