Exhibit 10.2
RECKSON ASSOCIATES REALTY CORP.
LONG-TERM INCENTIVE PLAN
OP UNIT AWARD AGREEMENT
Name of Grantee: _____________________ ("Grantee")
No. of LTIP OP Units: ________________________
Date of Grant: _______________
Final Acceptance Date: _______________
RECITALS
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A. The Grantee is an executive officer of Reckson Associates Realty
Corp. (the "Company") or one of its Affiliates.
B. Effective as of March 13, 2003, the Company's Board of Directors
adopted a long-term incentive plan ("LTIP") designed to provide the Company's
Executive Officers and certain other key senior employees with their
incentive compensation through March 2007.
C. The Grantee was selected by the Compensation Committee of the Board
of Directors of the Company (the "Committee") to receive an award under the
LTIP and effective as of March 13, 2003, received a grant of _____ shares, of
common stock ($0.01 par value per share) of the Company (the "Common Stock")
as a core annual long-term incentive award (the "Core Award").
D. Of the Core Award, __________ restricted shares of Common Stock have
vested (the "Vested Core Award") and _________ restricted shares of Common
Stock remain unvested (the "Unvested Core Award".)
E. The Company's Board of Directors has caused the Company's subsidiary
Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership"), to adopt a long-term incentive plan (the "OP LTIP") pursuant
to which the Grantee is eligible to rescind his or her Unvested Core Award in
exchange for a new grant (the "Substitute OP Award") under the OP LTIP
pursuant to the Agreement of Limited Partnership of the Partnership, dated as
of June 2, 1995, as amended through the date hereof (the "Partnership
Agreement"), in the form of a Partnership Interest (as defined in the
Partnership Agreement) having the rights, voting powers, restrictions,
limitations as to distributions, qualifications and terms and conditions of
redemption set forth herein and in the Amendment to the Partnership Agreement
attached hereto as Annex A (the "ALP Amendment"), such Partnership Interest
to be expressed as a number of Partnership Units (as defined in the
Partnership Agreement) which shall be referred to as Long-Term Incentive
Units ("LTIP OP Units"). Upon acceptance of this Long-Term Incentive Plan OP
Unit Award Agreement (the "Agreement"), the Grantee shall receive the number
of LTIP OP Units specified above, subject to the restrictions and conditions
set forth herein and in the Partnership Agreement.
NOW, THEREFORE, the Company hereby grants to the Grantee,
effective as of the Date of Grant specified above, the number of LTIP OP Units
listed above subject to the terms and conditions of this Agreement.
1. Acceptance:
(a) The Grantee shall have no rights with respect to this
Agreement and this Agreement shall be revocable by the Grantee until he or she
shall have accepted this Agreement prior to the close of business on the Final
Acceptance Date specified above by (i) signing and delivering to the
Partnership a copy of this Agreement, (ii) signing and delivering an amendment
to the Grantee's Amended and Restated Long-Term Incentive Award Agreement with
respect to the recission of his or her Unvested Core Award (attached hereto as
Annex B), and (iii) unless the Grantee is already a Limited Partner (as
defined in the Partnership Agreement), signing, as a Limited Partner, and
delivering to the Partnership a counterpart signature page to the Partnership
Agreement (attached hereto as Annex C). Upon acceptance of this Agreement by
the Grantee, the Partnership Agreement shall be amended to reflect the
issuance to the Grantee of the LTIP OP Units so accepted and the Partnership
shall deliver to the Grantee a certificate of the Company certifying the
number of LTIP OP Units then issued to the Grantee. Thereupon, the Grantee
shall have all the rights of a Limited Partner of the Partnership with respect
to the number of LTIP OP Units specified above, as set forth in the
Partnership Agreement, subject, however, to the restrictions and conditions
specified in Section 2 below.
(b) The LTIP OP Units will not be granted under the Company's
2002 Stock Option Plan (the "Plan") and the OP has been established as an
incentive program of the Partnership. Accordingly, the Grantee must be
eligible to receive the Substitute OP Award in compliance with applicable
Federal and state securities laws and to that effect is required to complete,
execute and deliver certain Covenants, Representations and Warranties
(attached as Annex D). However, the Committee may, in its sole and absolute
discretion, seek to have the OP LTIP become part of the Plan at a future time,
whereby the Substitute OP Award would become an award under the Plan, the LTIP
OP Units will be made convertible into Class A common operating partnership
units of the Partnership ("OPU") and the terms and conditions set forth in the
ALP Amendment under the heading "Right to Convert LTIP Units into Common
Units" will become operative. The Grantee acknowledges that if Committee
elects, in its sole discretion, to cause the LTIP OP Units to become
convertible into OPU, the terms of the LTIP OP Units will change as provided
in the ALP Amendment and the Grantee will have no right to approve or
disapprove such change. In this regard, the Company agrees that (i) the shares
of the Company's Common Stock previously granted to the Grantee pursuant to
the Unvested Core Award shall be reserved under the Plan in connection with
the possible activation of the OP Conversion Feature of the LTIP OP Units, and
(ii) such shares shall not be available for other awards under the Plan.
2. Restrictions and Conditions:
(a) The records of the Partnership evidencing the LTIP OP Units
granted herein shall bear an appropriate legend, as determined by the
Partnership in its sole discretion, to
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the effect that such LTIP OP Units are subject to restrictions as set forth
herein, in the ALP Amendment and in the Partnership Agreement.
(b) None of the LTIP OP Units awarded to the Grantee hereunder
shall be sold, assigned, transferred, pledged, hypothecated, given away or in
any other manner disposed of, encumbered, whether voluntarily or by operation
of law, or redeemed in accordance with the Partnership Agreement or the ALP
Amendment (a) prior to vesting, (b) for a period of two (2) years beginning on
Date of Grant specified above other than in connection with a
Change-in-Control, or (c) unless such transfer is in compliance with all
applicable securities laws (including, without limitation, the Securities
Act), and such disposition is in accordance with the applicable terms and
conditions of the Partnership Agreement and the ALP Amendment. In connection
with any transfer of LTIP OP Units, the Company may require the transferor to
provide at the Grantee's own expense an opinion of counsel to the transferor,
satisfactory to the Company, that such transfer is in compliance with all
foreign, federal and state securities laws (including, without limitation, the
Securities Act). Any attempted disposition of LTIP OP Units not in accordance
with the terms and conditions of this Section 2(b) shall be null and void, and
the Partnership shall not reflect on its records any change in record
ownership of any LTIP OP Units as a result of any such disposition, shall
otherwise refuse to recognize any such disposition and shall not in any way
give effect to any such disposition of any LTIP OP Units.
(c) Except as otherwise provided in Section 3 hereof or
elsewhere herein, if the Grantee's employment with the Company or its
Affiliates is voluntarily or involuntarily terminated for any reason prior to
vesting of the LTIP Units granted herein, the Grantee shall forfeit all LTIP
Units that are not vested as of the date of such termination of employment.
3. Vesting of the LTIP OP Units: The LTIP OP Units generally will
become vested as follows:
(a) 8.333% of the LTIP OP Units will become cumulatively vested
on each of the first three anniversaries of the Date of Grant (each such
anniversary hereinafter referred to as an "Annual Vesting Date"); in each case
provided that the Grantee remains in continuous employment with the Company or
any of its Affiliates until such date.
(b) 25.0% of the LTIP OP Units will become cumulatively vested
on each of the Annual Vesting Dates; in each case provided that the Grantee
remains in continuous employment with the Company or any of its Affiliates
until such date; and provided, further, that any LTIP OP Units which otherwise
would become vested on such Annual Vesting Date will not become so vested
unless the Company has achieved, with regard to each Annual Vesting Date,
during the last calendar year completed immediately preceding the applicable
Annual Vesting Date, a total return to shareholders (including all Common
Stock dividends and stock appreciation) based on the respective Annual Core
Base Price that either (i) is at or above the 50th percentile of the total
return to shareholders achieved by members of the Peer Group during the same
period, or (ii) subject to the provisions of Section 3(f), equals a total
return of at least 9% per annum. If the vesting performance requirement is not
satisfied for a given annual period other than the calendar year immediately
preceding the third Annual Vesting Date, the LTIP OP
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Units from such year or years will not be forfeited and will become vested on
any subsequent Annual Vesting Date on which the vesting performance
requirement applicable to such LTIP OP Units is satisfied on a cumulative and
compounded basis as measured for an extended performance period beginning with
the annual period for which the vesting performance requirement was not
satisfied through the calendar year ended immediately preceding the relevant
Annual Vesting Date. If necessary, this cumulative and compounded method of
satisfying the vesting performance requirement will continue to be applied on
a look-back basis on each calendar year end until the end of the three-year
vesting performance period (i.e., through the end of the calendar year
immediately preceding the third Annual Vesting Date) at which time any LTIP OP
Units subject to vesting under this Section 3(b) that have not become vested
shall become vested if at such date the vesting performance requirement is
satisfied on a cumulative and compounded basis for an extended performance
period commencing on March 13, 2003 and measured through the calendar year
ended immediately preceding the third Annual Vesting Date based upon the
Initial Core Base Price. For purposes of this Section, (i) the performance of
the Company relative to the performance of members of the Peer Group will be
determined using the VWAP for the last ten trading days of the Company's
Common Stock and the common stock of the members of the Peer Group at the
applicable calendar year end, and (ii) the per annum percentage performance of
the Company will be determined using the VWAP for the last ten trading days
for the period ending at the applicable calendar year end.
(c) Notwithstanding the foregoing, if a Change-in-Control occurs
prior to the third Annual Vesting Date and the Grantee remains in continuous
employment with the Company or any of its Affiliates until such occurrence,
all non-vested LTIP OP Units will thereupon become fully vested provided that,
if (i) a Change-in-Control shall occur and (a) the Company continues in
existence as a public company or (b) another company is the successor to the
Company in a transaction whereby holders of Common Stock receive common stock
of the successor company (or a combination of common stock and cash) and such
successor company expressly assumes the obligations of the Company as the
general partner of the Partnership, and (ii) a Change-in-Control occurs and
(a) the Partnership continues in existence as the operating partnership of the
Company (in the event described in clause (i)(a) above) or (b) another limited
partnership, limited liability company or similar entity is the successor to
the Partnership in a transaction whereby holders of OPU and LTIP OP Units
receive equity interests in such successor entity having substantially
identical rights, voting powers, restrictions, limitations as to
distributions, qualifications and terms and conditions of redemption as the
OPU and LTIP OP Units, respectively, and expressly assumes the obligations
under this Agreement, and (iii) the Grantee continues employment with the
Company or such successor company or their Affiliates, as the case may be, and
a Force Out does not occur, then no vesting shall occur under this Section
3(c) as a result of such Change-in-Control, but this Agreement and the awards
hereunder shall continue in effect on the terms hereof, subject to the
adjustment of the Annual Core Base Price as may be appropriate pursuant to
Section 7 hereof. Notwithstanding the foregoing, if a Change-in-Control
occurs, subsequent to the calendar year end immediately preceding the third
Annual Vesting Date and prior to the third Annual Vesting Date, it shall have
no effect upon the vesting (or not) of the LTIP OP Units (i.e., if the vesting
performance requirements of Section 3(b) were satisfied at the calendar year
end immediately preceding the third Annual Vesting Date
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any unvested LTIP OP Units shall vest upon such Change-in-Control and, if such
vesting performance requirements were not satisfied then any remaining LTIP OP
Units shall not vest.)
(d) Notwithstanding the foregoing, if the Grantee's employment
with the Company and all Affiliates is terminated prior to the third Annual
Vesting Date by reason of the Grantee's death or Disability, by the Grantee
for Good Reason, or by the Company or any Affiliate for any reason other than
Cause or transfer to another Affiliate, all non-vested LTIP OP Units will
thereupon become fully vested. If the Grantee's employment with the Company
and all Affiliates is terminated prior to the third Annual Vesting Date for
any other reason, any LTIP OP Units that have not yet become vested will
thereupon be forfeited.
(e) Notwithstanding the foregoing, if the Grantee remains in
continuous employment with the Company or any of its Affiliates until an
applicable Annual Vesting Date but the vesting performance requirement is not
satisfied for the calendar year end immediately preceding such date (or any
extended performance period as contemplated in Section 3(b) above), and if the
Committee determines that it nevertheless would be consistent with the spirit
and intent of this Agreement to vest some or all of the LTIP OP Units that
otherwise would have become vested on that Annual Vesting Date, then the
Committee, in its sole and absolute discretion, may elect to vest some or all
of such LTIP OP Units.
(f) Notwithstanding the foregoing, in the event that (i) the
LTIP OP Units would become vested as a result of the Company achieving a total
return of at least 9% per annum in accordance with the terms of Section 3(b),
(ii) the appreciation in the share price of the Common Stock alone has not
resulted in the Company achieving such a 9% per annum total return (i.e.,
without taking into account any dividends paid to holders of Common Stock),
and (iii) the Company's Dividend Payout Ratio with regard to its Cash
Available for Distribution exceeds 100% for any relevant annual period or
periods, the Committee may, in its sole discretion, review whether it is
appropriate for the LTIP OP Units to vest for such period or periods, and may
determine that the LTIP OP Units shall not vest, in whole or in part, based
upon such facts as it deems appropriate including, but not limited to, the
effect on the Dividend Payout Ratio of rent concessions, tenant improvements,
capital expenditures by the Company and similar matters that represent uses of
operating cash flow for the purpose of generating incremental cash flow or
other returns for the Company.
4. Distributions. Distributions on the LTIP OP Units shall be paid
currently to the Grantee in accordance with the terms of the Partnership
Agreement.
5. Adjustment. The Committee will make or provide for such
adjustments in the number of LTIP OP Units and the vesting performance
requirements applicable to LTIP OP Units, as the Committee may in good faith
determine to be equitably required in order to prevent any dilution or
expansion of the rights of the Grantee that otherwise would result from (i)
any stock dividend, stock split, combination of shares, recapitalization or
similar change in the capital structure of the Company or similar events with
respect to the partnership interests in the Partnership or (ii) any merger,
consolidation, spin-off, spin-out, split-off, split-up, reorganization,
partial or complete liquidation or other distribution of assets, issuance of
warrants
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or other rights to purchase securities or any other transaction or event
having an effect similar to any of the foregoing.
6. Compliance With Law. The Partnership and the Grantee will make
reasonable efforts to comply with all applicable securities laws. In addition,
notwithstanding any provision of this Agreement to the contrary, no LTIP OP
Units will become vested or be paid at a time that such vesting or payment
would result in a violation of any such law.
7. Investment Representation; Registration.
(a) The Grantee hereby makes the covenants, representations and
warranties and set forth on Annex D attached hereto. All of such covenants,
warranties and representations shall survive the execution and delivery of
this Agreement by the Grantee. The Grantee shall immediately notify the
Partnership upon discovering that any of the representations or warranties set
forth on Annex D were false when made or have, as a result of changes in
circumstances, become false.
(b) The Partnership may make a notation in its records and/or
affix a legend to the certificates (if any) representing the LTIP OP Units
issued pursuant to this Agreement to the effect that such units have not been
registered under the Securities Act of 1933 (the "Securities Act") and may
only be sold or transferred upon registration or pursuant to an exemption
therefrom.
(c) The Partnership will have no obligation to register under
the Securities Act any LTIP OP Units or any other securities issued pursuant
to this Agreement or upon conversion or exchange of LTIP OP Units.
8. Severability. In the event that one or more of the provisions of
this Agreement may be invalidated for any reason by a court, any provision so
invalidated will be deemed to be separable from the other provisions hereof,
and the remaining provisions hereof will continue to be valid and fully
enforceable.
9. Governing Law. This Agreement is made under, and will be construed
in accordance with, the laws of the State of New York, without giving effect
to the principle of conflict of laws of such State.
10. Transferability. This Agreement is personal to the Grantee, is
non-assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or the laws of descent and distribution.
11. Amendment. The Grantee acknowledges that this Agreement may be
amended or canceled by the Partnership for the purpose of satisfying changes
in law or for any other lawful purpose, provided that no such action shall
adversely affect the Grantee's rights under this Agreement without the
Grantee's written consent.
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12. No Obligation to Continue Employment. Neither the Company nor any
Affiliate is obligated by or as a result of this Agreement to continue the
Grantee in employment and this Agreement shall not interfere in any way with
the right of the Company or any Affiliate to terminate the employment of the
Grantee at any time.
13. Notices. Notices hereunder shall be mailed or delivered to the
Partnership at its principal place of business and shall be mailed or
delivered to the Grantee at the address on file with the Partnership or, in
either case, at such other address as one party may subsequently furnish to
the other party in writing.
14. Withholding and Taxes. No later than the date as of which an
amount first becomes includible in the gross income of the Grantee for income
tax purposes or subject to Federal Insurance Contributions Act withholding
with respect to any award under this Agreement, such Grantee will pay to the
Company or, if appropriate, any of its Affiliates, or make arrangements
satisfactory to the Committee regarding the payment of, any United States
federal, state or local or foreign taxes of any kind required by law to be
withheld with respect to such amount. The obligations of the Company under
this Agreement will be conditional on such payment or arrangements, and the
Company and its Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to the Grantee.
15. Successors and Assigns. This Agreement shall be binding upon the
Partnership's successors and assigns, whether or not this Agreement is
expressly assumed.
16. Certain Definitions.
(a) "Affiliate" means any person or entity that, at the time of
reference, is controlled by, controlling of or under common control with the
Company.
(b) "Annual Core Base Price" means with regard to each calendar
year that is used to measure whether LTIP OP Units shall vest pursuant to
Section 3(b), the VWAP for the Common Stock of the Company for the last 10
trading days of the calendar year immediately preceding such calendar year.
(c) "Cash Available for Distribution" means the Company's cash
available for distribution to holders of the Company's Common Stock on an "as
committed" basis as announced by the Company for the relevant period.
(d) "Cause" means a finding by the Company's Board of Directors
that the Grantee has (i) acted with gross negligence or willful misconduct in
connection with the performance of his material duties to the Company or any
Affiliate; (ii) defaulted in the performance of his material duties to the
Company or any Affiliate 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 any Affiliate, which act has had a material and
adverse impact on the financial affairs of the Company or such Affiliate; or
(iv) been convicted of a felony or committed a material act of common law
fraud against the Company, any Affiliate or any of
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their employees and such act or conviction has had, or the Company's Board of
Directors reasonably determines will have, a material adverse effect on the
interests of the Company or such Affiliate; provided, however, that a finding
of Cause will not become effective unless and until the Board of Directors
provides the Grantee notice that it is considering making such finding and a
reasonable opportunity to be heard by the Board of Directors.
(e) A "Change-in-Control" will be deemed to have occurred if
following the Date of Xxxxx:
(i) any Person, together with all "affiliates" and
"associates" (as such terms are defined in Rule 12b-2 under the
Securities Exchange Act of 1934 (the "Exchange Act")) of such
Person, shall become the "beneficial owner" (as such term is
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 30% or more
of (A) the combined voting power of the Company's then outstanding
securities having the right to vote in an election of the
Company's Board of Directors ("Voting Securities"), (B) the
combined voting power of the Company's then outstanding Voting
Securities and any securities convertible into Voting Securities,
or (C) the then outstanding shares of all classes of stock of the
Company; or
(ii) individuals who, as of the effective date of this
Agreement, constitute the Company's Board of Directors (the
"Incumbent Directors") cease for any reason, including, without
limitation, as a result of a tender offer, proxy contest, merger
or similar transaction, to constitute at least a majority of the
Company's Board of Directors, provided that any person becoming a
director of the Company subsequent to the effective date of this
Agreement whose election or nomination for election was approved
by a vote of at least a majority of the Incumbent Directors (other
than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the
Company, as such terms are used in Rule 14a-11 of Regulation 14A
under the Exchange Act) shall, for purposes of this Agreement, be
considered an Incumbent Director; or
(iii) consummation of (1) any consolidation or merger of the
Company or any subsidiary where the stockholders of the Company,
immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own
(as such term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, but based solely on their prior ownership
of shares of the Company, shares representing in the aggregate
more than 60% of the voting shares of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate
parent corporation, if any), or (2) any sale, lease, exchange or
other transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Company; or
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(iv) stockholder approval of any plan or proposal for the
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change-in-Control" shall
not be deemed to have occurred for purposes of the foregoing
clause (i) (A) solely as the result of an acquisition of
securities by the Company which, by reducing the number of shares
of stock or other Voting Securities outstanding, increases (x) the
proportionate number of shares of stock of the Company
beneficially owned by any Person to 30% or more of the shares of
stock then outstanding or (y) the proportionate voting power
represented by the Voting Securities beneficially owned by any
Person to 30% or more of the combined voting power of all then
outstanding Voting Securities; provided, however, that if any
Person referred to in clause (x) or (y) of this sentence shall
thereafter become the beneficial owner of any additional stock of
the Company or other Voting Securities (other than pursuant to a
share split, stock dividend, or similar transaction), then a
"Change-in-Control" shall be deemed to have occurred for purposes
of the foregoing clause (i), and (B) solely as a result of the
direct or indirect acquisition of beneficial ownership of Voting
Securities by any executive officers of the Company on the date
hereof and/or the Company, any of its subsidiaries, or any
trustee, fiduciary or other person or entity holding securities
under any employee benefit plan of the Company or any of its
subsidiaries if the Grantee is one of the executive officers
participating in such acquisition.
(f) "Disability" means that the Grantee has been unable to
efficiently perform his duties to the Company and all Affiliates because of
any physical or mental injury or illness until the earlier of such time when
(i) the period of injury or illness (whether or not the same injury or
illness) exceeds 180 consecutive days or (ii) the Grantee becomes eligible to
receive benefits under a comprehensive disability insurance policy maintained
or sponsored by the Company.
(g) "Dividend Payout Ratio" means the quotient, expressed as a
percentage, derived by dividing the aggregate dividends paid on shares of the
Company's Common Stock during a relevant period by the Cash Available for
Distribution for such period.
(h) "Employment Agreement" means the Amendment and Restatement
of Employment and Noncompetition Agreement, dated as of August 15, 2000,
between Grantee and the Company.
(i) "Force Out" means
(i) a change in duties, responsibilities, status or
positions with the Company or successor company, which, in Grantee's
reasonable judgment, does not represent a promotion from or maintaining
of Grantee's duties, responsibilities, status or positions as in effect
immediately prior to the Change-in-Control, or any removal of Grantee
from or any failure to reappoint or reelect Grantee to such positions,
except in
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connection with the termination of Xxxxxxx's employment for Cause,
disability, retirement or death;
(ii) a reduction by the Company or such successor company
in Grantee's Base Salary as in effect immediately prior to the
Change-in-Control;
(iii) the failure by the Company or such successor company
to provide and credit Grantee with the number of paid vacation days to
which Grantee is then entitled in accordance with the Company or such
successor company's normal vacation policies as in effect immediately
prior to the Change-in-Control;
(iv) the Company or such successor company requiring
Grantee to be based in an office located beyond a reasonable commuting
distance from Grantee's residence immediately prior to the
Change-in-Control, except for required travel relating to the Company or
such successor company's business to an extent substantially consistent
with the business travel obligations which Grantee undertook on behalf
of the Company or such successor company prior to the Change-in-Control;
(v) the failure by the Company or such successor company
to obtain from any successor to the Company or such successor company an
agreement to be bound by this Agreement and the Employment Agreement;
(vi) any refusal by the Company or such successor company
to continue to allow Grantee to attend to matters or engage in
activities not directly related to the business of the Company or such
successor company which, prior to the Change-in-Control, Grantee was
permitted by the Company or such successor company's Boards of Directors
to attend to or engage in; or
(vii) the failure by the Company or such successor company
to continue in effect any of the benefit plans, programs or arrangements
in which Grantee is participating at the time of the Change-in-Control
of the Company or such successor company (unless Grantee is permitted to
participate in any substitute benefit plan, program or arrangement with
substantially the same terms and to the same extent and with the same
rights as Grantee had with respect to the benefit plan, program or
arrangement that is discontinued) other than as a result of the normal
expiration of any such benefit plan, program or arrangement in
accordance with its terms as in effect at the time of the
Change-in-Control, or the taking of any action, or the failure to act,
by the Company or such successor company which would adversely affect
Xxxxxxx's continued participation in any of such benefit plans, programs
or arrangements on at least as favorable a basis to Grantee as is the
case on the date of the Change-in-Control or which would materially
reduce Xxxxxxx's benefits in the future under any of such benefit plans,
programs or arrangements or deprive Grantee of any material benefits
enjoyed by Grantee at the time of the Change-in-Control.
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(j) "Good Reason" means the occurrence of any of the following
events or conditions, which event or condition is not corrected by the Company
within 30 days of written notice from the Grantee: (i) any failure of the
Board of Directors of the Company to elect the Grantee to offices with the
same or substantially the same duties and responsibilities as in effect on the
Date of Grant, (ii) any material failure by the Company or any Affiliate to
timely pay or provide to the Grantee any compensation or benefits required to
be paid or provided under the terms of any employment or similar agreement in
effect during the term of this Agreement between the Grantee and the Company
or such Affiliate, (iii) any material breach by the Company or any Affiliate
of any other provision of any employment or similar agreement in effect during
the term of this Agreement between the Grantee and the Company or such
Affiliate, and (iv) any failure by the Company or any Affiliate to timely
offer to renew (and to hold such offer to renew open for acceptance for a
reasonable period of time) on substantially identical terms until at least the
fourth anniversary of the Date of Grant any employment agreement in effect on
the Date of Grant between the Grantee and the Company or such Affiliate.
(k) "Initial Core Base Price" means $18 per share of the Common
Stock of the Company, the closing price on the New York Stock Exchange on
March 13, 2003.
(l) "Peer Group" means the business entities set forth on
Exhibit A to this Agreement, and any successors to the businesses or assets of
such entities as determined by the Committee in its sole and absolute
discretion. If an entity listed on such Exhibit ceases to exist during the
term of this Agreement and the Committee determines that there is no successor
to the business or assets of such entity, then such entity will cease to be
treated as a member of the Peer Group to the extent and for the periods
determined by the Committee in its sole and absolute discretion.
(m) "Person" has the meaning used in Sections 13(d) and 14(d) of
the Exchange Act.
(n) "VWAP" means the volume weighted average closing price per
share of a security on the primary exchange or other quotation system on which
the security is traded.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the _____ day of __________, 2004.
RECKSON ASSOCIATES REALTY CORP.
By:
-------------------------------
Name:
Title:
RECKSON OPERATING PARTNERSHIP, L.P.
By:
-------------------------------
Name:
Title:
------------------------------------
The Grantee
Name:
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Exhibit A - Peer Group Companies
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American Financial Realty Trust
Arden Realty Group, Inc.
Boston Properties, Inc.
Brandywine Realty Trust
CarrAmerica Realty Corporation
Crescent Real Estate Equities, Inc.
Equity Office Properties Trust
Xxxx-Xxxx Realty Corporation
Xxxxxxx Properties Inc.
Xxxxxxxx Properties Trust
XX Xxxxx Realty Corporation
Trizec Properties Inc.
Vornado Realty Trust
