Exhibit 10.14
AGREEMENT
Agreement dated December 30, 1999 ("Agreement") among VANTAS
Incorporated, a Nevada corporation ("VANTAS"), Reckson Service Industries, Inc.,
a Delaware corporation ("RSI"), and each of the individuals (collectively, the
"Employees") listed as a signatory to this Agreement. Unless otherwise defined,
capitalized terms shall have the meaning ascribed to such terms in the Exchange
Agreements (as hereinafter defined).
W I T N E S S E T H :
WHEREAS, each Employee is party to an agreement dated as of October
29, 1999 (collectively, the "Exchange Agreements" and each individually, an
"Exchange Agreement") with VANTAS and RSI; and
WHEREAS, the parties to the Exchange Agreements desire enter into
this Agreement to resolve certain disagreements which have arisen under the
Exchange Agreements upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and the covenants,
agreements and undertakings contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Amount of Additional Compensation. The aggregate amount of the
Additional Compensation for all purposes of the Exchange Agreements is Ten
Million Eight Hundred Eighty-One Thousand Nine Hundred and Nine Dollars
($10,881,909.00). At the Exchange Closing, the Employees, in lieu of receiving
the checks contemplated by the last sentence of Section 2(b) of their Exchange
Agreements, shall, subject to the proviso contained in Section 3(a) and the
provisions of Section 3(c) of their Exchange Agreements, have withheld the
applicable taxes which need to be paid in connection with the Exchange Closing,
which amount for all Employees is acknowledged by the Employees to be Ten
Million Eight Hundred Eighty-One Thousand Nine Hundred and Nine Dollars
($10,881,909.00). Such amount shall be allocated to the Employees in the amount
set forth opposite their names (the "Employee's Tax Share") on Schedule I
attached hereto. With respect to each Employee, any tax liabilities of any kind
in connection with the Exchange Closing which exceed such Employee's Tax Share
shall be the sole responsibility of such Employee. Each of the Employees hereby
covenants and agrees to indemnify and hold harmless each of VANTAS and RSI from
and against any tax liability (including, without limitation, interest,
penalties and reasonable attorneys' fees and disbursements related thereto)
incurred by VANTAS or RSI or their respective affiliates relating to (i) the
Exchange Closing in excess of his or her Employee's Tax Share and (ii) any loans
made by VANTAS under the Program.
2. Exchange Closing Deliveries. The Exchange Closing shall be held
at the offices of Xxxxxxx, Xxxxxxxxx LLP, 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at
11:00 a.m., (New York City time) on December 30, 1999. At the Exchange Closing,
each Employee shall deliver to RSI that number of Exchange Securities set forth
opposite his or her name on Schedule II attached hereto in exchange for that
number of RSI Shares set forth opposite his or her name on Schedule II attached
hereto. All Exchange Securities delivered by the Employees at the Exchange
Closing shall be Option Shares.
3. Remaining Exchange Closing. Notwithstanding anything to the
contrary contained in the Exchange Agreements, with respect to the balance of
each Employee's VANTAS securities not delivered to RSI at the Exchange Closing,
which balances are set forth opposite such Employee's name on Schedule III
attached hereto (the "Remaining Closing Securities"), each Employee shall
exchange at the Remaining Exchange Closing (as hereinafter defined) his or her
Remaining Closing Securities for the number of RSI Shares not delivered at the
Exchange Closing (the "Remaining RSI Shares") in the amounts set forth opposite
his or her name on Schedule III attached hereto. The closing for such exchange
("Remaining Exchange Closing") shall be held at the offices of Xxxxxxx,
Xxxxxxxxx LLP, 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at the earlier of five (5)
business days of receipt by RSI of a written notice to close issued by all of
the Employees who have not yet engaged in a Remaining Exchange Closing (which
written notice shall in no event be delivered prior to January 1, 2000 nor later
than June 30, 2000) or five (5) business days after June 30, 2000 in which event
RSI will close with all Employees who have delivered notice to close and with
such other Employees as RSI shall determine; provided, however, that if at any
time during the period commencing on January 1, 2000 and terminating on June 30,
2000, any of four (4) or more of the Employees shall have delivered written
notice to RSI to close with such Employees, then RSI shall engage in a Remaining
Exchange Closing with such Employees no later than five (5) business days after
receipt of such notice. In the event that any Employee shall fail to engage in a
Remaining Exchange Closing by June 30, 2000, RSI shall have the right, but not
the obligation, upon five (5) business days' written notice to the Employee, to
require the Employee to make arrangements to pay the requisite taxes and to
exchange his or her Remaining Closing Securities for the Remaining RSI Shares
or, in the alternative, at any time after June 30, 2000, declare the Exchange
Agreement for such Employee and this Agreement as it relates to such Employee to
be deemed to have been fully performed on the part of VANTAS and RSI for all
purposes. Notwithstanding anything to the contrary contained in the Exchange
Agreements, the Remaining Closing Securities do not need to be Option Shares and
shall consist of Employee Securities selected by the Employee in his or her sole
discretion. Each Employee hereby covenants and agrees that, at or prior to the
effective time of his or her Remaining Exchange Closing, he or she shall have
paid the total dollar amount of the tax liability associated with his or her
exchange of Remaining Closing Securities for Remaining RSI Shares; provided,
however, that such obligation shall not extend to any capital gains tax
liability personal to such Employee and which the Employee covenants to pay when
due. RSI shall have no obligation to exchange the Remaining RSI Shares for the
Remaining Closing Securities of any Employee, unless such Employee shall have
made the payment contemplated by the immediately preceding sentence. Each of the
Employees hereby covenants and agrees to indemnify and hold harmless each of
VANTAS and RSI from and against any tax liability (including, without
limitation, interest, penalties and reasonable attorneys' fees and disbursements
related thereto) incurred by VANTAS or RSI or their respective affiliates
relating to the exchange of his or her Remaining Closing Securities for
Remaining RSI Shares.
4. Remaining Exchange Closing Procedures. At each Remaining Exchange
Closing, (i) RSI shall deliver to the Employee participating therein the stock
certificates evidencing the Remaining RSI Shares registered in the name of such
Employee and (ii) the Employee participating therein shall deliver to RSI the
stock certificate(s) evidencing the Remaining Closing Securities, duly endorsed
in blank or accompanied by stock powers duly executed in blank in proper form
for transfer and with all required stock transfer stamps attached, free and
clear of any title defect, objection, security interest, pledge, encumbrance,
mortgage, lien, charge, claim, option, preferential arrangement or restriction
of any kind, including, but not limited to, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership
(collectively, "Liens"), other than those Liens, if any, existing under the
Stockholders' Agreement.
5. Non-Applicability of Preemptive Right. Each of the Employees
hereby irrevocably acknowledges and agrees that the preemptive right provisions
contained in Section 7.1 of the Stockholders' Agreement do not apply to the
financing transaction VANTAS will engage in to raise the Additional Compensation
amount covered by Section 1 hereof.
6. Miscellaneous.
(a) Each of the parties hereto hereby acknowledges and agrees that
the usage of the term "Exchange Closing" herein and in the Exchange Agreements
shall mean the closing referenced in Section 2 hereof as the "Exchange Closing"
occurring on December 30, 1999 and not the Remaining Exchange Closing.
Accordingly, and without limitation, the provisions contained in Sections 2(d)
and 2(f) of the Exchange Agreement to which Xxxxx X. Xxxxx is a signatory shall
become effective and otherwise operative immediately upon consummation of the
Exchange Closing. This Agreement and the Exchange Agreements contain, and are
intended as, a complete statement of all of the terms of the arrangements and
understandings among the parties with respect to the matters provided for herein
and therein, and supersede any previous agreements and understandings among the
parties with respect to those matters. No Employee has relied on any statement,
promise or understanding not expressly set forth in this Agreement, the Exchange
Agreements or the VANTAS Incorporated Employee Loan Plan. Except as expressly
modified by this Agreement, all of the terms and conditions of the Exchange
Agreement shall remain in full force and effect. As a result of this Agreement,
all parties hereto irrevocably acknowledge and agree that each Exchange
Agreement is being fully and duly performed in accordance with all of its terms
and conditions. In the event of any inconsistency between the terms of this
Agreement and the Exchange Agreements, this Agreement shall prevail.
(b) This Agreement shall be governed by, and construed and enforced
in accordance with the laws of the State of New York without regard to its
principles of conflicts of law. All actions and proceedings arising out of, or
relating to, this Agreement shall be heard and determined in any state or
federal court sitting in New York, New York. In the event of any dispute as to
the terms of this Agreement, the prevailing party in any litigation or other
proceeding shall be entitled to its reasonable attorneys' fees, costs and
expenses in connection therewith.
(c) All notices and other communications under this Agreement shall
be in writing and shall be hand delivered, mailed by registered or certified
mail, return receipt requested (with a copy simultaneously by ordinary mail), or
recognized overnight delivery service to the parties in the manner and with the
effect provided for in the Exchange Agreements.
(d) No provision of this Agreement may be amended or modified except
by an instrument or instruments in writing signed by the parties hereto. The
failure of a party at any time or times to require performance of any provision
hereof shall in no manner be deemed to affect the party's right at a later time
to enforce the same. No waiver by any party of the breach of any term contained
in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such breach or of the breach of any other term or provision of this
Agreement.
(e) This Agreement shall be binding on, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns. The rights and obligations of any party hereto may not be assigned or
transferred without the prior written consent of the other parties hereto.
(f) From and after the date hereof, each of the parties hereto
agrees to execute and deliver such further documents and instruments and to do
such other acts and things any of them, as the case may be, may reasonably
request in order to effectuate the transactions contemplated by this Agreement.
(g) Any word or term used in this Agreement in any form shall be
masculine, feminine, neuter, singular or plural, as proper reading requires.
(h) Time shall be of the essence with respect to all notices
required to be given, all payments and other deliveries required to be made and
all conditions required to be satisfied under this Agreement.
(i) The obligations of the Employees hereunder are not joint but
rather are several as to themselves.
IN WITNESS WHEREOF, the parties hereto have executed and delivered,
or caused the execution and delivery of, this Agreement on the date first
written above.
VANTAS INCORPORATED
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
RECKSON SERVICE INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxx X.X. Xxxxxx
-------------------------------------
Xxxxx X.X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxxx Xxxxx Xxxxxx
-------------------------------------
Xxxxxxxx Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
SCHEDULE I
Employee Additional Compensation Amount
Xxxxx X. Xxxxx $ 7,789,418
Xxxx X. Xxxxxx 1,343,987
Xxxxx X. Xxxxxxxx 451,808
Xxxxx Xxxxxxxxxx 744,025
Xxxxxx X. Xxxxxxxxx 90,272
Xxxxx X. X. Xxxxxx 135,689
Xxxxxx X. Xxxxxxxxx 148,710
Xxxxxxxx Xxxxx Xxxxxx --
Xxxxx Xxxxxx 178,000
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$10,881,909
SCHEDULE II
Employee Exchange Securities RSI Shares
Xxxxx X. Xxxxx 408,955 157,316
Xxxx X. Xxxxxx 71,756 27,603
Xxxxx X. Xxxxxxxx 23,392 8,998
Xxxxx Xxxxxxxxxx 34,822 13,395
Xxxxxx X. Xxxxxxxxx 4,819 1,854
Xxxxx X. X. Xxxxxx 6,602 2,540
Xxxxxx X. Xxxxxxxxx 8,106 3,118
Xxxxxxxx Xxxxx Xxxxxx - -
Xxxxx Xxxxxx 9,542 3,671
--------- ---------
567,994 218,495
SCHEDULE III
Remaining Remaining
Employee Closing Securities RSI Shares
Xxxxx X. Xxxxx 385,641 149,448
Xxxx X. Xxxxxx 67,666 28,825
Xxxxx X. Xxxxxxxx 22,058 6,837
Xxxxx Xxxxxxxxxx 32,836 12,042
Xxxxxx X. Xxxxxxxxx 4,544 1,884
Xxxxx X. X. Xxxxxx 6,226 2,477
Xxxxxx X. Xxxxxxxxx 7,644 2,432
Xxxxxxxx Xxxxx Xxxxxx 10,800 4,099
Xxxxx Xxxxxx 8,998 2,149
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546,413 210,193
