EXHIBIT 10.42
RECKSON ASSOCIATES REALTY CORP.
AWARD AGREEMENT
RECITALS
A. Xxxxx X. Xxxxxxx (the "Grantee") is the Co-Chief Executive Officer of
Reckson Associates Realty Corp. (the "Company").
B. The Grantee has been selected by the Compensation Committee (the
"Committee") of the Board of Directors of the Company to receive a grant of
rights (the "Rights") to receive shares of the Company's Class A common stock
(the "Common Shares"), as approved by the Board of Directors of the Company on
March 13, 2003 (the "Date of Grant").
NOW, THEREFORE, subject to the terms and conditions set forth herein, the
Company hereby grants to the Grantee 8,680 Rights, on the terms and conditions
herein set forth.
1. TERMS; VESTING OF RIGHTS.
(a) The Grantee will not possess any voting rights by virtue of the
ownership of the Rights granted hereby.
(b) Unless terminated as hereinafter provided, the Rights will be
fully earned on the second anniversary of the Date of Grant and will become
cumulatively vested with respect to thirty-three and one-third percent (33 1/3%)
of such Rights on each of the second, third and fourth anniversary of the Date
of Grant (each, a "Vesting Date") (and shall be fully vested on the fourth
anniversary of the Date of Grant), in each case provided that the Grantee
remains in continuous service with the Company or any Affiliate until the
applicable Vesting Date. For the purposes of this agreement, the continuous
service of the Grantee with the Company or any Affiliate will not be deemed to
have been interrupted, and the Grantee will not be deemed to have terminated his
service, by reason of the transfer of such service among the Company and its
Affiliates. The Grantee also will not be deemed to have terminated his service
by reason of a leave of absence approved by the Committee; however, the earning
and vesting of the Rights will be suspended during any such leave, and each date
on which a portion of the Rights otherwise would have become earned and vested
during or after the leave shall be deferred by a period equal to the length of
the leave.
(c) Notwithstanding the provisions of Section 1(b), if the Grantee's
service with the Company and all Affiliates terminates by reason of his death or
Disability, or if Grantee terminates his service with the Company for Good
Reason, prior to the Vesting Date on which the Rights would otherwise become
fully earned and vested, the Rights will become fully earned and vested.
(d) Notwithstanding the provisions of Section 1(b), if the Grantee's
service with the Company and all Affiliates is terminated by the Company and/or
such Affiliates without Cause or if there shall occur a Change in Control prior
to the Vesting Date on which the Rights
would otherwise become fully earned and vested, the Rights will become fully
earned and vested.
2. TERMINATION OF RIGHTS. Subject to the provisions of Sections 1(c) and
(d), the unearned and unvested portion of the Rights will terminate and expire
automatically and without further notice immediately upon the termination of the
Grantee's service with the Company and all Affiliates for any reason.
3. DISTRIBUTION AND PAYMENT OF RIGHTS. As soon as practicable after each
Vesting Date, the Company shall pay to the Grantee, if Common Shares are then
available for issuance under one of the existing stock option plans of the
Company, a number of Common Shares equal to the number of Rights being earned
and vesting on such Vesting Date (subject to adjustment for any stock splits,
reverse stock splits or other similar events as the Committee may determine) or,
if no Common Shares are then available, an amount of cash equal to (i) the FMV
per Common Share on the Vesting Date, multiplied by (ii) the number of earned,
vested and unexpired Rights then held by or with respect to the Grantee. The
Company shall deduct and withhold from such payments any applicable federal,
state, local or foreign taxes unless the Grantee has made arrangements
satisfactory to the Company for other payment of such taxes. Notwithstanding any
provision of any employment, severance or change of control agreement between
the Grantee and the Company to the contrary, the Grantee shall not be entitled
to receive any payment or benefit from the Company intended to defray or offset
some or all of the Grantee's income tax liability with respect to benefits under
this agreement.
4. PAYMENT OF DIVIDENDS. The Rights will accrue on a cumulative basis cash
payments equivalent to the dividends paid on the Common Shares from the Date of
Grant through the Vesting Date. Subject to the deduction and withholding from
such payments for tax purposes as described in Section 3, as soon as practicable
after any Rights become vested, the Company will pay to the Grantee in cash or
in kind (as applicable) the dividends accrued with respect to such Rights.
5. COMPLIANCE WITH LAW. The Company 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, the Rights will
not be exercisable at any time or in any manner that the exercise thereof would
result in a violation of any such law.
6. REPRESENTATIONS AND WARRANTIES OF THE GRANTEE; REGISTRATION; REPURCHASE
RIGHT. The Grantee hereby represents and warrants to and agrees with the Company
as follows:
(a) In order to comply with Section 4 hereof and any applicable
securities law, the Company may require the Grantee to furnish evidence
satisfactory to the Company (including, without limitation, a written and signed
representation letter) to the effect that all rights acquired pursuant to this
agreement were acquired by the Grantee for investment only and not for resale or
distribution.
(b) The Company shall have no obligation to register under the
Securities Act of 1933 any securities deemed to have been issued or awarded
pursuant to this agreement.
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(c) Certificates Representing Common Shares May Be Legended. The
Grantee understands and agrees that certificates representing any Common Shares
distributed with respect to the Rights may bear a legend on the face thereof (or
on the reverse thereof with a reference to such legend on the face thereof) that
restricts the sale, transfer or disposition of the Common Shares otherwise than
in accordance with this agreement.
7. 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.
8. 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.
9. TRANSFERABILITY. Neither the Rights nor any other rights granted
hereunder may be anticipated, assigned, alienated or transferred by the Grantee.
10. CERTAIN DEFINITIONS. For purposes of this agreement:
(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) "Change in Control" shall be deemed to have occurred after the
effective date of this agreement if:
(i) any Person (as defined below), 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
either (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 date hereof, 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 date
hereof whose election or nomination for election was
approved by a vote of at least a majority of the Incumbent
Directors (other than
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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 hereof, be considered an Incumbent Director; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company or any Affiliate
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), (B) 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 (C) 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) 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 stock split, stock dividend, or similar transaction), then a
"Change in Control" shall be deemed to have occurred for purposes of the
foregoing clause (i).
(c) "Disability" means any physical or mental illness, injury or
condition that would qualify the Grantee for benefits under any long-term
disability benefit plan maintained by the Company or any Affiliate and
applicable to the Grantee.
(d) "FMV" as of any date and in respect of any Common Shares shall be:
(i) if the Common Shares are listed for trading on the New York
Stock Exchange, the closing price, regular way, of the
Common Shares as reported on the New York Stock Exchange
Composite Tape, or if no such reported sale of the Common
Shares shall have occurred on such date, on the next
preceding date on which there was such a reported sale; or
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(ii) if the Common Shares are not so listed but are 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 Shares on such
exchange or NASDAQ/NMS, as the case may be, on which the
largest number of Common Shares have been traded in the
aggregate on the preceding twenty trading days, or if no
such reported sale of the Shares 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 Common Shares are 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.
(e) "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.
(f) "Person" shall have the meaning used in Sections 13(d) and 14(d)
of the Exchange Act.
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This agreement is executed by the Company as of the Date of Grant.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Executive Vice President, Treasurer
and Chief Financial Officer
The undersigned Grantee hereby acknowledges receipt of an executed original
of this agreement and accepts the Rights granted hereunder, subject to the terms
and conditions hereinabove set forth.
/s/ Xxxxx X. Xxxxxxx
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Grantee
Dated: March 13, 2003
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