EXHIBIT 10.41
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
November 14, 2002 (the "Date of Grant").
NOW, THEREFORE, subject to the terms and conditions set forth herein, the
Company hereby grants to the Grantee 35,247 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 become
cumulatively vested with respect to twenty-five percent (25%) of such Rights on
each 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 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 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 vested, the Rights will become fully 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 vested, the
Rights will become fully vested.
2. TERMINATION OF RIGHTS. Subject to the provisions of Sections 1(c) and
(d), the 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 vesting on such
Vesting Date (subject to adjustment for any stock splits, reverse stock splits
or other similar events as the Committee may determine) (a "Common Shares
Payment") 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 vested and unexpired Rights then held by or with respect to the Grantee (a
"Cash Payment"). 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.
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. TAX PAYMENTS. The Grantee is hereby also granted an award in the form of
cash payments (each, a "Tax Payment") from the Company at such times and in such
amounts so as to cover any personal federal, state and local income taxes of the
Grantee resulting from (i) the Grantee's receipt of the Rights, (ii) the payment
on each Vesting Date of a Common Shares Payment or, if no Common Shares are then
available, a Cash Payment and (iii) the cash payments made in respect of the Tax
Payments. Each of the events described in (i), (ii) and (iii) above shall be
referred to herein as a "Tax Payment Event." The Company shall make a Tax
Payment to the Grantee as soon as practicable after the occurrence of a Tax
Payment Event, subject to the Company's receipt of verification of the Grantee's
tax liability resulting from a Tax Payment Event in a form satisfactory to the
Company in its sole discretion.
6. 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.
7. 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.
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(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.
(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.
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. Neither the Rights nor any other rights granted
hereunder may be anticipated, assigned, alienated or transferred by the Grantee.
11. 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
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hereof 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 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
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occurred on such date, on the next preceding date on which
there was such a reported sale; or
(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; provided, however, that the term "Person" shall not include
(A) any current partner of Reckson Operating Partnership, L.P., any stockholder
or employee of the Company on the date hereof or any estate or member of the
immediate family of such a partner, stockholder or employee, or (B) 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.
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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
---------------------------
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
---------------------------
Grantee
Dated: November 14, 2002
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