As filed with the Securities and Exchange Commission on August 14, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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SL GREEN REALTY CORP.
(Exact name of registrant as specified in its charter)
Maryland 13-3956775
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
70 West 36th Street
New York, New York 10018
(212) 594-2700
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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SL Green Realty Corp. Amended 1997 Stock Option and Incentive Plan
(Full title of the plan)
STEPHEN L. GREEN
Principal Executive Officer and
Chairman of the Board of Directors
SL Green Realty Corp.
70 West 36th Street
New York, New York 10018
(212) 594-2700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to Proposed maximum offering Proposed maximum Amount of
to be registered be registered(1) price per unit(2) aggregate offering registration fee(3)
price(2)
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Common Stock, par value
$.01 per share ........ 1,700,000 shares $21.09 $35,853,000 $10,577
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(1) Plus such additional number of shares as may be required pursuant to
the Amended 1997 Stock Option and Incentive Plan (i) with respect to
which no additional consideration will be paid 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 Amended 1997 Stock
Option and Incentive Plan.
(2) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, this
estimate is made solely for the purpose of calculating the amount of
the registration fee and is based on the average of the high and low
prices of the Common Stock on the New York Stock Exchange on August 7,
1998.
(3) In accordance with Rule 457(h), the filing fee is based on the maximum
number of the registrant's securities issuable under the Plan that are
covered by this Registration Statement.
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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.
SL Green 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, 1997,
filed on March 31, 1998 pursuant to Section 13 of the Securities Exchange Act of
1934 (the "Exchange Act").
(b) The Quarterly Reports on Form 10-Q for the quarter ended March 31, 1998
filed on May 15, 1998 and the quarter ended June 30, 1998 filed on August 14,
1998.
(c) The current reports on Form 8-K (including Form 8-K/A) filed on
January 2, 1998, January 5, 1998, February 3, 1998, March 3, 1998, March 31,
1998 and May 11, 1998 pursuant to Section 13 of the Exchange Act.
(d) The description of the Company's Common Stock contained in the
registration statements on Form 8-A filed on July 21, 1997 pursuant to
Section 12 of the Exchange Act and Form S-11 filed on June 16, 1997 pursuant to
rule 424 (b) under the Securities Act of 1933.
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 to modified or superseded, to constitute a part hereof.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's officers and directors are and will be indemnified under
Maryland and Delaware law, the Charter and Bylaws of the Company and the
Partnership Agreement of the Operating Partnership against certain liabilities.
The Company's Charter requires the Company to indemnify its directors and
officers to the fullest extent permitted from time to time under Maryland law.
The Company's Bylaws require it to indemnify (a) any present or former
director or officer who has been successful, on the merits or otherwise, in the
defense of a proceeding to which he was made a party by reason of his service in
that capacity, against reasonable expenses incurred by him in connection with
the proceeding and (b) any present or former director or officer against any
claim or liability unless it is established that (i) his act or omission was
committed in bad faith or was the result of active or deliberate dishonesty,
(ii) he actually received an improper personal benefit in money, property or
services or (iii) in the case of a criminal proceeding, he had reasonable cause
to believe that his act or omission was unlawful.
In addition, the Company's Bylaws require the Company to pay or reimburse,
in advance of final disposition of a proceeding, reasonable expenses incurred by
a present or former director or officer made a party to a proceeding by reason
of his service as a director or officer provided that the Company shall have
received (i) 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 (ii) a written understanding 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 Bylaws
also (i) permit the Company to provide indemnification and advance expenses to a
present or former director or officer who served a predecessor of the Company in
such capacity, and to any employee or agent of the Company or a predecessor of
the Company, (ii) provide that any indemnification or payment or reimbursement
of the expenses permitted or reimbursement of expenses under Section 2-418 of
the MGCL for directors of Maryland corporations and (iii) permit the Company to
provide such other and further indemnification or payment or reimbursement of
expenses as may be permitted by Section 2-418 of the MGCL for directors of
Maryland corporations.
Under Maryland law, a corporation formed in Maryland is permitted to limit,
by provision in its charter, the liability of directors and officers so that no
director or officer of the Company shall be liable to the Company or to any
stockholder for money damages except to the extent that (i) the director or
officer actually received an improper benefit in money, property or services,
for the amount of the benefit or profit in money, property or services actually
received,
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or (ii) a judgment or other final adjudication adverse to the director or
officer is entered in a proceeding based on a finding in a proceeding that the
director's of officer's action was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding. The Charter has incorporated the provisions of such law limiting the
liability of directors and officers.
The Partnership Agreement also provides for indemnification of the Company
and its officers and directors to the same extent indemnification is provided to
officers and directors of the Company in its organizational documents, and
limits the liability of the Company and its officers and directors to the
Operating Partnership and its partners to the same extent liability of officers
and directors of the Company to the Company and its stockholders is limited
under their organizational documents.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
3(a)* Articles of Incorporation of the Company.
3(b)* Bylaws of the Company.
4(a) SL Green Realty Corp. 1997 Stock Option and Incentive Plan,
as amended.
5(a) Opinion of Brown & Wood LLP.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5(a)).
23(b) Consent of Ernst & Young LLP.
24 Power of Attorney (included on page 6).
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* Previously filed as an exhibit to registration statement on Form S-11 (No.
333-29329) and incorporated herein by reference.
4
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, represents 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
5
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 securities being registered, the registrant will, unless in
the opinion of 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it 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 City of New York and State of New York, on the day of August,
1998.
SL GREEN REALTY CORP.
By: /s/ Stephen L. Green
Stephen L. Green
Principal Executive Officer
and Chairman of the
Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Stephen L. Green, David J. Nettina, and Benjamin
P. Feldman, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to each
Registration Statement amended hereby, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes, may lawfully do or cause to be done by virtue thereof.
6
Pursuant to the requirements of the Securities Act of 1933 this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 11th day of August 1998.
Signature Title
/s/ Stephen L. Green
Stephen L. Green Principal Executive Officer
and Chairman of
the Board of Directors
/s/ David J. Nettina
David J. Nettina President and Chief
Operating Officer
/s/ Ann Iseley
Ann Iseley Chief Financial Officer
/s/ Benjamin P. Feldman
Benjamin P. Feldman Executive Vice President,
General Counsel and
Director
/s/ John H. Alschuler, Jr.
John H. Alschuler, Jr. Director
/s/ Edwin Thomas Burton, III
Edwin Thomas Burton, III Director
/s/ John Levy
John Levy Director
7
EXHIBIT INDEX
Exhibit No. Description Page
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3(a)* Articles of Incorporation of the Company.
3(b)* Bylaws of the Company.
4(a) SL Green Realty Corp. 1997 Stock Option 9
and Incentive Plan, as amended.
5(a) Opinion of Brown & Wood LLP. 22
23(a) Consent of Brown & Wood LLP (included as
part of Exhibit 5(a)).
23(b) Consent of Ernst & Young LLP. 23
24 Power of Attorney (included on
page 6).
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* Previously filed as an exhibit to registration statement on Form S-11 (No.
333-29329) and incorporated herein by reference.
8
Exhibit 4(a)
As amended through July 1, 1998
SL GREEN REALTY CORP.
AMENDED 1997 STOCK OPTION AND INCENTIVE PLAN
ARTICLE 1. GENERAL
1.1. Purpose. The purpose of the SL Green Realty Corp. 1997 Stock Option
and Incentive Plan (the "Plan") is to provide for certain officers, directors
and key employees, as defined in Section 1.3, of SL Green 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, or by the Board. 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.
9
(e) 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 such
officers, directors, consultants and key employees ("key personnel") of the
Company or its Affiliates as the Committee shall from time to time in its sole
discretion select. No member of the Board who is not an officer or employee of
the Company or an Affiliate (an "Independent Director") shall be eligible to
receive any Awards under the Plan, except for non-qualified stock options
granted automatically under the provisions of Article 5 of the Plan.
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 remainder
(if any) of 1,700,000 shares of Common Stock, minus the sum of (i) the number of
shares of Common Stock subject to outstanding awards, (ii) the number of shares
of Common Stock 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 of Common Stock 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 or forfeited for any reason whatsoever (other than by reason of
exercise or vesting).
(b) 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.
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1.6. Definitions of Certain Terms.
(a) The term "Affiliate" as used herein means SL Green Operating Partnership,
L.P., S.L. Green Management Corp., S.L. Green Leasing, Inc., Emerald City
Construction Corp. and SL Green Management LLC, 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) engaged in conduct which is a felony under the
laws of the United States or any state or political subdivision thereof; (ii)
engaged in conduct constituting breach of fiduciary duty, gross negligence or
willful misconduct relating to the Company, fraud or dishonesty or willful or
material misrepresentation relating to the business of the Company, or (iii)
failed to substantially perform his duties to the Company more than 15 days
after receiving notice of such failure from the Company, which notice
specifically identifies the manner in which he has failed so to perform.
(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
11
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.
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
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(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, if any, 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 for at
least six months 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
13
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.
(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 by the
grantee 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.
14
(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 65), the options exercisable by the grantee immediately prior to the
grantee's retirement shall be exercisable by the grantee until the earlier of
(i) 12 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
15
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. The Committee shall have the authority to make or authorize loans to
finance, or to otherwise accommodate the financing of, the acquisition or
exercise of a restricted stock award.
(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.
16
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 and except that stockholder approval of any amendment shall be obtained to
the extent required by applicable law.
(b) Award Modifications. Subject to the terms and conditions of the Plan
(including Section 4.1(a)), 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.
17
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, 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
18
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
19
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 shareholders of the Company.
(b) The Plan shall terminate 10 years after the earlier of the date on which it
becomes effective or is approved by shareholders, 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.
ARTICLE 5. STOCK OPTIONS GRANTED TO INDEPENDENT DIRECTORS
5.1. Automatic Grant of Options. Each Independent Director appointed or
elected for the first time shall automatically be granted a NQSO to purchase
6,000 shares of Common Stock on his date of appointment or election which NQSO
shall vest on the one year anniversary of grant. The exercise price per share
for the Common Stock covered by a NQSO granted pursuant to this Section 5.1
shall be equal to the FMV of the Common Stock on the date the NQSO is granted
or, if granted in connection with the initial public offering of the Company's
Common Stock (the "IPO"), the initial public offering price set forth on the
cover page of the prospectus relating to the IPO.
5.2. Exercise; Termination; Non-Transferability
(a) All NQSOs granted under this Article 5 shall be immediately exercisable. No
NQSO issued under this Article 5 shall be exercisable after the expiration of
ten years from the date upon which such NQSO is granted.
(b) The rights of an Independent Director in a NQSO granted under this Article 5
shall terminate twelve months after such Director ceases to be a Director of the
Company or the specified expiration date, if earlier; provided, however, that
such rights shall terminate immediately on the date on which an Independent
Director ceases to be a Director by reason of termination of his directorship on
account of any act of (i) fraud or intentional misrepresentation
20
or (ii) embezzlement, misappropriation or conversion of assets or opportunities
of the Company or any Affiliate.
(c) No NQSO granted under this Article 5 shall be transferable by the grantee
otherwise than by will or by the laws of descent and distribution, and such
grantee shall be exercisable during the grantee's lifetime only by the grantee.
Any NQSO granted to an Independent Director and outstanding on the date of his
death may be exercised by the legal representative or legatee of the grantee for
the period of twelve months from the date of death or until the expiration of
the stated term of the option, if earlier.
(d) NQSOs granted under this Article 5 may be exercised only by written notice
to the Company specifying the number of shares to be purchased. Payment of the
full purchase price of the shares to be purchased may be made by certified or
official bank check payable to the Company. A grantee shall have the rights of a
stockholder only as to shares acquired upon the exercise of a NQSO and not as to
unexercised NQSOs.
5.3. Adjustments Upon Changes in Capitalization. The number of shares of
Common Stock subject to awards and the option exercise price of NQSOs
theretofore granted under this Article 5, and the amount payable by a grantee in
respect of an award, shall be appropriately adjusted 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.
5.4. Limited to Independent Directors. The provisions of this Article 5
shall apply only to NQSOs granted or to be granted to Independent Directors,
shall be interpreted as if this Article 5 constituted a separate plan of the
Company and shall not be deemed to modify, limit or otherwise apply to any other
provision of this Plan or to any NQSO issued under this Plan to a participant
who is not an Independent Director of the Company. To the extent inconsistent
with the provisions of any other Section of this Plan, the provisions of this
Article 5 shall govern the rights and obligations of the Company and Independent
Directors respecting NQSOs granted or to be granted to Independent Directors.
21
Exhibit 5(a)
August 11, 1998
SL Green Realty Corp.
70 West 36th Street
New York, New York 10018
Dear Sirs:
We have acted as counsel for SL Green Realty Corp., a Maryland corporation
(the "Company"), in connection with the proposed filing with the Securities and
Exchange Commission expected to be made on or about August 14, 1998 under the
Securities Act of 1933, as amended, of a Registration Statement on Form S-8 (the
"Registration Statement") for the purpose of registering 1,700,000 shares of
Common Stock which have been reserved for issuance or transfer upon the exercise
of stock options or the granting of restricted or unrestricted stock awards
granted or to be granted pursuant to the SL Green Realty Corp. Amended 1997
Stock Option and Incentive Plan (the "1997 Plan"). In such capacity, we have
examined the Articles of Incorporation and Bylaws of the Company, the 1997 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 1997 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,
Brown & Wood
22
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our reports in the
Registration Statement Form S-8 pertaining to the Amended 1997 Stock Option
and Incentive Plan of SL Green Realty Corp. (the "Company") (i) dated
February 10, 1998, except for the last two paragraphs in Note 15, as to which
the date is March 18, 1998, with respect to the consolidated financial
statements and schedule of of the Company for the period August 21, 1997
(date of commencement of operation) to December 31, 1997, (ii) dated February
10, 1998 with respect to the combined financial statements of SL Green
Predecessor and schedule for the period January 1, 1997 to August 20, 1997
and for the two years in the period ended December 31, 1996, and (iii) dated
February 10, 1998 with respect to combined financial statements of the
uncombined joint ventures of SL Green Predecessor from the period January 1,
1997 to August 20, 1997 and for the two years in the period ended December
31, 1996, included in its Annual Report on Form 10-K for the year ended
December 31, 1997, filed with the Securities and Exchange Commission on March
31, 1998. We also consent to the use of our reports (i) dated December 16,
1997 with respect to the statements of revenues and certain expenses for the
property and mortgage of 17 Battery Place for the year ended December 31,
1996, included in its Form 8-K/A, filed with the Securities and Exchange
Commission on March 2, 1998; (i) dated March 13, 1998 with respect to the
statement of revenues and certain expenses for the 1466 Broadway property for
the year ended December 31, 1997, and (ii) dated March 13, 1998 with respect
to the statement of revenues and certain expenses for the 420 Lexington
Avenue leasehold interest for the year ended December 31, 1997, included in
its Form 8-K/A, filed with the Securities and Exchange Commission on May 11,
1998. Additionally, we also consent to the use of our reports (i) dated
March 11, 1998 with respect to the statement of revenues and certain expenses
for the 321 West 44th Street property for the year ended December 31, 1997,
(ii) dated March 24, 1998 with respect to the statement of revenues and
certain expenses for the 711 Third Avenue leasehold interest for the year
ended December 31, 1997, (iii) dated March 31, 1998 with respect to the
statement of revenues and certain expense for the 440 Ninth Avenue property
for the year ended December 31, 1997, (iv) dated March 31, 1998 with respect
to the statement of revenues and certain expenses for the 38 East 30th Street
property for the year ended December 31, 1997, and (v) dated March 31, 1998
with respect to the statement of revenues and certain expenses for the 116
Nassau Street property for the year ended December 31, 1997, included in its
Form 8-K, filed with the Securities and Exchange Commission on May 11, 1998.
/s/ ERNST & YOUNG LLP
New York, New York
August 13, 1998
23
