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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 27, 2004
RECKSON ASSOCIATES REALTY CORP.
and
RECKSON OPERATING PARTNERSHIP, L.P.
(Exact name of each Registrant as specified in its Charter)
Exhibit 10.1
RECKSON ASSOCIATES REALTY CORP.
FORM OF FIRST AMENDMENT TO
AMENDED AND RESTATED
LONG-TERM INCENTIVE AWARD AGREEMENT
RECITALS
--------
A. [ ] (the "Grantee") is an executive officer of
Reckson Associates Realty Corp. (the "Company") or one of its Affiliates.
B. Effective as of March 13, 2003, the Company's Board of Directors
adopted a long-term incentive plan ("LTIP") designed to provide the Company's
executive officers and certain other key senior employees with their incentive
compensation through March 2007.
C. The Grantee was selected by the Compensation Committee of the
Board of Directors of the Company to receive an award under the LTIP and
effective as of March 13, 2003, received a grant of _____ shares, of common
stock ($0.01 par value per share) of the Company (the "Common Stock") as a
core annual long-term incentive award (the "Core Award") and a grant of ____
shares of Common Stock as a special long-term incentive award.
D. Of the Core Award, as of the date of this Amendment, __________
shares of Common Stock have vested (the "Vested Core Shares") and _________
shares of Common Stock remain unvested (the "Unvested Core Shares" and
together with the Vested Core Shares, the "Core Shares").
E. The Company's Board of Directors has caused the Company's
subsidiary Reckson Operating Partnership, L.P., a Delaware limited partnership
(the "Partnership") to adopt a long-term incentive plan (the "OP LTIP")
pursuant to which the Grantee is eligible to rescind his or her Unvested Core
Shares in exchange for a new grant under the OP LTIP.
F. The Grantee and the Company wish to amend the Amended and Restated
Long-Term Incentive Award Agreement dated as of May 28, 2003 (the "Award
Agreement"), as set forth herein.
NOW, THEREFORE, the Grantee and the Company hereby amend the Award
Agreement as follows:
A. Vesting of the Core Shares. The Vested Core Shares
shall remain cumulatively vested and transferable.
B. Unvested Core Shares. The Unvested Core Shares as of
the date of this Amendment are hereby forfeited, canceled,
terminated and null, void and of no further effect. The Grantee
acknowledges and agrees that the Grantee shall have no further
rights or benefits with respect to such Unvested Core Shares.
C. Payment of Dividends. Any and all rights to the
dividends that have accrued and are unpaid as of the date hereof
with respect to the Core Shares shall continue to be subject to be
held as provided in Section 6 of the Award Agreement; provided,
however that on the Annual Vesting Date when any Unvested Core
Shares would have become Vested Core Shares pursuant to Section
3(b) of the Award Agreement, the Grantee shall receive a one-time
cash payment which shall represent the full amount of all such
accrued dividends under the Award Agreement. After the date
hereof, no further dividends will accrue with respect to the
Unvested Core Shares.
D. All Other Terms. The Award Agreement shall remain in
full force and effect except as expressly modified or amended by
this Amendment. Any conflict between the Award Agreement and this
Amendment shall be governed and construed in accordance with the
provisions of this Amendment.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed as of the __ day of _____, 2004.
RECKSON ASSOCIATES REALTY CORP.
By:
------------------------------------
Name:
Title:
----------------------------------------
The Grantee
Exhibit 10.2
RECKSON ASSOCIATES REALTY CORP.
LONG-TERM INCENTIVE PLAN
OP UNIT AWARD AGREEMENT
Name of Grantee: _____________________ ("Grantee")
No. of LTIP OP Units: ________________________
Date of Grant: _______________
Final Acceptance Date: _______________
RECITALS
--------
A. The Grantee is an executive officer of Reckson Associates Realty
Corp. (the "Company") or one of its Affiliates.
B. Effective as of March 13, 2003, the Company's Board of Directors
adopted a long-term incentive plan ("LTIP") designed to provide the Company's
Executive Officers and certain other key senior employees with their
incentive compensation through March 2007.
C. The Grantee was selected by the Compensation Committee of the Board
of Directors of the Company (the "Committee") to receive an award under the
LTIP and effective as of March 13, 2003, received a grant of _____ shares, of
common stock ($0.01 par value per share) of the Company (the "Common Stock")
as a core annual long-term incentive award (the "Core Award").
D. Of the Core Award, __________ restricted shares of Common Stock have
vested (the "Vested Core Award") and _________ restricted shares of Common
Stock remain unvested (the "Unvested Core Award".)
E. The Company's Board of Directors has caused the Company's subsidiary
Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership"), to adopt a long-term incentive plan (the "OP LTIP") pursuant
to which the Grantee is eligible to rescind his or her Unvested Core Award in
exchange for a new grant (the "Substitute OP Award") under the OP LTIP
pursuant to the Agreement of Limited Partnership of the Partnership, dated as
of June 2, 1995, as amended through the date hereof (the "Partnership
Agreement"), in the form of a Partnership Interest (as defined in the
Partnership Agreement) having the rights, voting powers, restrictions,
limitations as to distributions, qualifications and terms and conditions of
redemption set forth herein and in the Amendment to the Partnership Agreement
attached hereto as Annex A (the "ALP Amendment"), such Partnership Interest
to be expressed as a number of Partnership Units (as defined in the
Partnership Agreement) which shall be referred to as Long-Term Incentive
Units ("LTIP OP Units"). Upon acceptance of this Long-Term Incentive Plan OP
Unit Award Agreement (the "Agreement"), the Grantee shall receive the number
of LTIP OP Units specified above, subject to the restrictions and conditions
set forth herein and in the Partnership Agreement.
NOW, THEREFORE, the Company hereby grants to the Grantee,
effective as of the Date of Grant specified above, the number of LTIP OP Units
listed above subject to the terms and conditions of this Agreement.
1. Acceptance:
(a) The Grantee shall have no rights with respect to this
Agreement and this Agreement shall be revocable by the Grantee until he or she
shall have accepted this Agreement prior to the close of business on the Final
Acceptance Date specified above by (i) signing and delivering to the
Partnership a copy of this Agreement, (ii) signing and delivering an amendment
to the Grantee's Amended and Restated Long-Term Incentive Award Agreement with
respect to the recission of his or her Unvested Core Award (attached hereto as
Annex B), and (iii) unless the Grantee is already a Limited Partner (as
defined in the Partnership Agreement), signing, as a Limited Partner, and
delivering to the Partnership a counterpart signature page to the Partnership
Agreement (attached hereto as Annex C). Upon acceptance of this Agreement by
the Grantee, the Partnership Agreement shall be amended to reflect the
issuance to the Grantee of the LTIP OP Units so accepted and the Partnership
shall deliver to the Grantee a certificate of the Company certifying the
number of LTIP OP Units then issued to the Grantee. Thereupon, the Grantee
shall have all the rights of a Limited Partner of the Partnership with respect
to the number of LTIP OP Units specified above, as set forth in the
Partnership Agreement, subject, however, to the restrictions and conditions
specified in Section 2 below.
(b) The LTIP OP Units will not be granted under the Company's
2002 Stock Option Plan (the "Plan") and the OP has been established as an
incentive program of the Partnership. Accordingly, the Grantee must be
eligible to receive the Substitute OP Award in compliance with applicable
Federal and state securities laws and to that effect is required to complete,
execute and deliver certain Covenants, Representations and Warranties
(attached as Annex D). However, the Committee may, in its sole and absolute
discretion, seek to have the OP LTIP become part of the Plan at a future time,
whereby the Substitute OP Award would become an award under the Plan, the LTIP
OP Units will be made convertible into Class A common operating partnership
units of the Partnership ("OPU") and the terms and conditions set forth in the
ALP Amendment under the heading "Right to Convert LTIP Units into Common
Units" will become operative. The Grantee acknowledges that if Committee
elects, in its sole discretion, to cause the LTIP OP Units to become
convertible into OPU, the terms of the LTIP OP Units will change as provided
in the ALP Amendment and the Grantee will have no right to approve or
disapprove such change. In this regard, the Company agrees that (i) the shares
of the Company's Common Stock previously granted to the Grantee pursuant to
the Unvested Core Award shall be reserved under the Plan in connection with
the possible activation of the OP Conversion Feature of the LTIP OP Units, and
(ii) such shares shall not be available for other awards under the Plan.
2. Restrictions and Conditions:
(a) The records of the Partnership evidencing the LTIP OP Units
granted herein shall bear an appropriate legend, as determined by the
Partnership in its sole discretion, to
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the effect that such LTIP OP Units are subject to restrictions as set forth
herein, in the ALP Amendment and in the Partnership Agreement.
(b) None of the LTIP OP Units awarded to the Grantee hereunder
shall be sold, assigned, transferred, pledged, hypothecated, given away or in
any other manner disposed of, encumbered, whether voluntarily or by operation
of law, or redeemed in accordance with the Partnership Agreement or the ALP
Amendment (a) prior to vesting, (b) for a period of two (2) years beginning on
Date of Grant specified above other than in connection with a
Change-in-Control, or (c) unless such transfer is in compliance with all
applicable securities laws (including, without limitation, the Securities
Act), and such disposition is in accordance with the applicable terms and
conditions of the Partnership Agreement and the ALP Amendment. In connection
with any transfer of LTIP OP Units, the Company may require the transferor to
provide at the Grantee's own expense an opinion of counsel to the transferor,
satisfactory to the Company, that such transfer is in compliance with all
foreign, federal and state securities laws (including, without limitation, the
Securities Act). Any attempted disposition of LTIP OP Units not in accordance
with the terms and conditions of this Section 2(b) shall be null and void, and
the Partnership shall not reflect on its records any change in record
ownership of any LTIP OP Units as a result of any such disposition, shall
otherwise refuse to recognize any such disposition and shall not in any way
give effect to any such disposition of any LTIP OP Units.
(c) Except as otherwise provided in Section 3 hereof or
elsewhere herein, if the Grantee's employment with the Company or its
Affiliates is voluntarily or involuntarily terminated for any reason prior to
vesting of the LTIP Units granted herein, the Grantee shall forfeit all LTIP
Units that are not vested as of the date of such termination of employment.
3. Vesting of the LTIP OP Units: The LTIP OP Units generally will
become vested as follows:
(a) 8.333% of the LTIP OP Units will become cumulatively vested
on each of the first three anniversaries of the Date of Grant (each such
anniversary hereinafter referred to as an "Annual Vesting Date"); in each case
provided that the Grantee remains in continuous employment with the Company or
any of its Affiliates until such date.
(b) 25.0% of the LTIP OP Units will become cumulatively vested
on each of the Annual Vesting Dates; in each case provided that the Grantee
remains in continuous employment with the Company or any of its Affiliates
until such date; and provided, further, that any LTIP OP Units which otherwise
would become vested on such Annual Vesting Date will not become so vested
unless the Company has achieved, with regard to each Annual Vesting Date,
during the last calendar year completed immediately preceding the applicable
Annual Vesting Date, a total return to shareholders (including all Common
Stock dividends and stock appreciation) based on the respective Annual Core
Base Price that either (i) is at or above the 50th percentile of the total
return to shareholders achieved by members of the Peer Group during the same
period, or (ii) subject to the provisions of Section 3(f), equals a total
return of at least 9% per annum. If the vesting performance requirement is not
satisfied for a given annual period other than the calendar year immediately
preceding the third Annual Vesting Date, the LTIP OP
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Units from such year or years will not be forfeited and will become vested on
any subsequent Annual Vesting Date on which the vesting performance
requirement applicable to such LTIP OP Units is satisfied on a cumulative and
compounded basis as measured for an extended performance period beginning with
the annual period for which the vesting performance requirement was not
satisfied through the calendar year ended immediately preceding the relevant
Annual Vesting Date. If necessary, this cumulative and compounded method of
satisfying the vesting performance requirement will continue to be applied on
a look-back basis on each calendar year end until the end of the three-year
vesting performance period (i.e., through the end of the calendar year
immediately preceding the third Annual Vesting Date) at which time any LTIP OP
Units subject to vesting under this Section 3(b) that have not become vested
shall become vested if at such date the vesting performance requirement is
satisfied on a cumulative and compounded basis for an extended performance
period commencing on March 13, 2003 and measured through the calendar year
ended immediately preceding the third Annual Vesting Date based upon the
Initial Core Base Price. For purposes of this Section, (i) the performance of
the Company relative to the performance of members of the Peer Group will be
determined using the VWAP for the last ten trading days of the Company's
Common Stock and the common stock of the members of the Peer Group at the
applicable calendar year end, and (ii) the per annum percentage performance of
the Company will be determined using the VWAP for the last ten trading days
for the period ending at the applicable calendar year end.
(c) Notwithstanding the foregoing, if a Change-in-Control occurs
prior to the third Annual Vesting Date and the Grantee remains in continuous
employment with the Company or any of its Affiliates until such occurrence,
all non-vested LTIP OP Units will thereupon become fully vested provided that,
if (i) a Change-in-Control shall occur and (a) the Company continues in
existence as a public company or (b) another company is the successor to the
Company in a transaction whereby holders of Common Stock receive common stock
of the successor company (or a combination of common stock and cash) and such
successor company expressly assumes the obligations of the Company as the
general partner of the Partnership, and (ii) a Change-in-Control occurs and
(a) the Partnership continues in existence as the operating partnership of the
Company (in the event described in clause (i)(a) above) or (b) another limited
partnership, limited liability company or similar entity is the successor to
the Partnership in a transaction whereby holders of OPU and LTIP OP Units
receive equity interests in such successor entity having substantially
identical rights, voting powers, restrictions, limitations as to
distributions, qualifications and terms and conditions of redemption as the
OPU and LTIP OP Units, respectively, and expressly assumes the obligations
under this Agreement, and (iii) the Grantee continues employment with the
Company or such successor company or their Affiliates, as the case may be, and
a Force Out does not occur, then no vesting shall occur under this Section
3(c) as a result of such Change-in-Control, but this Agreement and the awards
hereunder shall continue in effect on the terms hereof, subject to the
adjustment of the Annual Core Base Price as may be appropriate pursuant to
Section 7 hereof. Notwithstanding the foregoing, if a Change-in-Control
occurs, subsequent to the calendar year end immediately preceding the third
Annual Vesting Date and prior to the third Annual Vesting Date, it shall have
no effect upon the vesting (or not) of the LTIP OP Units (i.e., if the vesting
performance requirements of Section 3(b) were satisfied at the calendar year
end immediately preceding the third Annual Vesting Date
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any unvested LTIP OP Units shall vest upon such Change-in-Control and, if such
vesting performance requirements were not satisfied then any remaining LTIP OP
Units shall not vest.)
(d) Notwithstanding the foregoing, if the Grantee's employment
with the Company and all Affiliates is terminated prior to the third Annual
Vesting Date by reason of the Grantee's death or Disability, by the Grantee
for Good Reason, or by the Company or any Affiliate for any reason other than
Cause or transfer to another Affiliate, all non-vested LTIP OP Units will
thereupon become fully vested. If the Grantee's employment with the Company
and all Affiliates is terminated prior to the third Annual Vesting Date for
any other reason, any LTIP OP Units that have not yet become vested will
thereupon be forfeited.
(e) Notwithstanding the foregoing, if the Grantee remains in
continuous employment with the Company or any of its Affiliates until an
applicable Annual Vesting Date but the vesting performance requirement is not
satisfied for the calendar year end immediately preceding such date (or any
extended performance period as contemplated in Section 3(b) above), and if the
Committee determines that it nevertheless would be consistent with the spirit
and intent of this Agreement to vest some or all of the LTIP OP Units that
otherwise would have become vested on that Annual Vesting Date, then the
Committee, in its sole and absolute discretion, may elect to vest some or all
of such LTIP OP Units.
(f) Notwithstanding the foregoing, in the event that (i) the
LTIP OP Units would become vested as a result of the Company achieving a total
return of at least 9% per annum in accordance with the terms of Section 3(b),
(ii) the appreciation in the share price of the Common Stock alone has not
resulted in the Company achieving such a 9% per annum total return (i.e.,
without taking into account any dividends paid to holders of Common Stock),
and (iii) the Company's Dividend Payout Ratio with regard to its Cash
Available for Distribution exceeds 100% for any relevant annual period or
periods, the Committee may, in its sole discretion, review whether it is
appropriate for the LTIP OP Units to vest for such period or periods, and may
determine that the LTIP OP Units shall not vest, in whole or in part, based
upon such facts as it deems appropriate including, but not limited to, the
effect on the Dividend Payout Ratio of rent concessions, tenant improvements,
capital expenditures by the Company and similar matters that represent uses of
operating cash flow for the purpose of generating incremental cash flow or
other returns for the Company.
4. Distributions. Distributions on the LTIP OP Units shall be paid
currently to the Grantee in accordance with the terms of the Partnership
Agreement.
5. Adjustment. The Committee will make or provide for such
adjustments in the number of LTIP OP Units and the vesting performance
requirements applicable to LTIP OP Units, as the Committee may in good faith
determine to be equitably required in order to prevent any dilution or
expansion of the rights of the Grantee that otherwise would result from (i)
any stock dividend, stock split, combination of shares, recapitalization or
similar change in the capital structure of the Company or similar events with
respect to the partnership interests in the Partnership or (ii) any merger,
consolidation, spin-off, spin-out, split-off, split-up, reorganization,
partial or complete liquidation or other distribution of assets, issuance of
warrants
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or other rights to purchase securities or any other transaction or event
having an effect similar to any of the foregoing.
6. Compliance With Law. The Partnership and the Grantee will make
reasonable efforts to comply with all applicable securities laws. In addition,
notwithstanding any provision of this Agreement to the contrary, no LTIP OP
Units will become vested or be paid at a time that such vesting or payment
would result in a violation of any such law.
7. Investment Representation; Registration.
(a) The Grantee hereby makes the covenants, representations and
warranties and set forth on Annex D attached hereto. All of such covenants,
warranties and representations shall survive the execution and delivery of
this Agreement by the Grantee. The Grantee shall immediately notify the
Partnership upon discovering that any of the representations or warranties set
forth on Annex D were false when made or have, as a result of changes in
circumstances, become false.
(b) The Partnership may make a notation in its records and/or
affix a legend to the certificates (if any) representing the LTIP OP Units
issued pursuant to this Agreement to the effect that such units have not been
registered under the Securities Act of 1933 (the "Securities Act") and may
only be sold or transferred upon registration or pursuant to an exemption
therefrom.
(c) The Partnership will have no obligation to register under
the Securities Act any LTIP OP Units or any other securities issued pursuant
to this Agreement or upon conversion or exchange of LTIP OP Units.
8. Severability. In the event that one or more of the provisions of
this Agreement may be invalidated for any reason by a court, any provision so
invalidated will be deemed to be separable from the other provisions hereof,
and the remaining provisions hereof will continue to be valid and fully
enforceable.
9. Governing Law. This Agreement is made under, and will be construed
in accordance with, the laws of the State of New York, without giving effect
to the principle of conflict of laws of such State.
10. Transferability. This Agreement is personal to the Grantee, is
non-assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or the laws of descent and distribution.
11. Amendment. The Grantee acknowledges that this Agreement may be
amended or canceled by the Partnership for the purpose of satisfying changes
in law or for any other lawful purpose, provided that no such action shall
adversely affect the Grantee's rights under this Agreement without the
Grantee's written consent.
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12. No Obligation to Continue Employment. Neither the Company nor any
Affiliate is obligated by or as a result of this Agreement to continue the
Grantee in employment and this Agreement shall not interfere in any way with
the right of the Company or any Affiliate to terminate the employment of the
Grantee at any time.
13. Notices. Notices hereunder shall be mailed or delivered to the
Partnership at its principal place of business and shall be mailed or
delivered to the Grantee at the address on file with the Partnership or, in
either case, at such other address as one party may subsequently furnish to
the other party in writing.
14. Withholding and Taxes. No later than the date as of which an
amount first becomes includible in the gross income of the Grantee for income
tax purposes or subject to Federal Insurance Contributions Act withholding
with respect to any award under this Agreement, such Grantee will pay to the
Company or, if appropriate, any of its Affiliates, or make arrangements
satisfactory to the Committee regarding the payment of, any United States
federal, state or local or foreign taxes of any kind required by law to be
withheld with respect to such amount. The obligations of the Company under
this Agreement will be conditional on such payment or arrangements, and the
Company and its Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to the Grantee.
15. Successors and Assigns. This Agreement shall be binding upon the
Partnership's successors and assigns, whether or not this Agreement is
expressly assumed.
16. Certain Definitions.
(a) "Affiliate" means any person or entity that, at the time of
reference, is controlled by, controlling of or under common control with the
Company.
(b) "Annual Core Base Price" means with regard to each calendar
year that is used to measure whether LTIP OP Units shall vest pursuant to
Section 3(b), the VWAP for the Common Stock of the Company for the last 10
trading days of the calendar year immediately preceding such calendar year.
(c) "Cash Available for Distribution" means the Company's cash
available for distribution to holders of the Company's Common Stock on an "as
committed" basis as announced by the Company for the relevant period.
(d) "Cause" means a finding by the Company's Board of Directors
that the Grantee has (i) acted with gross negligence or willful misconduct in
connection with the performance of his material duties to the Company or any
Affiliate; (ii) defaulted in the performance of his material duties to the
Company or any Affiliate and has not corrected such action within 15 days of
receipt of written notice thereof; (iii) willfully acted against the best
interests of the Company or any Affiliate, which act has had a material and
adverse impact on the financial affairs of the Company or such Affiliate; or
(iv) been convicted of a felony or committed a material act of common law
fraud against the Company, any Affiliate or any of
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their employees and such act or conviction has had, or the Company's Board of
Directors reasonably determines will have, a material adverse effect on the
interests of the Company or such Affiliate; provided, however, that a finding
of Cause will not become effective unless and until the Board of Directors
provides the Grantee notice that it is considering making such finding and a
reasonable opportunity to be heard by the Board of Directors.
(e) A "Change-in-Control" will be deemed to have occurred if
following the Date of Grant:
(i) any Person, together with all "affiliates" and
"associates" (as such terms are defined in Rule 12b-2 under the
Securities Exchange Act of 1934 (the "Exchange Act")) of such
Person, shall become the "beneficial owner" (as such term is
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 30% or more
of (A) the combined voting power of the Company's then outstanding
securities having the right to vote in an election of the
Company's Board of Directors ("Voting Securities"), (B) the
combined voting power of the Company's then outstanding Voting
Securities and any securities convertible into Voting Securities,
or (C) the then outstanding shares of all classes of stock of the
Company; or
(ii) individuals who, as of the effective date of this
Agreement, constitute the Company's Board of Directors (the
"Incumbent Directors") cease for any reason, including, without
limitation, as a result of a tender offer, proxy contest, merger
or similar transaction, to constitute at least a majority of the
Company's Board of Directors, provided that any person becoming a
director of the Company subsequent to the effective date of this
Agreement whose election or nomination for election was approved
by a vote of at least a majority of the Incumbent Directors (other
than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the
Company, as such terms are used in Rule 14a-11 of Regulation 14A
under the Exchange Act) shall, for purposes of this Agreement, be
considered an Incumbent Director; or
(iii) consummation of (1) any consolidation or merger of the
Company or any subsidiary where the stockholders of the Company,
immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own
(as such term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, but based solely on their prior ownership
of shares of the Company, shares representing in the aggregate
more than 60% of the voting shares of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate
parent corporation, if any), or (2) any sale, lease, exchange or
other transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Company; or
8
(iv) stockholder approval of any plan or proposal for the
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change-in-Control" shall
not be deemed to have occurred for purposes of the foregoing
clause (i) (A) solely as the result of an acquisition of
securities by the Company which, by reducing the number of shares
of stock or other Voting Securities outstanding, increases (x) the
proportionate number of shares of stock of the Company
beneficially owned by any Person to 30% or more of the shares of
stock then outstanding or (y) the proportionate voting power
represented by the Voting Securities beneficially owned by any
Person to 30% or more of the combined voting power of all then
outstanding Voting Securities; provided, however, that if any
Person referred to in clause (x) or (y) of this sentence shall
thereafter become the beneficial owner of any additional stock of
the Company or other Voting Securities (other than pursuant to a
share split, stock dividend, or similar transaction), then a
"Change-in-Control" shall be deemed to have occurred for purposes
of the foregoing clause (i), and (B) solely as a result of the
direct or indirect acquisition of beneficial ownership of Voting
Securities by any executive officers of the Company on the date
hereof and/or the Company, any of its subsidiaries, or any
trustee, fiduciary or other person or entity holding securities
under any employee benefit plan of the Company or any of its
subsidiaries if the Grantee is one of the executive officers
participating in such acquisition.
(f) "Disability" means that the Grantee has been unable to
efficiently perform his duties to the Company and all Affiliates because of
any physical or mental injury or illness until the earlier of such time when
(i) the period of injury or illness (whether or not the same injury or
illness) exceeds 180 consecutive days or (ii) the Grantee becomes eligible to
receive benefits under a comprehensive disability insurance policy maintained
or sponsored by the Company.
(g) "Dividend Payout Ratio" means the quotient, expressed as a
percentage, derived by dividing the aggregate dividends paid on shares of the
Company's Common Stock during a relevant period by the Cash Available for
Distribution for such period.
(h) "Employment Agreement" means the Amendment and Restatement
of Employment and Noncompetition Agreement, dated as of August 15, 2000,
between Grantee and the Company.
(i) "Force Out" means
(i) a change in duties, responsibilities, status or
positions with the Company or successor company, which, in Grantee's
reasonable judgment, does not represent a promotion from or maintaining
of Grantee's duties, responsibilities, status or positions as in effect
immediately prior to the Change-in-Control, or any removal of Grantee
from or any failure to reappoint or reelect Grantee to such positions,
except in
9
connection with the termination of Grantee's employment for Cause,
disability, retirement or death;
(ii) a reduction by the Company or such successor company
in Grantee's Base Salary as in effect immediately prior to the
Change-in-Control;
(iii) the failure by the Company or such successor company
to provide and credit Grantee with the number of paid vacation days to
which Grantee is then entitled in accordance with the Company or such
successor company's normal vacation policies as in effect immediately
prior to the Change-in-Control;
(iv) the Company or such successor company requiring
Grantee to be based in an office located beyond a reasonable commuting
distance from Grantee's residence immediately prior to the
Change-in-Control, except for required travel relating to the Company or
such successor company's business to an extent substantially consistent
with the business travel obligations which Grantee undertook on behalf
of the Company or such successor company prior to the Change-in-Control;
(v) the failure by the Company or such successor company
to obtain from any successor to the Company or such successor company an
agreement to be bound by this Agreement and the Employment Agreement;
(vi) any refusal by the Company or such successor company
to continue to allow Grantee to attend to matters or engage in
activities not directly related to the business of the Company or such
successor company which, prior to the Change-in-Control, Grantee was
permitted by the Company or such successor company's Boards of Directors
to attend to or engage in; or
(vii) the failure by the Company or such successor company
to continue in effect any of the benefit plans, programs or arrangements
in which Grantee is participating at the time of the Change-in-Control
of the Company or such successor company (unless Grantee is permitted to
participate in any substitute benefit plan, program or arrangement with
substantially the same terms and to the same extent and with the same
rights as Grantee had with respect to the benefit plan, program or
arrangement that is discontinued) other than as a result of the normal
expiration of any such benefit plan, program or arrangement in
accordance with its terms as in effect at the time of the
Change-in-Control, or the taking of any action, or the failure to act,
by the Company or such successor company which would adversely affect
Grantee's continued participation in any of such benefit plans, programs
or arrangements on at least as favorable a basis to Grantee as is the
case on the date of the Change-in-Control or which would materially
reduce Grantee's benefits in the future under any of such benefit plans,
programs or arrangements or deprive Grantee of any material benefits
enjoyed by Grantee at the time of the Change-in-Control.
10
(j) "Good Reason" means the occurrence of any of the following
events or conditions, which event or condition is not corrected by the Company
within 30 days of written notice from the Grantee: (i) any failure of the
Board of Directors of the Company to elect the Grantee to offices with the
same or substantially the same duties and responsibilities as in effect on the
Date of Grant, (ii) any material failure by the Company or any Affiliate to
timely pay or provide to the Grantee any compensation or benefits required to
be paid or provided under the terms of any employment or similar agreement in
effect during the term of this Agreement between the Grantee and the Company
or such Affiliate, (iii) any material breach by the Company or any Affiliate
of any other provision of any employment or similar agreement in effect during
the term of this Agreement between the Grantee and the Company or such
Affiliate, and (iv) any failure by the Company or any Affiliate to timely
offer to renew (and to hold such offer to renew open for acceptance for a
reasonable period of time) on substantially identical terms until at least the
fourth anniversary of the Date of Grant any employment agreement in effect on
the Date of Grant between the Grantee and the Company or such Affiliate.
(k) "Initial Core Base Price" means $18 per share of the Common
Stock of the Company, the closing price on the New York Stock Exchange on
March 13, 2003.
(l) "Peer Group" means the business entities set forth on
Exhibit A to this Agreement, and any successors to the businesses or assets of
such entities as determined by the Committee in its sole and absolute
discretion. If an entity listed on such Exhibit ceases to exist during the
term of this Agreement and the Committee determines that there is no successor
to the business or assets of such entity, then such entity will cease to be
treated as a member of the Peer Group to the extent and for the periods
determined by the Committee in its sole and absolute discretion.
(m) "Person" has the meaning used in Sections 13(d) and 14(d) of
the Exchange Act.
(n) "VWAP" means the volume weighted average closing price per
share of a security on the primary exchange or other quotation system on which
the security is traded.
[signature page follows]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the _____ day of __________, 2004.
RECKSON ASSOCIATES REALTY CORP.
By:
-------------------------------
Name:
Title:
RECKSON OPERATING PARTNERSHIP, L.P.
By:
-------------------------------
Name:
Title:
------------------------------------
The Grantee
Name:
12
Exhibit A - Peer Group Companies
--------------------------------
American Financial Realty Trust
Arden Realty Group, Inc.
Boston Properties, Inc.
Brandywine Realty Trust
CarrAmerica Realty Corporation
Crescent Real Estate Equities, Inc.
Equity Office Properties Trust
Mack-Cali Realty Corporation
Maguire Properties Inc.
Prentiss Properties Trust
SL Green Realty Corporation
Trizec Properties Inc.
Vornado Realty Trust
Exhibit 10.3
FORM OF RECKSON ASSOCIATES REALTY CORP.
CHANGE-IN-CONTROL AGREEMENT
WHEREAS, _______________ (the "Executive") is an executive officer of
Reckson Associates Realty Corp. (the "Company") or one of its Affiliates;
WHEREAS, the Executive has received an award of LTIP OP Units (the "LTIP
OP Units") pursuant to the Long-Term Incentive Plan OP Unit Award Agreement,
dated as of ____ __, ____ between Executive, the Company and Reckson Operating
Partnership (the "LTIP Award Agreement"); and
WHEREAS, the Company desires to provide the Executive with an additional
incentive in the event that a Change-in-Control occurs prior to the complete
book-up of the LTIP OP Units, thereby denying the Executive the intended
benefit of the LTIP OP Units awarded.
NOW, THEREFORE, the Company and the Executive hereby agree as follows:
1. Change-in-Control Bonus:
(a) In the event the LTIP OP Units held by the Executive are redeemed
or otherwise cashed-out in connection with the occurrence of a
Change-in-Control, the Executive shall be entitled to receive from the Company
a cash bonus determined as follow:
A = (B minus C), multiplied by D, where:
A equals the amount of the cash bonus to be paid to the Executive
by the Company;
B equals the per OPU consideration received by a holder of an OPU
in connection with the Change-in-Control;
C equals the per vested LTIP OP Unit consideration received by the
Executive in connection with the Change-in-Control (but in no
event shall C be greater than B); and
D equals the number of vested LTIP OP Units held by the Executive
that are redeemed or otherwise cashed-out in connection with the
Change-in-Control.
For example, if Executive holds 100 LTIP OP Units, all 100 LTIP OP Units are
vested or become vested in connection with Change-of Control, the LTIP OP
Units are cashed-out in connection with a Change-in-Control for $5 per LTIP OP
Unit, and the OPU are cashed-out for $7 per OPU, then Executive will be
entitled to receive a cash bonus of $200 hereunder ($7 minus $5, multiplied by
100).
(b) Said amount shall be payable in one lump sum payment no later than
31 days following the date the LTIP OP Units held by the Executive are
redeemed or otherwise cashed-out.
(c) Amounts payable pursuant to this Agreement are intended to
supplement the LTIP Award Agreement and the Employment Agreement.
2. Term. This Agreement shall terminate upon the earlier of (a) the
date on which the Executive no longer holds LTIP OP Units, other than as a
result of the redemption or other cash-out of such LTIP OP Units in connection
with the occurrence of a Change-in-Control, or (b) the payment of all amounts
owed hereunder to the Executive.
3. 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.
4. Transferability. This Agreement is personal to the Executive, is
non-assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or the laws of descent and distribution.
5. Amendment. The Executive acknowledges that this Agreement may be
amended or canceled by the Company for the purpose of satisfying changes in
law or for any other lawful purpose, provided that no such action shall
adversely affect the Executive's rights under this Agreement without the
Executive's written consent.
6. No Obligation to Continue Employment. Neither the Company nor any
Affiliate is obligated by or as a result of this Agreement to continue the
Executive in employment and this Agreement shall not interfere in any way with
the right of the Company or any Affiliate to terminate the employment of the
Executive at any time.
7. Withholding and Taxes. No later than the date as of which an
amount first becomes includible in the gross income of the Executive for
income tax purposes or subject to Federal Insurance Contributions Act
withholding with respect to any award under this Agreement, such Executive
will pay to the Company or, if appropriate, any of its Affiliates, or make
arrangements satisfactory to the Company's Board of Directors regarding the
payment of, any United States federal, state or local or foreign taxes of any
kind required by law to be withheld with respect to such amount. The
obligations of the Company under this Agreement will be conditional on such
payment or arrangements, and the Company and its Affiliates shall, to the
extent permitted by law, have the right to deduct any such taxes from any
payment otherwise due to the Executive.
8. Successors and Assigns. This Agreement shall be binding upon the
Company's successors and assigns, whether or not this Agreement is expressly
assumed.
9. Definitions. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the LTIP
Award Agreement.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the _____ day of __________, 2004.
RECKSON ASSOCIATES REALTY CORP.
By:
-------------------------------
Name:
Title:
------------------------------------
The Executive
Name:
Exhibit 10.4
SUPPLEMENT TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
RECKSON OPERATING PARTNERSHIP, L.P.
ESTABLISHING LTIP UNITS
OF
LIMITED PARTNERSHIP INTEREST
In accordance with Sections 4.2 and 14.1.B (2), (3) and (4) of the
Amended and Restated Agreement of Limited Partnership, dated as of June 2,
1995, as amended on December 6, 1995, April 13, 1998, April 20, 1998, June 30,
1998, May 24, 1999, June 2, 1999, October 13, 2000, and August 7, 2003 (the
"Partnership Agreement"), the Partnership Agreement is hereby supplemented
(the "Supplement") to establish a class of units of limited partnership
interest of Reckson Operating Partnership, L.P. (the "Partnership"), which
shall be designated "LTIP Units," having the rights, powers, privileges and
restrictions, qualifications and limitations as set forth below and which
shall be issued to the parties and in the amounts set forth on Schedule A
hereto. Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Partnership Agreement.
WHEREAS, the Partnership desires to provide for equity incentives to
certain employees of the Company who provide services for the benefit of the
Partnership ("Grantees").
WHEREAS, pursuant to Section 4.2 of the Partnership Agreement, the
Partnership is issuing LTIP Units to the Grantees with the rights, powers,
privileges and restrictions, qualifications and limitations as set forth
below.
WHEREAS, pursuant to Section 4.2 and Sections 14.1.B (2), (3) and (4),
the General Partner is amending the Partnership Agreement to facilitate the
issuance of the LTIP Units.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Issuance of LTIP Units
(a) Pursuant to Section 4.2 of the Partnership Agreement, the
Partnership hereby issues 362,500 Partnership Interests (the "LTIP Units") to
the Grantees and in the amounts set forth on Schedule A hereto. The LTIP Units
shall have the rights, powers, privileges, restrictions, qualifications and
limitations (including, but not limited to, limitations on transfer) of
Limited Partners under the Partnership Agreement, as supplemented and amended
by the rights, powers, privileges, restrictions, qualifications and
limitations specified in Exhibit I hereto.
(b) The admission of the Grantees as Additional Limited Partners of
the Partnership shall become effective as of the date of this Supplement,
which shall also be the date upon which the names of the Grantees are recorded
on the books and records of the Partnership, and Exhibit A to the Partnership
Agreement is amended to reflect such admission.
Section 2. Amendments to Partnership Agreement.
Pursuant to Section 14.1.B(3) of the Partnership Agreement, the
General Partner, as general partner of the Partnership and as attorney-in-fact
for its Limited Partners, hereby amends the Partnership Agreement as follows:
(a) Article 1 of the Partnership Agreement is hereby amended by
inserting the following definitions in alphabetical order:
"Economic Capital Account Balance" has the meaning set forth in
Section 6.1.E.
"LTIP Units" means the units of the class of limited partnership
interest initially issued on December 27, 2004, having the rights,
powers, privileges, restrictions, qualifications and limitations
set forth in the Supplement to the Partnership Agreement dated as
of such date.
"Common Unit Economic Balance" has the meaning set forth in Section
6.1.E.
(b) Section 6.1 of the Partnership Agreement is amended by
appending the following new paragraph E:
E. Notwithstanding the provisions of Section 6.1.A above, but
subject to the prior allocation of income and gain under clauses
A(i), (ii) and (iii) above and to the terms of any Partnership Unit
Designation in respect of any class of Partnership Interests
ranking senior to the LTIP Units with respect to return of capital
or any preferential or priority return, any Liquidating Gains shall
first be allocated to the holders of LTIP Units until the Economic
Capital Account Balances of such holders, to the extent
attributable to their ownership of LTIP Units, are equal to (i) the
Common Unit Economic Balance, multiplied by (ii) the number of
their LTIP Units; provided that no such Liquidating Gains will be
allocated with respect to any particular LTIP Unit unless and to
the extent that the Common Unit Economic Balance exceeds the Common
Unit Economic Balance in existence at the time such LTIP Unit was
issued. For this purpose, "Liquidating Capital Gains" means net
capital gains realized in connection with the actual or
hypothetical sale of all or substantially all of the assets of the
Partnership, including but not limited to net capital gain realized
in connection with an adjustment to the Carrying Value of
Partnership assets under Section 704(b) of the Code. The "Economic
Capital Account Balances" of the holders of LTIP Units will be
equal to their Capital Account balances, plus the amount of their
shares of any Partner Minimum Gain or Partnership Minimum Gain, in
either case to the extent attributable to their ownership of LTIP
Units. Similarly, the
2
"Common Unit Economic Balance" shall mean (i) the Capital Account
Balance of the Company, plus the amount of the Company's share of
any Partner Minimum Gain or Partnership Minimum Gain, in either
case to the extent attributable to the Company's ownership of
Common Units and computed on a hypothetical basis after taking into
account all allocations through the date on which any allocation is
made under this Section 6.1.E, divided by (ii) the number of the
Company's Common Units. Any such allocations shall be made among
the LTIP Unitholders in proportion to the amounts required to be
allocated to each under this Section 6.1.E. The parties agree that
the intent of this Section 6.1.E is to make the Capital Account
balance associated with each LTIP Unit economically equivalent to
the Capital Account balance associated with the Company's Common
Units (on a per-Unit basis), but only if the Capital Account
balance associated with the Company's Common Units has increased on
a per-Unit basis since the issuance of the relevant LTIP Unit.
(c) Section 8.6A is hereby amended by appending the following
sentence:
Notwithstanding the foregoing, the Redemption Right shall not be
exercisable with respect to any Common Unit issued upon conversion
of an LTIP Unit until on or after the date that is two years after
the date on which the LTIP Unit was issued, provided however, that
the foregoing restriction shall not apply if the Redemption Right
is exercised by a LTIP Unit holder in connection with a transaction
that falls within the definition of a "change-in-control" under the
agreement or agreements to which the LTIP Units were issued to him
or her.
(d) The term "transfer" as used in Article 11 of the Partnership
Agreement shall not include any conversion of LTIP Units into Common Units.
(e) Section 1.D(2) of Exhibit B to the Partnership Agreement is
hereby amended by replacing the text thereof with the following:
(2) Such adjustments shall be made as of the following
times: (a) immediately prior to the acquisition of an
additional interest in the partnership by any new or
existing Partner in exchange for more than a de
minimis Capital Contribution; (b) immediately prior to
the acquisition of a more than de minimis additional
interest in the Partnership by any new or existing
Partner as consideration for the provision of services
to or for the benefit of the Partnership in a partner
capacity or in anticipation of becoming a partner; (c)
immediately prior to the distribution by the
Partnership to a Partner of more than a de minimis
amount of property as consideration for an interest in
the Partnership; and (d) immediately prior to the
liquidation of the Partnership within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g), provided,
however,
3
that adjustments pursuant to clauses (a), (b) and (c)
above shall be made only if the General Partner
determines that such adjustments are necessary or
appropriate to reflect the relative economic interests
of the Partners in the Partnership.
Section 3. Continuation of Partnership Agreement
The Partnership Agreement and this Supplement shall be read
together and shall have the same force and effect as if the provisions of the
Partnership Agreement and this Supplement (including Exhibit I hereto) were
contained in one document. Any provisions of the Partnership Agreement not
amended by this Supplement shall remain in full force and effect as provided
in the Partnership Agreement immediately prior to the date hereof.
4
IN WITNESS WHEREOF, the parties hereto have executed this Supplement to
the Partnership Agreement as of the 27th day of December, 2004.
GENERAL PARTNER:
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Scott Rechler
----------------------------
Name: Scott Rechler
Title: Chief Executive Officer
EXISTING LIMITED PARTNERS:
By: Reckson Associates Realty Corp.,
as Attorney-in-Fact for the Limited Partners
By: /s/ Scott Rechler
----------------------------
Name: Scott Rechler
Title: Chief Executive Officer
GRANTEES:
*Individual Counterpart Signature Pages Attached.
5
RECKSON OPERATING PARTNERSHIP, L.P.
Limited Partner Signature Page
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P. (the "Partnership") hereby
becomes a party to the Amended and Restated Agreement of Limited Partnership,
dated as of June 2, 1995 and amended through the date hereof, of the
Partnership, by and among Reckson Associates Realty Corp. and such Limited
Partners. The undersigned agrees that this signature page may be attached to
any counterpart of said Amended and Restated Agreement of Limited Partnership.
Date: -------------------------------------------
Name of Limited Partner (please print)
-------------------------------------------
Signature
-------------------------------------------
Address
6
EXHIBIT I
RECKSON OPERATING PARTNERSHIP, L.P.
DESIGNATION OF THE RIGHTS, POWERS, PRIVILEGES,
RESTRICTIONS, QUALIFICATIONS AND LIMITATIONS
OF THE LTIP UNITS
The following are the terms of the LTIP Units established pursuant to
this Supplement:
1. Number. The maximum number of authorized LTIP Units shall be 362,500.
2. Vesting.
(a) Vesting, Generally. LTIP Units may, in the sole discretion
of the General Partner, be issued subject to vesting, forfeiture and
additional restrictions on transfer pursuant to the terms of an award vesting
or other similar agreement (a "Vesting Agreement"). The terms of any Vesting
Agreement may be modified by the General Partner from time to time in its sole
discretion, subject to any restrictions on amendment imposed by the relevant
Vesting Agreement or by the terms of any plan pursuant to which the LTIP Units
are issued, if applicable. LTIP Units that have vested under the terms of a
Vesting Agreement are referred to as "Vested LTIP Units"; all other LTIP Units
shall be treated as "Unvested LTIP Units." Subject to the terms of any Vesting
Agreement, a holder of LTIP Units shall be entitled to transfer his or her
LTIP Units to the same extent, and subject to the same restrictions as holders
of Common Units are entitled to transfer their Common Units pursuant to
Article 11 of the Agreement.
(b) Forfeiture or Transfer of Unvested LTIP Units. Unless
otherwise specified in the Vesting Agreement, upon the occurrence of any event
specified in a Vesting Agreement as resulting in either the right of the
Partnership or the Company to repurchase LTIP Units at a specified purchase
price or some other forfeiture of any LTIP Units, then if the Partnership or
the Company exercises such right to repurchase or upon the occurrence of the
circumstances resulting in such forfeiture, then the relevant LTIP Units shall
immediately, and without any further action, be treated as transferred to the
Company, if applicable, or cancelled and no longer outstanding for any
purpose. Unless otherwise specified in the Vesting Agreement, no consideration
or other payment shall be due with respect to any LTIP Units that have been
forfeited, other than any distributions declared with respect to a
Distribution Payment Record Date (as defined below) prior to the effective
date of the forfeiture. In connection with any repurchase or forfeiture of
LTIP Units, the balance of the portion of the Capital Account of the holder
that is attributable to all of his or her LTIP Units shall be reduced by the
amount, if any, by which it exceeds the target balance contemplated by Section
6.1.E of the Partnership Agreement, calculated with respect to the Holder's
remaining LTIP Units, if any.
Exh. I-1
(c) Legend. Any certificate evidencing an LTIP Unit shall bear
an appropriate legend indicating that additional terms, conditions and
restrictions on transfer, including without limitation any Vesting Agreement,
apply to the LTIP Unit.
3. Distributions.
(a) LTIP Distribution Amount. Commencing from the date on which
any LTIP Units are first issued (each, an "LTIP Issue Date"), for any
quarterly period holders of such LTIP Units shall be entitled to receive, if,
when and as authorized by the General Partner out of funds legally available
for the payment of distributions, cash distributions in an amount per unit
equal to the distribution payable on the Common Units for the corresponding
quarterly period (the "LTIP Distribution Amount"). Distributions on the LTIP
Units, if authorized, shall be payable quarterly in arrears on such dates as
may be authorized by the General Partner (any such date, a "Distribution
Payment Date"). In addition, LTIP Units shall be entitled to receive, if, when
and as authorized by the General Partner out of funds or other property
legally available for the payment of distributions, any special, extraordinary
or other distributions payable on the Common Units which may be made from time
to time in an amount per unit equal to the amount of any special,
extraordinary or other distributions payable on the Common Units.
Distributions will be payable to the holder of the LTIP Units with respect to
the LTIP Units held at the close of business on the applicable record date,
which shall be such date designated by the General Partner for the payment of
distributions that is not more than 30 nor less than 10 days prior to such
Distribution Payment Date (each, a "Distribution Payment Record Date"). With
regard to any distribution to the LTIP Units, the Distribution Payment Date
shall be the same date as the date fixed for the payment of distributions to
holders of Common Units and the Distribution Payment Record Date shall be the
same date set for the record date for holders of Common Units. In the event
that distributions to holders of Common Units for any period are paid on other
than a quarterly basis, for example, on a monthly basis, then distributions to
holders of the LTIP Units shall also be paid on that alternate basis.
(b) Prohibited Distributions. No distributions on the LTIP
Units shall be authorized by the General Partner or be paid or set apart for
payment by the Partnership at such time as the terms and provisions of any
agreement of the Partnership, including any agreement relating to its
indebtedness, prohibits such authorization, payment or setting apart for
payment or provides that such authorization, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if such
authorization or payment shall be restricted or prohibited by law.
(c) Noncumulative Distributions. Distributions on the LTIP
Units will be noncumulative. If the General Partner does not authorize a
distribution on the LTIP Units payable on any Distribution Payment Date while
any LTIP Unit is outstanding, then the holder of the LTIP Units will have no
right to receive a distribution for that Distribution Payment Date, and the
Partnership will have no obligation to pay a distribution for that
Distribution Payment Date with respect to the LTIP Units.
Exh. I-2
(d) Parity with Common Units. No distributions, whether in
cash, securities or property, will be authorized or paid or set apart for
payment to holders of Common Units for any period unless for each LTIP Unit
outstanding, a distribution equal to the LTIP Distribution Amount with respect
to such period has been or contemporaneously is authorized and paid or
authorized and a sum sufficient for the payment thereof is set apart for such
payment to the holders of the LTIP Units for the then current distribution
period.
(e) Definition of Set Apart for Payment. As used in this
Section 3, "set apart for payment" shall be deemed to include, without any
further action, the following: the recording by the Partnership in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to an authorization of a distribution by the General Partner, the
allocation of funds to be so paid on any series or class of units of the
Partnership.
4. Adjustments.
The Partnership shall maintain at all times a one-to-one correspondence
between LTIP Units and Common Units for conversion, distribution and other
purposes, including without limitation complying with the following
procedures. If an Adjustment Event (as defined below) occurs, then the General
Partner shall make a corresponding adjustment to the LTIP Units to maintain a
one-for-one conversion and economic equivalence ratio between Common Units and
LTIP Units. The following shall be "Adjustment Events": (A) the Partnership
makes a distribution on all outstanding Common Units in Partnership Units, (B)
the Partnership subdivides the outstanding Common Units into a greater number
of units or combines the outstanding Common Units into a smaller number of
units, or (C) the Partnership issues any Partnership Units in exchange for its
outstanding Common Units by way of a reclassification or recapitalization of
its Common Units. If more than one Adjustment Event occurs, the adjustment to
the LTIP Units need be made only once using a single formula that takes into
account each and every Adjustment Event as if all Adjustment Events occurred
simultaneously. For the avoidance of doubt, the following shall not be
Adjustment Events: (x) the issuance of Partnership Units in a financing,
reorganization, acquisition or other similar business transaction, (y) the
issuance of Partnership Units pursuant to any employee benefit or compensation
plan or distribution reinvestment plan, or (z) the issuance of any Partnership
Units to the Company in respect of a capital contribution to the Partnership
of proceeds from the sale of securities by the Company. If the Partnership
takes an action affecting the Common Units other than actions specifically
described above as "Adjustment Events" and in the opinion of the General
Partner such action would require an adjustment to the LTIP Units to maintain
the one-to-one correspondence described above, the General Partner shall have
the right to make such adjustment to the LTIP Units, to the extent permitted
by law and by the terms of any plan pursuant to which the LTIP Units have been
issued, in such manner and at such time as the General Partner, in its sole
discretion, may determine to be appropriate under the circumstances. If an
adjustment is made to the LTIP Units as herein provided the Partnership shall
promptly file in the books and records of the Partnership an officer's
certificate setting forth such adjustment and a brief statement of
Exh. I-3
the facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment absent manifest error. Promptly
after filing of such certificate, the Partnership shall mail a notice to each
holder of LTIP Units setting forth the adjustment to his or her LTIP Units and
the effective date of such adjustment.
5. Ranking.
The LTIP Units shall rank on parity with the Common Units in all
respects.
6. No Liquidation Preference.
The LTIP Units shall have no liquidation preference.
7. Right to Convert LTIP Units into Common Units.
The following provisions of this Section 7, the "OPU Conversion Right,"
shall apply from and after the date that the Board of Directors of the Company
elects, by formal resolution, to cause the OPU Conversion Right to apply.
Until such time, the following provisions of this Section 7 shall not apply,
and holders of LTIP Units shall instead have the redemption right contemplated
by Section 9.
(a) Conversion Right. A holder of LTIP Units shall have the
right (the "Conversion Right"), at his or her option, at any time to convert
all or a portion of his or her Vested LTIP Units into Common Units; provided,
however, that a holder may not exercise the Conversion Right for fewer than
one thousand (1,000) Vested LTIP Units or, if such holder holds fewer than one
thousand Vested LTIP Units, all of the holder's Vested LTIP Units. Holders of
LTIP Units shall not have the right to convert Unvested LTIP Units into Common
Units until they become Vested LTIP Units; provided, however, that when a
holder of LTIP Units is notified of the expected occurrence of an event that
will cause his or her Unvested LTIP Units to become Vested LTIP Units, such
Person may give the Partnership a Conversion Notice conditioned upon and
effective as of the time of vesting, and such Conversion Notice, unless
subsequently revoked by the holder of the Units, shall be accepted by the
Partnership subject to such condition. The General Partner shall have the
right at any time to cause a conversion of Vested LTIP Units into Common
Units. In all cases, the conversion of any LTIP Units into Common Units shall
be subject to the conditions and procedures set forth in this Section 7.
(b) Number of Units Convertible. A holder of Vested LTIP Units
may convert such Units into an equal number of fully paid and non-assessable
Common Units, giving effect to all adjustments (if any) made pursuant to
Section 4. Notwithstanding the foregoing, in no event may a holder of Vested
LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic
Capital Account Balance of such holder, to the extent attributable to its
ownership of LTIP Units, divided by (y) the Common Unit Economic Balance, in
each case as determined as of the effective date of conversion (the "Capital
Account Limitation").
Exh. I-4
(c) Notice. In order to exercise his or her Conversion Right, a
holder of LTIP Units shall deliver a notice (a "Conversion Notice") in the
form attached as Exhibit A to this Supplement (with a copy to the General
Partner) not less than 10 nor more than 60 days prior to a date (the
"Conversion Date") specified in such Conversion Notice; provided, however,
that if the General Partner has not given to the LTIP Unitholders notice of a
proposed or upcoming Transaction (as defined below) at least thirty (30) days
prior to the effective date of such Transaction, then holders of LTIP Unit
shall have the right to deliver a Conversion Notice until the earlier of (x)
the tenth (10th) day after such notice from the General Partner of a
Transaction or (y) the third business day immediately preceding the effective
date of such Transaction. A Conversion Notice shall be provided in the manner
provided in Section 15.1 of the Partnership Agreement. Each Holder of LTIP
Units covenants and agrees with the Partnership that all Vested LTIP Units to
be converted pursuant to this Section 7 shall be free and clear of all liens.
Notwithstanding anything herein to the contrary, a Holder of LTIP Units may
deliver a Redemption Notice pursuant to Section 8.6 of the Partnership
Agreement relating to those Common Units that will be issued to such holder
upon conversion of such LTIP Units into Common Units in advance of the
Conversion Date; provided, however, that the redemption of such Common Units
by the Partnership shall in no event take place until the Conversion Date. For
clarity, it is noted that the objective of this paragraph is to put a holder
of LTIP Units in a position where, if he or she so wishes, the Common Units
into which his or her Vested LTIP Units will be converted can be redeemed by
the Partnership simultaneously with such conversion, with the further
consequence that, if the Company elects to assume the Partnership's redemption
obligation with respect to such Common Units under Section 8.6 of the
Partnership Agreement by delivering to such holder REIT Shares rather than
cash, then such holder can have such REIT Shares issued to him or her
simultaneously with the conversion of his or her Vested LTIP Units into Common
Units. The General Partner shall cooperate with a holder of LTIP Units to
coordinate the timing of the different events described in the foregoing
sentence.
(d) Forced Conversion. The Partnership, at any time at the
election of the General Partner, may cause any number of Vested LTIP Units
held by a holder of LTIP Units to be converted (a "Forced Conversion") into an
equal number of Common Units, giving effect to all adjustments (if any) made
pursuant to Section 4; provided, that the Partnership may not cause Forced
Conversion of any LTIP Units that would not at the time be eligible for
conversion at the option of such LTIP Unitholder pursuant to paragraph (b)
above. In order to exercise its right of Forced Conversion, the Partnership
shall deliver a notice (a "Forced Conversion Notice") in the form attached as
Exhibit B to this Supplement to the applicable Holder not less than 10 nor
more than 60 days prior to the Conversion Date specified in such Forced
Conversion Notice. A Forced Conversion Notice shall be provided in the manner
provided in Section 15.1 of the Partnership Agreement.
(e) Conversion Procedures. A conversion of Vested LTIP Units
for which the Holder has given a Conversion Notice or the Partnership has
given a Forced Conversion Notice shall occur automatically after the close of
business on the applicable Conversion Date without any action on the part of
such holder of LTIP Units, as of which
Exh. I-5
time such holder of LTIP Units shall be credited on the books and records of
the Partnership with the issuance as of the opening of business on the next
day of the number of Common Units issuable upon such conversion. After the
conversion of LTIP Units as aforesaid, the Partnership shall deliver to such
holder of LTIP Units, upon his or her written request, a certificate of the
General Partner certifying the number of Common Units and remaining LTIP
Units, if any, held by such Person immediately after such conversion.
(f) Treatment of Capital Account. For purposes of making future
allocations under Section 6.1.E of the Agreement and applying the Capital
Account Limitation, the portion of the Economic Capital Account balance of the
applicable holder of LTIP Units that is treated as attributable to his or her
LTIP Units shall be reduced, as of the date of conversion, by the product of
the number of LTIP Units converted and the Common Unit Economic Balance.
(g) Mandatory Conversion in Connection with a Transaction. If
the Partnership or the General Partner shall be a party to any transaction
(including without limitation a merger, consolidation, unit exchange, self
tender offer for all or substantially all Common Units or other business
combination or reorganization, or sale of all or substantially all of the
Partnership's assets, but excluding any transaction which constitutes an
Adjustment Event), in each case as a result of which Common Units shall be
exchanged for or converted into the right, or the holders of such Units shall
otherwise be entitled, to receive cash, securities or other property or any
combination thereof (each of the foregoing being referred to herein as a
"Transaction"), then the General Partner shall, immediately prior to the
Transaction, exercise its right to cause a Forced Conversion with respect to
the maximum number of LTIP Units then eligible for conversion, taking into
account any allocations that occur in connection with the Transaction or that
would occur in connection with the Transaction if the assets of the
Partnership were sold at the Transaction price or, if applicable, at a value
determined by the General Partner in good faith using the value attributed to
the Partnership Units in the context of the Transaction (in which case the
Conversion Date shall be the effective date of the Transaction).
In anticipation of such Forced Conversion and the consummation of the
Transaction, the Partnership shall use commercially reasonable efforts to
cause each holder of LTIP Units to be afforded the right to receive in
connection with such Transaction in consideration for the Common Units into
which his or her LTIP Units will be converted the same kind and amount of
cash, securities and other property (or any combination thereof) receivable
upon the consummation of such Transaction by a holder of the same number of
Common Units, assuming such holder of Common Units is not a Person with which
the Partnership consolidated or into which the Partnership merged or which
merged into the Partnership or to which such sale or transfer was made, as the
case may be (a "Constituent Person"), or an affiliate of a Constituent Person.
In the event that holders of Common Units have the opportunity to elect the
form or type of consideration to be received upon consummation of the
Transaction, prior to such Transaction the General Partner shall give prompt
written notice to each holder of LTIP Units of such
Exh. I-6
election, and shall use commercially reasonable efforts to afford such holders
the right to elect, by written notice to the General Partner, the form or type
of consideration to be received upon conversion of each LTIP Unit held by such
holder into Common Units in connection with such Transaction. If a holder of
LTIP Units fails to make such an election, such Holder (and any of its
transferees) shall receive upon conversion of each LTIP Unit held him or her
(or by any of his or her transferees) the same kind and amount of
consideration that a holder of a Common Unit would receive if such Common Unit
Holder failed to make such an election.
Subject to the rights of the Partnership and the General Partner under
any Vesting Agreement and the terms of any plan under which LTIP Units are
issued, the Partnership shall use commercially reasonable effort to cause the
terms of any Transaction to be consistent with the provisions of this Section
7 and to enter into an agreement with the successor or purchasing entity, as
the case may be, for the benefit of any holders of LTIP Units whose LTIP Units
will not be converted into Common Units in connection with the Transaction
that will (i) contain provisions enabling the holders of LTIP Units that
remain outstanding after such Transaction to convert their LTIP Units into
securities as comparable as reasonably possible under the circumstances to the
Common Units and (ii) preserve as far as reasonably possible under the
circumstances the distribution, special allocation, conversion, and other
rights set forth in the Partnership Agreement for the benefit of the holders
of LTIP Units.
8. Redemption at the Option of the Partnership.
LTIP Units will not be redeemable at the option of the Partnership;
provided, however, that the foregoing shall not prohibit the Partnership from
repurchasing LTIP Units from the holder thereof if and to the extent such
holder agrees to sell such Units.
9. Redemption at Holder's Election.
The following provisions of this Section 9 shall apply until the
date that the OPU Conversion Right becomes effective as contemplated by
Section 7 above. From and after such date, the following provisions shall not
apply, and holders of LTIP Units shall instead have the OPU Conversion Right
contemplated by Section 7:
(a) Redemption Right. On or after the date that is the later of
(i) two (2) years after the LTIP Issuance Date of any Vested LTIP Unit and
(ii) six (6) months after the date on which such Vested LTIP Unit became a
Vested LTIP Unit, other than in connection with a change-in-control
transaction, the holder of any such Vested LTIP Unit shall have the right (the
"Redemption Right") to require the Partnership to redeem on a Specified
Redemption Date all or a portion of the LTIP Units held by such Limited
Partner at a redemption price per LTIP Unit equal to and in the form of the
Cash Amount to be paid by the Partnership. The Redemption Right shall be
exercised pursuant to a Notice of Redemption delivered to the Partnership in
the form attached as Exhibit C hereto (with a copy to the Company) by the
Limited Partner who is exercising the redemption right (the "Redeeming
Partner"). A Limited Partner may not exercise the Redemption Right for less
than one thousand (1,000) Vested LTIP Units at any one time
Exh. I-7
or, if such Limited Partner holds less than one thousand (1,000) Vested LTIP
Units, all of the Vested LTIP Units held by such Partner. The Redeeming
Partner shall have no right, with respect to any Partnership Units so
redeemed, to receive any distributions paid on or after the Specified
Redemption Date. The Assignee of any Limited Partner may exercise the rights
of such Limited Partner pursuant to this Section 9, and such Limited Partner
shall be deemed to have assigned such rights to such Assignee and shall be
bound by the exercise of such rights by such Assignee. In connection with any
exercise of such rights by an Assignee on behalf of a Limited Partner, the
Cash Amount shall be paid by the Partnership directly to such Assignee and not
to such Limited Partner. Any LTIP Units redeemed by the Partnership pursuant
to this Section 9 shall be cancelled upon such redemption.
For purposes of clarification, it is understood that the Cash Amount at
the date of this Supplement is based upon a Conversion Factor of 1.0 and that
such Conversion Factor may be adjusted from time to time as provided in the
Partnership Agreement.
(b) Number of Units Redeemable. Notwithstanding the foregoing
provisions of paragraph (a), in no event may a holder of Vested LTIP Units
redeem a number of Vested LTIP Units that exceeds (x) the Economic Capital
Account Balance of such holder to the extent attributable to its ownership of
LTIP Units, divided by (y) the Common Unit Economic Balance, in each case as
determined as of the effective date of the redemption.
(c) Treatment of Capital Account. For purposes of making future
allocations under Section 6.1.E of the Agreement and applying the Capital
Account Limitation, the portion of the Economic Capital Account balance of the
applicable holder of LTIP Units that is treated as attributable to his or her
LTIP Units shall be reduced, as of the date of conversion, by the product of
the number of LTIP Units converted and the Common Unit Economic Balance.
10. Voting Rights.
(a) Voting with Common Units. Holders of LTIP Units shall have
the right to vote on all matters submitted to a vote of the holders of Common
Units; holders of LTIP Units and Common Units shall vote together as a single
class, together with any other class or series of units of limited partnership
interest in the Partnership upon which like voting rights have been conferred.
In any matter in which the LTIP Units are entitled to vote, including an
action by written consent, each LTIP Unit shall be entitled to one vote.
(b) Special Approval Rights. In addition to, and not in
limitation of, the provisions of Section 10(a) above (and notwithstanding
anything appearing to be contrary in the Partnership Agreement), the Company
and/or the Partnership shall not, without the affirmative consent of the
holders of sixty-six and two-thirds percent (66 2/3%) of the then outstanding
LTIP Units, given in person or by proxy, either in writing or at a meeting,
take any action that would materially and adversely alter, change, modify or
amend the rights, powers or privileges of the LTIP Units; but subject in any
event to the following provisions: (i) no consent of the holders of LTIP Units
will be required if and to the extent that any such alteration, change,
modification or amendment would similarly alter, change, modify
Exh. I-8
or amend the rights, powers or privileges of the Common Units; (ii) with
respect to the occurrence of any merger, consolidation or other business
combination or reorganization, so long as the LTIP Units remain outstanding
with the terms thereof materially unchanged or, if the Partnership is not the
surviving entity in such transaction, are exchanged for a security of the
surviving entity with terms that are materially the same with respect to
rights to allocations, distributions, redemption, conversion and voting as the
LTIP Units and without any income, gain or loss expected to be recognized by
the holder upon the exchange for federal income tax purposes (and with the
terms of the Common Units or such other securities into which the LTIP Units
(or the substitute security therefor) are convertible materially the same with
respect to rights to allocations, distributions, redemption, conversion and
voting), the occurrence of any such event shall not be deemed to materially
and adversely alter, change, modify or amend the rights, powers or privileges
of the LTIP Units; (iii) any creation or issuance of any Common Units or of
any class of series of common or preferred units of the Partnership (whether
ranking junior to, on a parity with or senior to the LTIP Units with respect
to payment of distributions, redemption rights and the distribution of assets
upon liquidation, dissolution or winding up), which either (x) does not
require the consent of the holders of Common Units or (y) does require such
consent and is authorized by a vote of the holders of Common Units; and LTIP
Units voting together as a single class, together with any other class or
series of units of limited partnership interest in the Partnership upon which
like voting rights have been conferred, shall not be deemed to materially and
adversely alter, change, modify or amend the rights, powers or privileges of
the LTIP Units; and (iv) any waiver by the Partnership of restrictions or
limitations applicable to any outstanding LTIP Units with respect to any
holder or holders thereof shall not be deemed to materially and adversely
alter, change, modify or amend the rights, powers or privileges of the LTIP
Units with respect to other holders. The foregoing voting provisions will not
apply if, as of or prior to the time when the action with respect to which
such vote would otherwise be required will be taken or be effective, all
outstanding LTIP Units shall have been converted and/or redeemed, or provision
is made for such redemption and/or conversion to occur as of or prior to such
time.
Exh. I-9
Schedule A
----------
Name and Address Number of LTIP Units
---------------- --------------------
Scott H. Rechler 104,167
c/o Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Michael Maturo 104,167
c/o Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Jason M. Barnett 104,167
c/o Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Todd Rechler 33,333
c/o Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Richard Conniff 16,666
c/o Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Sch. A
Exhibit A
Notice of Election by Partner to Convert
LTIP Units into Common Units
The undersigned holder of LTIP Units hereby irrevocably elects to
convert the number of Vested LTIP Units in Reckson Operating Partnership (the
"Partnership") set forth below into Common Units in accordance with the terms
of the Amended and Restated Agreement of Limited Partnership of the
Partnership, as amended. The undersigned hereby represents, warrants, and
certifies that the undersigned: (a) has title to such LTIP Units, free and
clear of the rights or interests of any other person or entity other than the
Partnership; (b) has the full right, power, and authority to cause the
conversion of such LTIP Units as provided herein; and (c) has obtained the
consent or approval of all persons or entities, if any, having the right to
consent or approve such conversion.
Name of Holder:
----------------------------------------------------------------
(Please Print: Exact Name as Registered with Partnership)
Number of LTIP Units to be Converted:
---------------------
Date of this Notice:
-------------------------------------
--------------------------------------------------------------------
(Signature of Holder: Sign Exact Name as Registered with Partnership)
--------------------------------------------------------------------
(Street Address)
--------------------------------------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
--------------------------------------------
Exh. A
Exhibit B
Notice of Election by Partnership to Force Conversion
of LTIP Units into Common Units
Reckson Operating Partnership (the "Partnership") hereby irrevocably
elects to cause the number of LTIP Units held by the holder of LTIP Units set
forth below to be converted into Common Units in accordance with the terms of
the Amended and Restated Agreement of Limited Partnership of the Partnership.
Name of Holder:
--------------------------------------------------------------
(Please Print: Exact Name as Registered with Partnership)
Number of LTIP Units to be Converted:
---------------------
Date of this Notice:
-------------------------------------
Exh. B
Exhibit C
Notice of Redemption
The undersigned Limited Partner hereby irrevocably requests Reckson
Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership'") to redeem ________ Vested Units in the Partnership in
accordance with the terms of the Amended and Restated Agreement of Limited
Partnership of the Partnership and the Redemption Right referred to in the
Supplement thereto dated as of December 27, 2004; and the undersigned Limited
Partnership irrevocably (i) surrenders such Partnership Units and all right,
title and interest therein; and (ii) directs that the Cash Amount deliverable
upon exercise of the Redemption Right be delivered to the address specified
below. The undersigned hereby represents, warrants and certifies that the
undersigned: (a) has marketable and unencumbered title to such Vested LTIP
Units, free and clear of the rights or interests of any other person or entity
; (b) has the full right, power and authority to request such redemption and
surrender such Partnership Units as provided herein; and (c) has obtained the
consent or approval of all persons or entities, if any, having the right to
consent or approve such redemption and surrender of Units. The undersigned
Limited Partner further agrees that, in the event that any state or local
property tax is payable as a result of the transfer of its Partnership Units
to the Partnership, the undersigned Limited Partner shall assume and pay such
transfer tax.
Dated:
------------------------
Name of Limited Partner:
------------------------------------------
Please Print
------------------------------------------
(Signature of Limited Partner)
------------------------------------------
(Street Address)
------------------------------------------
(City, State, Zip Code)
Signature Guaranteed by:
------------------------------------------
Exh. C