As filed with the Securities and Exchange Commission on December 23, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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RECKSON ASSOCIATES REALTY CORP.
(Exact name of registrant as specified in its charter)
Maryland 11-3233650
-------------------------------- ---------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
225 Broadhollow Road
Melville, New York 11747
(631) 694-6900
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
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Reckson Associates Realty Corp. 2002 Stock Option Plan
(Full title of the plan)
-----------------------
Donald Rechler
Chairman and Co-Chief Executive Officer
Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
(631) 694-6900
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
============================ ====================== ========================= ======================== =========================
Title of Securities Amount to Proposed maximum Proposed maximum Amount of registration
to be registered be registered offering price per unit aggregate offering fee
price
---------------------------- ---------------------- ------------------------- ------------------------ -------------------------
---------------------------- ---------------------- ------------------------- ------------------------ -------------------------
Class A Common Stock, par
value $.01 per share....... 1,500,000(1) $20.875(2) $31,312,500(3) $2,880.75(4)
============================ ====================== ========================= ======================== =========================
(1) Plus such additional number of shares as may be required pursuant to
the 2002 Stock Option Plan with respect to which no additional
consideration will be paid (i) 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 2002
Stock Option Plan.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act").
(3) Calculated pursuant to Rule 457(c) and (h) under the Securities Act
based on the average of the high and low prices for the common stock
reported on the New York Stock Exchange on December 18, 2002.
(4) In accordance with Rule 457(h), the filing fee is based on the
maximum number of the registrant's securities issuable under the 2002
Stock Option 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.
Reckson Associates Realty Corp. (the "Company") hereby incorporates
by reference the documents listed in (a), (b), (c), (d) and (e) below which
have previously been filed with the Securities and Exchange Commission (the
"Commission").
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 2001.
(b) The Company's Quarterly Reports on Form 10-Q (including Form 10-Q/A)
for the quarters ended March 31, 2002, June 30, 2002 and September
30, 2002.
(c) The Company's Current Reports on Form 8-K (including Form 8-K/A)
dated December 21, 2001 and June 11, 2002, respectively.
(d) The Company's definitive proxy statement on Schedule 14A filed on
April 10, 2002.
(e) The description of the Company's common stock, par value $.01 per
share, contained in Item 1 of the Company's registration statement
on Form 8-A, as amended, filed on May 9, 1995 pursuant to Section 12
of the Securities Exchange Act of 1934 (the "Exchange Act").
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 so modified or superseded, to
constitute a part hereof.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
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Item 6. Indemnification of Directors and Officers.
The Maryland General Corporation Law, as amended from time to time
(the "MGCL"), permits a Maryland corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages and reasonable expenses
except for liability resulting from (a) actual receipt of an improper personal
benefit in money, property or services, (b) an act or omission committed in
bad faith or resulting from active and deliberate dishonesty, in either case
if established as being material to the cause of action and (c) in the case of
criminal proceedings, acts or omissions which the director or officer had
reasonable cause to believe was unlawful. Our Amended and Restated Articles of
Incorporation (the "Charter") contains such a provision which eliminates
liability for money damages to the maximum extent permitted by Maryland law.
Our Charter authorizes us, to the maximum extent permitted by
Maryland law, to obligate ourselves to indemnify and to pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to (a) any
present or former director or officer or (b) any individual who, while a
director and at our request, serves or has served another corporation,
partnership, joint venture, trust, employee benefit plan or any other
enterprise as a director, officer, partner or trustee of such corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
and who is made a party to the proceeding by reason of his or her service in
that capacity. Our Charter also permits us to indemnify and advance expenses
to any person who served our predecessor in any of the capacities described
above and to any employee or agent of ours or our predecessor. Our Bylaws
obligate us, to the maximum extent permitted by Maryland law, to indemnify and
to pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any present or former director or officer who is made a
party to the proceeding by reason of his/her service in that capacity or (b)
any individual who, at our request, serves or has served as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans maintained or sponsored by us, and who is made a party to the
proceeding by reason of his/her service in that capacity. Such indemnification
shall continue as to an individual who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his/her heirs, executors
and administrators.
The MGCL requires a corporation (unless its charter provides
otherwise, which our Charter does not) to indemnify a director or officer who
has been successful, on the merits or otherwise, in the defense of any
proceeding to which he is made a party by reason of his service in that
capacity. The MGCL permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection
with any proceeding to which they may be made a party by reason of their
service in those or other capacities unless it is established that (a) the act
or omission of the director or officer was material to the matter giving rise
to the proceeding and (i) was committed in bad faith or (ii) was the result of
active and deliberate dishonesty, (b) the director or officer actually
received an improper personal benefit in money, property or services or (c) in
the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. However, under the
MGCL, a Maryland corporation may not indemnify for an adverse judgment in a
suit by or in the right of the corporation or for a judgment of liability on
the basis that personal benefit was improperly received, unless in either case
a court orders indemnification and then only for expenses. In addition, the
MGCL permits a corporation to advance reasonable expenses, upon the
corporation's receipt of (a) 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 corporation and (b) a written undertaking by or on his
behalf to repay the amount paid or reimbursed by the corporation if it shall
ultimately be determined that the standard of conduct was not met.
We have entered into indemnification agreements with each of our
executive officers and directors. The indemnification agreements require,
among other matters, that we indemnify our executive
3
officers and directors to the fullest extent permitted by law and advance to
the executive officers and directors all related expenses, subject to
reimbursement if it is subsequently determined that indemnification is not
permitted. Under these agreements, we must also indemnify and advance all
expenses incurred by executive officers and directors seeking to enforce their
rights under the indemnification agreements and may cover executive officers
and directors under our directors' and officers' liability insurance. Although
the indemnification agreements offer substantially the same scope of coverage
afforded by the Bylaws, they provide greater assurance to directors and
executive officers that indemnification will be available, because, as
contracts, they cannot be modified unilaterally in the future by the Board of
Directors or the stockholders to eliminate the rights they provide.
Item 7. Exemption of Registration Claimed.
Not Applicable.
Item 8. Exhibits
4.1 Amended and Restated Articles of Incorporation of the Company (1)
4.2 Amended and Restated Bylaws of the Company (2)
4.3 Form of Class A common stock certificate (3)
4.4 Reckson Associates Realty Corp. 2002 Stock Option Plan (4)
5 Opinion of Sidley Austin Brown & Wood LLP
23.1 Consent of Sidley Austin Brown & Wood LLP (included as part of
Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included on the signature page of this
Registration Statement)
----------
(1) Previously filed as an exhibit to the Company's Registration
Statement on Form S-11 (No. 333-1280) and incorporated herein
by reference.
(2) Previously filed as an exhibit to the Company's Form 10-Q filed
with the Commission on November 12, 2002 and incorporated
herein by reference.
(3) Previously filed as an exhibit to the Company's Registration
Statement on Form S-11 (No. 33-84324) and incorporated herein
by reference.
(4) Previously filed as an exhibit to the Company's Form 10-Q filed
with the Commission on August 14, 2002 and incorporated
herein by reference.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
4
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(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, represent
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 with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference
in this Registration Statement shall be 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 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 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
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 the securities being registered, the registrant
will, unless in the opinion of its 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, Reckson Associates Realty Corp. certifies that is 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 Township of Huntington,
State of New York, on December 23, 2002.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Scott H. Rechler
------------------------------------
Scott H. Rechler
Co-Chief Executive Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that we, the undersigned officers
and directors of Reckson Associates Realty Corp. hereby severally constitute
Scott H. Rechler, Mitchell D. Rechler, Gregg M. Rechler and Michael Maturo,
and each of them singly, our true and lawful attorneys with full power to
them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement filed herewith and any
and all amendments to said Registration Statement, and generally to do all
such things in our names and in our capacities as officers and directors to
enable Reckson Associates Realty Corp. to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
------------- ----------- --------------
/s/Donald J. Rechler Chairman of the Board, Co-Chief Executive Officer and Director December 23, 2002
--------------------------- (Principal Executive Officer)
Donald J. Rechler
/s/Scott H. Rechler Co-Chief Executive Officer and Director December 23, 2002
---------------------------
Scott H. Rechler
/s/Mitchell D. Rechler Co-President, Chief Administrative Officer and Director December 23, 2002
---------------------------
Mitchell D. Rechler
/s/Gregg M. Rechler Co-President, Chief Operating Officer and Director December 23, 2002
---------------------------
Gregg M. Rechler
/s/Michael Maturo Executive Vice President, Treasurer and Chief Financial Officer December 23, 2002
--------------------------- (Principal Financial Officer and Principal Accounting Officer)
Michael Maturo
/s/Roger M. Rechler Executive Vice President, Vice-Chairman of the Board and December 23, 2002
--------------------------- Director
Roger M. Rechler
/s/Herve A. Kevenides Director December 23, 2002
---------------------------
Herve A. Kevenides
/s/John V.N. Klein Director December 23, 2002
---------------------------
John V. N. Klein
/s/Ronald H. Menaker Director December 23, 2002
---------------------------
Ronald H. Menaker
--------------------------- Director
Lewis S. Ranieri
/s/Conrad D. Stephenson Director December 23, 2002
---------------------------
Conrad D. Stephenson
/s/Peter Quick Director December 23, 2002
------------------------------
Peter Quick
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Exhibit Index
4.1 Amended and Restated Articles of Incorporation of the Company (1)
4.2 Amended and Restated Bylaws of the Company (2)
4.3 Form of Class A common stock certificate (3)
4.9 Reckson Associates Realty Corp. 2002 Stock Option Plan (4)
5 Opinion of Sidley Austin Brown & Wood LLP
23.1 Consent of Sidley Austin Brown & Wood LLP (included as part of
Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included on the signature page of this
Registration Statement)
----------
(1) Previously filed as an exhibit to the Company's Registration
Statement on Form S-11 (No. 333-1280) and incorporated herein by
reference.
(2) Previously filed as an exhibit to the Company's Form 10-Q filed with
the Commission on November 12, 2002 and incorporated herein by
reference.
(3) Previously filed as an exhibit to the Company's Registration
Statement on Form S-11 (No. 33-84324) and incorporated herein by
reference.
(4) Previously filed as an exhibit to the Company's Form 10-Q filed with
the Commission on August 14, 2002 and incorporated herein by
reference.
Exhibit 5
SIDLEY AUSTIN BROWN & WOOD LLP
CHICAGO 787 SEVENTH AVENUE BEIJING
------- NEW YORK, NEW YORK 10019 ------
DALLAS TELEPHONE 212 839 5300 GENEVA
------- FACSIMILE 212 839 5599 ------
LOS ANGELES www.sidley.com HONG KONG
------- ------
SAN FRANCISCO FOUNDED 1866 LONDON
------- ------
WASHINGTON, D.C. SHANGHAI
------
SINGAPORE
------
TOKYO
December 23, 2002
Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Ladies and Gentlemen:
This opinion is furnished in connection with the registration
statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933,
as amended, relating to the registration of 1,500,000 shares of Class A common
stock, par value $0.01 per share (the "Common Shares"), of Reckson Associates
Realty Corp. (the "Company"), which have been reserved for issuance or
transfer upon the exercise of stock options or the granting of restricted or
unrestricted stock awards granted pursuant to the Company's 2002 stock option
plan (the "Plan").
In connection with rendering this opinion, we have examined the
Company's Amended and Restated Articles of Incorporation, the Company's
Amended and Restated Bylaws, records of the Company's corporate proceedings,
the Plan, the Registration Statement and such other certificates, records and
documents as considered necessary for the purposes of this opinion.
We are attorneys admitted to practice in the State of New York. We
express no opinion concerning the laws of any of the jurisdictions other than
the laws of the United States of America, the State of Maryland and the State
of New York.
Based upon the foregoing, we are of the opinion that the Common
Shares have been duly authorized and, when issued and paid for in accordance
with the terms of the Plan and the Registration Statement, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference therein and in any amendment thereto.
Very truly yours,
/s/ Sidley Austin Brown & Wood LLP
Exhibit 23(b)
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8), pertaining to the 2002 Stock Option Plan of Reckson Associates
Realty Corp. (the "Company"), of our report dated February 20, 2002 (except
Note 13, as to which the date is March 13, 2002), with respect to the
consolidated financial statements and schedule of the Company, included in its
Annual Report (Form 10-K) for the year ended December 31, 2001, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
December 20, 2002