-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Mp/WBmeHz12kCTJzV9eJWuJyiTd+++5dCkxHmok0KTgkrLbur6VLHyCMq+T3uY41 qIojqCPFWp1xHBSIc1bBtA== 0000905148-02-003311.txt : 20021223 0000905148-02-003311.hdr.sgml : 20021223 20021223165331 ACCESSION NUMBER: 0000905148-02-003311 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20021223 EFFECTIVENESS DATE: 20021223 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RECKSON ASSOCIATES REALTY CORP CENTRAL INDEX KEY: 0000930548 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 113233650 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-102163 FILM NUMBER: 02867389 BUSINESS ADDRESS: STREET 1: 225 BROADHOLLOW RD CITY: MELVILLE STATE: NY ZIP: 11747 BUSINESS PHONE: 6316946900 MAIL ADDRESS: STREET 1: 225 BROADHOLLOW RD CITY: MELVILLE STATE: NY ZIP: 11747 S-8 1 efc2-1370_5243716.txt As filed with the Securities and Exchange Commission on December 23, 2002 Registration No. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________________ FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 ________________________ 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) ________________________ Reckson 401(k) 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 to be registered be registered offering price per unit aggregate offering registration fee price - ---------------------------------- ---------------------- ------------------------- ------------------------ --------------------- Class A Common Stock, par value $.01 per share................... 100,000 $20.875(1) $2,087,500(2) $192.05(3) Interests in the Plan............ (4) N/A N/A N/A ================================== ====================== ========================= ======================== =====================
(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the "Securities Act"). (2) 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. (3) In accordance with Rule 457(h), the filing fee is based on the maximum number of the registrant's securities issuable under the Reckson 401(k) Plan that are covered by this Registration Statement. (4) In addition, pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan described herein. =============================================================================== 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") and the Reckson 401(k) Plan (the "Plan") hereby incorporate 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 and the Plan 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. 2 Item 5. Interests of Named Experts and Counsel. None. 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 3 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 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) 5 Internal Revenue Service determination letter that the Plan is qualified under Section 401 of the Internal Revenue Code of 1986, as amended 23 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. Item 9. Undertakings The undersigned registrant and the Plan hereby undertake: (a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; 4 (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 or the Plan 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 and each filing of the Plan's annual report pursuant to Section 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. 5 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 Donald J. Rechler (Principal Executive Officer) /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
6 Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, acting as administrator of the Plan, 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 401(k) PLAN By: Reckson Management Group, Inc., as Plan Administrator By: /s/ Michael Maturo ------------------------------------- Michael Maturo Executive Vice President, Treasurer and Chief Financial Officer 7 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) 5 Internal Revenue Service determination letter that the Plan is qualified under Section 401 of the Internal Revenue Code of 1986, as amended 23 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. Exhibit 5 Internal Revenue Service Department of the Treasury Plan Description: Prototype Non-Standardized Profit Sharing Plan with CODA FFN: 50347791902-002 Case: 9302500 EIN: 25-1195326 Washington, DC 20224 GPO: 02 Plan: 002 Letter Serial No.: 0346111b PNC Bank NA Person to Contact: Ms. Arrington 1 OLIVER PLAZA Telephone Number: (202) 622-8173 PITTSBURGH, PA 15265 Refer Reply to: E:EP:Q:ICU Date: 02/05/93 Dear Applicant: In our opinion, the amendment to the form of the plan identified above does not in and of itself adversely affect the plan's acceptability under section 401 of the Internal Revenue Code. This opinion relates only to the amendment to the form of the plan. It is not an opinion as to the acceptability of any other amendment or of the form of the plan as a whole, or as to the effect of other Federal or local statutes. You must furnish a copy of this letter to each employer who adopts this plan. You are also required to send a copy of the approved form of the plan, any approved amendments and related documents to each Key District Director of Internal Revenue Service in whose jurisdiction there are adopting employers. An employer who adopts the amended form of the plan after the date of the amendment should apply for a determination letter by filing an application with the Key District Director of Internal Revenue on Form 5307, Short Form Application for Determination for Employee Benefit Plan. This letter with respect to the amendment to the form of the plan does not affect the applicability to the plan of the continued, interin and extended reliance provisions of sections 13 and 17.03 of Rev. Proc. 89-9, 1989-1 C.S. 780. The applicability of such provisions may be determined by references to the initial opinion letter issued with respect to the plan. If you, the sponsoring organization, have any questions concerning the IRS processing of this case, please call the above telephone number. This number is only for use of the sponsoring organization. Individual participants and/or adopting employers with questions concerning the plan should contact the sponsoring organization. The plan's adoption agreement must include the sponsoring organization's address and telephone number for inquiries by adopting employers. If you write to the IRS regarding this plan, please provide your telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter. 2 You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan. Sincerely yours, Chief, Employee Plans Qualification Branch Exhibit 23 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8), pertaining to the Reckson 401(k) 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 -----END PRIVACY-ENHANCED MESSAGE-----