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