EXHIBIT 10.1
ALEXANDER'S, INC. OMNIBUS STOCK PLAN
STOCK APPRECIATION RIGHT AGREEMENT
STOCK APPRECIATION RIGHT AGREEMENT made as of January 10, 2006 between
Alexander's, Inc., a Delaware corporation, with offices at 210 Route 4 East,
Paramus, New Jersey 07652 (referred to below as the "Company"), and Michael D.
Fascitelli (referred to below as "Employee").
WHEREAS, in accordance with its Omnibus Stock Plan (referred to below
as the "Plan"), the Company, in connection with the employment of the Employee
by the Company or one of its subsidiaries, grants the Employee the opportunity
to receive a payment corresponding to the appreciation over time of the value of
350,000 Shares of the Company, in accordance with the Plan and as additional
incentive for the Employee to promote the progress of the business of the
Company and its subsidiaries. The term "subsidiary" shall have the same meaning
as the term "subsidiary corporation," as defined in Section 424(f) of the
Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, the Company and the Employee agree with each other as
follows:
1. GRANT OF STOCK APPRECIATION RIGHT: On the terms and conditions set
forth below and subject to adjustment as provided in Section 7 hereof, the
Company hereby grants to the Employee the right (the "SAR") to receive a payment
equal to all or any part of the appreciation of 350,000 Shares over the price
per Share of $243.825.
2. TERM OF SAR: The term of the SAR shall be the time period indicated
below from the date of this Agreement subject to earlier termination or
cancellation as provided in this Agreement.
(Check the applicable box to indicate term of SAR)
[ ] Ten (10) years from _______
[ ] Five (5) years from _______
[ X ] March 14, 2007
Except as otherwise in Section 6 hereof, the SAR shall not be
exercisable unless the Employee shall, at the time of exercise, be an employee
of the Company or Vornado Realty Trust.
3. NON-TRANSFERABILITY OF SAR: The SAR is not transferable by the
Employee otherwise than to a designated beneficiary upon death or by will or the
laws of descent and distribution, and exercisable during the Employee's lifetime
only by him; provided, however, the Employee may, subject to such terms and
conditions specified by the Omnibus Stock Plan Committee of the Board of
Directors of the Company (the "Committee"), transfer the SAR to an Immediate
Family Member (or to trusts, partnerships, or limited liability companies
established exclusively for such family members); provided, further, that there
is no consideration for such transfer. Upon such transfer to an Immediate Family
Member, the Employee must within five business days of such transfer send
notification to the Company, Attention: Chief Financial Officer. For purposes of
the foregoing, "Immediate Family Member" shall mean, except as otherwise
determined by the Committee, the Employee's children, stepchildren,
grandchildren, parents, stepparents, grandparents, spouse, siblings (including
half-brother and sisters), in-laws and persons related by reason of legal
adoption. Any attempt of assignment, transfer, pledge, hypothecation or other
disposition of the SAR contrary to the provisions of the Plan or this Agreement,
and any levy of any attachment or similar process upon the SAR, shall be null
and void and without effect, and upon the happening of any such event, the SAR
shall terminate and become of no further effect.
4. EXERCISE OF SAR: Unless terminated pursuant to Section 6 hereof,
the SAR may be exercised in whole or in part at any time, but not prior to July
10, 2006.
The right to exercise shall be cumulative. If the full number of
Shares with respect to which the SAR is available for exercise in a period shall
not be exercised, the balance may be exercised at any time or from time to time
thereafter, but prior to the termination of the SAR. The SAR shall not, however,
be exercisable after the expiration thereof as provided in Section 2 hereof; and
except as provided in Section 6 hereof, the SAR shall not be exercisable unless
the Employee is an employee of the Company or Vornado Realty Trust at the time
of exercise.
5. METHOD OF EXERCISE: The SAR shall be exercisable by written notice
specifying the number of Shares with respect to which the SAR is being exercised
on or after July 10, 2006. Upon delivery, by hand or by registered mail directed
to the Company at its offices (currently at 210 Route 4 East, Paramus, New
Jersey 07652), the Company shall deliver a cash payment to the Employee equal to
the result of multiplying (a) the excess of the fair market value (as determined
by the Committee) of a Share on the date of exercise of the SAR over $243.825,
by (b) the number of Shares with respect to which the SAR is exercised. Such
cash payment, reduced by any taxes which the Company is required to withhold by
law, shall be made as soon as practicable after the SAR is exercised. The SAR
shall be deemed to have been exercised with respect to any particular Shares,
if, and only if, the provisions of this Agreement shall have been complied with,
in which event the SAR shall be deemed to have been exercised on the date on
which the notice described above shall have been delivered to the Company.
2
6. TERMINATION OF EMPLOYMENT: Any SARs held by the Employee upon
termination of employment shall remain exercisable as follows:
(I) If the Employee's termination of employment is due to death, the
SAR shall become immediately exercisable in full and shall be
exercisable by the Employee's designated beneficiary, or, if none, the
person(s) to whom such Employee's rights under the SAR are transferred
by will or the laws of descent and distribution for one (1) year
following such termination of employment (but in no event beyond the
term of the SAR), and shall thereafter terminate;
(II) If the Employee's termination of employment is due to disability
(as defined in Section 22(e)(3) of the Code), the SAR shall become
immediately exercisable in full and shall be exercisable for one (1)
year following such termination of employment (but in no event beyond
the term of the SAR), and shall thereafter terminate;
(III) If the Employee's termination of employment is due to retirement
on or after the attainment of age 65, the SAR shall become immediately
exercisable in full and shall be exercisable for one (1) year
following such termination of employment (but in no event beyond the
term of the SAR), and shall thereafter terminate;
(IV) If the Employee's termination of employment is for cause, all
Shares with respect to which the SAR is exercisable as of the date of
termination shall be exercisable for a period of one (1) month
following such termination of employment (but in no event beyond the
term of the SAR) and shall thereafter terminate; and
(V) If the Employee's termination of employment is for any other
reason, all Shares with respect to which the SAR is exercisable as of
the date of termination shall be exercisable for one (1) year
following such termination of employment (but in no event beyond the
term of the SAR), and shall thereafter terminate. An Employee's status
as an employee shall not be considered terminated in the case of a
leave of absence agreed to in writing by the Company (including, but
not limited to, military and sick leave); provided, that, such leave
is for a period of not more than one (1) year or re-employment upon
expiration of such leave is guaranteed by contract or statute.
For the purposes hereof, "cause" means the Employee's:
(a) conviction of, or plea of guilty or nolo contendere to, a felony;
(b) willful and continued failure to use reasonable best efforts to
substantially perform his duties hereunder (other than such failure
resulting from Employee's incapacity due to physical or mental illness or
subsequent to the issuance of a notice of termination of employment by
Employee) after demand for substantial performance is
3
delivered by the Company in writing that specifically identifies the manner
in which the Company believes Employee has not used reasonable best efforts
to substantially perform his duties; or
(c) willful misconduct (including, but not limited to, a willful
breach of the provisions of any confidentiality agreement with the Company)
that is materially economically injurious to the Company or to any entity
in control of, controlled by or under common control with the Company
("Affiliates").
For purposes of this definition, no act, or failure to act, by Employee shall be
considered "willful" unless committed in bad faith and without a reasonable
belief that the act or omission was in the best interests of the Company or any
Affiliates thereof. Cause shall not exist under paragraph (b) or (c) above
unless and until the Company has delivered to Employee a copy of a resolution
duly adopted by a majority of the Board (excluding Employee for purposes of
determining such majority) at a meeting of the Board called and held for such
purpose (after reasonable (but in no event less than 30 days) notice to Employee
and an opportunity for Employee, together with his counsel, to be heard before
the Board), finding that in the good faith opinion of the Board, Employee was
guilty of the conduct set forth in paragraph (b) or (c) and specifying the
particulars thereof in detail. This definition shall not prevent Employee from
challenging in any court of competent jurisdiction the Board's determination
that cause exists or that Employee has failed to cure any act (or failure to
act) that purportedly formed the basis for the Board's determination. In the
event of any conflict between this definition of cause and that contained in any
employment agreement between the Employee and the Company or any of its
Affiliates, the definition of cause contained in any such employment agreement
will govern and be definitive for the purposes hereof.
7. RECLASSIFICATION, CONSOLIDATION OR MERGER: In the event of any
change in the outstanding Shares by reason of any share dividend or split,
recapitalization, merger, consolidation, spin-off combination or exchange of
Shares or other corporate change, or any distributions to common stockholders
other than regular cash dividends, the Committee shall make such substitution or
adjustment, if any, as it deems to be equitable, as to the number or kind of
Shares with respect to which the SAR is available for exercise. If the Company
is reorganized or consolidated or merged with another corporation, the Employee
shall be entitled to receive a stock appreciation right covering shares of such
reorganized, consolidated or merged company in the same proportion, at an
equivalent price, and subject to the same conditions. For purposes of the
preceding sentence, the excess of the aggregate fair market value of the shares
subject to the stock appreciation right immediately after the reorganization,
consolidation or merger over the aggregate stock appreciation right price of
such shares shall not be more than the excess of the aggregate fair market value
of all Shares subject to the SAR immediately before the reorganization,
consolidation or merger over the aggregate SAR price of the Shares, and the new
stock appreciation right or assumption of the old SAR shall not give the
Employee additional benefits which he did not have under the old SAR.
4
8. BENEFITS OF AGREEMENT: This Agreement shall inure to the benefit of
and be binding upon each successor of the Company. All obligations imposed upon
the Employee and all rights granted to the Company under this Agreement shall be
binding upon the Employee's heirs, legal representatives and successors. The
Agreement shall be the sole and exclusive source of any and all rights which the
Employee, his heirs, legal representatives or successors may have in respect to
the Plan or any SAR or Shares granted or issued thereunder whether to himself or
any other person.
[NEXT PAGE IS THE SIGNATURE PAGE]
5
To signify their agreement to the foregoing the Company has caused this
Agreement to be executed by duly authorized officer and the Employee has
executed this Agreement.
ALEXANDER'S, INC.
By: /s/ Joseph Macnow
---------------------------------
Joseph Macnow
/s/ Michael D. Fascitelli
---------------------------------
Michael D. Fascitelli
6