Exhibit
10.1


 


EMPLOYMENT AND NONCOMPETITION
AGREEMENT


 


This EMPLOYMENT AND
NONCOMPETITION AGREEMENT (“Agreement”) is made as of the 20th day of April,
2004 between Gerard T. Nocera (“Executive”) and SL Green Realty Corp., a
Maryland corporation with its principal place of business at 420 Lexington
Avenue, New York, New York 10170 (the “Employer”), and amends in its entirety
and completely restates that certain employment agreement between Executive and
the Employer dated as of September 30, 1998.


 


1.                                       Term.
 The term of this Agreement shall
commence on May 1, 2004 and shall continue for a period of two years from the
commencement date, unless earlier terminated as provided in Section 6
below, shall terminate on the second anniversary of the date of this Agreement
(the “Original Term”);  provided, however, that Sections 4 and 8
(and any enforcement or other procedural provisions hereof affecting Sections 4
and 8) hereof shall survive the termination of this Agreement as provided
therein.  The Original Term may be
extended for such period or periods, if any, as may be mutually agreed to in
writing by Executive and the Employer (each a “Renewal Term”).  If either party intends not to extend the
Original Term, such party will give the other party at least six months’
written notice of such intention.  If
either party gives such notice with less than six months remaining in the
Original Term, the term of this Agreement shall be extended until the date
which is six months after the date on which the notice is given.  The period of Executive’s employment
hereunder consisting of the Original Term and all Renewal Terms (and any period
of extension under the foregoing sentence), if any, is herein referred to as
the “Employment Period.”


 


2.                                       Employment
and Duties.


 


(a)                                  Duties.  During the Employment Period,
Executive shall be employed in the business of the Employer and its
affiliates.  Executive shall serve the
Employer as a senior corporate executive and shall have the title of Chief
Operating Officer of the Employer. 
Executive will report to the Chief Executive Officer of the
Employer.  Executive shall be
responsible for overseeing the directors of leasing, management and
construction of real estate of the Employer, assisting the finance department
in budget preparation, compliance and monitoring, cultivating relationships
with new and existing tenants, managing the redevelopment of real estate assets
of the Employer, supervising corporate advertising and human resources
personnel, and assisting and, as may be requested, participating in
communications to the Employer’s shareholders and industry analysts.  Executive’s duties and authority shall be as
further set forth in the By-laws of the Employer and as otherwise established
from time to time by the Board of Directors of the Employer (the “Board”) and
the Chief Executive Officer of the Employer, but in all events such duties
shall be commensurate with his position as Chief Operating Officer of the
Employer.


 


(b)                                 Best
Efforts.  Executive agrees to his
employment as described in this Section 2 and agrees to devote
substantially all of his business time and efforts to the performance of his
duties under this Agreement, except as otherwise approved by the Board;
provided, however, that nothing herein shall be interpreted to preclude
Executive, so long as there is no material interference with his duties
hereunder, from (i) participating as an officer or director of, or advisor to,
any charitable or other tax exempt organization or otherwise engaging in
charitable, fraternal or trade group activities; (ii) investing and managing his assets as a passive investor in


 

















 


other entities or business ventures; provided that he
performs no management or similar role (or, in the case of investments other
than real estate investments, he performs a management role comparable to the
role that a significant limited partner would have, but performs no day-to-day
management or similar role) with respect to such entities or ventures and such
investment does not violate Section 8 hereof; and provided, further, that, in
any case in which another party involved in the investment has a material
business relationship with the Employer, Executive shall give prior written
notice thereof to the Board; or (iii) serving as a member of the Board of
Directors of a for-profit corporation with the approval of the Chief Executive
Officer of the Employer.


 


(c)                                  Travel.  In performing his duties hereunder,
Executive shall be available for all reasonable travel as the needs of the
Employer’s business may require.  Executive
shall be based in, or within 25 miles of, Manhattan.


 


3.                                       Compensation
and Benefits.  In consideration of
Executive’s services hereunder, the Employer shall compensate Executive as
provided in this Agreement.


 


(a)                                  Base
Salary.  The Employer shall pay
Executive an aggregate minimum annual salary at the rate of $325,000 per annum
during the Employment Period (“Base Salary”). 
Base Salary shall be payable bi-weekly in accordance with the Employer’s
normal business practices and shall be reviewed by the Board or Compensation
Committee at least annually.


 


(b)                                 Incentive
Compensation/Bonuses.  In addition
to Base Salary, during the Employment Period, Executive shall be eligible for
and shall receive such discretionary annual bonuses as the Board, in its sole
discretion, may deem appropriate to reward Executive for job performance;
provided, however, that Executive’s annual performance bonus shall not be less
than $150,000.  In addition, Executive
shall be eligible to participate in any other bonus or incentive compensation
plans in effect with respect to senior executive officers of the Employer, as
the Board, in its sole discretion, may deem appropriate to reward Executive for
job performance.  Executive shall be
eligible to participate in the SL Green Realty Corp. 2003 Long-Term
Outperformance Compensation Program, as amended December 2003 (the “Outperformance Plan”), subject to
the terms and conditions as set forth in the Employer’s Outperformance
Plan.  It is expressly understood that, with respect to awards under the
Outperformance Plan, the provisions of the Outperformance Plan, as amended from
time to time, and not the provisions of this Agreement, shall govern in
accordance with their terms, except with respect to the 12 months of vesting
credit provided for under the third sentence of Section 7(a)(iii).  If the term of this Agreement is extended
under the penultimate sentence of Section 1, and Executive’s employment
terminates as of the expiration of the term as so extended, then (i) upon such
termination of employment, Executive shall receive (without duplication) an
amount equal to (A) $150,000 multiplied by (B) a fraction (x) the numerator of
which is the number of days in the fiscal year of termination during which
Executive was employed and (y) the denominator of which is 365, and (ii) no
other bonus-related amounts shall be payable under this Section 3(b) for
the fiscal year of termination.


 


(c)                                  Expenses.  Executive shall be reimbursed for all
reasonable business related expenses incurred by Executive at the request of or
on behalf of the Employer, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Employer.  Any expenses incurred during the
Employment Period but not


 


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reimbursed by the
Employer by the end of the Employment Period, shall remain the obligation of
the Employer to so reimburse Executive.


 


(d)                                 Health
and Welfare Benefit Plans.  During
the Employment Period, Executive and Executive’s immediate family shall be
entitled to participate in such health and welfare benefit plans as the
Employer shall maintain from time to time for the benefit of senior executive
officers of the Employer and their families, on the terms and subject to the
conditions set forth in such plan. 
Nothing in this Section shall limit the Employer’s right to change
or modify or terminate any benefit plan or program as it sees fit from time to
time in the normal course of business so long as it does so for all senior
executives of the Employer.


 


(e)                                  Vacations.  Executive shall be entitled to paid
vacations in accordance with the then regular procedures of the Employer
governing senior executive officers.


 


(f)                                    Other
Benefits.  During the Employment Period,
the Employer shall provide to Executive such other benefits, as generally made
available to other senior executives of the Employer (other than life insurance and other death benefits and other than
long-term disability coverage).


 


4.                                       Indemnification
and Liability Insurance.  The
Employer agrees to indemnify Executive to the extent permitted by applicable
law, as the same exists and may hereafter be amended, from and against any and
all losses, damages, claims, liabilities and expenses asserted against, or
incurred or suffered by, Executive (including the costs and expenses of legal
counsel retained by the Employer to defend Executive and judgments, fines and
amounts paid in settlement actually and reasonably incurred by or imposed on
such indemnified party) with respect to any action, suit or proceeding, whether
civil, criminal administrative or investigative (a “Proceeding”) in which
Executive is made a party or threatened to be made a party, either with regard
to his entering into this Agreement with the Employer or in his capacity as an
officer or director, or former officer or director, of the Employer or any
affiliate thereof for which he may serve in such capacity.  The Employer also agrees to secure and maintain
officers and directors liability insurance providing coverage for Executive.
The provisions of this Section 4 shall remain in effect after this
Agreement is terminated irrespective of the reasons for termination.


 


5.                                       Employer’s
Policies.  Executive agrees to
observe and comply with the reasonable rules and regulations of the Employer as
adopted by the Board from time to time regarding the performance of his duties
and to carry out and perform orders, directions and policies communicated to
him from time to time by the Board, so long as same are otherwise consistent
with this Agreement.


 


6.                                       Termination.  Executive’s employment hereunder may be
terminated under the following circumstances:


 


(a)                                  Termination
by the Employer.


 


(i)                                     Death.  Executive’s employment hereunder shall
terminate upon his death.


 


(ii)                                  Disability.  If, as a result of Executive’s incapacity
due to physical or mental illness or disability, Executive shall have been
incapable of performing his duties hereunder even with a reasonable
accommodation on a full-time basis for the entire period of four consecutive
months or any 120 days in a 180-day period, and within 30


 


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days after written Notice
of Termination (as defined in Section 6(d)) is given he shall not have
returned to the performance of his duties hereunder on a full-time basis, the
Employer may terminate Executive’s employment hereunder.


 


(iii)                               Cause.  The Employer may terminate Executive’s
employment hereunder for Cause.  For
purposes of this Agreement, “Cause” shall mean:  (i) Executive’s engaging in conduct which is a felony; (ii)
Executive’s engaging in conduct constituting a material breach of fiduciary
duty, gross negligence or willful and material misconduct, material fraud or willful
and material misrepresentation; (iii) Executive’s material breach of any of his
obligations under Section 8(a) through 8(e) of this Agreement; or (iv)
Executive’s failure to competently perform his duties  after receiving notice from the Employer specifically identifying
the manner in which Executive has failed to perform (it being understood that,
for this purpose, the manner and level of Executive’s performance shall not be
determined based on the financial performance (including without limitation the
performance of the stock) of the Employer).


 


(iv)                              Without
Cause.  Executive’s employment
hereunder may be terminated by the Employer at any time with or without Cause
(as defined in Section 6(a)(iii) above), by a majority vote of all of the
members of the Board upon written notice to Executive, subject only to the
severance provisions specifically set forth in Section 7.


 


(b)                                 Termination
by Executive.


 


(i)                                     Disability.  Executive may terminate his employment
hereunder for Disability within the meaning of Section 6(a)(ii) above.


 


(ii)                                  With
Good Reason.  Executive’s employment
hereunder may be terminated by Executive with Good Reason effective immediately
by written notice to the Board.  For
purposes of this Agreement, with “Good Reason” shall mean, without Executive’s
prior written consent, (i) a failure by the Employer to pay compensation in
accordance with the provisions of Section 3, which failure has not been
cured within 14 days after the notice of the failure (specifying the same) has
been given by Executive to the Employer; or (ii) a material breach by the
Employer of any other provision of this Agreement which has not been cured
within 30 days after notice of noncompliance (specifying the nature of the
noncompliance) has been given by Executive to the Employer.  On and after the occurrence of a
Change-in-Control (as defined in Section 6(c) below), “Good Reason” shall
also include, in addition to the foregoing:


 


(A)                              a change in duties, responsibilities,
status or positions with the Employer that does not represent a promotion from
or maintaining of Executive’s duties, responsibilities, status or positions as
in effect immediately prior to the Change-in-Control, or any removal of
Executive from or any failure to reappoint or reelect Executive to such
positions, except in connection with the termination of Executive’s employment
for Cause, disability, retirement or death;


 


(B)                                a reduction by the Employer in
Executive’s Base Salary or bonus compensation as in effect immediately prior to
the Change-in-Control;


 


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(C)                                the failure by the Employer to continue
in effect any of the benefit plans including, but not limited to ongoing stock
option and equity awards, in which Executive is participating at the time of
the Change-in-Control of the Employer (unless Executive is permitted to
participate in any substitute benefit plan with substantially the same terms
and to the same extent and with the same rights as Executive had with respect
to the benefit plan that is discontinued) other than as a result of the normal
expiration of any such benefit plan 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 Employer which would adversely affect Executive’s
continued participation in any of such benefit plans on at least as favorable a
basis to Executive as was the case on the date of the Change-in-Control or
which would materially reduce Executive’s benefits in the future under any of
such benefit plans or deprive Executive of any material benefits enjoyed by
Executive at the time of the Change-in-Control; provided, however, that any
such action or inaction on the part of the Employer, including any
modification, cancellation or termination of any benefits plan, undertaken in order
to maintain such plan in compliance with any federal, state or local law or
regulation governing benefits plans, including, but not limited to, the
Employment Retirement Income Security Act of 1974, shall not constitute Good
Reason for the purposes of this Agreement;


 


(D)                               the Employer’s requiring Executive to be
based in an office located more than 25 miles from Manhattan, except for
required travel relating to the Employer’s business to an extent substantially
consistent with the business travel obligations which Executive undertook on
behalf of the Employer prior to the Change-in-Control; and


 


(E)                                 the failure by the Employer to obtain
from any successor to the Employer an agreement to be bound by this Agreement
pursuant to Section 16 hereof, which has not been cured within 30 days
after the notice of the failure (specifying the same) has been given by
Executive to the Employer.


 


(iii)                               Without Good Reason. 
Executive shall have the right to terminate his employment hereunder
without Good Reason, subject to the terms and conditions of this Agreement.


 


(c)                                  Definitions.  The following terms shall be defined as set
forth below.


 


(i)                                     A
“Change-in-Control” shall be deemed to have occurred if:


 


(A)                              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 Employer or SL
Green Operating Partnership, L.P. (the “OP”) representing 25% or more of either
(1) the combined voting power of the Employer’s and/or OP’s then
outstanding securities having the right to vote in an election of the Board
(“Voting Securities”) or (2) the then outstanding shares


 


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of all classes of stock
of the Employer or OP (in either such case other than as a result of the
acquisition of securities directly from the Employer or OP); or


 


(B)                                the members of the Board at the beginning
of any consecutive 24-calendar-month period commencing on or after the date
hereof (the “Incumbent Directors”) cease for any reason other than due to death
to constitute at least a majority of the members of the Board; provided that
any director whose election, or nomination for election by the Employer’s
stockholders, was approved by a vote of at least a majority of the members of
the Board then still in office who were members of the Board at the beginning of
such 24-calendar-month period, shall be deemed to be an Incumbent Director; or


 


(C)                                the stockholders of the Employer shall
approve (1) any consolidation or merger of the Employer or any subsidiary where
the stockholders of the Employer, 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, shares representing in the aggregate at least 50% of the voting
shares of the corporation issuing cash or securities in the consolidation or
merger (or of its ultimate parent corporation, if any), (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 Employer, if the shareholders of the Employer and
unitholders of the OP taken as a whole and considered as one class immediately
before such transaction own, immediately after consummation of such
transaction, equity securities and partnership units possessing less than 50%
percent of the surviving or acquiring company and partnership taken as a whole
or (3) any plan or proposal for the liquidation or dissolution of the Employer.


 


Notwithstanding
the foregoing, a “Change-in-Control” shall not be deemed to have occurred for
purposes of the foregoing clause (A) solely as the result of an acquisition of
securities by the Employer 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 Employer beneficially owned by any Person to 25% 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 25% 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 Employer 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 (A).


 


(ii)                                  “Person”
shall have the meaning used in Sections 13(d) and 14(d) of the Exchange Act;
provided however, that the term “Person” shall not include (A) Stephen L.
Green, (B) Executive or (C) the Employer, any of its subsidiaries, or any
trustee, fiduciary or other person or entity holding securities under any
employee benefit plan of the Employer or any of its subsidiaries.  In addition, no Change-in-Control shall be


 


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deemed to have occurred
under clause (i)(A) above by virtue of a “group” (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) becoming a beneficial owner as
described in such clause, if any individual or entity described in clause (A),
(B) or (C) of the foregoing sentence is a member of such group.


 


(d)                                 Notice
of Termination.  Any termination of
Executive’s employment by the Employer or by Executive (other than on account
of death) shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 12 of this Agreement.  For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and, as applicable, shall set forth in
reasonable detail the fact and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision so indicated.


 


7.                                       Compensation
Upon Termination.


 


(a)                                  Termination
By Employer Without Cause or By Executive With Good Reason.  If (i) Executive is terminated by the
Employer without Cause pursuant to Section 6(a)(iv) above, or (ii)
Executive shall terminate his employment hereunder with Good Reason pursuant to
Section (6)(b)(ii) above, then the Employment Period shall terminate as of
the effective date set forth in the written notice of such termination (the
“Termination Date”) and Executive shall be entitled to the following payment
and benefits:


 


(i)                                     Executive
shall receive any earned and accrued but unpaid Base Salary on the Termination
Date, and any earned and accrued but unpaid incentive compensation and bonuses
payable at such times as would have applied without regard to such termination.


 


(ii)                                  The
Employer shall continue to pay Executive’s Base Salary (at the rate in effect on
the date of his termination) and annual performance bonus (based on the amount
paid for the immediately preceding year or, if the termination takes place
prior to a bonus having been previously so paid, the sum of $150,000) for the
remaining term of the Employment Period after the date of Executive’s
termination, on the same periodic payment dates as payment would have been made
to Executive had the Employment Period not been terminated for the remaining
term of the Employment Period after the date of Executive’s termination;
provided, however, that if such termination occurs upon or following a
Change-in-Control, the Employer shall continue to pay Executive’s Base Salary
(at the rate in effect on the date of his termination) and annual performance
bonus (based on the highest amount paid for the two preceding years or, if the
termination takes place prior to a bonus having been previously so paid, the
sum of $150,000) for the greater of 12 months or the remaining term of the
Employment Period after the date of Executive’s termination, on such periodic
payment dates.


 


(iii)                               Executive shall continue to receive all benefits
described in Section 3(f) existing on the date of termination for the
remaining term of the Employment Period, subject to the terms and conditions
upon which such benefits may be offered to continuing senior executives from
time to time.  For purposes of the
application of such benefits, Executive shall be treated as if he had remained
in the employ of the Employer with a Base Salary at the rate in effect on the
date of termination.  For purposes of
vesting


 


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under
the Employer’s Outperformance Plan, without limiting any other rights that
Executive may have under the Employer’s Outperformance Plan, Executive shall be
treated as if he had remained in the employ of the Employer for 12 months after
the date of termination. 
Notwithstanding the foregoing, (A) nothing in this
Section 7(a)(iii) shall restrict the ability of the Employer to amend or terminate
the plans and programs governing the benefits described in Section 3(f)
from time to time in its sole discretion, and (B) the Employer shall in no
event be required to provide any benefits otherwise required by this
Section 7(a)(iii) after such time as Executive becomes entitled to receive
benefits of the same type from another employer or recipient of Executive’s
services (such entitlement being determined without regard to any individual
waivers or other similar arrangements).


 


(iv)                              Any
unvested shares of restricted stock (i.e., shares then still subject to
restrictions under the applicable award agreement) granted to Executive by the
Employer shall become vested (i.e., free from such restrictions) (for the
avoidance of doubt, the foregoing provision of this sentence shall not refer to
grants under the Employer’s Outperformance Plan, which shall apply in
accordance with its terms as in effect from time to time), and any
unexerciseable or unvested stock options granted to Executive by the Employer shall
become vested and exercisable on the date of Executive’s termination.  Any unexercised stock options granted to
Executive by the Employer shall remain exercisable until the second
January 2 to follow the Termination Date or, if earlier, the expiration of
the initial applicable term stated at the time of the grant.


 


Other than as may be
provided under Section 4 or as expressly provided in this
Section 7(a), the Employer shall have no further obligations hereunder
following such termination.


 


(b)                                 Termination
By the Employer For Cause or By Executive Without Good Reason.  If (i) Executive is terminated by the
Employer for Cause pursuant to Section 6(a)(iii) above, or
(ii) Executive voluntarily terminates his employment hereunder without
Good Reason pursuant to Section 6(b)(ii) above, then the Employment Period
shall terminate as of the effective date set forth in the written notice of
such termination (the “Termination Date”) and Executive shall be entitled to
receive his earned and accrued but unpaid Base Salary at the rate then in
effect until the Termination Date. In addition, in such event, Executive shall
be entitled (i) to receive any earned and accrued but unpaid incentive
compensation or bonuses, payable at such times as would have applied without regard
to such termination, except that,
notwithstanding the foregoing, no amounts shall be payable under this clause
(i) in the case of a termination by the Employer for Cause under clause (i) or
(ii) of Section 6(a)(iii) (for the avoidance of doubt, the foregoing
provisions of this clause (i) shall not refer to grants under the Employer’s
Outperformance Plan, which shall apply in accordance with its terms as in
effect from time to time), (ii) to exercise any options which have
vested as of the termination of Executive’s employment and are exercisable to
the extent provided by and otherwise in accordance with the terms of the
applicable option grant agreement or plan, and (iii) to retain any
restricted shares of the Employer’s stock which have vested as of the
termination of Executive’s employment. 
Other than as may be provided under Section 4 or as expressly
provided in this Section 7(b), the Employer shall have no further
obligations hereunder following such termination.


 


(c)                                  Termination
by Reason of Death.     If
Executive’s employment terminates due to his death, the Employer shall pay
Executive’s Base Salary plus any applicable pro rata portion of


 


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the annual performance
bonus described in Section 3(b) above for a period of six months from the
date of his death, or such longer period as the Board may determine, to
Executive’s estate or to a beneficiary designated by Executive in writing prior
to his death.  In the case of such a
termination, (i) Executive shall be credited with six months after termination
under any provisions governing restricted stock or options relating to the
vesting or initial exercisability thereof, and (ii) if such six months of
credit would fall within a vesting period, a pro rata portion of the unvested
shares of restricted stock granted to Executive that otherwise would have
become vested upon the conclusion of such vesting period shall become vested on
the date of Executive’s termination due to his death, and a pro rata portion of
the unexercisable stock options granted to Executive that otherwise would have
become exercisable upon the conclusion of such vesting period shall become
exercisable on the date of Executive’s termination due to such death (for the
avoidance of doubt, the foregoing clauses (i) and (ii) shall not refer to
grants under the Employer’s Outperformance Plan, which shall apply in
accordance with its terms as in effect from time to time).  Furthermore, upon such death, any vested
unexercised stock options granted to Executive shall remain vested and
exercisable until the earlier of (A) the date on which the term of such stock
options otherwise would have expired, or (B) the second January 1 after
the date of Executive’s termination due to his death.  Other than as may be provided under Section 4 or as
expressly provided in this Section 7(c), the Employer shall have no
further obligations hereunder following such termination.


 


(d)                                 Termination
by Reason of Disability.  In the
event that Executive’s employment terminates due to his disability as defined
in Section 6(a)(ii) above, Executive shall be entitled to be paid his Base
Salary plus any applicable pro rata portion of the annual performance bonus
described in Section 3(b) above for a period of six months from the date
of such termination, or for such longer period as such benefits are then
provided with respect to other senior executives of the Employer.  In the case of such a termination, (i)
Executive shall be credited with six months after termination under any provisions
governing restricted stock or options relating to the vesting or initial
exercisability thereof, and (ii) if such six months of credit would fall within
a vesting period, a pro rata portion of the unvested shares of restricted stock
granted to Executive that otherwise would have become vested upon the
conclusion of such vesting period shall become vested on the date of
Executive’s termination due to his disability, and a pro rata portion of the
unvested or unexercisable stock options granted to Executive that otherwise
would have become vested or exercisable upon the conclusion of such vesting
period shall become vested and exercisable on the date of Executive’s
termination due to such disability (for the avoidance of doubt, the foregoing
clauses (i) and (ii) shall not refer to grants under the Employer’s
Outperformance Plan, which shall apply in accordance with its terms as in
effect from time to time).  Furthermore,
upon such disability, any vested unexercised stock options granted to Executive
shall remain vested and exercisable until the earlier of (A) the date on which
the term of such stock options otherwise would have expired, or (B) the second
January 1 after the date of Executive’s termination due to his disability.  Other than as expressly provided in this
Section 7(d), the Employer shall have no further obligations hereunder
following such termination.


 


8.                                       Confidentiality;
Prohibited Activities.  Executive
and the Employer recognize that due to the nature of his employment and
relationship with the Employer, Executive has access to and develops
confidential business information, proprietary information, and trade secrets
relating to the business and operations of the Employer.  Executive acknowledges that (i) such
information is valuable to the business of the Employer, (ii) disclosure to, or
use for the benefit of, any person or entity other than the Employer, would
cause irreparable damage to the Employer, (iii) the principal businesses of the
Employer are the


 


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acquisition, development,
management, leasing or financing of any office real estate property, including
without limitation the origination of first-mortgage and mezzanine debt or
preferred equity financing for real estate projects throughout the United
States (collectively, the “Business”), (iv) the Employer is one of the limited
number of persons who have developed a business such as the Business, and
(v)  the Business is national in scope.  Executive further acknowledges that his duties
for the Employer include the duty to develop and maintain client, customer,
employee, and other business relationships on behalf of the Employer; and that
access to and development of those close business relationships for the
Employer render his services special, unique and extraordinary.  In recognition that the good will and
business relationships described herein are valuable to the Employer, and that
loss of or damage to those relationships would destroy or diminish the value of
the Employer, and in consideration of the compensation (including severance)
arrangements hereunder, and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged by Executive, Executive agrees
as follows:


 


(a)                                  Confidentiality.  During the term of this Agreement (including
any renewals), and at all times thereafter, Executive shall maintain the
confidentiality of all confidential or proprietary information of the Employer
(“Confidential Information”), and, except in furtherance of the business of the
Employer or as specifically required by law or by court order, he shall not
directly or indirectly disclose any such information to any person or entity;
nor shall he use Confidential Information for any purpose except for the
benefit of the Employer.  For purposes
of this Agreement, “Confidential Information” includes, without
limitation:  client or customer lists,
identities, contacts, business and financial information (excluding those of
Executive prior to employment with Employer); investment strategies; pricing
information or policies, fees or commission arrangements of the Employer;
marketing plans, projections, presentations or strategies of the Employer;
financial and budget information of the Employer; new personnel acquisition plans;
and all other business related information which has not been publicly
disclosed by the Employer.  This
restriction shall apply regardless of whether such Confidential Information is
in written, graphic, recorded, photographic, data or any machine readable form
or is orally conveyed to, or memorized by, Executive.


 


(b)                                 Prohibited
Activities.  Because Executive’s
services to the Employer are essential and because Executive has access to the
Employer’s Confidential Information, Executive covenants and agrees that:


 


(i)                                     during
the Employment Period, and for the one-year period following the termination of
Executive by either party for any reason including the expiration of the term
of this Agreement, Executive will not, anywhere
in the United States, without the prior written consent of the Board
which shall include the unanimous consent of the Directors other than any other
officer of the Employer, directly or indirectly (individually, or through or on
behalf of another entity as owner, partner, agent, employee, consultant, or in
any other capacity), engage, participate or assist, as an owner, partner,
employee, consultant, director, officer, trustee or agent, in any element of
the Business, subject, however, to Section 8(c) below; and


 


(ii)                                  during
the Employment Period, and during (x) the two-year period following the
termination of Executive by either party for any reason (including the
expiration of the term of the Agreement) in the case of clause (A) below, or
(y) the one-year period following such termination in the case of clause (B)
below, Executive will not, without the prior written consent of the Board which
shall include the unanimous


 


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consent of the Directors
who are not officers of the Employer, directly or indirectly (individually, or
through or on behalf of another entity as owner, partner, agent, employee,
consultant, or in any other capacity), (A) solicit, encourage, or engage in any
activity to induce any Employee of the Employer to terminate employment with
the Employer, or to become employed by, or to enter into a business
relationship with, any other person or entity, or (B) engage in any activity
intentionally to interfere with, disrupt or damage the Business of the
Employer, or its relationships with any client, supplier or other business
relationship of the Employer.  For
purposes of this subsection, the term “employee” means any individual who is an
employee of or consultant to the Employer (or any affiliate) during the
six-month period prior to Executive’s last day of employment.


 


(c)                                  Other
Investments.  Notwithstanding
anything contained herein to the contrary, Executive is not prohibited by this
Section 8 from making investments, (i) expressly disclosed to the Employer
in writing before the date hereof; (ii) solely for investment purposes and
without participating in the business in which the investments are made, in any
entity that engages, directly or indirectly, in the acquisition, development,
construction, operation, management, financing or leasing of office real estate
properties, regardless of where they are located, if (x) Executive’s aggregate
investment in each such entity constitutes less than one percent of the equity
ownership of such entity, (y) the investment in the entity is in securities
traded on any national securities exchange or the National Association of
Securities Dealers, Inc. Automated Quotation System, and (z) Executive is not a
controlling person of, or a member of a group which controls, such entity; or (iii)
if (A) except with the prior written
consent of the Employer, he has less than a 25% interest in the investment in
question, (B) except with the prior written consent of the Employer, he does
not have the role of a general partner or managing member, or any similar role,
(C) the investment is not an appropriate investment opportunity for the
Employer, and (D) the investment activity is not directly competitive with the
businesses of the Employer.


 


(d)                                 Employer
Property.  Executive acknowledges
that all originals and copies of materials, records and documents generated by
him or coming into his possession during his employment by the Employer are the
sole property of the Employer (“Employer Property”).  During his employment, and at all times thereafter, Executive
shall not remove, or cause to be removed, from the premises of the Employer,
copies of any record, file, memorandum, document, computer related information
or equipment, or any other item relating to the business of the Employer,
except in furtherance of his duties under this Agreement.  When Executive terminates his employment
with the Employer, or upon request of the Employer at any time, Executive shall
promptly deliver to the Employer all originals and copies of Employer Property
in his possession or control and shall not retain any originals or copies in
any form.


 


(e)                                  No
Disparagement.  For one year
following termination of Executive’s employment for any reason, Executive shall
not intentionally disclose or cause to be disclosed any negative, adverse or
derogatory comments or information about (i) the Employer and its parent,
affiliates or subsidiaries, if any; (ii) any product or service provided by the
Employer and its parent, affiliates or subsidiaries, if any; or (iii) the
Employer’s and its parent’s, affiliates’ or subsidiaries’ prospects for the
future.  For one year following
termination of Executive’s employment for any reason, the Employer shall not
disclose or cause to be disclosed any negative, adverse or derogatory comments
or information about Executive.  Nothing
in this Section shall prohibit either the Employer or Executive from
testifying truthfully in any legal or administrative proceeding.


 


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(f)                                    Remedies.  Executive declares that the foregoing
limitations in Sections 8(a) through 8(f) above are reasonable and necessary
for the adequate protection of the business and the goodwill of the
Employer.  If any restriction contained
in this Section 8 shall be deemed to be invalid, illegal or unenforceable
by reason of the extent, duration or scope thereof, or otherwise, then the
court making such determination shall have the right to reduce such extent,
duration, scope, or other provisions hereof to make the restriction consistent
with applicable law, and in its reduced form such restriction shall then be
enforceable in the manner contemplated hereby. 
In the event that Executive breaches any of the promises contained in
this Section 8, Executive acknowledges that the Employer’s remedy at law
for damages will be inadequate and that the Employer will be entitled to
specific performance, a temporary restraining order or preliminary injunction
to prevent Executive’s prospective or continuing breach and to maintain the
status quo.  The existence of this right
to injunctive relief, or other equitable relief, or the Employer’s exercise of
any of these rights, shall not limit any other rights or remedies the Employer
may have in law or in equity, including, without limitation, the right to arbitration
contained in Section 9 hereof and the right to compensatory and monetary
damages.  Executive hereby agrees to
waive his right to a jury trial with respect to any action commenced to enforce
the terms of this Agreement.  Executive shall have remedies comparable to those
of the Employer as set forth above in this Section 8(f) if the Employer
breaches Section 8(e).


 


(g)                                 Transition.  Regardless of the reason for his departure
from the Employer, Executive agrees that at the Employer’s sole costs and
expense, for a period of not more than 30 days after termination of Executive,
he shall take all steps reasonably requested by the Employer to effect a
successful transition of client and customer relationships to the person or
persons designated by the Employer, subject to Executive’s obligations to his
new employer.


 


(h)                                 Cooperation
with Respect to Litigation.  During
the Employment period and at all times thereafter, Executive agrees to give
prompt written notice to the Employer of any claim relating to the Employer and
to cooperate fully, in good faith and to the best of his ability with the
Employer in connection with any and all pending, potential or future claims,
investigations or actions which directly or indirectly relate to any action,
event or activity about which Executive may have knowledge in connection with
or as a result of his employment by the Employer hereunder.  Such cooperation will include all assistance
that the Employer, its counsel or its representatives may reasonably request,
including reviewing documents, meeting with counsel, providing factual
information and material, and appearing or testifying as a witness; provided,
however, that the Employer will reimburse Executive for all reasonable
expenses, including travel, lodging and meals, incurred by him in fulfilling
his obligations under this Section 8(h) and, except as may be required by
law or by court order, should Executive then be employed by an entity other
than the Employer, such cooperation will not materially interfere with Executive’s
then current employment.


 


(i)                                     Survival.  The provisions of this Section 8 shall
survive termination of Executive’s employment any other provisions relating to
the enforcement thereof.


 


9.                                       Arbitration.  Any controversy or claim arising out of or
relating to this Agreement or the breach of this Agreement (other than a
controversy or claim arising under Section 8, to the extent necessary for
the Employer (or its affiliates, where applicable) to avail itself of the
rights and remedies referred to in Section 8(f)) that is not resolved by
Executive and the Employer (or its affiliates, where applicable) shall be
submitted to arbitration in New York, New York in accordance with New York law


 


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and the procedures of the
American Arbitration Association.  The
determination of the arbitrator(s) shall be conclusive and binding on the
Employer (or its affiliates, where applicable) and Executive and judgment may
be entered on the arbitrator(s)’ award in any court having jurisdiction.


 


10.                                 Conflicting
Agreements.  Executive hereby
represents and warrants that the execution of this Agreement and the
performance of his obligations hereunder will not breach or be in conflict with
any other agreement to which he is a party or is bound, and that he is not now
subject to any covenants against competition or similar covenants which would
affect the performance of his obligations hereunder.


 


11.                                 No
Duplication of Payments.  Executive
shall not be entitled to receive duplicate payments under any of the provisions
of this Agreement.


 


12.                                 Notices.  All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be delivered
by hand and or sent by prepaid telex, cable or other electronic devices or
sent, postage prepaid, by registered or certified mail or telecopy or overnight
courier service and shall be deemed given when so delivered by hand, telexed,
cabled or telecopied, or if mailed, three days after mailing (one business day
in the case of express mail or overnight courier service), as follows:


 


(a)                                  if
to Executive:


 


Gerard T. Nocera, at the
address shown on the execution page hereof.


 


(b)                                 if
to the Employer:


 


SL
Green Realty Corp.

420 Lexington Avenue

New York, New York 10170


Attn:  General Counsel


 


With a
copy to:


 


Clifford Chance US LLP


200 Park Avenue


New York, New York  10166


Attention:  Robert E. King, Jr.


 


or such other address as
either party may from time to time specify by written notice to the other party
hereto.


 


13.                                 Amendments.  No amendment, modification or waiver in
respect of this Agreement shall be effective unless it shall be in writing and
signed by the party against whom such amendment, modification or waiver is
sought.


 


14.                                 Severability.  If any provision of this Agreement (or any
portion thereof) or the application of any such provision (or any portion
thereof) to any person or circumstances shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity,


 


13

















 


illegality or
unenforceability shall not affect any other provision hereof (or the remaining
portion hereof) or the application of such provision to any other persons or
circumstances.


 


15.                                 Withholding.  The Employer shall be entitled to withhold
from any payments or deemed payments any amount of tax withholding it
determines to be required by law.


 


16.                                 Successors
and Assigns.  This Agreement shall
be binding upon and inure to the benefit of both parties and their respective
successors and assigns, including any corporation with which or into which the
Employer may be merged or which may succeed to its assets or business,
provided, however, that the obligations of Executive are personal and shall not
be assigned by him.  This Agreement
shall inure to the benefit of and be enforceable by Executive’s personal and
legal representatives, executors, administrators, assigns, heirs, distributees,
devisees and legatees.


 


17.                                 Counterparts.  This Agreement may be executed in one or
more  counterparts, all of which shall
be considered one and the same 
agreement, and shall become effective when one or more such  counterparts have been signed by each of the
parties and  delivered to the other
party.


 


18.                                 Governing
Law.  This Agreement shall be
governed by and  construed in accordance
with the laws of the State of New York 
applicable to agreements made and to be performed entirely within  such State, without regard to the conflicts
of law principles of  such State.


 


19.                                 Choice
of Venue.  Executive agrees to
submit to the  jurisdiction of the
United States District Court for the Southern 
District of New York or the Supreme Court of the State of New  York, New York County, for the purpose of
any action to enforce  any of the terms
of this Agreement.


 


20.                                 Parachutes.  Notwithstanding any other provision of this
Agreement, if all or any portion of the payments and benefits provided under
this Agreement (including without limitation any accelerated vesting), or any
other payments and benefits which Executive receives or is entitled to receive
from the Employer or an affiliate, or any combination of the foregoing, would
constitute an excess “parachute payment” within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)
(whether or not under an existing plan, arrangement or other agreement) (each
such parachute payment, a “Parachute Payment”), and would result in the
imposition on Executive of an excise tax under Section 4999 of the Code or
any successor thereto, then, in addition to any other benefits to which
Executive is entitled under this Agreement, Executive shall be paid by the
Employer an amount in cash equal to the sum of the excise taxes payable by
Executive by reason of receiving Parachute Payments plus the amount necessary
to put Executive in the same after-tax position (taking into account any and
all applicable federal, state and local excise, income or other taxes at the
highest possible applicable rates on such Parachute Payments (including without
limitation any payments under this Section 20)) as if no excise taxes had
been imposed with respect to Parachute Payments (the “Parachute
Gross-up”).  The amount of any payment
under this Section 20 shall be computed by a certified public accounting
firm of national reputation reasonably selected by the Employer.  Executive and the Employer will provide the
accounting firms with all information which any accounting firm reasonably
deems necessary in computing the Parachute Gross-up to be made available to
Executive.  In the event that the
Internal Revenue Service or a court, as applicable, finally and in a decision
that has become unappealable, determines that a greater or lesser amount of tax
is due, then the Employer shall within five business days thereafter shall pay
the additional amounts, or Executive within five business days after receiving
a refund shall pay over the amount refunded to the Employer, respectively;
provided that (i) Executive shall not initiate any proceeding or other contests
regarding these matters, other than at the direction of the


 


14

















 


Employer, and shall
provide notice to the Employer of any proceeding or other contest regarding
these matters initiated by the Internal Revenue Service, and (ii) the Employer
shall be entitled to direct and control all such proceeding and other contests,
if it commits to and does pay all costs (including without limitation legal and
other professional fees) associated therewith.


 


21.                                 Entire
Agreement.  This Agreement contains
the entire agreement and understanding between the parties hereto with  respect to the subject matter hereof and
supersedes all prior  agreements and
understandings relating to such subject matter.  The parties hereto shall not be liable or bound to any other  party in any manner by any representations,
warranties or covenants relating to such subject matter except as specifically
set forth herein.


 


22.                                 Paragraph
Headings.  Section headings
used in this  Agreement are included for
convenience of reference only and will 
not affect the meaning of any provision of this agreement.


 


23.                                 Board
Approval.  Employer represents that
the Board has approved the economic terms of this Agreement.


 


IN WITNESS WHEREOF, this
Agreement is entered into as of the date and year first written above, and is
being executed on April 20, 2004.


 


 


	
   

  	
  SL GREEN REALTY CORP.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Gerard T. Nocera

  	
   

  
					



 


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