UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
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KIMCO REALTY CORPORATION
(Exact name of registrant as specified in its charter)
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Maryland
(State or other jurisdiction of incorporation or organization)
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13-2744380
(I.R.S. Employer Identification Number)
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3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
(516) 869-9000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Bruce Kauderer, Esq.
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
(516) 869-9000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Raymond Y. Lin, Esq.
Latham & Watkins LLP
885 Third Avenue
Suite 1000
New York, New York 10022
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From time to time after the effective date of this registration
statement as determined by market conditions
(Approximate date of commencement of proposed sale to the public)
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: |_|
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering:|_|
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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Proposed maximum
Title of each Proposed maximum aggregate Amount of
class of securities Amount to be offering price offering price registration
to be registered(1) registered(2) per unit (2)(3) (2)(3) fee(3)(9)
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debt securities(4)................................... \ \ \ \
preferred stock, par value $1.00 per share(5)........ | | | |
depositary shares representing preferred stock(6).... | $936,265,000 | (8) | $936,265,000 | $75,744
common stock, par value $.0l per share(7)............ | | | |
common stock warrants................................ / / / /
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Pursuant to Rule 429 under the Securities Act, the prospectus included in
this registration statement is a combined prospectus and relates to registration
statement no. 333-59970 previously filed by the registrant on Form S-3 and
declared effective on May 16, 2001. This registration statement, which is a new
registration statement, also constitutes a post-effective amendment to
registration statement no. 333-59970, and such post-effective amendment shall
hereafter become effective concurrently with the effectiveness of this
registration statement in accordance with Section 8(c) of the Securities Act.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the registration statement shall become effective on
such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
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(1) This registration statement also covers contracts which may be issued by
the registrant under which the counterparty may be required to purchase
debt securities, preferred stock, depositary shares, common stock or common
stock warrants. Such contracts would be issued with the debt securities,
preferred stock, depositary shares, common stock and/or common stock
warrants covered hereby. In addition, offered securities registered
hereunder may be sold separately, together or as units with other offered
securities registered hereunder.
(2) In U.S. Dollars or the equivalent thereof denominated in one or more
foreign currencies or units of two or more foreign currencies or composite
currencies. In addition, in the event that debt securities are issued at a
discount, debt securities may be sold at a higher principal amount such
that the aggregate initial offering price shall not exceed $936,265,000.
(3) Estimated solely for purposes of calculating the registration fee. No
separate consideration will be received for shares of common stock or
preferred stock that are issued upon conversion of debt securities,
preferred stock or depositary shares registered hereunder or upon exercise
of the common stock warrants registered hereunder, as the case may be. The
aggregate maximum public offering price of all offered securities issued
pursuant to this registration statement will not exceed $936,265,000.
Pursuant to Rule 429 under the Securities Act, the prospectus included in
this registration statement also relates to $63,735,000 of securities
previously registered pursuant to registration statement no. 333-59970
filed by the registrant on Form S-3, for which a filing fee of $15,934 was
paid at the time such registration statement was originally filed.
(4) Such indeterminate principal amount of debt securities as may from time to
time be issued at indeterminate prices or issuable upon conversion of other
debt securities, preferred stock or depositary shares registered hereunder.
Debt securities may be issued from time to time in one or more series.
(5) Such indeterminate number of shares of preferred stock as may from time to
time be issued at indeterminate prices or issuable upon conversion of debt
securities or other classes or series of preferred stock registered
hereunder. Shares of preferred stock may be issued from time to time in one
or more classes or series.
(6) To be represented by depositary receipts representing an interest in all or
a specified portion of a share of preferred stock.
(7) Such indeterminate number of shares of common stock as may from time to
time be issued at indeterminate prices or issuable upon conversion of debt
securities, preferred stock or depositary shares registered hereunder or
upon exercise of the common stock warrants registered hereunder, as the
case may be. Shares of common stock may be issued from time to time in one
or more classes or series.
(8) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act.
(9) Calculated pursuant to Section 6(b) of the Securities Act.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where such offer or sale is not permitted.
Subject to completion, dated ____, 20__.
PROSPECTUS
[KIMCO REALTY CORPORATION LOGO]
KIMCO REALTY CORPORATION
$1,000,000,000
Debt Securities, Preferred Stock,
Depositary Shares, Common Stock and Common Stock Warrants
-----------------------------
We may from time to time offer up to $1,000,000,000 in aggregate initial
offering price of the following securities on terms to be determined at the time
of the offering:
o Unsecured Senior Debt Securities; o Shares of Common Stock,
par value $.01 per share
o Shares or Fractional o Warrants to Purchase
Shares of Preferred Stock, par value Common Stock;
$1.00 per share;
o Depositary Shares representing Shares of
Preferred Stock;
Our common stock is traded on the New York Stock Exchange under the symbol
"KIM." We will make applications to list any shares of common stock sold
pursuant to a supplement to this prospectus on the NYSE. We have not determined
whether we will list any other securities we may offer on any exchange or
over-the-counter market. If we decide to seek listing of any securities, the
supplement to this prospectus will disclose the exchange or market.
Our debt securities, preferred stock, depositary shares representing shares
of preferred stock, common stock and common stock warrants may be offered
separately, together or as units, in separate classes or series, in amounts, at
prices and on terms to be set forth in a supplement to this prospectus. When we
offer securities, we will provide specific terms of such securities in
supplements to this prospectus.
In addition, the specific terms may include limitations on direct or
beneficial ownership and restrictions on transfer of the securities offered by
this prospectus, in each case as may be appropriate to preserve our status as a
real estate investment trust, or REIT, for federal income tax purposes.
The securities offered by this prospectus may be offered directly, through
agents designated from time to time by us, or to or through underwriters or
dealers. If any agents or underwriters are involved in the sale of any of the
securities offered by this prospectus, their names, and any applicable purchase
price, fee, commission or discount arrangement between or among them, will be
set forth, or will be calculable from the information set forth, in the
applicable prospectus supplement. None of the securities offered by this
prospectus may be sold without delivery of the applicable prospectus supplement
describing the method and terms of the offering of those securities.
Each prospectus supplement will also contain information, where applicable,
about United States federal income tax considerations and any legend or
statement required by state law or the Securities and Exchange Commission.
-----------------------------
Investing in our securities involves risks. See "Risk Factors"
beginning on page 4.
-----------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete and any representation to the contrary is a
criminal offense.
The date of this Prospectus is ____, 20__.
We have not authorized any dealer, salesman or other person to give any
information or to make any representation other than those contained or
incorporated by reference in this prospectus and the accompanying supplement to
this prospectus. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement. This prospectus and the accompanying supplement to this
prospectus do not constitute an offer to sell or the solicitation of an offer to
buy any securities other than the registered securities to which they relate,
nor do this prospectus and the accompanying supplement to this prospectus
constitute an offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. The information contained in this prospectus
and the supplement to this prospectus is accurate as of the dates on their
covers. When we deliver this prospectus or a supplement or make a sale pursuant
to this prospectus or a supplement, we are not implying that the information is
current as of the date of the delivery or sale.
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TABLE OF CONTENTS
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Page
ABOUT THIS PROSPECTUS........................................................1
WHERE CAN YOU FIND MORE INFORMATION..........................................1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................1
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS..............................2
THE COMPANY..................................................................3
RISK FACTORS.................................................................4
USE OF PROCEEDS..............................................................8
RATIOS OF EARNINGS TO FIXED CHARGES..........................................8
DESCRIPTION OF DEBT SECURITIES...............................................9
DESCRIPTION OF COMMON STOCK.................................................24
DESCRIPTION OF COMMON STOCK WARRANTS........................................26
DESCRIPTION OF PREFERRED STOCK..............................................27
DESCRIPTION OF DEPOSITARY SHARES............................................35
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS TO US OF OUR REIT ELECTION.......39
PLAN OF DISTRIBUTION........................................................48
EXPERTS.....................................................................50
LEGAL MATTERS...............................................................50
i
When used in this prospectus, "the Company," "we," "us," or "our" refers to
Kimco Realty Corporation and its direct and indirect subsidiaries on a
consolidated basis.
ABOUT THIS PROSPECTUS
This prospectus constitutes part of a registration statement on Form S-3
filed by us under the Securities Act of 1933, as amended, with the U.S.
Securities and Exchange Commission, or the "SEC," utilizing a "shelf"
registration process. Under this shelf registration process, we may sell any
combination of the securities described in this prospectus in one or more
offerings up to a total dollar amount of $1,000,000,000. This prospectus
provides you with a general description of the securities we may offer. As
allowed by SEC rules, this prospectus does not contain all the information you
can find in the registration statement or the exhibits to the registration
statement. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. A
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the next heading
"Where You Can Find More Information" before considering an investment in the
securities offered by that prospectus supplement.
WHERE CAN YOU FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our SEC filings are
available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file with the SEC
at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549.
You may also obtain copies of our SEC filings at prescribed rates by
writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549. Please call 1-800-SEC-0330 for further
information on the operations at the public reference room. Our SEC filings are
also available at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
Statements contained in this prospectus as to the contents of any contract
or other document are not necessarily complete, and in each instance reference
is made to the copy of that contract or other document filed as an exhibit to
the registration statement, each such statement being qualified in all respects
by that reference and the exhibits and schedules thereto. For further
information about us and the securities offered by this prospectus, you should
refer to the registration statement and such exhibits and schedules which may be
obtained from the SEC at its principal office in Washington, D.C. upon payment
of any fees prescribed by the SEC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by us under the Securities
Exchange Act of 1934, as amended (the "Securities Exchange Act"), with the SEC
and are incorporated by reference in this prospectus:
o Annual Report on Form 10-K for the year ended December 31, 2002;
o Quarterly Report on Form 10-Q for the three months ended March 31,
2003;
o Current Reports on Form 8-K filed on February 14, 2003, March 27,
2003, April 16, 2003, April 29, 2003, May 2, 2003, May 6, 2003, May
8, 2003, May 9, 2003 and June 9, 2003; and
o Definitive proxy statement filed on April 7, 2003.
We are also incorporating by reference into this prospectus all documents
that we have filed or will file with the SEC as prescribed by Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act since the date of this
prospectus and prior to the termination of the sale of the securities offered by
this prospectus and the accompanying prospectus supplement.
This means that important information about us appears or will appear in
these documents and will be regarded as appearing in this prospectus. To the
extent that information appearing in a document filed later is inconsistent with
prior information, the later statement will control and the prior information,
except as modified or superseded, will no longer be a part of this prospectus.
Copies of all documents which are incorporated by reference in this
prospectus and the applicable prospectus supplement (not including the exhibits
to such information, unless such exhibits are specifically incorporated by
reference) will be provided without charge to each person, including any
beneficial owner of the securities offered by this prospectus, to whom this
prospectus or the applicable prospectus supplement is delivered, upon written or
oral request. Requests should be directed to our secretary, 3333 New Hyde Park
Road, New Hyde Park, New York 11042-0020 (telephone number: (516) 869-9000). You
may also obtain copies of these filings, at no cost, by accessing our website at
http://www.kimcorealty.com; however, the information found on our website is not
considered part of this prospectus or any accompanying prospectus supplement.
1
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference,
contains certain historical and forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act. We intend such forward-looking statements to be covered
by the safe harbor provisions for forward-looking statements contained in the
Private Securities Litigation Reform Act of 1995 and include this statement for
purposes of complying with these safe harbor provisions. Forward-looking
statements, which are based on certain assumptions and describe our future
plans, strategies and expectations, are generally identifiable by use of the
words "believe," "expect," "intend," "anticipate," "estimate," "project" or
similar expressions. Our ability to predict results or the actual effect of
future plans or strategies is inherently uncertain. Factors which may cause
actual results to differ materially from current expectations include, but are
not limited to, (i) changes in general economic and local real estate
conditions, (ii) the inability of major tenants to continue paying their rent
obligations due to bankruptcy, insolvency or general downturn in their business,
(iii) financing risks, such as the inability to obtain equity or debt financing
on favorable terms, (iv) changes in governmental laws and regulations (including
changes to laws governing the taxation of REITs), (v) the level and volatility
of interest rates, (vi) the availability of suitable acquisition opportunities
and (vii) increases in operating costs. The forward-looking statements included
in this prospectus are made only as of the date of this prospectus and we
undertake no obligation to publicly update these forward-looking statements to
reflect new information, future events or otherwise. In light of these risks,
uncertainties and assumptions, the forward-looking events might or might not
occur. Accordingly, there is no assurance that our expectations will be
realized.
2
THE COMPANY
Overview
We began operations through a predecessor in 1966, and today are one of the
nation's largest publicly-traded owners and operators of neighborhood and
community shopping centers (measured by gross leasable area, which we refer to
as "GLA").
As of April 21, 2003, we owned interests in 630 properties, including:
o 558 neighborhood and community shopping centers;
o one regional mall;
o 41 retail store leases;
o 25 ground up development projects; and
o five parcels of undeveloped land.
These properties have a total of approximately 91.0 million square feet of
GLA and are located in 41 states, Canada and Mexico.
Our ownership interests in real estate consist of our consolidated
portfolio and in portfolios in which we own an economic interest, such as; Kimco
Income REIT, the RioCan Venture, Kimco Retail Opportunity Portfolio and other
properties or portfolios where we also retain management. We believe our
portfolio of neighborhood and community shopping center properties is the
largest (measured by GLA) currently held by any publicly-traded REIT.
We believe that we have operated, and we intend to continue to operate, in
such a manner to qualify as a REIT under the Internal Revenue Code of 1986, as
amended (the "Code"). We are self-administered and self-managed through present
management, which has owned and managed neighborhood and community shopping
centers for more than 35 years. We have not engaged, nor do we expect to retain,
any external advisors in connection with the operation of our properties. Our
executive officers are engaged in the day-to-day management and operation of our
real estate exclusively, and we administer nearly all operating functions for
our properties, including leasing, legal, construction, data processing,
maintenance, finance and accounting. Our executive offices are located at 3333
New Hyde Park Road, New Hyde Park, New York 11042-0020 and our telephone number
is (516) 869-9000.
In order to maintain our qualification as a REIT for federal income tax
purposes, we are required to distribute at least 90% of our net taxable income,
excluding capital gains, each year. Dividends on any preferred stock issued by
us are included as distributions for this purpose. Historically, our
distributions have exceeded, and we expect that our distributions will continue
to exceed, our net taxable income each year. A portion of such distributions may
constitute a return of capital. As a result of the foregoing, our consolidated
net worth may decline. We however, do not believe that consolidated
stockholders' equity is a meaningful reflection of net real estate values.
3
RISK FACTORS
You should carefully consider the following risks and all of the
information set forth in this prospectus and any accompanying prospectus
supplement before investing in our securities.
Loss of our tax status as a real estate investment trust would have significant
adverse consequences to us and the value of our securities.
We elected to be taxed as a REIT for federal income tax purposes under the
Code commencing with our taxable year beginning January 1, 1992. We currently
intend to operate so as to qualify as a REIT and believe that our current
organization and method of operation comply with the rules and regulations
promulgated under the Code to enable us to qualify as a REIT.
Qualification as a REIT involves the application of highly technical and
complex Code provisions for which there are only limited judicial and
administrative interpretations. The determination of various factual matters and
circumstances not entirely within our control may affect our ability to qualify
as a REIT. For example, in order to qualify as a REIT, at least 95% of our gross
income in any year must be derived from qualifying sources, and we must satisfy
a number of requirements regarding the composition of our assets. Also, we must
make distributions to stockholders aggregating annually at least 90% of our net
taxable income, excluding capital gains. In addition, new legislation,
regulations, administrative interpretations or court decisions could
significantly change the tax laws with respect to qualification as a REIT, the
federal income tax consequences of such qualification or the desirability of an
investment in a REIT relative to other investments. Although we believe that we
are organized and have operated in such a manner, we can give no assurance that
we have qualified or will continue to qualify as a REIT for tax purposes.
If we lose our REIT status, we will face serious tax consequences that will
substantially reduce the funds available to make payment of principal and
interest on the debt securities we issue and to pay dividends to our
stockholders. If we fail to qualify as a REIT:
o we would not be allowed a deduction for distributions to
stockholders in computing our taxable income and would be subject to
federal income tax at regular corporate rates;
o we also could be subject to the federal alternative minimum tax and
possibly increased state and local taxes; and
o unless we are entitled to relief under statutory provisions, we
could not elect to be subject to tax as a REIT for four taxable
years following the year during which we were disqualified.
In addition, if we fail to qualify as a REIT, we would not be required to make
distributions to stockholders.
As a result of all these factors, our failure to qualify as a REIT also
could impair our ability to expand our business and raise capital, and would
adversely affect the value of our securities.
U.S. Federal income tax law developments could affect the desirability of
investing in our common stock because of our REIT status.
In May 2003, legislation was enacted that reduces the maximum tax rate of
non-corporate taxpayers for capital gains generally from 20% to 15% (from May 6,
2003 through 2008) and for dividends payable to non-corporate taxpayers
generally from 38.6% to 15% (from January 1, 2003 through 2008). In general,
dividends payable by REITs are not eligible for such treatment except in limited
circumstances which we do not contemplate. However, the recent legislation
reduces the maximum tax rate of non-corporate taxpayers on ordinary income from
38.6% to 35%.
Although this legislation does not adversely affect the taxation of REITs
or dividends paid by REITs, the more favorable treatment of regular corporate
dividends could cause investors who are individuals to consider stocks of other
corporations that pay dividends as more attractive relative to stocks of REITs.
It is not possible to predict whether this change in perceived relative value
will occur, or what the effect will be on the market price of our stock.
4
Adverse market conditions and competition may impede our ability to generate
sufficient income to pay expenses and maintain properties.
The economic performance and value of our properties are subject to all
of the risks associated with owning and operating real estate including:
o changes in the national, regional and local economic climate;
o local conditions, including an oversupply of space in
properties like those that we own, or a reduction in demand
for properties like those that we own;
o the attractiveness of our properties to tenants;
o the ability of tenants to pay rent;
o competition from other available properties;
o changes in market rental rates;
o the need to periodically pay for costs to repair, renovate and
re-let space;
o changes in operating costs, including costs for maintenance,
insurance and real estate taxes;
o the fact that the expenses of owning and operating properties
are not necessarily reduced when circumstances such as market
factors and competition cause a reduction in income from the
properties; and
o changes in laws and governmental regulations, including those
governing usage, zoning, the environment and taxes.
Downturns in the retailing industry likely will have a direct impact on our
performance.
Our properties consist primarily of community and neighborhood shopping
centers and other retail properties. Our performance therefore is linked to
economic conditions in the market for retail space generally. The market for
retail space has been or could be adversely affected by weakness in the
national, regional and local economies, the adverse financial condition of some
large retailing companies, the ongoing consolidation in the retail sector, the
excess amount of retail space in a number of markets, and increasing consumer
purchases through catalogues and the internet. To the extent that any of these
conditions occur, they are likely to impact market rents for retail space.
Failure by any anchor tenant with leases in multiple locations to make rental
payments to us, because of a deterioration of its financial condition or
otherwise, could impact our performance.
Our performance depends on our ability to collect rent from tenants. At
any time, our tenants may experience a downturn in their business that may
significantly weaken their financial condition. As a result, our tenants may
delay a number of lease commencements, decline to extend or renew leases upon
expiration, fail to make rental payments when due, close stores or declare
bankruptcy. Any of these actions could result in the termination of the tenant's
leases and the loss of rental income attributable to the terminated leases. In
addition, lease terminations by an anchor tenant or a failure by that anchor
tenant to occupy the premises could result in lease terminations or reductions
in rent by other tenants in the same shopping centers under the terms of some
leases. In that event, we may be unable to re-lease the vacated space at
attractive rents or at all. The occurrence of any of the situations described
above, particularly if it involves a substantial tenant with leases in multiple
locations, could impact our performance.
5
We may be unable to collect balances due from any tenants in bankruptcy.
We cannot assure you that any tenant that files for bankruptcy
protection will continue to pay us rent. A bankruptcy filing by or relating to
one of our tenants or a lease guarantor would bar all efforts by us to collect
pre-bankruptcy debts from the tenant or the lease guarantor, or their property,
unless we receive an order permitting us to do so from the bankruptcy court. A
tenant or lease guarantor bankruptcy could delay our efforts to collect past due
balances under the relevant leases, and could ultimately preclude collection of
these sums. If a lease is assumed by the tenant in bankruptcy, all
pre-bankruptcy balances due under the lease must be paid to us in full. However,
if a lease is rejected by a tenant in bankruptcy, we would have only a general
unsecured claim for damages. Any unsecured claim we hold may be paid only to the
extent that funds are available and only in the same percentage as is paid to
all other holders of unsecured claims, and there are restrictions under
bankruptcy laws which limit the amount of the claim we can make if a lease is
rejected. As a result, it is likely that we will recover substantially less than
the full value of any unsecured claims we hold.
Real estate property investments are illiquid, and therefore we may not be able
to dispose of properties when appropriate or on favorable terms
Real estate property investments generally cannot be disposed of
quickly. In addition, the federal tax code imposes restrictions on a REIT's
ability to dispose of properties that are not applicable to other types of real
estate companies. Therefore, we may not be able to vary our portfolio in
response to economic or other conditions promptly or on favorable terms.
We do not have exclusive control over our joint venture investments, so we are
unable to ensure that our objectives will be pursued.
We have invested in some cases as a co-venturer or partner in
properties, instead of owning directly. These investments involve risks not
present in a wholly owned ownership structure. In these investments, we do not
have exclusive control over the development, financing, leasing, management and
other aspects of these investments. As a result, the co-venturer or partner
might have interests or goals that are inconsistent with our interests or goals,
take action contrary to our interests or otherwise impede our objectives. The
co-venturer or partner also might become insolvent or bankrupt.
Our financial covenants may restrict our operating and acquisition activities.
Our revolving credit facility and the indenture under which our senior
unsecured debt is issued contain certain financial and operating covenants,
including, among other things, certain coverage ratios, as well as limitations
on our ability to incur secured and unsecured debt, make dividend payments, sell
all or substantially all of our assets and engage in mergers and consolidations
and certain acquisitions. These covenants may restrict our ability to pursue
certain business initiatives or certain acquisition transactions. In addition,
failure to meet any of the financial covenants could cause an event of default
under and/or accelerate some or all of our indebtedness, which would have a
material adverse effect on us.
We may be subject to environmental regulations.
Under various federal, state, and local laws, ordinances and regulations,
we may be considered an owner or operator of real property and may be
responsible for paying for the disposal or treatment of hazardous or toxic
substances released on or in our property or disposed of by us, as well as
certain other potential costs which could relate to hazardous or toxic
substances (including governmental fines and injuries to persons and property).
This liability may be imposed whether or not we knew about, or were responsible
for, the presence of hazardous or toxic substances.
6
Our ability to lease or develop properties is subject to competitive pressures.
We face competition in the acquisition, development, operation and sale of
real property from individuals and businesses who own real estate, fiduciary
accounts and plans and other entities engaged in real estate investment. Some of
these competitors have greater financial resources than we do. This results in
competition for the acquisition of properties, for tenants who lease or consider
leasing space in our existing and subsequently acquired properties and for other
real estate investment opportunities.
Changes in market conditions could adversely affect the market price of our
publicly traded securities.
As with other publicly traded securities, the market price of our
publicly traded securities depends on various market conditions, which may
change from time to time. Among the market conditions that may affect the market
price of our publicly traded securities are the following:
o the extent of institutional investor interest in the company;
o the reputation of REITs generally and the reputation of REITs
with portfolios similar to ours;
o the attractiveness of the securities of REITs in comparison to
securities issued by other entities (including securities
issued by other real estate companies);
o our financial condition and performance;
o the market's perception of our growth potential and potential
future cash dividends;
o an increase in market interest rates, which may lead
prospective investors to demand a higher distribution rate in
relation to the price paid for our shares; and
o general economic and financial market conditions.
7
USE OF PROCEEDS
Unless otherwise described in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities offered by this
prospectus for general corporate purposes, which may include the acquisition of
neighborhood and community shopping centers as suitable opportunities arise, the
expansion and improvement of certain properties in our portfolio, and the
repayment or refinancing of indebtedness outstanding at that time. The factors
which we will consider in any refinancing will include the amount and
characteristics of any debt securities issued and may include, among others, the
impact of such refinancing on our interest coverage, debt-to-capital ratio,
liquidity and earnings per share. If we identify any specific use for the net
proceeds from the sale of securities, we will describe such use in the
accompanying prospectus supplement.
RATIOS OF EARNINGS TO FIXED CHARGES
All periods presented below have been adjusted to reflect the impact of
operating properties sold and classified as discontinued operations during the
three months ended March 31, 2003 and for the year ended December 31, 2002 and
for properties classified as held for sale as of December 31, 2002, in
accordance with SFAS No. 144, Accounting for the Impairment or Disposal of
Long-Lived Assets.
Our ratio of earnings to fixed charges for the three months ended March 31,
2003 and the years ended December 31, 2002, 2001, 2000, 1999 and 1998 was 3.3,
3.4, 3.3, 2.9, 2.7 and 2.6, respectively. Our ratio of earnings to combined
fixed charges and preferred stock dividend requirements for the three months
ended March 31, 2003 and the years ended December 31, 2002, 2001, 2000, 1999 and
1998 was 2.8, 2.9, 2.7, 2.3, 2.1 and 2.0, respectively.
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges (excluding capitalized interest), amortization of
capitalized interest and distributed income of equity investees to pre-tax
income from continuing operations before adjustment for minority interests in
consolidated subsidiaries or income/loss from unconsolidated partnerships. Fixed
charges consist of interest costs, whether expensed or capitalized, the interest
component of rental expense, and amortization of debt discounts and issue costs,
whether expensed or capitalized.
8
DESCRIPTION OF DEBT SECURITIES
Our unsecured senior debt securities are to be issued under an indenture,
dated as of September 1, 1993, as amended by the first supplemental indenture,
dated as of August 4, 1994, the second supplemental indenture, dated as of April
7, 1995, and as further amended or supplemented from time to time, between us
and The Bank of New York (successor by merger to IBJ Schroder Bank & Trust
Company), as trustee. The indenture has been filed as an exhibit to the
registration statement of which this prospectus is a part and is available for
inspection at the corporate trust office of the trustee at 101 Barclay Street,
8th Floor, New York, New York 10286 or as described above under "Where You Can
Find More Information." The indenture is subject to, and governed by, the Trust
Indenture Act of 1939, as amended. The statements made hereunder relating to the
indenture and the debt securities to be issued thereunder are summaries of some
of the provisions thereof and do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all provisions of the
indenture and the debt securities. All section references appearing herein are
to sections of the indenture.
General
The debt securities will be our direct, unsecured obligations and will rank
equally with all of our other unsecured and unsubordinated indebtedness. The
indenture provides that the debt securities may be issued without limit as to
aggregate principal amount, in one or more series, in each case as established
from time to time in or pursuant to authority granted by a resolution of our
board of directors or as established in one or more indentures supplemental to
the indenture. All debt securities of one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without the
consent of the holders of the debt securities of such series, for issuances of
additional debt securities of that series (Section 301).
The indenture provides that there may be more than one trustee thereunder,
each with respect to one or more series of debt securities. Any trustee under
the indenture may resign or be removed with respect to one or more series of
debt securities, and a successor trustee may be appointed to act with respect to
that series (Section 608). In the event that two or more persons are acting as
trustee with respect to different series of debt securities, each trustee shall
be a trustee of a trust under the indenture separate and apart from the trust
administered by any other trustee (Section 609), and, except as otherwise
indicated herein, any action described herein to be taken by the trustee may be
taken by each trustee with respect to, and only with respect to, the one or more
series of debt securities for which it is trustee under the indenture.
For a detailed description of a specific series of debt securities, you
should consult the prospectus supplement for that series. The prospectus
supplement may contain any of the following information, where applicable:
(1) the title and series designation of those debt securities;
(2) the aggregate principal amount of those debt securities and any
limit on the aggregate principal amount;
(3) if other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of
the maturity thereof, or (if applicable) the portion of the
principal amount of those debt securities which is convertible into
our common stock or our preferred stock, or the method by which any
portion shall be determined;
(4) if convertible, any applicable limitations on the ownership or
transferability of our common stock or our preferred stock into
which those debt securities are convertible which exist to preserve
our status as a REIT;
(5) the date or dates, or the method for determining the date or dates,
on which the principal of those debt securities will be payable;
(6) the rate or rates (which may be fixed or variable), or the method by
which the rate or rates shall be determined, at which those debt
securities will bear interest, if any;
(7) the date or dates, or the method for determining the date or dates,
from which any interest will accrue, the interest payment dates on
which that interest will be payable, the regular record dates for
the interest payment dates, or the method by which that date shall
be determined, the person to whom that interest shall be payable,
and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
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(8) the place or places where (a) the principal of (and premium, if any)
and interest, if any, on those debt securities will be payable, (b)
those debt securities may be surrendered for conversion or
registration of transfer or exchange and (c) notices or demands to
or upon us in respect of those debt securities and the indenture may
be served;
(9) the period or periods within which, the price or prices at which,
and the terms and conditions upon which those debt securities may be
redeemed, as a whole or in part, at our option, if we are to have
that option;
(10) our obligation, if any, to redeem, repay or purchase those debt
securities pursuant to any sinking fund or analogous provision or at
the option of a holder of those debt securities and the period or
periods within which, the price or prices at which and the terms and
conditions upon which those debt securities will be redeemed, repaid
or purchased, as a whole or in part, pursuant to that obligation;
(11) if other than U.S. dollars, the currency or currencies in which
those debt securities are denominated and payable, which may be
units of two or more foreign currencies or a composite currency or
currencies, and the terms and conditions relating thereto;
(12) whether the amount of payments of principal of (and premium, if any)
or interest, if any, on those debt securities may be determined with
reference to an index, formula or other method (which index, formula
or method may, but need not be, based on a currency, currencies,
currency unit or units or composite currency or currencies) and the
manner in which those amounts shall be determined;
(13) any additions to, modifications of or deletions from the terms of
those debt securities with respect to the events of default or
covenants set forth in the indenture;
(14) whether those debt securities will be issued in certificated or
book-entry form or both;
(15) whether those debt securities will be in registered or bearer form
and, if in registered form, their denominations if other than $1,000
and any integral multiple of $1,000 and, if in bearer form, their
denominations and the terms and conditions relating thereto;
(16) the applicability, if any, of the defeasance and covenant defeasance
provisions of article fourteen of the indenture;
(17) if those debt securities are to be issued upon the exercise of debt
warrants, the time, manner and place for those debt securities to be
authenticated and delivered;
(18) the terms, if any, upon which those debt securities may be
convertible into our common stock or our preferred stock and the
terms and conditions upon which that conversion will be effected,
including, without limitation, the initial conversion price or rate
and the conversion period;
(19) whether and under what circumstances we will pay additional amounts
as contemplated in the indenture on those debt securities in respect
of any tax, assessment or governmental charge and, if so, whether we
will have the option to redeem those debt securities in lieu of
making such payment; and
(20) any other terms of those debt securities not inconsistent with the
provisions of the indenture (Section 301).
The debt securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of their maturity. We
refer to this type of debt securities as original issue discount securities. Any
material or applicable special U.S. federal income tax, accounting and other
considerations applicable to original issue discount securities will be
described in the applicable prospectus supplement.
Except as described under "Certain Covenants--Limitations on Incurrence of
Debt" and under "Merger, Consolidation or Sale," the indenture does not contain
any other provisions that would limit our ability to incur indebtedness or to
substantially reduce or eliminate our assets, which may have an adverse effect
on our ability to service our indebtedness (including the debt securities) or
that would afford holders of the debt securities protection in the event of:
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(1) a highly leveraged or similar transaction involving us, our management,
or any affiliate of any of those parties,
(2) a change of control, or
(3) a reorganization, restructuring, merger or similar transaction
involving us that may adversely affect the holders of our debt
securities.
Furthermore, subject to the limitations set forth under "Merger,
Consolidation or Sale," we may, in the future, enter into certain transactions,
such as the sale of all or substantially all of our assets or a merger or
consolidation involving us, that would increase the amount of our indebtedness
or substantially reduce or eliminate our assets, which may have an adverse
effect on our ability to service our indebtedness, including the debt
securities. In addition, restrictions on ownership and transfers of our common
stock and our preferred stock are designed to preserve our status as a REIT and,
therefore, may act to prevent or hinder a change of control. You should refer to
the applicable prospectus supplement for information with respect to any
deletions from, modifications of or additions to the events of default or our
covenants that are described below, including any addition of a covenant or
other provision providing event risk or similar protection.
A significant number of our properties are owned through our subsidiaries.
Therefore, our rights and those of our creditors, including holders of debt
securities, to participate in the assets of those subsidiaries upon the
liquidation or recapitalization of those subsidiaries or otherwise will be
subject to the prior claims of those subsidiaries' respective creditors (except
to the extent that our claims as a creditor may be recognized).
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, the
debt securities of any series will be issuable in denominations of $1,000 and
integral multiples of $1,000 (Section 302).
Unless otherwise specified in the applicable prospectus supplement, the
principal of (and premium, if any) and interest on any series of debt securities
will be payable at the corporate trust office of the trustee, initially located
at 101 Barclay Street, 8th Floor, New York, New York 10286, provided that, at
our option, payment of interest may be made by check mailed to the address of
the person entitled thereto as it appears in the security register or by wire
transfer of funds to that person at an account maintained within the United
States (Sections 301, 305, 306, 307 and 1002).
Any interest not punctually paid or duly provided for on any interest
payment date with respect to a debt security will forthwith cease to be payable
to the holder of that debt security on the applicable regular record date and
may either be paid to the person in whose name that debt security is registered
at the close of business on a special record date for the payment of the
interest not punctually paid or duly provided for to be fixed by the trustee,
notice whereof shall be given to the holder of that debt security not less than
10 days prior to the special record date, or may be paid at any time in any
other lawful manner, all as more completely described in the indenture.
Subject to certain limitations imposed upon debt securities issued in
book-entry form, the debt securities of any series will be exchangeable for
other debt securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of those
debt securities at the corporate trust office of the trustee. In addition,
subject to certain limitations imposed upon debt securities issued in book-entry
form, the debt securities of any series may be surrendered for conversion or
registration of transfer or exchange thereof at the corporate trust office of
the trustee. Every debt security surrendered for conversion, registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer. No service charge will be imposed for any registration
of transfer or exchange of any debt securities, but we may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection with the registration of transfer or exchange of debt securities
(Section 305). If the applicable prospectus supplement refers to any transfer
agent (in addition to the trustee) initially designated by us with respect to
any series of debt securities, we may at any time rescind the designation of
that transfer agent or approve a change in the location through which that
transfer agent acts, except that we will be required to maintain a transfer
agent in each place of payment for that series. We may at any time designate
additional transfer agents with respect to any series of debt securities
(Section 1002).
Neither we nor any trustee shall be required to:
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(1) issue, register the transfer of or exchange debt securities of any
series during a period beginning at the opening of business 15 days
before any selection of debt securities of that series to be redeemed
and ending at the close of business on the day of mailing of the
relevant notice of redemption;
(2) register the transfer of or exchange any debt security, or portion
thereof, called for redemption, except the unredeemed portion of any
debt security being redeemed in part; or
(3) issue, register the transfer of or exchange any debt security which has
been surrendered for repayment at the option of the holder of that debt
security, except the portion, if any, of that debt security not to be
so repaid (Section 305).
Merger, Consolidation or Sale
We may consolidate with, or sell, lease or convey all or substantially all
of our assets to, or merge with or into, any other corporation, provided that:
(1) either we shall be the continuing corporation, or the successor
corporation (if other than us) formed by or resulting from that
consolidation or merger or which shall have received the transfer of
our assets, shall expressly assume payment of the principal of (and
premium, if any) and interest on all of the debt securities and the due
and punctual performance and observance of all of the covenants and
conditions contained in the indenture;
(2) immediately after giving effect to that transaction and treating any
indebtedness which becomes an obligation of ours or of any of our
subsidiaries as a result thereof as having been incurred by us or that
subsidiary at the time of that transaction, no event of default under
the indenture, and no event which, after notice or the lapse of time,
or both, would become an event of default, shall have occurred and be
continuing; and
(3) an officer's certificate and legal opinion covering the above
conditions shall be delivered to the trustee (Sections 801 and 803).
Certain Covenants
Limitations on Incurrence of Debt. We will not, and will not permit any of
our subsidiaries to, incur any Debt (as defined below) if, immediately after
giving effect to the incurrence of that additional Debt, the aggregate principal
amount of all outstanding Debt of ours and of our subsidiaries on a consolidated
basis determined in accordance with generally accepted accounting principles is
greater than 65% of the sum of:
(1) our Undepreciated Real Estate Assets (as defined below) as of the end
of the calendar quarter covered in our annual report on Form 10-K or
quarterly report on Form 10-Q, as the case may be, most recently filed
with the SEC (or, if that filing is not permitted under the Securities
Exchange Act, with the trustee) prior to the incurrence of that
additional Debt; and
(2) the purchase price of any real estate assets acquired by us or any of
our subsidiaries since the end of that calendar quarter, including
those obtained in connection with the incurrence of that additional
Debt (Section 1004).
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In addition to the foregoing limitation on the incurrence of Debt, we will
not, and will not permit any of our subsidiaries to, incur any Debt secured by
any mortgage, lien, charge, pledge, encumbrance or security interest of any kind
upon any of our property or the property of any of our subsidiaries if,
immediately after giving effect to the incurrence of that additional Debt, the
aggregate principal amount of all of our outstanding Debt and the outstanding
Debt of our subsidiaries on a consolidated basis which is secured by any
mortgage, lien, charge, pledge, encumbrance or security interest on our property
or the property of any of our subsidiaries is greater than 40% of the sum of:
(1) our Undepreciated Real Estate Assets as of the end of the calendar
quarter covered in our annual report on Form 10-K or quarterly report
on Form 10-Q, as the case may be, most recently filed with the SEC (or,
if such filing is not permitted under the Securities Exchange Act, with
the trustee) prior to the incurrence of that additional Debt; and
(2) the purchase price of any real estate assets acquired by us or any of
our subsidiaries since the end of that calendar quarter, including
those obtained in connection with the incurrence of that additional
Debt (Section 1004).
In addition to the foregoing limitations on the incurrence of Debt, we will
not, and will not permit any of our subsidiaries to, incur any Debt if
Consolidated Income Available for Debt Service (as defined below) for any 12
consecutive calendar months within the 15 calendar months immediately preceding
the date on which that additional Debt is to be incurred shall have been less
than 1.5 times the Maximum Annual Service Charge (as defined below) on our Debt
and the Debt of all of our subsidiaries to be outstanding immediately after the
incurring of that additional Debt (Section 1004).
Restrictions on Dividends and Other Distributions. We will not, in respect
of any shares of any class of our stock:
(1) declare or pay any dividends (other than dividends payable in the form
of our stock) on our stock;
(2) apply any of our property or assets to the purchase, redemption or
other acquisition or retirement of our stock;
(3) set apart any sum for the purchase, redemption or other acquisition or
retirement of our stock; or
(4) make any other distribution, by reduction of capital or otherwise if,
immediately after that declaration or other action referred to above,
the aggregate of all those declarations and other actions since the
date on which the indenture was originally executed shall exceed the
sum of:
(a) Funds from Operations (as defined below) from June 30, 1993 until
the end of the calendar quarter covered in our annual report on
Form 10-K or quarterly report on Form 10-Q, as the case may be,
most recently filed with the SEC (or, if that filing is not
permitted under the Securities Exchange Act, with the trustee)
prior to that declaration or other action; and
(b) $26,000,000; provided, however, that the foregoing limitation
shall not apply to any declaration or other action referred to
above which is necessary to maintain our status as a REIT under
the Code if the aggregate principal amount of all our outstanding
Debt and the outstanding Debt of our subsidiaries at that time is
less than 65% of our Undepreciated Real Estate Assets as of the
end of the calendar quarter covered in our annual report on Form
10-K or quarterly report on Form 10-Q, as the case may be, most
recently filed with the SEC (or, if that filing is not permitted
under the Securities Exchange Act, with the trustee) prior to that
declaration or other action (Section 1005).
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Notwithstanding the foregoing, we will not be prohibited from making the
payment of any dividend within 30 days of the declaration of that dividend if at
the date of declaration that payment would have complied with the provisions of
the immediately preceding paragraph (Section 1005).
Existence. Except as permitted under "Merger, Consolidation or Sale," we
will do or cause to be done all things necessary to preserve and keep in full
force and effect our corporate existence, rights (charter and statutory) and
franchises; provided, however, that we will not be required to preserve any
right or franchise if we determine that the preservation of that right or
franchise is no longer desirable in the conduct of our business and that the
loss of that right or franchise is not disadvantageous in any material respect
to the holders of the debt securities (Section 1006).
Maintenance of Properties. We will cause all of our properties used or
useful in the conduct of our business or the business of any of our subsidiaries
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements to those
properties, all as in our judgment may be necessary so that the business carried
on in connection with those properties may be properly and advantageously
conducted at all times; provided, however, that we and our subsidiaries will not
be prevented from selling or otherwise disposing for value our respective
properties in the ordinary course of business (Section 1007).
Insurance. We will, and will cause each of our subsidiaries to, keep all of
our insurable properties insured against loss or damage at least in an amount
equal to their then full insurable value with insurers of recognized
responsibility and having a rating of at least A:VIII in Best's Key Rating Guide
(Section 1008).
Payment of Taxes and Other Claims. We will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent,
(1) all taxes, assessments and governmental charges levied or imposed upon
us or any of our subsidiaries or upon our income, profits or property
or the income, profits or property of any of our subsidiaries, and
(2) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon our property or the property of any of
our subsidiaries; provided, however, that we will not be required to
pay or discharge or cause to be paid or discharged any tax, assessment,
charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings (Section 1009).
14
Provision of Financial Information. Whether or not we are subject to
Section 13 or 15(d) of the Securities Exchange Act, we will, to the extent
permitted under the Securities Exchange Act, file with the SEC the annual
reports, quarterly reports and other documents which we would have been required
to file with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange
Act if we were so subject, those documents to be filed with the SEC on or prior
to the respective dates by which we would have been required so to file those
documents if we were so subject. We will also in any event:
(1) within 15 days of each date by which we would have been required to
file those documents with the SEC pursuant to Section 13 or 15(d) of
the Securities Exchange Act:
(a) transmit by mail to all holders of debt securities, as their names
and addresses appear in the security register, without cost to the
holders of debt securities, copies of the annual reports and
quarterly reports which we would have been required to file with
the SEC pursuant to Section 13 or 15(d) of the Securities Exchange
Act if we were subject to those Sections, and
(b) file with the trustee copies of the annual reports, quarterly
reports and other documents which we would have been required to
file with the SEC pursuant to Section 13 or 15(d) of the
Securities Exchange Act if we were subject to those Sections, and
(2) if filing those documents by us with the SEC is not permitted under the
Securities Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of those
documents to any prospective holder of debt securities (Section 1010).
Maintenance of Unencumbered Total Asset Value. We will at all times
maintain an Unencumbered Total Asset Value in an amount of not less than one
hundred percent (100%) of the aggregate principal amount of all our outstanding
Debt and the outstanding Debt of our subsidiaries that is unsecured (Section
1014).
Definitions Used for the Debt Securities
As used in the Indenture and the descriptions thereof herein,
"Consolidated Income Available for Debt Service" for any period means our
Consolidated Net Income (as defined below) and the Consolidated Net Income of
our subsidiaries plus amounts which have been deducted for:
(1) interest on our Debt and interest on the Debt of our subsidiaries,
(2) provision for our taxes and the taxes of our subsidiaries based on
income,
(3) amortization of debt discount,
(4) property depreciation and amortization, and
(5) the effect of any noncash charge resulting from a change in accounting
principles in determining Consolidated Net Income for that period.
"Consolidated Net Income" for any period means the amount of our
consolidated net income (or loss) and the consolidated net income (or loss) of
our subsidiaries for that period determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Debt" of ours or any of our subsidiaries means any indebtedness of ours or
any of our subsidiaries, whether or not contingent, in respect of:
(1) borrowed money or evidenced by bonds, notes, debentures or similar
instruments,
(2) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance
or any security interest existing on property owned by us or any of our
subsidiaries,
(3) letters of credit or amounts representing the balance deferred and
unpaid of the purchase price of any property except any balance that
constitutes an accrued expense or trade payable, or
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(4) any lease of property by us or any of our subsidiaries as lessee which
is reflected on our consolidated balance sheet as a capitalized lease
in accordance with generally accepted accounting principles,
in the case of items of indebtedness under (1) through (3) above to the extent
that those items (other than letters of credit) would appear as a liability on
our consolidated balance sheet in accordance with generally accepted accounting
principles, and also includes, to the extent not otherwise included, any
obligation by us or any of our subsidiaries to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), indebtedness of another person (other than us or
any of our subsidiaries) (it being understood that Debt shall be deemed to be
incurred by us or any of our subsidiaries whenever we or that subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof).
"Funds from Operations" for any period means our Consolidated Net Income
and the Consolidated Net Income of our subsidiaries for that period without
giving effect to depreciation and amortization, gains or losses from
extraordinary items, gains or losses on sales of real estate, gains or losses on
investments in marketable securities and any provision/benefit for income taxes
for that period, plus funds from operations of unconsolidated joint ventures,
all determined on a consistent basis for that period.
"Maximum Annual Service Charge" as of any date means the maximum amount
which may become payable in any period of 12 consecutive calendar months from
that date for interest on, and required amortization of, Debt. The amount
payable for amortization shall include the amount of any sinking fund or other
analogous fund for the retirement of Debt and the amount payable on account of
principal on any Debt which matures serially other than at the final maturity
date of that Debt.
"Total Assets" as of any date means the sum of (1) our Undepreciated Real
Estate Assets and (2) all our other assets determined in accordance with
generally accepted accounting principles (but excluding goodwill and amortized
debt costs).
"Undepreciated Real Estate Assets" as of any date means the amount of our
real estate assets and the real estate assets of our subsidiaries on that date,
before depreciation and amortization determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Unencumbered Total Asset Value" as of any date means the sum of our Total
Assets which are unencumbered by any mortgage, lien, charge, pledge or security
interest that secures the payment of any obligations under any Debt.
Events of Default, Notice and Waiver
The indenture provides that the following events are events of default with
respect to any series of debt securities issued thereunder:
(1) default for 30 days in the payment of any installment of interest on
any debt security of that series;
(2) default in the payment of the principal of (or premium, if any, on)
any debt security of that series at its maturity;
(3) default in making any sinking fund payment as required for any debt
security of that series;
(4) default in the performance of any of our other covenants contained
in the indenture (other than a covenant added to the indenture
solely for the benefit of a series of debt securities issued
thereunder other than that series), continued for 60 days after
written notice as provided in the indenture;
(5) default in the payment of an aggregate principal amount exceeding
$10,000,000 of any evidence of our indebtedness or any mortgage,
indenture or other instrument under which indebtedness is issued or
by which that indebtedness is secured, that default having occurred
after the expiration of any applicable grace period and having
resulted in the acceleration of the maturity of that indebtedness,
but only if that indebtedness is not discharged or that acceleration
is not rescinded or annulled;
(6) certain events of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee of ours or any of
our significant subsidiaries (as defined in Regulation S-X
promulgated under the Securities Act) or either of our properties;
and
16
(7) any other event of default provided with respect to a particular
series of debt securities (Section 501).
If an event of default under the indenture with respect to debt securities
of any series at the time outstanding occurs and is continuing, then in all of
those cases the trustee or the holders of not less than 25% in principal amount
of the outstanding debt securities of that series may declare the principal
amount (or, if the debt securities of that series are original issue discount
securities or indexed securities, that portion of the principal amount as may be
specified in the terms thereof) of all of the debt securities of that series to
be due and payable immediately by written notice thereof to us (and to the
trustee if given by the holders of debt securities). However, at any time after
a declaration of acceleration with respect to debt securities of that series (or
of all debt securities then outstanding under the indenture, as the case may be)
has been made, but before a judgment or decree for payment of the money due has
been obtained by the trustee, the holders of not less than a majority in
principal amount of outstanding debt securities of that series (or of all debt
securities then outstanding under the indenture, as the case may be) may rescind
and annul that declaration and its consequences if:
(1) we shall have deposited with the trustee all required payments of the
principal of (and premium, if any) and interest on the debt securities
of that series (or of all debt securities then outstanding under the
indenture, as the case may be), plus certain fees, expenses,
disbursements and advances of the trustee, and
(2) all events of default, other than the non-payment of accelerated
principal (or specified portion thereof), with respect to debt
securities of that series (or of all debt securities then outstanding
under the indenture, as the case may be) have been cured or waived as
provided in the indenture (Section 502). The indenture also provides
that the holders of not less than a majority in principal amount of the
outstanding debt securities of any series (or of all debt securities
then outstanding under the indenture, as the case may be) may waive any
past default with respect to that series and its consequences, except a
default:
(a) in the payment of the principal of (or premium, if any) or
interest on any debt security of that series, or
(b) in respect of a covenant or provision contained in the indenture
that cannot be modified or amended without the consent of the
holder of each outstanding debt security affected thereby (Section
513).
The trustee is required to give notice to the holders of debt securities
within 90 days of a default under the indenture; provided, however, that the
trustee may withhold notice to the holders of any series of debt securities of
any default with respect to that series (except a default in the payment of the
principal of (or premium, if any) or interest on any debt security of that
series or in the payment of any sinking fund installment in respect of any debt
security of that series) if the responsible officers of the trustee consider
that withholding to be in the interest of those holders of debt securities
(Section 601).
The indenture provides that no holders of debt securities of any series may
institute any proceedings, judicial or otherwise, with respect to the indenture
or for any remedy thereunder, except in the case of failure of the trustee, for
60 days, to act after it has received a written request to institute proceedings
in respect of an event of default from the holders of not less than 25% in
principal amount of the outstanding debt securities of that series, as well as
an offer of indemnity reasonably satisfactory to it (Section 507). This
provision will not prevent, however, any holder of debt securities from
instituting suit for the enforcement of payment of the principal of (and
premium, if any) and interest on those debt securities at the respective due
dates thereof (Section 508).
17
Subject to provisions in the indenture relating to its duties in case of
default, the trustee is under no obligation to exercise any of its rights or
powers under the indenture at the request or direction of any holders of any
series of debt securities then outstanding under the indenture, unless those
holders shall have offered to the trustee reasonable security or indemnity
(Section 602). The holders of not less than a majority in principal amount of
the outstanding debt securities of any series (or of all debt securities then
outstanding under the indenture, as the case may be) shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or of exercising any trust or power conferred upon the
trustee. However, the trustee may refuse to follow any direction which is in
conflict with any law or the indenture, which may involve the trustee in
personal liability or which may be unduly prejudicial to the holders of debt
securities of those series not joining therein (Section 512).
Within 120 days after the close of each fiscal year, we must deliver to the
trustee a certificate, signed by one of several specified officers, stating
whether or not that officer has knowledge of any default under the indenture
and, if so, specifying each of those defaults and the nature and status thereof
(Section 1011).
Modification
Modifications and amendments of the indenture and debt securities may be
made only with the consent of the holders of not less than a majority in
principal amount of all outstanding debt securities which are affected by such
modification or amendment; provided, however, that no modification or amendment
may, without the consent of the holder of each of the debt securities affected
thereby,
(1) change the stated maturity of the principal of, or any installment
of interest (or premium, if any) on, any debt security;
(2) reduce the principal amount of, or the rate or amount of interest
on, or any premium payable on redemption of, any debt security, or
reduce the amount of principal of an original issue discount
security that would be due and payable upon declaration of
acceleration of the maturity thereof or would be provable in
bankruptcy, or adversely affect any right of repayment of the holder
of any debt security;
(3) change the place of payment, or the coin or currency, for payment of
principal of (or premium, if any) or interest on any debt security;
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security;
(5) reduce the above-stated percentage of outstanding debt securities of
any series necessary to modify or amend the indenture, to waive
compliance with certain provisions thereof or certain defaults and
consequences thereunder or to reduce the quorum or voting
requirements set forth in the indenture; or
(6) modify any of the foregoing provisions or any of the provisions
relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect that
action or to provide that certain other provisions may not be
modified or waived without the consent of the holder of that debt
security (Section 902).
The holders of not less than a majority in principal amount of outstanding
debt securities have the right to waive compliance by us with some of the
covenants in the indenture (Section 1013).
18
Modifications and amendments of the indenture may be made by us and the
trustee without the consent of any holder of debt securities for any of the
following purposes:
(1) to evidence the succession of another person to us as obligor under
the indenture;
(2) to add to our covenants for the benefit of the holders of all or any
series of debt securities or to surrender any right or power
conferred upon us in the indenture;
(3) to add events of default for the benefit of the holders of all or
any series of debt securities;
(4) to add or change any provisions of the indenture to facilitate the
issuance of, or to liberalize some of the terms of, debt securities
in bearer form, or to permit or facilitate the issuance of debt
securities in uncertificated form, provided that such action shall
not adversely affect the interests of the holders of the debt
securities of any series in any material respect;
(5) to change or eliminate any provisions of the indenture, provided
that any of those changes or elimination shall become effective only
when there are no debt securities outstanding of any series created
prior thereto which are entitled to the benefit of that provision;
(6) to secure the debt securities;
(7) to establish the form or terms of debt securities of any series,
including the provisions and procedures, if applicable, for the
conversion of those debt securities into our common stock or our
preferred stock;
(8) to provide for the acceptance of appointment by a successor trustee
or facilitate the administration of the trusts under the indenture
by more than one trustee;
(9) to cure any ambiguity, defect or inconsistency in the indenture,
provided that such action shall not adversely affect the interests
of the holders of debt securities of any series in any material
respect; or
(10) to supplement any of the provisions of the indenture to the extent
necessary to permit or facilitate defeasance and discharge of any
series of those debt securities, provided that such action shall not
adversely affect the interests of the holders of the debt securities
of any series in any material respect (Section 901).
The indenture provides that in determining whether the holders of the
requisite principal amount of outstanding debt securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of debt
securities,
(1) the principal amount of an original issue discount security that shall
be deemed to be outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of that
determination upon declaration of acceleration of the maturity thereof,
(2) the principal amount of a debt security denominated in a foreign
currency that shall be deemed outstanding shall be the U.S. Dollar
equivalent, determined on the issue date for that debt security, of the
principal amount (or, in the case of an original issue discount
security, the U.S. Dollar equivalent on the issue date of that debt
security of the amount determined as provided in (1) above),
(3) the principal amount of an indexed security that shall be deemed
outstanding shall be the principal face amount of that indexed security
at original issuance, unless otherwise provided with respect to that
indexed security pursuant to Section 301 of the indenture, and
(4) debt securities owned by us or any other obligor upon the debt
securities or any of our affiliates or of that other obligor shall be
disregarded (Section 101).
19
The indenture contains provisions for convening meetings of the holders of
debt securities of a series (Section 1501). A meeting may be called at any time
by the trustee, and also, upon request, by us or the holders of at least 10% in
principal amount of the outstanding debt securities of that series, in any of
those cases upon notice given as provided in the indenture (Section 1502).
Except for any consent that must be given by the holder of each debt security
affected by certain modifications and amendments of the indenture, any
resolution presented at a meeting or adjourned meeting duly reconvened at which
a quorum is present may be adopted by the affirmative vote of the holders of a
majority in principal amount of the outstanding debt securities of that series;
provided, however, that, except as referred to above, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the holders of a
specified percentage, which is less than a majority, in principal amount of the
outstanding debt securities of a series may be adopted at a meeting or adjourned
meeting duly reconvened at which a quorum is present by the affirmative vote of
the holders of that specified percentage in principal amount of the outstanding
debt securities of that series. Any resolution passed or decision taken at any
meeting of holders of debt securities of any series duly held in accordance with
the indenture will be binding on all holders of debt securities of that series.
The quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in principal amount
of the outstanding debt securities of a series; provided, however, that if any
action is to be taken at that meeting with respect to a consent or waiver which
may be given by the holders of not less than a specified percentage in principal
amount of the outstanding debt securities of a series, the persons holding or
representing that specified percentage in principal amount of the outstanding
debt securities of that series will constitute a quorum (Section 1504).
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of holders of debt securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
the indenture expressly provides may be made, given or taken by the holders of a
specified percentage in principal amount of all outstanding debt securities
affected thereby, or of the holders of that series and one or more additional
series:
(1) there shall be no minimum quorum requirement for that meeting, and
(2) the principal amount of the outstanding debt securities of that series
that vote in favor of that request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether that request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given or taken
under the indenture (Section 1504).
Discharge, Defeasance and Covenant Defeasance
We may discharge certain obligations to holders of any series of debt
securities that have not already been delivered to the trustee for cancellation
and that either have become due and payable or will become due and payable
within one year (or scheduled for redemption within one year) by irrevocably
depositing with the trustee, in trust, funds in the currency or currencies,
currency unit or units or composite currency or currencies in which those debt
securities are payable in an amount sufficient to pay the entire indebtedness on
those debt securities in respect of principal (and premium, if any) and interest
to the date of that deposit (if those debt securities have become due and
payable) or to the stated maturity or redemption date, as the case may be
(Section 401).
20
The indenture provides that, if the provisions of article fourteen of the
indenture are made applicable to the debt securities of or within any series
pursuant to Section 301 of the indenture, we may elect either:
(1) to defease and be discharged from any and all obligations with respect
to those debt securities (except for the obligation to pay additional
amounts, if any, upon the occurrence of certain events of tax,
assessment or governmental charge with respect to payments on those
debt securities and the obligations to register the transfer or
exchange of those debt securities, to replace temporary or mutilated,
destroyed, lost or stolen debt securities, to maintain an office or
agency in respect of those debt securities and to hold moneys for
payment in trust) ("defeasance") (Section 1402); or
(2) to be released from its obligations with respect to those debt
securities under Sections 1004 to 1010, inclusive, and Section 1014 of
the indenture (being the restrictions described under "Certain
Covenants") or, if provided pursuant to Section 301 of the indenture,
its obligations with respect to any other covenant, and any omission to
comply with those obligations shall not constitute a default or an
event of default with respect to those debt securities ("covenant
defeasance") (Section 1403),
in either case upon the irrevocable deposit by us with the trustee, in trust, of
an amount, in the currency or currencies, currency unit or units or composite
currency or currencies in which those debt securities are payable at stated
maturity, or Government Obligations (as defined below), or both, applicable to
those debt securities which through the scheduled payment of principal and
interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and interest on those
debt securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor.
That type of trust may only be established if, among other things, we have
delivered to the trustee an opinion of counsel to the effect that the holders of
those debt securities will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of that defeasance or covenant defeasance and
will be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if that defeasance or
covenant defeasance had not occurred, and that opinion of counsel, in the case
of defeasance, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable U.S. federal income tax law occurring after
the date of the indenture (Section 1404).
"Government Obligations" means securities which are:
(1) direct obligations of the United States of America or the government
which issued the foreign currency in which the debt securities of a
particular series are payable, for the payment of which its full faith
and credit is pledged, or
(2) obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or that
government which issued the foreign currency in which the debt
securities of that series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America or that other government,
which, in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to that Government Obligation or a
specific payment of interest on or principal of that Government Obligation held
by the custodian for the account of the holder of a depository receipt, provided
that (except as required by law) the custodian is not authorized to make any
deduction from the amount payable to the holder of the depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by the depository receipt (Section 101).
21
Unless otherwise provided in the applicable prospectus supplement, if after
we have deposited funds or Government Obligations or both to effect defeasance
or covenant defeasance with respect to debt securities of any series,
(1) the holder of a debt security of that series is entitled to, and does,
elect pursuant to Section 301 of the indenture or the terms of that
debt security to receive payment in a currency, currency unit or
composite currency other than that in which the deposit has been made
in respect of that debt security, or
(2) a Conversion Event (as defined below) occurs in respect of the
currency, currency unit or composite currency in which the deposit has
been made,
then, the indebtedness represented by that debt security shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest on that debt security as they
become due out of the proceeds yielded by converting the amount so deposited in
respect of that debt security into the currency, currency unit or composite
currency in which that debt security becomes payable as a result of that
election or cessation of usage based on the applicable market exchange rate
(Section 1405). "Conversion Event" means the cessation of use of:
(1) a currency, currency unit or composite currency both by the government
of the country which issued that currency and for the settlement of
transactions by a central bank or other public institutions of or
within the international banking community,
(2) the European Currency Unit, or ECU, both within the European Monetary
System and for the settlement of transactions by public institutions of
or within the European Communities, or
(3) any currency unit or composite currency other than the ECU for the
purposes for which it was established.
Unless otherwise provided in the applicable prospectus supplement, all
payments of principal of (and premium, if any) and interest on any debt security
that is payable in a foreign currency that ceases to be used by its government
of issuance shall be made in U.S. Dollars (Section 101).
In the event we effect covenant defeasance with respect to any debt
securities and those debt securities are declared due and payable because of the
occurrence of any event of default other than the event of default described in
clause (4) under "Events of Default, Notice and Waiver" with respect to Sections
1004 to 1010, inclusive, and Section 1014 of the indenture (which Sections would
no longer be applicable to those debt securities) or described in clause (7)
under "Events of Default, Notice and Waiver" with respect to any other covenant
as to which there has been covenant defeasance, the amount in such currency,
currency unit or composite currency in which those debt securities are payable,
and Government Obligations on deposit with the trustee, will be sufficient to
pay amounts due on those debt securities at the time of their stated maturity
but may not be sufficient to pay amounts due on those debt securities at the
time of the acceleration resulting from that event of default. However, we would
remain liable to make payment of those amounts due at the time of acceleration.
The applicable prospectus supplement may further describe the provisions,
if any, permitting that defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the debt
securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which the debt securities are
convertible into other debt securities, our common stock or our preferred stock
will be set forth in the applicable prospectus supplement relating thereto.
Those terms will include whether those debt securities are convertible into
other debt securities, our common stock or our preferred stock, the conversion
price (or manner of calculation thereof), the conversion period, provisions as
to whether conversion will be at our option or the option of the holders of debt
securities, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of those debt
securities.
22
Global Securities
The debt securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, a depositary identified in the applicable prospectus supplement relating to
that series. Global securities may be issued in either registered or bearer form
and in either temporary or permanent form. The specific terms of the depositary
arrangement with respect to a series of debt securities will be described in the
applicable prospectus supplement relating to that series.
23
DESCRIPTION OF COMMON STOCK
We have the authority to issue 200,000,000 shares of common stock, par
value $.01 per share, and 102,000,000 shares of excess stock, par value $.01 per
share. At June 9, 2003, we had outstanding 105,141,310 shares of common stock
and no shares of excess stock. Prior to August 4, 1994, we were incorporated as
a Delaware corporation. On August 4, 1994, we reincorporated as a Maryland
corporation pursuant to an Agreement and Plan of Merger approved by our
stockholders.
The following description of our common stock sets forth certain general
terms and provisions of the common stock to which any prospectus supplement may
relate, including a prospectus supplement providing that common stock will be
issuable upon conversion of our debt securities or our preferred stock or upon
the exercise of common stock warrants issued by us. The statements below
describing the common stock are in all respects subject to and qualified in
their entirety by reference to the applicable provisions of our charter and
bylaws.
Holders of our common stock will be entitled to receive dividends when, as
and if authorized by our board of directors and declared by us, out of assets
legally available therefor. Payment and declaration of dividends on the common
stock and purchases of shares thereof by us will be subject to certain
restrictions if we fail to pay dividends on our preferred stock. Upon our
liquidation, dissolution or winding up, holders of common stock will be entitled
to share equally and ratably in any assets available for distribution to them,
after payment or provision for payment of our debts and other liabilities and
the preferential amounts owing with respect to any of our outstanding preferred
stock. The common stock will possess ordinary voting rights for the election of
directors and in respect of other corporate matters, with each share entitling
the holder thereof to one vote. Holders of common stock will not have cumulative
voting rights in the election of directors, which means that holders of more
than 50% of all of the shares of our common stock voting for the election of
directors will be able to elect all of the directors if they choose to do so
and, accordingly, the holders of the remaining shares will be unable to elect
any directors. Holders of shares of common stock will not have preemptive
rights, which means they have no right to acquire any additional shares of
common stock that may be issued by us at a subsequent date. The common stock
will, when issued, be fully paid and nonassessable and will not be subject to
preemptive or similar rights.
Under Maryland law and our charter, a distribution (whether by dividend,
redemption or other acquisition of shares) to holders of shares of common stock
may be made only if, after giving effect to the distribution, we are able to pay
our indebtedness as it becomes due in the usual course of business and our total
assets are greater than our total liabilities plus the amount necessary to
satisfy the preferential rights upon dissolution of stockholders whose
preferential rights on dissolution are superior to the holders of common stock
and we can pay our debts as they become due. We have complied with these
requirements in all of our prior distributions to holders of common stock.
Restrictions on Ownership
For us to qualify as a REIT under the Code, not more than 50% in value of
our outstanding stock may be owned, actually or constructively, by five or fewer
individuals (as defined in the Code to include certain entities) during the last
half of a taxable year. Our stock also must be beneficially owned by 100 or more
persons during at least 335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year. In addition, rent from related
party tenants (generally, a tenant of a REIT owned, actually or constructively,
10% or more by the REIT, or a 10% owner of the REIT) is not qualifying income
for purposes of the income tests under the Code.
Subject to the exceptions specified in our charter, no holder may own, or
be deemed to own by virtue of the constructive ownership provisions of the Code,
more than 2% in value of the outstanding shares of our common stock. The
constructive ownership rules are complex and may cause common stock owned
actually or constructively by a group of related individuals or entities or both
to be deemed constructively owned by one individual or entity. As a result, the
acquisition of less than 2% in value of the common stock (or the acquisition of
an interest in an entity which owns common stock) by an individual or entity
could cause that individual or entity (or another individual or entity) to own
constructively in excess of 2% in value of the common stock, and thus subject
such common stock to the ownership limit.
24
Existing stockholders who exceeded the ownership limit immediately after
the completion of our initial public offering of our common stock in November
1991 may continue to do so and may acquire additional shares through the stock
option plan, or from other existing stockholders who exceed the ownership limit,
but may not acquire additional shares from such sources such that the five
largest beneficial owners of common stock could own, actually or constructively,
more than 49.6% of the outstanding common stock, and in any event may not
acquire additional shares from any other sources. In addition, because rent from
related party tenants is not qualifying rent for purposes of the gross income
tests under the Code, our charter provides that no individual or entity may own,
or be deemed to own by virtue of the attribution provisions of the Code (which
differ from the attribution provisions applied to the ownership limit), in
excess of 9.8% in value of our outstanding common stock. We refer to this
ownership limitation as the related party limit. Our board of directors may
waive the ownership limit and the related party limit with respect to a
particular stockholder (such related party limit has been waived with respect to
the existing stockholders who exceeded the related party limit immediately after
the initial public offering of our common stock) if evidence satisfactory to our
board of directors and our tax counsel is presented that such ownership will not
then or in the future jeopardize our status as a REIT. As a condition of that
waiver, our board of directors may require opinions of counsel satisfactory to
it or an undertaking or both from the applicant with respect to preserving our
REIT status. The foregoing restrictions on transferability and ownership will
not apply if our board of directors determines that it is no longer in our best
interests to attempt to qualify, or to continue to qualify, as a REIT. If shares
of common stock in excess of the ownership limit or the related party limit, or
shares which would otherwise cause the REIT to be beneficially owned by less
than 100 persons or which would otherwise cause us to be "closely held" within
the meaning of the Code or would otherwise result in our failure to qualify as a
REIT, are issued or transferred to any person, that issuance or transfer shall
be null and void to the intended transferee, and the intended transferee would
acquire no rights to the stock. Shares transferred in excess of the ownership
limit or the related party limit, or shares which would otherwise cause us to be
"closely held" within the meaning of the Code or would otherwise result in our
failure to qualify as a REIT, will automatically be exchanged for shares of a
separate class of stock, which we refer to as excess stock, that will be
transferred by operation of law to us as trustee for the exclusive benefit of
the person or persons to whom the shares are ultimately transferred, until that
time as the intended transferee retransfers the shares. While these shares are
held in trust, they will not be entitled to vote or to share in any dividends or
other distributions (except upon liquidation). The shares may be retransferred
by the intended transferee to any person who may hold those shares at a price
not to exceed either:
(1) the price paid by the intended transferee, or
(2) if the intended transferee did not give value for such shares, a price
per share equal to the market value of the shares on the date of the
purported transfer to the intended transferee,
at which point the shares will automatically be exchanged for ordinary common
stock. In addition, such shares of excess stock held in trust are purchasable by
us for a 90-day period at a price equal to the lesser of the price paid for the
stock by the intended transferee and the market price for the stock on the date
we determine to purchase the stock. This period commences on the date of the
violative transfer if the intended transferee gives us notice of the transfer,
or the date our board of directors determines that a violative transfer has
occurred if no notice is provided.
All certificates representing shares of common stock will bear a legend
referring to the restrictions described above.
All persons who own, directly or by virtue of the attribution provisions of
the Code, more than a specified percentage of the outstanding shares of common
stock must file an affidavit with us containing the information specified in our
charter within 30 days after January 1 of each year. In addition, each common
stockholder shall upon demand be required to disclose to us in writing such
information with respect to the actual and constructive ownership of shares as
our board of directors deems necessary to comply with the provisions of the Code
applicable to a REIT or to comply with the requirements of any taxing authority
or governmental agency.
The registrar and transfer agent for our common stock is The Bank of New
York.
25
DESCRIPTION OF COMMON STOCK WARRANTS
We may issue common stock warrants for the purchase of our common stock.
Common stock warrants may be issued independently or together with any of the
other securities offered by this prospectus that are offered by any prospectus
supplement and may be attached to or separate from the securities offered by
this prospectus. Each series of common stock warrants will be issued under a
separate warrant agreement to be entered into between us and a warrant agent
specified in the applicable prospectus supplement. The warrant agent will act
solely as our agent in connection with the common stock warrants of such series
and will not assume any obligation or relationship of agency or trust for or
with any holders or beneficial owners of common stock warrants.
The applicable prospectus supplement will describe the terms of the common
stock warrants in respect of which this prospectus is being delivered,
including, where applicable, the following:
(1) the title of those common stock warrants;
(2) the aggregate number of those common stock warrants;
(3) the price or prices at which those common stock warrants will be
issued;
(4) the designation, number and terms of the shares of common stock
purchasable upon exercise of those common stock warrants;
(5) the designation and terms of the other securities offered by this
prospectus with which the common stock warrants are issued and the
number of those common stock warrants issued with each security
offered by this prospectus;
(6) the date, if any, on and after which those common stock warrants and
the related common stock will be separately transferable;
(7) the price at which each share of common stock purchasable upon
exercise of those common stock warrants may be purchased;
(8) the date on which the right to exercise those common stock warrants
shall commence and the date on which that right shall expire;
(9) the minimum or maximum amount of those common stock warrants which
may be exercised at any one time;
(10) information with respect to book-entry procedures, if any;
(11) a discussion of federal income tax considerations; and
(12) any other material terms of those common stock warrants, including
terms, procedures and limitations relating to the exchange and
exercise of those common stock warrants.
26
DESCRIPTION OF PREFERRED STOCK
We are authorized to issue 3,600,000 shares of preferred stock, par value
$1.00 per share, 345,000 shares of 7 3/4% Class A Cumulative Redeemable
Preferred Stock, $1.00 par value per share, 230,000 shares of 8 1/2% Class B
Cumulative Redeemable Preferred Stock, $1.00 par value per share, 460,000 shares
of 8 3/8% Class C Cumulative Redeemable Preferred Stock, $1.00 par value per
share, 700,000 shares of 7 1/2% Class D Cumulative Convertible Preferred Stock,
$1.00 par value per share, 65,000 shares of Class E Floating Rate Cumulative
Redeemable Preferred Stock, $1.00 par value per share, and 700,000 shares of
6.65% Class F Cumulative Redeemable Preferred Stock, $1.00 par value per share.
We are also authorized to issue 345,000 shares of Class A Excess Preferred
Stock, $1.00 par value per share, 230,000 shares of Class B Excess Preferred
Stock, $1.00 par value per share, 460,000 shares of Class C Excess Preferred
Stock, $1.00 par value per share, 700,000 shares of Class D Excess Preferred
Stock, $1.00 par value per share, 65,000 shares of Class E Excess Preferred
Stock, $1.00 par value per share, and 700,000 shares of Class F Excess Preferred
Stock, $1.00 par value per share, which are reserved for issuance upon
conversion of certain outstanding Class A preferred stock, Class B preferred
stock, Class C preferred stock, Class D preferred stock, Class E preferred stock
or Class F preferred stock, as the case may be, as necessary to preserve our
status as a REIT. At June 9, 2003, 700,000 shares of Class F preferred stock,
represented by 7,000,000 depositary shares, were outstanding.
Under our charter, our board of directors may from time to time establish
and issue one or more classes or series of preferred stock and fix the
designations, powers, preferences and rights of the shares of such classes or
series and the qualifications, limitations or restrictions thereon, including,
but not limited to, the fixing of the dividend rights, dividend rate or rates,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions) and the liquidation preferences.
The following description of our preferred stock sets forth certain general
terms and provisions of our preferred stock to which any prospectus supplement
may relate. The statements below describing the preferred stock are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of our charter (including the applicable articles
supplementary) and bylaws.
General
Subject to limitations prescribed by Maryland law and our charter, our
board of directors is authorized to fix the number of shares constituting each
class or series of preferred stock and the designations and powers, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including those provisions
as may be desired concerning voting, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and those other subjects or
matters as may be fixed by resolution of our board of directors or duly
authorized committee thereof. The preferred stock will, when issued, be fully
paid and nonassessable and will not have, or be subject to, any preemptive or
similar rights.
You should refer to the prospectus supplement relating to the class or
series of preferred stock offered thereby for specific terms, including:
(1) The class or series, title and stated value of that preferred stock;
(2) The number of shares of that preferred stock offered, the
liquidation preference per share and the offering price of that
preferred stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to that preferred stock;
(4) Whether dividends on that preferred stock shall be cumulative or not
and, if cumulative, the date from which dividends on that preferred
stock shall accumulate;
(5) The procedures for any auction and remarketing, if any, for that
preferred stock;
(6) Provisions for a sinking fund, if any, for that preferred stock;
(7) Provisions for redemption, if applicable, of that preferred stock;
(8) Any listing of that preferred stock on any securities exchange;
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(9) The terms and conditions, if applicable, upon which that preferred
stock will be convertible into our common stock, including the
conversion price (or manner of calculation thereof);
(10) Whether interests in that preferred stock will be represented by our
depositary shares;
(11) The relative ranking and preference of the preferred stock as to
distribution rights and rights upon our liquidation, dissolution or
winding up if other than as described in this prospectus;
(12) Any limitations on issuance of any other series of preferred stock
ranking senior to or on a parity with the preferred stock as to
distribution rights and rights upon our liquidation, dissolution or
winding up;
(13) A discussion of certain federal income tax considerations applicable
to that preferred stock;
(14) Any limitations on actual, beneficial or constructive ownership and
restrictions on transfer of that preferred stock and, if
convertible, the related common stock, in each case as may be
appropriate to preserve our status as a REIT; and
(15) Any other material terms, preferences, rights, limitations or
restrictions of that preferred stock.
Rank
Unless otherwise specified in the applicable prospectus supplement, the
preferred stock will, with respect to rights to the payment of dividends and
distribution of our assets and rights upon our liquidation, dissolution or
winding up, rank:
(1) senior to all classes or series of our common stock and excess stock
and to all of our equity securities the terms of which provide that
those equity securities are junior to the preferred stock;
(2) on a parity with all of our equity securities other than those referred
to in clauses (1) and (3); and
(3) junior to all of our equity securities the terms of which provide that
those equity securities will rank senior to it.
For these purposes, the term "equity securities" does not include
convertible debt securities.
Dividends
Holders of shares of our preferred stock of each class or series shall be
entitled to receive, when, as and if authorized by our board of directors and
declared by us, out of our assets legally available for payment, cash dividends
at rates and on dates as will be set forth in the applicable prospectus
supplement. Each dividend shall be payable to holders of record as they appear
on our stock transfer books on the record dates as shall be fixed by our board
of directors.
Dividends on any class or series of our preferred stock may be cumulative
or non-cumulative, as provided in the applicable prospectus supplement.
Dividends, if cumulative, will accumulate from and after the date set forth in
the applicable prospectus supplement. If our board of directors fails to
authorize a dividend payable on a dividend payment date on any class or series
of our preferred stock for which dividends are noncumulative, then the holders
of that class or series of our preferred stock will have no right to receive a
dividend in respect of the dividend period ending on that dividend payment date,
and we will have no obligation to pay the dividend accrued for that period,
whether or not dividends on that class or series are declared payable on any
future dividend payment date.
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If any shares of our preferred stock of any class or series are
outstanding, no full dividends shall be authorized or paid or set apart for
payment on our preferred stock of any other class or series ranking, as to
dividends, on a parity with or junior to the preferred stock of that class or
series for any period unless:
(1) if that class or series of preferred stock has a cumulative dividend,
full cumulative dividends have been or contemporaneously are authorized
and paid or authorized and a sum sufficient for the payment thereof set
part for that payment on the preferred stock of that class or series
for all past dividend periods and the then current dividend period, or
(2) if that class or series of preferred stock does not have a cumulative
dividend, full dividends for the then current dividend period have been
or contemporaneously are authorized and paid or authorized and a sum
sufficient for the payment thereof set apart for that payment on the
preferred stock of that class or series.
When dividends are not paid in full (or a sum sufficient for their full
payment is not so set apart) upon the shares of preferred stock of any class or
series and the shares of any other class or series of preferred stock ranking on
a parity as to dividends with the preferred stock of that class or series, all
dividends declared upon shares of preferred stock of that class or series and
any other class or series of preferred stock ranking on a parity as to dividends
with that preferred stock shall be authorized pro rata so that the amount of
dividends authorized per share on the preferred stock of that class or series
and that other class or series of preferred stock shall in all cases bear to
each other the same ratio that accrued and unpaid dividends per share on the
shares of preferred stock of that class or series (which shall not include any
accumulation in respect of unpaid dividends for prior dividend periods if that
preferred stock does not have a cumulative dividend) and that other class or
series of preferred stock bear to each other. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend payment or
payments on preferred stock of that series that may be in arrears.
Except as provided in the immediately preceding paragraph, unless: (1) if
that class or series of preferred stock has a cumulative dividend, full
cumulative dividends on the preferred stock of that class or series have been or
contemporaneously are authorized and paid or authorized and a sum sufficient for
the payment thereof set apart for payment for all past dividend periods and the
then current dividend period; and (2) if that class or series of preferred stock
does not have a cumulative dividend, full dividends on the preferred stock of
that class or series have been or contemporaneously are authorized and paid or
authorized and a sum sufficient for the payment thereof set aside for payment
for the then current dividend period, then no dividends (other than in our
common stock or other stock ranking junior to the preferred stock of that class
or series as to dividends and upon our liquidation, dissolution or winding up)
shall be authorized or paid or set aside for payment or other distribution shall
be authorized or made upon our common stock, excess stock or any of our other
stock ranking junior to or on a parity with the preferred stock of that class or
series as to dividends or upon liquidation, nor shall any common stock, excess
stock or any of our other stock ranking junior to or on a parity with the
preferred stock of such class or series as to dividends or upon our liquidation,
dissolution or winding up be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of that stock) by us (except by conversion into or
exchange for other of our stock ranking junior to the preferred stock of that
class or series as to dividends and upon our liquidation, dissolution or winding
up).
Any dividend payment made on shares of a class or series of preferred stock
shall first be credited against the earliest accrued but unpaid dividend due
with respect to shares of that class or series which remains payable.
Redemption
If the applicable prospectus supplement so states, the shares of preferred
stock will be subject to mandatory redemption or redemption at our option, in
whole or in part, in each case on the terms, at the times and at the redemption
prices set forth in that prospectus supplement.
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The prospectus supplement relating to a class or series of preferred stock
that is subject to mandatory redemption will specify the number of shares of
that preferred stock that shall be redeemed by us in each year commencing after
a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon (which
shall not, if that preferred stock does not have a cumulative dividend, include
any accumulation in respect of unpaid dividends for prior dividend periods) to
the date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable prospectus supplement. If the
redemption price for preferred stock of any series is payable only from the net
proceeds of the issuance of our stock, the terms of that preferred stock may
provide that, if no such stock shall have been issued or to the extent the net
proceeds from any issuance are insufficient to pay in full the aggregate
redemption price then due, that preferred stock shall automatically and
mandatorily be converted into shares of our applicable stock pursuant to
conversion provisions specified in the applicable prospectus supplement.
Notwithstanding the foregoing, unless:
(1) if that class or series of preferred stock has a cumulative dividend,
full cumulative dividends on all shares of any class or series of
preferred stock shall have been or contemporaneously are authorized and
paid or authorized and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods and the then current
dividend period; and
(2) if that class or series of preferred stock does not have a cumulative
dividend, full dividends on the preferred stock of any class or series
have been or contemporaneously are authorized and paid or authorized
and a sum sufficient for the payment thereof set apart for payment for
the then current dividend period.
No shares of any class or series of preferred stock shall be redeemed
unless all outstanding shares of preferred stock of that class or series are
simultaneously redeemed; provided, however, that the foregoing shall not prevent
the purchase or acquisition of shares of preferred stock of that class or series
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding shares of preferred stock of that class or series.
In addition, unless:
(1) if that class or series of preferred stock has a cumulative dividend,
full cumulative dividends on all outstanding shares of any class or
series of preferred stock have been or contemporaneously are authorized
and paid or authorized and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods and the then current
dividend period; and
(2) if that class or series of preferred stock does not have a cumulative
dividend, full dividends on the preferred stock of any class or series
have been or contemporaneously are authorized and paid or authorized
and a sum sufficient for the payment thereof set apart for payment for
the then current dividend period, we shall not purchase or otherwise
acquire directly or indirectly any shares of preferred stock of that
class or series (except by conversion into or exchange for our stock
ranking junior to the preferred stock of that class or series as to
dividends and upon our liquidation, dissolution or winding up).
If fewer than all of the outstanding shares of preferred stock of any class
or series are to be redeemed, the number of shares to be redeemed will be
determined by us and those shares may be redeemed pro rata from the holders of
record of those shares in proportion to the number of those shares held by those
holders (with adjustments to avoid redemption of fractional shares) or any other
equitable method determined by us that will not result in the issuance of any
excess preferred stock.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of a share of preferred
stock of any class or series to be redeemed at the address shown on our stock
transfer books. Each notice shall state:
(1) the redemption date;
(2) the number of shares and class or series of the preferred stock to
be redeemed;
(3) the redemption price;
(4) the place or places where certificates for that preferred stock are
to be surrendered for payment of the redemption price;
(5) that dividends on the shares to be redeemed will cease to accrue on
that redemption date; and
(6) the date upon which the holder's conversion rights, if any, as to
those shares shall terminate.
If fewer than all the shares of preferred stock of any class or series are
to be redeemed, the notice mailed to each holder thereof shall also specify the
number of shares of preferred stock to be redeemed from each holder. If notice
of redemption of any shares of preferred stock has been given and if the funds
necessary for that redemption have been set apart by us in trust for the benefit
of the holders of any shares of preferred stock so called for redemption, then
from and after the redemption date dividends will cease to accrue on those
shares of preferred stock, those shares of preferred stock shall no longer be
deemed outstanding and all rights of the holders of those shares will terminate,
except the right to receive the redemption price.
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Liquidation Preference
Upon our voluntary or involuntary liquidation, dissolution or winding up,
then, before any distribution or payment shall be made to the holders of any
common stock, excess stock or any other class or series of our stock ranking
junior to that class or series of preferred stock in the distribution of assets
upon our liquidation, dissolution or winding up, the holders of each class or
series of preferred stock shall be entitled to receive out of our assets legally
available for distribution to stockholders liquidating distributions in the
amount of the liquidation preference per share (set forth in the applicable
prospectus supplement), plus an amount equal to all dividends accrued and unpaid
thereon (which shall not include any accumulation in respect of unpaid dividends
for prior dividend periods if that class or series of preferred stock does not
have a cumulative dividend). After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of that class or series of
preferred stock will have no right or claim to any of our remaining assets. If,
upon our voluntary or involuntary liquidation, dissolution or winding up, our
legally available assets are insufficient to pay the amount of the liquidating
distributions on all outstanding shares of that class or series of preferred
stock and the corresponding amounts payable on all shares of other classes or
series of our stock ranking on a parity with that class or series of preferred
stock in the distribution of assets upon our liquidation, dissolution or winding
up, then the holders of that class or series of preferred stock and all other
classes or series of stock shall share ratably in that distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
If liquidating distributions shall have been made in full to all holders of
shares of that class or series of preferred stock, our remaining assets shall be
distributed among the holders of any other classes or series of stock ranking
junior to that class or series of preferred stock upon our liquidation,
dissolution or winding up, according to their respective rights and preferences
and in each case according to their respective number of shares. For those
purposes, neither our consolidation or merger with or into any other
corporation, trust or other entity nor the sale, lease, transfer or conveyance
of all or substantially all of our property or business shall be deemed to
constitute our liquidation, dissolution or winding up.
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Voting Rights
Except as set forth below or as otherwise from time to time required by law
or as indicated in the applicable prospectus supplement, holders of preferred
stock will not have any voting rights.
Whenever dividends on any shares of that class or series of preferred stock
shall be in arrears for six or more quarterly periods, regardless of whether
those quarterly periods are consecutive, the holders of those shares of that
class or series of preferred stock (voting separately as a class with all other
classes or series of preferred stock upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the election of two
additional directors to our board of directors (and our entire board of
directors will be increased by two directors) at a special meeting called by one
of our officers at the request of a holder of that class or series of preferred
stock or, if that special meeting is not called by that officer within 30 days,
at a special meeting called by a holder of that class or series of preferred
stock designated by the holders of record of at least 10% of the shares of any
of those classes or series of preferred stock (unless that request is received
less than 90 days before the date fixed for the next annual or special meeting
of the stockholders), or at the next annual meeting of stockholders, and at each
subsequent annual meeting until:
(1) if that class or series of preferred stock has a cumulative dividend,
then all dividends accumulated on those shares of preferred stock for
the past dividend periods and the then current dividend period shall
have been fully paid or declared and a sum sufficient for the payment
thereof set apart for payment, or
(2) if that class or series of preferred stock does not have a cumulative
dividend, then four consecutive quarterly dividends shall have been
fully paid or declared and a sum sufficient for the payment thereof set
apart for payment.
Unless provided otherwise for any series of preferred stock, so long as any
shares of preferred stock remain outstanding, we shall not, without the
affirmative vote or consent of the holders of at least two-thirds of the shares
of each class or series of preferred stock outstanding at the time, given in
person or by proxy, either in writing or at a meeting (that class or series
voting separately as a class),
(1) authorize or create, or increase the authorized or issued amount of,
any class or series of stock ranking senior to that class or series of
preferred stock with respect to payment of dividends or the
distribution of assets upon our liquidation, dissolution or winding up
or reclassify any of our authorized stock into those shares, or create,
authorize or issue any obligation or security convertible into or
evidencing the right to purchase those shares; or
(2) amend, alter or repeal the provisions of the charter in respect of that
class or series of preferred stock, whether by merger, consolidation or
otherwise, so as to materially and adversely affect any right,
preference, privilege or voting power of that class or series of
preferred stock; provided, however, that any increase in the amount of
the authorized preferred stock or the creation or issuance of any other
class or series of preferred stock, or any increase in the number of
authorized shares of that class or series, in each case ranking on a
parity with or junior to the preferred stock of that class or series
with respect to payment of dividends and the distribution of assets
upon liquidation, dissolution or winding up, shall not be deemed to
materially and adversely affect those rights, preferences, privileges
or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which that vote would otherwise be required shall
be effected, all outstanding shares of that class or series of preferred stock
shall have been redeemed or called for redemption upon proper notice and
sufficient funds shall have been irrevocably deposited in trust to effect that
redemption.
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Conversion Rights
The terms and conditions, if any, upon which shares of any class or series
of preferred stock are convertible into common stock, debt securities or another
series of preferred stock will be set forth in the applicable prospectus
supplement relating thereto. Such terms will include the number of shares of
common stock or those other series of preferred stock or the principal amount of
debt securities into which the preferred stock is convertible, the conversion
price (or manner of calculation thereof), the conversion period, provisions as
to whether conversion will be at our option or at the option of the holders of
that class or series of preferred stock, the events requiring an adjustment of
the conversion price and provisions affecting conversion in the event of the
redemption of that class or series of preferred stock.
Restrictions on Ownership
As discussed above under "Description of Common Stock--Restrictions on
Ownership," for us to qualify as a REIT under the Code, not more than 50% in
value of our outstanding stock may be owned, actually or constructively, by five
or fewer individuals (as defined in the Code to include certain entities) during
the last half of a taxable year. Our stock also must be beneficially owned by
100 or more persons during at least 335 days of a taxable year of 12 months (or
during a proportionate part of a shorter taxable year). In addition, rent from
related party tenants (generally, a tenant of a REIT owned, actually or
constructively 10% or more by the REIT, or a 10% owner of the REIT) is not
qualifying income for purposes of the gross income tests under the Code.
Therefore, the applicable articles supplementary for each class or series of
preferred stock will contain certain provisions restricting the ownership and
transfer of that class or series of preferred stock. Except as otherwise
described in the applicable prospectus supplement relating thereto, the
provisions of each applicable articles supplementary relating to the ownership
limit for any class or series of preferred stock will provide as follows:
Our preferred stock ownership limit provision will provide that, subject to
some exceptions, no holder of that class or series of preferred stock may own,
or be deemed to own by virtue of the constructive ownership provisions of the
Code, preferred stock in excess of the preferred stock ownership limit, which
will be equal to 9.8% of the outstanding preferred stock of any class or series.
The constructive ownership rules are complex and may cause preferred stock owned
actually or constructively by a group of related individuals and/or entities to
be deemed to be constructively owned by one individual or entity. As a result,
the acquisition of less than 9.8% of any class or series of preferred stock (or
the acquisition of an interest in an entity which owns preferred stock) by an
individual or entity could cause that individual or entity (or another
individual or entity) to own constructively in excess of 9.8% of that class or
series of preferred stock, and thus subject that preferred stock to the
preferred stock ownership limit.
Our board of directors will be entitled to waive the preferred stock
ownership limit with respect to a particular stockholder if evidence
satisfactory to our board of directors, with advice of our tax counsel, is
presented that the ownership will not then or in the future jeopardize our
status as a REIT. As a condition of that waiver, our board of directors may
require opinions of counsel satisfactory to it or an undertaking or both from
the applicant with respect to preserving our REIT status.
Such articles supplementary will provide that a transfer of shares of the
class or series of preferred stock that results in a person actually or
constructively owning shares of preferred stock in excess of the preferred stock
ownership limit, or which would cause us to be "closely held" within the meaning
of the Code or would otherwise result in our failure to qualify as a REIT, will
be null and void as to the intended transferee, and the intended transferee will
acquire no rights or economic interest in those shares. In addition, shares
actually or constructively owned by a person in excess of the preferred stock
ownership limit, or which would otherwise cause us to be "closely held" within
the meaning of the Code or would otherwise result in our failure to qualify as a
REIT, will be automatically exchanged for excess preferred stock, a separate
class of preferred stock that will be transferred, by operation of law to us as
trustee of a trust for the exclusive benefit of the transferee or transferees to
whom the shares are ultimately transferred (without violating the preferred
stock ownership limit). While held in trust, a class of excess preferred stock
will not be entitled to vote, it will not be considered for purposes of any
stockholder vote or the determination of a quorum for that vote, and it will not
be entitled to participate in any distributions made by us (except upon
liquidation). The intended transferee or owner may, at any time a class of
excess preferred stock is held by us in trust, transfer the class of excess
preferred stock to any person whose ownership of that class or series of excess
preferred stock would be permitted under the preferred stock ownership limit, at
a price not to exceed either:
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(1) the price paid by the intended transferee or owner in the purported
transfer which resulted in the issuance of that class of excess
preferred stock; or
(2) if the intended transferee did not give full value for that class of
excess preferred stock, a price equal to the market price on the date
of the purported transfer or the other event that resulted in the
issuance of that class of excess preferred stock, at which time that
class of excess preferred stock would automatically be exchanged for
the corresponding class or series of preferred stock.
In addition, we have the right, for a period of 90 days during the time
a class of excess preferred stock is held by us in trust, to purchase all or any
portion of that class of excess preferred stock from the intended transferee or
owner at a price equal to the lesser of:
(1) the price paid for the stock by the intended transferee or owner (or,
if the intended transferee did not give full value for that class of
excess preferred stock, a price equal to the market price on the date
of the purported transfer or other event that resulted in the issuance
of that class of excess preferred stock), and
(2) the closing market price for the corresponding class of preferred stock
on the date we exercise our option to purchase the stock.
This period commences on the date of the violative transfer of ownership if
the intended transferee or owner gives notice of the transfer to us, or the date
our board of directors determines that a violative transfer or ownership has
occurred if no notice is provided.
All certificates representing shares of a class or series of preferred
stock will bear a legend referring to the restrictions described above.
The preferred stock ownership limit provision is set as a percentage of the
number of outstanding shares of any class or series of preferred stock. As a
result, if the number of shares of any class or series of preferred stock is
reduced on a non-pro rata basis among all holders of that class or series,
excess preferred stock may be created as a result of that reduction. In the
event that our action causes that reduction of shares, we have agreed to
exercise our option to repurchase those shares of that class or series of excess
preferred stock if the intended owner notifies us that it is unable to sell its
rights to that class or series of excess preferred stock.
All persons who own a specified percentage (or more) of our outstanding
stock must file an affidavit with us containing information regarding their
ownership of stock as set forth in the Treasury Regulations. Under current
Treasury Regulations, the percentage is set between one-half of one percent and
five percent, depending on the number of record holders of our stock. In
addition, each stockholder shall upon demand be required to disclose to us in
writing that information with respect to the actual and constructive ownership
of shares of our stock as our board of directors deems necessary to comply with
the provisions of the Code applicable to a REIT or to comply with the
requirements of any taxing authority or governmental agency.
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DESCRIPTION OF DEPOSITARY SHARES
General
We may issue depositary shares, each of which will represent a fractional
interest of a share of a particular class or series of our preferred stock, as
specified in the applicable prospectus supplement. Shares of a class or series
of preferred stock represented by depositary shares will be deposited under a
separate deposit agreement among us, the depositary named therein and the
holders from time to time of the depositary receipts issued by the preferred
stock depositary which will evidence the depositary shares. Subject to the terms
of the deposit agreement, each owner of a depositary receipt will be entitled,
in proportion to the fractional interest of a share of a particular class or
series of preferred stock represented by the depositary shares evidenced by that
depositary receipt, to all the rights and preferences of the class or series of
preferred stock represented by those depositary shares (including dividend,
voting, conversion, redemption and liquidation rights).
The depositary shares will be evidenced by depositary receipts issued
pursuant to the applicable deposit agreement. Immediately following the issuance
and delivery of a class or series of preferred stock by us to the preferred
stock depositary, we will cause the preferred stock depositary to issue, on our
behalf, the depositary receipts. Copies of the applicable form of deposit
agreement and depositary receipt may be obtained from us upon request, and the
statements made hereunder relating to the deposit agreement and the depositary
receipts to be issued thereunder are summaries of certain provisions thereof and
do not purport to be complete and are subject to, and qualified in their
entirety by reference to, all of the provisions of the applicable deposit
agreement and related depositary receipts.
Dividends and Other Distributions
The preferred stock depositary will distribute all cash dividends or other
cash distributions received in respect of a class or series of preferred stock
to the record holders of depositary receipts evidencing the related depositary
shares in proportion to the number of those depositary receipts owned by those
holders, subject to certain obligations of holders to file proofs, certificates
and other information and to pay certain charges and expenses to the preferred
stock depositary.
In the event of a distribution other than in cash, the preferred stock
depositary will distribute property received by it to the record holders of
depositary receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the preferred stock depositary, unless the preferred stock
depositary determines that it is not feasible to make that distribution, in
which case the preferred stock depositary may, with our approval, sell that
property and distribute the net proceeds from that sale to those holders.
No distribution will be made in respect of any depositary share to the
extent that it represents any class or series of preferred stock converted into
excess preferred stock or otherwise converted or exchanged.
Withdrawal of preferred stock
Upon surrender of the depositary receipts at the corporate trust office of
the preferred stock depositary (unless the related depositary shares have
previously been called for redemption or converted into excess preferred stock
or otherwise), the holders thereof will be entitled to delivery at that office,
to or upon that holder's order, of the number of whole or fractional shares of
the class or series of preferred stock and any money or other property
represented by the depositary shares evidenced by those depositary receipts.
Holders of depositary receipts will be entitled to receive whole or fractional
shares of the related class or series of preferred stock on the basis of the
proportion of preferred stock represented by each depositary share as specified
in the applicable prospectus supplement, but holders of those shares of
preferred stock will not thereafter be entitled to receive depositary shares
therefor. If the depositary receipts delivered by the holder evidence a number
of depositary shares in excess of the number of depositary shares representing
the number of shares of preferred stock to be withdrawn, the preferred stock
depositary will deliver to that holder at the same time a new depositary receipt
evidencing the excess number of depositary shares.
35
Redemption
Whenever we redeem shares of a class or series of preferred stock held by
the preferred stock depositary, the preferred stock depositary will redeem as of
the same redemption date the number of depositary shares representing shares of
the class or series of preferred stock so redeemed, provided we shall have paid
in full to the preferred stock depositary the redemption price of the preferred
stock to be redeemed plus an amount equal to any accrued and unpaid dividends
thereon to the date fixed for redemption. The redemption price per depositary
share will be equal to the corresponding proportion of the redemption price and
any other amounts per share payable with respect to that class or series of
preferred stock. If fewer than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected pro rata (as nearly as may be
practicable without creating fractional depositary shares) or by any other
equitable method determined by us that will not result in the issuance of any
excess preferred stock.
From and after the date fixed for redemption, all dividends in respect of
the shares of a class or series of preferred stock so called for redemption will
cease to accrue, the depositary shares so called for redemption will no longer
be deemed to be outstanding and all rights of the holders of the depositary
receipts evidencing the depositary shares so called for redemption will cease,
except the right to receive any moneys payable upon their redemption and any
money or other property to which the holders of those depositary receipts were
entitled upon their redemption and surrender thereof to the preferred stock
depositary.
Voting
Upon receipt of notice of any meeting at which the holders of a class or
series of preferred stock deposited with the preferred stock depositary are
entitled to vote, the preferred stock depositary will mail the information
contained in that notice of meeting to the record holders of the depositary
receipts evidencing the depositary shares which represent that class or series
of preferred stock. Each record holder of depositary receipts evidencing
depositary shares on the record date (which will be the same date as the record
date for that class or series of preferred stock) will be entitled to instruct
the preferred stock depositary as to the exercise of the voting rights
pertaining to the amount of preferred stock represented by that holder's
depositary shares. The preferred stock depositary will vote the amount of that
class or series of preferred stock represented by those depositary shares in
accordance with those instructions, and we will agree to take all reasonable
action which may be deemed necessary by the preferred stock depositary in order
to enable the preferred stock depositary to do so. The preferred stock
depositary will abstain from voting the amount of that class or series of
preferred stock represented by those depositary shares to the extent it does not
receive specific instructions from the holders of depositary receipts evidencing
those depositary shares. The preferred stock depositary shall not be responsible
for any failure to carry out any instruction to vote, or for the manner or
effect of any vote made, as long as that action or non-action is in good faith
and does not result from negligence or willful misconduct of the preferred stock
depositary.
Liquidation Preference
In the event of our liquidation, dissolution or winding up, whether
voluntary or involuntary, the holders of each depositary receipt will be
entitled to the fraction of the liquidation preference accorded each share of
preferred stock represented by the depositary shares evidenced by that
depositary receipt, as set forth in the applicable prospectus supplement.
36
Conversion
The depositary shares, as such, are not convertible into our common stock
(except as set forth in the proviso below) or any of our other securities or
property, except in connection with certain conversions in connection with the
preservation of our status as a REIT; provided that the depositary shares
representing our Class D preferred stock are convertible into our common stock.
Nevertheless, if so specified in the applicable prospectus supplement relating
to an offering of depositary shares, the depositary receipts may be surrendered
by holders thereof to the preferred stock depositary with written instructions
to the preferred stock depositary to instruct us to cause conversion of a class
or series of preferred stock represented by the depositary shares evidenced by
those depositary receipts into whole shares of our common stock, other shares of
a class or series of preferred stock (including excess preferred stock) or other
shares of stock, and we have agreed that upon receipt of those instructions and
any amounts payable in respect thereof, we will cause the conversion thereof
utilizing the same procedures as those provided for delivery of preferred stock
to effect that conversion. If the depositary shares evidenced by a depositary
receipt are to be converted in part only, a new depositary receipt or receipts
will be issued for any depositary shares not to be converted. No fractional
shares of common stock will be issued upon conversion, and if that conversion
would result in a fractional share being issued, an amount will be paid in cash
by us equal to the value of the fractional interest based upon the closing price
of the common stock on the last business day prior to the conversion.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares which
represent the preferred stock and any provision of the deposit agreement may at
any time be amended by agreement between us and the preferred stock depositary.
However, any amendment that materially and adversely alters the rights of the
holders of depositary receipts or that would be materially and adversely
inconsistent with the rights granted to the holders of the related class or
series of preferred stock will not be effective unless that amendment has been
approved by the existing holders of at least two thirds of the depositary shares
evidenced by the depositary receipts then outstanding. No amendment shall impair
the right, subject to certain exceptions in the deposit agreement, of any holder
of depositary receipts to surrender any depositary receipt with instructions to
deliver to the holder the related class or series of preferred stock and all
money and other property, if any, represented thereby, except in order to comply
with law. Every holder of an outstanding depositary receipt at the time any of
those types of amendments becomes effective shall be deemed, by continuing to
hold that depositary receipt, to consent and agree to that amendment and to be
bound by the deposit agreement as amended thereby.
We may terminate the deposit agreement upon not less than 30 days' prior
written notice to the preferred stock depositary if:
(1) such termination is necessary to preserve our status as a REIT, or
(2) a majority of each class or series of preferred stock subject to that
deposit agreement consents to that termination, whereupon the preferred
stock depositary shall deliver or make available to each holder of
depositary receipts, upon surrender of the depositary receipts held by
that holder, that number of whole or fractional shares of each class or
series of preferred stock as are represented by the depositary shares
evidenced by those depositary receipts together with any other property
held by the preferred stock depositary with respect to those depositary
receipts.
We have agreed that if the deposit agreement is terminated to preserve our
status as a REIT, then we will use our best efforts to list each class or series
of preferred stock issued upon surrender of the related depositary shares on a
national securities exchange. In addition, the deposit agreement will
automatically terminate if:
(1) all outstanding depositary shares issued thereunder shall have been
redeemed,
(2) there shall have been a final distribution in respect of each class or
series of preferred stock subject to that deposit agreement in
connection with our liquidation, dissolution or winding up and that
distribution shall have been distributed to the holders of depositary
receipts evidencing the depositary shares representing that class or
series of preferred stock, or
(3) each share of preferred stock subject to that deposit agreement shall
have been converted into our stock not so represented by depositary
shares.
37
Charges of Preferred Stock Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the deposit agreement. In addition, we will pay the
fees and expenses of the preferred stock depositary in connection with the
performance of its duties under the deposit agreement. However, holders of
depositary receipts will pay the fees and expenses of the preferred stock
depositary for any duties requested by those holders to be performed which are
outside of those expressly provided for in the deposit agreement.
Resignation and Removal of Preferred Stock Depositary
The preferred stock depositary may resign at any time by delivering notice
to us of its election to do so, and we may at any time remove the preferred
stock depositary, that resignation or removal to take effect upon the
appointment of a successor preferred stock depositary. A successor preferred
stock depositary must be appointed within 60 days after delivery of the notice
of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
Miscellaneous
The preferred stock depositary will forward to holders of depositary
receipts any reports and communications from us which are received by it with
respect to the related preferred stock.
Neither we nor the preferred stock depositary will be liable if it is
prevented from or delayed in, by law or any circumstances beyond its control,
performing its obligations under the deposit agreement. Our obligations and
those of the preferred stock depositary under the deposit agreement will be
limited to performing our respective duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of a class or
series of preferred stock represented by the depositary shares), gross
negligence or willful misconduct, and neither we nor the preferred stock
depositary will be obligated to prosecute or defend any legal proceeding in
respect of any depositary receipts, depositary shares or shares of a class or
series of preferred stock represented thereby unless satisfactory indemnity is
furnished. We and the preferred stock depositary may rely on written advice of
counsel or accountants, or information provided by persons presenting shares of
a class or series of preferred stock represented thereby for deposit, holders of
depositary receipts or other persons believed in good faith to be competent to
give that information, and on documents believed in good faith to be genuine and
signed by a proper party.
In the event the preferred stock depositary shall receive conflicting
claims, requests or instructions from any holders of depositary receipts, on the
one hand, and us, on the other hand, the preferred stock depositary shall be
entitled to act on those claims, requests or instructions received from us.
38
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
TO US OF OUR REIT ELECTION
The following is a summary of the federal income tax considerations to us
which are anticipated to be material to purchasers of the securities offered by
this prospectus. This summary is based on current law, is for general
information only and is not tax advice. Your tax treatment will vary depending
upon the terms of the specific securities that you acquire, as well as your
particular situation. This discussion does not attempt to address any aspects of
federal income taxation relevant to your ownership of the securities offered by
this prospectus. Instead, the material federal income tax considerations
relevant to your ownership of the securities offered by this prospectus may be
provided in the applicable prospectus supplement relating thereto.
The information in this section is based on:
o the Internal Revenue Code;
o current, temporary and proposed Treasury regulations
promulgated under the Internal Revenue Code;
o the legislative history of the Internal Revenue Code;
o current administrative interpretations and practices of the
Internal Revenue Service; and
o court decisions,
in each case, as of the date of this prospectus. In addition, the administrative
interpretations and practices of the Internal Revenue Service include its
practices and policies as expressed in private letter rulings which are not
binding on the Internal Revenue Service, except with respect to the particular
taxpayers who requested and received these rulings. Future legislation, Treasury
regulations, administrative interpretations and practices and/or court decisions
may adversely affect the tax considerations contained in this discussion or the
desirability of an investment in a REIT relative to other investments. Any
change could apply retroactively to transactions preceding the date of the
change. Except as described below, we have not requested, and do not plan to
request, any rulings from the Internal Revenue Service concerning our tax
treatment, and the statements in this prospectus are not binding on the Internal
Revenue Service or any court. Thus, we can provide no assurance that the tax
considerations contained in this discussion will not be challenged by the
Internal Revenue Service or if challenged, will not be sustained by a court.
You are advised to consult the applicable prospectus supplement, as well as
your own tax advisor, regarding the tax consequences to you of the acquisition,
ownership and sale of the securities offered by this prospectus, including the
federal, state, local, foreign and other tax consequences; our election to be
taxed as a REIT for federal income purposes; and potential changes in the tax
laws.
Taxation of the Company as a REIT
General. We elected to be taxed as a REIT under Sections 856 through 860 of
the Code, commencing with our taxable year beginning January 1, 1992. We believe
we have been organized and have operated in a manner which allows us to qualify
for taxation as a REIT under the Internal Revenue Code commencing with our
taxable year beginning January 1, 1992. We intend to continue to operate in this
manner, but there is no assurance that we have operated or will continue to
operate in a manner so as to qualify or remain qualified as a REIT.
The sections of the Internal Revenue Code and the corresponding Treasury
regulations that relate to the qualification and operation of a REIT are highly
technical and complex. This summary is qualified in its entirety by the
applicable Internal Revenue Code provisions, rules and regulations promulgated
thereunder, and administrative and judicial interpretations thereof.
39
As a condition to the closing of each offering of the securities offered by
this prospectus, other than offerings of medium term notes and as otherwise
specified in the applicable prospectus supplement, our tax counsel will render
an opinion to the underwriters of that offering to the effect that, commencing
with our taxable year which began January 1, 1992, we have been organized in
conformity with the requirements for qualification as a REIT, and our proposed
method of operation will enable us to continue to meet the requirements for
qualification and taxation as a REIT under the Internal Revenue Code. It must be
emphasized that this opinion will be based on various assumptions and
representations to be made by us as to factual matters, including
representations to be made in a factual certificate to be provided by one of our
officers. Our tax counsel will have no obligation to update its opinion
subsequent to its date. In addition, this opinion will be based upon our factual
representations set forth in this prospectus and set forth in the applicable
prospectus supplement. Moreover, our qualification and taxation as a REIT
depends upon our ability to meet the various qualification tests imposed under
the Internal Revenue Code discussed below, including through actual annual
operating results, asset diversification, distribution levels and diversity of
stock ownership, the results of which have not been and will not be reviewed by
our tax counsel. Accordingly, no assurance can be given that our actual results
of operation of any particular taxable year will satisfy those requirements.
Further, the anticipated income tax treatment described in this prospectus may
be changed, perhaps retroactively, by legislative, administrative or judicial
action at any time.
If we qualify for taxation as a REIT, we generally will not be required to
pay federal corporate income taxes on our net income that is currently
distributed to stockholders. We will be required to pay federal income tax,
however, as follows:
o We will be required to pay tax at regular corporate rates on any
undistributed real estate investment trust taxable income, including
undistributed net capital gains.
o We may be required to pay the "alternative minimum tax" on our items
of tax preference.
o If we have (1) net income from the sale or other disposition of
foreclosure property which is held primarily for sale to customers
in the ordinary course of business or (2) other non-qualifying
income from foreclosure property, we will be required to pay tax at
the highest corporate rates on this income. Foreclosure property is
generally defined as property acquired by foreclosure or after a
default on a loan secured by the property or a lease of the
property.
o We will be required to pay a 100% tax on any net income from
prohibited transactions. Prohibited transactions are, in general,
sales or other dispositions of property, other than foreclosure
property, held primarily for sale to customers in the ordinary
course of business.
o If we fail to satisfy the 75% gross income test or the 95% gross
income test, as described below, but have otherwise maintained our
qualification as a REIT, we will be required to pay a 100% tax on an
amount equal to (1) the gross income attributable to the greater of
(a) the amount by which 75% of our gross income exceeds the amount
qualifying under the 75% gross income test described below and (b)
the amount by which 90% of our gross income exceeds the amount
qualifying under the 95% gross income test described below,
multiplied by (2) a fraction intended to reflect our profitability.
o If we fail to distribute during each calendar year at least the sum
of (1) 85% of our real estate investment trust ordinary income for
such taxable year, (2) 95% of our real estate investment trust
capital gain net income for such year, and (3) any undistributed
taxable income from prior periods, we will be required to pay a 4%
excise tax on the excess of that required distribution over the
amounts actually distributed.
40
o If we acquire any asset from a corporation which is or has been a C
corporation in a transaction in which the basis of the asset in our
hands is determined by reference to the basis of the asset in the
hands of the C corporation, and we subsequently recognize gain on
the disposition of the asset during the ten-year period beginning on
the date we acquired the asset, then we will be required to pay tax
at the highest regular corporate tax rate on this gain to the extent
of the excess of (a) the fair market value of the asset over (b) our
adjusted basis in the asset, in each case determined as of the date
we acquired the asset. A C corporation is generally defined as a
corporation required to pay full corporate level tax. In addition,
if we recognize gain on the disposition of any asset during the
10-year period beginning on the first day of the first taxable year
for which we qualified as a REIT and we held the asset on the first
day of this period, then we will be required to pay tax at the
highest regular corporate tax rate on this gain to the extent of the
excess of (a) the fair market value of the asset over (b) our
adjusted basis in the asset, in each case determined as of the first
day of the first taxable year for which we qualified as a REIT. The
results described in this paragraph with respect to the recognition
of gain assume that we have made and will make or refrained from
making and will refrain from making a timely election under the
relevant Treasury regulations to obtain the results described in
this paragraph with respect to the recognition of gain.
o We will be subject to a 100% penalty tax on any redetermined rents,
redetermined deductions or excess interest. In general, redetermined
rents are rents from real property that are overstated as a result
of services furnished by a taxable REIT subsidiary of ours to any of
our tenants. See "--Taxable REIT Subsidiaries." Redetermined
deductions and excess interest represent amounts that are deducted
by a taxable REIT subsidiary of ours for amounts paid to us that are
in excess of the amounts that would have been deducted based on
arm's length negotiations.
Requirements for Qualification: The Internal Revenue Code defines a REIT as a
corporation, trust or association:
(1) that is managed by one or more trustees or directors,
(2) that issues transferable shares or transferable certificates to
evidence beneficial ownership,
(3) that would be taxable as a domestic corporation, but for Sections
856 through 860 of the Internal Revenue Code,
(4) that is not a financial institution or an insurance company within
the meaning of the Internal Revenue Code,
(5) that is beneficially owned by 100 or more persons,
(6) not more than 50% in value of the outstanding stock of which is
owned, directly or constructively, by five or fewer individuals,
including specified entities, during the last half of each taxable
year, and
(7) that meets other tests, described below, regarding the nature of its
income, assets and the amount of its distribution.
The Internal Revenue Code provides that conditions (1) to (4) must be met
during the entire taxable year and that condition (5) must be met during at
least 335 days of a taxable year of 12 months, or during a proportionate part of
a taxable year of less than 12 months. Conditions (5) and (6) do not apply until
after the first taxable year for which an election is made to be taxed as a real
estate investment trust. For purposes of condition (6), pension funds and other
specified tax-exempt entities are generally treated as individuals, except that
a "look-through" exception applies to pension funds.
We have satisfied condition (5) and believe that we have issued sufficient
shares to allow us to satisfy condition (6). In addition, our charter provides,
and the articles supplementary for any series of preferred stock will provide,
for restrictions regarding ownership and transfer of our stock, which
restrictions are intended to assist us in continuing to satisfy the share
ownership requirements described in (5) and (6) above. The ownership and
transfer restrictions pertaining generally to our common stock and preferred
stock are described in "Description of Common Stock--Restrictions on Ownership
and Transfer" and "Description of Preferred Stock--Restrictions on Ownership and
Transfer" or, to the extent those restrictions differ from those described in
this prospectus, those restrictions will be described in the applicable
prospectus supplement. There can be no assurance, however, that those transfer
restrictions will in all cases prevent a violation of the stock ownership
provisions described in (5) and (6) above. If we fail to satisfy these share
ownership requirements, except as provided in the next sentence, our status as a
REIT will terminate. If, however, we comply with the rules contained in the
applicable Treasury regulations requiring us to attempt to ascertain the actual
ownership of our shares, and we do not know, and would not have known through
the exercise of reasonable diligence, that we failed to meet the requirement set
forth in condition (6) above, we will be treated as having met this requirement.
41
In addition, a corporation may not elect to become a REIT unless its
taxable year is the calendar year. We have a calendar year.
Ownership of Qualified REIT Subsidiaries and Interests in Partnership: We
own and operate a number of properties through subsidiaries. Internal Revenue
Code Section 856(i) provides that a corporation which is a "qualified REIT
subsidiary" shall not be treated as a separate corporation, and all assets,
liabilities, and items of income, deduction, and credit of a "qualified REIT
subsidiary" shall be treated as assets, liabilities and items of the REIT. Thus,
in applying the requirements described herein, our "qualified REIT subsidiaries"
will be ignored, and all assets, liabilities and items of income, deduction, and
credit of those subsidiaries will be treated as our assets, liabilities and
items. We have received a ruling from the IRS to the effect that all of the
subsidiaries that were held by us prior to January 1, 1992, the effective date
of our election to be taxed as a REIT, will be "qualified REIT subsidiaries"
upon the effective date of our REIT election. Moreover, with respect to each
subsidiary of ours formed subsequent to January 1, 1992 and prior to January 1,
1998, we have owned 100% of the stock of that subsidiary at all times during the
period that subsidiary has been in existence. For tax years beginning on or
after January 1, 1998, any corporation, other than a taxable REIT subsidiary,
wholly owned by a REIT is permitted to be treated as a "qualified REIT
subsidiary" regardless of whether that subsidiary has always been owned by the
REIT.
Treasury Regulations provide that if we are a partner in a partnership, we
will be deemed to own our proportionate share of the assets of the partnership.
Also, we will be deemed to be entitled to the income of the partnership
attributable to our proportionate share of the income of the partnership. The
character of the assets and gross income of the partnership will retain the same
character in our hands for purposes of Section 856 of the Internal Revenue Code,
including satisfying the gross income tests and the asset tests described below.
The treatment described above also applies with respect to the ownership of
interests in limited liability companies that are treated as partnerships. Thus,
our proportionate share of the assets, liabilities and items of income of the
partnerships and limited liability companies that are treated as partnerships in
which we are a partner or a member, respectively, will be treated as our assets,
liabilities and items of income for purposes of applying the requirements
described in this prospectus.
Taxable REIT Subsidiary: A REIT may own more than 10% of the voting
securities of an issuer or 10% or more of the value of the securities of an
issuer if the issuer is a taxable REIT subsidiary of the REIT. A corporation
qualifies as a taxable REIT subsidiary of a REIT if the corporation jointly
elects with the REIT to be treated as a taxable REIT subsidiary of the REIT. A
taxable REIT subsidiary also includes any corporation in which a taxable REIT
subsidiary owns more than 35% of the total vote or value. Dividends from a
taxable REIT subsidiary will be nonqualifying income for purposes of the 75%,
but not the 95% gross income test. Other than certain activities relating to
lodging and health care facilities, a taxable REIT subsidiary may generally
engage in any business, including, the provision of customary or noncustomary
services to tenants of its parent REIT.
A taxable REIT subsidiary is subject to federal income tax, and state and
local income tax where applicable, as a regular C corporation.
Sections of the Internal Revenue Code which apply to tax years beginning
after December 31, 2000 generally intended to insure that transactions between a
REIT and its taxable REIT subsidiary occur at arm's length and on commercially
reasonable terms, include a provision that prevents a taxable REIT subsidiary
from deducting interest on direct or indirect indebtedness to its parent REIT
if, under specified series of tests, the taxable REIT subsidiary is considered
to have an excessive interest expense level and debt to equity ratio. In some
case, these sections of the Internal Revenue Code impose a 100% tax on a REIT if
its rental, service and/or other agreements with its taxable REIT subsidiaries
are not on arm's length terms.
As a result of the modifications to the sections of the Internal Revenue
Code which are described above and which are effective for taxable years
beginning after December 31, 2000, we modified our ownership of the Service
Company. Effective January 1, 2001, we made a joint election with the Service
Company to treat the Service Company as a taxable REIT subsidiary. In addition,
effective January 1, 2001, we contributed the note that was issued to us from
the Service Company to the capital of the Service Company and acquired 100% of
the voting stock of the Service Company. Thus, we currently own 100% of the
stock of the Service Company and there is no debt outstanding between the
Service Company and us.
42
Income Tests: We must satisfy two gross income requirements annually to
maintain our qualification as a REIT:
o First, each taxable year we must derive directly or indirectly
at least 75% of our gross income, excluding gross income from
prohibited transactions, from (a) investments relating to real
property or mortgages on real property, including rents from
real property and, in some circumstances, interest or (b) some
type of temporary investments.
o Second, each taxable year we must derive at least 95% of our
gross income, excluding gross income from prohibited
transactions, from (a) the real property investments described
above, (b) dividends, interest and gain from the sale or
disposition of stock or securities or (c) from any combination
of the foregoing.
For these purposes, the term "interest" generally does not include any
amount received or accrued, directly or indirectly, if the determination of that
amount depends in whole or in part on the income or profits of any person.
However, an amount received or accrued generally will not be excluded from the
term "interest" solely by reason of being based on a fixed percentage or
percentages of receipts or sales.
Rents we receive will qualify as "rents from real property" in satisfying
the gross income requirements for a REIT described above only if the following
conditions are met:
o First, the amount of rent must not be based in whole or in
part on the income or profits of any person. However, an
amount received or accrued generally will not be excluded from
the term "rents from real property" solely by reason of being
based on a fixed percentage or percentages of receipts or
sales.
o Second, we, or an actual or constructive owner of 10% or more
of our stock, do not actually or constructively own 10% or
more of the interests in the tenant. Rents received from such
tenant that is a taxable REIT subsidiary, however, will not be
excluded from the definition of "rents from real property" if
at least 90% of the space at the property to which the rents
relate is leased to third parties, and the rents paid by the
taxable REIT subsidiary are comparable to rents paid by our
other tenants for comparable space.
o Third, rent attributable to personal property, leased in
connection with a lease of real property, is not greater than
15% of the total rent received under the lease. If this
condition is not met, then the portion of the rent
attributable to personal property will not qualify as "rents
from real property."
o Finally, we generally must not operate or manage our property
or furnish or render services to our tenants, subject to a 1%
de minimis exception, other than through an independent
contractor from whom we derive no revenue. We may, however,
directly perform services that are "usually or customarily
rendered" in connection with the rental of space for occupancy
only and are not otherwise considered "rendered to the
occupant" of the property. In addition, we may employ a
taxable REIT subsidiary which may be wholly or partially owned
by us to provide both customary and noncustomary services to
our tenants without causing the rent we receive from those
tenants to fail to qualify as "rents from real property." Any
amounts we receive from a taxable REIT subsidiary with respect
to the taxable REIT subsidiary's provision of noncustomary
services will, however, be nonqualified income under the 75%
gross income test and, except to the extent received through
the payment of dividends, the 95% gross income test.
43
We have received a ruling from the Internal Revenue Service providing that
the performance of the types of services provided by us will not cause the rents
received with respect to those leases to fail to qualify as "rents from real
property." In addition, we generally do not intend to receive rent which fails
to satisfy any of the above conditions. Notwithstanding the foregoing, we may
have taken and may continue to take some of the actions set forth above to the
extent those actions will not, based on the advice of our tax counsel,
jeopardize our status as a REIT.
If we fail to satisfy one or both of the 75% or 95% gross income tests for
any taxable year, we may nevertheless qualify as a REIT if we are entitled to
relief under the Internal Revenue Code. Generally, we may avail ourselves of the
relief provisions if:
o our failure to meet these tests was due to reasonable
cause and not due to willful neglect,
o we attach a schedule of the sources of our income to our
Federal income tax return, and
o any incorrect information on the schedule was not due to
fraud with intent to evade tax.
It is not possible, however, to state whether in all circumstances we would be
entitled to the benefit of these relief provisions. As discussed above under
"--General," even if these relief provisions apply, a tax would be imposed with
respect to our non-qualifying income.
Prohibited Transaction Income: Any gain that we realize on the sale of any
property held as inventory or other property held primarily for sale to
customers in the ordinary course of business will be treated as income from a
prohibited transaction that is subject to a 100% penalty tax. That prohibited
transaction income may also have an adverse effect upon our ability to satisfy
the income tests for qualification as a REIT. Under existing law, whether
property is held as inventory or primarily for sale to customers in the ordinary
course of business is a question of fact that depends on all the facts and
circumstances with respect to the particular transaction. We hold our properties
for investment with a view to long-term appreciation, we are engaged in the
business of acquiring, developing, owning and operating our properties and we
make such occasional sales of the properties as are consistent with our
investment objectives. There can be no assurance, however, that the Internal
Revenue Service might not contend that one or more of those sales is subject to
the 100% penalty tax.
Penalty Tax: Any redetermined rents, redetermined deductions or excess
interest we generate will be subject to a 100% penalty tax. In general,
redetermined rents are rents from real property that are overstated as a result
of services furnished by a taxable REIT subsidiary to any of our tenants, and
redetermined deductions and excess interest represent amounts that are deducted
by a taxable REIT subsidiary for amounts paid to us that are in excess of the
amounts that would have been deducted based on arm's length negotiations. Rents
we receive will not constitute redetermined rents if they qualify for the safe
harbor provisions contained in the Internal Revenue Code. Safe harbor provisions
are provided where:
o Amounts are received by a REIT for services customarily furnished or
rendered in connection with the rental of real property;
o Amounts are excluded from the definition of impermissible tenant
service income as a result of satisfying a 1% de minimis exception;
o The taxable REIT subsidiary renders a significant amount of similar
services to unrelated parties and the charges for such services are
substantially comparable;
o Rents paid to the REIT by tenants who are not receiving services
from the taxable REIT subsidiary are substantially comparable to the
rents paid by the real estate investment trust's tenants leasing
comparable space who are receiving such services from the taxable
REIT subsidiary and the charge for the services is separately
stated; and
o The taxable REIT subsidiary's gross income from the service is not
less than 150% of the subsidiary's direct cost in furnishing the
service.
44
Asset Tests: At the close of each quarter of our taxable year, we also must
satisfy the following tests relating to the nature and diversification of our
assets.
o First, at least 75% of the value of our total assets must be
represented by real estate assets, cash, cash items and government
securities. For purposes of this test, real estate assets include
stock or debt instruments that are purchased with the proceeds of a
stock offering or a long-term public debt offering with a term of at
least five years, but only for the one-year period beginning on the
date we receive these proceeds.
o Second, not more than 25% of our total assets may be represented by
securities other than those includible in the 75% asset test.
o Third, for taxable years ending on or prior to December 31, 2000, of
the investments included in the 25% asset class, the value of any
one issuer's securities owned by us may not exceed 5% of the value
of our total assets and we may not own more than 10% of any one
issuer's outstanding voting securities.
o Finally, for taxable years beginning after December 31, 2000, (a)
not more than 20% of the value of our total assets may be
represented by securities of one or more taxable REIT subsidiaries
and (b) except for the securities of a taxable REIT subsidiary and
securities included in the 75% asset test, not more than 5% of the
value of our assets may be represented by securities of any one
issuer and we may not own more than 10% of the total vote or value
of the outstanding securities of any one issuer, except, in the case
of the 10% value test, certain "straight debt" securities.
We currently have numerous direct and indirect wholly-owned subsidiaries.
As set forth above, the ownership of more than 10% of the voting securities of
any one issuer by a REIT is prohibited unless such subsidiary is a taxable REIT
subsidiary. However, if our subsidiaries are "qualified REIT subsidiaries" as
defined in the Internal Revenue Code, those subsidiaries will not be treated as
separate corporations for federal income tax purposes. Thus, our ownership of
stock of a "qualified REIT subsidiary" will not cause us to fail the asset
tests.
Prior to January 1, 2001, we owned 100% of the nonvoting preferred stock of
Kimco Realty Services, Inc. and did not own any of the voting securities of
Kimco Realty Services, Inc. We refer to Kimco Realty Services, Inc. as the
Service Company. Effective January 1, 2001, we made a joint election with the
Service Company to treat the Service Company as a taxable REIT subsidiary. In
addition, effective January 1, 2001, we acquired 100% of the voting stock of the
Service Company and currently own 100% of the stock of the Service Company. We
believe, and will represent to our counsel for purposes of its opinion, that (i)
the value of the securities of the Service Company held by us did not exceed at
the close of any quarter during a taxable year that ended on or prior to
December 31, 2000 5% of the total value of our assets and (ii) the value of the
securities of all our taxable REIT subsidiaries does not and will not exceed
more than 20% of the value of our total assets at the close of each quarter
during a taxable year that begins after December 31, 2000. Our tax counsel, in
rendering its opinion as to our qualification as a REIT, will be relying on our
representations to that effect with respect to the value of those securities and
assets. No independent appraisals will be obtained to support this conclusion.
There can be no assurance that the Internal Revenue Service will not contend
that the value of the securities of the Service Company held by us exceeds the
applicable value limitation.
45
After initially meeting the asset tests at the close of any quarter, we
will not lose our status as a REIT for failure to satisfy the asset tests at the
end of a later quarter solely by reason of changes in asset values. If the
failure to satisfy the asset tests results from an acquisition of securities or
other property during a quarter, the failure can be cured by the disposition of
sufficient nonqualifying assets within 30 days after the close of the quarter.
We intend to maintain adequate records of the value of our assets to ensure
compliance with the asset tests and to take such other actions within 30 days
after the close of any quarter as may be required to cure any noncompliance. If
we fail to cure noncompliance with the asset tests within that time period, we
would cease to qualify as a REIT.
Annual Distribution Requirements: To maintain our qualification as a REIT,
we are required to distribute dividends, other than capital gain dividends, to
our stockholders in an amount at least equal to the sum of:
o 90% of our REIT taxable income, and
o 90% of our after tax net income, if any, from foreclosure property;
minus
o the excess of the sum of specified items of non-cash income items
over 5% of our REIT taxable income.
Our REIT taxable income is computed without regard to the dividends paid
deduction and our net capital gain. In addition, for purposes of this test,
non-cash income items includes income attributable to leveled stepped rents,
original issue discount or purchase money discount debt, or a like-kind exchange
that is later determined to be taxable.
We must pay these distributions in the taxable year to which they relate,
or in the following taxable year if declared before we timely file our tax
return for that year and if paid on or before the first regular dividend payment
after that declaration. The amount distributed must not be preferential--i.e.,
each holder of shares of common stock and each holder of shares of each class of
preferred stock must receive the same distribution per share. To the extent that
we do not distribute all of our net capital gain or distribute at least 90%, but
less than 100%, of our REIT taxable income, as adjusted, we will be subject to
tax thereon at regular ordinary and capital gain corporate tax rates. We believe
we have made, and intend to continue to make, timely distributions sufficient to
satisfy these annual distribution requirements.
We expect that our REIT taxable income will be less than our cash flow
because of depreciation and other non-cash charges included in computing our
REIT taxable income. Accordingly, we anticipate that we will generally have
sufficient cash or liquid assets to enable us to satisfy our distribution
requirement. However, it is possible that, from time to time, we may not have
sufficient cash or other liquid assets to meet the distribution requirement due
to timing differences between the actual receipt of income and actual payment of
deductible expenses and the inclusion of that income and deduction of those
expenses in arriving at our taxable income. In the event that those timing
differences occur, in order to meet the distribution requirement, we may find it
necessary to arrange for short-term, or possibly long-term, borrowings or to pay
dividends in the form of taxable stock dividends.
Under some circumstances, we may be able to rectify a failure to meet the
distribution requirement for a year by paying "deficiency dividends" to
stockholders in a later year, which may be included in our deduction for
dividends paid for the earlier year. Thus, we may be able to avoid being taxed
on amounts distributed as deficiency dividends. We will be required, however, to
pay interest based upon the amount of any deduction claimed for deficiency
dividends and would be subject to any applicable penalty provisions.
In addition, we will be required to pay a 4% excise tax on the excess of
the required distribution over the amounts actually distributed if we fail to
distribute during each calendar year, or in the case of distributions with
declaration and record dates falling in the last three months of the calendar
year, by the end of January immediately following that year, at least the sum of
85% of our REIT ordinary income for that year, 95% of our REIT capital gain
income for the year, plus, in each case, any undistributed taxable income from
prior periods. Any REIT taxable income or net gain income on which this excise
tax is imposed for any year is treated as an amount distributed that year for
purposes of calculating the tax.
46
Failure to Qualify
If we fail to qualify for taxation as a REIT in any taxable year, and the
relief provisions do not apply, we will be subject to tax, including any
applicable alternative minimum tax, on our taxable income at regular corporate
rates. That failure to qualify for taxation as a REIT could have an adverse
effect on the market value and marketability of the securities offered by this
prospectus. Distributions to stockholders in any year in which we fail to
qualify will not be deductible by us nor will they be required to be made. As a
result, our failure to qualify as a REIT would substantially reduce the cash
available for distribution by us to our stockholders. In that event, to the
extent of current and accumulated earnings and profits, all distributions to
stockholders will be taxable as ordinary income and, subject to specified
limitations in the Internal Revenue Code, corporate distributees may be eligible
for the dividends received deduction. Unless entitled to relief under specific
statutory provisions, we will also be disqualified from taxation as a REIT for
the four taxable years following the year during which qualification was lost.
It is not possible to state whether in all circumstances we would be entitled to
that statutory relief.
Other Tax Matters
Some of our investments are through partnerships which may involve special
tax risks. These risks include possible challenge by the IRS of (a) allocations
of income and expense items, which could affect the computation of our income,
and (b) the status of the partnerships as partnerships, as opposed to
associations taxable as corporations, for income tax purposes. Treasury
Regulations that are effective as of January 1, 1997 provide that a domestic
partnership is generally taxed as a partnership unless it elects to be taxed as
an association taxable as a corporation. None of the partnerships in which we
are a partner has made or intends to make that election. These Treasury
Regulations provide that a partnership's claimed classification will be
respected for periods prior to January 1, 1997 if the entity had a reasonable
basis for its claimed classification, and that partnership had not been notified
in writing on or before May 8, 1996 that the classification of that entity was
under examination. If any of the partnerships were treated as an association for
a prior period, and (i) if our ownership in any of those partnerships exceeded
10% of the partnership's voting interest or (ii) the value of that interest
exceeded 5% of the value of our assets, we would cease to qualify as a REIT for
that period and possibly future periods. Moreover, the deemed change in
classification of that partnership from an association to a partnership
effective as of January 1, 1997 would be a taxable event. We believe that each
of the partnerships has been properly treated for tax purposes as a partnership,
and not as an association taxable as a corporation. However, no assurance can be
given that the Internal Revenue Service may not successfully challenge the
status of any of the partnerships.
We may be subject to state or local taxation in various state or local
jurisdictions, including those in which we transact business. Our state or local
tax treatment may not conform to the federal income tax consequences described
above. Consequently, prospective investors should consult their own tax advisors
regarding the effect of state and local tax laws on an investment in us.
47
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus to one or more
underwriters for public offering and sale by them or may sell the securities
offered by this prospectus to investors directly or through agents. Any
underwriter or agent involved in the offer and sale of the securities offered by
this prospectus will be named in the applicable prospectus supplement. We have
reserved the right to sell or exchange securities directly to investors on our
or their own behalf in those jurisdictions where we are authorized to do so.
We may distribute the securities from time to time in one or more
transactions:
o at a fixed price or prices, which may be changed;
o at market prices prevailing at the time of sale;
o at prices related to such prevailing market prices; or
o at negotiated prices.
Underwriters may offer and sell the securities offered by this prospectus
at a fixed price or prices, which may be changed, at prices related to the
prevailing market prices at the time of sale or at negotiated prices. We also
may, from time to time, authorize underwriters acting as our agents to offer and
sell the securities offered by this prospectus upon the terms and conditions as
are set forth in the applicable prospectus supplement. In connection with the
sale of securities offered by this prospectus, underwriters may be deemed to
have received compensation from us in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of securities
offered by this prospectus for whom they may act as agent. Underwriters may sell
the securities offered by this prospectus to or through dealers, and those
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
Any underwriting compensation paid by us to underwriters or agents in
connection with the offering of the securities offered by this prospectus, and
any discounts, concessions or commissions allowed by underwriters to
participating dealers, will be set forth in the applicable prospectus
supplement. Underwriters, dealers and agents participating in the distribution
of the securities offered by this prospectus may be deemed to be underwriters,
and any discounts and commissions received by them and any profit realized by
them on resale of the securities offered by this prospectus may be deemed to be
underwriting discounts and commissions, under the Securities Act. Underwriters,
dealers and agents may be entitled, under agreements entered into with us, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable prospectus supplement, we will authorize
dealers acting as our agents to solicit offers by certain institutions to
purchase the securities offered by this prospectus from us at the public
offering price set forth in that prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery on the date or dates
stated in that prospectus supplement.
Each delayed delivery contract will be for an amount not less than, and the
aggregate principal amount of the securities offered by this prospectus sold
pursuant to delayed delivery contracts shall be not less nor more than, the
respective amounts stated in the applicable prospectus supplement. Institutions
with whom delayed delivery contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other institutions but
will in all cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except:
(1) the purchase by an institution of the securities offered by this
prospectus covered by its delayed delivery contracts shall not at
the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which that institution is
subject, and
(2) if the securities offered by this prospectus are being sold to
underwriters, we shall have sold to those underwriters the total
principal amount of the securities offered by this prospectus less
the principal amount thereof covered by delayed delivery contracts.
48
To facilitate the offering of securities, certain persons participating in
the offering may engage in transactions that stabilize, maintain, or otherwise
affect the price of the securities. This may include over-allotments or short
sales of the securities, which involve the sale by persons participating in the
offering of more securities than we sold to them. In these circumstances, these
persons would cover such over-allotments or short positions by making purchases
in the open market or by exercising their over-allotment option, if any. In
addition, these persons may stabilize or maintain the price of the securities by
bidding for or purchasing securities in the open market or by imposing penalty
bids, whereby selling concessions allowed to dealers participating in the
offering may be reclaimed if securities sold by them are repurchased in
connection with stabilization transactions. The effect of these transactions may
be to stabilize or maintain the market price of the securities at a level above
that which might otherwise prevail in the open market. These transactions may be
discontinued at any time.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with, and perform services for us and our subsidiaries in
the ordinary course of business.
49
EXPERTS
The financial statements incorporated in this prospectus by reference to
Kimco Realty Corporation and Subsidiaries' Current Report on Form 8-K dated June
9, 2003 and Annual Report on Form 10-K for the year ended December 31, 2002,
have been so incorporated in reliance on the reports of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed
upon for us by Latham & Watkins LLP, New York, New York. Any underwriters will
be advised about the other issues relating to any offering by their own legal
counsel. Latham & Watkins LLP and any counsel for any underwriters, dealers or
agents will rely on Venable, Baetjer and Howard, LLP, Baltimore, Maryland, as to
certain matters of Maryland law. Certain members of Latham & Watkins LLP and
their families own beneficial interests in less than 1% of our common stock.
50
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses, other than underwriting discounts and commissions,
in connection with the offerings of the securities are as follows:
Securities Act registration fee...................... $ 91,678
Printing and engraving expenses...................... 200,000
Legal fees and expenses.............................. 200,000
Accounting fees and expenses......................... 125,000
Miscellaneous........................................ 33,322
========
$650,000
Item 15. Indemnification of Directors and Officers.
The Maryland General Corporation Law (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
except for liability resulting from (a) actual receipt of an improper benefit or
profit in money, property or services or (b) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
charter of the Company contains such a provision which eliminates such liability
to the maximum extent permitted by Maryland law.
The charter of the Company authorizes it, to the maximum extent permitted
by Maryland law, to obligate itself 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 of the Company and at the request of the Company, 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. The Bylaws of the Company obligate it, 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 service in that capacity or (b) any individual who, while a director of the
Company and at the request of the Company, 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 service in that capacity.
The charter and Bylaws also permit the Company to indemnify and advance expenses
to any person who served a predecessor of the Company in any of the capacities
described above and to any employee or agent of the Company or a predecessor of
the Company.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Company's 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, 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 requires the Company, as a condition to
advancing expenses, to obtain (a) a written affirmation by the director or
officer of his good faith belief that he has met the standard of conduct
necessary for indemnification by the Company as authorized by the Bylaws and (b)
a written undertaking by him or on his behalf to repay the amount paid or
reimbursed by the Company if it shall ultimately be determined that the standard
of conduct was not met.
51
Item 16. Exhibits.
1(a) -- Form of Underwriting Agreement for debt securities (filed as
Exhibit 1(a) to Registrant's Registration Statement on Form S-3,
dated August 18, 1993, File No. 33-67552)
(b) -- Form of Underwriting Agreement for Equity Securities (filed
as Exhibit 1(b) to Registrant's Registration Statement on Form
S-3, dated May 30, 1996, File No. 333-04833)
4(a) -- Indenture, dated as of September 1, 1993 (filed as Exhibit
4(a) to Registrant's Registration Statement on Form S-3, dated
August 31, 1994, File No. 333-83102)
(b) -- First supplemental indenture, dated as of August 4, 1994
(filed as Exhibit 4(b) to Registrant's Registration Statement on
Form S-3, dated May 1, 2001, File No. 333-59970)
(c) -- Second supplemental indenture, dated as of April 7, 1995
(filed as Exhibit 4(c) to Registrant's Registration Statement on
Form S-3, dated May 1, 2001, File No. 333-59970)
(d) -- Form of debt security (filed as Exhibit 4(b) to Registrant's
Registration Statement on Form S-3, dated August 18, 1993, File
No. 33-67552)
(e) -- Form of common stock warrant agreement (1)
(f) -- Form of Articles Supplementary for the preferred stock (1)
(g) -- Form of preferred stock certificate (1)
(h) -- Form of common stock certificate (filed as Exhibit 4(h) to
Registrant's Registration Statement on Form S-3, dated May 30,
1996, File No. 333-4833)
(i) -- Form of Deposit Agreement (filed as Exhibit 4(f) to
Registrant's Registration Statement on Form S-3, dated August
31, 1994, File No. 33-83102)
5(a) -- Opinion of Latham & Watkins LLP
(b) -- Opinion of Venable, Baetjer and Howard, LLP
8 -- Opinion of Latham & Watkins LLP regarding tax matters
12 -- Calculation of ratios of earnings to fixed charges and ratios
of earnings to combined fixed charges and preferred stock
dividends
23(a) -- Consent of PricewaterhouseCoopers LLP
(b) -- Consent of Latham & Watkins LLP (included in Exhibit 5(a))
(c) -- Consent of Venable, Baetjer and Howard, LLP (included in Exhibit
5(b))
24 -- Power of attorney included on signature page in Part II of the
initial registration statement
25 -- Statement of Eligibility of Trustee on Form T-l (filed as
Exhibit 25 to Registrant's Registration Statement on Amendment
No. 1 to Form S-3, dated August 31, 1998, File No. 333-61303)
-----------------
* Previously filed
(1) To be filed by amendment or incorporated by reference in connection with an
offering of Offered Securities.
Item 17. Undertakings.
We hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
52
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by us pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of those securities at
that 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.
We hereby further undertake that, for the purposes of determining any
liability under the Securities Act of 1933, each filing of our annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 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 those securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the provisions described under Item 15 of this registration
statement, or otherwise (other than insurance), we have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in that Act and is, therefore, unenforceable.
In the event that a claim for indemnification against those liabilities (other
than the payment by us of expenses incurred or paid by our director, officer or
controlling person in the successful defense of any action, suit or proceeding)
is asserted by that director, officer or controlling person in connection with
the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether that indemnification by us is
against public policy as expressed in that Act and will be governed by the final
adjudication of that issue.
53
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this amendment to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of New Hyde Park, State of New York on this 12th
day of June, 2003.
KIMCO REALTY CORPORATION
By: /s/ Michael V. Pappagallo
-------------------------------------------
Michael V. Pappagallo
Vice President and Chief Financial Officer
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears on
the signature page to this Registration Statement constitutes and appoints
Milton Cooper and Michael V. Pappagallo, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, and grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this amendment to
registration statement has been signed below by the following persons in the
capacities indicated on this 12th day of June, 2003:
Signature Title
--------- -----
/s/ Martin S. Kimmel
------------------------------- Director
Martin S. Kimmel
/s/ Milton Cooper
------------------------------- Chairman of the Board of Directors
Milton Cooper and Chief Executive Officer
/s/ Michael J. Flynn
------------------------------- Vice Chairman of the Board of Directors,
Michael J. Flynn President and Chief Operating Officer
/s/ Michael V. Pappagallo
------------------------------- Vice President and Chief Financial Officer
Michael V. Pappagallo Chief Investment Officer and Director
/s/ David B. Henry
------------------------------- Director
David B. Henry
/s/ Richard G. Dooley
------------------------------- Director
Richard G. Dooley
/s/ Frank Lourenso
------------------------------- Director
Frank Lourenso
/s/ Joseph Grills
------------------------------- Director
Joseph Grills
54
EXHIBIT INDEX
Exhibit Sequential
Number Description Page No.
------ ----------- --------
1(a) -- Form of Underwriting Agreement for debt securities (filed
as Exhibit 1(a) to Registrant's Registration Statement on
Form S-3, dated August 18, 1993, File No. 33-67552)
(b) -- Form of Underwriting Agreement for Equity Securities
(filed as Exhibit 1(b) to Registrant's Registration Statement
on Form S-3, dated May 30, 1996, File No. 333-04833)
4(a) -- Indenture, dated as of September 1, 1993 (filed as Exhibit
4(a) to Registrant's Registration Statement on Form S-3,
dated August 31, 1994, File No. 33-83102)
(b) -- First supplemental indenture, dated as of August 4, 1994
(filed as Exhibit 4(b) to Registrant's Registration Statement
on Form S-3, dated May 1, 2001, File No. 333-59970)
(c) -- Second supplemental indenture, dated as of April 7, 1995
(filed as Exhibit 4(c) to Registrant's Registration Statement
on Form S-3, dated May 1, 2001, File No. 333-59970)
(d) -- Form of debt security (filed as Exhibit 4(b) to
Registrant's Registration Statement on Form S-3, dated August
18, 1993, File No. 33-67552)
(e) -- Form of common stock warrant agreement (1)
(f) -- Form of Articles Supplementary for the preferred stock (1)
(g) -- Form of preferred stock certificate (1)
(h) -- Form of common stock certificate (filed as Exhibit 4(h) to
Registrant's Registration Statement on Form S-3, dated May
30, 1996, File No. 333-4833)
(i) -- Form of deposit agreement (filed as Exhibit 4(f) to
Registrant's Registration Statement on Form S-3, dated August
31, 1994, File No. 33-83102)
5(a) -- Opinion of Latham & Watkins LLP 1
(b) -- Opinion of Venable, Baetjer and Howard, LLP 5
8 -- Opinion of Latham & Watkins LLP regarding tax matters 9
12 -- Calculation of ratios of earnings to fixed charges and ratios of
earnings to combined fixed charges and preferred stock dividends 11
23(a) -- Consent of PricewaterhouseCoopers LLP 15
(b) -- Consent of Latham & Watkins LLP (included in Exhibit 5(a))
(c) -- Consent of Venable, Baetjer and Howard, LLP (included in Exhibit 5(b))
24 -- Power of attorney included on Signature page in Part II of the
initial Registration statement
25 -- Statement of Eligibility of Trustee on Form T-1 (filed as Exhibit 25
to Registrant's Registration Statement on Amendment No. 1 to Form S-3,
dated August 31, 1998, File No. 333-61303)
---------------
* Previously filed.
(1) To be filed by amendment or incorporated by reference in connection with an
offering of Offered Securities
55