As
filed with the Securities and Exchange Commission on November 26,
2008
Registration
No.
333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_______________
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
___________________
ALEXANDERS,
INC.
(Exact
name of registrant as specified in its charter)
Approximate date of
commencement of proposed sale to the public:
From time to time
after the effective date of this registration
statement.
If the only securities
being registered on this form are being offered pursuant to dividend or interest
reinvestment plans, please check the following box.
o
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, 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, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
o
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.
o
If this form is a
registration statement pursuant to General Instruction I.D. or a post-effective
amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following
box.
o
If this form is a
post-effective amendment to a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the
following box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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o
Large
accelerated filer
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x Accelerated filer |
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Non-accelerated
filer (Do not check if a smaller reporting company)
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o Smaller reporting company |
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 OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
CALCULATION OF
REGISTRATION FEE
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TITLE
OF EACH CLASS OF
SECURITIES
TO BE REGISTERED
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AMOUNT
TO BE
REGISTERED(1)(2)
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PROPOSED
MAXIMUM
OFFERING
PRICE
PER
UNIT
(4)
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PROPOSED
MAXIMUM
AGGREGATE
OFFERING
PRICE(1)(2)(3)
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AMOUNT
OF
REGISTRA-
TION
FEE(2)
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Common
stock, par value $1.00 per share
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Preferred
stock, par value $1.00 per share
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Depositary
shares representing preferred stock(5)
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Debt
securities
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Debt
warrants(6)
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Total
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$1,500,000,000
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(4)
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(1)(2)(3)
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(2)
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(1) An
indeterminate aggregate initial offering price or number of the common stock,
preferred stock, depositary shares, debt securities and debt warrants is being
registered as may from time to time be issued at indeterminate prices in an
aggregate amount not to exceed $1,500,000,000 or the equivalent of that amount
in one or more other currencies, currency units or composite
currencies.
(2) A
filing fee of $121,350 was previously paid for the $1,500,000,000 aggregate
initial offering price of securities registered under Registration Statement
Nos. 333-110673 and 33-62779. Pursuant to Rule 415(a)(6) under the
Securities Act, the associated filing fee of $121,350 will be applied to the
unsold $1,500,000,000 aggregate initial offering price of common stock,
preferred stock, depositary shares representing preferred stock, debt securities
and debt warrants of Alexander’s, Inc. registered under Registration Statement
Nos. 333-110673 and 33-62779 and the offering of such unsold securities will be
deemed terminated as of the date of effectiveness of this Registration
Statement.
(3) Estimated
for the sole purpose of computing the registration fee in accordance with
Rule 457(o) under the Securities Act. Separate consideration may
not be received for registered securities that are issuable on conversion or
exchange of other securities or represented by depositary shares.
(4) Omitted
in accordance with General Instruction II.D of Form S-3 under the
Securities Act.
(5) Each
depositary share will be issued under a deposit agreement, will represent an
interest in a fractional preferred share and will be evidenced by a depositary
receipt.
(6) Debt
warrants may be sold separately or with other securities.
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
NEITHER AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO
BUY THESE SECURITIES IN ANY STATE IN WHICH THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT
TO COMPLETION, DATED NOVEMBER 26, 2008
PROSPECTUS
$1,500,000,000
COMMON
STOCK
PREFERRED
STOCK
DEPOSITARY
SHARES
DEBT
SECURITIES
DEBT
WARRANTS
We may,
from time to time, offer to sell common stock, preferred stock, debt securities
and debt warrants. The preferred stock may either be sold separately
or represented by depositary shares. The debt securities may be
exchangeable for our common or preferred stock and the preferred stock may be
convertible into common stock or into preferred stock of another
series. The debt warrants will be to purchase debt
securities. The total amount of common stock, preferred stock,
depositary shares, debt securities and debt warrants offered under this
prospectus will have an initial aggregate offering price of up to $1,500,000,000
or the equivalent amount in other currencies, currency units or composite
currencies. The securities may be offered separately or together and
in one or more separate series.
We may
offer and sell these securities to or through one or more underwriters, dealers
and agents or directly to purchasers, on a continuous or delayed
basis.
We will
provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the supplements
carefully before you invest.
Our
common stock is listed on the New York Stock Exchange under the symbol
“ALX.”
Investing
in our securities involves risks that are described in the “Risk Factors”
section of our periodic reports filed with the Securities and Exchange
Commission or in the applicable prospectus supplement.
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. Any representation to the contrary is a
criminal offense.
________________
Prospectus
dated November 26, 2008
In this
prospectus, “Alexander’s,” “we,” “our” or “us” refers to Alexander’s, Inc. and
its consolidated subsidiaries, unless the context requires
otherwise.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the Securities and Exchange Commission (the “SEC”). You may read
and copy any document we file at the SEC’s public reference room at 100 F
Street, N.E., Washington, DC 20549. Please call the SEC at
1-800-SEC-0330 for further information on its public reference
room. Our SEC filings are also available to the public through the
SEC’s web site at http://www.sec.gov. Our common shares are listed on
the New York Stock Exchange, and information about us is also available
there.
This
prospectus is a part of a registration statement that we filed with the SEC. The
SEC allows us to “incorporate by reference” the information that we file with
it, which means that we can disclose important information to you by referring
you to other documents that we identify as part of this
prospectus. Any information referred to in this way is considered
part of this prospectus from the date we file that document. Our
subsequent filings of similar documents with the SEC will automatically update
and supercede this information. We incorporate by reference the
documents listed below and any future filings we make with the SEC under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
(1) after the date of the filing of this registration statement and before
its effectiveness and (2) until our offering of securities has been
completed.
We
incorporate by reference into this prospectus the documents listed below or
information filed with
the
SEC:
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Annual
Report on Form 10-K for the fiscal year ended December 31,
2007.
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Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2008,
June 30, 2008 and September 30,
2008.
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You may
obtain a copy of these filings, at no cost, by writing to or telephoning us at
the following address: Alexander’s, Inc., 888 Seventh Avenue, New
York, NY 10019, Attention: Corporate Secretary.
Telephone (212) 894-7000.
You
should rely only on the information incorporated by reference or provided in
this prospectus or any supplement. We have not authorized anyone else
to provide you with different information. This prospectus is an
offer to sell or buy only the securities described in this document, but only
under circumstances and in jurisdictions where it is lawful to do
so. The information contained in this prospectus is current only as
of the date of this prospectus.
FORWARD-LOOKING
STATEMENTS
Certain
statements contained in this prospectus or the accompanying prospectus
supplement, including the documents incorporated by reference, constitute
forward-looking statements as such term is defined in Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended. Forward-looking statements are not guarantees of future
performance. They involve risks, uncertainties and assumptions. Our future
results, financial condition, results of operations and business may differ
materially from those expressed in these forward-looking statements. You can
find many of these statements by looking for words such as “approximates,”
“believes,” “expects,” “anticipates,” “estimates,” “intends,” “plans,” “would,”
“may” or other similar expressions. We also note the following forward-looking
statements: in the case of our development projects, the estimated completion
date, estimated project costs and costs to complete.
These
forward-looking statements represent our intentions, plans, expectations and
beliefs and are subject to numerous assumptions, risks and uncertainties. Many
of the factors that will determine these items are beyond our ability to control
or predict.
These
factors include those listed under the caption “Risk Factors” in the applicable
prospectus supplement and in our periodic reports filed with the SEC, as well as
the following:
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national,
regional and local economic
conditions,
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consequences
of any armed conflict involving, or terrorist attack against, the United
States,
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our
ability to secure adequate
insurance,
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local
conditions, such as an oversupply of space or a reduction in demand for
real estate in the area,
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competition
from other available space,
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whether
tenants and other users such as customers and shoppers consider a property
attractive,
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the
financial condition of our tenants, including the extent of tenant
bankruptcies or defaults,
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whether
we are able to pass some or all of any increased operating costs through
to tenants,
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how
well we manage our properties,
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fluctuations
in interest rates,
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changes
in real estate taxes and other
expenses,
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changes
in market rental rates,
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the
timing and costs associated with property improvements and
rentals,
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changes
in taxation or zoning laws,
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government
regulation,
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availability
of financing on acceptable terms or at
all,
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potential
liability under environmental or other laws or regulations,
and
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general
competitive factors.
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For these
statements, we claim the protection of the safe harbor for forward-looking
statements contained in the Private Securities Litigation Reform Act of 1995.
You are cautioned not to place undue reliance on the
forward-looking
statements, which speak only as of the date of this prospectus or the date of
the applicable prospectus supplement or any document incorporated by reference.
All subsequent written and oral forward-looking statements attributable to us or
any person acting on our behalf are expressly qualified in their entirety by the
cautionary statements contained or referred to in this section. We do not
undertake any obligation to release publicly, any revisions to our
forward-looking statements to reflect events or circumstances after the date of
this prospectus.
ALEXANDER’S,
INC.
Alexander’s,
Inc. is a real estate investment trust incorporated in Delaware and engaged in
leasing, managing, developing and redeveloping its properties. Alexander’s is
managed by, and its properties are leased and developed by, Vornado Realty
Trust.
Alexander’s
has seven properties in the greater New York City metropolitan area consisting
of:
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Operating
properties
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the
731 Lexington Avenue property, a 1,307,000 square foot multi-use building
which comprises the entire square block bounded by Lexington Avenue, East
59th Street, Third Avenue and East 58th Street in Manhattan, New York. The
building contains 885,000 and 174,000 of net rentable square feet of
office and retail space, respectively, which we own, and 248,000 square
feet of residential space consisting of 105 condominium units, which we
sold. The building is 100% leased. Principal office tenants include
Bloomberg L.P. (697,000 square feet) and Citibank N.A. (176,000 square
feet). Principal retail tenants include The Home Depot (83,000 square
feet), The Container Store (34,000 square feet) and Hennes & Mauritz
(27,000 square feet);
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the
Kings Plaza Regional Shopping Center, located on Flatbush Avenue in
Brooklyn, New York, which contains 1,098,000 square feet that is 94%
leased and is comprised of a two-level mall containing 470,000 square
feet, a 289,000 square foot Sears department store and a 339,000 square
foot Macy’s department store, which is owned by Macy’s,
Inc.;
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the
Rego Park I property, located on Queens Boulevard and 63rd Road in Queens,
New York, which contains 351,000 square feet and is 100% leased to Sears,
Circuit City, Bed Bath & Beyond, Marshalls and Old
Navy;
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the
Paramus property, which consists of 30.3 acres of land located at the
intersection of Routes 4 and 17 in Paramus, New Jersey, which is leased to
IKEA Property, Inc.;
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the
Flushing property, located at Roosevelt Avenue and Main Street in Queens,
New York, which contains a 177,000 square foot building that is currently
vacant;
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Property under
development
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the
Rego Park II property, containing approximately 6.6 acres of land adjacent
to our Rego Park I property in Queens, New York, which comprises the
entire square block bounded by the Horace Harding Service Road (of the
Long Island Expressway), 97th Street, 62nd Drive and Junction Boulevard.
The development at Rego Park II consists of a 600,000 square foot shopping
center on four levels and a parking deck containing approximately 1,400
spaces. Construction has commenced, is expected to be completed in 2009
and estimated to cost approximately $410,000,000, of which $263,000,000
has been expended as of September 30, 2008. The development may also
include an apartment tower containing 315
apartments.
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On
December 21, 2007, we obtained a construction loan providing up to
$350,000,000 to finance the construction of the shopping center. The loan
has an interest rate of LIBOR plus 1.20% (3.68% at September 30, 2008),
and a term of three years with a one-year extension option. The shopping
center will be anchored by a 134,000 square foot Century 21 department
store, a 138,000 square foot Home Depot and 132,000 square foot
Kohl’s.
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There
can be no assurance that this project will be completed, completed on
time, or completed for the budgeted amount;
and
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the
Rego Park III property, containing approximately 3.4 acres of land
adjacent to our Rego Park II property in Queens, New York, which comprises
a one-quarter square block at the intersection of Junction Boulevard and
the Horace Harding Service Road.
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RATIOS
OF EARNINGS TO FIXED CHARGES
Our
consolidated ratios of earnings to fixed charges for each of the fiscal years
ended December 31, 2003, 2004, 2005, 2006 and 2007 and the nine-month
periods ended September 30, 2007 and 2008 are as follows:
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YEAR
ENDED DECEMBER 31,
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NINE
MONTHS
ENDED
SEPTEMBER
30,
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| 2003 | 2004 |
2005
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2006
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2007 | 2007 | 2008 | ||||||||||||||||||||||
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Ratio
of earnings to fixed charges
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-- | -- | 1.21 | -- | 2.56 | 2.47 | 1.29 | |||||||||||||||||||||
| Deficiency in earnings available to cover fixed charges | $ | (56, 464 | ) | $ | (62,418 | ) | -- | $ | (89,617 | ) | -- | -- | -- | |||||||||||||||
For
purposes of calculating these ratios, (a) earnings represent pretax income
from continuing operations plus fixed charges less capitalized interest, and
(b) fixed charges represent interest expense from continuing operations,
including amortization of deferred debt issuance costs, plus the portion of
operating lease rental expense that management considers representative of the
interest factor (one-third of operating lease rentals) plus capitalized
interest. There were no preference securities outstanding during the
periods shown. The calculation of the ratios and the deficiencies in
earnings available to cover fixed charges is included as Exhibit 12 to this
registration statement.
USE
OF PROCEEDS
Except as
may be described otherwise in a prospectus supplement, we expect to use the net
proceeds from the sale of the securities offered by this prospectus for general
corporate purposes, which may include redevelopment of our properties and the
repayment of our outstanding indebtedness.
DESCRIPTION
OF DEBT SECURITIES
Please
note that in this section references to “Alexander’s,” “we,” “our” and “us”
refer to Alexander’s, Inc. and its consolidated subsidiaries unless the context
requires otherwise. Also, in this section, references to “holders”
mean those who own debt securities registered in their own names, on the books
that we or the trustee maintain for this purpose, and not those who own
beneficial interests in debt securities registered in street name or in debt
securities issued in book-entry form through one or more
depositaries. Owners of beneficial interests in the debt securities
should see “Legal Ownership and Book-Entry Issuance” for more
information.
DEBT
SECURITIES MAY BE SENIOR OR SUBORDINATED
We may
issue senior or subordinated debt securities. Neither the senior debt
securities nor the subordinated debt securities will be secured by any of our
property or assets. Thus, by owning a debt security, you are an
unsecured creditor of ours.
The
senior debt securities will be issued under our senior debt indenture described
below and will rank equally with all of our other unsecured and unsubordinated
debt.
The
subordinated debt securities will be issued under our subordinated debt
indenture described below and will be subordinate in right of payment to all of
our “senior indebtedness,” as defined in the subordinated debt
indenture. The prospectus supplement for any series of subordinated
debt securities or the information incorporated in this prospectus by reference
will indicate the approximate amount of senior indebtedness outstanding as of
the end of our most recent fiscal quarter. We did not have any senior
indebtedness outstanding as of September 30, 2008. Neither indenture
limits our ability to incur additional senior indebtedness, unless otherwise
described in the prospectus supplement relating to any series of debt
securities. Our senior indebtedness is, and any additional senior
indebtedness will be, structurally subordinate to the indebtedness of our
subsidiaries.
When we
refer to “debt securities” in this prospectus, we mean both the senior debt
securities and the subordinated debt securities.
THE
SENIOR DEBT INDENTURE AND THE SUBORDINATED DEBT INDENTURE
The
senior debt securities and the subordinated debt securities are each governed by
a document called an indenture, the senior debt indenture, in the case of the
senior debt securities, and the subordinated debt indenture, in the case of the
subordinated debt securities. Each indenture is a contract between
Alexander’s, Inc. and The Bank of New York Mellon, which will initially act as
trustee. The indentures are substantially identical, except for the
provisions relating to subordination, which are included only in the
subordinated debt indenture.
The
trustee under each indenture has two main roles:
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First,
the trustee can enforce your rights against us if we
default. There are some limitations on the extent to which the
trustee acts on your behalf, which we describe later under “—Default,
Remedies and Waiver of Default.”
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Second,
the trustee performs administrative duties for us, such as sending
interest payments and notices.
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See “—Our
Relationship with the Trustee” below for more information about the
trustee.
When we
refer to the indenture or the trustee with respect to any debt securities, we
mean the indenture under which those debt securities are issued and the trustee
under that indenture.
WE
MAY ISSUE MANY SERIES OF DEBT SECURITIES
We may
issue as many distinct series of debt securities as we wish under either
indenture. This section of the prospectus summarizes terms of the
debt securities that apply generally to all series. The provisions of
each indenture allow us not only to issue debt securities with terms different
from those of debt securities previously issued under that indenture, but also
to “reopen” a previous issue of a series of debt securities and issue additional
debt securities of that series. We will describe most of the
financial and other specific terms of a series, whether it is
a series
of the senior debt securities or subordinated debt securities, in the prospectus
supplement accompanying this prospectus. If there are any differences
between your prospectus supplement and this prospectus, your prospectus
supplement will control. Thus, the statements we make in this section
may not apply to your debt security.
When we
refer to a series of debt securities, we mean a series issued under the
applicable indenture. When we refer to your prospectus supplement, we
mean the prospectus supplement describing the specific terms of the debt
security you purchase. The terms used in your prospectus supplement
have the meanings described in this prospectus, unless otherwise
specified.
AMOUNTS
THAT WE MAY ISSUE
Neither
indenture limits the aggregate amount of debt securities that we may issue or
the number of series or the aggregate amount of any particular
series. We may issue debt securities and other securities in amounts
that exceed the total amount specified on the cover of this prospectus up to the
aggregate amount authorized by our board of directors for each series, at any
time without your consent and without notifying you.
The
indentures and the debt securities do not limit our ability to incur other
indebtedness or to issue other securities, unless otherwise described in the
prospectus supplement relating to any series of debt
securities. Also, we are not subject to financial or similar
restrictions by the terms of the debt securities, unless otherwise described in
the prospectus supplement relating to any series of debt
securities.
PRINCIPAL
AMOUNT, STATED MATURITY AND MATURITY
The
principal amount of a debt security means the principal amount payable at its
stated maturity, unless that amount is not determinable, in which case the
principal amount of a debt security is its face amount. Any debt
securities owned by us or any of our affiliates are not deemed to be outstanding
for certain determinations under the indenture.
The term
“stated maturity” with respect to any debt security means the date on which the
principal amount of the debt security is scheduled to become due. The
principal may become due sooner, by reason of redemption or acceleration after a
default or otherwise in accordance with the terms of the debt
security. The date on which the principal actually becomes due,
whether at the stated maturity or earlier, is called the “maturity” of the
principal.
We also
use the terms “stated maturity” and “maturity” to refer to the dates when other
payments become due. For example, we refer to a regular interest
payment date when an installment of interest is scheduled to become due as the
“stated maturity” of that installment.
When we
refer to the “stated maturity” or the “maturity” of a debt security without
specifying a particular payment, we mean the stated maturity or maturity, as the
case may be, of the principal.
OUR
DEBT SECURITIES ARE STRUCTURALLY SUBORDINATED TO THE INDEBTEDNESS OF OUR
SUBSIDIARIES
Because
our assets consist principally of interests in the subsidiaries through which we
own our properties and conduct our businesses, our right to participate as an
equity holder in any distribution of assets of any of our subsidiaries upon the
subsidiary’s liquidation or otherwise, and thus the ability of our security
holders to benefit from the distribution, is junior to creditors of the
subsidiary, except to the extent that any claims we may have as a creditor of
the subsidiary may be recognized. We may also guarantee some obligations of our
subsidiaries. Any liability we may have for our subsidiaries’
obligations could reduce our assets that are available to satisfy our direct
creditors, including investors in our debt securities.
THIS
SECTION IS ONLY A SUMMARY
The
indentures and their associated documents, including your debt security, contain
the full legal text of the matters described in this section and your prospectus
supplement. We have filed forms of the indentures as exhibits to our
registration statement of which this prospectus is a part. See
“Available Information” for information on how to obtain copies of
them.
This
section and your prospectus supplement summarize all the material terms of the
indentures and your debt security. They do not, however, describe
every aspect of the indentures and your debt security. For example,
in this section and your prospectus supplement, we use terms that have been
given special meaning in the indentures, but we describe the meaning for only
the more important of those terms.
GOVERNING
LAW
The
indentures and the debt securities will be governed by New York
law.
CURRENCY
OF DEBT SECURITIES
Amounts
that become due and payable on a debt security in cash will be payable in a
currency, currencies or currency units specified in the accompanying prospectus
supplement. We refer to this currency, currencies or currency units
as the “specified currency.” The specified currency for a debt
security will be U.S. dollars, unless your prospectus supplement states
otherwise. Some debt securities may have different specified
currencies for principal and interest. You will have to pay for your
debt securities by delivering the requisite amount of the specified currency for
the principal to us or the underwriters, agents or dealers that we name in the
applicable prospectus supplement, unless other arrangements have been made
between you and us or you and such firm. We will make payments on a
debt security in the specified currency, except as described below in “—Payment
Mechanics for Debt Securities.”
FORM
OF DEBT SECURITIES
We will
issue each debt security in global, i.e., book-entry form only, unless we
specify otherwise in the applicable prospectus supplement. Debt
securities in book-entry form will be represented by a global security
registered in the name of a depositary, which will be the holder of all the debt
securities represented by that global security. Those who own
beneficial interests in a global debt security will do so through participants
in the depositary’s securities clearance system, and the rights of these
indirect owners will be governed solely by the applicable procedures of the
depositary and its participants. We describe book-entry securities
below under “— Legal Ownership and Book-Entry Issuance.”
In
addition, we will issue each debt security in fully registered form, without
coupons.
TYPES
OF DEBT SECURITIES
We may
issue any of the following types of senior debt securities or subordinated debt
securities:
Fixed
Rate Debt Securities
A debt
security of this type will bear interest at a fixed rate described in the
applicable prospectus supplement. This type includes zero coupon debt
securities, which bear no interest and are instead issued at a price usually
significantly lower than the principal amount. See “—Original Issue
Discount Debt Securities” below for more information about zero coupon and other
original issue discount debt securities.
Each
fixed rate debt security, except any zero coupon debt security, will bear
interest from its original issue date or from the most recent date to which
interest on the debt security has been paid or made available for
payment. Interest will accrue on the principal of a fixed rate debt
security at the fixed yearly rate stated in the applicable prospectus
supplement, until the principal is paid or made available for payment or the
debt security is exchanged. Each payment of interest due on an
interest payment date or the date of maturity will include interest accrued from
and including the last date to which interest has been paid, or made available
for payment, or from the issue date if none has been paid, or made available for
payment, to but excluding the interest payment date or the date of
maturity. We
will compute interest on fixed rate debt securities on the basis of a 360-day
year of twelve 30-day months. We will pay interest on each interest
payment date and at maturity as described below under “—Payment Mechanics for
Debt Securities.”
Floating
Rate Debt Securities
A debt
security of this type will bear interest at rates that are determined by
reference to an interest rate formula. In some cases, the rates also
may be adjusted by adding or subtracting a spread or multiplying by a spread
multiplier and may be subject to a minimum rate or a maximum rate. If
a debt security is a floating rate debt security, the formula and any
adjustments that apply to the interest rate will be specified in the applicable
prospectus supplement.
Each
floating rate debt security will bear interest from its original issue date or
from the most recent date to which interest on the debt security has been paid
or made available for payment. Interest will accrue on the principal
of a floating rate debt security at the yearly rate determined according to the
interest rate formula stated in the applicable prospectus supplement, until the
principal is paid or made available for payment or the security is
exchanged. We will pay interest on each interest payment date and at
maturity as described below under “—Payment Mechanics for Debt
Securities.”
Calculation of
Interest
. Calculations relating to floating rate debt
securities will be made by the calculation agent, an institution that we appoint
as our agent for this purpose. The prospectus supplement for a
particular floating rate debt security will name the institution that we have
appointed to act as the calculation agent for that debt security as of its
original issue date. We may appoint a different institution to serve
as calculation agent from time to time after the original issue date of the debt
security without your consent and without notifying you of the
change.
For each
floating rate debt security, the calculation agent will determine, on the
corresponding interest calculation or determination date, as described in the
applicable prospectus supplement, the interest rate that takes effect on each
interest reset date. In addition, the calculation agent will
calculate the amount of interest that has accrued during each interest period,
i.e., the period from and including the original issue date, or the last date to
which interest has been paid or made available for payment, to but excluding the
payment date. For each interest period, the calculation agent will
calculate the amount of accrued interest by multiplying the face or other
specified amount of the floating rate debt security by an accrued interest
factor for the interest period. This factor will equal the sum of the
interest factors calculated for each day during the interest
period. The interest factor for each day will be expressed as a
decimal and will be calculated by dividing the interest rate, also expressed as
a decimal, applicable to that day by 360 or by the actual number of days in the
year, as specified in the applicable prospectus supplement.
Upon the
request of the holder of any floating rate debt security, the calculation agent
will provide for that debt security the interest rate then in effect and, if
determined, the interest rate that will become effective on the next interest
reset date. The calculation agent’s determination of any interest
rate, and its calculation of the amount of interest for any interest period,
will be final and binding in the absence of manifest error.
All
percentages resulting from any calculation relating to a debt security will be
rounded upward or downward, as appropriate, to the next higher or lower one
hundred-thousandth of a percentage point, e.g., 9.876541% (or .09876541) being
rounded down to 9.87654% (or .0987654) and 9.876545% (or .09876545) being
rounded up to 9.87655% (or .0987655). All amounts used in or
resulting from any calculation relating to a floating rate debt security will be
rounded upward or downward, as appropriate, to the nearest cent, in the case of
U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case
of a currency other than U.S. dollars, with one-half cent or one-half of a
corresponding hundredth of a unit or more being rounded upward.
In
determining the base rate that applies to a floating rate debt security during a
particular interest period, the calculation agent may obtain rate quotes from
various banks or dealers active in the relevant market, as described in the
applicable prospectus supplement. Those reference banks and dealers
may include the calculation agent itself and its affiliates, as well as any
underwriter, dealer or agent participating in the distribution of the relevant
floating rate debt securities and its affiliates.
Indexed
Debt Securities
A debt
security of this type provides that the principal amount payable at its
maturity, and the amount of interest payable on an interest payment date, will
be determined by reference to:
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securities
of one or more issuers,
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one
or more currencies,
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one
or more commodities,
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any
other financial, economic or other measure or instrument, including the
occurrence or nonoccurrence of any event or circumstance,
or
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one
or more indices or baskets of the items described
above.
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If you
are a holder of an indexed debt security, you may receive an amount at maturity
that is greater than or less than the face amount of your debt security
depending upon the value of the applicable index at maturity. The
value of the applicable index will fluctuate over time.
If you
purchase an indexed debt security, your prospectus supplement will include
information about the relevant index and about how amounts that are to become
payable will be determined by reference to the price or value of that
index. The prospectus supplement will also identify the calculation
agent that will calculate the amounts payable with respect to the indexed debt
security and may exercise significant discretion in doing so.
Original
Issue Discount Debt Securities
A fixed
rate debt security, a floating rate debt security or an indexed debt security
may be an original issue discount debt security. A debt security of
this type is issued at a price lower than its principal amount and provides
that, upon redemption or acceleration of its maturity, an amount less than its
principal amount will be payable. An original issue discount debt
security may be a zero coupon debt security. A debt security issued
at a discount to its principal amount may, for Federal income tax purposes, be
considered an original issue discount debt security, regardless of the amount
payable upon redemption or acceleration of maturity. The Federal
income tax consequences of owning an original issue discount debt security may
be described in the applicable prospectus supplement.
INFORMATION
IN THE PROSPECTUS SUPPLEMENT
A
prospectus supplement will describe the specific terms of a particular series of
debt securities, which will include some or all of the following:
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the
title of the debt securities,
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whether
they are senior debt securities or subordinated debt
securities,
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any
limit on the aggregate principal amount of the debt securities of the same
series,
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the
person to whom any interest on a debt security of the series will be
payable, if other than the person in whose name the debt security is
registered at the close of business on the regular record
date,
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the
stated maturity,
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the
specified currency, currencies or currency units for principal and
interest, if not U.S. dollars,
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the
price at which we originally issue the debt securities, expressed as a
percentage of the principal amount, and the original issue
date,
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whether
the debt securities are fixed rate debt securities, floating rate debt
securities or indexed debt
securities,
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if
the debt securities are fixed rate debt securities, the yearly rate at
which the debt securities will bear interest, if any, and the interest
payment dates,
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the
regular record date for any interest payable on any interest payment
date,
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the
place or places where the principal of, premium, if any, and interest on
the debt securities will be
payable,
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the
denominations in which the debt securities will be issuable, if other than
denominations of $1,000 and any integral multiple of
$1,000,
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if
the debt securities are floating rate debt securities, the interest rate
basis, any applicable index currency or maturity, spread or spread
multiplier or initial, maximum or minimum rate, the interest reset,
determination, calculation and payment dates, the day count used to
calculate interest payments for any period, and the calculation
agent,
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any
index or formula used to determine the amount of payments of principal of
and any premium and interest on the debt
securities,
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if
the debt securities may be exchanged for shares of our common or preferred
stock or any securities of another person, the terms on which exchange may
occur, including whether exchange is mandatory, at the option of the
holder or at our option,
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if
the debt securities are original issue discount debt securities, the yield
to maturity,
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if
other than the principal amount, the portion of the principal amount of
the debt securities of the series which will be payable upon acceleration
of the maturity of the debt
securities,
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if
applicable, the circumstances under which the debt securities may be
mandatorily redeemed by us, redeemed at our option or repaid at the
holder’s option before the stated maturity, including any redemption
commencement date, repayment date(s), redemption price(s) and redemption
period(s),
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if
the principal amount of the debt securities which will be payable at the
maturity of the debt securities will not be determinable as of any date
before maturity, the amount which will be deemed to be the outstanding
principal amount of the debt
securities,
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the
applicability of any provisions described under “—Defeasance and Covenant
Defeasance,”
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the
depositary for the debt securities, if other than the Depository Trust
Company, known as DTC, and any circumstances under which the holder may
request securities in non-global
form,
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the
applicability of any provisions described under “—Default, Remedies and
Waiver of Default,”
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any
additional covenants applicable to the debt securities and any elimination
of or modification to the covenants described under
“—Covenants,”
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the
names and duties of any co-trustees, depositaries, authenticating agents,
paying agents, transfer agents or registrars for the debt
securities,
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the
Federal income tax consequences to holders of fixed rate debt securities
that are zero coupon or original issue discount debt securities, floating
rate debt securities or indexed debt securities,
and
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any
other terms of the debt securities, which could be different from those
described in this prospectus.
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REDEMPTION AND REPAYMENT
Unless
otherwise indicated in the applicable prospectus supplement, a debt security
will not be entitled to the benefit of any sinking fund. That is, we
will not deposit money on a regular basis into any separate custodial account to
repay the debt securities. In addition, we will not be entitled to
redeem a debt security before its stated maturity unless the applicable
prospectus supplement specifies a redemption commencement date. You
will not be entitled to require us to buy a debt security from you before its
stated maturity unless your prospectus supplement specifies one or more
repayment dates.
If your
applicable prospectus supplement specifies a redemption commencement date or a
repayment date, it also will specify one or more redemption prices or repayment
prices, which may be expressed as a percentage of the principal amount of the
debt security. It also may specify one or more redemption periods
during which the redemption prices relating to a redemption of debt securities
during those periods will apply.
If we
redeem less than all the debt securities of any series, we will, at least 60
days before the redemption date set by us or any shorter period that is
satisfactory to the trustee, notify the trustee of the redemption date, of the
principal amount of debt securities to be redeemed and, if applicable, of the
tenor of the debt securities to be redeemed. The trustee will select
from the outstanding securities of the series the particular debt securities to
be redeemed not more than 60 days before the redemption date. This
procedure will not apply to any redemption of a single debt
security.
If your
prospectus supplement specifies a redemption commencement date, the debt
security will be redeemable at our option at any time on or after that date or
at a specified time or times. If we redeem the debt security, we will
do so at the specified redemption price, together with interest accrued to the
redemption date. If different prices are specified for different
redemption periods, the price we pay will be the price that applies to the
redemption period during which the debt security is redeemed.
If your
prospectus supplement specifies a repayment date, the debt security will be
repayable at the holder’s option on the specified repayment date at the
specified repayment price, together with interest accrued to the repayment
date.
If we
exercise an option to redeem any debt security, we will give to the holder
written notice of the principal amount of the debt security to be redeemed, not
less than 30 days nor more than 60 days before the applicable redemption
date. We will give the notice in the manner described below in
“—Notices.”
If a debt
security represented by a global debt security is subject to repayment at the
holder’s option, the depositary or its nominee, as the holder, will be the only
person that can exercise the right to repayment. Any indirect owners
who own beneficial interests in the global debt security and wish to exercise a
repayment right must give proper and timely instructions to their banks or
brokers through which they hold their interests, requesting that they notify the
depositary to exercise the repayment right on their behalf. Different
firms have different deadlines for accepting instructions from their customers,
and you should take care to act promptly enough to ensure that your request is
given effect by the depositary before the applicable deadline for
exercise. Street name and other indirect owners should contact their
banks or brokers for information about how to exercise a repayment right in a
timely manner.
We or our
affiliates may purchase debt securities from investors who are willing to sell
from time to time, either in the open market at prevailing prices or in private
transactions at negotiated prices. Debt securities that we or they
purchase may, at our discretion, be held, resold or cancelled.
MERGERS
AND SIMILAR TRANSACTIONS
We
generally are permitted to merge or consolidate with another
entity. We also are permitted to sell our assets substantially as an
entirety to another entity. With regard to any series of debt
securities, however, unless otherwise indicated in the applicable prospectus
supplement, we may not take any of these actions unless all the following
conditions are met:
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if
the successor entity in the transaction is not Alexander’s, Inc., the
successor entity must be a corporation, partnership or trust organized
under the laws of the United States, any state in the United States or the
District of Columbia and must expressly assume all of our obligations
under the debt securities of that series and the indenture with respect to
that series,
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immediately
after giving effect to the transaction, no default under the debt
securities of that series has occurred and is continuing. For
this purpose, “default under the debt securities of that series” means an
event of default with respect to that series or any event that would be an
event of default with respect to that series if the notice requirements
and the required existence of the default for a specific period of time
were disregarded. We describe these matters below under
“—Default, Remedies and Waiver of
Default,”
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we
or any successor entity, as the case may be, must take such steps as will
be necessary to secure the debt securities of that series equally and
ratably with or senior to all new indebtedness if, as a result of the
transaction, our properties or assets would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be
permitted by the applicable indenture,
and
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we
have delivered to the trustee an officers’ certificate and opinion of
counsel, each stating that the transaction complies in all respects with
the indenture.
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If the
conditions described above are satisfied with respect to the debt securities of
any series, we will not need to obtain the approval of the holders of those debt
securities in order to merge or consolidate or to sell our
assets. Also, these conditions will apply only if we wish to merge or
consolidate with another entity or sell our assets substantially as an entirety
to another entity. We will not need to satisfy these conditions if we
enter into other types of transactions, including any transaction in which we
acquire the stock or assets of another entity, any transaction that involves a
change of control of Alexander’s, Inc. but in which we do not merge or
consolidate and any transaction in which we sell less than substantially all our
assets.
SUBORDINATION
PROVISIONS
Holders
of subordinated debt securities should recognize that contractual provisions in
the subordinated debt indenture may prohibit us from making payments on those
securities. Subordinated debt securities are subordinate and junior
in right of payment, to the extent and in the manner stated in the subordinated
debt indenture, to all of our senior debt, as defined in the subordinated debt
indenture, including all debt securities we have issued and will issue under the
senior debt indenture.
The
subordinated debt indenture defines “senior debt” as the principal of and
premium, if any, and interest on all our indebtedness other than the
subordinated debt securities, whether outstanding on the date of the indenture
or thereafter created, incurred or assumed, which is (a) for money
borrowed, (b) evidenced by a note or similar instrument given in connection
with the acquisition of any businesses, properties or assets of any kind or
(c) obligations of Alexander’s, Inc. as lessee under leases required to be
capitalized on the balance sheet of the lessee under accounting principles
generally accepted in the United States of America or leases of property or
assets made as part of any sale and lease-back transaction to which we are a
party. For the purpose of this definition, “interest” includes interest accruing
on or after the filing of any petition in bankruptcy or for reorganization
relating to Alexander’s to the extent that the claim for post-petition interest
is allowed in the proceeding. Also for the purpose of this
definition, “indebtedness of Alexander’s, Inc.” includes indebtedness of others
guaranteed by us and amendments, renewals, extensions, modifications and
refundings of any indebtedness or obligation of the kinds described in the first
sentence of this paragraph. However, “indebtedness of Alexander’s,
Inc.” for the purpose of this definition, does not include any indebtedness or
obligation if the instrument creating or evidencing the indebtedness or
obligation, or under which the indebtedness or obligation is outstanding,
provides that the indebtedness or obligation is not superior in right of payment
to the subordinated debt securities.
The
subordinated debt indenture provides that, unless all principal of and any
premium or interest on the senior debt has been paid in full, no payment or
other distribution may be made in respect of any subordinated debt securities in
the following circumstances:
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in
the event of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceeding
involving us or our assets,
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in
the event of any liquidation, dissolution or other winding-up of our
affairs, whether voluntary or involuntary, and whether or not involving
insolvency or bankruptcy,
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in
the event of any assignment for the benefit of creditors or any other
marshalling of our assets and
liabilities,
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if
any of our subordinated debt securities have been declared due and payable
before their stated maturity, or
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(a) in
the event and during the continuation of any default in the payment of
principal, premium or interest on any senior debt beyond any applicable
grace period or if any event of default with respect to any of our senior
debt has occurred and is continuing, permitting the holders of that senior
debt or a trustee to accelerate the maturity of that senior debt, unless
the event of default has been cured or waived or ceased to exist and any
related acceleration has been rescinded, or (b) if any judicial
proceeding is pending with respect to a payment default or an event of
default described in (a).
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If the
trustee under the subordinated debt indenture or any holders of the subordinated
debt securities receive any payment or distribution that they know is prohibited
under the subordination provisions, then the trustee or the holders will have to
repay that money to the holders of the senior debt.
Even if
the subordination provisions prevent us from making any payment when due on the
subordinated debt securities of any series, we will be in default on our
obligations under that series if we do not make the payment when
due. This means that the trustee under the subordinated debt
indenture and the holders of that series can take action against us, but they
will not receive any money until the claims of the holders of senior debt have
been fully satisfied.
COVENANTS
The
following covenants apply to us with respect to the debt securities of each
series unless otherwise specified in the applicable prospectus
supplement.
Maintenance of
Properties
. We must maintain all properties used in our
business in good condition. However, we may discontinue the
maintenance or operation of any of our properties if in our judgment,
discontinuance is desirable in the conduct of our business and is not
disadvantageous in any material respect to the holders of debt
securities.
Existence
. Except
as described under “—Mergers and Similar Transactions,” we must do or cause to
be done all things necessary to preserve and keep in full force and effect our
existence, rights and franchises. However, we are not required to
preserve any right or franchise if our board of directors determines that the
preservation of the right or franchise is no longer desirable in the conduct of
our business and that the loss of the right or franchise is not disadvantageous
in any material respect to the holders of the debt securities.
Payment of Taxes and Other
Claims
. We are required to pay or discharge or cause to be
paid or discharged (a) all taxes, assessments and governmental charges
levied or imposed upon us or any subsidiary or upon our income, profits or
property or the income, profits or property of any subsidiary and (b) 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 subsidiary. We
must pay these taxes and other claims before they become
delinquent. However, we are not required to pay or discharge or cause
to be paid or discharged any tax, assessment, and charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
DEFEASANCE
AND COVENANT DEFEASANCE
The
provisions for full defeasance and covenant defeasance described below apply to
each senior and subordinated debt security if so indicated in the applicable
prospectus supplement. In general, we expect these
provisions
to apply to each debt security that has a specified currency of U.S. dollars and
is not a floating rate or indexed debt security.
Full
Defeasance
. If there is a change in Federal income tax law, as
described below, we can legally release ourselves from all payment and other
obligations on any debt securities. This is called full
defeasance. For us to do so, each of the following must
occur:
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we
must deposit in trust for the benefit of all holders of those debt
securities money in an amount or a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on those
debt securities on their various due
dates,
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(a) no
event of default under the indenture may have occurred and be continuing
and (b) no event of default described in the sixth bullet point under
“—Default, Remedies and Waiver of Default—Events of Default” may have
occurred and be continuing at any time during the 90 days following the
deposit in trust,
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there
must be a change in current Federal income tax law or an IRS ruling that
lets us make the above deposit without causing the holders to be taxed on
those debt securities any differently than if we did not make the deposit
and just repaid those debt securities ourselves. Under current
Federal income tax law, the deposit and our legal release from your debt
security would be treated as though we took back your debt security and
gave you your share of the cash and notes or bonds deposited in
trust. In that event, you could recognize gain or loss on your
debt security, and
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we
must deliver to the trustee a legal opinion of our counsel confirming the
Federal income tax law change described
above.
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If we
ever fully defeased your debt security, you would have to rely solely on the
trust deposit for payments on your debt security. You would not be
able to look to us for payment if there was any shortfall.
Covenant
Defeasance
. Under current Federal income tax law, we can make
the same type of deposit described above and be released from the restrictive
covenants relating to your debt security listed in the bullets below and any
additional restrictive covenants that may be described in your prospectus
supplement. This is called covenant defeasance. In that
event, you would lose the protection of those restrictive
covenants. In order to achieve covenant defeasance for any debt
securities, we must take the same steps as are required for
defeasance.
If we
accomplish covenant defeasance with regard to your debt security, the following
provisions of the applicable indenture and your debt security would no longer
apply:
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the
requirement to secure the debt securities equally and ratably with all new
indebtedness in the event of a
consolidation,
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the
covenants regarding existence, maintenance of properties, payment of taxes
and other claims,
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any
additional covenants that your prospectus supplement states are applicable
to your debt security, and
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the
events of default resulting from a breach of covenants, described below in
the fourth, fifth and seventh bullet points under “—Default, Remedies and
Waiver of Default—Events of
Default.”
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If we
accomplish covenant defeasance on your debt security, we must still repay your
debt security if there is any shortfall in the trust deposit. You
should note, however, that if one of the remaining events of default occurred,
such as our bankruptcy, and your debt security became immediately due and
payable, there may be a shortfall. Depending on the event causing the
default, you may not be able to obtain payment of the
shortfall.
DEFAULT,
REMEDIES AND WAIVER OF DEFAULT
You will
have special rights if an event of default, with respect to your series of debt
securities, occurs and is continuing, as described in this
subsection.
Events of
Default
. Unless your prospectus supplement says otherwise,
when we refer to an event of default with respect to any series of debt
securities, we mean any of the following:
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we
do not pay interest on any debt security of that series within 30 days
after the due date,
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we
do not pay the principal or any premium of any debt security of that
series on the due date,
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we
do not deposit a sinking fund payment with regard to any debt security of
that series on the due date, but only if the payment is required under the
applicable prospectus supplement,
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we
remain in breach of any covenant we make in the indenture for the benefit
of the relevant series for 60 days after we receive a written notice of
default stating that we are in breach and requiring us to remedy the
breach. The notice must be sent by the trustee or the holders
of at least 10% in principal amount of the relevant series of debt
securities,
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we
do not pay an indebtedness of $50,000,000 or more in principal amount
outstanding when due after the expiration of any applicable grace period,
or we default on an indebtedness of this amount resulting in acceleration
of the indebtedness, in either case, within ten days after written notice
of the default is sent to us. The notice must be sent by the
trustee or the holders of at least 10% in principal amount of the relevant
series of debt securities,
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we
file for bankruptcy, or
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if
your prospectus supplement states that any additional event of default
applies to the series, that event of default
occurs.
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REMEDIES
IF AN EVENT OF DEFAULT OCCURS
If you
are the holder of a subordinated debt security, all the remedies available upon
the occurrence of an event of default under the subordinated debt indenture will
be subject to the restrictions on the subordinated debt securities described
above under “—Subordination Provisions.”
If an
event of default has occurred with respect to any series of debt securities and
has not been cured or waived, the trustee or the holders of not less than 25% in
principal amount of outstanding debt securities of that series may declare the
entire principal amount of the debt securities of that series to be due
immediately.
Each of
the situations described above is called an acceleration of the maturity of the
affected series of debt securities. If the maturity of any series is
accelerated, a judgment for payment has not yet been obtained, we pay or deposit
with the trustee an amount sufficient to pay all amounts due on the securities
of the series, and all events of default with respect to the series, other than
the nonpayment of the accelerated principal, have been cured or waived, then the
holders of a majority in principal amount of the outstanding debt securities of
that series may cancel the acceleration for the entire series.
If an
event of default occurs, the trustee will have special duties. In
that situation, the trustee will be obligated to use those of its rights and
powers under the relevant indenture, and to use the same degree of care and
skill in doing so, that a prudent person would use in that situation in
conducting his or her own affairs.
Except as
described in the prior paragraph, the trustee is not required to take any action
under the relevant indenture at the request of any holders unless the holders
offer the trustee reasonable protection from expenses and
liability. This is called an indemnity. If the trustee is
provided with an indemnity reasonably satisfactory to it, the holders of a
majority in principal amount of all debt securities of the relevant series may
direct the time, method and place of conducting any lawsuit or other formal
legal action seeking any remedy available to the trustee with
respect
to that
series. These majority holders may also direct the trustee in
performing any other action under the applicable indenture with respect to the
debt securities of that series.
Before
you bypass the trustee and bring your own lawsuit or other formal legal action
or take other steps to enforce your rights or protect your interests relating to
any debt security, all of the following must occur:
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the
holder of your debt security must give the trustee written notice of a
continuing event of default,
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the
holders of not less than 25% in principal amount of all debt securities of
your series must make a written request that the trustee take action
because of the default, and they or other holders must offer to the
trustee indemnity reasonably satisfactory to the trustee against the cost
and other liabilities of taking that
action,
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the
trustee must not have taken action for 60 days after the above steps have
been taken, and
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during
those 60 days, the holders of a majority in principal amount of the debt
securities of your series must not have given the trustee directions that
are inconsistent with the written request of the holders of not less than
25% in principal amount of the debt securities of your
series.
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You are
entitled at any time, however, to bring a lawsuit for the payment of money due
on your debt security on or after its due date.
Waiver of
Default
. The holders of not less than a majority in principal
amount of the outstanding debt securities of a series may waive a default for
all debt securities of that series. If this happens, the default will
be treated as if it has not occurred. No one can waive a payment
default on your debt security or a covenant or provision of the indenture that
cannot be modified or amended without the consent of the holder of each
outstanding debt security of the series, however, without the approval of the
particular holder of that debt security.
Book-entry
and other indirect owners should consult their banks or brokers for information
on how to give notice or direction to, or make a request of, the trustee and how
to declare or cancel an acceleration of the maturity. Book-entry and
other indirect owners are described below under “Legal Ownership and Book-Entry
Issuance.”
CHANGES
OF THE INDENTURES REQUIRING EACH HOLDER’S APPROVAL
There are
certain changes that cannot be made without the approval of each holder of a
debt security affected by the change under a particular
indenture. Here is a list of those types of changes:
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changes
to the stated maturity for any principal or interest payment on a debt
security,
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reduction
of the principal amount or the interest rate or the premium payable upon
the redemption of any debt
security,
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reduction
of the amount of principal of an original issue discount security or any
other debt security payable upon acceleration of its
maturity,
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changes
to the currency of any payment on a debt
security,
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changes
to the place of payment on a debt
security,
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impairment
of a holder’s right to sue for payment of any amount due on its debt
security,
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reduction
of the percentage in principal amount of the debt securities of any
series, the approval of whose holders is needed to change the applicable
indenture or those debt securities,
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reduction
of the percentage in principal amount of the debt securities of any
series, the consent of whose holders is needed to waive our compliance
with the applicable indenture or to waive defaults,
and
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changes
to the provisions of the applicable indenture dealing with modification
and waiver in any other respect, except to increase any required
percentage referred to above or to add to the provisions that cannot be
changed or waived without approval of the holder of each affected debt
security.
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MODIFICATION
OF SUBORDINATION PROVISIONS
We may
not amend the subordinated debt indenture to alter the subordination of any
outstanding subordinated debt securities without the written consent of each
holder of senior debt then outstanding who would be adversely
affected. In addition, we may not modify the subordination provisions
of the subordinated debt indenture in a manner that would adversely affect the
outstanding subordinated debt securities of any one or more series in any
material respect, without the consent of the holders of a majority in aggregate
principal amount of all affected series, voting together as one
class.
CHANGES
OF THE INDENTURES NOT REQUIRING APPROVAL
Another
type of change does not require any approval by holders of the debt securities
of an affected series. These changes are limited to clarifications
and changes that would not adversely affect the debt securities of that series
in any material respect. Nor do we need any approval to make changes
that affect only debt securities to be issued under the applicable indenture
after the changes take effect.
We also
may make changes or obtain waivers that do not adversely affect a particular
debt security, even if they affect other debt securities. In those
cases, we do not need to obtain the approval of the holder of the unaffected
debt security, we need only obtain any required approvals from the holders of
the affected debt securities.
CHANGES
OF THE INDENTURES REQUIRING MAJORITY APPROVAL
Any other
change to a particular indenture and the debt securities issued under that
indenture would require the following approval:
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if
the change affects only the debt securities of a particular series, it
must be approved by the holders of a majority in principal amount of the
debt securities of that series, or
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if
the change affects the debt securities of more than one series of debt
securities issued under the applicable indenture, it must be approved by
the holders of a majority in principal amount of each series affected by
the change.
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In each
case, the required approval must be given by written consent.
The same
majority approval would be required for us to obtain a waiver of any of our
covenants in either indenture. Our covenants include the promises we
make about merging and similar transactions, which we describe above under
“—Mergers and Similar Transactions.” If the requisite holders approve
a waiver of a covenant, we will not have to comply with it. The
holders, however, cannot approve a waiver of any provision in a particular debt
security, or in the applicable indenture as it affects that debt security, that
we cannot change without the approval of the holder of that debt security as
described above in “—Changes of the Indentures Requiring Each Holder’s
Approval,” unless that holder approves the waiver.
Book-entry
and other indirect owners should consult their banks or brokers for information
on how approval may be granted or denied if we seek to change an indenture or
any debt securities or request a waiver.
SPECIAL
RULES FOR ACTION BY HOLDERS
When
holders take any action under either debt indenture, such as giving a notice of
default, declaring an acceleration, approving any change or waiver or giving the
trustee an instruction, we will apply the following rules:
ONLY
OUTSTANDING DEBT SECURITIES ARE ELIGIBLE
Only
holders of outstanding debt securities of the applicable series will be eligible
to participate in any action by holders of debt securities of that
series. Also, we will count only outstanding debt securities
in
determining
whether the various percentage requirements for taking action have been
met. For these purposes, a debt security will not be
“outstanding”:
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if
it has been surrendered for cancellation or
cancelled,
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if
we have deposited or set aside, in trust for its holder, money for its
payment or redemption,
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if
we have fully defeased it as described above under “—Defeasance and
Covenant Defeasance—Full
Defeasance,”
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if
it has been exchanged for other debt securities of the same series due to
mutilation, destruction, loss or theft,
or
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if
we or one of our affiliates is the owner, unless the debt security is
pledged under certain circumstances described in the
indenture.
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ELIGIBLE
PRINCIPAL AMOUNT OF SOME DEBT SECURITIES
In some
situations, we may follow special rules in calculating the principal amount of a
debt security that is to be treated as outstanding for the purposes described
above. This may happen, for example, if the principal amount is
payable in a non-U.S. dollar currency, increases over time or is not to be fixed
until maturity.
For any
debt security of the kind described below, we will decide how much principal
amount to attribute to the debt security as follows:
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for
an original issue discount debt security, we will use the principal amount
that would be due and payable on the action date if the maturity of the
debt security were accelerated to that date because of a
default,
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for
a debt security whose principal amount is not determinable, we will use
any amount that we indicate in the applicable prospectus supplement for
that debt security. The principal amount of a debt security may
not be determinable, for example, because it is based on an index that
changes from time to time and the principal amount is not to be determined
until a later date, or
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for
debt securities with a principal amount denominated in one or more
non-U.S. dollar currencies or currency units, we will use the U.S. dollar
equivalent, which we will
determine.
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DETERMINING
RECORD DATES FOR ACTION BY HOLDERS
We
generally will be entitled to set any day as a record date for the purpose of
determining the holders that are entitled to take action under either
indenture. In certain limited circumstances, only the trustee will be
entitled to set a record date for action by holders. If we or the
trustee set a record date for an approval or other action to be taken by
holders, that vote or action may be taken only by persons or entities who are
holders on the record date and must be taken during the period that we specify
for this purpose, or that the trustee specifies if it sets the record
date. We or the trustee, as applicable, may shorten or lengthen this
period from time to time. This period, however, may not extend beyond
the 180th day after the record date for the action. In addition,
record dates for any global debt security may be set in accordance with
procedures established by the depositary from time to
time. Accordingly, record dates for global debt securities may differ
from those for other debt securities.
FORM,
EXCHANGE AND TRANSFER OF DEBT SECURITIES
Unless we
indicate otherwise in your prospectus supplement, the debt securities will be
issued:
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only
in fully registered form, and
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Holders
may exchange their debt securities for debt securities of the same series in any
authorized denominations, as long as the total principal amount is not
changed.
Holders
may exchange or transfer their debt securities at the corporate trust office of
the trustee. They may also replace lost, stolen, destroyed or
mutilated debt securities at that office. We have appointed the
trustee to act as our agent for registering debt securities in the names of
holders and transferring and replacing debt securities.
Holders
will not be required to pay a service charge to transfer or exchange their debt
securities, but they may be required to pay for any tax or other governmental
charge associated with the registration, exchange or transfer. The
transfer or exchange, and any replacement, will be made only if our transfer
agent is satisfied with the holder’s proof of legal ownership. The
transfer agent may require an indemnity before replacing any debt
securities.
If a debt
security is issued as a global debt security, only the depositary, e.g., DTC,
Euroclear and Clearstream, will be entitled to transfer and exchange the debt
security as described in this subsection, since the depositary will be the sole
holder of the debt security.
The rules
for exchange described above apply to exchange of debt securities for other debt
securities of the same series and kind.
PAYMENT
MECHANICS FOR DEBT SECURITIES
Who
Receives Payment?
If
interest is due on a debt security on an interest payment date, we will pay the
interest to the person in whose name the debt security is registered at the
close of business on that regular record date as described below under “—Payment
and Record Dates for Interest.” If interest is due at maturity but on
a day that is not an interest payment date, we will pay the interest to the
person entitled to receive the principal of the debt security. If
principal or another amount besides interest is due on a debt security at
maturity, we will pay the amount to the holder of the debt security against
surrender of the debt security at a proper place of payment or, in the case of a
global debt security, in accordance with the applicable policies of the
depositary, e.g., DTC, Euroclear and Clearstream, as applicable.
Payment
and Record Dates for Interest
The
regular record date relating to an interest payment date for any floating rate
debt security will be the 15
th
calendar
day before that interest payment date. These record dates will apply
regardless of whether a particular record date is a “business day,” as defined
below. For the purpose of determining the holder at the close of
business on a regular record date when business is not being conducted, the
close of business will mean 5:00 P.M., New York City time, on that
day.
Business Day
. The
term “business day” means, with respect to the debt securities of a series, a
Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which
banking institutions in the place of payment for the debt securities of that
series are authorized or obligated by law or executive order to close and that
satisfies any other criteria specified in the applicable prospectus
supplement.
How
We Will Make Payments Due in U.S. Dollars
We will
follow the practice described in this subsection when paying amounts due in U.S.
dollars. Payments of amounts due in other currencies will be made as
described in the next subsection.
Payments on Global Debt
Securities
. We will make payments on a global debt security in
accordance with the applicable policies of the depositary as in effect from time
to time. Under those policies, we will make payments directly to the
depositary, or its nominee, and not to any indirect owners who own beneficial
interests in the global debt security. An indirect owner’s right to
receive those payments will be governed by the rules and practices of the
depositary and its participants, as described below in the section entitled
“Legal Ownership and Book-Entry Issuance—What Is a Global
Security?”
Payments on Non-Global Debt
Securities
. We will make payments on a debt security in
non-global, registered form as follows. We will pay interest that is
due on an interest payment date by check mailed on the interest payment date to
the holder at his or her address shown on the trustee’s records as of the close
of business on the regular record date. We will make all other
payments by check to the paying agent described below, against surrender of the
debt security. All payments by check will be made in next-day funds,
i.e., funds that become available on the day after the check is
cashed.
Alternatively,
if a non-global debt security has a face amount of at least $1,000,000 and the
holder asks us to do so, we will pay any amount that becomes due on the debt
security by wire transfer of immediately available funds to an account at a bank
in New York City, on the due date. To request a wire payment, the
holder must give the paying agent appropriate wire transfer instructions at
least five business days before the requested wire payment is due. In
the case of any interest payment due on an interest payment date, the
instructions must be given by the person or entity who is the holder on the
relevant regular record date. In the case of any other payment,
payment will be made only after the debt security is surrendered to the paying
agent. Any wire instructions, once properly given, will remain in
effect unless and until new instructions are given in the manner described
above.
Book-entry
and other indirect owners should consult their banks or brokers for information
on how they will receive payments on their debt securities.
How
We Will Make Payments Due in Other Currencies
We will
follow the practice described in this subsection when paying amounts that are
due in a specified currency other than U.S. dollars.
Payments on Global Debt
Securities
. We will make payments on a global debt security in
accordance with the applicable policies of the depositary as in effect from time
to time, which will be DTC, Euroclear or Clearstream. Unless we
specify otherwise in the applicable prospectus supplement, DTC will be the
depositary for all debt securities in global form. We understand that
DTC’s policies, as currently in effect, are as follows.
Unless
otherwise indicated in your prospectus supplement, if you are an indirect owner
of global debt securities denominated in a specified currency other than U.S.
dollars and if you have the right to elect to receive payments in that other
currency and do so elect, you must notify the participant through which your
interest in the global debt security is held of your election:
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on
or before the applicable regular record date, in the case of a payment of
interest, or
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on
or before the 16th day before the stated maturity, or any redemption or
repayment date, in the case of payment of principal or any
premium.
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Your
participant must, in turn, notify DTC of your election on or before the third
DTC business day after that regular record date, in the case of a payment of
interest, and on or before the 12th DTC business day prior to the stated
maturity, or on the redemption or repayment date if your debt security is
redeemed or repaid earlier, in the case of a payment of principal or any
premium.
DTC, in
turn, will notify the paying agent of your election in accordance with DTC’s
procedures.
If
complete instructions are received by the participant and forwarded by the
participant to DTC, and by DTC to the paying agent, on or before the dates noted
above, the paying agent, in accordance with DTC’s instructions, will make the
payments to you or your participant by wire transfer of immediately available
funds to an account maintained by the payee with a bank located in the country
issuing the specified currency or in another jurisdiction acceptable to us and
the paying agent.
If the
foregoing steps are not properly completed, we expect DTC to inform the paying
agent that payment is to be made in U.S. dollars. In that case, we or
our agent will convert the payment to U.S. dollars in the manner described below
under “—Conversion to U.S. Dollars.” We expect that we or our agent
will then make the payment in U.S. dollars to DTC, and that DTC in turn will
pass it along to its participants.
Indirect
owners of a global debt security denominated in a currency other than U.S.
dollars should consult their banks or brokers for information on how to request
payment in the specified currency.
Payments on Non-Global Debt
Securities
. Except as described in the last paragraph under
this heading, we will make payments on debt securities in non-global form in the
applicable specified currency. We will make these payments by wire
transfer of immediately available funds to any account that is maintained in the
applicable specified currency at a bank designated by the holder and which is
acceptable to us and the trustee. To designate an account for wire
payment, the holder must give the paying agent appropriate wire instructions at
least five business days before the requested wire payment is due. In
the case of any interest payment due on an interest payment date, the
instructions must be given by the person or entity who is the holder on the
regular record date. In the case of any other payment, the payment
will be made only after the debt security is surrendered to the paying
agent. Any instructions, once properly given, will remain in effect
unless and until new instructions are properly given in the manner described
above.
If a
holder fails to give instructions as described above, we will notify the holder
at the address in the trustee’s records and will make the payment within five
business days after the holder provides appropriate instructions. Any
late payment made in these circumstances will be treated under the applicable
indenture as if made on the due date, and no interest will accrue on the late
payment from the due date to the date paid.
Although
a payment on a debt security in non-global form may be due in a specified
currency other than U.S. dollars, we will make the payment in U.S. dollars if
the holder asks us to do so. To request U.S. dollar
payment, the holder must provide appropriate written notice to the trustee at
least five business days before the next due date for which payment in
U.S. dollars is requested. In the case of any interest
payment due on an interest payment date, the request must be made by the person
or entity who is the holder on the regular record date. Any request,
once properly made, will remain in effect unless and until revoked by notice
properly given in the manner described above.
Book-entry
and other indirect owners of a debt security with a specified currency other
than U.S. dollars should contact their banks or brokers for information about
how to receive payments in the specified currency or in U.S.
dollars.
Conversion to U.S.
Dollars
. When we are asked by a holder to make payments in
U.S. dollars of an amount due in another currency, either on a global debt
security or a non-global debt security as described above, the exchange rate
agent described below will calculate the U.S. dollar amount the
holder receives in the exchange rate agent’s discretion.
A holder
that requests payment in U.S. dollars will bear all associated currency exchange
costs, which will be deducted from the payment.
When the Specified Currency Is Not
Available
. If we are obligated to make any payment in a
specified currency other than U.S. dollars, and the specified
currency or any successor currency is not available to us due to circumstances
beyond our control, such as the imposition of exchange controls or a disruption
in the currency markets, we will be entitled to satisfy our obligation to make
the payment in that specified currency by making the payment in
U.S. dollars, on the basis of the exchange rate determined by the
exchange rate agent described below, in its discretion.
The
foregoing will apply to any debt security, whether in global or non-global form,
and to any payment, including a payment at maturity. Any payment made
under the circumstances and in a manner described above will not result in a
default under any debt security or the applicable indenture.
The Euro
. The Euro
may be a specified currency for some debt securities. On
January 1, 1999, the Euro became the legal currency for the 11 member
states participating in the European Economic and Monetary Union.
Exchange Rate
Agent
. If we issue a debt security in a specified currency
other than U.S. dollars, we will appoint a financial institution to act as the
exchange rate agent and will name the institution initially appointed when the
debt security is originally issued in the applicable prospectus
supplement. We may change the exchange rate agent from time to time
after the original issue date of the debt security without your consent and
without notifying
you of
the change. All determinations made by the exchange rate agent will
be in its sole discretion unless we state in the applicable prospectus
supplement that any determination requires our approval. In the
absence of manifest error, those determinations will be conclusive for all
purposes and binding on you and us, without any liability on the part of the
exchange rate agent.
Payment
When Offices Are Closed
If any
payment is due on a debt security on a day that is not a business day, we will
make the payment on the next day that is a business day. Payments
postponed to the next business day in this situation will be treated under the
applicable indenture as if they were made on the original due
date. Postponement of this kind will not result in a default under
any debt security or the applicable indenture, and no interest will accrue on
the postponed amount from the original due date to the next day that is a
business day. The term business day has a special meaning, which we
describe above under “—Payment and Record Dates for Interest.”
Paying
Agent
We may
appoint one or more financial institutions to act as our paying agents, at whose
designated offices debt securities in non-global entry form may be surrendered
for payment at their maturity. We call each of those offices a paying
agent. We may add, replace or terminate paying agents from time to
time.
We also
may choose to act as our own paying agent. Initially, we have
appointed the trustee, at its corporate trust office in New York City, as the
paying agent. We must notify the trustee of changes in the paying
agents.
NOTICES
Notices
to be given to holders of a global debt security will be given only to the
depositary, in accordance with its applicable policies as in effect from time to
time. Notices to be given to holders of debt securities not in global
form will be sent by mail to the respective addresses of the holders as they
appear in the trustee’s records. Neither the failure to give any
notice to a particular holder, nor any defect in a notice given to a particular
holder, will affect the sufficiency of any notice given to another
holder.
Book-entry
and other indirect owners should consult their banks or brokers for information
on how they will receive notices.
OUR
RELATIONSHIP WITH THE TRUSTEE
The Bank
of New York Mellon has provided commercial banking and other services for us and
our affiliates in the past and may do so in the future.
The Bank
of New York Mellon is initially serving as the trustee for our senior debt
securities and subordinated debt securities. Consequently, if an
actual or potential event of default occurs with respect to any of these
securities, the trustee may be considered to have a conflicting interest for
purposes of the Trust Indenture Act of 1939. In that case, the
trustee may be required to resign under one or more of the indentures, and we
would be required to appoint a successor trustee. For this purpose, a
“potential” event of default means an event that would be an event of default if
the requirements for giving us default notice or for the default having to exist
for a specific period of time were disregarded.
DESCRIPTION
OF CAPITAL STOCK
The
following descriptions are summaries of the material terms and provisions of our
preferred stock and our common stock contained in our certificate of
incorporation and our by-laws. Copies of our certificate of
incorporation and the by-laws are exhibits to the registration statement of
which this prospectus is a part. See “Available Information” for
information on how to obtain copies of our certificate of incorporation and
by-laws.
The
certificate of incorporation authorizes the issuance of up to 26,000,000 shares
of capital stock, consisting of 10,000,000 shares of common stock, $1.00 par
value per share (the “common stock”), 3,000,000 shares of preferred stock, $1.00
par value per share (the “preferred stock”) and 13,000,000 shares of excess
stock, $1.00 par value per share (the “excess stock”). As of November
24, 2008, 5,173,450 and 5,081,590 shares of common stock were issued and
outstanding, respectively. No shares of preferred stock or shares of
excess stock are issued and outstanding as of the date of this
prospectus.
DESCRIPTION
OF PREFERRED STOCK
The
following description of the material terms of our preferred stock is only a
summary and is qualified in its entirety by reference to the provisions of our
certificate of incorporation and the certificate of designations relating to
each series of the preferred stock (the “certificate of designations”), which
will be filed as an exhibit to or incorporated by reference in the registration
statement of which this prospectus is a part, at or prior to the time of
issuance of such series of the preferred stock. The particular terms
of any series of preferred stock will be described in the applicable prospectus
supplement, which will supplement the information below.
General
The
preferred stock authorized by our certificate of incorporation may be issued
from time to time in one or more series in the amounts and with the
designations, preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption as may be fixed by our board of
directors. The preferred stock, upon issuance against full payment of
the applicable purchase price, will be fully paid and
nonassessable. The liquidation preference is not indicative of the
price at which the shares of preferred stock will actually trade on or after the
date of issuance. Under certain circumstances, the issuance of
preferred stock could have the effect of delaying, deferring or preventing a
change of control of our company and may adversely affect the voting and other
rights of the holders of common stock. The certificate of incorporation
authorizes our board of directors to classify or reclassify, in one or more
series, any unissued shares of preferred stock and to reclassify any unissued
shares of any series of preferred stock by setting or changing the designations,
preferences, conversion or other rights, voting powers, restrictions,
limitations as to distributions, qualifications and terms and conditions of
redemption of the preferred stock.
The
preferred stock shall have the dividend, liquidation, redemption and voting
rights described below, as supplemented by the applicable prospectus supplement
relating to each particular series of preferred stock. The applicable
prospectus supplement will describe the following terms of the series of
preferred stock:
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the
title of the preferred stock and the number of shares
offered,
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the
amount of liquidation preference per
share,
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the
initial public offering price at which the shares of preferred stock will
be issued,
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the
dividend rate or method of calculation, the dates on which dividends will
be payable and the dates from which dividends will commence to accumulate,
if any,
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any
redemption or sinking fund
provisions,
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any
conversion or exchange rights,
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any
additional voting, dividend, liquidation, redemption, sinking fund and
other rights, preferences, limitations and
restrictions,
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any
listing of the preferred stock on any securities
exchange,
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the
relative ranking and preferences of such preferred stock as to dividend
rights and rights upon our liquidation, dissolution or winding-up of our
affairs,
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any
limitations on issuance of any series of preferred stock ranking senior to
or equally with the series of preferred stock as to dividend rights and
rights upon our liquidation, dissolution or
winding-up,
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any
limitations on direct or beneficial ownership and restrictions on transfer
as may be appropriate to preserve our status as a REIT or to preserve our
net operating loss carryovers, if any,
and
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any
other specific terms, preferences or rights of, or limitations or
restrictions on, the preferred
stock.
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The
applicable prospectus supplement also may include a discussion of Federal income
tax considerations applicable to the preferred stock.
Ranking
With
respect to dividend rights and rights upon liquidation, dissolution and
winding-up, the preferred stock will rank senior to our common stock and excess
stock, other than certain excess stock resulting from the conversion of
preferred stock and to all other classes and series of our equity securities now
or later authorized, issued or outstanding, other than any classes or series of
our equity securities which by their terms specifically rank equal or senior to
the preferred stock as to dividend rights and rights upon our liquidation,
dissolution or winding-up. We refer to the common stock and the other
classes and series of equity securities to which the shares of preferred stock
rank senior as to dividend rights and rights upon our liquidation, dissolution
or winding-up of as the “junior stock,” we refer to our equity securities that
by their terms rank equal to the shares of preferred stock as the “parity
stock,” and we refer to our equity securities that by their terms rank senior to
the shares of preferred stock as the “senior stock.” The shares of
preferred stock are junior to all our outstanding debt. We may create
and issue senior stock, parity stock and junior stock to the extent not
expressly prohibited by our certificate of incorporation.
Dividends
Holders
of our preferred stock are entitled to receive, when, as and if declared by our
board of directors, out of our assets legally available for payment, dividends,
or distributions in cash, property or other assets of our company or in
securities of our company or from any other source as our board of directors in
its discretion determines and at the dates and annual rate as described in the
applicable prospectus supplement. This rate may be fixed or variable
or both. Each authorized dividend is payable to holders of record as
they appear at the close of business on the books of our company on the record
date, not more than 90 calendar days preceding the payment date, as determined
by our board of directors.
These
dividends may be cumulative or noncumulative, as described in the applicable
prospectus supplement. If dividends on a series of preferred stock
are noncumulative and if our board of directors fails to authorize a dividend in
respect of a dividend period with respect to that series, then holders of those
shares of preferred stock will have no right to receive a dividend in respect of
that dividend period, and we will have no obligation to pay the dividend for
that period, whether or not dividends are authorized on any future dividend
payment dates. If dividends of a series of preferred stock are
cumulative, the dividends on those shares will accrue from and after the date
stated in the applicable prospectus supplement.
No full
dividends shall be authorized or paid or set apart for payment on preferred
stock of any series ranking, as to dividends, equally with or junior to the
series of preferred stock offered by the applicable prospectus supplement for
any period unless full dividends for the immediately preceding dividend period
on the preferred stock, including any accumulation in respect of unpaid
dividends for prior dividend periods, if dividends on the preferred stock are
cumulative, have been or contemporaneously are authorized and paid or authorized
and a sum sufficient for payment is set apart for payment. When
dividends are not paid in full, or a sum sufficient for full payment is not set
apart, upon the preferred stock offered by the applicable prospectus supplement
and any other preferred stock ranking equally as to dividends with those shares
of preferred stock, dividends upon those shares of preferred stock and dividends
on the other preferred stock must be authorized proportionately so that the
amount of
dividends
authorized per share on those shares of preferred stock and the other preferred
stock in all cases bear to each other the same ratio that accrued dividends for
the then-current dividend period per share on those shares of preferred stock,
including any accumulation in respect of unpaid dividends for prior dividend
periods, if dividends on those shares of preferred stock are cumulative, and
accrued dividends, including required or permitted accumulations, if any, on
shares of the other preferred stock, bear to each other. No interest,
or sum of money in lieu of interest, will be payable in respect of any dividend
payment(s) on shares of preferred stock that are in arrears. Unless
full dividends on the series of preferred stock offered by the applicable
prospectus supplement have been authorized and paid or set apart for payment for
the immediately preceding dividend period, including any accumulation in respect
of unpaid dividends for prior dividend periods, if dividends are
cumulative:
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no
cash dividend or distribution, other than in shares of junior stock, may
be authorized, set aside or paid on the junior
stock,
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we
may not, directly or indirectly, repurchase, redeem or otherwise acquire
any shares of junior stock, or pay any money into a sinking fund for the
redemption of any shares, except by conversion into or exchange for junior
stock, and
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we
may not, directly or indirectly, repurchase, redeem or otherwise acquire
any preferred stock or parity stock, or pay any money into a sinking fund
for the redemption of any shares, otherwise than in accordance with
proportionate offers to purchase or a concurrent redemption of all, or a
proportionate portion, of the outstanding preferred stock and shares of
parity stock, except by conversion into or exchange for junior
stock.
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Any
dividend payment made on a series of preferred stock will first be credited
against the earliest accrued but unpaid dividend due with respect to shares of
the series.
Redemption
The
terms, if any, on which shares of preferred stock of any series may be redeemed
will be described in the applicable prospectus supplement.
Liquidation
If we
voluntarily or involuntarily liquidate, dissolve or wind up our affairs, the
holders of a series of preferred stock will be entitled, subject to the rights
of creditors, but before any distribution or payment to the holders of our
common stock, excess stock, other than certain shares of excess stock resulting
from the conversion of shares of preferred stock, or any junior stock, to
receive a liquidating distribution in the amount of the liquidation preference
per share stated in the applicable prospectus supplement plus accrued and unpaid
dividends for the then-current dividend period, including any accumulation in
respect of unpaid dividends for prior dividend periods, if dividends on such
series of preferred stock are cumulative. If the amounts available
for distribution with respect to our preferred stock and all other outstanding
parity stock are not sufficient to satisfy the full liquidation rights of all
the outstanding shares of preferred stock and parity stock, then the holders of
each series of the stock will share ratably in the distribution of assets in
proportion to the full preferential amount, which in the case of preferred stock
may include accumulated dividends, to which they are entitled. After
payment of the full amount of the liquidation distribution, the holders of
preferred stock will not be entitled to any further participation in any
distribution of assets by us.
Voting
Unless
provided in the applicable prospectus supplement or as required by applicable
law, holders of shares of preferred stock will have no voting
rights.
No
Other Rights
The
shares of a series of preferred stock will not have any preferences, conversion
or other rights, voting powers, restrictions, limitations as to dividends and
other distributions, qualifications, and terms and conditions
of
redemption
except as described above or in the applicable prospectus supplement, our
certificate of incorporation and in the applicable certificate of designations
or as otherwise required by law.
Transfer
Agent and Registrar
The
transfer agent for each series of preferred stock will be described in the
related prospectus supplement.
Restrictions
on Ownership of Preferred Stock
The Preferred Stock Beneficial
Ownership Limit
. Our certificate of incorporation contains a
number of provisions that restrict the ownership and transfer of shares and are
designed to protect us against an inadvertent loss of REIT status. In
order to maintain our qualification as a REIT under the Internal Revenue Code,
not more than 50% in value of our outstanding shares of capital stock may be
owned, directly or constructively, by five or fewer individuals at any time
during the last half of a taxable year, and the shares of capital stock 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. The Internal Revenue Code defines “individuals” to include some
entities for the purposes of the preceding sentence. All references
to a holder’s ownership of preferred stock in this section assumes application
of the applicable attribution rules of the Internal Revenue Code under which,
for example, a holder is deemed to own shares owned by his or her
spouse.
Our
certificate of incorporation contains a limitation that restricts stockholders
from owning more than 9.9% of the outstanding shares of preferred stock of any
series (the “preferred stock beneficial ownership limit”). Investors
should be aware that events other than a purchase or other transfer of preferred
stock may result in ownership, under the applicable attribution rules of the
Internal Revenue Code, of preferred stock in excess of the preferred stock
beneficial ownership limit. The attribution rules which apply for
purposes of the common stock beneficial ownership limit also apply for purposes
of the preferred stock beneficial ownership limit. For more
information about these attribution rules, see “Description of Common
Stock—Restrictions on Ownership—Attribution Rules.” You should
consult your own tax advisors concerning the application of the attribution
rules of the Internal Revenue Code in your particular
circumstances.
The Constructive Ownership
Limit
. Holders of preferred stock also are subject to the
constructive ownership limit, which restricts them from owning, under the
applicable attribution rules of the Internal Revenue Code, more than 9.9% of the
outstanding shares of preferred stock of any series. See “Description
of Common Stock—Restrictions on Ownership—The Constructive Ownership Limit”
below for more information about the constructive ownership limit.
The
attribution rules of the Internal Revenue Code that apply for purposes of the
constructive ownership limit differ from those that apply for purposes of the
preferred stock beneficial ownership limit. See “Description of
Common Stock—Restrictions on Ownership—The Constructive Ownership Limit” for
more information about these attribution rules. Investors should be
aware that under the applicable attribution rules of the Internal Revenue Code,
events other than a purchase or other transfer of preferred stock may result in
ownership of preferred stock in excess of the constructive ownership
limit. We urge investors to consult their own tax advisors concerning
the application of the attribution rules of the Internal Revenue Code in their
particular circumstances.
Issuance of Excess Stock if the
Ownership Limits Are Violated
. Our certificate of
incorporation provides that a transfer of shares of preferred stock that would
otherwise result in ownership, under the applicable attribution rules of the
Internal Revenue Code, of preferred stock in excess of the preferred stock
beneficial ownership limit or the constructive ownership limit, or which would
cause the shares of capital stock of Alexander’s to be beneficially owned by
fewer than 100 persons, will have no effect and the purported transferee will
acquire no rights or economic interest in such preferred stock. In
addition, preferred stock that would otherwise be owned, under the applicable
attribution rules of the Internal Revenue Code, in excess of the preferred stock
beneficial ownership limit or the constructive ownership limit will be
automatically exchanged for shares of excess stock. These shares of
excess stock will be transferred, by operation of law, to us as trustee of a
trust for the exclusive benefit of a beneficiary designated by the purported
transferee or purported holder. While held in trust, the trustee
shall vote the shares of excess stock in the same proportion as the holders of
the outstanding shares of preferred stock have voted. Any dividends
or distributions received by the purported transferee or other purported holder
of the excess stock before our discovery of the automatic exchange for shares of
excess stock must be repaid to us upon demand.
If the
purported transferee or purported holder elects to designate a beneficiary of an
interest in the trust with respect to the excess stock, he or she may only
designate a person whose ownership of the shares will not violate the preferred
stock beneficial ownership limit or the constructive ownership
limit. When the designation is made, the excess stock will be
automatically exchanged for preferred stock of the same class as the preferred
stock that were originally exchanged for the excess shares. Our
certificate of incorporation contains provisions designed to ensure that the
purported transferee or other purported holder of the shares of excess stock may
not receive, in return for transferring an interest in the trust with respect to
the excess stock, an amount that reflects any appreciation in the shares of
preferred stock for which the shares of excess stock were exchanged during the
period that the shares of excess stock were outstanding but will bear the burden
of any decline in value during that period. Any amount received by a
purported transferee or other holder for designating a beneficiary in excess of
the amount permitted to be received must be turned over to us. Our
certificate of incorporation provides that we may purchase any shares of excess
stock that have been automatically exchanged for shares of preferred stock as a
result of a purported transfer or other event. The price at which we
may purchase the shares of excess stock will be equal to the lesser
of:
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in
the case of shares of excess stock resulting from a purported transfer for
value, the price per share in the purported transfer that resulted in the
automatic exchange for shares of excess stock or, in the case of excess
stock resulting from some other event, the market price of the shares of
preferred stock exchanged on the date of the automatic exchange for shares
of excess stock, and
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the
market price of the shares of preferred stock exchanged for such shares of
excess stock on the date that we accept the deemed offer to sell the
excess stock.
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Our
purchase right with respect to excess stock will exist for 90 days, beginning on
the date that the automatic exchange for shares of excess stock occurred or, if
we did not receive a notice concerning the purported transfer that resulted in
the automatic exchange for shares of excess stock, the date that our board of
directors determines in good faith that an exchange for excess stock has
occurred.
Other Provisions Concerning the
Restrictions on Ownership
. Our board of directors may exempt
certain persons from the preferred stock beneficial ownership limit or the
constructive ownership limit if evidence satisfactory to our board of directors
is presented showing that such exemption will not jeopardize our status as a
REIT under the Internal Revenue Code. Before granting an exemption of
this kind, our board of directors may require a ruling from the IRS, an opinion
of counsel satisfactory to it and representations and undertakings from the
applicant with respect to preserving our REIT status.
The
foregoing restrictions on ownership and transfer 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.
Sections
382 and 383 of the Internal Revenue Code impose limitations upon the utilization
of a corporation’s net operating loss and credit carryforwards and certain other
tax attributes, following significant changes in the corporation’s stock
ownership. In order to preserve our ability to use net operating loss
carryforwards to reduce taxable income, our certificate of incorporation also
contains, and the certificate of designations for each series of preferred stock
may contain, additional provisions restricting the ownership of our outstanding
stock (the “Section 382 ownership restrictions”). The
Section 382 ownership restrictions merely reduce the risk of certain
occurrences that could cause such a limitation to arise. It is still
possible that, due to transfers (either directly or indirectly) of our
outstanding shares, we could become subject to a limitation under
Section 382 or 383.
Our
certificate of incorporation provides, in general, that, subject to the
exceptions described in the next paragraph, no person may acquire shares of our
company, or options or warrants to acquire such shares, if as a result such
person (or another person to which such shares were attributed under certain
complex attribution rules, which differ in certain respects from those that
apply for purposes of the preferred stock beneficial ownership limit or the
constructive ownership limit) would own, directly or under such attribution
rules, 5% or more of the class of such outstanding shares (hereinafter, such
person’s “ownership interest percentage”). In addition, subject to
the exceptions described in the next paragraph, no person whose ownership
interest percentage of a class of shares equals or exceeds 5% can acquire or
transfer such shares, or options or warrants to acquire such
shares. The foregoing restrictions apply independently to each class
of our outstanding stock.
The
foregoing restrictions do not apply to (i) acquisitions and transfers of
common stock by certain persons and their affiliates whose ownership interest
percentage of common stock on September 21, 1993 was 5% or more,
(ii) transfers of shares pursuant to an offering by us, to the extent
determined by our board of directors, and (iii) other transfers of shares
specifically approved by our board of directors.
Transfers
of shares, options or warrants in violation of the Section 382 ownership
restrictions would be void, and the transferee would acquire no rights in such
shares, options or warrants. Thus, a purported acquiror would have no
right to vote such shares or to receive dividends. Moreover, upon our
demand, a purported acquiror of shares, options or warrants would be required to
transfer them to an agent designated by us. The agent, generally,
would sell such shares, options or warrants, remit the proceeds thereof to the
purported acquiror to the extent of such person’s purchase price for the shares
and, to the extent possible, remit the balance of the proceeds to such person’s
transferor. A similar procedure would be applied to any dividends
paid to, and to the proceeds of any resale of shares, options or warrants by,
the purported acquiror.
Our board
of directors has the authority to designate a date as of which the
Section 382 ownership restrictions will no longer apply.
All
certificates representing shares of preferred stock will bear a legend referring
to the restrictions described above.
All
persons who own, directly or by virtue of the applicable attribution rules of
the Internal Revenue Code, more than 2% of the outstanding preferred stock of
any series must give a written notice to us containing the information specified
in our certificate of incorporation by January 31 of each
year. In addition, each stockholder will be required to disclose to
us any information we may request, in good faith, in order to determine our
status as a REIT or to comply with Treasury Regulations promulgated under the
REIT provisions of the Internal Revenue Code.
Depositary
Shares
We may,
at our option, elect to offer depositary shares, which represent receipts for
fractional interests in shares of preferred stock rather than full shares of
preferred stock. Each depositary share will be evidenced by a
depositary receipt which will represent a fraction of a share of a particular
series of preferred stock and will be issued as described below. The
prospectus supplement relating to any series of depositary shares will state the
fraction of a preferred share represented by each depositary share.
The
description below of the material provisions of the deposit agreement and of the
depositary shares and depositary receipts is only a summary and is qualified in
its entirety by reference to the forms of deposit agreement and depositary
receipts relating to each series of the depositary shares that have been or will
be filed as an exhibit to or incorporated by reference in the registration
statement of which this prospectus is a part, at or before the time of the
issuance of a series of depositary shares. The particular terms of
depositary shares representing fractional interests in any particular series of
preferred stock will be described in the applicable prospectus supplement, which
will supplement the information in this prospectus.
The
shares of any series of preferred stock represented by depositary shares will be
deposited under a deposit agreement between us and the
depositary. Subject to the deposit agreement, each owner of a
depositary share will be entitled, in proportion to the applicable fraction of a
share of preferred stock represented by such depositary share, to all the
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and terms
and conditions of redemption of the preferred stock represented by the
depositary share.
Dividends
and Other Distributions
The
depositary will distribute all cash dividends or other cash distributions
received in respect of the preferred stock to the record holders of depositary
shares relating to such shares of preferred stock in proportion to the numbers
of such depositary shares owned by the holders.
If we
make a distribution other than in cash, the depositary will distribute property
received by it to the record holders of depositary shares in an equitable
manner, unless the depositary determines that it is not feasible to make the
distribution, in which case the depositary may sell such property and distribute
the net proceeds from such sale to the holders.
Withdrawal
of Preferred Stock
Upon
surrender of depositary receipts at the corporate trust office of the
depositary, unless the related depositary shares have previously been called for
redemption or converted into excess shares or otherwise, each depositary receipt
holder will be entitled to delivery at the depositary’s corporate trust office,
to or upon the holder’s order, 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 the 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 fraction of a share of preferred stock represented by each
depositary share as specified in the applicable prospectus supplement, but
holders of the preferred stock will not be entitled to receive depositary shares
representing the preferred stock after exchanging the depositary shares for
preferred stock. 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
depositary will deliver to the holder at the same time a new depositary receipt
evidencing such excess number of depositary shares.
Redemption
of Depositary Shares
If a
series of preferred stock represented by depositary shares is subject to
redemption, the depositary shares will be redeemed from the proceeds received by
the depositary resulting from the redemption, in whole or in part, of the series
of preferred stock held by the depositary. The redemption price per
depositary share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of the preferred
stock. Whenever we redeem shares of preferred stock held by the
depositary, the depositary will redeem as of the same redemption date the number
of depositary shares representing the redeemed shares of preferred
stock. If fewer than all the depositary shares are to be redeemed,
the depositary shares to be redeemed will be selected by lot, proportionately or
by any other equitable method as may be determined by the
depositary.
Voting
the Preferred Stock
Upon
receipt of notice of any meeting at which the holders of the preferred stock are
entitled to vote, the depositary will mail the information contained in the
notice of meeting to the record holders of the depositary shares relating to the
preferred stock. Each record holder of these depositary shares on the
record date will be entitled to instruct the depositary as to the exercise of
the voting rights pertaining to the amount of the preferred stock represented by
the holder’s depositary shares. The record date for voting the
depositary shares will be the same as the record date for voting the preferred
stock. The depositary will endeavor, insofar as practicable, to vote
the amount of the preferred stock represented by the depositary shares in
accordance with the instructions, and we will take all reasonable action deemed
necessary by the depositary in order to enable the depositary to do
so. The depositary will abstain from voting the preferred stock to
the extent it does not receive specific instructions from the holder of
depositary shares representing those shares of preferred stock.
Amendment
and Termination of the Deposit Agreement
We and
the depositary may amend the form of depositary receipt evidencing the
depositary shares and any provision of the deposit agreement at any
time. However, any amendment that materially and adversely alters the
rights of the holders of depositary shares will not be effective unless the
holders of at least a majority of the depositary shares then outstanding approve
the amendment. The deposit agreement will only terminate if
(a) all outstanding depositary shares have been redeemed or (b) there
has been a final distribution in respect of the preferred stock in connection
with any liquidation, dissolution or winding-up of our affairs and that
distribution has been distributed to the holders of the related depositary
shares.
Charges
of Depositary
We will
pay all transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. We will pay charges of
the depositary in connection with the initial deposit of the preferred stock and
issuance of depositary receipts, all withdrawals of preferred stock by owners of
depositary shares and any redemption of the preferred stock. Holders
of depositary receipts will pay other transfer and other taxes and governmental
charges and such other charges as are expressly provided in the deposit
agreement to be for their account.
Resignation
and Removal of Depositary
The
depositary may resign at any time by delivering to us notice of its election to
do so, and we may at any time remove the depositary. The resignation
or removal will take effect upon the appointment of a successor depositary and
its acceptance of the appointment. The successor 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.
Restrictions
on Ownership
In order
to safeguard against an inadvertent loss of our REIT status, the deposit
agreement will contain provisions similar to those in our certificate of
incorporation restricting the ownership and transfer of depositary
shares. Such restrictions will be described in the applicable
prospectus supplement.
Reports;
Liability of Depositary and Alexander’s, Inc.
The
depositary will forward all reports and communications from us which are
delivered to the depositary and which we are required, or otherwise determine,
to furnish to the holders of the preferred stock.
Neither
the depositary nor Alexander’s will be liable if it is prevented or delayed by
law or any circumstance beyond its control in performing its obligations under
the deposit agreement. The obligations of Alexander’s and the
depositary under the deposit agreement will be limited to performance in good
faith of their duties under the deposit agreement, and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or
accountants, or information provided by persons presenting preferred stock for
deposit, holders of depositary shares or other persons believed to be competent
and on documents believed to be genuine.
DESCRIPTION
OF COMMON STOCK
The
following description of the material terms of our common stock is only a
summary and is qualified in its entirety by reference to, the provisions
contained in our certificate of incorporation and the by-laws governing the
common stock.
As of
November 24, 2008, 5,173,450 and 5,081,590 shares of common stock were issued
and outstanding, respectively. Our common stock is listed on the NYSE
under the symbol “ALX.”
Dividend
and Voting Rights of Holders of Common Stock
Holders
of our common stock are entitled to receive dividends when, if and as authorized
by our board of directors out of assets legally available to pay
dividends.
Each
common share entitles the holder to one vote on all matters voted on by
stockholders, including elections of directors. There is no
cumulative voting in the election of directors, which means that the holders of
a majority of the outstanding common stock can elect all of the directors then
standing for election.
Our
certificate of incorporation requires the affirmative vote of two-thirds of the
outstanding shares of our stock entitled to vote before we may merge with
another corporation.
Holders
of common stock do not have any conversion, redemption or preemptive rights to
subscribe to any securities of our company. In the event of our
dissolution, liquidation or winding-up, after the payment or provision of our
debts and other liabilities and the preferential amounts to which holders of our
preferred stock are entitled, if any such preferred stock is outstanding, the
holders of the common stock are entitled to share ratably in any assets
remaining for distribution to shareholders.
The
common stock has equal dividend, distribution, liquidation and other rights, and
there are no preference, appraisal or exchange rights applicable
thereto. All outstanding shares of common stock are, and any shares
of common stock offered by a prospectus supplement, upon issuance, will be,
fully paid and nonassessable.
Wachovia
Bank, N.A., is the transfer agent for the common stock.
Restrictions
on Ownership of Common Stock
The Common Stock Beneficial
Ownership Limit
. Our certificate of incorporation contains a
number of provisions that restrict the ownership and transfer of shares and are
designed to safeguard us against an inadvertent loss of REIT
status. These provisions also seek to deter non-negotiated
acquisitions of, and proxy fights for, us by third parties. In order
to maintain our qualification as a REIT under the Internal Revenue Code, not
more than 50% of the value of our outstanding shares of capital stock may be
owned, directly or constructively, by five or fewer individuals at any time
during the last half of a taxable year and the shares of capital stock 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. The Internal Revenue Code defines “individuals” to include some
entities for purposes of the preceding sentence. All references to a
holder’s ownership of common stock in this section assumes application of the
applicable attribution rules of the Internal Revenue Code under which, for
example, a holder is deemed to own shares owned by his or her
spouse.
Our
certificate of incorporation contains a limitation that restricts stockholders
from owning more than 4.9% of the outstanding shares of common
stock. In certain circumstances, our board of directors may reduce
the common stock beneficial ownership limit to as little as 2%, but only if any
person who owns shares in excess of such new limit could continue to do
so. Our board of directors has, subject to certain conditions and
limitations, exempted our manager, Vornado Realty Trust, and certain of its
affiliates from the common stock beneficial ownership limit. As a
result, it is less likely as a practical matter that another holder of common
stock could obtain an exemption.
Attribution
Rules
. Investors should be aware that under the applicable
attribution rules of the Internal Revenue Code, events other than a purchase or
other transfer of common stock can result in ownership of common stock in excess
of the common stock beneficial ownership limit. For instance, if two
stockholders, each of whom owns 3% of the outstanding common stock, were to
marry, then after their marriage both stockholders would be deemed to own 6% of
the outstanding shares of common stock, which is in excess of the common stock
beneficial ownership limit. Similarly, if a stockholder who owns 4%
of the outstanding common stock were to purchase a 50% interest in a corporation
which owns 3% of the outstanding common stock, then the stockholder would be
deemed to own 5.5% of the outstanding shares of common stock. You
should consult your own tax advisors concerning the application of the
attribution rules of the Internal Revenue Code in your particular
circumstances.
The Constructive Ownership
Limit
. Under the Internal Revenue Code, rental income received
by a REIT from persons with respect to which the REIT is treated, under the
applicable attribution rules of the Internal Revenue Code, as owning a 10% or
greater interest does not constitute qualifying income for purposes of the
income requirements that REITs must satisfy. For these purposes, a
REIT is treated as owning any stock owned, under the applicable attribution
rules of the Internal Revenue Code, by a person that owns 10% or more of the
value of the outstanding shares of the REIT. The attribution rules of
the Internal Revenue Code applicable for these purposes are different from those
applicable with respect to the common stock beneficial ownership
limit. All references to a stockholder’s ownership of common stock in
this section assume application of the applicable attribution rules of the
Internal Revenue Code.
In order
to ensure that our rental income will not be treated as nonqualifying income
under the rule described in the preceding paragraph, and thus to ensure that we
will not inadvertently lose our REIT status as a result of the ownership of
shares of a tenant, or a person that holds an interest in a tenant, our
certificate of
incorporation
contains an ownership limit that restricts, with certain exceptions,
stockholders from owning more than 9.9% of the outstanding shares of any class
(the “common stock beneficial ownership limit”).
Stockholders
should be aware that events other than a purchase or other transfer of shares
can result in ownership, under the applicable attribution rules of the Internal
Revenue Code, of shares in excess of the constructive ownership
limit. As the attribution rules that apply with respect to the
constructive ownership limit differ from those that apply with respect to the
common stock beneficial ownership limit, the events other than a purchase or
other transfer of shares which can result in share ownership in excess of the
constructive ownership limit can differ from those which can result in share
ownership in excess of the common stock beneficial ownership
limit. You should consult your own tax advisors concerning the
application of the attribution rules of the Internal Revenue Code in your
particular circumstances.
Issuance of Excess Stock if the
Ownership Limits Are Violated
. Our certificate of
incorporation provides that a transfer of shares of common stock that would
otherwise result in ownership, under the applicable attribution rules of the
Internal Revenue Code, of common stock in excess of the common stock beneficial
ownership limit or the constructive ownership limit, or which would cause the
shares of capital stock of Alexander’s to be beneficially owned by fewer than
100 persons, would have no effect and the purported transferee would acquire no
rights or economic interest in such common stock. In addition, common
stock that would otherwise be owned, under the applicable attribution rules of
the Internal Revenue Code, in excess of the common stock beneficial ownership
limit or the constructive ownership limit will be automatically exchanged for
shares of excess stock. These shares of excess stock would be
transferred, by operation of law, to us as trustee of a trust for the exclusive
benefit of a beneficiary designated by the purported transferee or purported
holder. While held in trust, the trustee shall vote the shares of
excess stock in the same proportion as the holders of the outstanding shares of
common stock have voted. Any dividends or distributions received by
the purported transferee or other purported holder of the excess stock before
our discovery of the automatic exchange for shares of excess stock must be
repaid to us upon demand.
If the
purported transferee or purported holder elects to designate a beneficiary of an
interest in the trust with respect to the excess stock, he or she may only
designate a person whose ownership of the shares will not violate the common
stock beneficial ownership limit or the constructive ownership
limit. When the designation is made, the excess stock will be
automatically exchanged for common stock. Our certificate of
incorporation contains provisions designed to ensure that the purported
transferee or other purported holder of shares of excess stock may not receive
in return for transferring an interest in the trust with respect to the excess
stock, an amount that reflects any appreciation in the shares of common stock
for which the shares of excess stock were exchanged during the period that the
shares of excess stock were outstanding but will bear the burden of any decline
in value during that period. Any amount received by a purported
transferee or other purported holder for designating a beneficiary in excess of
the amount permitted to be received must be turned over to us. Our
certificate of incorporation provides that we may purchase any shares of excess
stock that have been automatically exchanged for shares of common stock as a
result of a purported transfer or other event. The price at which we
may purchase the excess stock will be equal to the lesser of:
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in
the case of shares of excess stock resulting from a purported transfer for
value, the price per share in the purported transfer that resulted in the
automatic exchange for shares of excess stock or, in the case of excess
stock resulting from some other event, the market price of the shares of
common stock exchanged on the date of the automatic exchange for excess
stock, and
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the
market price of the shares of common stock exchanged for the excess stock
on the date that we accept the deemed offer to sell the excess
stock.
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Our
purchase right with respect to excess stock will exist for 90 days, beginning on
the date that the automatic exchange for shares of excess stock occurred or, if
we did not receive a notice concerning the purported transfer that resulted in
the automatic exchange for shares of excess stock, the date that our board of
directors determines in good faith that an exchange for excess stock has
occurred.
Other Provisions Concerning the
Restrictions on Ownership
. Our board of directors may exempt
certain persons from the common stock beneficial ownership limit or the
constructive ownership limit if evidence satisfactory to our board of directors
is presented showing that such exemption will not jeopardize our status as a
REIT under the Internal Revenue Code. Before granting an exemption of
this kind, our board of directors may
require a
ruling from the IRS, an opinion of counsel satisfactory to it and
representations and undertakings from the applicant with respect to preserving
our REIT status.
Our board
of directors has, subject to certain conditions and limitations, exempted our
manager, Vornado Realty Trust, and certain of its affiliates from the common
stock beneficial ownership limit. As a result, it is less likely as a
practical matter that another holder of common stock could obtain an
exemption.
The
foregoing restrictions on ownership and transfer will not apply if our board of
directors determines that it is no longer in our best interests to attempt to
qualify, or continue to qualify, as a REIT.
Sections
382 and 383 of the Internal Revenue Code impose limitations upon the utilization
of a corporation’s net operating loss and credit carryforwards and certain other
tax attributes, following significant changes in the corporation’s stock
ownership. In order to preserve our ability to use net operating loss
carryforwards to reduce taxable income, our certificate of incorporation also
contains additional provisions restricting the ownership of our outstanding
shares (the “Section 382 ownership restrictions”). The
Section 382 ownership restrictions merely reduce the risk of certain
occurrences that could cause such a limitation to arise. It is still
possible that, due to transfers (either directly or indirectly) of our
outstanding shares, we could become subject to a limitation under
Section 382 or 383.
Our
certificate of incorporation provides, in general, that, subject to the
exceptions described in the next paragraph, no person may acquire shares of our
company, or options or warrants to acquire such shares, if as a result such
person (or another person to which such shares were attributed under certain
complex attribution rules, which differ in certain respects from those that
apply for purposes of the common stock beneficial ownership limit or the
constructive ownership limit) would own, directly or under such attribution
rules, 5% or more of the class of such outstanding shares (hereinafter, such
person’s “ownership interest percentage”). In addition, subject to
the exceptions described in the next paragraph, no person whose ownership
interest percentage of a class of shares equals or exceeds 5% can acquire or
transfer such shares, or options or warrants to acquire such
shares. The foregoing restrictions apply independently to each class
of our outstanding stock.
The
foregoing restrictions do not apply to (i) acquisitions and transfers of
shares of common stock by certain persons and their affiliates whose ownership
interest percentage of common stock on September 21, 1993 was 5% or more,
(ii) transfers of shares pursuant to an offering by us, to the extent
determined by our board of directors, and (iii) other transfers of shares
specifically approved by our board of directors.
Transfers
of shares, options or warrants in violation of the Section 382 ownership
restrictions would be void, and the transferee would acquire no rights in such
shares, options or warrants. Thus, a purported acquiror would have no
right to vote such shares or to receive dividends. Moreover, upon our
demand, a purported acquiror of shares, options or warrants would be required to
transfer them to an agent designated by us. The agent, generally,
would sell such shares, options or warrants, remit the proceeds thereof to the
purported acquiror to the extent of such person’s purchase price for the shares
and, to the extent possible, remit the balance of the proceeds to such person’s
transferor. A similar procedure would be applied to any dividends
paid to, and to the proceeds of any resale of shares, options or warrants by,
the purported acquiror.
Our board
of directors has the authority to designate a date as of which the
Section 382 ownership restrictions will no longer apply.
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 applicable attribution rules of
the Internal Revenue Code, more than 2% of the shares of outstanding common
stock must give a written notice to us containing the information specified in
our certificate of incorporation by January 31 of each year. In
addition, each stockholder shall upon demand be required to disclose to us such
information as we may request, in good faith, in order to determine our status
as a REIT or to comply with Treasury Regulations promulgated under the REIT
provisions of the Internal Revenue Code.
IMPORTANT
PROVISIONS OF DELAWARE LAW AND OUR CERTIFICATE OF INCORPORATION AND
BY-LAWS
The
following is a summary of important provisions of Delaware law and our
certificate of incorporation and by-laws which affect us and our
stockholders. The description below is intended as only a
summary. You can access complete information by referring to Delaware
General Corporation Law and our certificate of incorporation and
by-laws.
Business
Combinations with Interested Stockholders Under Delaware Law
Section 203
of the Delaware General Corporation Law prevents a publicly held corporation
from engaging in a “business combination” with an “interested stockholder” for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless:
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before
the date on which the person became an interested stockholder, the board
of directors of the corporation approved either the business combination
or the transaction in which the person became an interested
stockholder,
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the
interested stockholder owned at least 85% of the outstanding voting stock
of the corporation at the beginning of the transaction in which it became
an interested stockholder, excluding stock held by directors who are also
officers of the corporation and by employee stock plans that do not
provide participants with the rights to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange
offer, or
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after
the date on which the interested stockholder became an interested
stockholder, the business combination is approved by the board of
directors and the holders of two-thirds of the outstanding voting stock of
the corporation voting at a meeting, excluding the voting stock owned by
the interested stockholder.
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As
defined in Section 203, an “interested stockholder” is generally a person
owning 15% or more of the outstanding voting stock of the
corporation. As defined in Section 203, a “business combination”
includes mergers, consolidations, stock and assets sales and other transactions
with the interested stockholder.
The
provisions of Section 203 may have the effect of delaying, deferring or
preventing a change of control of Alexander’s, Inc.
Amendment
of Our Certificate of Incorporation and By-Laws
Amendments
to our certificate of incorporation must be approved by our board of
directors. Unless otherwise required by law, our board of directors
may amend our by-laws by a majority vote of the directors then in
office.
Meetings
of Stockholders
Under our
by-laws, we will hold annual meetings of our stockholders at a date and time as
determined by our board of directors, chairman, vice chairman or
president. Our by-laws require advance notice for our stockholders to
make nominations of candidates for our board of directors or bring other
business before an annual meeting of our stockholders. The chairman
or vice chairman shall call special meetings of our stockholders whenever
stockholders owning at least a majority of our issued and outstanding shares
entitled to vote on matters to be submitted to stockholders shall request in
writing such a meeting.
Board
of Directors
Our board
of directors is divided into three classes. As the term of each class
expires, directors in that class will be elected for a term of three years and
until their successors are duly elected and qualified. These
staggered terms may reduce the possibility of an attempt to change control of
Alexander’s.
DESCRIPTION OF DEBT WARRANTS
We may
issue, either together with other debt securities or separately, debt warrants
to purchase underlying debt securities. We will issue debt warrants,
if any, under warrant agreements (each, a “debt warrant agreement”) that would
be between us and a bank or trust company, as warrant agent (the “debt warrant
agent”), that we will describe in a prospectus supplement.
General
You
should read the applicable prospectus supplement for the terms of the offered
debt warrants, including the following:
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the
title and aggregate number of such debt
warrants,
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the
initial offering price and the procedures for adjusting the initial
offering price,
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the
currency, currencies or currency units in which the debt warrants are
payable,
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the
designation, aggregate principal amount and other terms of the debt
securities purchasable upon exercise of the debt
warrants,
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if
applicable, the designation and terms of the debt securities with which
the debt warrants are issued and the number of debt warrants issued with
each debt security,
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the
currency, currencies or currency units in which the principal of, premium,
if any, or interest, if any, is payable on the debt securities purchasable
upon exercise of the debt warrants,
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if
applicable, the date on and after which the debt warrants and the related
debt securities will be separately
transferable,
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the
principal amount of debt securities purchasable upon exercise of one debt
warrant and the price at which such principal amount of debt securities
may be purchased upon such
exercise,
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the
date on which the right to exercise the debt warrants will commence and
the date on which such right will
expire,
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the
maximum or minimum number of debt warrants which may be exercised at any
time,
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if
applicable, a discussion of the material Federal income tax consequences
applicable to the exercise of the debt warrants and to the debt securities
purchasable upon the exercise of the debt warrants,
and
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any
other terms of the debt warrants.
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Debt
warrant certificates may be exchanged for new debt warrant certificates of
different denominations and, if in registered form, may be presented for
registration of transfer, and may be exercised at the corporate trust office of
the debt warrant agent or any other office indicated in the prospectus
supplement relating thereto. Prior to the exercise of the debt
warrants, holders will not have any of the rights of holders of debt securities
purchasable upon such exercise and will not be entitled to payments of
principal, premium, if any, or interest, if any, on such debt
securities.
Exercise
of Debt Warrants
Each
offered debt warrant will entitle the holder thereof to purchase such principal
amount of underlying debt securities at the exercise price set forth in, or
calculable from, the prospectus supplement relating to such offered debt
warrants. After the close of business on the expiration date,
unexercised debt warrants will become void.
You may
exercise debt warrants by payment to the debt warrant agent of the applicable
exercise price and by delivery to the debt warrant agent of the related debt
warrant certificate, properly completed. Upon receipt of such payment
and the properly completed debt warrant certificates at the corporate trust
office of the debt warrant agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, deliver the amount of the
underlying debt securities purchased upon such exercise. If fewer
than all of the debt warrants represented by any debt warrant certificate are
exercised, a new debt warrant certificate will be issued for the unexercised
debt warrants. If you hold a debt warrant, you must pay any tax or
other governmental charge that may be imposed in connection with any transfer
involved in the issuance of underlying debt securities purchased upon such
exercise.
LEGAL
OWNERSHIP AND BOOK-ENTRY ISSUANCE
In this
section, we describe special considerations that will apply to registered
securities issued in global, i.e., book-entry form. First we describe
the difference between legal ownership and indirect ownership of registered
securities. Then we describe special provisions that apply to global
securities.
WHO
IS THE LEGAL OWNER OF A REGISTERED SECURITY?
Each debt
security, share of common or preferred stock and depositary share in registered
form will be represented either by a certificate issued in definitive form to a
particular investor or by one or more global securities representing the entire
issuance of securities. We refer to those who have securities
registered in their own names, on the books that we or the trustee or other
agent maintain for this purpose, as the “holders” of those
securities. These persons are the legal holders of the
securities. We refer to those who, indirectly through others, own
beneficial interests in securities that are not registered in their own names as
indirect owners of those securities. As we discuss below, indirect
owners are not legal holders, and investors in securities issued in book-entry
form or in street name will be indirect owners.
BOOK-ENTRY
OWNERS
We expect
to issue debt securities, shares of preferred stock and depositary shares in
book-entry form only. However, we may issue shares of common stock in
book-entry form. This means those securities will be represented by
one or more global securities registered in the name of a financial institution
that holds them as depositary on behalf of other financial institutions that
participate in the depositary’s book-entry system. These
participating institutions, in turn, hold beneficial interests in the securities
on behalf of themselves or their customers.
Under
each indenture or other applicable agreement, only the person in whose name a
security is registered is recognized as the holder of that
security. Consequently, for securities issued in global form, we will
recognize only the depositary as the holder of the securities and we will make
all payments on the securities, including deliveries of shares of common or
preferred stock in exchange for exchangeable debt securities, to the
depositary. The depositary passes along the payments it receives to
its participants, which in turn pass the payments along to their customers who
are the beneficial owners. The depositary and its participants do so
under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As a
result, investors will not own securities directly. Instead, they
will own beneficial interests in a global security, through a bank, broker or
other financial institution that participates in the depositary’s book-entry
system or holds an interest through a participant. As long as the
securities are issued in global form, investors will be indirect owners, and not
holders, of the securities.
STREET
NAME OWNERS
In the
future we may terminate a global security or issue securities initially in
non-global form. In these cases, investors may choose to hold their
securities in their own names or in street name. Securities held by
an investor in street name would be registered in the name of a bank, broker or
other financial institution that the investor chooses, and the investor would
hold only a beneficial interest in those securities through an account he or she
maintains at that institution.
For
securities held in street name, we will recognize only the intermediary banks,
brokers and other financial institutions in whose names the securities are
registered as the holders of those securities and we will make all payments on
those securities, including deliveries of common or preferred shares in exchange
for exchangeable debt securities, to them. These institutions pass
along the payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. Investors who hold
securities in street name will be indirect owners, not holders, of those
securities.
LEGAL
HOLDERS
Our
obligations, as well as the obligations of the trustee under either indenture
and the obligations, if any, of any other third parties employed by us, the
trustee or any agents, run only to the holders of the securities. We
do not have obligations to investors who hold beneficial interests in global
securities, in street name or by any other indirect means. This will
be the case whether an investor chooses to be an indirect owner of a security or
has no choice because we are issuing the securities only in global
form.
For
example, once we make a payment or give a notice to the holder, we have no
further responsibility for that payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect owners but does not do
so. Similarly, if we want to obtain the approval of the holders for
any purpose, e.g., to amend the indenture for a series of debt securities or to
relieve us of the consequences of a default or of our obligation to comply with
a particular provision of an indenture, we would seek the approval only from the
holders, and not the indirect owners, of the relevant
securities. Whether and how the holders contact the indirect owners
is up to the holders.
When we
refer to “you” in this section of the prospectus, we mean those who invest in
the securities being offered by this prospectus, whether they are the holders or
only indirect owners of those securities. When we refer to “your
securities” in this section of the prospectus, we mean the securities in which
you will hold a direct or indirect interest.
SPECIAL
CONSIDERATIONS FOR INDIRECT OWNERS
If you
hold securities through a bank, broker or other financial institution, either in
book-entry form or in street name, you should check with your own institution to
find out:
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how
it handles securities payments and
notices,
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whether
it imposes fees or charges,
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how
it would handle a request for the holders’ consent, if ever
required,
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whether
and how you can instruct it to send you securities registered in your own
name so you can be a holder, if that is permitted in the
future,
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how
it would exercise rights under the securities if there were a default or
other event triggering the need for holders to act to protect their
interests, and
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if
the securities are in book-entry form, how the depositary’s rules and
procedures will affect these
matters.
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WHAT
IS A GLOBAL SECURITY?
A global
security is issued in book-entry form only. Each security issued in
book-entry form will be represented by a global security that we deposit with
and register in the name of one or more financial institutions or clearing
systems, or their nominees, which we select. A financial institution
or clearing system that we select for any security for this purpose is called
the “depositary” for that security. A security will usually have only
one depositary but it may have more.
Each
series of these securities will have one or more of the following as the
depositaries:
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The
Depository Trust Company, New York, New York, which is known as
“DTC,”
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a
financial institution holding the securities on behalf of Euroclear Bank
S.A./N.V., as operator of the Euroclear system, which is known as
“Euroclear,”
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any
other clearing system or financial institution named in the applicable
prospectus supplement.
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The
depositaries named above may also be participants in each other’s
systems. Thus, for example, if DTC is the depositary for a global
security, investors may hold beneficial interests in that security through
Euroclear or Clearstream, as DTC participants. The depositary or
depositaries for your securities will be named in your prospectus supplement and
if none is named, the depositary will be DTC.
A global
security may represent one or any other number of individual
securities. Generally, all securities represented by the same global
security will have the same terms. We may, however, issue a global
security that represents multiple securities of the same kind, such as debt
securities, that have different terms and are issued at different
times. We call this kind of global security a master global
security. Your prospectus supplement will indicate whether your
securities are represented by a master global security.
A global
security may not be transferred to or registered in the name of anyone other
than the depositary or its nominee, unless special termination situations
arise. We describe those situations below under “—Holder’s Option to
Obtain a Non-Global Security; Special Situations When a Global Security Will Be
Terminated.” As a result of these arrangements, the depositary, or
its nominee, will be the sole registered owner and holder of all securities
represented by a global security, and investors will be permitted to own only
indirect interests in a global security. Indirect interests must be
held by means of an account with a broker, bank or other financial institution
that in turn has an account with the depositary or with another institution that
does. Thus, an investor whose security is represented by a global
security will not be a holder of the security, but only an indirect owner of an
interest in the global security.
If the
prospectus supplement for a particular security indicates that the security will
be issued in global form only, then the security will be represented by a global
security at all times unless and until the global security is
terminated. We describe the situations in which this can occur below
under “—Holder’s Option to Obtain a Non-Global Security; Special Situations When
a Global Security Will Be Terminated.” If termination occurs, we may
issue the securities through another book-entry clearing system or decide that
the securities may no longer be held through any book-entry clearing
system.
SPECIAL
CONSIDERATIONS FOR GLOBAL SECURITIES
As an
indirect owner, an investor’s rights relating to a global security will be
governed by the account rules of the depositary and those of the investor’s
financial institution or other intermediary through which it holds its interest
(e.g., Euroclear or Clearstream, if DTC is the depositary), as well as general
laws relating to securities transfers. We do not recognize this type
of investor or any intermediary as a holder of securities and instead deal only
with the depositary that holds the global security.
If
securities are issued only in the form of a global security, an investor should
be aware of the following:
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an
investor cannot cause the securities to be registered in his or her own
name, and cannot obtain non-global certificates for his or her interest in
the securities, except in the special situations we describe
below,
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an
investor will be an indirect holder and must look to his or her own bank
or broker for payments on the securities and protection of his or her
legal rights relating to the securities, as we describe above under “—Who
Is the Legal Owner of a Registered
Security?,”
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an
investor may not be able to sell interests in the securities to some
insurance companies and other institutions that are required by law to own
their securities in non-book-entry
form,
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an
investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective,
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time. We,
the trustee and any agents will have no responsibility for any aspect of
the depositary’s policies, actions or records of ownership interests in a
global security. We, the trustee and any agents also do not
supervise the depositary in any
way,
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the
depositary will require that those who purchase and sell interests in a
global security within its book-entry system use immediately available
funds and your broker or bank may require you to do so as well,
and
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financial
institutions that participate in the depositary’s book-entry system and
through which an investor holds its interest in the global securities,
directly or indirectly, may also have their own policies affecting
payments, deliveries, transfers, exchanges, notices and other matters
relating to the securities, and those policies may change from time to
time. For example, if you hold an interest in a global security
through Euroclear or Clearstream, when DTC is the depositary, Euroclear or
Clearstream, as applicable, will require those who purchase and sell
interests in that security through them to use immediately available funds
and comply with other policies and procedures, including deadlines for
giving instructions as to transactions that are to be effected on a
particular day. There may be more than one financial
intermediary in the chain of ownership for an investor. We do
not monitor and are not responsible for the policies or actions or records
of ownership interests of any of those
intermediaries.
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HOLDER’S
OPTION TO OBTAIN A NON-GLOBAL SECURITY; SPECIAL SITUATIONS WHEN A GLOBAL
SECURITY WILL BE TERMINATED
If we
issue any series of securities in book-entry form but we choose to give the
beneficial owners of that series the right to obtain non-global securities, any
beneficial owner entitled to obtain non-global securities may do so by following
the applicable procedures of the depositary, any transfer agent or registrar for
that series and that owner’s bank, broker or other financial institution through
which that owner holds its beneficial interest in the securities. For
example, in the case of a global security representing shares of preferred stock
or depositary shares, a beneficial owner will be entitled to obtain a non-global
security representing its interest by making a written request to the transfer
agent or other agent designated by us. If you are entitled to request
a non-global certificate and wish to do so, you will need to allow sufficient
lead-time to enable us or our agent to prepare the requested
certificate.
In
addition, in a few special situations described below, a global security will be
terminated and interests in it will be exchanged for certificates in non-global
form representing the securities it represented. After that exchange,
the choice of whether to hold the securities directly or in street name will be
up to the investor. Investors must consult their own banks or brokers
to find out how to have their interests in a global security transferred on
termination to their own names, so that they will be holders. We have
described the rights of holders and street name investors above under “—Who Is
the Legal Owner of a Registered Security?”
The
special situations for termination of a global security are as
follows:
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if
the depositary notifies us that it is unwilling or unable to continue as
depositary for that global security or the depositary has ceased to be a
clearing agency registered under the Securities Exchange Act of 1934, and
in either case we do not appoint another institution to act as depositary
within 90 days,
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in
the case of a global security representing debt securities, if an event of
default has occurred with regard to the debt securities and has not been
cured or waived, or
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any
other circumstances specified for this purpose in the applicable
prospectus supplement.
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If a
global security is terminated, only the depositary, and not we or the trustee
for any debt securities, is responsible for deciding the names of the
institutions in whose names the securities represented by the global security
will be registered and, therefore, who will be the holders of those
securities.
CONSIDERATIONS
RELATING TO EUROCLEAR AND CLEARSTREAM
Euroclear
and Clearstream are securities clearance systems in Europe. Both
systems clear and settle securities transactions between their participants
through electronic, book-entry delivery of securities against
payment.
Euroclear
and Clearstream may be depositaries for a global security. In
addition, if DTC is the depositary for a global security, Euroclear and
Clearstream may hold interests in the global security as participants in
DTC.
As long
as any global security is held by Euroclear or Clearstream, as depositary, you
may hold an interest in the global security only through an organization that
participates, directly or indirectly, in Euroclear or Clearstream. If
Euroclear or Clearstream is the depositary for a global security and there is no
depositary in the United States, you will not be able to hold interests in that
global security through any securities clearance system in the United
States.
Payments,
deliveries, transfers, exchanges, notices and other matters relating to the
securities made through Euroclear or Clearstream must comply with the rules and
procedures of those systems. Those systems could change their rules
and procedures at any time. We have no control over those systems or
their participants and we take no responsibility for their
activities. Transactions between participants in Euroclear or
Clearstream, on one hand, and participants in DTC, on the other hand, when DTC
is the depositary, would also be subject to DTC’s rules and
procedures.
SPECIAL
TIMING CONSIDERATIONS FOR TRANSACTIONS IN EUROCLEAR AND CLEARSTREAM
Investors
will be able to make and receive through Euroclear and Clearstream payments,
deliveries, transfers, exchanges, notices and other transactions involving any
securities held through those systems only on days when those systems are open
for business. Those systems may not be open for business on days when
banks, brokers and other institutions are open for business in the United
States.
In
addition, because of time-zone differences, U.S. investors who hold their
interests in the securities through these systems and wish to transfer their
interests, or to receive or make a payment or delivery or exercise any other
right with respect to their interests, on a particular day may find that the
transaction will not be affected until the next business day in Luxembourg or
Brussels, as applicable. Thus, investors who wish to exercise rights
that expire on a particular day may need to act before the expiration
date. In addition, investors who hold their interests through both
DTC and Euroclear or Clearstream may need to make special arrangements to
finance any purchases or sales of their interests between the U.S. and European
clearing systems, and those transactions may settle later than would be the case
for transactions within one clearing system.
CERTAIN
FEDERAL INCOME TAX CONSIDERATIONS
The
following discussion summarizes the taxation of Alexander’s, Inc. and the
material Federal income tax consequences to holders of the common stock,
preferred stock, debt warrants and debt securities that are not original issue
discount or zero coupon debt securities for your general information
only. It is not tax advice. The tax treatment of these
holders will vary depending upon the holder’s particular situation, and this
discussion addresses only holders that hold these securities as capital assets
and does not deal with all aspects of taxation that may be relevant to
particular holders in light of their personal investment or tax
circumstances. This section also does not deal with all aspects of
taxation that may be relevant to certain types of holders to which special
provisions of the Federal income tax laws apply, including:
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dealers
in securities or currencies,
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traders
in securities that elect to use a mark-to-market method of accounting for
their securities holdings,
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banks,
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tax-exempt
organizations,
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certain
insurance companies,
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persons
liable for the alternative minimum
tax,
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persons
that hold securities that are a hedge, that are hedged against interest
rate or currency risks or that are part of a straddle or conversion
transaction, and
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U.S.
shareholders or U.S. debt security holders whose functional currency is
not the U.S. dollar.
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This
summary is based on the Internal Revenue Code, its legislative history, existing
and proposed regulations under the Internal Revenue Code, published rulings and
court decisions. This summary describes the provisions of these
sources of law only as they are currently in effect. All of these
sources of law may change at any time, and any change in the law may apply
retroactively.
WE URGE
YOU TO CONSULT WITH YOUR OWN TAX ADVISORS REGARDING THE TAX CONSEQUENCES TO YOU
OF ACQUIRING, OWNING AND SELLING SHARES OF COMMON STOCK, PREFERRED STOCK AND
FIXED RATE DEBT SECURITIES, INCLUDING THE FEDERAL, STATE, LOCAL AND FOREIGN TAX
CONSEQUENCES OF ACQUIRING, OWNING AND SELLING THESE SECURITIES IN YOUR
PARTICULAR CIRCUMSTANCES AND POTENTIAL CHANGES IN APPLICABLE LAWS.
TAXATION
OF ALEXANDER’S, INC. AS A REIT
In the
opinion of Shearman & Sterling LLP, commencing with its taxable year ended
December 31, 1995, Alexander’s, Inc. has been organized and operated in
conformity with the requirements for qualification and taxation as a REIT under
the Internal Revenue Code, and Alexander’s, Inc.’s proposed method of operation
will enable it to continue to meet the requirements for qualification and
taxation as a REIT under the Internal Revenue Code. Investors should
be aware, however, that opinions of counsel are not binding upon the IRS or any
court.
In
providing its opinion, Shearman & Sterling LLP is relying, as to certain
factual matters, upon the statements and representations contained in
certificates provided to Shearman & Sterling LLP by Alexander’s,
Inc.
Alexander’s,
Inc.’s qualification as a REIT will depend upon the continuing satisfaction by
Alexander’s, Inc. of the requirements of the Internal Revenue Code relating to
qualification for REIT status. Some of these requirements depend upon
actual operating results, distribution levels, diversity of stock ownership,
asset composition, source of income and record keeping. Accordingly,
while Alexander’s, Inc. intends to continue to qualify to be taxed as a REIT,
the actual results of Alexander’s, Inc.’s operations for any particular year
might not
satisfy
these requirements. Shearman & Sterling LLP will not monitor the
compliance of Alexander’s, Inc. with the requirements for REIT qualification on
an ongoing basis.
The
sections of the Internal Revenue Code applicable to REITs are highly technical
and complex. The following discussion summarizes material aspects of
these sections of the Internal Revenue Code.
As a
REIT, Alexander’s, Inc. generally will not have to pay Federal corporate income
taxes on its net income that it currently distributes to
stockholders. This treatment substantially eliminates the “double
taxation” at the corporate and stockholder levels that generally results from
investment in a regular corporation.
However,
Alexander’s, Inc. will have to pay Federal income tax as follows:
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First,
Alexander’s, Inc. will have to pay tax at regular corporate rates on any
undistributed real estate investment trust taxable income, including
undistributed net capital gains.
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Second,
under certain circumstances, Alexander’s, Inc. may have to pay the
alternative minimum tax on its items of tax
preference.
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Third,
if Alexander’s, Inc. has (a) net income from the sale or other
disposition of “foreclosure property,” as defined in the Internal Revenue
Code, which is held primarily for sale to customers in the ordinary course
of business, or (b) other non-qualifying income from foreclosure
property, it will have to pay tax at the highest corporate rate on that
income.
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Fourth,
if Alexander’s, Inc. has net income from “prohibited transactions,” as
defined in the Internal Revenue Code, Alexander’s, Inc. will have to pay a
100% tax on that income. Prohibited transactions are, in
general, certain sales or other dispositions of property, other than
foreclosure property, held primarily for sale to customers in the ordinary
course of business.
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Fifth,
if Alexander’s, Inc. fails to satisfy the 75% gross income test or the 95%
gross income test, as discussed below under “—Requirements for
Qualification—Income Tests,” but has nonetheless maintained its
qualification as a REIT because Alexander’s, Inc. has satisfied some other
requirements, it will have to pay a 100% tax on an amount equal to
(a) the gross income attributable to the greater of (i) 75% of
Alexander’s, Inc.’s gross income over the amount of gross income that is
qualifying income for purposes of the 75% test, and (ii) 90% of
Alexander’s, Inc.’s gross income (95% for taxable years ending before
January 1, 2001) over the amount of gross income that is qualifying
income for purposes of the 95% test, multiplied by (b) a fraction
intended to reflect Alexander’s, Inc.’s
profitability.
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Sixth,
if Alexander’s, Inc. fails to distribute during each calendar year at
least the sum of (1) 85% of its REIT ordinary income for that year,
(2) 95% of its REIT capital gain net income for that year and
(3) any undistributed taxable income from prior periods, Alexander’s,
Inc. would have to pay a 4% excise tax on the excess of that required
distribution over the amounts actually
distributed.
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Seventh,
if Alexander’s, Inc. acquires any asset from a C corporation in certain
transactions in which Alexander’s, Inc. must adopt the basis of the asset
or any other property in the hands of the C corporation as the basis of
the asset in the hands of Alexander’s, Inc., and Alexander’s, Inc.
recognizes gain on the disposition of that asset during the 10-year period
beginning on the date on which Alexander’s, Inc. acquired that asset, then
Alexander’s, Inc. will have to pay tax on the built-in gain at the highest
regular corporate rate. A C corporation means generally a
corporation that has to pay full corporate-level
tax.
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Eighth,
if Alexander’s, Inc. receives non-arm’s length income from a taxable REIT
subsidiary (as defined under “—Requirements for Qualification—Asset
Tests”), or as a result of services provided by a taxable REIT subsidiary
to tenants of Alexander’s, Inc., Alexander’s, Inc. will be subject to a
100% tax on the amount of Alexander’s, Inc.’s non-arm’s length
income.
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Ninth,
if Alexander’s, Inc. fails to satisfy a REIT asset test, as described
below, due to reasonable cause and Alexander’s, Inc. nonetheless maintains
its REIT qualification because of specified cure
provisions,
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Alexander’s,
Inc. will generally be required to pay a tax equal to the greater
of $50,000 or the highest corporate tax rate multiplied by the net income
generated by the nonqualifying assets that caused Alexander’s, Inc. to
fail such test.
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Tenth,
if Alexander’s, Inc. fails to satisfy any provision of the Code that would
result in its failure to qualify as a REIT (other than a violation of the
REIT gross income tests or a violation of the asset tests described below)
and the violation is due to reasonable cause, Alexander’s, Inc. may retain
its REIT qualification but will be required to pay a penalty of $50,000
for each such failure.
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Alexander’s,
Inc. has a net operating loss carryover as of December 31, 2007 of
approximately $4,212,000. The net operating loss carryover would be
available to reduce its REIT taxable income as well as any built-in gain that it
recognizes. The amount of the net operating loss carryover is subject
to audit and adjustment by the IRS.
REQUIREMENTS
FOR QUALIFICATION
The
Internal Revenue Code defines a REIT as a corporation, trust or association
which is managed by one or more trustees or directors:
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the
beneficial ownership of which is evidenced by transferable shares, or by
transferable certificates of beneficial
interest,
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which
would otherwise be taxable as a domestic corporation, but for Sections 856
through 859 of the Internal Revenue
Code,
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which
is neither a financial institution nor an insurance company to which
certain provisions of the Internal Revenue Code
apply,
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the
beneficial ownership of which is held by 100 or more
persons,
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during
the last half of each taxable year, not more than 50% in value of the
outstanding stock of which is owned, directly or constructively, by five
or fewer individuals, as defined in the Internal Revenue Code to include
certain entities, and
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which
meets certain other tests, described below, regarding the nature of its
income and assets.
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The
Internal Revenue Code provides that the conditions described in the first
through fourth bullet points above must be met during the entire taxable year
and that the condition described in the fifth bullet point above 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.
Alexander’s,
Inc. has satisfied the conditions described in the first through fifth bullet
points of the preceding paragraph and believes that it also has satisfied the
condition described in the sixth bullet point of the preceding
paragraph. In addition, Alexander’s, Inc.’s certificate of
incorporation provides for restrictions regarding the ownership and transfer of
Alexander’s, Inc.’s shares. These restrictions are intended to assist
Alexander’s, Inc. in continuing to satisfy the share ownership requirements
described in the fourth and fifth bullet points of the preceding
paragraph. The ownership and transfer restrictions pertaining to the
common stock are described in this prospectus under the heading “Description of
Common Stock—Restrictions on Ownership of Common Stock.”
Alexander’s,
Inc. owns a number of wholly-owned corporate subsidiaries. Internal
Revenue Code Section 856(i) provides that unless a REIT makes an
election to treat the corporation as a taxable REIT subsidiary, a corporation
which is a “qualified REIT subsidiary,” as defined in the Internal Revenue Code,
will not be treated as a separate corporation, and all assets, liabilities and
items of income, deduction and credit of a qualified REIT subsidiary will be
treated as assets, liabilities and items of these kinds of the
REIT. Thus, in applying the requirements described in this section,
Alexander’s, Inc.’s qualified REIT subsidiaries will be ignored, and all assets,
liabilities and items of income, deduction and credit of these subsidiaries will
be treated as assets, liabilities and items of these kinds of Alexander’s, Inc.
Alexander’s, Inc. believes that all of its wholly-owned corporate subsidiaries
are qualified REIT subsidiaries, except
Alexander’s
of Brooklyn II LLC, Kings Plaza Lender LLC and Rego Park Residential LLC, whch
are taxable REIT subsidiaries, as are SMB Tenant Services, SMB Tenant Services
Floaters LLC, SMB Holding LLC and Vornado Office Inc.
If a REIT
is a partner in a partnership, Treasury regulations provide that the REIT will
be deemed to own its proportionate share of the assets of the partnership and
will be deemed to be entitled to the income of the partnership attributable to
that share. In addition, the character of the assets and gross income
of the partnership will retain the same character in the hands of the REIT for
purposes of Section 856 of the Internal Revenue Code, including satisfying
the gross income tests and the asset tests. Thus, Alexander’s, Inc.’s
proportionate share of the assets, liabilities and items of income of any
partnership in which Alexander’s, Inc. is a partner will be treated as assets,
liabilities and items of income of Alexander’s, Inc. for purposes of applying
the requirements described in this section. Thus, actions taken by
partnerships in which Alexander’s, Inc. owns an interest, either directly or
through one or more tiers of partnerships or qualified REIT subsidiaries, can
affect Alexander’s, Inc.’s ability to satisfy the REIT income and assets tests
and the determination of whether Alexander’s, Inc. has net income from
prohibited transactions. See the fourth bullet point under “—Taxation
of Alexander’s, Inc. as a REIT” above for a discussion of prohibited
transactions. Alexander’s, Inc. is not currently a partner in a
partnership.
Taxable REIT Subsidiaries.
A
taxable REIT subsidiary is any corporation in which a REIT directly or
indirectly owns stock, provided that the REIT and that corporation make a joint
election to treat that corporation as a taxable REIT subsidiary. The election
can be revoked at any time as long as the REIT and the taxable REIT subsidiary
revoke such election jointly. In addition, if a taxable REIT subsidiary holds,
directly or indirectly, more than 35% of the securities of any other corporation
other than a REIT (by vote or by value), then that other corporation is also
treated as a taxable REIT subsidiary. A corporation can be a taxable REIT
subsidiary with respect to more than one REIT.
A taxable
REIT subsidiary is subject to Federal income tax at regular corporate rates
(currently a maximum rate of 35%), and may also be subject to state and local
taxation. Any dividends paid or deemed paid by any one of Alexander’s, Inc.’s
taxable REIT subsidiaries will also be taxable, either (1) to Alexander’s, Inc.
to the extent the dividend is retained by Alexander’s, Inc., or (2) to
Alexander’s, Inc.’s shareholders to the extent the dividends received from the
taxable REIT subsidiary are paid to Alexander’s, Inc.’s shareholders.
Alexander’s, Inc. may hold more than 10% of the stock of a taxable REIT
subsidiary without jeopardizing its qualification as a REIT notwithstanding the
rule described below under “—Asset Tests” that generally precludes ownership of
more than 10% of any issuer’s securities. However, as noted below, in order for
Alexander’s, Inc. to qualify as a REIT, the securities of all of the taxable
REIT subsidiaries in which it has invested either directly or indirectly may not
represent more than 20% (25% for taxable years beginning on or after January 1,
2009) of the total value of its assets. Alexander’s, Inc. expects that the
aggregate value of all of its interests in taxable REIT subsidiaries will
represent less than 20% (or 25%, after 2008) of the total value of its
assets; however, Alexander’s, Inc. cannot assure that this will always be true.
Other than certain activities related to operating or managing a lodging or
health care facility as more fully described below under “—Income Tests,” a
taxable REIT subsidiary may generally engage in any business including the
provision of customary or non-customary services to tenants of the parent
REIT.
INCOME
TESTS. In order to maintain its qualification as a REIT, Alexander’s,
Inc. annually must satisfy two gross income requirements.
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First,
Alexander’s, Inc. must derive at least 75% of its gross income, excluding
gross income from prohibited transactions, for each taxable year directly
or indirectly from investments relating to real property or mortgages on
real property, including “rents from real property,” as defined in the
Internal Revenue Code, or from certain types of temporary
investments. Rents from real property generally include
expenses of Alexander’s, Inc. that are paid or reimbursed by
tenants.
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Second,
at least 95% of Alexander’s, Inc.’s gross income, excluding gross income
from prohibited transactions, for each taxable year must be derived from
real property investments as described in the preceding bullet point,
dividends, interest and gain from the sale or disposition of stock or
securities, or from any combination of these types of
source.
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Rents
that Alexander’s, Inc. receives will qualify as rents from real property in
satisfying the gross income requirements for a REIT described above only if the
rents satisfy several conditions.
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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 rents from real property solely
because it is based on a fixed percentage or percentages of receipts or
sales.
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Second,
the Internal Revenue Code provides that rents received from a tenant will
not qualify as rents from real property in satisfying the gross income
tests if the REIT, directly or under the applicable attribution rules,
owns a 10% or greater interest in that tenant; except that for tax years
beginning after December 31, 2000, rents received from a taxable REIT
subsidiary under certain circumstances qualify as rents from real property
even if Alexander’s, Inc. owns more than a 10% interest in the
subsidiary. We refer to a tenant in which Alexander’s, Inc.
owns a 10% or greater interest as a “related party
tenant.”
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Third,
if rent attributable to personal property leased in connection with a
lease of real property is greater than 15% of the total rent received
under the lease, then the portion of rent attributable to the personal
property will not qualify as rents from real
property.
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Finally,
for rents received to qualify as rents from real property, the REIT
generally must not operate or manage the property or furnish or render
services to the tenants of the property, other than through an independent
contractor from whom the REIT derives no revenue or through a taxable REIT
subsidiary. However, Alexander’s, Inc. may directly perform
certain services that landlords usually or customarily render when renting
space for occupancy only or that are not considered rendered to the
occupant of the property.
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Alexander’s,
Inc. does not derive significant rents from related party
tenants. Alexander’s, Inc. also does not and will not derive rental
income attributable to personal property, other than personal property leased in
connection with the lease of real property, the amount of which is less than 15%
of the total rent received under the lease.
Alexander’s,
Inc. directly performs services for some of its tenants. Alexander’s,
Inc. does not believe that the provision of these services will cause its gross
income attributable to these tenants to fail to be treated as rents from real
property. If Alexander’s, Inc. were to provide services to a tenant
that are other than those landlords usually or customarily provide when renting
space for occupancy only, amounts received or accrued by Alexander’s, Inc. for
any of these services will not be treated as rents from real property for
purposes of the REIT gross income tests. However, the amounts
received or accrued for these services will not cause other amounts received
with respect to the property to fail to be treated as rents from real property
unless the amounts treated as received in respect of the services, together with
amounts received for certain management services, exceed 1% of all amounts
received or accrued by Alexander’s, Inc. during the taxable year with respect to
the property. If the sum of the amounts received in respect of the
services to tenants and management services described in the preceding sentence
exceeds the 1% threshold, then all amounts received or accrued by Alexander’s,
Inc. with respect to the property will not qualify as rents from real property,
even if Alexander’s, Inc. provides the impermissible services to some, but not
all, of the tenants of the property.
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 because
it is based on a fixed percentage or percentages of receipts or
sales.
From time
to time, Alexander’s, Inc. may enter into hedging transactions with respect to
one or more of its assets or liabilities. Alexander’s, Inc.’s hedging activities
may include entering into interest rate swaps, caps, and floors, options to
purchase these items, and futures and forward contracts. Except to the extent
provided by Treasury Regulations, any income Alexander’s, Inc. derives from a
hedging transaction that is clearly identified as such as specified in the Code,
including gain from the sale or disposition of such a transaction, will not
constitute gross income for purposes of the 75% or 95% gross income tests, and
therefore will be exempt from these tests, but only to the extent that the
transaction hedges indebtedness incurred or to be incurred by us to acquire or
carry real estate.
The term
“hedging transaction,” as used above, generally means any transaction
Alexander’s, Inc. enters into in the normal course of its business primarily to
manage risk of interest rate or price changes or currency fluctuations with
respect to borrowings made or to be made, or ordinary obligations incurred or to
be incurred, by Alexander’s, Inc. Alexander’s, Inc. intends to structure any
hedging transactions in a manner that does not jeopardize its status as a
REIT.
If
Alexander’s, Inc. fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for that year
if it satisfies the requirements of other provisions of the Internal Revenue
Code that allow relief from disqualification as a REIT. These relief
provisions generally will be available if:
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Alexander’s,
Inc.’s failure to meet the income tests was due to reasonable cause and
not due to willful neglect; and
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Alexander’s,
Inc. files a schedule of each item of income in excess of the limitations
described above in accordance with regulations to be prescribed by the
IRS
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Alexander’s,
Inc. might not be entitled to the benefit of these relief provisions,
however. As discussed in the fifth bullet point under “—Taxation of
Alexander’s, Inc. as a REIT” above, even if these relief provisions apply,
Alexander’s, Inc. would have to pay a tax on the excess income.
ASSET
TESTS. Alexander’s, Inc., at the close of each quarter of its taxable
year, also must satisfy various tests relating to the nature of its
assets.
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First,
at least 75% of the value of Alexander’s, Inc.’s total assets must be
represented by real estate assets, including (a) real estate assets
held by Alexander’s, Inc.’s qualified REIT subsidiaries, Alexander’s,
Inc.’s allocable share of real estate assets held by partnerships in which
Alexander’s, Inc. owns an interest and stock issued by another REIT,
(b) for a period of one year from the date of Alexander’s, Inc.’s
receipt of proceeds of an offering of its shares of beneficial interest or
publicly offered debt with a term of at least five years, stock or debt
instruments purchased with these proceeds and (c) cash, cash items
and government securities.
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Second,
not more than 25% of Alexander’s, Inc.’s total assets may be represented
by securities other than those in the 75% asset
class.
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Third,
for taxable years beginning after December 31, 2000, but before
January 1, 2009, not more than 20% (25% for taxable years beginning on or
after January 1, 2009) of Alexander’s, Inc.’s total assets may constitute
securities issued by taxable REIT subsidiaries and, of the investments
included in the 25% asset class, the value of any one issuer’s securities,
other than equity securities issued by another REIT or by a taxable REIT
subsidiary, owned by Alexander’s, Inc. may not exceed 5% of the value of
Alexander’s, Inc.’s total assets. Moreover, Alexander’s, Inc.
may not own more than 10% of the vote or value of the outstanding
securities of any one issuer, except for issuers that are REITs, qualified
REIT subsidiaries or taxable REIT subsidiaries, or certain securities that
qualify under a safe harbor provision of the Code (such as so-called
“straight-debt” securities). Also, solely for the purposes of the 10%
value test described above, the determination of Alexander’s, Inc.’s
interest in the assets of any partnership or limited liability company in
which it owns an interest will be based on Alexander’s, Inc.’s
proportionate interest in any securities issued by the partnership or
limited liability company, excluding for this purpose certain securities
described in the Code. As a consequence, if the IRS successfully
challenges the partnership status of any of the partnerships in which
Alexander’s, Inc. maintains an interest, and the partnership is
reclassified as a corporation or a publicly traded partnership taxable as
a corporation Alexander’s, Inc. could lose its REIT
status.
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Certain
relief provisions may be available to Alexander’s, Inc. if it fails to satisfy
the asset tests described above after the 30 day cure period. Under these
provisions, Alexander’s, Inc. will be deemed to have met the 5% and 10% REIT
asset tests if the value of its nonqualifying assets (i) does not exceed the
lesser of (a) 1% of the total value of its assets at the end of the applicable
quarter and (b) $10,000,000, and (ii) Alexander’s, Inc. disposes of the
nonqualifying assets within (a) six months after the last day of the quarter in
which the failure to satisfy the asset
tests is
discovered or (b) the period of time prescribed by Treasury Regulations to be
issued. For violations due to reasonable cause and not willful neglect that are
not described in the preceding sentence, Alexander’s, Inc. may avoid
disqualification as a REIT under any of the asset tests, after the 30 day cure
period, by taking steps including (i) the disposition of the nonqualifying
assets to meet the asset test within (a) six months after the last day of the
quarter in which the failure to satisfy the asset tests is discovered or (b) the
period of time prescribed by Treasury Regulations to be issued, (ii) paying a
tax equal to the greater of (a) $50,000 or (b) the highest corporate tax rate
multiplied by the net income generated by the nonqualifying assets, and (iii)
disclosing certain information to the IRS.
ANNUAL
DISTRIBUTION REQUIREMENTS. Alexander’s, Inc., in order to qualify as
a REIT, is required to distribute dividends, other than capital gain dividends,
to its stockholders in an amount at least equal to (1) the sum of
(a) 90% of Alexander’s, Inc.’s “real estate investment trust taxable
income,” computed without regard to the dividends paid deduction and
Alexander’s, Inc.’s net capital gain, and (b) 90% of the net after-tax
income, if any, from foreclosure property minus (2) the sum of certain
items of non-cash income.
For
taxable years beginning before January 1, 2001, the required amount of
distributions described above and below was 95% of the amount of Alexander’s,
Inc.’s income or gain, as the case may be.
In
addition, if Alexander’s, Inc. disposes of any asset within 10 years of
acquiring it, Alexander’s, Inc. will be required to distribute at least 90% of
the after-tax built-in gain, if any, recognized on the disposition of the asset
after taking into account net operating loss carryovers and capital loss
carryovers.
These
distributions must be paid in the taxable year to which they relate, or in the
following taxable year if declared before Alexander’s, Inc. timely files its tax
return for the year to which they relate and if paid on or before the first
regular dividend payment after the declaration.
To the
extent that Alexander’s, Inc. does not distribute all of its net capital gain or
distributes at least 90%, but less than 100%, of its real estate investment
trust taxable income, as adjusted, it will have to pay tax on those amounts at
regular ordinary and capital gain corporate tax rates. Furthermore,
if Alexander’s, Inc. fails to distribute during each calendar year at least the
sum of (a) 85% of its ordinary income for that year, (b) 95% of its
capital gain net income for that year and (c) any undistributed taxable
income from prior periods, Alexander’s, Inc. would have to pay a 4% excise tax
on the excess of the required distribution over the amounts actually
distributed.
Alexander’s,
Inc. intends to satisfy the annual distribution requirements.
From time
to time, Alexander’s, Inc. may not have sufficient cash or other liquid assets
to meet the 90% distribution requirement due to timing differences between
(a) when Alexander’s, Inc. actually receives income and when it actually
pays deductible expenses and (b) when Alexander’s, Inc. includes the income
and deducts the expenses in arriving at its taxable income. If timing
differences of this kind occur, in order to meet the 90% distribution
requirement, Alexander’s, Inc. 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
certain circumstances, Alexander’s, Inc. 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 Alexander’s, Inc.’s
deduction for dividends paid for the earlier year. Thus, Alexander’s,
Inc. may be able to avoid being taxed on amounts distributed as deficiency
dividends; however, Alexander’s, Inc. will be required to pay interest based
upon the amount of any deduction taken for deficiency dividends.
FAILURE
TO QUALIFY AS A REIT
If
Alexander’s, Inc. fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, Alexander’s, Inc. will have to pay tax,
including any applicable alternative minimum tax, on its taxable income at
regular corporate rates. Alexander’s, Inc. will not be able to deduct
distributions to stockholders in any year in which it fails to qualify, nor will
Alexander’s, Inc. be required to make distributions to
stockholders. In this event, to the extent of current and accumulated
earnings and profits, all distributions to stockholders will be taxable to the
stockholders as dividend income (which may be subject to tax at preferential
rates) and corporate distributees may be eligible for the dividends received
deduction if they satisfy the relevant provisions of the Internal
Revenue
Code. Unless
entitled to relief under specific statutory provisions, Alexander’s, Inc. also
will be disqualified from taxation as a REIT for the four taxable years
following the year during which qualification was lost. Alexander’s,
Inc. might not be entitled to the statutory relief described in this paragraph
in all circumstances.
TAXATION
OF HOLDERS OF COMMON STOCK OR PREFERRED STOCK
U.S.
STOCKHOLDERS
As used
in this section, the term “U.S. stockholder” means a holder of common stock or
preferred stock who, for United States Federal income tax purposes,
is
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a
citizen or resident of the United
States;
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a
domestic corporation;
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an
estate whose income is subject to United States Federal income taxation
regardless of its source; or
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a
trust if a United States court can exercise primary supervision over the
trust’s administration and one or more United States persons have
authority to control all substantial decisions of the
trust.
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As long
as Alexander’s, Inc. qualifies as a REIT, distributions made by Alexander’s,
Inc. out of its current or accumulated earnings and profits, and not designated
as capital gain dividends, will constitute dividends taxable to its taxable U.S.
stockholders as ordinary income. Individual U.S. shareholders will
generally not be entitled to the lower tax rate applicable to certain types of
dividends except with respect to the portion of any distribution (a) that
represents income from dividends Alexander’s, Inc. received from a corporation
in which it owns shares (but only if such dividends would be eligible for the
lower rate on dividends if paid by the corporation to its individual
shareholders), or (b) that is equal to Alexander’s, Inc.’s real estate
investment trust taxable income (taking into account the dividends paid
deduction available to Alexander’s, Inc.) for Alexander’s, Inc.’s previous
taxable year and less any taxes paid by Alexander’s, Inc. during its previous
taxable year, provided that certain holding period and other requirements are
satisfied at both the REIT and individual shareholder level. Individual U.S.
stockholders should consult their own tax advisors to determine the impact of
this new legislation. Distributions of this kind will not be eligible for the
dividends received deduction in the case of U.S. stockholders that are
corporations. Distributions made by Alexander’s, Inc. that
Alexander’s, Inc. properly designates as capital gain dividends will be taxable
to U.S. stockholders as gain from the sale of a capital asset held for more than
one year, to the extent that they do not exceed Alexander’s, Inc.’s actual net
capital gain for the taxable year, without regard to the period for which a U.S.
stockholder has held his shares. Thus, with certain limitations,
capital gain dividends received by an individual U.S. stockholder may be
eligible for preferential rates of taxation. U.S. stockholders that
are corporations may, however, be required to treat up to 20% of certain capital
gain dividends as ordinary income.
To the
extent that Alexander’s, Inc. makes distributions, not designated as capital
gain dividends, in excess of its current and accumulated earnings and profits,
these distributions will be treated first as a tax-free return of capital to
each U.S. shareholder. Thus, these distributions will reduce the
adjusted basis that the U.S. shareholder has in his or her shares for tax
purposes by the amount of the distribution, but not below
zero. Distributions in excess of a U.S. shareholder’s adjusted basis
in his shares will be taxable as capital gains, provided that the shares have
been held as a capital asset. For purposes of determining the portion
of distributions on separate classes of shares that will be treated as dividends
for Federal income tax purposes, current and accumulated earnings and profits
will be allocated to distributions resulting from priority rights of preferred
shares before being allocated to other distributions.
Dividends
authorized by Alexander’s, Inc. in October, November, or December of any year
and payable to a stockholder of record on a specified date in any of these
months will be treated as both paid by Alexander’s, Inc. and received by the
stockholder on December 31 of that year, provided that Alexander’s, Inc.
actually pays the dividend on or before January 31 of the following
calendar year. Stockholders may not include in their own income tax
returns any net operating losses or capital losses of Alexander’s,
Inc.
U.S.
stockholders holding shares at the close of Alexander’s, Inc.’s taxable year
will be required to include, in computing their long-term capital gains for the
taxable year in which the last day of Alexander’s, Inc.’s
taxable
year
falls, the amount that Alexander’s, Inc. designates in a written notice mailed
to its stockholders. Alexander’s, Inc. may not designate amounts in
excess of Alexander’s, Inc.’s undistributed net capital gain for the taxable
year. Each U.S. stockholder required to include the designated amount
in determining the stockholder’s long-term capital gains will be deemed to have
paid, in the taxable year of the inclusion, the tax paid by Alexander’s, Inc. in
respect of the undistributed net capital gains. U.S. stockholders to
whom these rules apply will be allowed a credit or a refund, as the case may be,
for the tax they are deemed to have paid. U.S. stockholders will
increase their basis in their shares by the difference between the amount of the
includible gains and the tax deemed paid by the stockholder in respect of these
gains.
Distributions
made by Alexander’s, Inc. and gain arising from a U.S. stockholder’s sale or
exchange of shares will not be treated as passive activity income. As
a result, U.S. stockholders generally will not be able to apply any passive
losses against that income or gain.
When a
U.S. stockholder sells or otherwise disposes of shares, the stockholder will
recognize gain or loss for Federal income tax purposes in an amount equal to the
difference between (a) the amount of cash and the fair market value of any
property received on the sale or other disposition, and (b) the holder’s
adjusted basis in the shares for tax purposes. This gain or loss will
be capital gain or loss if the U.S. stockholder has held the shares as a capital
asset. The gain or loss will be long-term gain or loss if the U.S.
stockholder has held the shares for more than one year. Long-term
capital gain of an individual U.S. stockholder is generally taxed at
preferential rates. In general, any loss recognized by a U.S.
stockholder when the stockholder sells or otherwise disposes of shares of
Alexander’s, Inc. that the stockholder has held for six months or less, after
applying certain holding period rules, will be treated as a long-term capital
loss, to the extent of distributions received by the stockholder from
Alexander’s, Inc. which were required to be treated as long-term capital
gains.
BACKUP
WITHHOLDING. Alexander’s, Inc. will report to its U.S. stockholders
and the IRS the amount of dividends paid during each calendar year, and the
amount of tax withheld, if any. Under the backup withholding rules,
backup withholding may apply to a stockholder with respect to dividends paid
unless the holder (a) is a corporation or comes within certain other exempt
categories and, when required, demonstrates this fact, or (b) provides a
taxpayer identification number, certifies as to no loss of exemption from backup
withholding, and otherwise complies with applicable requirements of the backup
withholding rules. The IRS also may impose penalties on a U.S.
stockholder that does not provide Alexander’s, Inc. with his correct taxpayer
identification number. A stockholder may credit any amount paid as
backup withholding against the stockholder’s income tax liability. In
addition, Alexander’s, Inc. may be required to withhold a portion of capital
gain distributions to any stockholders who fail to certify their non-foreign
status to Alexander’s, Inc.
TAXATION
OF TAX-EXEMPT STOCKHOLDERS. The IRS has ruled that amounts
distributed as dividends by a REIT generally do not constitute unrelated
business taxable income when received by a tax-exempt entity. Based
on that ruling, provided that a tax-exempt stockholder is not one of the types
of entity described in the next paragraph and has not held its shares as “debt
financed property” within the meaning of the Internal Revenue Code, and the
shares are not otherwise used in a trade or business, the dividend income from
shares will not be unrelated business taxable income to a tax-exempt
stockholder. Similarly, income from the sale of shares will not
constitute unrelated business taxable income unless the tax-exempt stockholder
has held the shares as “debt financed property” within the meaning of the
Internal Revenue Code or has used the shares in a trade or
business.
Income
from an investment in Alexander’s, Inc.’s shares will constitute unrelated
business taxable income for tax-exempt stockholders that are social clubs,
voluntary employee benefit associations, supplemental unemployment benefit
trusts, and qualified group legal services plans exempt from Federal income
taxation under the applicable subsections of Section 501(c) of the Internal
Revenue Code, unless the organization is able to properly deduct amounts set
aside or placed in reserve for certain purposes so as to offset the income
generated by its shares. Prospective investors of the types described
in the preceding sentence should consult their own tax advisors concerning these
“set aside” and reserve requirements.
Notwithstanding
the foregoing, however, a portion of the dividends paid by a “pension-held REIT”
will be treated as unrelated business taxable income to any trust
which:
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is
tax-exempt under Section 501(a) of the Internal Revenue Code,
and
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holds
more than 10% (by value) of the equity interests in the
REIT.
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Tax-exempt
pension, profit-sharing and stock bonus funds that are described in
Section 401(a) of the Internal Revenue Code are referred to below as
“qualified trusts.” A REIT is a “pension-held REIT” if:
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it
would not have qualified as a REIT but for the fact that
Section 856(h)(3) of the Internal Revenue Code provides that stock
owned by qualified trusts will be treated, for purposes of the “not
closely held” requirement, as owned by the beneficiaries of the trust
(rather than by the trust itself),
and
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either
(a) at least one qualified trust holds more than 25% by value of the
interests in the REIT or (b) one or more qualified trusts, each of
which owns more than 10% by value of the interests in the REIT, hold in
the aggregate more than 50% by value of the interests in the
REIT.
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The
percentage of any REIT dividend treated as unrelated business taxable income to
a qualifying trust is equal to the ratio of (a) the gross income of the
REIT from unrelated trades or businesses, determined as though the REIT were a
qualified trust, less direct expenses related to this gross income, to
(b) the total gross income of the REIT, less direct expenses related to the
total gross income. A de minimis exception applies where this
percentage is less than 5% for any year. Alexander’s, Inc. does not
expect to be classified as a pension-held REIT.
The rules
described above under the heading “U.S. Stockholders” concerning the inclusion
of Alexander’s, Inc.’s designated undistributed net capital gains in the income
of its stockholders will apply to tax-exempt entities. Thus,
tax-exempt entities will be allowed a credit or refund of the tax deemed paid by
these entities in respect of the includible gains.
NON-U.S.
STOCKHOLDERS
The rules
governing U.S. Federal income taxation of nonresident alien individuals, foreign
corporations, foreign partnerships and estates or trusts that in either case are
not subject to United States Federal income tax on a net income basis who own
common stock or preferred stock, which we call “non-U.S. stockholders,” are
complex. The following discussion is only a limited summary of these
rules. Prospective non-U.S. stockholders should consult with their
own tax advisors to determine the impact of U.S. Federal, state and local income
tax laws with regard to an investment in common stock or preferred stock,
including any reporting requirements.
ORDINARY
DIVIDENDS. Distributions, other than distributions that are treated
as attributable to gain from sales or exchanges by Alexander’s, Inc. of U.S.
real property interests, as discussed below, and other than distributions
designated by Alexander’s, Inc. as capital gain dividends, will be treated as
ordinary income to the extent that they are made out of current or accumulated
earnings and profits of Alexander’s, Inc. A withholding tax equal to
30% of the gross amount of the distribution will ordinarily apply to
distributions of this kind to non-U.S. stockholders, unless an applicable tax
treaty reduces that tax. However, if income from the investment in
the shares is treated as effectively connected with the non-U.S. stockholder’s
conduct of a U.S. trade or business or is attributable to a permanent
establishment that the non-U.S. stockholder maintains in the United States if
that is required by an applicable income tax treaty as a condition for
subjecting the non-U.S. stockholder to U.S. taxation on a net income basis, tax
at graduated rates generally will apply to the non-U.S. stockholder in the same
manner as U.S. stockholders are taxed with respect to dividends, and the 30%
branch profits tax also may apply if the stockholder is a foreign
corporation. Alexander’s, Inc. expects to withhold U.S. tax at the
rate of 30% on the gross amount of any dividends, other than dividends treated
as attributable to gain from sales or exchanges of U.S. real property interests
and capital gain dividends, paid to a non-U.S. stockholder, unless (a) a
lower treaty rate applies and the required form evidencing eligibility for that
reduced rate is filed with Alexander’s, Inc. or the appropriate withholding
agent or (b) the non-U.S. stockholder files an IRS Form W-8 ECI or a
successor form with Alexander’s, Inc. or the appropriate withholding agent
claiming that the distributions are effectively connected with the non-U.S.
stockholder’s conduct of a U.S. trade or business and, in either case, other
applicable requirements are met.
Distributions
to a non-U.S. stockholder that are designated by Alexander’s, Inc. at the time
of distribution as capital gain dividends which are not attributable to or
treated as attributable to the disposition by Alexander’s,
Inc. of a
U.S. real property interest generally will not be subject to U.S. Federal income
taxation, except as described below.
RETURN OF
CAPITAL. Distributions in excess of Alexander’s, Inc.’s current and
accumulated earnings and profits, which are not treated as attributable to the
gain from Alexander’s, Inc.’s disposition of a U.S. real property interest, will
not be taxable to a non-U.S. stockholder to the extent that they do not exceed
the adjusted basis of the non-U.S. stockholder’s
shares. Distributions of this kind instead will reduce the adjusted
basis of the shares. To the extent that distributions of this kind
exceed the adjusted basis of a non-U.S. stockholder’s shares, they will give
rise to tax liability if the non-U.S. stockholder otherwise would have to pay
tax on any gain from the sale or disposition of its shares, as described
below. If it cannot be determined at the time a distribution is made
whether the distribution will be in excess of current and accumulated earnings
and profits, withholding will apply to the distribution at the rate applicable
to dividends. However, the non-U.S. stockholder may seek a refund of
these amounts from the IRS if it is subsequently determined that the
distribution was, in fact, in excess of current accumulated earnings and profits
of Alexander’s, Inc.
CAPITAL
GAIN DIVIDENDS. Distributions that are attributable to gain from
sales or exchanges by Alexander’s, Inc. of U.S. real property interests that are
paid with respect to any class of stock which is regularly traded on an
established securities market located in the United States and held by a
non-U.S. holder who does not own more than 5% of such class of stock at any time
during the one year period ending on the date of distribution will be treated as
a normal distribution by us, and such distributions will be taxed as described
above in “—Ordinary Dividends.”
Distributions
that are not described in the preceding paragraph that are attributable to gain
from sales or exchanges by Alexander’s, Inc. of U.S. real property interests
will be taxed to a non-U.S. stockholder under the provisions of the Foreign
Investment in Real Property Tax Act of 1980, as amended. Under this statute,
these distributions are taxed to a non-U.S. stockholder as if the gain were
effectively connected with a U.S. business. Thus, non-U.S. stockholders will be
taxed on the distributions at the normal capital gain rates applicable to U.S.
stockholders, subject to any applicable alternative minimum tax and special
alternative minimum tax in the case of individuals. Alexander’s, Inc. is
required by applicable Treasury regulations under this statute to withhold 35%
of any distribution that Alexander’s, Inc. could designate as a capital gain
dividend. However, if Alexander’s, Inc. designates as a capital gain dividend a
distribution made before the day Alexander’s, Inc. actually effects the
designation, then although the distribution may be taxable to a non-U.S.
stockholder, withholding does not apply to the distribution under this statute.
Rather, Alexander’s, Inc. must effect the 35% withholding from distributions
made on and after the date of the designation, until the distributions so
withheld equal the amount of the prior distribution designated as a capital gain
dividend. The non-U.S. stockholder may credit the amount withheld against its
U.S. tax liability.
SALES OF
SHARES. Gain recognized by a non-U.S. stockholder upon a sale or
exchange of common stock generally will not be taxed under the Foreign
Investment in Real Property Tax Act if Alexander’s, Inc. is a “domestically
controlled REIT,” defined generally as a REIT, less than 50% in value of whose
stock is and was held directly or indirectly by foreign persons at all times
during a specified testing period. Alexander’s, Inc. believes that it
is and will continue to be a domestically controlled REIT, and, therefore, that
taxation under this statute generally will not apply to the sale of Alexander’s,
Inc. shares. However, gain to which this statute does not apply will
be taxable to a non-U.S. stockholder if investment in the shares is treated as
effectively connected with the non-U.S. stockholder’s U.S. trade or business or
is attributable to a permanent establishment that the non-U.S. stockholder
maintains in the United States if that is required by an applicable income tax
treaty as a condition for subjecting the non-U.S. stockholder to U.S. taxation
on a net income basis. In this case, the same treatment will apply to
the non-U.S. stockholder as to U.S. stockholders with respect to the
gain. In addition, gain to which the Foreign Investment in Real
Property Tax Act does not apply will be taxable to a non-U.S. stockholder if the
non-U.S. stockholder is a nonresident alien individual who was present in the
United States for 183 days or more during the taxable year and has a “tax home”
in the United States, or maintains an office or a fixed place of business in the
United States to which the gain is attributable. In this case, a 30%
tax will apply to the nonresident alien individual’s capital gains. A
similar Rule will apply to capital gain dividends to which this statute does not
apply.
If
Alexander’s, Inc. was not a domestically controlled REIT, tax under the Foreign
Investment in Real Property Tax Act would apply to a non-U.S. stockholder’s sale
of shares only if the selling non-U.S. stockholder
owned
more than 5% of the class of shares sold at any time during a specified
period. This period is generally the shorter of the period that the
non-U.S. stockholder owned the shares sold or the five-year period ending on the
date when the stockholder disposed of the shares. If tax under this
statute applies to the gain on the sale of shares, the same treatment would
apply to the non-U.S. stockholder as to U.S. stockholders with respect to the
gain, subject to any applicable alternative minimum tax and a special
alternative minimum tax in the case of nonresident alien
individuals.
FEDERAL
ESTATE TAXES
Common
stock or preferred stock held by a non-U.S. stockholder at the time of death
will be included in the stockholder’s gross estate for United States Federal
estate tax purposes, unless an applicable estate tax treaty provides
otherwise.
BACKUP
WITHHOLDING AND INFORMATION REPORTING
If you
are a non-U.S. stockholder, you are generally exempt from backup withholding and
information reporting requirements with respect to:
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dividend
payments, and
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the
payment of the proceeds from the sale of common shares effected at a
United States office of a broker,
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as long
as the income associated with these payments is otherwise exempt from United
States Federal income tax, and:
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the
payor or broker does not have actual knowledge or reason to know that you
are a United States person and you have furnished to the payor or
broker:
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a
valid IRS Form W-8BEN or an acceptable substitute form upon which you
certify, under penalties of perjury, that you are a non-United States
person, or
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other
documentation upon which it may rely to treat the payments as made to a
non-United States person in accordance with U.S. Treasury regulations,
or
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you
otherwise establish an exemption.
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Payment
of the proceeds from the sale of common stock effected at a foreign office of a
broker generally will not be subject to information reporting or backup
withholding. However, a sale of common stock or preferred stock that
is effected at a foreign office of a broker will be subject to information
reporting and backup withholding if:
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the
proceeds are transferred to an account maintained by you in the United
States,
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the
payment of proceeds or the confirmation of the sale is mailed to you at a
United States address, or
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the
sale has some other specified connection with the United States as
provided in U.S. Treasury
regulations,
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unless
the broker does not have actual knowledge or reason to know that you are a
United States person and the documentation requirements described above are met
or you otherwise establish an exemption.
In
addition, a sale of common stock or preferred stock will be subject to
information reporting if it is effected at a foreign office of a broker that
is:
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a
United States person,
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a
foreign person 50% or more of whose gross income is effectively connected
with the conduct of a United States trade or business for a specified
three-year period, or
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a
foreign partnership, if at any time during its tax
year:
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one
or more of its partners are “U.S. persons,” as defined in U.S. Treasury
regulations, who in the aggregate hold more than 50% of the income or
capital interest in the partnership,
or
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such
foreign partnership is engaged in the conduct of a United States trade or
business,
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unless
the broker does not have actual knowledge or reason to know that you are a
United States person and the documentation requirements described above are met
or you otherwise establish an exemption. Backup withholding will
apply if the sale is subject to information reporting and the broker has actual
knowledge that you are a United States person.
You
generally may obtain a refund of any amounts withheld under the backup
withholding rules that exceed your income tax liability by timely filing a
refund claim with the IRS.
OTHER
TAX CONSEQUENCES
State or
local taxation may apply to Alexander’s, Inc. and its stockholders in various
state or local jurisdictions, including those in which it or they transact
business or reside. The state and local tax treatment of Alexander’s,
Inc. and its stockholders may not conform to the Federal income tax consequences
discussed above. Consequently, prospective stockholders should
consult their own tax advisors regarding the effect of state and local tax laws
on an investment in Alexander’s, Inc.
TAXATION
OF HOLDERS OF DEBT WARRANTS
SALE
OR EXPIRATION
Generally,
you will recognize gain or loss upon the sale or other disposition of your debt
warrant in an amount equal to the difference between the amount you realize on
such sale or other disposition and your tax basis in the debt
warrant. Your tax basis in your debt warrant generally will be its
cost. If you hold a debt warrant that expires unexercised you
generally will recognize loss in an amount equal to your tax basis in the debt
warrant. Gain or loss resulting from the sale, other disposition or
expiration of a debt warrant generally will be capital gain or loss and will be
long-term if the debt warrant was held for more than one year.
EXERCISE
If you
exercise your debt warrant with cash it will not be a taxable event for
you. Your basis in the debt securities received on exercise of the
debt warrant will equal the sum of your tax basis in the exercised debt warrant
and the exercise price of the debt warrant. The holding period in a
debt security received on exercise of a debt warrant will not include the period
during which the debt warrant was held.
The
applicable prospectus supplement will contain a discussion of any special United
States Federal income tax rules with respect to debt warrants that are issued as
a unit with other securities.
TAXATION
OF HOLDERS OF DEBT SECURITIES
This
section describes the material United States Federal income tax consequences of
owning a debt security that Alexander’s, Inc. may offer for your general
information only. It is not tax advice. It applies to you
only if the debt security you purchase is not an original issue discount or zero
coupon debt security and you acquire the debt security in the initial offering
at the offering price. If you purchase a debt security at a price
other than the offering price, the amortizable bond premium or market discount
rules also may apply to you. You should consult your own tax advisors
regarding this possibility.
The tax
consequences of owning any debt security that is a zero coupon debt security or
an original issue discount debt security, a floating rate debt security, or an
indexed debt security that we offer will be discussed in the applicable
prospectus supplement.
UNITED
STATES DEBT SECURITY HOLDERS
This
subsection describes the tax consequences to a United States holder of a debt
security. You are a United States holder of a debt security if you
are a beneficial owner of a debt security to which this section applies and you
are:
|
|
·
|
a
citizen or resident of the United
States,
|
|
|
·
|
a
domestic corporation,
|
|
|
·
|
an
estate whose income is subject to United States Federal income tax
regardless of its source, or
|
|
|
·
|
a
trust if a United States court can exercise primary supervision over the
trust’s administration and one or more United States persons are
authorized to control all substantial decisions of the
trust.
|
If you
are not a United States holder of a debt security, this subsection does not
apply to you and you should refer to “—United States Alien Debt Security
Holders” below.
PAYMENTS
OF INTEREST. You will be taxed on the interest on your debt security
as ordinary income at the time you receive the interest or when it accrues,
depending on your method of accounting for tax purposes.
PURCHASE,
SALE AND RETIREMENT OF DEBT SECURITIES. Your tax basis in your debt
security generally will be its cost (including, in the case of a debt security
acquired through the exercise of a debt warrant, both the cost of the debt
warrant and the amount paid on exercise of the debt warrant). You
generally will recognize capital gain or loss on the sale or retirement of your
debt security equal to the difference between the amount you realize on the sale
or retirement, excluding any amounts attributable to accrued but unpaid
interest, and your tax basis in your debt security. Capital gain of a
noncorporate United States debt security holder is generally taxed at
preferential rates where the holder has a holding period greater than one
year.
UNITED
STATES ALIEN DEBT SECURITY HOLDERS
This
subsection describes the tax consequences to a United States alien debt security
holder. You are a United States alien debt security holder if you are
the beneficial owner of a debt security to which this section applies and are,
for United States Federal income tax purposes:
|
|
·
|
a
nonresident alien individual,
|
|
|
·
|
a
foreign corporation,
|
|
|
·
|
a
foreign partnership, or
|
|
|
·
|
an
estate or trust that in either case is not subject to United States
Federal income tax on a net income basis on income or gain from a debt
security.
|
If you
are a United States debt security holder, this subsection does not apply to
you.
Under
United States Federal income and estate tax law, and subject to the discussion
of backup withholding below, if you are a United States alien debt security
holder:
|
|
·
|
we
and other U.S. payors generally will not be required to deduct United
States withholding tax from payments of principal and interest to you if,
in the case of payments of
interest:
|
(1)
you do not actually or constructively own 10% or more of the capital or profits
interest of Alexander’s, Inc.,
(2)
you are not a controlled foreign corporation that is related to Alexander’s,
Inc. through stock ownership, and
(3)
the U.S. payor does not have actual knowledge or reason to know that you are a
United States person and:
(a)
you have furnished to the U.S. payor an Internal Revenue Service
Form W-8BEN or an acceptable substitute form upon which you certify, under
penalties of perjury, that you are a non-United States person,
(b)
in the case of payments made outside the United States to you at an offshore
account (generally, an account maintained by you at a bank or other financial
institution at any location outside the United States), you have furnished to
the U.S. payor documentation that establishes your identity and your status as a
non-United States person,
(c)
the U.S. payor has received a withholding certificate (furnished on an
appropriate IRS Form W-8 or an acceptable substitute form) from a person
claiming to be:
(i)
a withholding foreign partnership (generally, a foreign partnership that has
entered into an agreement with the IRS to assume primary withholding
responsibility with respect to distributions and guaranteed payments it makes to
its partners),
(ii)
a qualified intermediary (generally, a non-United States financial institution
or clearing organization or a non-United States branch or office of a United
States financial institution or clearing organization that is a party to a
withholding agreement with the IRS), or
(iii)
a U.S. branch of a non-United States bank or of a non-United States insurance
company, and the withholding foreign partnership, qualified intermediary or U.S.
branch has received documentation upon which it may rely to treat the payment as
made to a non-United States person in accordance with U.S. Treasury regulations
(or, in the case of a qualified intermediary, in accordance with its agreement
with the IRS), or
(d)
the U.S. payor receives a statement from a securities clearing organization,
bank or other financial institution that holds customers’ securities in the
ordinary course of its trade or business,
(i)
certifying to the U.S. payor under penalties of perjury that an IRS
Form W-8BEN or an acceptable substitute form has been received from you by
it or by a similar financial institution between it and you, and
(ii)
to which is attached a copy of the IRS Form W-8BEN or acceptable substitute
form, or
(4)
the U.S. payor otherwise possesses documentation upon which it may rely to treat
the payment as made to a non-United States person in accordance with U.S.
Treasury regulations, and
|
|
·
|
no
deduction for any United States Federal withholding tax will be made from
any gain that you realize on the sale or exchange of your debt
security.
|
Further,
a debt security held by an individual who at the individual’s time of death is
not a citizen or resident of the United States will not be includible in the
individual’s gross estate for United States Federal estate tax purposes
if:
|
|
·
|
the
individual did not actually or constructively own 10% or more of the
capital or profits interest of Alexander’s, Inc. at the time of the
individual’s death and
|
|
|
·
|
the
income on the debt security would not have been effectively connected with
a United States trade or business of the individual at the time of the
individual’s death.
|
BACKUP
WITHHOLDING AND INFORMATION REPORTING
In
general, if you are a noncorporate United States debt security holder, we and
other payors are required to report to the IRS all payments of principal and
interest on your debt security. In addition, we and other payors are
required to report to the IRS any payment of proceeds of the sale of your debt
security before maturity within the United States. Additionally,
backup withholding will apply to any payments if you fail to provide an accurate
taxpayer identification number, or you are notified by the IRS that you have
failed to report all interest and dividends required to be shown on your federal
income tax returns.
In
general, if you are a United States alien debt security holder, payments of
principal or interest made by us and other payors to you will not be subject to
backup withholding and information reporting, provided that the certification
requirements described above under “—United States Alien Debt Security Holders”
are satisfied or you otherwise establish an exemption. However, we
and other payors are required to report payments of interest on your debt
securities on IRS Form 1042-S even if the payments are not otherwise
subject to information reporting requirements. In addition, payment
of the proceeds from the sale of debt securities effected at a United States
office of a broker will not be subject to backup withholding and information
reporting provided that:
|
|
·
|
the
broker does not have actual knowledge or reason to know that you are a
United States person and you have furnished to the
broker:
|
|
|
·
|
an
appropriate IRS Form W-8 or an acceptable substitute form upon which
you certify, under penalties of perjury, that you are not a United States
person, or
|
|
|
·
|
other
documentation upon which it may rely to treat the payment as made to a
non-United States person in accordance with U.S. Treasury regulations,
or
|
|
|
·
|
you
otherwise establish an exemption.
|
If you
fail to establish an exemption and the broker does not possess adequate
documentation of your status as a non-United States person, the payments may be
subject to information reporting and backup withholding. However,
backup withholding will not apply with respect to payments made to an offshore
account maintained by you unless the broker has actual knowledge that you are a
United States person.
In
general, payment of the proceeds from the sale of debt securities effected at a
foreign office of a broker will not be subject to information reporting or
backup withholding. However, a sale effected at a foreign office of a
broker will be subject to information reporting and backup withholding
if:
|
|
·
|
the
proceeds are transferred to an account maintained by you in the United
States,
|
|
|
·
|
the
payment of proceeds or the confirmation of the sale is mailed to you at a
United States address, or
|
|
|
·
|
the
sale has some other specified connection with the United States as
provided in U.S. Treasury
regulations,
|
unless
the broker does not have actual knowledge or reason to know that you are a
United States person and the documentation requirements described above
(relating to a sale of debt securities effected at a United States office of a
broker) are met or you otherwise establish an exemption.
In
addition, payment of the proceeds from the sale of debt securities effected at a
foreign office of a broker will be subject to information reporting if the
broker is:
|
|
·
|
a
United States person,
|
|
|
·
|
a
foreign person 50% or more of whose gross income is effectively connected
with the conduct of a United States trade or business for a specified
three-year period, or
|
|
|
·
|
a
foreign partnership, if at any time during its tax
year:
|
|
|
·
|
one
or more of its partners are “U.S. persons,” as defined in U.S. Treasury
regulations, who in the aggregate hold more than 50% of the income or
capital interest in the partnership,
or
|
|
|
·
|
such
foreign partnership is engaged in the conduct of a United States trade or
business,
|
unless
the broker does not have actual knowledge or reason to know that you are a
United States person and the documentation requirements described above
(relating to a sale of debt securities effected at a United States office of a
broker) are met or you otherwise establish an exemption. Backup
withholding will apply if the sale is subject to information reporting and the
broker has actual knowledge that you are a United States person.
You
generally may obtain a refund of any amounts withheld under the backup
withholding rules that exceed your income tax liability by timely filing a
refund claim with the IRS.
PLAN
OF DISTRIBUTION
We may
sell the offered securities as follows:
|
|
·
|
through
agents,
|
|
|
·
|
to
or through underwriters, or
|
|
|
·
|
directly
to other purchasers.
|
We will
identify any underwriters or agents and describe their compensation in a
prospectus supplement.
We,
directly or through agents, may sell, and the underwriters may resell, the
offered securities in one or more transactions, including negotiated
transactions. These transactions may be:
|
|
·
|
at
a fixed public offering price or prices, which may be
changed,
|
|
|
·
|
at
market prices prevailing at the time of
sale,
|
|
|
·
|
at
prices related to such prevailing market prices,
or
|
|
|
·
|
at
negotiated prices.
|
In
connection with the sale of offered securities, the underwriters or agents may
receive compensation from us or from purchasers of the offered securities for
whom they may act as agents. The underwriters may sell offered
securities to or through dealers, who may also receive compensation from
purchasers of the offered securities for whom they may act as
agents. Compensation may be in the form of discounts, concessions or
commissions. Underwriters, dealers and agents that participate in the
distribution of the offered securities may be underwriters as defined in the
Securities Act of 1933, and any discounts or commissions received by them from
us and any profit on the resale of the offered securities by them may be treated
as underwriting discounts and commissions under the Securities Act of
1933.
We will
indemnify the underwriters and agents against certain civil liabilities,
including liabilities under the Securities Act of 1933.
Underwriters,
dealers and agents may engage in transactions with, or perform services for, us
or our affiliates in the ordinary course of their businesses.
VALIDITY
OF THE SECURITIES
The
validity of the securities issued under this prospectus will be passed upon for
us by Shearman & Sterling LLP, New York, New York, counsel to Alexander’s,
Inc. The validity of any securities issued under this prospectus will
be passed upon for any underwriters by the counsel named in the applicable
prospectus supplement.
EXPERTS
The
consolidated financial statements as of December 31, 2007 and 2006, and for each
of the three years in the period ended December 31, 2007, and the related
financial statement schedules incorporated in this Prospectus by reference from
Alexander’s, Inc.’s Annual Report on Form 10-K, and the effectiveness of
Alexander’s, Inc.’s internal control over financial reporting have been audited
by Deloitte & Touche LLP, an independent registered public accounting firm,
as stated in their reports and incorporated in this Prospectus by reference,
which reports (1) express an unqualified opinion on the financial statements and
financial statement schedules and includes an explanatory paragraph referring to
Alexander’s, Inc.’s adoption of the provisions of FASB Interpretation No. 48,
“
Accounting for Uncertainty in
Income Taxes, an Interpretation of FASB Statement No. 109.
”
on January 1, 2007, and (2) express an unqualified opinion on the effectiveness
of internal control over financial reporting. Such consolidated financial
statements and financial statement schedules have been so included in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
With
respect to the unaudited interim financial information for the periods ended
September 30, 2008 and 2007 and June 30, 2008 and 2007 and March 31, 2008 and
2007 which is incorporated herein by reference, Deloitte & Touche LLP, an
independent registered public accounting firm, have applied limited procedures
in accordance with the standards of the Public Company Accounting Oversight
Board (United States) for a review of such information. However, as stated
in their reports included in Alexander’s, Inc.’s Quarterly Reports on Form 10-Q
for the quarters ended September 30, 2008, June 30, 2008 and March 31, 2008 and
incorporated by reference herein, they did not audit and they do not express an
opinion on that interim financial information. Accordingly, the degree of
reliance on their reports on such information should be restricted in light of
the limited nature of the review procedures applied. Deloitte & Touche
LLP are not subject to the liability provisions of Section 11 of the Securities
Act of 1933 for their reports on the unaudited interim financial information
because those reports are not “reports” or a “part” of the Registration
Statement prepared or certified by an accountant within the meaning of Sections
7 and 11 of the Securities Act of 1933.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The
following is a statement of expenses (all of which are estimated other than the
SEC registration fee) in connection with the issuance and distribution of the
securities being registered, other than underwriting compensation:
ITEM
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145
of the Delaware General Corporation Law empowers a corporation to indemnify its
directors and officers or former directors and officers and to purchase
insurance with respect to liability arising out of their capacity or status as
directors and officers under certain circumstances. Such law provides
further that the indemnification permitted thereunder shall not be deemed
exclusive of any other rights to which the directors and officers may be
entitled under a corporation’s certificate of incorporation, by-laws, agreement
or otherwise.
Alexander’s,
Inc.’s certificate of incorporation provides that our officers and directors
will be indemnified to the fullest extent permitted by Delaware
law. The directors shall be liable to us or the stockholders for
monetary damages for breach of the director’s fiduciary duty. Such
provision does not limit a director’s liability to us or our stockholders
resulting from: (i) any breach of the director’s duty of loyalty
to us or our stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
(iii) unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General Corporation
Law or (iv) any transaction from which the director derived an improper
personal benefit.
Alexander’s,
Inc.’s certificate of incorporation provides that we shall pay the expenses
incurred by our officers or directors in defending a civil or criminal action,
suit, or proceeding involving such person’s acts or omissions as an officer or a
director of ours if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of us or our
stockholders and, with respect to a criminal action or proceeding, if the person
had no reasonable cause to believe his or her conduct was
unlawful. Unless ordered by a court, indemnification of an officer
shall be made by us only as authorized in a specific case upon the determination
that indemnification of the officer or director is proper under the
circumstances because he or she has met the applicable standard of
conduct. Such determination shall be made (i) by majority vote
of our directors who are not parties to the action, suit or proceeding,
(ii) by independent legal counsel in a written opinion, or (iii) by
our stockholders. Alexander’s, Inc.’s certificate of incorporation
authorizes us to pay the expenses incurred by an officer or a director in
defending a civil or criminal action, suit, or proceeding in advance of the
final disposition thereof, upon receipt of an undertaking by or on behalf of
such person to repay the expenses if it is ultimately determined that the person
is not entitled to be indemnified by us.
We have
the power to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee, or agent or is liable as our director, or is
or was serving, at our request, as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such, regardless of whether we would
have power to indemnify him against such liability.
We have
purchased a policy of directors’ and officers’ insurance that insures both us
and our officers and directors against expenses and liabilities of the type
normally insured against under such policies, including the expense of the
indemnifications described above.
Pursuant
to the form of Underwriting Agreement, to be filed by amendment hereto or by
Form 8-K, the underwriters will agree, subject to certain conditions, to
indemnify Alexander’s, Inc., its directors, certain of its officers and persons
who control Alexander’s, Inc. within the meaning of the Securities Act of 1933,
as amended (the “Securities Act”), against certain liabilities.
ITEM
16. EXHIBITS
See the
Exhibit Index which is incorporated herein by reference.
ITEM
17. UNDERTAKINGS
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a
post-effective amendment of this registration statement:
(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 Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
and
(iii)
To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the 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 therein, and the
offering of such 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.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant’s
Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s Annual Report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, Alexander’s, Inc. certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing and has duly caused this registration statement on Form S-3 to
be signed on its behalf by the undersigned, thereunto duly authorized, in The
City of New York and State of New York, on November 26, 2008.
| ALEXANDER’S, INC. | ||
| By: |
/s/
Joseph
Macnow
|
|
| Joseph Macnow | ||
| Executive Vice President and Chief Financial Officer | ||
| (Principal Financial and Accounting Officer) | ||
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Steven Roth,
Michael D. Fascitelli and Joseph Macnow, and each of them, his true and lawful
attorney-in-fact and agent, 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, to any related Rule 462(b) registration statement and to any
other documents filed with the Securities and Exchange Commission and to file
the same, with all exhibits to the registration statement and other documents in
connection with the registration statement, with the Securities and Exchange
Commission or any other regulatory authority, grants to the attorney-in-fact and
agent 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, and ratifies and
confirms all that the attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue of this power of
attorney.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed below by the following persons in the capacities and on the date
indicated.
|
SIGNATURE
|
TITLE
|
DATE
|
|
/s/
Steven Roth
|
Chief
Executive Officer and Chairman of the
|
November 26,
2008
|
|
Steven
Roth
|
Board
of Directors
(Principal
Executive Officer)
|
|
|
/s/
Michael D. Fascitelli
|
President
and Director
|
November 26,
2008
|
|
Michael
D. Fascitelli
|
||
|
/s/
Joseph Macnow
|
Executive
Vice President Chief Financial Officer
|
November 26,
2008
|
|
Joseph
Macnow
|
(Principal
Financial and Accounting Officer)
|
|
|
/s/
Thomas R. DiBenedetto
|
Director
|
November 25,
2008
|
|
Thomas
R. DiBenedetto
|
||
|
/s/
David Mandelbaum
|
Director
|
November 26,
2008
|
|
David
Mandelbaum
|
||
|
/s/
Arthur I. Sonnenblick
|
Director
|
November 19,
2008
|
|
Arthur
I. Sonnenblick
|
||
|
/s/
Neil Underberg
|
Director
|
November 20,
2008
|
|
Neil
Underberg
|
||
|
/s/
Richard West
|
Director
|
November 26,
2008
|
|
Richard
West
|
||
|
/s/
Russell B. Wight, Jr.
|
Director
|
November 26,
2008
|
|
Russell
B. Wight, Jr.
|
EXHIBIT
INDEX
|
NUMBER
|
DESCRIPTION
|
|
1.1**
|
Form of
Underwriting Agreement (for Common Stock)
|
|
1.2**
|
Form
of Underwriting Agreement (for Preferred Stock)
|
|
1.3**
|
Form
of Underwriting Agreement (for Debt Securities)
|
|
3.1*
|
Amended
and Restated Certificate of Incorporation of the Company (incorporated by
reference to the Company’s Registration Statement on Form S-3 (No.
033-62779) filed September 20, 1995)
|
|
3.2*
|
By-laws
of the Company (incorporated by reference to the Company’s Quarterly
Report on Form 10-Q (No. 001-06064) filed May 9,
2000)
|
|
4.1
|
Specimen
Common Stock Certificate
|
|
4.2
**
|
Form
of Preferred Stock Certificate of Designation
|
|
4.3*
|
Form
of Indenture for Senior Debt Securities (incorporated by reference to the
Company’s Registration Statement on Form S-3 (No.
333-110673))
|
|
4.4*
|
Form
of Senior Debt Security (included in Exhibit 4.1, incorporated by
reference to the Company’s Registration Statement on Form S-3 (No.
333-110673))
|
|
4.5*
|
Form
of Indenture for Subordinated Debt Securities (incorporated by reference
to the Company’s Registration Statement on Form S-3 (No.
333-110673))
|
|
4.6*
|
Form
of Subordinated Debt Security (included in Exhibit 4.3, incorporated by
reference to the Company’s Registration Statement on Form S-3 (No.
333-110673))
|
|
4.7*
|
Form
of Deposit Agreement (incorporated by reference to the Company’s
Registration Statement on Form S-3 (No. 333-110673))
|
|
4.8*
|
Form
of Depositary Receipt (included in Exhibit 4.5, incorporated by reference
to the Company’s Registration Statement on Form S-3 (No.
333-110673))
|
|
4.9**
|
Form
of Warrant Agreement
|
|
4.10**
|
Form
of Warrant (included in Exhibit 4.9)
|
|
5.1
|
Opinion
of Shearman & Sterling LLP
|
|
8.1
|
Tax
Opinion of Shearman & Sterling LLP
|
|
12.1
|
Statement
Regarding Computation of Consolidated Ratios of Earnings to Fixed
Charges
|
|
15.1
|
Letter
Regarding Unaudited Interim Financial Information
|
|
23.1
|
Consent
of Deloitte & Touche LLP
|
|
23.2
|
Consent
of Shearman & Sterling LLP (included in Exhibit
5.1)
|
|
23.3
|
Consent
of Shearman & Sterling LLP (included in Exhibit
8.1)
|
|
24.1
|
Powers
of Attorney (included on signature
page)
|
|
25.1
|
Statement
of Eligibility of Senior Trustee on Form T-1
|
|
25.2
|
Statement
of Eligibility of Subordinated Trustee on
Form T-1
|
___________
* Filed
previously.
** To be
filed by amendment or on a Form 8-K.
