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| | | | A-1-1 | | | |
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Statement of Net Assets
(in thousands, except per share data) |
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Liquidation Basis
March 31, 2018 |
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Liquidation Basis
December 31, 2017 |
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Total assets
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| | | $ | 581,044 | | | | | $ | 1,090,733 | | |
Mortgage loans payable
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| | | $ | 57,112 | | | | | $ | 215,494 | | |
Liability for estimated costs in excess of estimated receipts
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| | | $ | 10,879 | | | | | $ | 27,228 | | |
Net assets in liquidation
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| | | $ | 502,707 | | | | | $ | 833,113 | | |
Net assets in liquidation value per share of common stock
(1)
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| | | $ | 29.94 | | | | | $ | 49.61 | | |
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Going Concern Basis
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December 31,
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Balance Sheet Data (in thousands)
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2016
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2015
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2014
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2013
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Total real estate investments, at cost
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| | | $ | 1,785,671 | | | | | $ | 1,822,903 | | | | | $ | 1,888,366 | | | | | $ | 1,542,805 | | |
Total assets
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| | | | 2,152,380 | | | | | | 2,064,762 | | | | | | 2,117,971 | | | | | | 2,044,240 | | |
Mortgage notes payable, net of deferred financing costs
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| | | | 1,107,526 | | | | | | 381,443 | | | | | | 169,377 | | | | | | 168,651 | | |
Credit facility
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| | | | — | | | | | | 485,000 | | | | | | 635,000 | | | | | | 305,000 | | |
Total liabilities
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| | | | 1,210,711 | | | | | | 972,493 | | | | | | 922,294 | | | | | | 594,981 | | |
Total equity
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| | | | 941,669 | | | | | | 1,092,269 | | | | | | 1,195,677 | | | | | | 1,449,259 | | |
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Going Concern Basis
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Operating Data
(in thousands, except share and per share data) |
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Years Ended December 31,
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2016
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2015
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2014
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2013
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Total revenues
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| | | $ | 160,274 | | | | | $ | 174,521 | | | | | $ | 155,567 | | | | | $ | 55,887 | | |
Operating expenses
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| | | | 213,029 | | | | | | 195,415 | | | | | | 227,540 | | | | | | 65,105 | | |
Operating loss
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| | | | (52,755 ) | | | | | | (20,894 ) | | | | | | (71,973 ) | | | | | | (9,218 ) | | |
Total other expenses
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| | | | (31,144 ) | | | | | | (19,375 ) | | | | | | (22,312 ) | | | | | | (10,093 ) | | |
Net loss
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| | | | (83,899 ) | | | | | | (40,269 ) | | | | | | (94,285 ) | | | | | | (19,311 ) | | |
Net loss attributable to non-controlling interests
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| | | | 1,373 | | | | | | 1,188 | | | | | | 1,257 | | | | | | 32 | | |
Net loss attributable to stockholders
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| | | | (82,526 ) | | | | | | (39,081 ) | | | | | | (93,028 ) | | | | | | (19,279 ) | | |
Other data: | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash flows provided by (used in) operations
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| | | $ | (3,368 ) | | | | | $ | (37,725 ) | | | | | $ | 6,535 | | | | | $ | 9,428 | | |
Cash flows provided by (used in) investing activities
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| | | | 40,654 | | | | | | 61,907 | | | | | | (327,835 ) | | | | | | (1,309,508 ) | | |
Cash flows provided by (used in) financing activities
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| | | | (90,354 ) | | | | | | (23,540 ) | | | | | | 110,435 | | | | | | 1,528,103 | | |
Per share data: | | | | | | | | | | | | | | | | | | | | | | | | | |
Net loss per common share – basic and diluted
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| | | $ | (0.05 ) | | | | | $ | (0.02 ) | | | | | $ | (0.06 ) | | | | | $ | (0.03 ) | | |
Dividends and distributions declared per common share
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| | | $ | 3.80 | | | | | $ | 4.60 | | | | | $ | 4.60 | | | | | $ | 6.05 | | |
Weighted-average number of common shares outstanding, basic and diluted
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| | | | 16,494,946 | | | | | | 16,216,558 | | | | | | 16,695,932 | | | | | | 7,207,487 | | |
| Election of managers to the Board of Managers | | |
Unitholders will not have the right to elect managers, except in the case of certain vacancies not filled by the Board of Managers, but will have the right to vote on the removal of managers for cause or without cause. Please read “Description of the Operating Agreement of the LLC — Board of Managers; Duties.” The initial members of the Board of Managers will be designated by the Board of Directors.
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| Amendments to the Operating Agreement | | |
Certain amendments to the operating agreement may be made by the Board of Managers without the approval of the unitholders. Other amendments generally require the approval of holders of a majority of the outstanding units. Please read “— Other Actions.”
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| Merger of the LLC | | |
Approval of the holders of a majority of the outstanding units is required.
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| Other Actions | | |
The following actions require approval of the holders of a majority of the outstanding units: (i) amendments to operating agreement that decrease obligations of the Board of Managers, increase obligations of unitholders, or decrease unitholders’ rights, (ii) actions not permitted under the operating agreement of the LLC, (iii) any increase in the amount of compensation payable to members of the Board of Managers (other than independent members of the Board of Managers) or any affiliate of any member of the Board of Managers, (iv) modifying any provisions of the advisory agreement related to payment of any fees to the Advisor or the timing of any such payment, other than those providing for decreases or delays in payment, (v) any merger of the LLC or (vi) a dissolution of the LLC that is not a final liquidating distribution.
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Subject
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The Company
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The LLC
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A Trust
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Form of Organization and Purpose
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| | The Company is a Maryland corporation which was formed for the purpose of engaging in any lawful act or activity (including, without limitation, qualifying and engaging in business as a real estate investment trust under Section 856 through 860, or any successor sections, of the Code for which corporations may be organized under the MGCL and the general laws of the State of Maryland. Its primary focus was to own and manage its current portfolio and continue to operate and reposition office and retail properties in Manhattan and the greater New York metropolitan area. | | | Under its operating agreement, the LLC’s sole purpose is winding up the affairs of the LLC and liquidation of its remaining assets, with no objective to continue or engage in the conduct of a trade or business. | | | Under a liquidating trust agreement, the sole purpose of a Trust is winding up the affairs of the Trust and liquidation of its remaining assets, with no objective to continue or engage in the conduct of a trade or business. | |
Authorized Stock/Units/Beneficial Interests/Issuance of Additional Equity
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The Company is authorized to issue:
30,000,000 shares of common stock, par value $0.01 per share, of which 16,791,769 were issued and outstanding as of the record date; and 5,000,000 shares of preferred stock, par value |
| | Following the conversion, based on the number of shares of common stock outstanding as of the record date, the LLC will have 16,791,769 units issued and outstanding, all of which will be held by the persons holding common stock of the Company immediately prior to the conversion. All outstanding shares are | | |
Each stockholder of a company at the time of the transfer of its assets to a Trust would be distributed one beneficial interest for each share of common stock then held, and all outstanding shares are thereafter automatically deemed cancelled upon the dissolution of the Company.
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Subject
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The Company
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The LLC
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A Trust
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$0.01 per share, of which none were issued and outstanding as of the record date.
At the discretion of the Board of Directors, the Company may issue additional equity securities, and may classify or reclassify unissued shares into one or more classes or series of common stock or preferred stock with certain terms or preferences set by the Board of Directors. |
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thereafter automatically deemed cancelled upon the dissolution of the Company.
The operating agreement does not provide Board of Managers authority to issue additional units. |
| | The liquidating trust agreement does not provide trustees authority to issue additional beneficial interests. | |
Investment Restrictions
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| | The Company does not have any restrictions on its investments in its charter or bylaws. The Board of Directors may from time to time adopt, amend, revise or terminate any policy or policies with respect to investments by the Company as it shall deem appropriate in its sole discretion. Pursuant to the Liquidation Plan, the Company is presently restricted from business activities other than actions deemed necessary or desirable in the judgment of the Board of Directors in order to wind up expeditiously the affairs of the Company. | | | The Board of Managers shall not enter into any business except as necessary for liquidation of the LLC’s assets, nor invest cash held as LLC assets except for (i) U.S. government bonds with maturity terms of one year or less, (ii) U.S. money market deposit accounts, checking accounts, savings accounts, or certificates of deposit, or (iii) other temporary investments not inconsistent with the LLC’s status for tax purposes. | | | The trustees shall not enter into any business except as necessary for liquidation of the Trust assets, nor invest cash held as Trust assets except for (i) U.S. government bonds with maturity terms of one year or less, (ii) U.S. money market deposit accounts, checking accounts, savings accounts, or certificates of deposit, or (iii) other temporary investments not inconsistent with the Trust’s status as a liquidating trust for tax purposes. | |
Duration
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| | The Company will continue perpetually until dissolved in accordance with Maryland law. Pursuant to the Liquidation Plan, if the Board of Directors determines it is not advisable to make a final liquidating distribution under the Liquidation Plan prior to January 3, 2019, the Company will transfer and assign all its remaining assets and liabilities to a liquidating trust as a final | | | The LLC will remain in existence until the earliest of (i) the distribution of all assets pursuant to liquidation or (ii) four years from the effective date. The LLC’s term may be extended to such later date as the Board of Managers determines is reasonably necessary to fulfill the purposes of the LLC. | | | A Trust will remain in existence until the earliest of (i) the distribution of all assets pursuant to liquidation or (ii) three years from the effective date. The Trust’s term may be extended to such later date as the trustees determine is reasonably necessary to fulfill the purposes of the Trust, subject to receipt of additional no-action assurances from the staff of the Securities and Exchange Commission | |
Subject
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The Company
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The LLC
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A Trust
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| | | liquidating distribution under the Liquidation Plan. | | | | | | regarding relief from applicable reporting requirements under the Exchange Act. | |
Sale of Company/Trust Assets
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Under the MGCL and the Company’s charter, the sale of all or substantially all of the assets of the Company must be declared advisable by the board of directors and, except as otherwise provided by the MGCL, approved by the affirmative vote of the stockholders entitled to cast a majority of all the votes entitled to be cast on the matter. No approval of the stockholders is required for the sale of less than substantially all of the Company’s assets.
The Board of Directors and stockholders approved the sale of all or substantially all of the assets and transfer to a liquidating trust pursuant to the Liquidation Plan. |
| | The Board of Managers may sell, transfer, assign, or otherwise dispose of all or any part of the LLC’s assets at public auction or private sale. | | | The trustees may sell, transfer, assign, or otherwise dispose of all or any part of the Trust’s assets at public auction or private sale. | |
Voting Rights
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| | Each outstanding share of common stock entitles the holder thereof to one vote. Generally, the affirmative vote of a majority of the votes cast at a meeting at which a quorum is present is necessary for stockholder action, except that (a) a plurality of all the votes cast at a meeting at which a quorum is present is sufficient to elect a director and (b) charter amendments and certain extraordinary transactions, such as mergers, sales of all or substantially all of the assets, dissolution, and conversion to another entity (the sale of all or substantially all of the assets and dissolution was approved on January 3, 2017), require approval of stockholders entitled to cast | | | Under the operating agreement, a holder of a unit has one vote for each unit held on matters submitted to the unitholders for approval. Unitholders are entitled to vote with respect to certain limited matters, including removal of managers as described under the operating agreement of the LLC, certain amendments to the operating agreement, and certain major decisions, including decisions regarding increasing payments to the Advisor. These rights are described in more detail under “Description of Units — Voting Rights.” | | | Under the liquidating trust agreement, a holder of a beneficial interest has one vote for each beneficial interest held on matters submitted to the holders of beneficial interests for approval. Holders of beneficial interests are entitled to vote with respect to certain limited matters, including removal of trustees as described under the liquidating trust agreement, certain amendments to its liquidating trust agreement and certain major decisions. | |
Subject
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The Company
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The LLC
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A Trust
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| | | a majority of all votes entitled to be cast on the matter. Stockholders vote on limited matters, including election and removal of directors, charter amendments, and extraordinary transactions, such as mergers, sale of all or substantially all of the Company’s assets, conversion, and dissolution. | | | | | | | |
Limitations on Ownership of Interests
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| | Except for such Excepted Holders (as defined in the charter) as determined by the Board of Directors in its discretion, no person shall beneficially own or constructively own shares in excess of 9.8% in value of the aggregate of the outstanding shares and 9.8% (in value or in number of shares, whichever is more restrictive) of any class or series of stock. | | | None. | | | None. | |
Limitations on Transfer of Interests
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| | Shares of common stock of the Company are freely transferable upon registration under applicable securities laws, subject to the restrictions on transfer and ownership set forth in the charter. | | | Under the operating agreement, units may not be transferred, except by will, intestate succession or operation of law. | | | Under the liquidating trust agreement, beneficial interests may not be transferred, except by will, intestate succession or operation of law. | |
Interim Distributions
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| | The Board of Directors may from time to time authorize the Company to declare and pay to stockholders such dividends or other distributions as the Board of Directors in its discretion shall determine. The Company will pay distributions on its stock on a pro rata basis in accordance with the number of shares held. | | | The Board of Managers may from time to time authorize the LLC to declare and pay to unitholders such distributions as the Board of Managers in its discretion shall determine, provided that the LLC shall distribute at least annually all cash proceeds from the sale of the LLC’s assets in excess of a reasonable amount determined by the Board of Managers to be required to satisfy the liabilities and expenses of the LLC. The LLC will pay distributions on the units on a pro rata basis in accordance with the number of units held. | | | The trustees may from time to time authorize a Trust to declare and pay to holders of beneficial interests such distributions as the trustees in their discretion shall determine, provided that, generally, the Trust shall distribute at least annually all cash proceeds from the sale of the Trust’s assets in excess of a reasonable amount determined by the trustees to be required to satisfy the liabilities and expenses of the Trust. The Trust will pay distributions on the beneficial interests on a pro rata basis in accordance with the number of beneficial interests held. | |
Subject
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The Company
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The LLC
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A Trust
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Dissolution and Final Distribution
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| | In the event of liquidation, dissolution or winding up of the Company, the aggregate assets available for distribution to holders of the common stock shall be determined in accordance with applicable law. Each holder of common stock shall be entitled to receive that portion of such aggregate assets available for distribution as the number of outstanding shares of common stock held by such holder bears to the total number of outstanding shares of common stock then outstanding. | | |
The operating agreement of the LLC provides that if the Board of Managers determines that the liabilities and obligations of the LLC have been paid or discharged, the LLC shall, as expeditiously as is consistent with the conservation and protection of the Company’s assets, distribute the remaining assets to unitholders.
The LLC may be dissolved only upon the happening of any of the following events: (a) the determination of the Board of Managers to dissolve the LLC with the consent of holders of a majority of the outstanding units or (b) a final liquidating distribution. |
| | The Trust’s liquidating trust agreement provides if the trustees determine that the liabilities and obligations of the Trust have been paid or discharged, the Trust shall, as expeditiously as is consistent with the conservation and protection of the Trust’s assets, distribute the remaining assets to holders of beneficial interests. | |
Management Control
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| | The Company is managed under the direction of a Board of Directors, as elected by the stockholders of the Company. Actions by the Board of Directors generally require the approval of a majority of the directors. Certain decisions are made for the Company by the Company’s management, subject to oversight by the Board of Directors, and, except for certain extraordinary actions, without any vote or approval of the Company’s stockholders. The Board of Directors and management also have broad discretion, without being subject to stockholder vote or approval, to make decisions regarding the Company’s policies, including its policies with respect to investment, financing, growth, acquisitions, development, debt, capitalization, and dividends. | | | The operating agreement of the LLC provides that its business and affairs shall be managed by or under the direction of its Board of Managers. All actions to be taken by the Board of Managers, except as otherwise expressly provided, shall require approval of at least a majority of the members of the Board of Managers. The Board of Managers has broad discretion, without unitholders’ approval, subject to the limitations under “Investment Restrictions,” to make decisions on behalf of the LLC, including discretion to appoint agents. | | | The Trust’s liquidating trust agreement provides that its business and affairs shall be managed by or under the direction of its trustees. All actions to be taken by the trustees, except as otherwise expressly provided, shall require approval of at least a majority of the trustees. The trustees have broad discretion, without approval of holders of beneficial interests, subject to the limitations under “Investment Restrictions,” to make decisions on behalf of the Trust, including discretion to appoint agents. | |
Subject
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The Company
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The LLC
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A Trust
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Number and Term of Directors/Members/Trustees/Officers
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The directors on the Board of Directors currently are Randolph C. Read, P. Sue Perrotty, Craig T. Bouchard, Joe C. McKinney, and Howard Goldberg, and the Board of Directors cannot be less than the minimum number required by the MGCL, nor more than 15. Directors are elected for a term of one year and until a successor is duly elected and qualifies. Vacancies on the Board of Directors may be filled solely by the affirmative vote of a majority of the entire remaining Board of Directors.
In accordance with NYSE listing rules, a majority of the members of the Board of Directors are required to be independent. Officers are elected annually by the Board of Directors, except that the Company’s chief executive officer or president may from time to time appoint one or more vice presidents, assistant secretaries and assistant treasurers or other officers. Each officer shall otherwise serve until his or her successor is elected and qualifies or until his or her death, resignation or removal. Any officer may be removed, with or without cause, by the Board of Directors. |
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There is no required number of members of the Board of Managers, except that the number may not be more than five. The initial members of the Board of Managers will be designated by the Board of Directors. Vacancies on the Board of Managers may be filled solely by the affirmative vote of a majority of the entire remaining Board of Managers, and if there are no remaining members of the Board of Managers, such vacancy shall be filled by a vote of the holders of a majority of the outstanding units.
Pursuant to the operating agreement of the LLC, a majority of the members of the Board of Managers are required to be independent. Officers may be elected by the Board of Managers. Each officer shall otherwise serve until his or her successor is elected and qualifies or until his or her death, resignation or removal. Any officer may be removed, with or without cause, by the Board of Managers. |
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There is no required number of trustees, though generally the number may not be more than five. The initial trustees are designated by the Board of Directors. Vacancies among the trustees may be filled by the remaining trustees, and if there are no remaining trustees, such vacancy shall be filled by a vote of a majority in interest of the holders of beneficial interests.
Trustees may or may not be required to be independent. Officers may be elected by the trustees. Each officer shall otherwise serve until his or her successor is elected and qualifies or until his or her death, resignation or removal. Any officer may be removed, with or without cause, by the trustees. |
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Subject
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The Company
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The LLC
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A Trust
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Specific Powers of the Board of Managers/Trustees
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| | The Board of Directors is responsible for overseeing the operations of the Company and officers, who are responsible for conducting the day-to-day operations of the Company. | | | The Board of Managers’ powers include, but are not limited to: (i) determining consideration to be received with respect to the sale of the LLC’s assets, (ii) liquidating such property of the LLC as it deems appropriate, (iii) electing or appointing any persons as agents or representatives and paying reasonable compensation for such services and delegating powers of the Board of Managers to such agents or representatives, (iv) retaining funds deemed necessary to pay for expenses, claims, obligations, and other liabilities of the LLC, the Company, or any subsidiary thereof, (v) performing all acts necessary or appropriate for conservation of the LLC’s assets, (vi) terminating or dissolving entities owned by the LLC, and (vii) performing such other authorized acts, except those expressly requiring the members’ consent, as described under the operating agreement. | | | The trustees’ powers generally include, but are not limited to: (i) determining consideration to be received with respect to the sale of a Trust’s assets, (ii) liquidating such property of the Trust as it deems appropriate, (iii) electing or appointing any persons as agents or representatives and paying reasonable compensation for such services and delegating powers of the trustees to such agents or representatives, (iv) retaining funds deemed necessary to pay for expenses, claims, obligations, and other liabilities of the Trust, the Company, or any subsidiary thereof, (v) performing all acts necessary or appropriate for conservation of the Trust’s assets, (vi) terminating or dissolving entities owned by the Trust, and (vii) performing such other authorized acts, except those expressly requiring the holders of beneficial interests’ consent under the liquidating trust agreement. | |
Removal of Directors/Managers/Trustees
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Any director, or the entire Board of Directors, may be removed from office at any time, but only for cause and then only by the affirmative vote of stockholders entitled to cast at least two-thirds of the votes entitled to be cast generally in the election of directors.
“Cause” is defined, with respect to any particular director, as conviction of a felony or a final judgment of a court of competent jurisdiction holding that such director caused demonstrable, material |
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Any manager may be removed, with cause, by the holders of a majority of the outstanding units, or without cause, by the holders of at least 75% of the outstanding units.
“Cause” is defined as any knowing and intentional act by the manager which is outside the powers and limitations granted and imposed hereto in connection with his or her responsibilities under the |
| | Liquidating trust agreements permit holders of beneficial interests to remove trustees with or without cause by at least a majority in interest of the holders of beneficial interests. | |
Subject
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The Company
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The LLC
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A Trust
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| | | harm to the Company through bad faith or active and deliberate dishonesty. | | | limited liability agreement or (ii) any grossly negligent act, grossly negligent failure to act, fraudulent act or act of willful misconduct, knowingly and intentionally committed in bad faith by the manager which is injurious to the LLC or its assets. | | | | |
Meetings
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| | Meetings of stockholders will be held on such date and at such time and place (if any) as designated by the Board of Directors and stated in the notice of the meeting. Special meetings of stockholders may be called by the Board of Directors, the chairman of the Board of Directors, the Company’s chief executive officer, and the Company’s president and, subject to the satisfaction of certain procedural requirements, must be called by the Company’s secretary to act on any matter that may properly be considered at a meeting of stockholders upon the written request of stockholders entitled to cast not less than a majority of all votes entitled to be cast on such matter at such meeting. | | | Meetings of unitholders may be held on such date and at such time and place (if any) as designated by the Board of Managers and stated in the notice of the meeting or by holders of a majority of the outstanding units. Special meetings of the unitholders may be called at any time by the Board of Managers or, if the Board of Managers fails to call a meeting within 30 days after a request from holders of a majority of the outstanding units, by holders of a majority of the outstanding units. | | | Meetings of holders of beneficial interests may be held on such date and at such time and place (if any) as designated by the trustees and stated in the notice of the meeting or by a majority in interest of the holders of beneficial interests. Special meetings of the holders of beneficial interests may be called at any time by the trustees or, if the trustees fail to call a meeting generally within 30 days after a request from generally 10 – 50% in interest of the holders of beneficial interests, by the holders of beneficial interests. | |
| | | A majority of the outstanding shares of common stock shall constitute a quorum and, except as otherwise described above under “Voting Rights”, the affirmative vote of a majority of the votes cast at a meeting at which a quorum is present is necessary for stockholder action. | | | A majority of the outstanding units shall constitute a quorum and, unless otherwise provided any action which may be taken by the members under the operating agreement shall require the approval of holders of a majority of the outstanding units. | | | A majority in interest of the holders of beneficial interests shall constitute a quorum and, unless otherwise provided any action which may be taken by the holders of beneficial interests under the liquidating trust agreement shall require the approval of a majority in interest of the holders of beneficial interests. | |
Subject
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The Company
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The LLC
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A Trust
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Limitation of Liability/Duties
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No present or former director shall be liable to the Company or its stockholders for money damages, except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment and which is material to the cause of action.
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| | The operating agreement of the LLC provides that members of the Board of Managers will have the same duties, including a duty of loyalty and a duty of care, to the LLC and its unit-holding members, and will be subject to the same liability for breach of duties, as a director of a corporation incorporated under the DGCL, assuming such director was protected to the maximum extent possible by the inclusion in the certificate of incorporation of such corporation of a provision contemplated by Section 102(b)(7) of the Delaware General Corporation Law, which permits a corporation’s certificate of incorporation to contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision does not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under the section of the DGCL related to liability of directors for unlawful payment of dividend or unlawful stock purchase or redemption, or (iv) for any transaction from which the director derived an improper personal benefit. Except to the extent provided in the immediately preceding sentence, the unit-holding members and the LLC have waived any and all duties, and liability | | | Trustees shall not be personally liable for any acts or omissions, except as determined by final order of a court of competent jurisdiction for their own grossly negligent action, their own grossly negligent failure to act, or their own fraud or willful misconduct, except that: (a) no successor trustee shall be responsible for acts or omissions of a prior trustee, (b) trustees shall not be liable to holders of beneficial interests for acts or omissions of an agent, advisor, or manager of a Trust appointed under the liquidating trust agreement, except where such action is directed or delegated where such trustees were under a duty not to delegate, or the trustee did not use prudence in the selection or retention of such person, or did not periodically review such person’s performance, or concealed the act or omission, or neglected to take reasonable steps to redress the wrong. | |
Subject
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The Company
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The LLC
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A Trust
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| | | | | | for breach of duties, that may be owed to the LLC and its unit-holding members under applicable law by any member of the Board of Managers. | | | | |
| | | The Company’s directors and officers have duties under applicable Maryland law to act in good faith, in a manner reasonably believed to be in the Company’s best interest and with the care of an ordinarily prudent person in a like position under similar circumstances. | | | Pursuant to this provision of the operating agreement of the LLC, members of the Board of Managers shall not be personally liable for any act or omission, except for their own fraud or intentional misconduct, in each case, as determined by a final order of a court of competent jurisdiction from which no appeal can be or is taken. | | | Each trustee shall exercise such rights and powers vested in the trustees in good faith and use the same degree of care and skill as a prudent man or woman would exercise under the circumstances in the conduct of his or her own affairs. | |
Liability of Holders
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| | No stockholder shall be liable for any debt, claim, or other obligations of the Company, or for any personal liability in tort, contract or otherwise in connection with the affairs of the Company. | | | No unitholder shall be liable for any debt, claim, or other obligations of the LLC, or for any personal liability in tort, contract or otherwise in connection with the affairs of the LLC. | | | No beneficiary shall be liable for any debt, claim, or other obligations of the Trust, or for any personal liability in tort, contract or otherwise in connection with the affairs of the Trust. | |
Reporting
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| | The Company and the stockholders are subject to certain reporting requirements as a result of the Company’s status as a public company under the Exchange Act and other applicable securities laws, including filing Annual Reports on Form 10-K with annual audited financial statements, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K for certain material events. | | | The LLC will continue to comply with all reporting obligations required of companies with a class of securities registered under the Exchange Act unless any of those obligations becomes no longer applicable to the LLC or reduced reporting requirements applicable to liquidating trusts under interpretations of the staff of the SEC Commission are applicable to the LLC. | | | The liquidating trust agreement provides that as soon as practicable after each tax year and after termination of a Trust, the Trust shall file an Annual Report on Form 10-K showing assets and liabilities of the Trust, receipts and disbursements, previously unreported changes, and any previously unreported action taken by the Trust. The financial statements need not be audited. The Trust will also file Current Reports on Form 8-K whenever an applicable material event occurs. | |
Subject
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The Company
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The LLC
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A Trust
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Review of Investor Lists
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| | The MGCL provides that any stockholder may inspect and copy the Company’s bylaws, stockholders minutes, annual statement of affairs and voting trust agreements deposited with the Company and provides additional rights of inspection to a person or persons who, for at least six months, have held an aggregate of 5% of the outstanding stock of any class of the Company, including the right to inspect the Company’s stock ledger or a list of its stockholders. | | | The LLC Act generally provides rights of inspection to unitholders, including the right to inspect the LLC’s list of members or such other information regarding the affairs of the LLC as is just and reasonable for any purpose reasonably related to the unitholder’s interest. | | | No right to inspect the list of holders of beneficial interests. | |
Beneficial Owner
(1)
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| |
Numbers of
Shares Beneficially Owned |
| |
Percent
of Class |
| ||||||
The Vanguard Group, Inc.
(2)
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| | | | 2,385,053 | | | | | | 14.2 % | | |
Long Pond Capital LP
(3)
|
| | | | 1,285,522 | | | | | | 7.7 % | | |
Davidson Kempner Capital Mgmt LP
(4)
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| | | | 1,190,050 | | | | | | 7.1 % | | |
Pacific Investment Management Company LLC
(5)
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| | | | 929,779 | | | | | | 5.5 % | | |
Indaba Capital Management LP
(6)
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| | | | 890,162 | | | | | | 5.3 % | | |
683 Capital Management, LLC
(7)
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| | | | 850,000 | | | | | | 5.1 % | | |
Randolph C. Read
(8)
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| | | | 1,849 | | | | | | * | | |
P. Sue Perrotty
(9)
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| | | | 1,685 | | | | | | * | | |
John A. Garilli
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| | | | 1,500 | | | | | | * | | |
Craig T. Bouchard
(10)
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| | | | 493 | | | | | | * | | |
Howard Goldberg
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| | | | — | | | | | | * | | |
Joe McKinney
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| | | | — | | | | | | * | | |
Wendy Silverstein
(11)
|
| | | | — | | | | | | * | | |
All directors and executive officers as a group (six persons)
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| | | | — | | | | | | * | | |
| ATTEST: | | |
NEW YORK REIT, INC.
,
a Maryland corporation |
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By:
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| Name: | | | Name: | |
| Title: | | | Title: | |
| AUTHORIZED PERSON: | |
| NEW YORK REIT, INC. | |
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By:
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Name:
Title: |
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| AUTHORIZED PERSON: | |
| NEW YORK REIT, INC. | |
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By:
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Name:
Title: |
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| New York REIT, Inc. | | |||
| By: | | |
Name:
Title: |
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