REGISTRATION NO. 333-71133
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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 2, 2001
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MACK-CALI REALTY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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MARYLAND
(State or Other Jurisdiction of Incorporation)
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22-3305147
(I.R.S. Employer Identification Number)
11 COMMERCE DRIVE
CRANFORD, NEW JERSEY 07016
(908) 272-8000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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ROGER W. THOMAS
GENERAL COUNSEL
11 COMMERCE DRIVE
CRANFORD, NEW JERSEY 07016
(908) 272-8000
(908) 272-6755 (FACSIMILE)
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
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COPIES TO:
BLAKE HORNICK, ESQ.
PRYOR CASHMAN SHERMAN & FLYNN LLP
410 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 421-4100
(212) 326-0806 (FACSIMILE)
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Approximate date of commencement of proposed sale of the securities to the
public: From time to time after the Registration Statement becomes effective.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, 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 of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
check the following box. / /
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED BE REGISTERED* PER SHARE** OFFERING PRICE** REGISTRATION FEE**
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Common Stock ($0.01 par value)... 5,700,000 shares N/A N/A N/A
* All of the securities registered hereby are issuable under the Registrant's
Dividend Reinvestment And Stock Purchase Plan.
** Previously Filed.
THE REGISTRANT HEREBY AMENDS THE 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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
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EXPLANATORY NOTE
This Post-Effective Amendment No. 2 to the Registration Statement on
Form S-3 is being filed for the sole purpose of filing exhibits that, due to
technical difficulties in the filing of Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3, were inadvertently excluded from such
Post-Effective Amendment No. 1.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our officers and directors are indemnified under Maryland law, our charter
and the Amended and Restated Agreement of Limited Partnership of Mack-Cali
Realty, L.P. (the "Partnership Agreement of Mack-Cali Realty, L.P."), against
certain liabilities. Our charter requires us to indemnify our directors and
officers to the fullest extent permitted from time to time by the laws of the
State of Maryland. Our bylaws contain provisions which implement the
indemnification provisions of our charter.
The Maryland General Corporation Law ("MGCL") permits a corporation to
indemnify its directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason of
their service in those capacities unless it is established that the act or
omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, or the director or officer actually received an improper
personal benefit in money, property or services, or in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful, or the director or officer was adjudged to be liable
to the corporation for the act or omission. No amendment of our charter shall
limit or eliminate the right to indemnification provided with respect to acts or
omissions occurring prior to such amendment or repeal. Maryland law permits us
to provide indemnification to an officer to the same extent as a director,
although additional indemnification may be provided if such officer is not also
a director.
The MGCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, with specified exceptions.
The MGCL does not, however, permit the liability of directors and officers to
the corporation or its stockholders to be limited to the extent that (1) it is
proved that the person actually received an improper benefit or profit in money,
property or services (to the extent such benefit or profit was received) or
(2) a judgment or other final adjudication adverse to such person is entered in
a proceeding based on a finding that the person's action, or failure to act, was
the result of active and deliberate dishonesty and was material to the cause of
action adjudicated in the proceeding. Our charter contains a provision
consistent with the MGCL. No amendment of our charter shall limit or eliminate
the limitation of liability with respect to acts or omissions occurring prior to
such amendment or repeal.
The Partnership Agreement of Mack-Cali Realty, L.P. also provides for
indemnification of us and our officers and directors to the same extent
indemnification is provided to our officers and directors in our charter, and
limits the liability of us and our officers and directors to Mack-Cali Realty,
L.P. and its partners to the same extent liability of our officers and directors
to our stockholders is limited under our charter.
In addition, the Delaware Revised Limited Partnership Act provides that a
limited partner has the power to indemnify and hold harmless any partner or
other person from and against any and all claims and demands whatsoever, subject
to such standards and restrictions, if any, as are set forth in its partnership
agreement.
We have entered into indemnification agreements with each of our directors
and officers. The indemnification agreements require, among other things, that
we indemnify our directors and officers to the fullest extent permitted by law,
and advance to the directors and officers all related expenses, subject to
reimbursement if it is subsequently determined that indemnification is not
permitted. We also must indemnify and advance all expenses incurred by directors
and officers seeking to enforce their rights under the indemnification
agreements, and cover directors and officers under our directors'
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and officers' liability insurance. Although the form of indemnification
agreement offers substantially the same scope of coverage afforded by provisions
of our charter and bylaws and the Partnership Agreement of Mack-Cali Realty,
L.P., it provides greater assurance to directors and officers that
indemnification will be available, because, as a contract, it cannot be modified
unilaterally in the future by the Board of Directors or by the stockholders to
eliminate the rights it provides.
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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4.1 Form of Common Stock certificate(1)
5.1* Opinion of Ballard Spahr Andrews & Ingersoll LLP regarding
the validity of the common stock being registered
8.1* Opinion of Pryor Cashman Sherman & Flynn LLP regarding tax
matters
23.1* Consent of Ballard Spahr Andrews & Ingersoll, LLP
23.2* Consent of Pryor Cashman Sherman & Flynn LLP
23.3* Consent of PricewaterhouseCoopers LLP
24.1* Power of Attorney (see signature page)
99.1* Form of Enrollment Authorization Form
99.2* Form of Initial Investment Form
99.3 Form of Request for Waiver Form
99.4 Form of Broker and Nominee Form
99.5 Form of Direct Registration Transfer Instruction Form
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(1) Incorporated herein by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-3 filed with the Securities and Exchange
Commission on January 16, 1998.
* Previously filed.
ITEM 17. UNDERTAKINGS.
We, the undersigned Registrant, hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in this registration statement or any material change to such
information in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of 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.
We hereby further undertake that, for the purposes of determining any
liability under the Securities Act of 1933, each filing of our annual reports
pursuant to Section 13(a) or Section 15(d) of
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the Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
We hereby further undertake that:
(1) For the purpose of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance under Rule 430A and
contained in a form of prospectus filed by us pursuant to Rule 424(b)(1) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement at the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by us of expenses incurred or paid by
one of our directors, officers or controlling persons 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, we will,
unless in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by us is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we certify that
we have reasonable grounds to believe that we meet all the requirements for
filing on Form S-3 and have duly caused this registration statement to be signed
on our behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York on this 1st day of May, 2001.
MACK-CALI REALTY CORPORATION
By: /s/ MITCHELL E. HERSH
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Mitchell E. Hersh
CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Mitchell E. Hersh, Timothy Jones, Roger W.
Thomas or Barry Lefkowitz or any one of them, his or her attorneys-in-fact and
agents, each with full power of substitution and resubstitution for him or her
in any and all capacities, to sign any or all amendments or post-effective
amendments to this registration statement or a registration statement prepared
in accordance with Rule 462 of the Securities Act of 1933, as amended, and to
file the same, with exhibits thereto and other documents in connection herewith
or in connection with the registration of the offered securities under the
Securities Exchange Act of 1934, as amended, with the Securities and Exchange
Commission, granting unto each of such attorneys-in-fact and agents full power
to do and perform each and every act and thing requisite and necessary in
connection with such matters and hereby ratifying and confirming all that each
of such attorneys-in-fact and agents or his or her substitutes may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ MITCHELL E. HERSH
------------------------------------------- Chief Executive Officer and May 1, 2001
Mitchell E. Hersh Director
/s/ BARRY LEFKOWITZ Executive Vice President
------------------------------------------- and Chief Financial May 1, 2001
Barry Lefkowitz Officer
/s/ ROGER W. THOMAS*
------------------------------------------- Chairman of the Board May 1, 2001
William L. Mack
/s/ ROGER W. THOMAS*
------------------------------------------- Chairman Emeritus May 1, 2001
John J. Cali
/s/ ROGER W. THOMAS*
------------------------------------------- Director May 1, 2001
Brendan T. Byrne
------------------------------------------- Director May 1, 2001
John R. Cali
* attorney-in-fact
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SIGNATURE TITLE DATE
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------------------------------------------- Director May 1, 2001
Nathan Gantcher
/s/ ROGER W. THOMAS*
------------------------------------------- Director May 1, 2001
Martin D. Gruss
/s/ ROGER W. THOMAS*
------------------------------------------- Director May 1, 2001
Earle I. Mack
/s/ ROGER W. THOMAS*
------------------------------------------- Director May 1, 2001
Alan G. Philibosian
/s/ ROGER W. THOMAS*
------------------------------------------- Director May 1, 2001
Irvin D. Reid
/s/ ROGER W. THOMAS*
------------------------------------------- Director May 1, 2001
Vincent Tese
------------------------------------------- Director May 1, 2001
Robert F. Weinberg
------------------------------------------- Director May 1, 2001
Roy J. Zuckerberg
* attorney-in-fact
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Form of Common Stock certificate(1)
5.1* Opinion of Ballard Spahr Andrews & Ingersoll LLP regarding
the validity of the common stock being registered
8.1* Opinion of Pryor Cashman Sherman & Flynn LLP regarding tax
matters
23.1* Consent of Ballard Spahr Andrews & Ingersoll, LLP
23.2* Consent of Pryor Cashman Sherman & Flynn LLP
23.3* Consent of PricewaterhouseCoopers LLP
24.1* Power of Attorney (see signature page)
99.1* Form of Enrollment Authorization Form
99.2* Form of Initial Investment Form
99.3 Form of Request for Waiver Form
99.4 Form of Broker and Nominee Form
99.5 Form of Direct Registration Transfer Instruction Form
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(1) Incorporated herein by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-3 filed with the Securities and Exchange
Commission on January 16, 1998.
* Previously filed.