AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST , 1996
REGISTRATION NO. 333-9081
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CALI REALTY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 22-3305147
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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11 COMMERCE DRIVE
CRANFORD, NEW JERSEY 07016
(908) 272-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF PRINCIPAL EXECUTIVE OFFICES)
------------------------
JOHN J. CALI
CHAIRMAN OF THE BOARD
11 COMMERCE DRIVE
CRANFORD, NEW JERSEY 07016
(908) 272-8000
(908) 272-6755 (FACSIMILE)
(NAME AND ADDRESS OF AGENT FOR SERVICE)
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COPIES TO:
JONATHAN A. BERNSTEIN, ESQ.
BLAKE HORNICK, ESQ.
PRYOR, CASHMAN, SHERMAN & FLYNN
410 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 421-4100
(212) 326-0806 (FACSIMILE)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as possible after the Registration Statement becomes effective.
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. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed maximum
Title of shares Amount to maximum aggregate Amount of
to be be aggregate price offering registration
registered registered per unit price(1) fee
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Preferred $500,000,000 $172,413.79
Stock(2) (5) (6)
Common Stock(3)
Warrants(4)
(1) Estimated solely for the purpose of calculating the registration fee and
exclusive of accrued interest, if any.
(2) There are being registered hereunder an indeterminate number of shares
of Preferred Stock of the Registrant as may be sold, from time to time,
by the Registrant.
(3) There are being registered hereunder an indeterminate number of shares
of Common Stock of the Registrant as may be sold, from time to time, by
the Registrant. There are also being registered hereunder an
indeterminate number of shares of Common Stock of the Registrant as
shall be issuable upon conversion of or in exchange for convertible
Preferred Stock or Warrants registered hereby. No separate consideration
will be received for the Common Stock issuable upon conversion of or in
exchange for convertible Preferred Stock or Warrants.
(4) There are being registered hereunder an indeterminate number of Warrants
to purchase either Preferred Stock or Common Stock of the Registrant as
may be sold, from time to time, by the Registrant. Warrants may be sold
separately or with the Preferred Stock or Common Stock.
(5) Or an equivalent amount in another currency or currencies or as
determined by reference to an index or, if the securities are to be
offered at a discount, the approximate proceeds to the Registrant.
(6) Calculated in accordance with Rule 457(o) under the Securities Act of
1933.
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth estimated expenses (except for
Commission and NASD fees) to be incurred in connection with the issuance and
distribution of the securities being registered.
Commission Registration Fee $172,413.79
NASD Fee 0
NYSE Listing Fee 14,800,00
Printing and Engraving Expenses 50,000.00
Legal Fees and Expenses (other than Blue Sky) 250,000.00
Accounting Fees and Expenses 175,000.00
Blue Sky Fees and Expenses (including fees of counsel) 5,000.00
Miscellaneous 10,000.00
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Total $677,213.79
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's officers and directors are indemnified under Maryland
law, the Articles of Incorporation and the Amended and Restated Agreement of
Limited Partnership of the Operating Partnership (the "Partnership Agreement of
the Operating Partnership"), against certain liabilities. The Articles of
Incorporation require the Company to indemnify its directors and officers to the
fullest extent permitted from time to time by the laws of the State of Maryland.
The bylaws contain provisions which implement the indemnification provisions of
the Articles of Incorporation.
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 the Articles of
Incorporation of the Company 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 the Company 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 articles of incorporation 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. The
Articles of Incorporation of the Company contain a provision consistent with the
MGCL. No amendment of the Articles of Incorporation 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 the Operating Partnership also provides
for indemnification of the Company and its officers and directors to the same
extent indemnification is provided to officers and directors of the Company in
its Articles of Incorporation, and limits the liability of the Company and its
officers and directors to the Operating Partnership and its partners to the same
extent liability of officers and directors of the Company to its stockholders is
limited under the Company's Articles of Incorporation.
The Company has entered into indemnification agreements with each of
its directors and officers. The indemnification agreements require, among other
things, that the Company indemnify its 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. The Company 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 the
Company's directors' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by provisions of the Articles of Incorporation and the bylaws and
Partnership Agreement of the Operating Partnership, 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
1.1 Form of Underwriting Agreement for equity securities (1)
3.1 Amended and Restated Articles of Incorporation of Cali Realty
Corporation, incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-11 (Registration
No. 33-79892)
3.2 Articles of Amendment to the Amended and Restated Articles of
Incorporation of Cali Realty Corporation
3.3 Amended and Restated Bylaws of Cali Realty Corporation,
incorporated by reference to Exhibit 3.4 to the Company's
Registration Statement on Form S-11 (Registration No.
33-79892)
4.1 Form of Common Stock certificate, incorporated by reference to
Exhibit 5.1 to the Company's Registration Statement on Form
8-A, filed with the Commission on August 9, 1994
4.2 Form of Common Stock Warrant Agreement (1)
4.3 Form of Articles Supplementary for the Preferred Stock (1)
4.4 Form of Preferred Stock Certificate (1)
4.7 Form of Preferred Stock Warrant Agreement (1)
5.1 Opinion of Swidler & Berlin, Chartered regarding the validity
of the securities being registered
8.1 Opinion of Pryor, Cashman, Sherman & Flynn regarding tax
matters
12.1 Calculation of Ratios of Earnings to Fixed Charges (2)
23.1 Consent of Swidler & Berlin, Chartered (included as part of
Exhibit 5.1)
23.2 Consent of Pryor, Cashman, Sherman & Flynn (included as part
of Exhibit 8.1)
23.3 Consent of Price Waterhouse LLP
23.4 Consent of Schonbraun, Safris, Sternlieb & Co., L.L.C. (2)
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(1) To be filed by amendment.
(2) Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the
Underwriters, at the Closing specified in the Underwriting Agreement,
certificates in such denominations and registered in such names as required by
the Underwriters to permit prompt deliver to each purchaser.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of the registration
statement as of the time it was declared effective.
(2) For purposes 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.
The undersigned Registrant also hereby undertakes:
(1) 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.
(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.
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 its 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 the time shall be deemed to be the initial bona fide offering hereof.
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
Securities Act of 1933 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 against the Registrant 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on this 28th day of July,
1996.
CALI REALTY CORPORATION
By: /s/ JOHN J. CALI
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JOHN J. CALI
CHAIRMAN OF THE BOARD
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Dated: August 9, 1996 /s/ Thomas A. Rizk
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Thomas A. Rizk
President, Chief Executive
Officer and Director
Dated: August 9, 1996 /s/ Barry Lefkowitz
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Barry Lefkowitz
Vice President - Finance and
Chief Financial Officer
Dated: August 9, 1996 /s/ Angelo R. Cali
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Angelo R. Cali
Director
Dated: August 9, 1996 /s/ Edward Leshowitz
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Edward Leshowitz
Director
Dated: August 9, 1996 /s/ Brendan T. Byrne
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Brendan T. Byrne
Director
Dated: August 9, 1996 /s/ Kenneth A. DeGhetto
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Kenneth A. DeGhetto
Director
Dated: August 9, 1996 /s/ James W. Hughes
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James W. Hughes
Director
Dated: August 9, 1996 /s/ Irvin D. Reid
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Irvin D. Reid
Director
Dated: August 9, 1996 /s/ Alan Turtletaub
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Alan Turtletaub
Director
EXHIBIT INDEX
Exhibit
No. Description
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1.1 Form of Underwriting Agreement for equity securities (1)
3.1 Amended and Restated Articles of Incorporation of
Cali Realty Corporation, incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement
on Form S-11 (Registration No. 33-79892)
3.2 Articles of Amendment to the Amended and Restated
Articles of Incorporation of Cali Realty Corporation
3.3 Amended and Restated Bylaws of Cali Realty
Corporation, incorporated by reference to Exhibit 3.4
to the Company's Registration Statement on Form S-11
(Registration No. 33-79892)
4.1 Form of Common Stock certificate, incorporated by reference to Exhibit
5.1 to the Company's Registration Statement on Form 8-A, filed with
the Commission on August 9, 1994
4.2 Form of Common Stock Warrant Agreement (1)
4.3 Form of Articles Supplementary for the Preferred Stock (1)
4.4 Form of Preferred Stock Certificate (1)
4.7 Form of Preferred Stock Warrant Agreement (1)
5.1 Opinion of Swidler & Berlin, Chartered regarding the
validity of the securities being registered
8.1 Opinion of Pryor, Cashman, Sherman & Flynn regarding
tax matters
12.1 Calculation of Ratios of Earnings to Fixed Charges (2)
23.1 Consent of Swidler & Berlin, Chartered (included as part
of Exhibit 5.1)
23.2 Consent of Pryor, Cashman, Sherman & Flynn (included as
part of Exhibit 8.1)
23.3 Consent of Price Waterhouse LLP (2)
23.4 Consent of Schonbraun, Safris, Sternlieb & Co., L.L.C. (2)
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(1) To be filed by amendment.
(2) Previously filed.