AS FILED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION ON
SEPTEMBER 12, 2003
REGISTRATION NO. 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ONE LIBERTY PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 13-3147497
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
60 CUTTER MILL ROAD
GREAT NECK, NEW YORK 11021
(516) 466-3100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
MARK H. LUNDY, ESQ.
VICE PRESIDENT AND SECRETARY
ONE LIBERTY PROPERTIES, INC.
60 CUTTER MILL ROAD
GREAT NECK, NEW YORK 11021
(516) 466-3100
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
JEFFREY A. BAUMEL, ESQ.
MCCARTER & ENGLISH, LLP
FOUR GATEWAY CENTER
100 MULBERRY STREET
NEWARK, NEW JERSEY 07102
(973) 622-4444
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. [ ]
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, please 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, 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,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(1) OFFERING PRICE(1)(2) REGISTRATION FEE
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Common Stock, par value $1.00 per
share.............................. $200,000,000 $16,180
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(1) There are being registered under this registration statement such
indeterminate number of shares of common stock of the registrant as shall
have an aggregate offering price not to exceed $200,000,000. The proposed
maximum offering prices per share will be determined, from time to time, by
the registrant in connection with the issuance by the registrant of the
securities registered under this registration statement.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933 (the "Securities Act").
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE SECURITIES AND EXCHANGE COMMISSION DECLARES
OUR REGISTRATION STATEMENT EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL
THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED SEPTEMBER 12, 2003
PROSPECTUS
ONE LIBERTY PROPERTIES, INC.
COMMON STOCK
$200,000,000
We may sell, from time to time, shares of our common stock, par value $1.00
per share, in one or more offerings up to a total dollar amount of $200,000,000.
When we decide to sell shares, we will provide you with the specific terms
of the sales in one or more supplements to this prospectus. Before you decide to
invest, you should carefully read this prospectus, any prospectus supplement and
information incorporated by reference in this prospectus and in any such
prospectus supplement.
Our common stock is listed for trading on the American Stock Exchange under
the trading symbol "OLP."
These securities may be sold directly by us, through dealers or agents
designated from time to time, or to or through underwriters or may be sold
directly by us for consideration consisting of goods and property, including
real property, or through a combination of these methods. See "Plan of
Distribution" in this prospectus. We may also describe the plan of distribution
for any particular offering of these securities in any applicable prospectus
supplement. If any agents, underwriters or dealers are involved in the sale of
any securities in respect of which this prospectus is being delivered, we will
disclose their names and the nature of our arrangements with them in a
prospectus supplement. The net proceeds we expect to receive from any such sale
will also be included in a prospectus supplement.
This prospectus may not be used to offer or sell any securities unless it
is accompanied by a prospectus supplement.
INVESTING IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. YOU SHOULD READ THE
ENTIRE PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT CAREFULLY BEFORE
YOU MAKE YOUR INVESTMENT DECISION. SEE "RISK FACTORS" BEGINNING ON PAGE 5.
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.
The date of this prospectus is , 2003
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS....................................... 2
WHERE YOU CAN FIND MORE INFORMATION......................... 3
SUMMARY..................................................... 4
RECENT DEVELOPMENTS......................................... 4
RISK FACTORS................................................ 5
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS........... 14
USE OF PROCEEDS............................................. 14
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS................... 14
PLAN OF DISTRIBUTION........................................ 29
LEGAL MATTERS............................................... 31
EXPERTS..................................................... 31
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC"), utilizing a "shelf" registration
process, which allows us to sell common stock from time to time in one or more
offerings up to an aggregate public offering price of $200,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell any securities under this prospectus, we will
provide a prospectus supplement that will contain specific information about the
terms of that offering. Prospectus supplements may also add, update or change
the information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described below under the heading "Where You Can Find More Information."
You should rely only on the information contained or incorporated by
reference in this prospectus and any prospectus supplement or amendment. We have
not authorized any other person to provide you with different information. We
will not make an offer to sell these securities in any jurisdiction where the
offer or sale is not permitted. You should assume that the information appearing
in this prospectus is accurate only as of the date on the cover page.
In this prospectus, references to "Company," "we," "us," "our,"
"registrant" and "OLP" refer to One Liberty Properties, Inc. The phrase "this
prospectus" refers to this prospectus and any applicable prospectus supplement,
unless the context otherwise requires. References to "securities" refer to the
common stock offered by this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus incorporates by reference important business and financial
information about us that is not otherwise included in this prospectus. The
following documents filed by us with the SEC, Commission File No. 001-09279, are
incorporated by reference in this prospectus and shall be deemed to be a part of
this prospectus:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
2002, filed on March 27, 2003;
2. Quarterly Report on Form 10-Q for the three months ended March 31,
2003, filed on May 13, 2003;
3. Quarterly Report on Form 10-Q for the three months ended June 30,
2003, filed on August 12, 2003;
4. Current Report on Form 8-K/A filed on January 16, 2003, amending a
Current Report on Form 8-K filed on December 26, 2002;
5. Current Report on Form 8-K filed on March 25, 2003, as amended by a
Current Report on Form 8-K/A filed on March 26, 2003;
6. Current Report on Form 8-K filed on August 7, 2003, as amended by a
Current Report on Form 8-K/A filed on September 11, 2003; and
7. The "Description of Capital Stock" section of our registration
statement on Form 8-A filed on September 18, 1989.
Current Reports on Form 8-K furnished under Item 9 of Form 8-K and under
Item 12 of Form 8-K are not incorporated by reference in this prospectus.
All documents and reports filed by us with the SEC (other than Current
Reports on Form 8-K furnished pursuant to Item 9 or Item 12 of Form 8-K, unless
otherwise indicated therein) pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the
date of this prospectus and prior to the termination of this offering shall be
deemed incorporated by reference in this prospectus and shall be deemed to be a
part of this prospectus from the date of filing of such documents and reports.
Any statement contained in a document incorporated or deemed to be incorporated
by reference in this prospectus shall be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement contained in this
prospectus or in any subsequently filed document or report that also is or is
deemed to be incorporated by reference in this prospectus modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus.
We will provide without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, upon written or oral request of
such person, a copy of any or all of the documents incorporated by reference in
this prospectus other than exhibits, unless such exhibits specifically are
incorporated by reference into such documents or this prospectus.
Requests for such documents should be addressed in writing or by telephone
to:
Mark H. Lundy
One Liberty Properties, Inc.
60 Cutter Mill Road
Great Neck, New York 11021
(516) 466-3100
We are subject to the information reporting requirements of the Exchange
Act and accordingly file annual, quarterly and special reports, proxy statements
and other information with the SEC. Members of the public may read and copy any
materials we file with the SEC at the SEC's Public Reference Room located at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549. Information on the
operation of the Public Reference Room may be obtained by calling the SEC at
1-800-SEC-0330. The SEC maintains an Internet site at http://www.sec.gov that
contains materials we file electronically with the SEC.
ii
SUMMARY
We are a self-administered and self-managed real estate investment trust.
We acquire, own and manage a geographically diversified portfolio of retail,
industrial, office, movie theater and other properties, a substantial portion of
which are under long-term leases. Substantially all of our leases are "net
leases", under which the tenant is responsible for real estate taxes, insurance
and ordinary maintenance and repairs.
We were incorporated under the laws of the State of Maryland on December
20, 1982. Our principal executive offices are located at 60 Cutter Mill Road,
Great Neck, New York 11021 and our telephone number is (516) 466-3100. Our
website is www.onelibertyproperties.com. The information contained on our
website is not part of this prospectus and you should not rely on it in deciding
whether to invest in our common stock.
RECENT DEVELOPMENTS
On July 15, 2003, we entered into an agreement to purchase 50% of the
interest in one of our movie theater joint ventures held by Greenwood Properties
Corp., an affiliate of the real estate equity group of Deutsche Bank AG. MTC
Investors LLC, our co-venturer with Greenwood Properties, has agreed to purchase
the remaining 50% interest of Greenwood Properties in the joint venture. The
aggregate purchase price for Greenwood Properties' interest is $13,925,000. This
transaction is scheduled to close on October 1, 2003. Upon completion of the
transaction, we and MTC Investors LLC will each own a 50% interest in our two
movie theater joint ventures.
On July 24, 2003, we acquired a 50% tenancy in common interest in a
production studio facility located in Los Angeles, California that is leased to
Playboy Entertainment Group, Inc. Andrita GERP LLC, which is owned by a group of
private investors, acquired the remaining 50% interest in the property. The
aggregate consideration for the purchase of the property, which was paid in
cash, was approximately $21,500,000. We paid cash consideration of approximately
$10,750,000 for our interest. We also provided short term financing to Andrita
in the amount of $7,000,000 in connection with this transaction.
On September 9, 2003, our board of directors, including all independent
directors, approved our purchase of the 5% equity interest in Elpans LLC held by
the wife of Jeffrey Fishman, our president and chief executive officer. We paid
Mrs. Fishman $159,200 in connection with this transaction. As a result of the
purchase, we own 100% of Elpans LLC, which owns our property in Brooklyn, NY.
Elpans LLC was formed, and Mrs. Fishman acquired her interest in Elpans LLC,
prior to the time Mr. Fishman became our employee.
1
RISK FACTORS
In addition to the information contained in this prospectus, in the
prospectus supplements, and in the documents incorporated by reference into this
prospectus, you should carefully consider the following information before
making an investment decision. If any of the following risks actually occur, our
financial condition and our results of operations could be materially and
adversely affected. Additional risks and uncertainties not presently known to us
may also impair our business operations.
RISKS RELATED TO OUR COMPANY
THE FINANCIAL FAILURE OF OUR TENANTS WOULD BE LIKELY TO CAUSE SIGNIFICANT
REDUCTIONS IN OUR REVENUES AND OUR EQUITY IN EARNINGS OF UNCONSOLIDATED JOINT
VENTURES AND IN THE VALUE OF OUR REAL ESTATE PORTFOLIO.
Substantially all of our revenues are derived from rental income generated
by our properties, and 82.9% of our properties, based on 2003 contractual rental
income, are leased to single tenants. Accordingly, the financial failure or
other default of a tenant in non-payment of rent or property-related expenses or
the termination of a lease could cause a significant reduction in our revenues.
Additionally, approximately 51.8% and 53.2% of our total revenues for the years
ended December 31, 2002 and December 31, 2001, respectively, were derived from
retail tenants and approximately 39.4% of our 2003 contractual rental income
will be derived from retail tenants. In addition, significant revenues will be
realized in 2003 by our two movie theater joint ventures. Weakening of economic
conditions in the retail or theater industries could result in the financial
failure, or other default, of a significant number of our tenants. Two of our
former retail tenants filed for protection under the federal bankruptcy laws.
With respect to one of these properties, the former tenant ceased operating at
the property in February 2003 and that property, containing approximately 43,200
square feet of space, has remained vacant since that date. With respect to the
other property, the tenant entered into a sublease with an unrelated third party
which has continued to occupy the property and pay its monthly rent to us. It is
possible that other tenants could file for protection under federal bankruptcy
laws or state insolvency proceedings or could face similar difficulties in the
future. In the event of a default by a tenant, we may experience delays in
enforcing our rights as landlord and sustain loss of revenues and substantial
costs in protecting our investment. We may also face liabilities arising from
the tenant's actions or omissions that would reduce our revenues and the value
of our portfolio. Also, if we are unable to re-rent any property when the
existing lease terminates, for an extended period of time, we would receive no
revenues from such property and could experience a decline in the value of the
property.
A SIGNIFICANT PORTION OF OUR REVENUES IS DERIVED FROM FOUR TENANTS. THE
DEFAULT, FINANCIAL DISTRESS OR FAILURE OF ANY OF THESE TENANTS COULD
SIGNIFICANTLY REDUCE OUR REVENUES.
L-3 Communications Corp. and Barnes & Noble, Inc. (a tenant at three
separate properties) accounted for approximately 11.1% and 9.3%, respectively,
of our total revenues for the year ended December 31, 2002 and account for 7.0%
and 6.3%, respectively, of our 2003 contractual rental income. Contractual
income for 2003 includes rental income that will be accrued in the year ending
December 31, 2003 from all properties owned by us as of the date of this
prospectus, including our pro rata share of the rental income which will be
accrued by our joint ventures. GE Medical Systems Information Technologies,
Inc., a tenant at one of our properties, accounts for 9.4% of our 2003
contractual rental income and Regal Cinemas, Inc., a tenant at four theaters
owned by our movie theater joint ventures, accounts for 8.3% of the 2003
contractual rental income. The default, financial distress or bankruptcy of any
of these tenants could cause interruptions in the receipt or the loss of a
significant amount of revenues and result in the vacancy of the property
occupied by the defaulting tenant, which would significantly reduce our revenues
and net income until the property is re-rented, and could decrease the ultimate
sale value of the property.
THE INABILITY TO REPAY OUR INDEBTEDNESS COULD REDUCE CASH AVAILABLE FOR
DISTRIBUTIONS AND CAUSE LOSSES.
As of June 30, 2003, we had outstanding approximately $82.6 million in
long-term mortgage indebtedness, all of which is non-recourse (subject to
standard carve-outs). As of June 30, 2003, our ratio of debt (including the $3.0
million outstanding under our line of credit) to total assets was approximately
48%. In
2
addition, at June 30, 2003, our movie theater joint ventures have outstanding
approximately $60.0 million in long-term mortgage indebtedness secured by nine
megaplex theaters. The risks associated with our debt include the risk that our
cash flow will be insufficient to meet required payments of principal and
interest. Further, if a property or properties are mortgaged to collateralize
payment of indebtedness and we are unable to make mortgage payments on the
secured indebtedness, the lender could foreclose upon the property or properties
resulting in a loss of revenues to us and a decline in the value of our
portfolio. Even with respect to non-recourse indebtedness, the lender may have
the right to recover deficiencies from us under certain circumstances that could
result in a reduction in the amount of cash available to meet expenses and to
make distributions and in a deterioration of our financial condition.
IF WE ARE UNABLE TO REFINANCE OUR BORROWINGS AT MATURITY AT FAVORABLE RATES OR
OTHERWISE RAISE FUNDS, OUR NET INCOME MAY DECLINE OR WE MAY BE FORCED TO SELL
PROPERTIES ON DISADVANTAGEOUS TERMS, WHICH WOULD RESULT IN THE LOSS OF
REVENUES AND IN A DECLINE IN THE VALUE OF OUR PORTFOLIO.
Only a small portion of the principal of our mortgage indebtedness will be
repaid prior to maturity and we do not plan to retain sufficient cash to repay
such indebtedness at maturity. Accordingly, in order to meet these obligations,
we will have to use funds available under our line of credit, if any, refinance
debt or seek to raise funds through the financing of unencumbered properties,
sale of properties or sale of additional equity. From July 1, 2003 through
December 31, 2007, we will have to refinance an aggregate of approximately $16.9
million of maturing debt, of which approximately $0 and $2.9 million will have
to be refinanced during the balance of 2003 and in 2004, respectively. We can
give no assurance that we will be able to refinance this debt or arrange
additional debt financing on unencumbered properties on terms as favorable as
the terms of existing indebtedness, or at all. If prevailing interest rates or
other factors at the time of refinancing result in interest rates higher than
interest rates which we are paying, our interest expense would increase, which
would adversely affect our net income, financial condition and the amount of
cash available to make distributions to stockholders. If we are not successful
in refinancing our existing indebtedness or financing our unencumbered
properties, selling properties on favorable terms or selling additional equity,
our cash flow will not be sufficient to repay all maturing debt when payments
become due, and we may be forced to dispose of properties on disadvantageous
terms, which would result in the loss of revenues and in a decline in the value
of our portfolio.
INCREASED BORROWINGS COULD RESULT IN INCREASED RISK OF DEFAULT ON OUR
REPAYMENT OBLIGATIONS AND INCREASED DEBT SERVICE REQUIREMENTS.
Our governing instruments do not contain any limitation on the amount of
indebtedness we may incur. Accordingly, increased leverage could result in
increased risk of default on our payment obligations related to borrowings and
in an increase in debt service requirements which would reduce our net income
and the amount of cash available to meet expenses and to make distributions to
holders of our common stock.
IF WE ARE UNABLE TO RE-RENT PROPERTIES UPON THE EXPIRATION OF OUR LEASES, IT
COULD ADVERSELY AFFECT OUR REVENUES AND ABILITY TO MAKE DISTRIBUTIONS AND
COULD REDUCE THE VALUE OF OUR PORTFOLIO.
Substantially all of our revenues are derived from rental income paid by
tenants at our properties. We cannot predict whether current tenants will renew
their leases upon the expiration of their terms. In addition, we cannot predict
whether current tenants will attempt to terminate their leases, or whether
defaults by tenants may result in termination of their leases prior to the
expiration of their current terms. If tenants terminate or fail to renew their
leases, or if leases terminate due to defaults, we may not be able to locate
qualified replacement tenants and, as a result, we would lose a source of
revenues while remaining responsible for the payment of our mortgage obligations
and the expenses related to the properties, including real estate taxes. Even if
tenants decide to renew their leases or we find replacement tenants, the terms
of renewals or new leases, including the cost of required renovations or
concessions to tenants or the expense of any reconfiguration of a single tenancy
property for use by multiple tenants, may be less favorable than current lease
terms and could reduce the amount of cash available to meet expenses and to make
distributions to holders of our common stock.
3
UNINSURED AND UNDERINSURED LOSSES MAY AFFECT THE REVENUES GENERATED BY, THE
VALUE OF, AND THE RETURN FROM, A PROPERTY AFFECTED BY A CASUALTY OR OTHER
CLAIM.
Substantially all of our tenants obtain, for our benefit, comprehensive
insurance covering our properties in amounts that are intended to be sufficient
to provide for the replacement of the improvements at each property. However,
the amount of insurance coverage maintained for any property may not be
sufficient to pay the full replacement cost of the improvements at the property
following a casualty event. In addition, the rent loss coverage under the policy
may not extend for the full period of time that a tenant may be entitled to a
rent abatement as a result of, or that may be required to complete restoration
following, a casualty event. In addition, there are certain types of losses,
such as those arising from earthquakes, floods, hurricanes and terrorist
attacks, that may be uninsurable or that may not be economically insurable.
Changes in zoning, building codes and ordinances, environmental considerations
and other factors also may make it impossible or impracticable for us to use
insurance proceeds to replace damaged or destroyed improvements at a property.
If restoration is not or cannot be completed to the extent, or within a period
of time, specified in certain of our leases, the tenant may have the right to
terminate the lease. If any of these or similar events occur, it may reduce our
revenues, or the value of, or our return from, an affected property.
OUR REVENUES AND THE VALUE OF OUR PORTFOLIO ARE AFFECTED BY A NUMBER OF
FACTORS THAT AFFECT INVESTMENTS IN REAL ESTATE GENERALLY.
We are subject to the general risks of investing in real estate. These
include adverse changes in economic conditions and local conditions such as
changing demographics, retailing trends and traffic patterns, declines in the
rental rates we are able to obtain, changes in the supply and price of quality
properties and the market supply and demand of competing properties, the impact
of environmental laws, security concerns, prepayment penalties applicable under
mortgage financing, changes in tax, zoning, building code, fire safety and other
laws, the type of insurance coverages available in the market, and changes in
the type, capacity and sophistication of building systems. Any of these
conditions could have an adverse effect on our results of operations, liquidity
and financial condition.
OUR REVENUES AND THE VALUE OF OUR PORTFOLIO ARE AFFECTED BY A NUMBER OF
FACTORS THAT AFFECT INVESTMENTS IN LEASED REAL ESTATE GENERALLY.
We are subject to the general risks of investing in leased real estate.
These include the non-performance of lease obligations by tenants, improvements
that will be costly or difficult to remove should it become necessary to re-rent
the leased space for other uses, covenants in certain retail leases that limit
the types of tenants to which available space can be rented (which may limit
demand or reduce the rents realized on re-renting), rights of termination of
leases due to events of casualty or condemnation affecting the leased space or
the property or due to interruption of the tenant's quiet enjoyment of the
leased premises, and obligations of a landlord to restore the leased premises or
the property following events of casualty or condemnation. Any of these
conditions could have an adverse impact on our results of operations, liquidity
and financial condition.
OUR REAL ESTATE INVESTMENTS ARE RELATIVELY ILLIQUID AND THEIR VALUES MAY
DECLINE.
Real estate investments are relatively illiquid. Therefore, we will be
limited in our ability to reconfigure our real estate portfolio in response to
economic changes. We may encounter difficulty in disposing of properties when
tenants vacate either at the expiration of the applicable lease or otherwise. If
we decide to sell any of our properties, our ability to sell these properties
and the prices we receive on their sale will be affected by the number of
potential buyers, the number of competing properties on the market, the interest
rate environment and the availability of mortgage financing, and other market
conditions, as well as whether the property is leased and if it is leased, the
terms of the lease. As a result, we may be unable to sell our properties for an
extended period of time without incurring a loss, which would adversely affect
our results of operations, liquidity and financial condition.
4
THE CONCENTRATION OF OUR PROPERTIES IN CERTAIN GEOGRAPHIC AREAS MAY MAKE OUR
REVENUES AND THE VALUE OF OUR PORTFOLIO VULNERABLE TO ADVERSE CHANGES IN LOCAL
ECONOMIC CONDITIONS.
We do not have specific limitations on the total percentage of our real
estate properties that may be located in any one area. Consequently, properties
that we own may be located in the same or a limited number of geographic
regions. Approximately 60.7% of our total revenues for the year ended December
31, 2002 were, and approximately 61.2% of our 2003 contractual rental income
will be, derived from properties located in New York, Texas and Florida. As a
result, a decline in the economic conditions in these geographic regions, or in
geographic regions where our properties may be concentrated in the future, may
have an adverse effect on the rental and occupancy rates for, and the property
values of, these properties, which could lead to a reduction in our revenues and
in the value of these properties.
OUR INABILITY TO CONTROL OUR VENTURES COULD RESULT IN DIVERSION OF TIME AND
EFFORT BY OUR MANAGEMENT AND THE INABILITY TO ACHIEVE THE GOALS OF THE JOINT
VENTURE AGREEMENTS OR THE TENANCY IN COMMON AGREEMENT.
We presently are a venturer in four joint ventures which own 11 properties
and we own 50% of another property as tenants in common with a group of
investors pursuant to a tenancy in common agreement. These investments represent
an equity investment of $27.4 million by us. These investments may involve risks
not otherwise present in investments made solely by us, including that our
co-investors may have different interests or goals than we do or that our
co-investors may not be able or willing to take an action that is desired by us.
Disagreements with or among our co-investors could result in substantial
diversion of time and effort by our management team and the inability to
successfully acquire, operate, finance, lease or sell properties as intended by
our joint venture agreements or our tenancy in common agreement. In addition,
since there is no limitation under our organizational documents as to the amount
of funds that may be invested in joint ventures or tenancies in common, we may
invest a significant amount of our funds into ventures or tenancy in common
positions which ultimately may not be profitable as a result of disagreements
with or among our co-investors.
OUR JOINT VENTURE AGREEMENTS AND TENANCY IN COMMON AGREEMENT CONTAIN
PROVISIONS RELATED TO THE TRANSFER OF OUR INTEREST, RESOLUTION OF DISPUTES AND
FUTURE CAPITAL CONTRIBUTIONS THAT COULD LIMIT OUR ABILITY TO LIQUIDATE OUR
INTEREST OR ADVERSELY AFFECT THE VALUE OF OUR INVESTMENTS.
The joint venture agreements, entered into for each of our ventures provide
that we cannot finance or transfer our interest in the venture without the
consent of the other venturers. If we are unable to obtain the consent of our
co-venturers to a proposed financing or transfer of our interest, we may be
unable to dispose of such interest on favorable terms. The tenancy in common
agreement provides each party with a right of first refusal in the event the
other party decides to transfer its tenancy in common interest. The right of
first refusal may make it more difficult for us to sell our interest in the
property. In addition, the tenancy in common agreement requires the consent of
the other party to a proposed financing of the property. Our joint venture
agreements and tenancy in common agreement also contain provisions governing
disputes that could obligate us to acquire the interest of co-investors on
unfavorable terms or without adequate time to obtain satisfactory financing or
force us to sell our interest on terms that may be disadvantageous. In addition,
if we fail to contribute any additional capital that we are required to
contribute in the future to any of these investments, our interest may be
reduced disproportionately, or a co-investor may elect to fund our portion of
the capital contribution, which would result in that co-investor acquiring a
preferred rate of return and a right to receive interest on the amount of such
contribution. The occurrence of any of these events would adversely affect the
value of our investment.
COMPETITION IN THE REAL ESTATE BUSINESS IS INTENSE AND COULD REDUCE OUR
REVENUES AND HARM OUR BUSINESS.
We compete for real estate investments with all types of investors,
including domestic and foreign corporations and real estate companies, financial
institutions, insurance companies, pension funds, investment funds, other REITs
and individuals. Many of these competitors have significant advantages over us,
including a larger, more diverse group of properties and greater financial and
other resources. Our failure to compete successfully with these competitors
could result in our inability to identify and acquire valuable properties and to
achieve our growth objectives.
5
COMPLIANCE WITH ENVIRONMENTAL REGULATIONS AND ASSOCIATED COSTS COULD ADVERSELY
AFFECT OUR LIQUIDITY.
Under various federal, state and local laws, ordinances and regulations, an
owner or operator of real property may be required to investigate and clean up
hazardous or toxic substances or petroleum product releases at the property and
may be held liable to a governmental entity or to third parties for property
damage and for investigation and cleanup costs incurred in connection with
contamination. The cost of investigation, remediation or removal of hazardous or
toxic substances may be substantial, and the presence of such substances, or the
failure to properly remediate a property, may adversely affect our ability to
sell or rent the property or to borrow money using the property as collateral.
In connection with our ownership, operation and management of real properties,
we may be considered an owner or operator of the properties and, therefore,
potentially liable for removal or remediation costs, as well as certain other
related costs, including governmental fines and liability for injuries to
persons and property, not only with respect to properties we own now or may
acquire, but also with respect to properties we have owned in the past.
We cannot provide any assurance that existing environmental studies with
respect to any of our properties reveal all potential environmental liabilities,
that any prior owner of a property did not create any material environmental
condition not known to us, or that a material environmental condition does not
otherwise exist, or may not exist in the future, as to any one or more of our
properties. If a material environmental condition does in fact exist, or exists
in the future, it could have a material adverse impact upon our results of
operations, liquidity and financial condition.
OUR SENIOR MANAGEMENT AND OTHER KEY PERSONNEL ARE CRITICAL TO OUR BUSINESS AND
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO RETAIN THEM.
We depend on the services of Fredric H. Gould, chairman of our board of
directors, Jeffrey Fishman, our president and chief executive officer, and other
members of our senior management to carry out our business and investment
strategies. Only two officers, Mr. Fishman and Lawrence G. Ricketts, Jr. our
vice president, acquisitions, devote substantially all of their business time to
our company. The remainder of our management personnel share their services on a
part-time basis with entities affiliated with us and located in the same
executive offices. In addition, Messrs. Fishman and Ricketts devote a limited
amount of their business time to entities affiliated with us. As we expand, we
will continue to need to attract and retain qualified senior management and
other key personnel, both on a full-time, as well as on a part-time basis. The
loss of the services of any of our senior management or other key personnel, or
our inability to recruit and retain qualified personnel in the future, could
impair our ability to carry out our business and investment strategies.
OUR TRANSACTIONS WITH AFFILIATED ENTITIES INVOLVE CONFLICTS OF INTEREST.
We have entered into a number of transactions with persons and entities
affiliated with us and with certain of our officers and directors and we intend
to enter into transactions with such persons in the future. Although our policy
is to insure that we receive terms in transactions with affiliates that are at
least as favorable to us as similar transactions we would enter into with
unaffiliated persons, these transactions raise the potential that we may not
receive terms as favorable as those that we would receive if the transactions
were entered into with unaffiliated entities. In addition, although policies are
in place to insure that all potential acquisitions of "net leased" properties
are first offered to us, we and our affiliated entities may have opportunities,
from time to time, to make investments in the same types of properties and if
our officers and directors fail to provide us with the opportunity to acquire a
valuable property that meets our investment criteria, we could be deprived of a
valuable investment property.
WE ARE REQUIRED BY CERTAIN OF OUR NET LEASE AGREEMENTS TO PAY PROPERTY RELATED
EXPENSES THAT ARE NOT THE OBLIGATIONS OF OUR TENANTS.
Under the terms of substantially all of our net lease agreements, in
addition to satisfying their rent obligations, our tenants are responsible for
the payment of real estate taxes, insurance and ordinary maintenance and
repairs. However, in the case of certain leases, we may pay some expenses, such
as the costs of environmental liabilities, structural repairs, insurance and
certain non-structural repairs and repairs and
6
maintenance. If our properties incur significant expenses that must be paid by
us under the terms of our lease agreements, our business, financial condition
and results of operations will be adversely affected and the amount of cash
available to meet expenses and to make distributions to holders of our common
stock may be reduced.
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT COULD BE COSTLY.
Under the Americans with Disabilities Act of 1990, all public
accommodations must meet federal requirements for access and use by disabled
persons. A determination that our properties do not comply with the Americans
with Disabilities Act could result in liability for both governmental fines and
damages. If we are required to make unanticipated major modifications to any of
our properties to comply with the Americans with Disabilities Act, which are
determined not to be the responsibility of our tenants, we could incur
unanticipated expenses that could have an adverse impact upon our results of
operations, liquidity and financial condition.
RISKS RELATED TO THE REIT INDUSTRY
FAILURE TO QUALIFY AS A REIT WOULD RESULT IN A MATERIAL ADVERSE TAX
CONSEQUENCES AND WOULD SIGNIFICANTLY REDUCE CASH AVAILABLE FOR DISTRIBUTIONS.
We believe that we operate so as to qualify as a REIT under the Internal
Revenue Code of 1986, as amended (the "Code"). Qualification as a REIT involves
the application of technical and complex legal provisions for which there are
limited judicial and administrative interpretations. The determination of
various factual matters and circumstances not entirely within our control may
affect our ability to qualify as a REIT. In addition, no assurance can be given
that legislation, new regulations, administrative interpretations or court
decisions will not significantly change the tax laws with respect to
qualification as a REIT or the federal income tax consequences of such
qualification. If we fail to quality as a REIT, we will be subject to federal,
state and local income tax (including any applicable alternative minimum tax) on
our taxable income at regular corporate rates and would not be allowed a
deduction in computing our taxable income for amounts distributed to
stockholders. In addition, unless entitled to relief under certain statutory
provisions, we would be disqualified from treatment as a REIT for the four
taxable years following the year during which qualification is lost. The
additional tax would reduce significantly our net income and the cash available
for distributions to stockholders.
WE ARE SUBJECT TO CERTAIN DISTRIBUTION REQUIREMENTS THAT MAY RESULT IN OUR
HAVING TO BORROW FUNDS AT UNFAVORABLE RATES.
To obtain the favorable tax treatment associated with being a REIT, we
generally will be required, among other things, to distribute to our
stockholders at least 90% of our taxable income (subject to certain adjustments)
each year. To the extent that we satisfy the distribution requirement, but
distribute less than 100% of our taxable income, we will be subject to federal
corporate income tax on our undistributed taxable income. In addition, we will
be subject to a 4% nondeductible excise tax on the amount, if any, by which
certain distributions paid by us with respect to any calendar year are less than
the sum of 85% of our ordinary income, 95% of our capital gain net income and
100% of our undistributed income from prior years.
As a result of differences in timing between the receipt of income and the
payment of expenses, and the inclusion of such income and the deduction of such
expenses in arriving at taxable income, and the effect of nondeductible capital
expenditures, the creation of reserves and the timing of required debt service
(including amortization) payments, we may need to borrow funds on a short-term
basis in order to make the distributions necessary to retain the tax benefits
associated with qualifying as a REIT, even if we believe that then prevailing
market conditions are not generally favorable for such borrowings. Such
borrowings could reduce our net income and the cash available for distributions
to holders of our common stock.
7
COMPLIANCE WITH REIT REQUIREMENTS MAY HINDER OUR ABILITY TO MAXIMIZE PROFITS.
In order to qualify as a REIT for federal income tax purposes, we must
continually satisfy tests concerning among other things, our sources of income,
the amounts we distribute to our stockholders and the ownership of our stock. We
may also be required to make distributions to stockholders at disadvantageous
times or when we do not have funds readily available for distribution.
Accordingly, compliance with REIT requirements may hinder our ability to operate
solely on the basis of maximizing profits.
In order to qualify as a REIT, we must also ensure that at the end of each
calendar quarter, at least 75% of the value of our assets consists of cash, cash
items, government securities and qualified REIT real estate assets. The
remainder of our investment in securities cannot include more than 10% of the
outstanding voting securities of any one issuer or more than 10% of the total
value of the outstanding securities of such issuer. In addition, no more than 5%
of the value of our assets can consist of the securities of any one issuer,
other than a qualified REIT security. If we fail to comply with these
requirements, we must dispose of a portion of our assets within 30 days after
the end of the calendar quarter in order to avoid losing our REIT status and
suffering adverse tax consequences. This requirement could cause us to dispose
of assets for consideration of less than their true value and could lead to a
material adverse impact on our results of operations and financial condition.
WE MAY BE SUBJECT TO ADVERSE LEGISLATIVE OR REGULATORY TAX CHANGES THAT COULD
REDUCE THE MARKET PRICE OF OUR COMMON STOCK.
At any time, the federal income tax laws governing REITs or the
administrative interpretations of those laws may change. Any of those new laws
or interpretations may take effect retroactively and could adversely affect us
or you as a stockholder. On May 28, 2003, the President signed the Jobs and
Growth Tax Relief Reconciliation Act of 2003, which we refer to herein as the
Jobs and Growth Tax Act. Effective for taxable years beginning after December
31, 2002, the Jobs and Growth Tax Act will generally reduce the maximum rate of
tax applicable to individuals on dividend income from regular C corporations
from 38.6% to 15.0%. This will reduce substantially the so-called "double
taxation" (that is, taxation at both the corporate and stockholder levels) that
has generally applied to corporations that are not taxed as REITs. Generally,
dividends from REITs will not qualify for the dividend tax reduction because, as
a result of the dividends paid deduction to which REITs are entitled, REITs
generally do not pay corporate level tax on income that they distribute to
stockholders. The implementation of the Jobs and Growth Tax Act could cause
individual investors to view stocks of non-REIT corporations as more attractive
relative to shares of REITs than was the case previously because the dividends
paid by non-REIT corporations to individuals would be subject to lower tax
rates. Due to the very recent enactment of this legislation, we cannot predict
whether in fact this will occur or what the impact will be on the value of our
common stock if it does occur.
YOUR INVESTMENT IN OUR COMMON STOCK HAS VARIOUS U.S. FEDERAL, STATE AND LOCAL
INCOME TAX RISKS THAT COULD AFFECT THE VALUE OF YOUR INVESTMENT.
Although the provisions of the Code relevant to your investment in our
common stock are generally described in "Certain Federal Income Tax
Considerations," we strongly urge you to consult your own tax advisor concerning
the effects of U.S. federal, state and local income tax law on an investment in
our common stock, because of the complex nature of the tax rules applicable to
REITs and their stockholders.
RISKS RELATED TO OWNERSHIP OF OUR STOCK AND THIS OFFERING
WE MAY NEED TO SELL ADDITIONAL SHARES OF STOCK IN ORDER TO ACQUIRE MORE
PROPERTIES, WHICH WILL DILUTE YOUR PERCENTAGE OWNERSHIP AND MAY CAUSE THE
PRICE OF OUR COMMON STOCK TO DECLINE.
There are 5,730,680 shares of our common stock outstanding as of September
1, 2003. This prospectus relates to the sale of a substantial number of
additional shares of our common stock. In order to expand our company and
acquire more properties, we may need to sell additional common stock, or other
securities convertible into or exchangeable for our common stock, or issue
shares of our common stock in exchange for a
8
property or properties, which would cause dilution of our existing common
stockholders and could result in a decrease in the market price of our common
stock.
FUTURE SALES OF OUR COMMON STOCK MAY CAUSE OUR STOCK PRICE TO DECLINE.
Substantially all of our outstanding shares of common stock are freely
tradable without restriction or further registration. Affiliates must sell all
shares they own in compliance with the volume and other requirements of Rule
144, except for the holding period requirements. Nevertheless, sales of
substantial amounts of common stock by our stockholders, including purchasers in
this offering, or even the potential for such sales, may have an adverse effect
on the market price of our common stock and could impair our ability to raise
capital through the sale of our equity securities.
WE CANNOT ASSURE YOU OF OUR ABILITY TO PAY DIVIDENDS IN THE FUTURE.
We intend to pay quarterly dividends and to make distributions to our
stockholders in amounts such that all or substantially all of our taxable income
in each year, subject to certain adjustments, is distributed. This, along with
other factors, should enable us to qualify for the tax benefits accorded to a
REIT under the Code. We have not established a minimum dividend payment level
and our ability to pay dividends may be adversely affected by the risk factors
described in this prospectus. All distributions will be made at the discretion
of our board of directors and will depend on our earnings, our financial
condition, maintenance of our REIT status and such other factors as our board of
directors may deem relevant from time to time. We cannot assure you that we will
be able to pay dividends in the future.
INCREASES IN INTEREST RATES COULD LOWER THE TRADING PRICE OF OUR COMMON STOCK.
The trading prices of equity securities issued by REITs historically have
been affected by changes in broader market interest rates, with increases in
interest rates resulting in decreases in trading prices. As a result, an
increase in market interest rates could lower the trading price of our common
stock.
PREFERRED STOCKHOLDERS HAVE PREFERENTIAL RIGHTS IN THE EVENT OF OUR
LIQUIDATION OR DISSOLUTION.
Holders of our preferred stock have a preference of $16.50 per share (or
$10.7 million in the aggregate) plus accrued and unpaid dividends in the event
of our voluntary or involuntary liquidation or dissolution, including a sale of
our business. In addition, holders of our preferred stock have the right, as a
class, to elect two directors if we default in our payment of dividends on our
preferred stock for eight consecutive quarters. Preferred stockholders may also
convert each share of preferred stock which they own into 0.825 of a share of
common stock. The presence of the rights and preferences of these preferred
stockholders would reduce the amount of assets available for distribution to
holders of our common stock on a sale of our business or upon our liquidation,
and may adversely affect the holders of our common stock and the market price of
our common stock.
BECAUSE PROVISIONS CONTAINED IN MARYLAND LAW, OUR CHARTER AND OUR BY-LAWS MAY
RESTRICT THE ABILITY OF A THIRD PARTY TO TAKE OVER OUR COMPANY, INVESTORS MAY
BE PREVENTED FROM RECEIVING A "CONTROL PREMIUM" FOR THEIR SHARES.
Provisions contained in our charter and by-laws, as well as Maryland
corporate law, may delay, defer or prevent a takeover attempt, which may prevent
stockholders from receiving a "control premium" for their shares. For example,
these provisions may defer or prevent tender offers for our common stock or
purchases of large blocks of our common stock, thereby limiting the
opportunities for our stockholders to receive a premium for their common stock
over then-prevailing market prices. These provisions include the following:
- Maryland control share acquisition statute. Maryland law limits the
voting rights of "control shares" of a corporation in the event of a
"control share acquisition," as defined in the Maryland General
Corporation Law; and
9
- Classified board structure. Our board of directors is divided into three
classes. Directors in each class are elected to serve for a term of three
years, with the terms of each class beginning in different years.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and other documents we file with the SEC contain
forward-looking statements that are based on current expectations, estimates,
forecasts and projections about us, our future performance, the industries in
which we operate, our beliefs and our management's assumptions. In addition,
other written or oral statements that constitute forward-looking statements may
be made by or on behalf of us. Words such as "expects," "anticipates,"
"targets," "goals," "projects," "intends," "plans," "believes," "seeks,"
"estimates," variations of such words and similar expressions are intended to
identify such forward-looking statements. These statements are not guarantees of
future performance and involve certain risks, uncertainties and assumptions that
are difficult to predict. Therefore, actual outcomes and results may differ
materially from what is expressed or forecasted in such forward-looking
statements. Except as required under the federal securities laws and the rules
and regulations of the SEC, we do not have any intention or obligation to update
publicly any forward-looking statements after the distribution of this
prospectus, whether as a result of new information, future events, changes in
assumptions, or otherwise.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we
anticipate that the net proceeds from the sale of the securities that we may
offer under this prospectus and any accompanying prospectus supplement will be
used for general corporate purposes. General corporate purposes may include
repayment of debt, capital expenditures and any other purposes that we may
specify in any prospectus supplement. In addition, we will use a portion of any
net proceeds to acquire real property. We will have significant discretion in
the use of any net proceeds. Investors will be relying on the judgment of our
management regarding the application of the proceeds from any sale of the
securities. We may invest the net proceeds temporarily until we use them for
their stated purpose.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
This section summarizes certain U.S. federal income tax issues that you, as
a prospective investor, may consider relevant. Because this section is a
summary, it does not address all of the tax issues that may be important to you.
In addition, this section does not address the tax issues that may be important
to certain types of prospective investors that are subject to special treatment
under U.S. federal income tax laws, including, without limitation, insurance
companies, tax-exempt organizations (except to the extent discussed in
"-- Taxation of Tax-Exempt Stockholders," below), financial institutions or
broker-dealers, and non-U.S. individuals and foreign corporations (except to the
extent discussed in "-- Taxation of Non-U.S. Stockholders," below).
The statements in this section are based on current U.S. federal income tax
laws. We cannot assure you that new laws, interpretations of law, or court
decisions, any of which may have retroactive effect, will not cause one or more
statements in this section to be inaccurate.
We have not requested and do not intend to request a ruling from the
Internal Revenue Service ("IRS") as to our current status as a REIT. However,
we have received an opinion from McCarter & English, LLP ("McC&E") stating
that we have been organized and have operated in conformity with the
requirements for qualification and taxation as a REIT under the Code for the
taxable year ended December 31, 2002, and that our organization and proposed
method of operation will enable us to continue to meet the requirements for
qualification and taxation as a REIT under the Code. It must be emphasized that
this opinion will be based on various assumptions and on our representations
concerning our organization and operations, including representations regarding
the nature of our assets and the conduct and method of operation of our
business, and it cannot be relied upon if any of those assumptions and
representations later prove incorrect. Moreover, continued qualification and
taxation as a REIT depends upon our ability to meet, through actual annual
10
operating results, distribution levels and diversity of stock ownership, as well
as the other various qualification tests imposed under the Code, the results of
which will not be reviewed by McC&E. Accordingly, no assurance can be given that
the actual results of our operations will satisfy such requirements. Additional
information regarding the risks associated with our failure to qualify as a REIT
are set forth under the caption "Risk Factors." The opinion of McC&E will be
based upon current law, which is subject to change either prospectively or
retroactively. Changes in applicable law could modify the conclusions expressed
in their opinion. Moreover, unlike a tax ruling (which we will not seek), an
opinion of counsel is not binding on the IRS, and no assurance can be given that
the IRS will not or could not successfully challenge our status as a REIT.
WE URGE YOU TO CONSULT YOUR OWN TAX ADVISOR REGARDING THE SPECIFIC TAX
CONSEQUENCES TO YOU OF INVESTING IN OUR COMMON STOCK AND OF OUR ELECTION TO BE
TAXED AS A REIT. SPECIFICALLY, YOU SHOULD CONSULT YOUR OWN TAX ADVISOR REGARDING
THE FEDERAL, STATE, LOCAL, FOREIGN, AND OTHER TAX CONSEQUENCES OF SUCH
INVESTMENT AND ELECTION AND REGARDING POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
TAXATION
We elected to be taxed as a REIT under the U.S. federal income tax laws
beginning with our taxable year ended December 31, 1983. We believe that we have
operated in a manner qualifying us as a REIT since our election and intend to
operate in a manner that will preserve that qualification. This section
discusses the laws governing the U.S. federal income tax treatment of a REIT and
its stockholders. These laws are highly technical and complex.
Our qualification as a REIT depends on our ability to meet, on a continuing
basis, qualification tests set forth in the U.S. federal tax laws. Those
qualification tests involve the percentage of income that we earn from specified
sources, the percentages of our assets that fall within specified categories,
the diversity of our stock ownership and the percentage of our earnings that we
distribute. We describe the REIT qualification tests in more detail below. For a
discussion of the tax treatment of us and our stockholders if we fail to qualify
as a REIT, see "-- Failure to Qualify," below.
If we qualify as a REIT, we generally will not be subject to U.S. federal
income tax on the taxable income that we distribute to our stockholders. The
benefit of that tax treatment is that it avoids the "double taxation" (i.e.,
taxation at both the corporate and stockholder levels) that generally results
from owning stock in a "C" corporation. However, we will be subject to U.S.
federal tax in the following circumstances:
- We will pay U.S. federal income tax on taxable income, including net
capital gain, that we do not distribute to stockholders during, or within
a specified time period after, the calendar year in which the income is
earned;
- We may be subject to the "alternative minimum tax" on any items of tax
preference that we do not distribute or allocate to stockholders;
- We will pay income tax at the highest corporate rate on:
- net income from the sale or other disposition of property acquired
through foreclosure ("foreclosure property") that we hold primarily for
sale to customers in the ordinary course of business; and
- other non-qualifying income from foreclosure property.
- We will pay a 100% tax on net income from sales or other dispositions of
property, other than foreclosure property, that we hold primarily for
sale to customers in the ordinary course of business.
- If we fail to satisfy the 75% gross income test or the 95% gross income
test, as described below under "-- Income Tests," and nonetheless
continue to qualify as a REIT because we meet other requirements, we will
pay a 100% tax on the gross income attributable to the greater of the
amounts by which
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we fail the 75% and 95% gross income tests, respectively, multiplied by a
fraction intended to reflect our profitability.
- If we fail to distribute during a calendar year at least the sum of:
- 85% of our REIT ordinary income for the year;
- 95% of our REIT capital gain net income for the year; and
- any undistributed taxable income from earlier periods; then
we will pay a 4% excise tax on the excess of the required distribution
over the amount we actually distributed.
- We may elect to retain and pay income tax on our net long-term capital
gain.
- We will be subject to a 100% excise tax on transactions with a taxable
REIT subsidiary that are not conducted on an arm's-length basis.
- If we acquire any asset from a "C" corporation (or any other corporation
that generally is subject to full corporate-level tax) in a merger or
other transaction in which we acquire a basis in the asset that is
determined by reference either to the "C" corporation's basis in the
asset or to the basis of another asset (a "conversion transaction"), we
will pay tax at the highest regular corporate rate applicable if we
recognize any net built-in gain on the sale or disposition of such asset
during the 10-year period after we acquire such asset. With respect to
conversion transactions that occurred on or after June 10, 1987, and
before January 2, 2002, the rules described above will apply provided we
make an election under the relevant Temporary Regulations. With respect
to conversion transactions occurring on or after January 2, 2002, the
rules described above will apply automatically.
REQUIREMENTS FOR QUALIFICATION
A REIT is an entity that meets each of the following requirements:
1. It is managed by trustees or directors.
2. Its beneficial ownership is evidenced by transferable shares, or by
transferable certificates of beneficial interest.
3. It would be taxable as a domestic "C" corporation, but for the REIT
provisions of the U.S. federal income tax laws.
4. It is neither a financial institution nor an insurance company
subject to special provisions of the U.S. federal income tax laws.
5. At least 100 persons are beneficial owners of its shares or
ownership certificates.
6. Not more than 50% in value of its outstanding shares or ownership
certificates is owned, directly or indirectly, by five or fewer
individuals, which the U.S. federal income tax laws define to include
certain entities, during the last half of any taxable year.
7. It elects to be a REIT, or has made such election for a previous
taxable year, and satisfies all relevant filing and other administrative
requirements established by the IRS that must be met to elect and maintain
REIT status.
8. It meets certain other qualification tests, described below,
regarding the nature of its income and assets.
We must meet requirements 1 through 4 during our entire taxable year and
must meet requirement 5 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. If we
comply with all the applicable requirements for ascertaining the ownership of
our outstanding shares in a taxable year and have no reason to know that we
violated requirement 6, we will be deemed to have satisfied requirement 6 for
that taxable year. For purposes of determining share ownership
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under requirement 6, an "individual" generally includes a supplemental
unemployment compensation benefits plan, a private foundation, or a portion of a
trust permanently set aside or used exclusively for charitable purposes. An
"individual," however, generally does not include a trust that is a qualified
employee pension or profit sharing trust under the U.S. federal income tax laws,
and beneficiaries of such a trust will be treated as holding our shares in
proportion to their actuarial interests in the trust for purposes of requirement
6. We have issued sufficient shares of common stock with sufficient diversity of
ownership to satisfy requirements 5 and 6. In addition, our charter restricts
the ownership and transfer of the shares of common stock so that we should
continue to satisfy these requirements.
A corporation that is a "qualified REIT subsidiary" is not treated as a
corporation separate from its parent REIT. All assets, liabilities and items of
income, deduction and credit of a "qualified REIT subsidiary" are treated as
assets, liabilities and items of income, deduction and credit of the parent
REIT. A "qualified REIT subsidiary" is a corporation, all of the capital stock
of which is owned by the REIT and for which no election has been made to treat
such corporation as a "taxable REIT subsidiary." We own certain of our
properties through subsidiaries. Each of our subsidiaries qualifies as a
"qualified REIT subsidiary" under U.S. federal income tax law. Accordingly, for
U.S. federal income tax purposes, our subsidiaries are ignored as separate
entities, and all of their assets, liabilities and items of income, deduction
and credit are treated as our assets, liabilities and items of income, deduction
and credit.
An unincorporated domestic entity with two or more owners is generally
treated as a partnership for U.S. federal income tax purposes. In the case of a
REIT that is a partner in an entity treated as a partnership, the REIT is
treated as owning its proportionate share of the assets of the partnership and
as earning its allocable share of the gross income of the partnership for
purposes of the applicable REIT qualification tests. Thus, our proportionate
share of the assets, liabilities and items of income of any partnership or joint
venture or limited liability company that is treated as a partnership for U.S.
federal income tax purposes in which we have acquired or will acquire an
interest, directly or indirectly (a "subsidiary partnership"), will be treated
as our assets and gross income for purposes of applying the various REIT
qualification tests. We own membership interests in four joint ventures. We are
also owners of a 50% interest in a property as tenants in common with a group of
investors. Accordingly, our proportionate share of the assets, liabilities and
items of income of the joint ventures and the tenancy in common will be treated
as our assets and gross income for purposes of applying the various REIT
qualification tests discussed in this section.
A REIT may own up to 100% of the stock of a "taxable REIT subsidiary"
("TRS"). A TRS may earn income that would not be qualifying income if earned
directly by the parent REIT. Both the subsidiary and the REIT must jointly elect
to treat the subsidiary as a TRS. A TRS will pay income tax at regular corporate
rates on any income that it earns. In addition, the TRS rules limit the
deductibility of interest paid or accrued by a TRS to its parent REIT to assure
that the TRS is subject to an appropriate level of corporate taxation. Further,
the rules impose a 100% excise tax on transactions between a TRS and its parent
REIT (or the REIT's tenants) that are not conducted on an arm's-length basis. We
do not currently have any TRSs, but cannot foreclose the possibility of the
formation of one or more TRSs in future taxable years.
INCOME TESTS
We must satisfy two gross income tests annually to maintain our
qualification as a REIT. First, at least 75% of our gross income for each
taxable year must consist of specific types of income that we derive, directly
or indirectly, from investments relating to real property or mortgages on real
property or qualified temporary investment income. Qualifying income for
purposes of this 75% gross income test generally includes:
- rents from real property;
- interest on debt secured by mortgages on real property, or on interests
in real property;
- dividends or other distributions on, and gain from the sale of, shares in
other REITs; and
- gain from the sale of real estate assets.
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Second, in general, at least 95% of our gross income for each taxable year
must consist of income that is qualifying income for purposes of the 75% gross
income test, other types of interest and dividends, gain from the sale or
disposition of stock or securities, income from certain interest rate hedging
contracts, or any combination of the foregoing. Gross income from sales of
property held primarily for sale to customers in the ordinary course of business
is excluded from both the numerator and the denominator in both income tests.
The following paragraphs discuss the specific application of the gross income
tests to us.
A REIT will incur a 100% tax on the net income derived from any "prohibited
transaction," which is a sale or other disposition of property, other than
foreclosure property, that the REIT holds primarily for sale to customers in the
ordinary course of a trade or business. We believe that none of our assets are
held primarily for sale to customers and that a sale of any of our assets would
not be in the ordinary course of our business. Whether a REIT holds an asset
"primarily for sale to customers in the ordinary course of a trade or business"
depends, however, on the facts and circumstances in effect from time to time,
including those related to a particular asset. Nevertheless, we will attempt to
comply with the terms of safe-harbor provisions in the U.S. federal income tax
laws prescribing when an asset sale will not be characterized as a prohibited
transaction. We cannot assure you, however, that we can comply with the
safe-harbor provisions or that we will avoid owning property that may be
characterized as property that we hold "primarily for sale to customers in the
ordinary course of a trade or business."
While income from foreclosure property qualifies for purposes of satisfying
the 75% and 95% gross income tests, we will be subject to tax at the maximum
corporate rate on any income from such foreclosure property, other than any
portion of such income that otherwise would be qualifying income for purposes of
the 75% gross income test, less expenses directly connected with the production
of that income. "Foreclosure property" is any real property, including interests
in real property, and any personal property incident to such real property:
- that is acquired by a REIT as a result of the REIT having bid on such
property at foreclosure, or having otherwise reduced such property to
ownership or possession by agreement or process of law, after there was a
default (or default was imminent) on a lease of such property or on
indebtedness that such property secured;
- for which the related loan was acquired by the REIT at a time when the
default was not imminent or anticipated; and
- for which the REIT makes a proper election to treat the property as
foreclosure property.
However, a REIT will not be considered to have foreclosed on a property
where the REIT takes control of the property as a mortgagee-in-possession and
cannot receive any profit or sustain any loss except as a creditor of the
mortgagor. Property generally ceases to be foreclosure property at the end of
the third taxable year following the taxable year in which the REIT acquired the
property, or longer if an extension is granted by the Secretary of the Treasury.
This grace period terminates and foreclosure property ceases to be foreclosure
property on the first day:
- on which a lease is entered into for the property that, by its terms,
will give rise to income that does not qualify for purposes of the 75%
gross income test, or any amount is received or accrued, directly or
indirectly, pursuant to a lease entered into on or after such day that
will give rise to income that does not qualify for purposes of the 75%
gross income test;
- on which any construction takes place on the property, other than
completion of a building or any other improvement, where more than 10% of
the construction was completed before default became imminent; or
- which is more than 90 days after the day on which the REIT acquired the
property and the property is used in a trade or business which is
conducted by the REIT, other than through an independent contractor from
whom the REIT itself does not derive or receive any income.
We have no foreclosure property as of the date of this prospectus.
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Rent that we receive from real property that we own and lease to tenants
will qualify as "rents from real property," which is qualifying income for
purposes of both the 75% and 95% gross income tests, only if each of the
following conditions is met:
- The rent must not be based, in whole or in part, on the income or profits
of any person, but may be based on a fixed percentage or percentages of
receipts or sales;
- Neither we nor any direct or indirect owner of 10% or more of our shares
may own, actually or constructively, 10% or more of a tenant from whom we
receive rent (other than a TRS). Rent we receive from a TRS will qualify
as "rents from real property" if at least 90% of the leased space of the
property is rented to persons other than TRSs and 10%-owned tenants and
the amount of rent paid by the TRS is substantially comparable to the
rent paid by the other tenants of the property for comparable space;
- Not all of the rent received under a lease of real property will qualify
as "rents from real property" if the rent attributable to the personal
property leased in connection with such lease is more than 15% of the
total rent received under the lease. If rent attributable to the personal
property leased is more than 15% of the total rent received, none of the
rent allocable to the personal property will be considered "rents from
real property" for purposes of the 75% and 95% gross income tests. The
allocation of rent between real and personal property is based on the
relative fair market values of the real and personal property; and
- We generally must not operate or manage our real property or furnish or
render services to our tenants, other than through an independent
contractor who is adequately compensated and from whom we do not derive
revenue. However, we need not provide services through an independent
contractor, but instead may provide services directly, if the services
are "usually or customarily rendered" in connection with the rental of
space for occupancy only and are not considered to be provided for the
tenants' convenience. In addition, we may provide a minimal amount of
"noncustomary" services to the tenants of a property, other than through
an independent contractor, as long as our income from the services does
not exceed 1% of our income from the related property. Further, we may
own up to 100% of the stock of a TRS. A TRS generally can provide
customary and noncustomary services to our tenants without tainting our
rental income.
We believe that the rents we receive meet all of these conditions.
If we fail to satisfy one or both of the gross income tests for any taxable
year, we nevertheless may qualify as a REIT for that year if we qualify for
relief under certain provisions of the U.S. federal income tax laws. Those
relief provisions generally will be available if:
- our failure to meet such tests is due to reasonable cause and not due to
willful neglect;
- we attach a schedule of the sources of our income to our tax return; and
- any incorrect information on such schedule is not due to fraud with
intent to evade tax.
We cannot predict, however, whether in any relevant circumstance we would
qualify for the relief provisions referenced above. In addition, as discussed
above in "-- Taxation," even if the relief provisions apply, we would incur a
100% tax on the gross income attributable to the greater of the amounts by which
we fail the 75% and 95% gross income tests, respectively, multiplied by a
fraction intended to reflect our profitability.
ASSET TESTS
To maintain our qualification as a REIT, we also must satisfy two asset
tests at the end of each quarter of each taxable year. First, at least 75% of
the value of our total assets must consist of:
- cash or cash items, including certain receivables;
- government securities;
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- interests in real property, including leaseholds and options to acquire
real property and leaseholds;
- interests in mortgages on real property;
- stock in other REITs; and
- investments in stock or debt instruments during the one-year period
following our receipt of new capital that we raise through equity
offerings or offerings of debt featuring at least a five-year term.
Under the second asset test, except for (1) securities in the 75% asset
class, (2) securities in a TRS or qualified REIT subsidiary, and (3) certain
partnership interests and certain debt obligations:
- not more than 5% of the value of our total assets may be represented by
securities of any one issuer; and
- we may not own securities that possess more than 10% of the total voting
power of the outstanding securities of any one issuer; and we may not own
securities that have a value of more than 10% of the total value of the
outstanding securities of any one issuer.
In addition, not more than 20% of the value of our total assets may be
represented by securities of one or more TRSs.
We believe that our existing assets are qualifying assets for purposes of
the aforementioned asset tests. We also believe that any additional real
property that we acquire, loans that we extend and temporary investments that we
make generally will be qualifying assets for purposes of such asset tests. We
will monitor the status of our acquired assets for purposes of the various asset
tests and will endeavor to manage our portfolio in order to comply at all times
with such tests.
If we fail to satisfy the asset tests at the end of a calendar quarter, we
will not lose our REIT status if:
- we satisfied the asset tests at the end of the preceding calendar
quarter; and
- the discrepancy between the value of our assets and the asset test
requirements arose from changes in the market values of our assets and
was not wholly or partly caused by the acquisition of one or more
non-qualifying assets.
If we did not satisfy the condition described in the second item, above, we
still could avoid disqualification by eliminating any discrepancy within 30 days
after the close of the calendar quarter in which it arose.
Although we own no TRSs currently, we may own up to 100% of the stock of
one or more TRSs in the future. TRSs can perform activities unrelated to the
businesses of our tenants, such as third-party management, development, and
other independent business activities, as well as provide services to our
tenants. Should such an entity be organized, we and the relevant subsidiary must
elect for the subsidiary to be treated as a TRS. A corporation of which a TRS
directly or indirectly owns more than 35% of the voting power or value of the
stock will automatically be treated as a TRS itself. The deductibility of
interest paid or accrued by a TRS to us is limited to assure that the TRS is
subject to an appropriate level of corporate taxation. Further, there is a 100%
excise tax on transactions between a TRS and us or our tenants that are not
conducted on an arm's-length basis. We may not own more than 10% of the voting
power or value of the stock of a taxable subsidiary that is not treated as a
TRS. As noted above, no more than 20% of our assets can consist of securities of
TRSs.
DISTRIBUTION REQUIREMENTS
Each taxable year, we must distribute dividends, other than capital gain
dividends and deemed distributions of retained capital gain, to our stockholders
in an aggregate amount at least equal to:
- the sum of (1) 90% of our "REIT taxable income," computed without regard
to the dividends paid deduction and our net capital gain or loss; and (2)
90% of our after-tax net income, if any, from foreclosure property; minus
- the sum of certain items of non-cash income.
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We must pay such distributions in the taxable year to which they relate, or
in the following taxable year if we declare the distribution before we timely
file our U.S. federal income tax return for the year and pay the distribution on
or before the first regular dividend payment date after such declaration.
We will pay U.S. federal income tax on taxable income, including net
capital gain, that we do not distribute to stockholders. Furthermore, if we fail
to distribute during a calendar year, or by the end of January following the
calendar year in the case of distributions with declaration and record dates
falling in the last three-months of the calendar year, at least the sum of:
- 85% of our REIT ordinary income for such year;
- 95% of our REIT capital gain net income for such year; and
- any undistributed taxable income from prior periods, then
we will incur a 4% nondeductible excise tax on the excess of such required
distribution over the amounts we actually distributed. We may elect to
retain and pay income tax on the net long-term capital gain we receive in a
taxable year. See "-- Taxation of Taxable U.S. Stockholders," below. If we
so elect, we will be treated as having distributed any such retained amount
for purposes of the 4% excise tax described above. We have made, and we
intend to continue to make, timely distributions sufficient to satisfy the
foregoing annual distribution requirements.
It is possible that, from time to time, we may experience timing
differences between: (1) the actual receipt of income and actual payment of
deductible expenses; and (2) the inclusion of that income and the deduction of
such expenses in arriving at our REIT taxable income. As a result of the
foregoing, we may have less cash than is necessary to distribute all of our
taxable income and thereby avoid corporate income tax and the 4% excise tax
imposed on certain undistributed income. In such a situation, we may need to
borrow funds or issue additional shares of our stock to achieve the liquidity
necessary to make the required distributions.
Under certain circumstances, we may be able to correct a failure to meet
the distribution requirement for a year by paying "deficiency dividends" to our
stockholders in a later year. We may include such deficiency dividends in our
deduction for dividends paid for the earlier year. Although we may be able to
avoid income tax on amounts distributed as deficiency dividends, we will be
required to pay interest to the IRS based upon the amount of any deduction we
take for deficiency dividends.
RECORDKEEPING REQUIREMENTS
We must maintain certain records in order to qualify as a REIT. In
addition, to avoid a monetary penalty, we must request information from our
stockholders on an annual basis designed to disclose the actual ownership of our
outstanding shares. We have complied, and we intend to continue to comply, with
these requirements.
FAILURE TO QUALIFY
If we fail to qualify as a REIT in any taxable year, and no relief
provision is available, we would be subject to U.S. federal income tax, any
applicable alternative minimum tax, and state and local taxes in states where we
are doing business, on our taxable income at regular corporate rates. In
calculating our taxable income in a year in which we fail to qualify as a REIT,
we would not be able to deduct amounts paid out to stockholders. Moreover, we
would not be required to distribute any amounts to stockholders in that year. In
such event, to the extent of our current and accumulated earnings and profits,
all distributions to stockholders would be taxable to them as dividend income.
Under such circumstances and subject to certain limitations of the U.S. federal
income tax laws, corporate stockholders might be eligible for the dividends
received deduction and individual stockholders may be able to treat the
dividends as qualified dividend income taxable at long term capital gain rates
pursuant to the Jobs and Growth Tax Act. Unless we qualified for relief under
specific statutory provisions, we also would be disqualified from being taxed as
a REIT for the four taxable years following the year during which we ceased to
qualify as a REIT. We cannot predict whether, under any
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applicable circumstances, we would qualify for any available statutory relief if
we ever fail to qualify as a REIT.
TAXATION OF TAXABLE U.S. STOCKHOLDERS
As long as we qualify as a REIT, a taxable "U.S. stockholder" must take
into account as ordinary income distributions made out of our current or
accumulated earnings and profits that we do not designate as capital gain
dividends or retained long-term capital gain. A corporate U.S. stockholder will
not qualify for the dividends received deduction generally available to
corporations with respect to such distributions. The term "U.S. stockholder"
means a holder of our common stock that, for U.S. federal income tax purposes,
is:
- a citizen or resident of the U.S.;
- an entity created or organized under the laws of the U.S. or of a
political subdivision of the U.S.;
- an estate whose income is includible in gross income for U.S. federal
income tax purposes regardless of its source; or
- any trust with respect to which:
- a U.S. court is able to exercise primary supervision over its
administration; and
- one or more U.S. persons have the authority to control all of its
substantial decisions.
A U.S. stockholder generally will recognize and be taxed on distributions
that we designate as capital gain dividends as long-term capital gain without
regard to the period for which the U.S. stockholder has held our common stock. A
corporate U.S. stockholder, however, may be required to treat up to 20% of
certain capital gain dividends as ordinary income.
We may elect to retain and pay income tax on the net long-term capital gain
that we receive in a taxable year. In that case, a U.S. stockholder would be
taxed on its proportionate share of our undistributed long-term capital gain.
The U.S. stockholder would, however, receive a credit or refund for its
proportionate share of the tax we paid. The U.S. stockholder would increase the
basis in its shares of our common stock by the amount of its proportionate share
of our undistributed long-term capital gain, minus its share of the tax we paid.
A U.S. stockholder will not incur tax on a distribution in excess of our
current and accumulated earnings and profits if the distribution does not exceed
the adjusted tax basis of the U.S. stockholder's shares of our common stock.
Instead, the distribution will reduce the adjusted tax basis of such shares of
our common stock in the U.S. stockholder's hands. A U.S. stockholder will
recognize and pay tax on a distribution in excess of both our current and
accumulated earnings and profits and such stockholder's adjusted tax basis in
its shares of common stock as long-term capital gain, or short-term capital gain
if the shares of our common stock have been held by the stockholder for one year
or less, assuming such shares of common stock are a capital asset in the hands
of the U.S. stockholder. For purposes of determining whether a distribution is
made out of our current or accumulated earnings and profits, our earnings and
profits will be allocated first to dividends on our preferred stock and then to
dividends on our common stock. In addition, if we declare a distribution in
October, November or December of any year that is payable to a U.S. stockholder
of record on a specific date in any such month, such distribution may be treated
as both paid by us and received by the U.S. stockholder on December 31 of such
year, provided that we actually pay the distribution during January of the
following calendar year.
Stockholders may not include in their individual income tax returns any of
our net operating losses or capital losses. Instead, these losses are generally
carried over by us for potential offset against our future income. Taxable
distributions from us and gain from the disposition of the shares of our common
stock will not be treated as passive activity income and, therefore,
stockholders generally will not be able to apply any "passive activity losses,"
such as losses from certain types of limited partnerships in which the
stockholder is a limited partner, against such income. In addition, taxable
distributions from us and gain from the disposition of shares of our common
stock generally will be treated as investment income for purposes of the
investment
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interest limitations. We will notify stockholders after the close of each
taxable year as to the portions of the distributions attributable to that year
that constitute ordinary income, return of capital and capital gain.
TAXATION OF U.S. STOCKHOLDERS ON THE DISPOSITION OF OUR COMMON STOCK
In general, a U.S. stockholder who is not a dealer in securities must treat
any gain or loss realized upon a taxable disposition of his or her shares of our
common stock as long-term capital gain or loss if the U.S. stockholder has held
the shares of common stock for more than one year, and otherwise as short-term
capital gain or loss. However, a U.S. stockholder must treat any loss upon a
sale or exchange of shares of our common stock held by such stockholder for
six-months or less as a long-term capital loss to the extent of capital gain
dividends and other distributions from us that such U.S. stockholder treats as
long-term capital gain. All or a portion of any loss that a U.S. stockholder
realizes upon a taxable disposition of the shares of our common stock may be
disallowed if the U.S. stockholder purchases other shares of common stock within
30 days before or after the disposition.
CAPITAL GAINS AND LOSSES
The U.S. federal tax rate differential between long-term capital gain and
ordinary income for non-corporate taxpayers may be significant. A taxpayer
generally must hold a capital asset for more than one year for gain or loss
derived from the sale or exchange of such asset to be treated as long-term
capital gain or loss. The highest marginal individual income tax rate on
ordinary income for the 2003 tax year is 35%. The maximum tax rate on long-term
capital gain applicable to non-corporate taxpayers is 15% for sales and
exchanges of assets held for more than one year and occurring after May 6, 2003
through December 31, 2008. A 20% tax rate applies to a sale or exchange of
capital assets held for more than one year occurring on or before May 6, 2003.
The maximum tax rate on long-term capital gain from the sale or exchange of
"section 1250 property," or depreciable real property, is 25% to the extent that
such gain would have been treated as ordinary income if the property were
"section 1245 property." With respect to distributions that we designate as
capital gain dividends and any retained capital gain that we are deemed to
distribute, we may designate whether such a distribution is taxable to our
non-corporate stockholders at a 15%, 20% or 25% rate. In addition, the
characterization of income as capital gain or ordinary income may affect the
deductibility of capital losses. A non-corporate taxpayer may deduct capital
losses not offset by capital gains against its ordinary income only up to a
maximum annual amount of $3,000. A non-corporate taxpayer may carry forward
unused capital losses indefinitely. A corporate taxpayer must pay tax on its net
capital gain at ordinary corporate rates. A corporate taxpayer can deduct
capital losses only to the extent of capital gains, with unused losses being
carried back three years and forward five years.
INFORMATION REPORTING REQUIREMENTS AND BACKUP WITHHOLDING
We will report to our stockholders and to the IRS the amount of
distributions we pay during each calendar year, and the amount of tax we
withhold, if any. Under the backup withholding rules, a stockholder may be
subject to backup withholding at a rate of 28% in 2003 with respect to
distributions unless the holder:
- is a corporation or comes within certain other exempt categories and,
when required, demonstrates this fact; or
- provides a taxpayer identification number, certifies as to no loss of
exemption from backup withholding, and otherwise complies with the
applicable requirements of the backup withholding rules.
A stockholder who does not provide us with its correct taxpayer
identification number also may be subject to penalties imposed by the IRS. Any
amount paid as backup withholding will be creditable against the stockholder's
income tax liability. In addition, we may be required to withhold a portion of
capital gain distributions to any stockholders who fail to certify their
non-foreign status to us. For a discussion of the backup withholding rules as
applied to non-U.S. stockholders, see "-- Taxation of Non-U.S. Stockholders,"
below.
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TAXATION OF TAX-EXEMPT STOCKHOLDERS
Tax-exempt entities, including qualified employee pension and profit
sharing trusts and individual retirement accounts, generally are exempt from
U.S. federal income taxation. However, they are subject to taxation on their
unrelated business taxable income. While many investments in real estate
generate unrelated business taxable income, the IRS has issued a ruling that
dividend distributions from a REIT to an exempt employee pension trust do not
constitute unrelated business taxable income so long as the exempt employee
pension trust does not otherwise use the shares of the REIT in an unrelated
trade or business of the pension trust. Based on that ruling, amounts that we
distribute to tax-exempt stockholders generally should not constitute unrelated
business taxable income. However, if a tax-exempt stockholder were to finance
its acquisition of shares of our common stock with debt, a portion of the income
that it receives from us would constitute unrelated business taxable income
pursuant to the "debt-financed property" rules. Furthermore, social clubs,
voluntary employee benefit associations, supplemental unemployment benefit
trusts and qualified group legal services plans that are exempt from taxation
under special provisions of the U.S. federal income tax laws are subject to
different unrelated business taxable income rules, which generally will require
them to characterize distributions that they receive from us as unrelated
business taxable income. Finally, in certain circumstances, a qualified employee
pension or profit sharing trust that owns more than 10% of our shares (by value)
must treat a percentage of the dividends that it receives as unrelated business
taxable income. Such percentage is equal to the gross income we would be deemed
to derive from an unrelated trade or business, determined as if we were a
pension trust, divided by our total gross income for the year in which we pay
the dividends. This rule applies to a pension trust holding more than 10% of our
shares (by value) only if:
- the percentage of our dividends that the tax-exempt trust must treat as
unrelated business taxable income is at least 5%;
- we qualify as a REIT by reason of the modification of the rule requiring
that no more than 50% of our shares be owned by five or fewer individuals
that allows the beneficiaries of the pension trust to be treated as
holding our shares in proportion to their actuarial interests in the
pension trust; and
- either
- one pension trust owns more than 25% of the value of our shares; or
- a group of pension trusts individually holding more than 10% of the
value of our shares collectively owns more than 50% of the value of our
shares.
TAXATION OF NON-U.S. STOCKHOLDERS
The rules governing U.S. federal income taxation of nonresident alien
individuals, foreign corporations, foreign partnerships, and other foreign
stockholders are complex. This section is only a summary of such rules. WE URGE
NON-U.S. STOCKHOLDERS TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE IMPACT
OF U.S. FEDERAL, STATE, AND LOCAL INCOME TAX LAWS (AS WELL AS THE TAX LAWS OF
THEIR HOME JURISDICTIONS) ON OWNERSHIP OF SHARES OF COMMON STOCK, INCLUDING ANY
REPORTING REQUIREMENTS.
A non-U.S. stockholder that receives a distribution that is not
attributable to gain from our sale or exchange of U.S. real property interests,
as defined below, and that we do not designate as a capital gain dividend or
retained capital gain, will recognize ordinary income to the extent that we pay
the distribution out of our current or accumulated earnings and profits. A
withholding tax equal to 30% of the gross amount of the distribution ordinarily
will apply unless an applicable tax treaty reduces or eliminates the tax.
However, if a distribution is treated as effectively connected with the non-U.S.
stockholder's conduct of a U.S. trade or business, the non-U.S. stockholder
generally will be subject to U.S. federal income tax on the distribution at
graduated rates, in the same manner as U.S. stockholders are taxed on
distributions, and also may be subject to the 30% branch profits tax in the case
of a non-U.S. stockholder that is a non-U.S. corporation. We plan to
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withhold U.S. income tax at the rate of 30% on the gross amount of any
distribution paid to a non-U.S. stockholder unless either:
- a lower treaty rate applies and the non-U.S. stockholder files an IRS
Form W-8BEN evidencing eligibility for that reduced rate with us; or
- the non-U.S. stockholder files an IRS Form W-8 ECI with us claiming that
the distribution is effectively connected income.
A non-U.S. stockholder will not incur tax on a distribution that is in
excess of our current and accumulated earnings and profits if the distribution
does not exceed the adjusted basis of its shares of our common stock. Instead,
the distribution will reduce the adjusted basis of such non-U.S. stockholder in
those shares of common stock. A non-U.S. stockholder will be subject to tax on a
distribution that exceeds both our current and accumulated earnings and profits
and the adjusted basis of its shares of our common stock if the non-U.S.
stockholder otherwise would be subject to tax on gain from the sale or
disposition of its shares of our common stock, as described below. Because we
generally cannot determine at the time we make a distribution whether or not the
distribution will exceed our current and accumulated earnings and profits, we
normally will withhold tax on the entire amount of any distribution at the same
rate as we would withhold on a dividend. However, a non-U.S. stockholder may
obtain a refund from the IRS of amounts that we withhold if we later determine
that a distribution, in fact, exceeded our current and accumulated earnings and
profits.
We must withhold 10% of any distribution to a non-U.S. stockholder that
exceeds our current and accumulated earnings and profits. Consequently, although
we intend to withhold at a rate of 30% on the entire amount of any distribution,
to the extent that we do not do so, we will withhold at a rate of 10% on any
portion of a distribution not subject to withholding at a rate of 30%.
For any year in which we qualify as a REIT, a non-U.S. stockholder will
incur tax on distributions that are attributable to gain from our sale or
exchange of "U.S. real property interests" under special provisions of the U.S.
federal income tax laws known as "FIRPTA." The term "U.S. real property
interests" includes interests in U.S. real property and shares in corporations
at least 50% of whose assets consists of interests in U.S. real property. Under
those rules, a non-U.S. stockholder is taxed on distributions attributable to
gain from sales of U.S. real property interests as if the gain were effectively
connected with a U.S. business of the non-U.S. stockholder. A non-U.S.
stockholder thus would be taxed on this distribution at the normal capital gain
rates applicable to U.S. stockholders, subject to applicable alternative minimum
tax and a special alternative minimum tax in the case of a nonresident alien
individual. A non-U.S. corporate stockholder not entitled to treaty relief or
exemption also may be subject to the 30% branch profits tax on such a
distribution. We must withhold 35% of any distribution to a non-U.S. stockholder
that we could designate as a capital gain dividend. A non-U.S. stockholder may
receive a credit against its U.S. tax liability for the amount we withhold.
A non-U.S. stockholder generally will not incur tax under FIRPTA on gain
from the sale of our stock as long as at all times, non-U.S. persons hold,
directly or indirectly, less than 50% in value of our outstanding shares. We
cannot assure you that that test will be met at all times or at any specific
time. However, a non-U.S. stockholder that owned, actually or constructively, 5%
or less of the shares of our common stock at all times during a specified
testing period will not incur tax under FIRPTA if the shares of common stock are
"regularly traded" on an established securities market. To the extent that our
common stock will be regularly traded on an established securities market, a
non-U.S. stockholder will not incur tax under FIRPTA unless it owns more than 5%
of our common stock. If the gain on the sale of the shares of our common stock
were taxed under FIRPTA, a non-U.S. stockholder would be taxed on that gain in
the same manner as U.S. stockholders subject to applicable alternative minimum
tax, a special alternative minimum tax in the case of nonresident alien
individuals, and the possible application of the 30% branch profits tax in the
case of non-U.S. corporations. Furthermore, a non-U.S. stockholder generally
will incur tax on gain not subject to FIRPTA if:
- the gain is effectively connected with the non-U.S. stockholder's U.S.
trade or business, in which case the non-U.S. stockholder will be subject
to the same tax treatment as U.S. stockholders with respect to such gain;
or
21
- the non-U.S. stockholder is a nonresident alien individual who was
present in the U.S. for 183 days or more during the taxable year and has
a "tax home" in the U.S., in which case the non-U.S. stockholder will
incur a 30% tax on his or her capital gains.
NEW TAX LEGISLATION
On May 28, 2003, the President signed into law the Jobs and Growth Tax Act.
This new tax legislation reduces the maximum individual tax rate applicable to
long-term capital gains generally from 20% to 15% (for sales occurring after May
6, 2003 through December 31, 2008) and reduces the maximum tax rate applicable
to dividends generally from 38.6% to 15% (for tax years from 2003 through 2008).
Without future congressional action, the maximum tax rate on long-term capital
gains will return to 20% in 2009, and the maximum rate on dividends will move to
35% in 2009 and 39.6% in 2011. Because we are not generally subject to U.S.
federal income tax on the portion of our REIT taxable income or capital gains
distributed to our stockholders, our dividends will generally not be eligible
for the new 15% tax rate on dividends. As a result, our ordinary REIT dividends
will continue to be taxed at the higher tax rates applicable to ordinary income.
However, the 15% tax rate for long-term capital gains and dividends will
generally apply to:
- your long-term capital gains, if any, recognized on the disposition of
our common stock;
- our distributions designated as long-term capital gain dividends (except
to the extent attributable to "section 1250 property," in which case such
distributions would continue to be subject to a 25% tax rate);
- our dividends attributable to dividends received by us from non-REIT
corporations, such as taxable REIT subsidiaries; and
- our dividends to the extent attributable to income upon which we have
paid corporate income tax (e.g., to the extent that we distribute less
than 100% of our taxable income).
STATE AND LOCAL TAXES
We and/or our stockholders may be subject to taxation by various states and
localities, including those in which we or a stockholder transacts business,
owns property or resides. The state and local tax treatment may differ from the
U.S. federal income tax treatment described above. Consequently, stockholders
should consult their own tax advisors regarding the effect of state and local
tax laws upon an investment in the shares of common stock.
IMPORTANCE OF OBTAINING PROFESSIONAL TAX ADVICE
THE TAX DISCUSSION SET FORTH ABOVE IS FOR GENERAL INFORMATION ONLY. TAX
CONSEQUENCES MAY VARY BASED UPON THE PARTICULAR CIRCUMSTANCES OF EACH INVESTOR.
PROSPECTIVE INVESTORS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS WITH RESPECT
TO THE U.S. FEDERAL, STATE AND LOCAL AND APPLICABLE FOREIGN TAX CONSEQUENCES OF
AN INVESTMENT IN OUR COMMON STOCK.
PLAN OF DISTRIBUTION
These securities may be sold directly by us, through dealers or agents
designated from time to time, or to or through underwriters or may be sold
directly by us for consideration consisting of goods and property, including
real property, or through a combination of these methods. The prospectus
supplement with respect to the securities being offered will set forth the terms
of the offering, including the names of the underwriters, dealers or agents, if
any, the purchase price of the securities, our net proceeds, any underwriting
discounts and other items constituting underwriters' compensation, public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchanges on which such securities may be listed.
22
If underwriters are used in an offering, we will execute an underwriting
agreement with such underwriters and will specify the name of each underwriter
and the terms of the transaction (including any underwriting discounts and other
terms constituting compensation of the underwriters and any dealers) in a
prospectus supplement. If an underwriting syndicate is used, the managing
underwriter(s) will be specified on the cover of the prospectus supplement. If
underwriters are used in the sale, the offered securities will be acquired by
the underwriters for their own accounts and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Any public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time. Unless otherwise set forth in the
prospectus supplement, the obligations of the underwriters to purchase the
offered securities will be subject to conditions precedent and the underwriters
will be obligated to purchase all of the offered securities if any are
purchased.
If dealers are used in an offering, we will sell the securities to the
dealers as principals. The dealers may resell the securities to the public at
varying prices, which they determine at the time of resale. The names of the
dealers and the terms of the transaction will be specified in a prospectus
supplement.
The securities may be sold directly by us or through agents we designate.
If agents are used in an offering, the names of the agents and the terms of the
agency will be specified in a prospectus supplement. Unless otherwise indicated
in a prospectus supplement, the agents will act on a best-efforts basis for the
period of their appointment.
Dealers and agents named in a prospectus supplement may be deemed to be
underwriters (within the meaning of the Securities Act of 1933) of the
securities described therein. In addition, we may sell the securities directly
to institutional investors or others who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resales thereof.
Underwriters, dealers and agents, may be entitled to indemnification by us
against specific civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which the underwriters or
agents may be required to make in respect thereof, under underwriting or other
agreements. The terms of any indemnification provisions will be set forth in a
prospectus supplement. Certain underwriters, dealers or agents and their
associates may engage in transactions with and perform services for us in the
ordinary course of business.
If so indicated in a prospectus supplement, we will authorize underwriters
or other persons acting as our agents to solicit offers by institutional
investors to purchase securities pursuant to contracts providing for payment and
delivery on a future date. We may enter contracts with commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutional investors. The obligations of
any institutional investor will be subject to the condition that its purchase of
the offered securities will not be illegal at the time of delivery. The
underwriters and other agents will not be responsible for the validity or
performance of contracts.
Any common stock sold pursuant to a prospectus supplement will be eligible
for trading on the American Stock Exchange, subject to official notice of
issuance. Any underwriters to whom securities are sold by us for public offering
and sale may make a market in the securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice.
23
LEGAL MATTERS
The validity of the common stock offered pursuant to this prospectus will
be passed upon by McCarter & English, LLP.
EXPERTS
The consolidated financial statements of One Liberty Properties, Inc. and
subsidiaries (collectively, the "Company") appearing in the Company's Annual
Report (Form 10-K) for the year ended December 31, 2002, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given on the authority of such firm as experts in accounting and
auditing.
24
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses payable by the
registrant in connection with the sale and distribution of the common stock
registered hereby. All amounts other than the SEC registration fee are
estimated.
SEC Registration Fee........................................ $ 16,180
American Stock Exchange Additional Listing Fee.............. $ 22,500
Accounting Fees............................................. $ 6,500
Legal Fees and Disbursements................................ $ 25,000
Printing Fees............................................... $ 10,000
Miscellaneous............................................... $ 4,640
Total..................................................... $130,000
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The registrant's charter obligates it to indemnify its directors and
officers to the maximum extent permitted by Maryland law. The Maryland General
Corporation Law ("MGCL") permits a corporation to indemnify its present and
former directors and officers against judgments, penalties, fines, settlements
and reasonable expenses actually incurred by them in connection with any
proceeding to which they may be a party by reason of their service in those or
other capacities, unless it is established that (1) the act or omission of the
director or officer was material to the matter giving rise to the proceeding and
(a) was committed in bad faith, or (b) was the result of active and deliberate
dishonesty, or (2) the director or officer actually received an improper
personal benefit in money, property or services, or (3) in the case of any
criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful.
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, except to the extent that
(1) it is proved that the person actually received an improper benefit or profit
in money, property or services, or (2) a judgment or other final adjudication 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 registrant's charter
provides for elimination of the liability of its directors and officers to the
registrant or its stockholders for money damages to the maximum extent permitted
by Maryland law from time to time.
ITEM 16. EXHIBITS
See the index to exhibits, which is incorporated herein by reference.
ITEM 17. UNDERTAKINGS
(A) The undersigned registrant hereby undertakes:
(1) To file, during the period in which offers or sales are being
made, a post-effective amendment to 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
II-1
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 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in 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 information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act 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 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.
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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 of 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 Village of Great Neck Plaza, State of New York on September
12, 2003.
ONE LIBERTY PROPERTIES, INC.
Registrant
By: /s/ JEFFREY FISHMAN
------------------------------------
Jeffrey Fishman
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, each of the undersigned constitutes and
appoints Jeffrey Fishman, Mark H. Lundy and David W. Kalish, and each of them,
as attorneys-in-fact and agents, with full power of substitution and
resubstitution, for and in the name, place and stead of the undersigned, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement or any registration statement for
this offering that is to be effective upon the filing pursuant to Rule 462(b)
under the Securities Act of 1933, as amended, and all post-effective amendments
thereto, and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents 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 the undersigned
might or could do in person, hereby ratifying and confirming all that each of
said attorney-in-fact or substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated, on September 12, 2003.
SIGNATURE TITLE
--------- -----
/s/ FREDRIC H. GOULD Chairman of the Board of Directors
--------------------------------------
Fredric H. Gould
/s/ JEFFREY FISHMAN President and Chief Executive Officer
-------------------------------------- (principal executive officer)
Jeffrey Fishman
/s/ JOSEPH A. AMATO Director
--------------------------------------
Joseph A. Amato
/s/ CHARLES BIEDERMAN Director
--------------------------------------
Charles Biederman
/s/ JAMES J. BURNS Director
--------------------------------------
James J. Burns
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SIGNATURE TITLE
--------- -----
/s/ MATTHEW GOULD Director
--------------------------------------
Matthew Gould
/s/ JEFFREY GOULD Director
--------------------------------------
Jeffrey Gould
/s/ ARTHUR HURAND Director
--------------------------------------
Arthur Hurand
/s/ MARSHALL ROSE Director
--------------------------------------
Marshall Rose
/s/ PATRICK CALLAN JR. Director
--------------------------------------
Patrick Callan Jr.
/s/ DAVID W. KALISH Senior Vice President and Chief Financial Officer
-------------------------------------- (principal accounting officer)
David W. Kalish
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ---------------------------------------------
4.1* One Liberty Properties, Inc. 1989 Stock
Option Plan
4.2* One Liberty Properties, Inc. 1996 Stock
Option Plan
4.3** One Liberty Properties, Inc. 2003 Incentive
Plan
4.4* Form of Common Stock Certificate
5.1 Opinion of McCarter & English, LLP
8.1 Tax Opinion of McCarter & English, LLP
10.1*** Loan Agreement dated as of March 21, 2003
between One Liberty Properties, Inc. and
certain subsidiaries and Valley National
Bank, Merchants Bank Division and Bank Leumi
USA.
23.1 Consent of McCarter & English, LLP (included
in its opinion filed as Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP, independent
auditors
24.1 Powers of Attorney (included on the signature
page of this Registration Statement)
---------------
* Previously filed as an Exhibit to the Registrant's Registration Statement on
Form S-2, Registration No. 333-86850, declared effective on May 24, 2002 and
incorporated herein by reference.
** Previously filed as an Exhibit to the Registrant's Registration Statement on
Form S-8, Registration No. 333-107038, effective July 11, 2003 and
incorporated herein by reference.
*** Previously filed as an Exhibit to the Registrant's Current Report on Form
8-K filed on March 25, 2003, amended by the Registrant's Current Report on
Form 8-K/A filed on March 26, 2003 and incorporated herein by reference.