As filed with the Securities and Exchange Commission on April 30, 2004
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
URSTADT BIDDLE PROPERTIES INC.
(Exact name of registrant as specified in its charter)
Maryland 04-2458042
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
--------------------------------
321 Railroad Avenue
Greenwich, Connecticut 06830
(203) 863-8200
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Charles J. Urstadt Willing L. Biddle
Chairman and Chief Executive Officer President and Chief Operating Officer
Urstadt Biddle Properties Inc. Urstadt Biddle Properties Inc.
321 Railroad Avenue 321 Railroad Avenue
Greenwich, Connecticut 06830 Greenwich, Connecticut 06830
(203) 863-8200 (203) 863-8200
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Carol B. Stubblefield, Esq.
Coudert Brothers LLP
1114 Avenue of the Americas
New York, New York 10036-7703
(212) 626-4400
Approximate date of commencement of proposed sale to the public: As soon
as practicable 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: |X|
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, please check the following box. |_|
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
Offering Proposed Amount of
Title of Each Class of Securities Amount to be Price Per Maximum Aggregate Registration
to Be Registered Registered(2) Unit (1) Offering Price Fee
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Common Stock, $.01 par value per share 400,000 shares $13.17 (2) $5,268,000 (2) $667
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Class A Common Stock, $.01 par value per share 400,000 shares $14.27 (2) $5,708,000 (2) $723
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$1390
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(1) Based upon the average of the high and low sales prices for shares
of common stock and Class A common stock, respectively, of the
Registrant as reported on the New York Stock Exchange on April 28,
2004, estimated solely for purposes of calculating the amount of
the registration fee, pursuant to Rule 457 of the Securities Act
of 1933, as amended.
(2) The Prospectus that forms a part of this Registration Statement
also applies to Registration No. 333-64381 and Registration No.
33-57119 (collectively, the "Prior Registration Statements") and
the 134,760 shares of Class A common stock left unsold from the
500,000 shares of common stock and the 250,000 shares of Class A
common stock registered under the Prior Registration Statements in
accordance with Rule 429.
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PROSPECTUS
Urstadt Biddle Properties Inc.
Dividend Reinvestment and Share Purchase Plan
Urstadt Biddle Properties Inc., a Maryland corporation ("we" or the
"Company"), is offering holders of our common stock and Class A common stock the
opportunity to participate in our Dividend Reinvestment and Share Purchase Plan.
The plan provides holders of shares of common stock, par value $.01 per share,
and holders of shares of Class A common stock, par value $.01 per share, with a
convenient and economical way to purchase additional shares of common stock and
Class A common stock, respectively, without the payment of any brokerage
commission or service charge.
Participants in the plan may:
o Automatically reinvest cash dividends on all shares of common
stock registered in their names in additional shares of common
stock.
o Automatically reinvest cash dividends on all shares of Class A
common stock registered in their names in additional shares of
Class A common stock.
o Automatically reinvest cash dividends on less than all shares of
common stock registered in their names in additional shares of
common stock and continue to receive cash dividends on the
remaining shares of common stock.
o Automatically reinvest cash dividends on less than all shares of
Class A common stock registered in their names in additional
shares of Class A common stock and continue to receive cash
dividends on the remaining shares of Class A common stock.
The price of the common stock and the Class A common stock purchased
with reinvested dividends will be the higher of
o 95% of the closing price of the common stock or the Class A
common stock, as applicable, on the dividend payment date (see
Question 13) or
o 100% of the average of the daily high and low sale prices of the
common stock or the Class A common stock, as applicable, for the
period of five trading days ending on the day of purchase (as
applicable, as published in the Eastern Edition of The Wall
Street Journal report of the New York Stock Exchange --
Composite Transactions) (see Question 13).
Holders of common stock and holders of Class A common stock who do not
choose to participate in the plan will continue to receive cash dividends, as
declared, in the usual manner.
This prospectus relates to 400,000 authorized and unissued shares of
common stock and 534,760 authorized and unissued shares of Class A common stock
under the plan. We suggest that you retain this prospectus for future reference.
Our common stock and Class A common stock are traded on the New York
Stock Exchange under the symbols "UBP" and "UBA", respectively.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is April 30, 2004.
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement to this prospectus. We have not
authorized anyone else to provide you with different information. We are not
making an offer of our securities in any state where the offer or solicitation
is not authorized. You should not assume that the information in this prospectus
or any supplement is accurate as of any date other than the date on the front of
those documents.
TABLE OF CONTENTS
Page
A WARNING ABOUT FORWARD-LOOKING STATEMENTS...............................1
WHERE YOU CAN FIND MORE INFORMATION......................................1
OUR COMPANY........... .................................................2
AMENDMENTS TO THE PLAN...................................................2
THE PLAN....... .........................................................2
FEDERAL INCOME TAX CONSEQUENCES OF OUR STATUS AS A REIT.................12
USE OF PROCEEDS.........................................................25
INDEMNIFICATION OF DIRECTORS AND OFFICERS...............................25
EXPERTS...... ..........................................................25
LEGAL OPINION........ ..................................................26
A WARNING ABOUT FORWARD-LOOKING STATEMENTS
This prospectus, and the documents incorporated by reference, may
contain "forward-looking" statements as described in Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
These forward-looking statements usually include words like "believes,"
"anticipates" and "expects" and describe our expectations for the future. Some
of these expectations may not be met in important ways for a variety of reasons.
We have described these reasons in the reports we file with the SEC, and you
should review them before you make any investment decision. We are not required
to update any forward-looking statements we make and we may not make any
updates.
Where You Can Find More Information
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any reports, statements or
other information that we file with the SEC at the SEC's public reference room
at 450 Fifth Street, N.W., Washington, D.C. 20549. You may request copies of
these documents, upon payment of a copying fee, by writing to the SEC. Please
call the SEC at 1-800-SEC-0330 for information on the operation of the public
reference room. Our SEC filings are also available to the public on the SEC
internet site at http://www.sec.gov.
We have filed with the SEC under the Securities Act of 1933, as
amended, a Registration Statement on Form S-3 with respect to our common stock
and Class A common stock issuable pursuant to the plan. This prospectus does not
contain all of the information included in the registration statement as the SEC
allows us to omit certain parts. You may read and copy the registration
statement as described in the above paragraph. The registration statement is
available for inspection and copying as set forth above.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to documents we have filed with the SEC that are not included in
this prospectus. The information incorporated by reference is considered part of
this prospectus. We incorporate by reference the documents listed below:
1. Our Annual Report on Form 10-K for the year ended October 31, 2003
filed on January 27, 2004; and
2. Our Quarterly Report on Form 10-Q for the quarter ended January 31,
2004 filed on March 12, 2004.
We also incorporate by reference additional documents that may be
subsequently filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this prospectus and prior to the termination of
this offering. These include periodic reports, such as Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as
proxy statements.
You may request a copy of these filings (excluding their exhibits), at
no cost, by writing or telephoning:
Urstadt Biddle Properties Inc.
Attn: James R. Moore
Executive Vice President and Chief Financial Officer
321 Railroad Avenue
Greenwich, Connecticut 06830
(203) 863-8200
1
The statements that we make in this prospectus about the contents of
any other documents are not necessarily complete, and are qualified in their
entirety by referring you to the copy of such documents, which are filed as
exhibits to our registration statement on Form S-3. You can obtain copies of
these documents from the SEC or from us, as described above.
Our Company
We are a self-administered real estate investment trust, or REIT, which
owns and manages income-producing commercial real estate. We have been in
business, and our common equity has been listed on the New York Stock Exchange,
since 1969. During that time, we have paid 138 consecutive quarterly cash
dividends to our stockholders.
Our primary investment focus is neighborhood and community shopping
centers which are typically anchored by grocery or drug stores and located in
suburban areas of the northeastern United States, with a primary concentration
in Fairfield County, Connecticut, and Westchester and Putnam Counties, New York.
Our offices are located at 321 Railroad Avenue, Greenwich, Connecticut
06830. Our telephone number is (203) 863-8200. We maintain an internet site at
www.ubproperties.com; however, the information found on our site is not a part
of this prospectus.
AMENDMENTS TO THE PLAN
On March 10, 2004, our stockholders approved a proposal of our board of
directors to increase the number of shares issuable under the plan by an
additional 400,000 shares each of common stock and Class A common stock. As of
April 29, 2004, there are 400,000 shares of common stock and 534,760 shares of
Class A common stock available for issuance under the plan.
THE PLAN
We have set forth our Dividend Reinvestment and Share Purchase Plan, as
amended, for holders of common stock and Class A common stock in the following
questions and answers.
Please address all inquiries concerning the plan to:
The Bank of New York
Investor Relations Department
P.O. Box 11258, Church Street Station
New York, New York 10286-1258
Please send all sales, terminations and address changes to:
The Bank of New York
Urstadt Biddle Properties Inc. Dividend Reinvestment Plan
P.O. Box 1958
Newark, New Jersey 07101-9774
Please mention Urstadt Biddle Properties Inc. in all your
correspondence and, if you are a participant in the plan, give the number of
your account. If you prefer, you may call The Bank of New York at
(1-800-524-4458).
2
Purpose
1. What is the purpose of the plan?
The purpose of the plan is to provide holders of record of our common
stock and holders of record of our Class A common stock (the Class A common
stock and the common stock being collectively the "common shares") with a
convenient and economical way of investing cash dividends on shares of common
stock in additional shares of common stock and cash dividends on shares of Class
A common stock in additional shares of Class A common stock without payment of
any brokerage commission or service charge (see Question 13). Since the common
shares will be purchased from us, we will receive additional funds to make
investments in real estate and for other purposes.
Advantages
2. What are the advantages of the plan?
By participating in the plan:
o You may purchase shares of common stock by reinvesting cash
dividends on all or less than all of the shares of common stock
registered in your name.
o You may purchase shares of Class A common stock by reinvesting
cash dividends on all or less than all of the shares of Class A
common stock registered in your name.
o You pay no brokerage commission or service charge in connection with
investments under the plan.
o You may fully invest funds under the plan because the plan
permits fractions of shares, as well as full shares, to be
credited to your account.
o Record-keeping is simplified under the plan by the provision of a
statement of account to each participant.
o You assure safekeeping of common shares credited to your account
because certificates are not issued unless requested.
Administration
3. Who administers the plan for participants?
The Bank of New York (the "agent") administers the plan for
participants, keeps records, sends statements of account after each purchase to
participants and performs other duties relating to the plan. The agent purchases
common shares from us as agent for plan participants and credits the shares to
the accounts of the individual participants.
On behalf of plan participants, the agent may use an affiliated broker
for trading activity in connection with any sale of shares from the plan. The
broker receives a commission in connection with the transactions it processes
(see Question 15).
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Interpretation
4. How is the plan to be interpreted?
We will determine any question of interpretation arising under the
plan. Any such determination will be final.
Eligibility
5. Who is eligible to participate?
All holders of record of common stock and all holders of record of
Class A common stock are eligible to participate in the plan. Beneficial owners
whose common shares are registered in names other than their own, for instance,
in the name of a broker or bank nominee (record holder), must arrange
participation with the broker or bank nominee.
If for any reason a beneficial owner is unable to arrange participation
with his or her nominee, the beneficial owner must become a record owner by
having the common shares transferred to his or her name. We reserve the right to
refuse to permit a broker or nominee to participate in the plan if the terms of
such participation would, in our judgment, result in excessive cost to or burden
on us.
Participation
6. How do holders of common shares join the plan?
Holders of record of common stock and holders of record of Class A
common stock may join the plan at any time by completing and signing an
authorization card and returning it to the agent. Holders may obtain an
authorization card and a postage-paid return envelope at any time by writing to
The Bank of New York, Investor Relations Department, P.O. Box 11258, Church
Street Station, New York, New York 10286-1258.
7. What does the authorization card provide?
If you check the appropriate box on the authorization card, you may
elect "Full Dividend Reinvestment of common stock" and the agent will apply all
cash dividends on all shares of common stock then or subsequently registered in
your name toward the purchase of common stock.
If you check the appropriate box on the authorization card, you may
elect "Full Dividend Reinvestment of Class A common stock" and the agent will
apply all cash dividends on all shares of Class A common stock then or
subsequently registered in your name toward the purchase of Class A common
stock.
If you elect to reinvest dividends on only a portion of your common
stock, you should check the "Partial Dividend Reinvestment of common stock" box
on the authorization card and indicate the number of shares of common stock on
which you wish to receive cash dividends. The agent will apply the balance of
your dividends toward the purchase of common stock. The number of shares of
common stock on which you may elect to receive cash dividends may not exceed the
total number of shares of common stock which have been issued to you.
4
If you elect to reinvest cash dividends on only a portion of your Class
A common stock, you should check the "Partial Dividend Reinvestment of Class A
common stock" box on the authorization card and indicate the number of shares of
Class A common stock on which you wish to receive cash dividends. The agent will
apply the balance of your dividends toward the purchase of Class A common stock.
The number of shares of Class A common stock on which you may elect to receive
cash dividends may not exceed the total number of shares of Class A common stock
which have been issued to you.
The agent will reinvest automatically any subsequent dividends on
common shares credited to your account under the plan. The plan, in other words,
operates so as to reinvest dividends on a cumulative basis on the common shares
designated on your authorization card and on all common shares accumulated and
held in your plan account, until you specify otherwise by notice in writing
delivered to the agent or withdraw from the plan altogether, submit a new
authorization card changing the number of common shares on which you wish to
receive cash dividends or until the plan is terminated. See Question 24 for the
consequences of sales of common shares subject to the plan.
8. What are my options under the plan?
By marking the appropriate spaces on the authorization card, you may
choose among the following investment options:
o To reinvest cash dividends automatically on all shares of common
stock now and subsequently registered in your name in additional
shares of common stock at the applicable purchase price, as
defined herein, on the dividend payment date. See Questions 12
and 13 for a description of the timing of the purchase of common
shares and how the applicable purchase price is computed.
o To reinvest cash dividends automatically on all shares of Class
A common stock now and subsequently registered in your name in
additional shares of Class A common stock at the applicable
purchase price on the dividend payment date. See Questions 12
and 13 for a description of the timing of the purchase of common
shares and how the applicable purchase price is computed.
o To reinvest cash dividends automatically on less than all of the
shares of common stock registered in your name in additional
shares of common stock, receiving cash dividends on a specified
number of full shares, at the applicable purchase price on the
dividend payment date.
o To reinvest cash dividends automatically on less than all of the
shares of Class A common stock registered in your name in
additional shares of Class A common stock, receiving cash
dividends on a specified number of full shares, at the
applicable purchase price on the dividend payment date.
9. May I change options under the plan?
Yes. You may change options under the plan at any time by completing
and signing a new authorization card and returning it to the agent. The answer
to Question 6 tells how to obtain an authorization card and return envelope. The
agent must receive any change concerning the reinvestment of dividends not later
than the record date for a dividend in order for the change to become effective
with respect to that dividend. See Question 10.
5
10. When will reinvestment of dividends on common shares start?
If the agent receives your authorization card by the record date for
determining the holders of common shares entitled to receive the next dividend,
reinvestment of your dividends, or portion thereof, will commence with the next
dividend. If the agent receives your authorization card after the record date,
reinvestment of your dividends, or portion thereof, will not start until payment
of the next following dividend.
Purchases
11. What is the source of common shares purchased under the plan?
Common shares purchased under the plan come from our authorized but
unissued common shares. Common shares will not be purchased in the open market.
12. When will dividends be invested in common shares?
Reinvestment of dividends will be made on the date when the dividend
becomes payable. Participants will become owners of common shares purchased
under the plan as of the date of purchase.
13. What will be the purchase price of common shares purchased under the plan?
The price of common shares purchased from us with participants'
reinvested cash dividends (the "purchase price") will be the higher of
o 95% of the closing price of the common stock or Class A common
stock, as applicable, on the dividend payment date or
o 100% of the average of the daily high and low sales prices of
the common stock or the Class A common stock, as applicable, for
the period of five trading days ending on the dividend payment
date, in each case as published in the Eastern Edition of The
Wall Street Journal report of New York Stock Exchange-Composite
Transactions.
If there is no trading in the common shares on the NYSE for a substantial amount
of time during any trading day in the five-day period, or if publication by The
Wall Street Journal of reports of share transactions for any trading day in the
five-day period does not take place or is subject to reporting error, we will
determine the applicable purchase price on the basis of such market quotations
as we and the agent deem appropriate. Should The Wall Street Journal cease to be
published or should daily high and low prices of the common shares no longer be
reported for the New York Stock Exchange-Composite Transactions, then we, upon
consultation with the agent, will identify such other public reports or sources
as we deem appropriate to obtain daily trading prices of our common shares.
14. How will the number of common shares purchased for me be determined?
The number of common shares that will be purchased for you will depend
on the amount of your dividend to be invested and the applicable purchase price
of the common shares. Your account will be credited with the number of common
shares, including fractions computed to four decimal places, that results from
dividing the aggregate amount of dividends to be invested by the applicable
purchase price, also computed to four decimal places.
6
Costs
15. Are there any costs to me for my purchases under the plan?
There are no brokerage fees for purchase of common shares under the
plan because shares are purchased directly from us. We will pay all costs of
administration of the plan. However, if you request the agent to sell your
shares in the event of your withdrawal from the plan (see Question 22), the
agent will deduct any brokerage commissions and transfer taxes incurred. Also,
brokers and nominees may impose charges or fees in connection with their
handling of participation in the plan by nominee and fiduciary accounts.
Dividends
16. Will dividends be paid on common shares held in my plan account?
Yes. Cash dividends on whole shares of common stock and on any fraction
of a share of common stock credited to your account are automatically reinvested
in additional shares of common stock and credited to your account. Cash
dividends on whole shares of Class A common stock and on any fraction of a share
of Class A common stock credited to your account are automatically reinvested in
additional shares of Class A common stock and credited to your account.
Reports to Participants
17. What kind of reports will be sent to me?
Following each purchase of common shares for your account, the agent
will mail to you a statement of account showing amounts invested, the purchase
price (see Question 13), the number of shares purchased, and other information
for the year to date. These statements are your record of the cost of your
purchases. You should retain the statements for income tax and other purposes.
In addition, during the year you will receive copies of the same communications
sent to all other holders of common shares, including our quarterly and annual
reports to stockholders and annual meeting materials.
Your dividend reinvestment statement contains a transaction advice at
the bottom which should be utilized for all transaction processing. This will
help expedite your request.
Certificates for Shares
18. Will I receive certificates for common shares purchased under the plan?
Common shares purchased by the agent for your account will be
registered in the name of the agent's nominee and certificates for such shares
will not be issued to you until requested. The total number of shares credited
to your account will be shown on each statement of account. This custodial
service helps to protect you against the risk of loss, theft or destruction of
stock certificates.
You may request that the agent have certificates for any number of
whole shares credited to your account issued at any time. Please utilize the
tear-off stub attached to the bottom of your dividend reinvestment statement
when requesting a withdrawal or termination. Cash dividends with respect to
shares represented by certificates issued to you will continue to be
automatically reinvested. Any remaining whole shares and fractions of a share
will continue to be credited to your account. Certificates for fractions of
shares will not be issued under any circumstances.
7
19. May common shares in my plan account be pledged?
No. You must first request that certificates for shares credited to
your plan account be issued to you (see Question 18) before you can pledge such
shares.
20. In whose name will certificates be registered when issued?
When issued, certificates for common shares will be registered in the
name in which your plan account is maintained. For holders of record, this
generally will be the name or names in which your share certificates are
registered at the time you enroll in the plan. Upon request, shares will be
registered in any other name upon the presentation to the agent of evidence of
compliance with all applicable transfer requirements, including the payment of
any applicable transfer taxes.
Withdrawal from the Plan
21. When may I withdraw from the plan?
You may withdraw from the plan at any time. If the agent receives your
request to withdraw prior to the record date for determining the holders
entitled to receive the next dividend respecting any common shares held by you,
the agent will process your request following receipt. If the agent receives
your request to withdraw on or after the record date for determining the holders
entitled to receive the next dividend on such common shares but before payment
of the dividend, the dividend will be reinvested for your account and your
request for withdrawal will be processed promptly thereafter.
After your request for withdrawal has become effective, all dividends
will be paid in cash to you unless and until you re-enroll in the plan, which
you may do at any time.
22. How do I withdraw from the plan?
In order to withdraw from the plan, complete the transaction advice attached to
the bottom of your statement. Send the completed form to The Bank of New York,
Urstadt Biddle Properties Inc. Dividend Reinvestment Plan, P.O. Box 1958,
Newark, New Jersey 07101-9774. When you withdraw from the plan, or if we
terminate the plan, certificates for whole shares credited to your account under
the plan will be issued to you and you will receive a cash payment from the
proceeds of fractional shares less any transaction costs and transfer taxes (see
Question 23).
Upon withdrawal from the plan, you may request that all of your shares
in the plan, both whole and fractional, be sold. This sale will be made within
ten trading days after receipt by the agent of the request. You will receive the
proceeds of the sale, less any brokerage commission, fees, and transfer tax.
You should be aware that the price of common shares may fall during the
period between a request for sale, its receipt by the agent and the ultimate
sale in the open market within ten trading days after receipt. This risk should
be carefully evaluated as you bear all the risk under such circumstances.
No check will be mailed prior to settlement of funds from the brokerage
firm. The settlement is on the third business day after the sale of shares.
8
23. What happens to my fractional share when I withdraw from the plan?
When you withdraw from the plan, a cash adjustment representing any
fraction of a share then credited to your account will be mailed directly to
you. The cash payment will be based on the current market price of the common
stock or the Class A common stock, as applicable (see Question 22).
Other Information
24. What happens when I sell or transfer all of the shares registered in my
name?
If you dispose of all shares registered in your name, the agent will
continue to reinvest the dividends on shares credited to your account under the
plan subject to your right to withdraw from the plan at any time.
25. What happens when I sell or transfer some but not all of my shares?
(a) Full Dividend Reinvestment.
If you are investing the cash dividends on all of the shares registered
in your name, and you dispose of a portion of these shares, the agent will
continue to reinvest the dividends on the remainder of the shares registered in
your name.
(b) Partial Dividend Reinvestment.
If you have directed the agent to pay cash dividends to you on some of
your shares and to reinvest dividends on the remainder of your shares, and you
dispose of a portion of your shares, you should provide new written instructions
to the agent on how to handle your account. If the agent does not receive new
instructions, it may, in its discretion, either
o pay cash dividends on all of your shares or
o continue to reinvest dividends on the number of shares, if any,
you own in excess of the number of shares on which you have
directed the agent to pay cash dividends.
26. Can I effect "book-to-book" transfers?
Participants may effect "book-to-book" transfers, which involve
transferring shares from an existing participant account to a new participant
account, by following these steps:
o Call the agent's toll-free telephone number (1-800-524-4458) and
request the plan documents and an enrollment form for the new
account to be opened.
o Have the new participant(s) complete the enrollment form with
the following information:
- complete name(s) in which the account is to be
registered; - address (including zip code); and -
taxpayer identification number.
o Send a written request to the agent indicating the number of
shares, full and/or fractional, which should be transferred to
the new account. All participants in the existing account must
sign the request and their signatures must be guaranteed by a
bank, broker or financial institution that is a member of the
Signature Guarantee Medallion Program. This is a program
established pursuant to Rule 17Ad-15 of the Exchange Act that
requires registered transfer agents, such as the agent, to
establish standards for the acceptance of signature guarantees
and to reject requests for transfers from nonmembers or
nonparticipants in the program.
9
o Return the completed enrollment form with the written request.
o The costs associated with "book-to-book" transfers will be borne by the
existing participant.
27. What happens if we issue a stock dividend, declare a stock split or have a
rights offering?
Any stock dividends or split shares distributed by us on common shares
credited on your plan account will be added to your account. Stock dividends or
split shares distributed on common shares for which you hold certificates will
be mailed directly to you in the same manner as to stockholders who are not
participating in the plan.
In a regular rights offering, as a holder of record you will receive
rights based upon the total number of whole common shares owned: that is, the
total number of shares for which you hold certificates and the total number of
whole shares held in your plan account.
Transaction processing may be curtailed or suspended until the
completion of any stock dividend, stock split or rights offering.
28. Can I vote shares in my plan account at meetings of stockholders?
Yes. You will receive a proxy for the total number of common shares
held -- both the shares for which you hold certificates and those credited to
your plan account. The total number of whole and fractional common shares held
may also be voted in person at a meeting.
If the proxy is not returned or if it is returned unsigned, none of
your common shares will be voted unless you vote in person.
29. What are the U.S. federal income tax consequences of participation in the
plan?
For U.S. federal income tax purposes, distributions paid to you by us
which you reinvest in common shares pursuant to the plan will be treated in the
same manner as normal cash distributions. Distributions that are designated as
capital gain dividends will be taxable as long-term capital gain to the extent
of our net capital gain for the year, regardless of how long you have held the
underlying shares. Written notice designating a distribution (or portion
thereof) as a capital gain dividend will be mailed to you by us not later than
30 days after the close of our taxable year. Distributions other than capital
gain dividends will be taxable as ordinary income to the extent of our current
and accumulated earnings and profits. If we make distributions in excess of our
current and accumulated earnings and profits, such distributions will constitute
nontaxable returns of capital to the extent of your tax basis in the shares with
respect to which the distributions are paid, and taxable gain to the extent of
any excess. Your initial tax basis in your shares generally will equal the
amount that you paid for such shares. Information as to the U.S. federal income
tax status of each calendar year's distributions will be mailed to the holders
of common shares in January of the following year.
You will recognize gain or loss upon a sale, redemption or other
taxable disposition of common shares, such as when common shares are sold either
by you or by the agent at your request when you withdraw from the plan (see
Question 22), or when you receive a cash payment for a fractional share credited
to your account upon withdrawal from or termination of the plan (see Question
23). Such gain or loss generally is measured by the difference between the
amount realized on the taxable disposition of the shares and your tax basis in
such shares. In general, capital gain realized by a U.S. individual, estate or
trust on a taxable disposition of common shares that are held (i) for one year
or less will be treated as short-term capital gain taxable at ordinary income
rates, or (ii) for more than one year will be subject to a maximum tax rate of
15 percent. For corporations, capital gains are generally taxed at the same rate
as ordinary income.
10
In general, capital losses realized by a corporate holder of common
shares on a taxable disposition of common shares are deductible only against
capital gains. A noncorporate holder of common shares (i.e., an individual,
estate or trust) is subject to a similar rule, except that he or she may deduct
up to $3,000 of excess capital losses against ordinary income each year. The net
capital losses of a corporate holder of common shares not allowed in the year
realized generally may be carried back three years and carried forward five
years from the loss year. The capital losses of a noncorporate holder of common
shares may not be carried back, but such losses may be carried forward
indefinitely.
The summary above discusses only U.S. federal income tax considerations
relating to the ownership of common shares and participation in the plan. This
summary is based on the provisions of the Internal Revenue Code of 1986, as
amended, and regulations, rulings and judicial decisions thereunder, as in
effect on the date hereof. In particular, this summary does not address the tax
treatment of holders of common shares who are subject to special tax rules,
including, without limitation, dealers in securities, insurance companies,
banks, tax-exempt entities or qualified pension and profit-sharing plans.
Holders of common shares are advised to consult their own tax advisers as to the
U.S. federal, state, local and other tax consequences of the ownership of common
shares and participation in the plan.
30. What is our responsibility and the agent's responsibility under the plan?
Neither we nor the agent nor its nominees, in administering the plan,
will accept liability for any act done in good faith or for any good faith
omission to act, including, without limitation, any claim of liability arising
out of failure to purchase shares or to terminate a participant's account prior
to receipt of notice in writing. Neither we nor the agent can assure you of a
profit or protect you against a loss on shares purchased under the plan.
31. How are income tax withholding provisions applied to participants?
In the case of foreign participants who elect to have their dividends
reinvested and whose dividends are subject to United States income tax
withholding, an amount equal to the dividends payable to such participants who
elect to reinvest dividends, less the amount of tax required to be withheld,
will be applied by the agent to the purchase of common shares. The statement of
account mailed to each foreign participant after the final purchase of the
calendar year will show the amount of tax withheld in that year. The same
procedure will be followed in the case of an individual domestic stockholder who
fails to furnish us with a correct taxpayer identification number, who has
unreported dividends or interest income, or who fails to certify to us that he
is not subject to such withholding.
32. May the plan be changed or discontinued?
We reserve the right to modify, suspend or terminate the plan at any
time. All participants will receive notice of any such action. Any such
modification, suspension or termination will not, of course, affect previously
executed transactions. We also reserve the right to adopt, and from time to time
change, such administrative rules and regulations, not inconsistent in substance
with the basic provisions of the plan then in effect, as we deem desirable or
appropriate for the administration of the plan. The agent reserves the right to
resign at any time upon reasonable written notice to us.
11
Federal Income Tax Consequences of Our Status as a REIT
This section summarizes the federal income tax issues that you, as a
stockholder, 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 stockholders that are subject to special treatment under the federal
income tax laws, such as 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 the current federal income
tax laws governing qualification as a REIT. We cannot assure you that new laws,
interpretations of law, or court decisions, any of which may take effect
retroactively, will not cause any statement in this section to be inaccurate.
In connection with the registration statement of which this prospectus
is a part, Coudert Brothers LLP has rendered an opinion that we qualified to be
taxed as a REIT under the federal income tax laws for our taxable years ended
October 31, 2001 through October 31, 2003, and our organization and current and
proposed method of operation will enable us to continue to qualify as a REIT for
our taxable year ending October 31, 2004 and in the future. You should be aware
that the opinion is based on current law and is not binding on the IRS or any
court. In addition, the opinion is based on customary assumptions and on our
representations as to factual matters, all of which are described in the
opinion. Moreover, we urge you to consult your own tax advisor regarding the
specific tax consequences to you of investing in our common shares 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 of our Company
We elected to be taxed as a REIT under the federal income tax laws
beginning with our taxable year ended October 31, 1970. We believe that we have
operated in a manner qualifying us as a REIT since our election and intend to
continue so to operate. This section discusses the laws governing the 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 in the 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 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," or
taxation at both the corporate and stockholder levels, that generally results
from owning stock in a corporation. However, we will be subject to federal tax
in the following circumstances:
o We will pay 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.
12
o We may be subject to the "alternative minimum tax" on any items of tax
preference that we do not distribute or allocate to stockholders.
o We will pay income tax at the highest corporate rate on:
o 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
o other non-qualifying income from foreclosure property.
o 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.
o If we fail to satisfy the 75% gross income test or the 95% gross income test,
as described below under "Requirements for Qualification -- Income Tests,"
and nonetheless continue to qualify as a REIT because we meet other
requirements, we generally will pay a 100% tax on:
o the gross income attributable to the greater of the amounts by which we
fail the 75% and 95% gross income tests, multiplied by,
o a fraction intended to reflect our profitability.
o If we fail to distribute during a calendar year at least the sum of:
o 85% of our REIT ordinary income for the year,
o 95% of our REIT capital gain net income for the year, and
o any undistributed taxable income from earlier periods, we will
pay a 4% excise tax on the excess of the required distribution
over the amount we actually distributed.
o We may elect to retain and pay income tax on our net long-term capital gain.
o 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.
o If we acquire any asset from a C corporation, or a 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 another asset, we will pay
tax at the highest regular corporate rate applicable if we recognize gain on
the sale or disposition of the asset during the 10-year period after we
acquire the asset. The amount of gain on which we will pay tax is the lesser
of:
o the amount of gain that we recognize at the time of the sale or
disposition, and
o the amount of gain that we would have recognized if we had sold the
asset at the time we acquired it.
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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 corporation, but for the
REIT provisions of the federal income tax laws.
4. It is neither a financial institution nor an insurance company
subject to special provisions of the 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 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 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 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 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 common shares with sufficient diversity of
ownership to satisfy requirements 5 and 6. In addition, our charter restricts
the ownership and transfer of common shares so that we should continue to
satisfy these requirements.
For U.S. federal income tax purposes, 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 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 have four corporate subsidiaries, 323 Railroad Corp., UB
Danbury, Inc., UB Darien, Inc. and UB Somers, Inc., and own all of their capital
stock. For federal income tax purposes, 323 Railroad Corp., UB Danbury, Inc., UB
Darien, Inc. and UB Somers, Inc. 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.
14
An unincorporated domestic entity, such as a partnership, that has a
single owner generally is not treated as an entity separate from its parent for
federal income tax purposes. An unincorporated domestic entity with two or more
owners is generally treated as a partnership for federal income tax purposes. In
the case of a REIT that is a partner in a partnership that has other partners,
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 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 requirements.
A REIT may own up to 100% of the stock of a "taxable REIT subsidiary,"
or 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 may form one or more TRS 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 defined 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 that 75% gross income test generally includes:
o rents from real property;
o interest on debt secured by mortgages on real property, or on
interests in real property;
o dividends or other distributions on, and gain from the sale of,
shares in other REITs; and gain from the sale of real estate assets.
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 these. Gross income from any origination fees
is not qualifying income for purposes of either gross income test, and gross
income from our sale of property that we hold 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 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 related to each particular asset. Nevertheless, we
will attempt to comply with the terms of safe-harbor provisions in the 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."
15
We will be subject to tax at the maximum corporate rate on any income
from foreclosure property, other than 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. However, gross income from
foreclosure property will qualify under the 75% and 95% gross income tests.
"Foreclosure property" is any real property, including interests in real
property, and any personal property incident to such real property:
o that is acquired by a REIT as the 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;
o for which the related loan was acquired by the REIT at a time when the
default was not imminent or anticipated;
o and for which the REIT makes a proper election to treat the property as
foreclosure property.
We have no foreclosure property as of the date of this prospectus.
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:
o 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;
o 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
o 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.
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 the 75% and 95% gross income tests, only if each of the
following conditions is met:
16
o 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.
o Neither we nor a 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.
o None of the rent received under a lease of real property will
qualify as "rents from real property" unless the rent attributable
to the personal property leased in connection with such lease is
no more than 15% of the total rent received under the lease. The
allocation of rent between real and personal property is based on
the relative fair market values of the real and personal property.
o 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 federal income tax laws. Those relief
provisions generally will be available if:
o our failure to meet such tests is due to reasonable cause and not due
to willful neglect;
o we attach a schedule of the sources of our income to our tax return; and
o any incorrect information on the schedule was not due to fraud with
intent to evade tax.
We cannot predict, however, whether in all circumstances we would
qualify for the relief provisions. In addition, as discussed above in "Taxation
of our Company," even if the relief provisions apply, we generally 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, 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:
17
o cash or cash items, including certain receivables;
o government securities;
o interests in real property, including leaseholds and options to acquire
real property and leaseholds;
o interests in mortgages on real property;
o stock in other REITs; and
o 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 with at least a five-year
term.
Under the second asset test, except for securities in the 75% asset
class, securities in a TRS or qualified REIT subsidiary, and certain partnership
interests and certain debt obligations:
o not more than 5% of the value of our total assets may be represented by
securities of any one issuer;
o we may not own securities that possess more than 10% of the total voting
power of the outstanding securities of any one issuer; and
o 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 (the "10%
value test").
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 75% asset test. 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 the 75% asset test, except to the
extent that the principal balance of any loan exceeds the value of the
associated real property or to the extent the asset is a loan that is not deemed
to be an interest in real property. We will monitor the status of our acquired
assets for purposes of the various asset tests and will 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:
o we satisfied the asset tests at the end of the preceding calendar
quarter; and
o 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 first 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.
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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:
o the sum of
o 90% of our "REIT taxable income," computed without regard to the
dividends paid deduction and our net capital gain or loss, and
o 90% of our after-tax income, if any, from foreclosure property, minus
o the sum of certain items of non-cash income.
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 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 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:
o 85% of our REIT ordinary income for such year,
o 95% of our REIT capital gain income for such year, and
o any undistributed taxable income from prior periods,
we will incur a 4% nondeductible excise tax on the excess of such required
distribution over the amounts we actually distribute. 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 annual distribution requirements.
It is possible that, from time to time, we may experience timing
differences between:
o the actual receipt of income and actual payment of deductible expenses,
and
o the inclusion of that income and deduction of such expenses in arriving
at our REIT taxable income.
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.
19
Recordkeeping Requirements
We must maintain certain records in order to qualify as a REIT. In
addition, to avoid a monetary penalty, we must request on an annual basis
information from our stockholders 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 applies, we would be subject to federal income tax and any applicable
alternative minimum tax 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. In fact, 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 as ordinary income. Subject
to certain limitations of the federal income tax laws, corporate stockholders
might be eligible for the dividends received deduction. Unless we qualified for
relief under specific statutory provisions, we also would be disqualified from
taxation as a REIT for the four taxable years following the year during which we
ceased to qualify as a REIT. We cannot predict whether in all circumstances we
would qualify for such statutory relief.
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 U.S. stockholder will not
qualify for the dividends received deduction generally available to
corporations. The term "U.S. stockholder" means a holder of our stock that, for
United States federal income tax purposes, is:
o a citizen or resident of the United States,
o an entity created or organized under the laws of the United States or
of a political subdivision of the United States,
o an estate whose income is includible in gross income for United States
federal income tax purposes regardless of its source, or
o any trust with respect to which:
o a United States court is able to exercise primary supervision over its
administration, and
o one or more United States persons have the authority to control all of
its substantial decisions.
A U.S. stockholder generally will recognize 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 its stock. A corporate U.S. stockholder,
however, may be required to treat up to 20% of certain capital gain dividends as
ordinary income.
20
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 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 stock by the amount of its proportionate share of our
undistributed long-term capital gain, minus its share of the tax we paid. If we
make such an election, we may, if possible without jeopardizing our status as a
REIT, make such an election only with respect to capital gains allocable to our
common shares.
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 basis of the U.S. stockholder's shares of our stock.
Instead, the distribution will reduce the adjusted basis of such shares of our
stock. A U.S. stockholder will recognize a distribution in excess of both our
current and accumulated earnings and profits and the U.S. stockholder's adjusted
basis in his or her shares of our stock as long-term capital gain, or short-term
capital gain if the shares of our stock have been held for one year or less,
assuming the shares of our 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 shares.
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
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 stock
generally will be treated as investment income for purposes of the investment
interest limitations. We will notify stockholders after the close of our 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 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 stock as long-term capital gain or loss if the U.S. stockholder has held
the shares of our stock for more than one year. However, a U.S. stockholder must
treat any loss upon a sale or exchange of shares of our 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
stock may be disallowed if the U.S. stockholder purchases other shares of
substantially identical stock within 30 days before or after the disposition.
Capital Gains and Losses
The tax rate differential between 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 its sale or
exchange to be treated as long-term capital gain or loss. The highest marginal
individual income tax rate is currently 35%. The maximum tax rate on long-term
capital gain applicable to individual taxpayers is 15% for sales and exchanges
of assets held for more than one year. 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 generally may designate
whether such a distribution is taxable to our non-corporate stockholders at a
15% 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.
21
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% with respect to distributions
unless the holder:
o is a corporation or comes within certain other exempt categories and,
when required, demonstrates this fact;
o 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."
Taxation of Tax-Exempt Stockholders
Tax-exempt entities, including qualified employee pension and profit
sharing trusts and individual retirement accounts, generally are exempt from
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 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 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 must treat a percentage of
the dividends that it receives as unrelated business taxable income. Such
percentage is equal to the gross income we 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. That rule applies to a
pension trust holding more than 10% of our shares only if:
o the percentage of our dividends that the tax-exempt trust must treat
as unrelated business taxable income is at least 5%;
22
o 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 a pension trust to be
treated as holding our shares in proportion to their actuarial interests
in such pension trust; and
o either
o one pension trust owns more than 25% of the value of our shares; or
o 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 federal, state, and local income tax laws on ownership of the shares of our
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 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 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:
o a lower treaty rate applies and the non-U.S. stockholder files the
required form evidencing eligibility for that reduced rate with us, or
o the non-U.S. stockholder files the required form with us claiming that
the distribution is effectively connected income.
A non-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 basis of its common shares. Instead, the distribution will
reduce the adjusted basis of those shares. 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, if the non-U.S.
stockholder otherwise would be subject to tax on gain from the sale or
disposition of its common shares of, 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 of amounts that we withhold if we later determine that a
distribution in fact exceeded our current and accumulated earnings and profits.
23
We are generally required to withhold 10% of any distribution 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 generally 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
federal income tax laws known as "FIRPTA." The term "U.S. real property
interests" includes interests in real property and shares in corporations at
least 50% of whose assets consist of interests in 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 that we could designate
as a capital gain dividend. A non-U.S. stockholder may receive a credit against
its 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% of the value of such stock. We cannot
assure you that that test will be met. A non-U.S. stockholder will not incur tax
under FIRPTA on gain from the sale of our shares unless it owns more than 5% of
common stock or Class A common stock. If the gain on the sale of our common
shares is 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.
A non-U.S. stockholder generally will incur tax on gain not subject to
FIRPTA if:
o 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 treatment as U.S. stockholders with respect to such
gain, or
o 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 United States, in which case the non-U.S.
stockholder will incur a 30% tax on his or her capital gains.
Legislative or Other Actions Affecting REITs
On May 28, 2003, President Bush signed into law the Jobs and Growth Tax
Relief Reconciliation Act of 2003. This tax legislation reduced the maximum
individual tax rate for long-term capital gains generally from 20% to 15% (for
sales occurring after May 6, 2003 through December 31, 2008) and for 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 federal
income tax on the portion of our REIT taxable income or capital gains
distributed to our stockholders, our dividends are generally not 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 generally
apply to:
o your long-term capital gains, if any, recognized on the disposition of
our shares;
24
o our distributions designated as long-term capital gain dividends (except
to the extent attributable to real estate depreciation, in which case
such distributions continue to be subject to a 25% tax rate);
o our dividends attributable to dividends received by us from non-REIT
corporations, such as taxable REIT subsidiaries; and
o 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
federal income tax treatment described above. Consequently, investors should
consult their own tax advisors regarding the effect of state and local tax laws
on an investment in our common shares.
USE OF PROCEEDS
We have no basis for estimating precisely either the number of common
shares that ultimately may be sold pursuant to the plan or the prices at which
such shares will be sold. However, we propose to use the net proceeds from the
sale of common shares pursuant to the plan, when and as received, to make
investments in real estate and for other general corporate purposes. We consider
the plan to be a cost-effective means of expanding our equity capital base and
furthering our investment objectives while at the same time benefiting holders
of common shares.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Bylaws provide that we will indemnify and hold harmless to the
fullest extent permitted by, and under, applicable law any person who is or was
one of our directors or officers, who by reason of this status or service in
that capacity was, is, or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative, or investigative. The indemnification will be against all
liability and loss suffered and expenses, including, but not limited to,
attorneys' fees, judgments, fines, penalties, and amounts paid in settlement,
actually and reasonably incurred by the individual in connection with such
proceeding.
In addition, we have entered into indemnification agreements with
certain of our directors, indemnifying them against expenses, settlements,
judgments and levies incurred in connection with any action, suit or proceeding,
whether civil or criminal, where the individual's involvement is by reason of
the fact that he is or was a director.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling us pursuant
to the foregoing provisions, we have been informed that in the SEC's opinion
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
EXPERTS
The consolidated financial statements of Urstadt Biddle Properties Inc.
appearing in Urstadt Biddle Properties Inc.'s Annual Report (Form 10-K) for the
year ended October 31, 2003, 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.
25
LEGAL OPINION
Miles & Stockbridge P.C., Baltimore, Maryland will pass upon the
legality of the shares of common stock and Class A common stock offered by this
Prospectus for us.
URSTADT BIDDLE PROPERTIES INC.
DIVIDEND REINVESTMENT AND SHARE PURCHASE PLAN
Prospectus dated April 30, 2004.
26
II-6
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution
SEC registration fee............................................. $1,390
Printing expenses................................................ $15,000*
Accountants' fees................................................ $15,000*
Listing fees..................................................... $7,000*
Counsel fees..................................................... $30,000*
Miscellaneous.................................................... $1,610*
Total............................................................ $70,000*
---------------------
* Estimated.
Item 15. Indemnification Of Directors And Officers
The Bylaws of the Registrant provide that the Registrant shall
indemnify its directors, officers and certain other parties to the fullest
extent permitted from time to time by the Maryland General Corporation Law (the
"MGCL"). The MGCL permits a corporation to indemnify its directors, officers and
certain other parties against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their service to or at the
request of the Registrant, unless it is established that the act or omission of
the indemnified party was material to the matter giving rise to the proceeding
and (i) the act or omission was committed in bad faith or was the result of
active and deliberate dishonesty, or (ii) the director actually received an
improper benefit in money, property or services or (iii) in the case of any
criminal proceeding, the indemnified party had reasonable cause to believe that
the act or omission was unlawful.
The MGCL does not permit indemnification in respect of any proceeding
in which the party seeking indemnification shall have been adjudged to be liable
to the Corporation. Further, a party may not be indemnified for a proceeding
brought by that party against the Corporation, except (i) for a proceeding
brought to enforce indemnification or (ii) if the charter or Bylaws, a
resolution of the board of directors or an agreement approved by the board of
directors to which the Corporation is a party expressly provide otherwise.
Article XIII of the Charter of the Registrant also limits liability for
money damages as permitted by MGCL.
II-1
Item 16. Exhibits
Exhibit Index
Exhibit Number Description
4.1 Amended Articles of Incorporation of the Company (incorporated by
reference to Exhibit C of Amendment No. 1 to Registrant's Statement on
Form S-4 filed January 22, 1997 (SEC File No. 333-19113)).
4.2 Articles Supplementary of the Company (incorporated by reference to
Exhibit A of Exhibit 4.1 of the Registrant's Current Report on Form 8-K
dated March 12, 1997 (SEC File No. 001-12803)).
4.3 Articles Supplementary of the Company (incorporated by reference to
Exhibit 4.1 of the Registrant's Current Report on Form 8-K dated January
8, 1998 (SEC File No. 001-12803)).
4.4 Articles Supplementary of the Company (incorporated by reference to
Annex A of Exhibit 4.1 of the Registrant's Current Report on Form 8-K
filed August 3, 1998 (SEC File No. 001-12803)).
4.5 Articles Supplementary for 8.5% Series C Senior
Cumulative Preferred Stock setting forth the powers,
preferences and rights, and the qualifications,
limitations and restrictions thereof (incorporated by
reference to Exhibit 4.2 of Registrant's Registration
Statement on Form S-3 filed August 8, 2003 (SEC File No.
333-107803)).
4.6 Bylaws of the Company (incorporated by reference to Exhibit D of
Amendment No. 1 to Registrant's Registration Statement on Form S-4 filed
January 22, 1997 (SEC File No. 333-19113)).
4.7 Amended and Restated Rights Agreement, dated as of July
31, 1998, between the Company and The Bank of New York,
as Rights Agent (incorporated by reference to Exhibit
10.1 of the Registrant's Current Report on Form 8-K
dated November 5, 1998 (SEC File No. 001-12803)).
*5.1 Opinion of Miles & Stockbridge P.C. as to the legality of the
securities.
*8.1 Opinion of Coudert Brothers LLP as to tax matters.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Miles & Stockbridge P.C. (included in Exhibit 5.1).
*23.3 Consent of Coudert Brothers LLP (included in Exhibit 8.1).
*24.1 Power of Attorney (located on the signature page of this Registration
Statement).
-------------------
* As filed herewith.
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Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in
the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the SEC by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 (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, 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) 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.
II-3
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 Town of Greenwich, State of Connecticut, on April 29, 2004.
URSTADT BIDDLE PROPERTIES INC.
By: /s/ Charles J. Urstadt
Charles J. Urstadt
Chairman of the Board and
Chief Executive Officer
SIGNATURES
/s/ Charles J. Urstadt Chairman, Chief Executive Officer and April 29, 2004
Charles J. Urstadt Director (Principal Executive Officer)
/s/ Willing L. Biddle President, Chief Operating Officer and April 29, 2004
Willing L. Biddle Director
/s/ James R. Moore Executive Vice President and Chief April 29, 2004
James R. Moore Financial Officer (Principal Financial
Officer and Principal Accounting Officer)
/s/ E. Virgil Conway Director April 29, 2004
E. Virgil Conway
/s/ Robert R. Douglass Director April 29, 2004
Robert R. Douglass
/s/ Peter Herrick Director April 29, 2004
Peter Herrick
/s/ George H.C. Lawrence Director April 29, 2004
George H.C. Lawrence
/s/Robert J. Mueller Director April 29, 2004
Robert J. Mueller
II-4
/s/ Charles D. Urstadt Director April 29, 2004
Charles D. Urstadt
/s/ George J. Vojta Director April 29, 2004
George J. Vojta
POWER OF ATTORNEY
Each person whose signature appears above hereby constitutes and
appoints Charles J. Urstadt and Willing L. Biddle, or any of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments
and any other documents filed with the Securities and Exchange Commission) to
this Registration Statement, and to cause the same to be filed, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby granting to said attorney-in-fact and
agent, or any of them, full power and authority to do and perform each and every
act and thing whatsoever requisite or desirable 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 acts and things that said
attorney-in-fact and agent, or any of them, or his or their substitute, 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 above persons in the capacities
and on the dates indicated.
II-5
Exhibit Index
Exhibit Number Description
4.1 Amended Articles of Incorporation of the Company
(incorporated by reference to Exhibit C of Amendment
No. 1 to Registrant's Statement on Form S-4 filed
January 22, 1997 (SEC File No. 333-19113)).
4.2 Articles Supplementary of the Company (incorporated
by reference to Exhibit A of Exhibit 4.1 of the
Registrant's Current Report on Form 8-K
dated March 12, 1997 (SEC File No. 001-12803)).
4.3 Articles Supplementary of the Company (incorporated
by reference to Exhibit 4.1 of the Registrant's
Current Report on Form 8-K dated January
8, 1998 (SEC File No. 001-12803)).
4.4 Articles Supplementary of the Company (incorporated
by reference to Annex A of Exhibit 4.1 of the
Registrant's Current Report on Form 8-K
dated August 3, 1998 (SEC File No. 001-12803)).
4.5 Articles Supplementary for 8.5% Series C Senior
Cumulative Preferred Stock setting forth the powers,
preferences and rights, and the qualifications,
limitations and restrictions thereof (incorporated by
reference to Exhibit 4.2 of Registrant's Registration
Statement on Form S-3 filed August 8, 2003 (SEC File No.
333-107803)).
4.6 Bylaws of the Company (incorporated by reference
to Exhibit D of Amendment No. 1 to Registrant's
Registration Statement on Form S-4 filed
January 22, 1997 (SEC File No. 333-19113)).
4.7 Amended and Restated Rights Agreement, dated as of July
31, 1998, between the Company and The Bank of New York,
as Rights Agent (incorporated by reference to Exhibit
10.1 of the Registrant's Current Report on Form 8-K
dated November 5, 1998 (SEC File No. 001-12803)).
*5.1 Opinion of Miles & Stockbridge P.C. as to the legality
of the securities.
*8.1 Opinion of Coudert Brothers LLP as to tax matters.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Miles & Stockbridge P.C. (included in
Exhibit 5.1).
*23.3 Consent of Coudert Brothers LLP (included in Exhibit
8.1).
*24.1 Power of Attorney (located on the signature page of
this Registration Statement).
-------------------
* As filed herewith.
II-6