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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 23)
Alexander's, Inc.
(Name of Issuer)
Common Stock, par value $1.00 per share
(Title of Class of Securities)
014752109
(CUSIP Number)
Mr. Steven Roth
Interstate Properties
Park 80 West
Plaza II
Saddle Brook, New Jersey 07662
(201) 587-1000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copy to:
Janet T. Geldzahler
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
(212) 558-3869
February 6, 1995
(Date of Event which Requires Filing of this Statement)
If a filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of
this Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this
statement [ ].
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- --------------------
CUSIP NO. 014752109
- --------------------
- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Interstate Properties
22-1858622
- ------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
N/A
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
New Jersey
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 1,354,568
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 1,354,568
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
0
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,821,136 (includes 113,100 shares held by Vornado Realty
Trust and 1,353,468 shares which Vornado Realty Trust has
the right to buy)
- ------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.4%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
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This Amendment No. 23 amends the Schedule 13D
Statement originally filed by Interstate Properties on
September 26, 1980.
Item 1. Security and Issuer.
(a) The class of equity securities to which this
Statement relates is the Common Stock, par value $1.00 per
share (the "Shares"), of Alexander's, Inc., a Delaware
corporation (the "Company"), which has its principal executive
offices at 31 West 34th Street, New York, New York 10001.
Item 2. Identity and Background.
(a), (f) This Statement is being filed by
Interstate Properties, a New Jersey general partnership
("Interstate"). Interstate owns 31% of the common shares of
beneficial ownership of Vornado Realty Trust, a Maryland real
estate investment trust ("Vornado").
(b) Interstate's principal executive offices are
located at Park 80 West, Plaza II, Saddle Brook, N.J. 07662.
Vornado's principal executive offices are located at Park 80
West, Plaza II, Saddle Brook, N.J. 07662.
(c) The principal business of Interstate is real
estate and investments. The principal business of Vornado is
real estate, principally the ownership and operation of strip
shopping centers. The name, business address and principal
occupation (including the name, principal business
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and address of any corporation or other organization in which
such employment is conducted) of each of the general partners
of Interstate is listed on Annex A hereto. Each of such
persons is a United States citizen.
(d) - (e) During the last five years, none of
Vornado, Interstate or any of the persons listed on Annex A
has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) nor been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which such entity or
person was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
All shares of Common Stock owned by Interstate were acquired
with the working capital of Interstate.
Item 4. Purpose of Transaction.
Interstate acquired the Shares described in Item 5
for investment purposes. By virtue of the fact that
Mr. Steven Roth, a general partner of Interstate, is the
Chairman of the Board and Chief Executive Officer of Vornado,
and that the three general partners of Interstate are trustees
of Vornado, Interstate may be deemed to be
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acting in concert with Vornado. Accordingly, Interstate would
beneficially own all Shares owned by Vornado.
On February 6, 1995, Vornado entered into a Stock
Purchase Agreement with Citibank, N.A. to acquire the
1,353,468 shares owned by Citibank, N.A. for $40.50 per share
in cash. The closing of such purchase is subject to the
Company's ability to qualify in 1995 as a real estate
investment trust and approval by the United States Bankruptcy
Court for the Southern District of New York of the management
agreement entered into and the loan agreement to be entered
into between Vornado and the Company.
In connection with the execution of the Stock
Purchase Agreement, Vornado and Interstate Properties also
agreed with the Company to a Standstill and Corporate
Governance Agreement, whereby the aggregate ownership in the
Company by Vornado and Interstate and their affiliates and
associates will not exceed 66.65% for three years, David
Mandelbaum and Russell Wight (trustees of Vornado and general
partners of Interstate Properties) will fill two of the
vacancies created by the resignation of the Citibank directors
on the Company's Board and the two independent directors of
the Company may select a third independent director, the
independent directors will not be removable other than for
cause for a period of three years and if an independent
director resigns, the other two will select a replacement, the
independent directors will be provided with
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a reasonable budget to employ investment bankers, counsel or
other professionals as they determine to be necessary, Vornado
and Interstate will not for a period of three years cause a
merger or other business combination of Vornado or Interstate
and the Company without the approval of the majority of the
independent directors and if Vornado and Interstate wish to
sell, in the aggregate, Shares in an amount in excess of the
greater of (i) 30% of the outstanding Shares and (ii) a
majority of the Shares held by Interstate and Vornado and
their affiliates and associates at a price equal to or greater
than 115% of the then existing market price, they may only do
so on terms that permit the other stockholders to sell on the
same terms. The foregoing is qualified by reference to such
agreement, which is attached hereto as Exhibit 2.
Whether or not the purchase contemplated by the
Stock Purchase Agreement is consummated, Interstate will
continue to assess its investment in the Company and,
depending on market conditions and other factors as well as
the terms of the Standstill and Corporate Governance
Agreement, may dispose of all or any portion of the Shares it
now owns or may hereafter acquire, seek to engage in
extraordinary corporate transactions, such as a merger or
other reorganization involving the Company or a purchase, sale
or transfer of a material amount of the assets of the Company
or any of its subsidiaries (which extraordinary
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transaction could involve one or more additional parties),
engage in discussions with the management and/or other
significant stockholders of the Company and take any other
action which Interstate may deem to be appropriate in the
circumstances.
Item 5. Interest in Securities of the Issuer.
(a) - (b) Interstate owns 1,354,568 Shares (27.1% of
the 5,000,850 Shares reported by the Company as outstanding as
of November 4, 1994 in its Quarterly Report on Form 10-Q for
the three months ended September 30, 1994). Interstate has
sole voting and dispositive power with respect to such Shares.
While, as noted previously, Interstate may be deemed to bene-
ficially own all Shares held by Vornado (113,100 (2.3%)
directly and the right to acquire 1,353,468 Shares (27.1%)
from Citibank, N.A.), Interstate does not have sole or shared
voting or dispositive power with respect to such Shares.
Including the Shares Vornado beneficially owns, Interstate
would own 2,821,136 Shares (56.4%). In addition, Mr. Roth, a
general partner of Interstate, owns 9,700 shares, as to which
he has sole voting and dispositive power.
(c) Other than the execution of the Stock Purchase
Agreement, there have been no transactions in the Shares
effected by Vornado or Interstate or any of the general
partners of Interstate in the past sixty days.
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(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
See Item 4 for a description of the Stock Purchase
Agreement and the Standstill and Corporate
Governance Agreement.
Item 7. Material to be Filed as Exhibits.
(1) Stock Purchase Agreement, dated February 6,
1995.
(2) Standstill and Corporate Governance Agreement,
dated February 6, 1995.
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SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth
in this statement is true, complete and correct.
Dated: February 6, 1995
INTERSTATE PROPERTIES
By: /s/ STEVEN ROTH
Steven Roth,
General Partner
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Annex A
<TABLE>
<CAPTION>
<S> <C> <C>
Name Business Address Principal Occupation
Steven Roth(1) Vornado Realty Trust(2) General Partner of Interstate and
Chairman of the Board and Chief
Executive Officer of Vornado
David Mandelbaum(1) Mandelbaum & Mandelbaum
80 Main Street
West Orange, N.J. 07052 Partner in law firm
Russell B. Wight, Jr.(1) Interstate Properties
c/o Vornado Realty Trust(2) General Partner of Interstate
</TABLE>
_______________________
1 General Partner of Interstate Properties
2 Vornado's address is Park 80 West, Plaza II, Saddle Brook,
New Jersey 07662
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Exhibit 1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated February 6, 1995, by and
between Citibank, N.A., a national banking association organized under the
National Bank Act of the United States of America ("Seller"), and Vornado
Realty Trust, a real estate investment trust organized under the laws of
the State of Maryland ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller, 1,353,468 shares of common stock, par
value $1.00 per share, of Alexander's Inc., a Delaware corporation (the
"Company"), (the "Shares") on the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto, intending to be
legally bound, hereby agree as follows:
I. SALE OF SHARES; PURCHASE PRICE
1.1 Sale of Shares. Pursuant to the terms and subject to the
conditions set forth in this Agreement, at the Closing (as hereinafter
defined), Seller shall sell and deliver to Purchaser, and Purchaser shall
purchase from Seller, the Shares.
1.2 Purchase Price; Payment.
(a) The aggregate purchase price for the Shares (the
"Purchase Price") shall consist of cash consideration in the amount of
$40.50 per share for an aggregate of Fifty-Four Million Eight Hundred
Fifteen Thousand Four Hundred Fifty-Four Dollars ($54,815,454).
(b) On the Closing Date (as hereinafter defined),
Purchaser shall pay to Seller the Purchase Price in accordance with Section
1.2(a) by wire transfer of immediately available funds to the bank account
of Seller identified by Seller at or prior to the Closing.
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II. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
2.1 Due Organization. Seller is duly organized, validly
existing and in good standing under the laws of the United States of
America.
2.2 Authority Relative to Agreement. Seller has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement. The execution and delivery by Seller of
this Agreement and the consummation by Seller of the transactions
contemplated hereby (i) have been authorized by all necessary corporate
action on the part of Seller, (ii) do not violate any provision of law
applicable to Seller and (iii) do not conflict with or result in a breach
of any provision of, or constitute a default under, any order, judgment or
decree binding upon Seller.
2.3 Effect of Agreement. This Agreement has been duly
executed and delivered by Seller and (assuming the due authorization,
execution and delivery by Purchaser) constitutes a legal, valid and binding
obligation of Seller enforceable against Seller in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
and remedies generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or at
equity).
2.4 The Shares.
(a) Seller is the record and beneficial owner of the
Shares.
(b) Seller will transfer and deliver to Purchaser at the
Closing valid title to the Shares, free and clear of all liens, claims and
encumbrances other than those contained in the Company's Amended and
Restated Certificate of Incorporation (the "Charter").
2.5 Brokers, Finders, etc. Seller is not subject to the valid
claim of any broker, finder, consultant or other intermediary in connection
with the sale of the Shares who would have a valid claim for a fee or
commission from Purchaser or the Company in connection with such
transaction.
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III. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
3.1 Organization and Good Standing. Purchaser is a real
estate investment trust duly formed and existing under and by virtue of the
laws of the State of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland.
3.2 Authority Relative to Agreement. Purchaser has all
requisite power and authority to execute, deliver and perform its
obligations under this Agreement. The execution and delivery by Purchaser
of this Agreement, and the consummation by Purchaser of the transactions
contemplated hereby (i) have been authorized by all necessary action on the
part of Purchaser, (ii) do not violate any provision of law applicable to
Purchaser and (iii) do not conflict with or result in a breach of any
provision of, or constitute a default under, any order, judgment or decree
binding upon Purchaser.
3.3 Effect of Agreement. This Agreement has been duly
executed and delivered by Purchaser and (assuming the due authorization,
execution and delivery by Seller) constitutes a legal, valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding at law or at
equity).
3.4 Investment Representation. The Shares are being purchased
by Purchaser as principal solely for its own account, for investment
purposes only and not with a view to the distribution thereof in violation
of the Securities Act of 1933 (the "Securities Act") or any applicable
state securities law, and Purchaser has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits
and risks of its investment represented by its purchase of the Shares.
Purchaser acknowledges that the Shares have not been registered under the
Securities Act or any other securities law and may not be sold, and
Purchaser hereby covenants that the Shares will not be sold, in whole or in
part, in the United States of America except pursuant to a registration
statement effective under the Securities Act or pursuant to an exemption
from registration under the Securities Act, and in compliance with all
other applicable securities laws.
3.5 Brokers, Finders etc. Purchaser is not subject to the
valid claim of any broker, finder, consultant or other intermediary in con-
nection with the transaction
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contemplated hereby who would have a valid claim for a fee or commission
from Seller in connection with such transaction.
3.6 Potential REIT Status. Purchaser does not know as of the
date of this Agreement of any fact which would preclude the Company from
qualifying as a real estate investment trust ("REIT") within the meaning of
Section 856 of the Internal Revenue Code of 1986 (the "Code") entitled to
the benefits of Section 857 of the Code commencing with its taxable year
beginning January 1, 1995.
IV. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser to effect the transactions
contemplated by this Agreement shall, at the option of the Purchaser, be
subject to the satisfaction, on the Closing Date, of the following
conditions:
4.1 Accuracy of Representations and Warranties; Covenants.
Each of the representations and warranties of Seller contained herein shall
be true and correct in all material respects when made and on and as of the
Closing Date, with the same force and effect as though the same had been
made on and as of the Closing Date, and Seller shall have complied in all
material respects with its covenants contained herein to be performed at or
prior to the Closing.
4.2 No Restraint or Litigation. No party hereto shall be
legally enjoined by any injunction or court order from consummating the
transactions contemplated by this Agreement, and no proceeding shall have
been commenced by any governmental authority seeking to enjoin the
consummation of the transactions contemplated hereby.
4.3 REIT Status. No fact shall exist on the Closing Date that
was not known to Purchaser on the date hereof which fact shall give rise to
any circumstance that, in the reasonable judgment of Purchaser, cannot be
remedied by the Company through reasonable action and, if unremedied, would
preclude the Company from qualifying as a REIT within the meaning of the
Code entitled to the benefits of Section 857 of the Code commencing with
its taxable year beginning January 1, 1995 and the Company and the
Purchaser shall have received an opinion dated the Closing Date of Shearman
& Sterling, counsel to the Company, confirming in all material respects the
conclusions set forth in the opinions to the Company, dated the date of
this Agreement, of Shearman & Sterling concerning certain REIT matters.
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4.4 Officer's Certificate. Purchaser shall have received a
certificate from the Seller to the effect set forth in Section 4.1 hereof,
dated the Closing Date, signed by a duly authorized officer of Seller.
4.5 Bankruptcy Court Approval. The United States Bankruptcy
Court for the Southern District of New York (the "Bankruptcy Court") shall
have approved (i) the management agreement between the Company and
Purchaser dated the date hereof and (ii) the financing to be provided to
the Company by Purchaser contemplated by the commitment letter therefor
dated the date hereof between Purchaser and the Company.
4.6 Resignations. All directors of the Company who are
employees of Seller shall have resigned as directors of the Company.
4.7 No Breach. The Company shall not have breached in any
material respect Section 2.5 of the Standstill and Corporate Governance
Agreement, dated the date hereof among the Company, Purchaser and
Interstate Properties, a New Jersey general partnership.
4.8 Financing. Purchaser shall have obtained a commitment from
Seller for $27.4 million of financing from Seller on terms substantially
similar to those set forth on the term sheet therefor dated the date hereof
and initialled by Purchaser and Seller if Purchaser shall have notified
Seller in writing prior to February 20, 1995 that Purchaser requests such
financing from Seller.
4.9 Cutoff Date. The Closing shall have been held by June 30,
1995.
4.10 Restrictions on Ownership and Transfer. On the Closing
Date, no Mandatory Exchange Date shall have been fixed by the Board of
Directors of the Company for the purpose of any automatic exchange
described in Section 4(b) of Article IV of the Charter if as a result of
such fixing any shares of common stock of the Company held (or to be held
after the Closing Date) by the Purchaser would be required to be treated as
Excess Stock (as such term is defined in the Charter) following such
Mandatory Exchange Date and the transfer of the Shares from Seller to
Purchaser shall not be prohibited by Section 4(b) of Article IV of the
Charter.
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V. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller to effect the sale of the Shares
shall, at the option of Seller, be subject to the satisfaction, on the
Closing Date, of the following conditions:
5.1 Accuracy of Representations and Warranties; Covenants.
Each of the representations and warranties of Purchaser contained herein
shall be true and correct in all material respects when made and on and as
of the Closing Date, with the same force and effect as though the same had
been made on and as of the Closing Date, and Purchaser shall have complied
in all material respects with its covenants contained herein at or prior to
the Closing.
5.2 No Restraint or Litigation. No party hereto shall be
enjoined by an injunction or court order from consummating the transactions
contemplated by this Agreement, and no proceeding shall have been commenced
by any governmental authority seeking to enjoin the consummation of the
transactions contemplated hereby.
5.3 Officer's Certificate. Seller shall have received a
certificate from Purchaser to the effect set forth in Section 5.1 hereof,
dated the Closing Date, signed by a duly authorized officer of Purchaser.
5.4 Certified Resolutions of the Purchaser. Seller shall have
received a certificate of a duly authorized officer of Purchaser, dated the
Closing Date, setting forth the resolutions of the Board of Trustees of
Purchaser, approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and certifying that
such resolutions were duly adopted and have not been rescinded or amended
as of the Closing Date.
5.5 Cutoff Date. The Closing shall have been held by March
31, 1995 unless both the Company shall have filed for the approval
referred to in Section 4.5 hereof promptly following the date hereof and
the Bankruptcy Court shall not have rendered its decision thereon by March
31, 1995, in which event such date shall be extended to April 28, 1995.
5.6 Legal Opinion. Seller shall have received a legal opinion,
dated the Closing Date, from counsel to Purchaser, satisfactory to Seller,
as to the matters set forth in Sections 3.1, 3.2 and 3.3 hereof, in form
and substance reasonably satisfactory to Seller.
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VI. CLOSING
6.1 Closing Date. The closing with respect to the
transactions provided for in this Agreement (the "Closing") shall take
place at 10:00 a.m., local time, at the offices of Weil, Gotshal & Manges,
767 Fifth Avenue, New York, New York 10153 on the Business Day following
the date on which the condition set forth in Section 4.5 hereof shall have
been satisfied (or at such other time or location as Purchaser and Seller
may agree) (such date being herein referred to as the "Closing Date").
6.2 Seller Closing Documents. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser the following:
(a) certificates representing the Shares, duly endorsed
in blank (or in lieu thereof having affixed thereto stock powers duly
executed in blank), and in proper form for transfer; and
(b) the officer's certificate referred to in Section 4.4
hereof.
6.3 Purchaser Closing Documents. At the Closing, Purchaser
shall deliver or cause to be delivered to Seller the following:
(a) the Purchase Price;
(b) the officer's certificate of Purchaser referred to
in Section 5.3 hereof;
(c) the certified resolutions referred to in Section 5.4
hereof; and
(d) the legal opinion referred to in Section 5.6 hereof.
6.4 Proceedings. All proceedings that shall be taken and all
documents that shall be executed and delivered by the parties hereto on the
Closing Date shall be deemed to have been taken and executed simultaneously
and no proceedings shall be deemed taken nor any documents executed or
delivered until all have been taken, executed and delivered. By a party's
proceeding with the Closing, the conditions to such party's obligations set
forth in Article V or VI hereof, as the case may be, shall be deemed
satisfied or waived.
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VII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
7.1 General Survival. The representations and warranties
contained in this Agreement shall survive the Closing.
7.2 Indemnification.
(a) Seller agrees to indemnify, defend and hold harmless
Purchaser from and against and in respect of any and all demands, claims,
actions or causes of action, assessments, losses, damages, liabilities,
interest and penalties, costs and expenses (including, without limitation,
reasonable legal fees and disbursements incurred in connection therewith
and in seeking indemnification therefor, and any amounts or expenses
required to be paid or incurred in connection with any action, suit,
proceeding, claim, appeal, demand, assessment or judgment), net of any
insurance proceeds and current tax benefits, imposed upon or incurred by
Purchaser resulting from, arising out of, or by reason of any breach of any
of Seller's representations or warranties contained in Article II of this
Agreement.
(b) Purchaser agrees to indemnify, defend and hold
harmless Seller from and against and in respect of any and all demands,
claims, actions or causes of action, assessments, losses, damages,
liabilities, interest and penalties, costs and expenses (including, without
limitation, reasonable legal fees and disbursements incurred in connection
therewith and in seeking indemnification therefor, and any amounts or
expenses required to be paid or incurred in connection with any action,
suit, proceeding, claim, appeal, demand, assessment or judgment), net of
any insurance proceeds and current tax benefits, imposed upon or incurred
by Seller resulting from, arising out of, or by reason of (i) any breach of
any of Purchaser's representations or warranties in Article III hereof or
(ii) any Taxes (including, without limitation, Taxes attributable to
indemnity payments hereunder).
(c) Whenever a claim shall arise with respect to which
indemnification may be sought under this Article VII, the party entitled to
indemnification (the "Indemnified Party") shall promptly notify the party
from whom indemnification is sought (the "Indemnifying Party") of such
claim and, when known, the facts constituting the basis for such claim;
provided, however, that in the event of any claim for indemnification
hereunder resulting from or in connection with any claim or legal
proceedings by a third party, the Indemnified Party shall give such notice
thereof to the Indemnifying Party no later than 10 days prior to the time
any response to the asserted claim is required, if possible; and provided
further, however, that failure to give such reasonably prompt notice shall
not
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release, waive or otherwise affect the Indemnifying Party's obligations
with respect thereto except to the extent of any loss and prejudice as a
result thereof.
VIII. COVENANTS
8.1 Further Assurances. Seller shall use reasonable commercial
efforts to satisfy the conditions set forth in Sections 4.1, 4.2, 4.4, 4.6
and 4.9 hereof and Seller shall provide the Company with such information
as is readily available to Seller regarding Seller's ownership of lessees
and sublessees of the Company as Purchaser reasonably requests. Nothing
herein, however, shall be construed to require Seller to provide the
financing referred to in Section 4.8 hereof. Purchaser shall use
reasonable commercial efforts to satisfy the conditions set forth in
Article V hereof and in Sections 4.5 and 4.7 hereof.
8.2 New York State Tax Ruling. If requested by Purchaser,
Seller shall promptly apply to the New York State Department of Taxation
and Finance for a private letter or other guidance to the effect that, for
purposes of the New York State Gains Tax, Seller's "original purchase
price" for the Shares is to be determined by reference to either the fair
market value of the Company's real property at the time of Seller's
acquisition of the Shares (or of a beneficial interest in the Shares) or
Seller's investment in the Shares and, in connection therewith, shall use
reasonable efforts to respond promptly to inquiries and requests for other
information from such Department related to such ruling request. Seller
makes no representation or warranty regarding the likelihood of obtaining
such ruling and the failure to obtain such ruling shall not affect any of
Purchaser's obligations in this Agreement.
8.3 Further Seller Purchases. After the Closing, Seller agrees
that, for a period of three years from the Closing, it will not acquire any
shares of the Company's common stock, other than in a fiduciary capacity or
in respect of a debt previously contracted.
8.4 Notice of Further Purchaser Acquisitions. Purchaser shall
notify Seller promptly in writing if Purchaser or any Affiliate (as defined
in Section 9.7 hereof) of Purchaser acquires or enters into a contract or
option to acquire any equity interest in the Company, or any other entity
that directly or indirectly owns any equity interest in the Company, at any
time during the three year period beginning or ending on the date of the
Closing and shall provide Seller with any additional information reasonably
required by Seller to determine if any Taxes will thereby arise in respect
of the sale of the Shares provided for herein.
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8.5 Filings in Respect of Taxes. If, after receiving the
information provided to Seller by Purchaser pursuant to Section 8.4 hereof,
Seller reasonably determines or Purchaser determines that Seller is
required to file any return in respect of Taxes, Seller shall promptly
prepare and file such return and Purchaser shall, upon such filing, pay all
Taxes due and otherwise satisfy its obligations under Section 7.2(b)
hereof. Purchaser and Seller shall cooperate with each other in making any
future filings required in respect of Taxes.
IX. MISCELLANEOUS
9.1 Waivers and Amendments.
(a) This Agreement may not be amended, modified or
supplemented except by a written instrument executed by the parties hereto.
The provisions of this Agreement may be waived only by an instrument in
writing executed by the party granting the waiver. The waiver by any party
hereto of compliance with any provision of this Agreement shall not operate
or be construed as a further or continuing waiver of such noncompliance or
as a waiver of any other or subsequent noncompliance.
(b) No failure on the part of any party to exercise, and
no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy, except as
otherwise provided in Section 7.2(c) hereof.
9.2 Fees and Expenses. Except as otherwise set forth herein,
each party hereto shall be responsible for its costs and expenses,
including all fees and expenses of attorneys, investment bankers, lenders,
financial advisors and accountants, in connection with the negotiation,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, whether or not such transactions are
consummated.
9.3 Notices. Any and all notices, requests, consents or any
other communication provided for herein shall be made by hand delivery,
first-class mail (registered or certified, return receipt requested),
telecopier or overnight courier (i) in the case of Seller, to Citibank,
N.A., 599 Lexington Avenue, 24th Floor, New York, New York 10043,
Attention: C.R.E.I. General Counsel (telecopy number: 212-793-6766) and
Wendy Silverstein (telecopy number: 212-793-0158) (or such other address or
telecopy number as Seller may designate), and (ii) in the case of
Purchaser, to Vornado Realty Trust, Park 80 West, Plaza II, Saddle Brook,
New Jersey 07662, Attention: Steven Roth (telecopy number:
<PAGE>
<PAGE> 11
201-587-0600) (or to such other address or telecopy number as may be
designated by the Purchaser). Except as otherwise provided in this
Agreement, each such notice shall be deemed given at the time delivered. A
copy of such notice shall be sent by the same means, in the case of a
notice to Purchaser, to Sullivan & Cromwell, 125 Broad Street, New York,
New York 10004, Attention: Janet T. Geldzahler, Esq. (telecopy number:
212-558-3342) and, in the case of a notice to Seller, to Weil, Gotshal &
Manges, 767 Fifth Avenue, New York, New York 10153, Attention: Ronald F.
Daitz, Esq. (telecopy number: 212-310-8007).
9.4 Entire Agreement. This Agreement sets forth the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes any prior negotiations, agreements,
understandings or arrangements between the parties hereto with respect to
the subject matter hereof.
9.5 Binding Effect; Benefits. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors. Nothing in this Agreement, expressed or implied, is intended
to confer on any person other than the parties hereto, or their respective
successors, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
9.6 Assignability. This Agreement and any rights pursuant
hereto shall not be assignable by either party hereto without the prior
written consent of the other party, except that Purchaser may assign its
rights hereunder to a wholly-owned subsidiary of Purchaser in which event
references in Sections 3.2, 3.4 and 5.6 hereof to Purchaser shall be deemed
to refer to Purchaser and such subsidiary and no such assignment shall
relieve Purchaser of any of its obligations hereunder.
9.7 Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
(a) "Affiliate" shall mean, as to any Person, any other
Person which, directly or indirectly, controls, is controlled by or is
under common control with such Person. For the purposes of this
definition, "control" means the possession of the power to direct or cause
the direction of management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
(b) "Business Day" shall mean any day on which banks are
not required or authorized to close in New York City.
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<PAGE> 12
(c) "Person" shall mean an individual, partnership,
corporation (including, without limitation, a business trust), joint stock
company, trust, unincorporated association, joint venture or other entity,
government or governmental authority.
(d) "Taxes" shall mean all New York State and New York
City Real Property Transfer Gains Taxes and real estate transfer taxes, and
interest and penalties thereon, attributable in whole or in part, directly
or indirectly, to the transaction contemplated hereby whether or not caused
by any additional, prior or subsequent transaction (but excluding interest
and penalties resulting from Seller's failure to comply with Section 8.5
hereof if Purchaser has first complied with the provisions of Sections 8.4
and 8.5 hereof).
9.8 Applicable Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
9.9 Section and Other Headings. The section and other
headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
9.10 Submission to Jurisdiction. (a) Each of the parties
hereto irrevocably consents that any action or proceeding brought by the
other party hereto in respect of the transaction contemplated hereby may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York and, by execution and
delivery of this Agreement, the parties hereto hereby irrevocably waive any
objection, including, without limitation, any objection to the laying of
venue or based on the grounds of forum non conveniens, which any of them
may now or hereafter have to the bringing of any such action or proceeding
in such respective jurisdiction.
(b) Each of the parties hereto irrevocably consents to
the service of process of any of the aforesaid courts in any such action or
proceeding by the mailing of copies thereof by registered mail, postage
prepaid, to such party at its address provided herein.
9.11 Termination. Seller shall be able to terminate this
Agreement and its obligations hereunder if the Closing shall not have
occurred by March 31, 1995 (or April 28, 1995 in the event the two
conditions set forth in Section 5.5 hereof shall be satisfied) other than
by reason of a breach by Seller of a representation, warranty or covenant
of Seller contained herein. Purchaser shall be able to terminate this
Agreement and its obligations
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<PAGE> 13
hereunder if the Closing shall not have occurred by June 30, 1995 other
than by reason of a breach by Purchaser of a representation, warranty or
covenant of Purchaser contained herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day and year first above written.
CITIBANK, N.A.
By: /s/WENDY A. SILVERSTEIN
Name: Wendy A. Silverstein
Title: Vice President
VORNADO REALTY TRUST
By: /s/JOSEPH MACNOW
Name: Joseph Macnow
Title: Vice President and Chief
Financial Officer
<PAGE> 1
Exhibit 2
STANDSTILL AND CORPORATE GOVERNANCE AGREEMENT
THIS STANDSTILL AND CORPORATE GOVERNANCE AGREEMENT (the
"Agreement") dated as of February 6, 1995, by and among Alexander's, Inc.,
a Delaware corporation (the "Company"), Vornado Realty Trust, a Maryland
real estate investment trust ("Vornado"), and Interstate Properties, a New
Jersey general partnership ("Interstate").
W I T N E S S E T H
WHEREAS, Vornado and Interstate collectively own beneficially
and of record approximately 29.3% of the outstanding shares of common
stock, par value $1.00 per share, of the Company (the "Common Shares");
WHEREAS, Vornado and Citibank, N.A. ("Citibank") have entered
into an agreement (the "Citibank Agreement") pursuant to which Vornado will
acquire an additional approximately 27.1% of the outstanding Common Shares
from Citibank; and
WHEREAS, Vornado, Interstate and the Company desire to enter
into certain restrictions and agreements with respect to Vornado's and
Interstate's investments in the Company.
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE I.
STANDSTILL RESTRICTIONS
1.1. Standstill. During the term of this Agreement unless
approved by the Independent Directors (as hereinafter defined), Vornado and
Interstate will not, and will cause each of their respective Affiliates (as
such term is defined in Rule 12b-2 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) and Associates (as such term is
defined in Rule 12b-2 under the Exchange Act), whether or not any such
Affiliate or Associate was such on the date of this Agreement, not to:
(a) acquire, offer to acquire, or agree to acquire, directly
or indirectly (including repurchases by the Company), by purchase or
otherwise, any Common Shares or
<PAGE>
<PAGE> 2
direct or indirect rights or options to acquire (through purchase,
exchange, conversion or otherwise) any Common Shares, if such acquisition,
at the time it is made, together with the Common Shares otherwise owned
collectively by Vornado, Interstate and their respective Affiliates and
Associates (excluding the Company) (collectively, the "Vornado Group"),
would result in the Vornado Group's aggregate Beneficial Ownership (as such
term is defined in Rule 13d-3 under the Exchange Act) or record ownership
of Common Shares during the term of this Agreement exceeding 66.65% of the
then outstanding Common Shares; or
(b) sell, transfer, or otherwise dispose of any Common Shares
owned or subsequently obtained by each of them in the aggregate in excess
of the Permitted Transfer Amount, in one or a series of related
transactions, at a price or prices per Common Share in excess of 115% of
the average of the last reported sales price per Common Share, as reported
by the New York Stock Exchange, Inc. for the previous 20 trading days,
unless the transferee of such Common Shares irrevocably offers to purchase
the same pro rata percentage of the Common Shares of all other Beneficial
Owners of outstanding Common Shares, other than the members of the Vornado
Group, on the same terms and at the same price per Common Share, it being
understood that any transfers occurring within a 360-day period involving,
directly or indirectly, the same transferee or its Affiliates or Associates
or any other person who would constitute a "group" as defined in Exchange
Act Rule 13d-3 with any of the foregoing ("Related Parties") shall be
deemed to be part of a series of related transactions, but that
transactions with persons who are not Related Parties shall not be
considered a series of related transactions for purposes of this Section
1(b). "Permitted Transfer Amount" means the number of Common Shares
included in any transaction or related series of transactions which in the
aggregate is equal to the greater of (i) 30% of the outstanding Common
Shares or (ii) a majority of the Common Shares owned in the aggregate by
the Vornado Group, in each case at the time of such transfer or transfers.
Notwithstanding the foregoing, the members of the Vornado Group shall be
permitted to transfer any Common Shares pursuant to a broad public
distribution in an underwritten public offering registered under the
Securities Act of 1933, as amended.
<PAGE>
<PAGE> 3
ARTICLE II.
CORPORATE GOVERNANCE MATTERS
2.1. Directors. (a) During the term of this Agreement,
Interstate and Vornado agree to use their best efforts to cause the Board
of Directors of the Company to include three members who are Independent
Directors. For purposes hereof, a person shall be deemed to be an
"Independent Director" if he or she is not, or was not at any time during
the five years preceding his or her election as a director, (i) a member of
the Vornado Group, (ii) an Affiliate or Associate of any entity which
Beneficially Owns 25% or more of the voting securities of the Company,
(iii) an Affiliate or Associate of any entity who has had any material
business dealings with a member of the Vornado Group during such period or
(iv) a family member of any of the above-named persons. If the Independent
Director or Independent Directors so request, Interstate and Vornado agree
to use their best efforts to cause an individual or individuals chosen by
the remaining Independent Director or Independent Directors, who is
reasonably satisfactory to a majority of the remaining members of the
Company's Board of Directors, to fill the vacancy discussed in Section
2.1(b) or any vacancy caused by the resignation, removal or death of an
Independent Director. Any action to be taken by the Independent Directors
shall be taken by majority vote of the Independent Directors in office.
(b) The Parties hereto agree that on the date hereof, Stephen
Mann and Thomas DiBenedetto are the only members of the Board of Directors
of the Company who are Independent Directors. Interstate and Vornado agree
to use their best efforts to cause Messrs. Mann and DiBenedetto and a third
Independent Director designated by Messrs. Mann and DiBenedetto in
accordance with Section 2.1(a) to serve on the Board of Directors of the
Company as Independent Directors during the term of this Agreement. The
parties hereto further agree that the Independent Directors can only be
removed for "cause."
(c) The Company shall, and Interstate and Vornado agree to
use their best efforts to cause the Company to, provide the Independent
Directors with a reasonable budget to employ investment bankers,
independent counsel or other professionals that the Independent Directors
determine are necessary to carry out their responsibilities. The Company
shall maintain its current indemnification of officers and directors under
its Amended and Restated Certificate of Incorporation and By-Laws and shall
maintain its directors
<PAGE>
<PAGE> 4
and officers insurance to the extent available at current premiums (which
do not exceed $250,000 per annum).
(d) The Board of Directors has approved of the appointment of
Russell Wight and David Mandelbaum as members of the Company's Board of
Directors, to fill two of the three vacancies created by the resignations
of the Citibank designees.
2.2. Business Combinations and Other Affiliate Transactions.
During the term of this Agreement, Interstate and Vornado agree not to
cause the Company to engage in any transaction with a member of the Vornado
Group (i) that is described in or contemplated by the definition of
"business combination" contained in Section 203 of the Delaware General
Corporation Law, or (ii) in which any member of the Vornado Group has an
interest (other than as a stockholder of the Company), unless in each case,
such transaction has been approved by a majority of the Independent
Directors.
2.3. REIT Qualification. The Company agrees that it will not
knowingly take any action that will cause the Company to cease to qualify
as a real estate investment trust within the meaning of Section 856 of the
Internal Revenue Code of 1986, as amended, unless such action shall have
been approved by a majority of the Board of Directors of the Company.
2.4. Registration Rights. Upon the request of the Vornado
Group, the Company agrees to use its best efforts to cause a registration
statement to become effective under the Securities Act of 1933, as amended,
relating to the offer and sale of the Common Shares held by the Vornado
Group, on customary and usual terms to be agreed upon between the Company
and the Vornado Group. The parties hereto agree that, in connection with
such registration, the Vornado Group shall pay for all costs and expenses
relating to its legal fees, any blue sky fees and any underwriter discount,
and the Company shall pay for all costs and expenses relating to its legal
and accounting fees, and any printing or listing fees. Interstate and
Vornado agree that the Vornado Group shall not make more than one such
request during any twelve-month period nor request that the Company
register less than 10% of the outstanding Common Shares at any one time.
The Company shall have no liability to the Vornado Group if such
registration statement does not become effective for any reason, provided
that the Company has responded to such request in good faith.
2.5. Conduct of Company's Business. From the date hereof to
the earlier of (i) Closing or termination of
<PAGE>
<PAGE> 5
the Citibank Agreement or (ii) June 30, 1995, the Company shall not take
any action not approved by Vornado to (a) conduct its business other than
in the ordinary course, (b) amend its Amended and Restated Certificate of
Incorporation or its By-Laws, (c) declare, set aside or pay any dividend
payable in cash, stock or property with respect to the Company's common
stock, (d) issue, sell, pledge, dispose of or encumber any additional
shares of, or securities convertible or exchangeable for, or options,
warrants, calls, commitments or rights of any kind to acquire, the
Company's common stock, (e) acquire directly or indirectly by redemption or
otherwise any Common Shares, (f) incur any indebtedness for money borrowed,
(g) make or commit any expenditure (not previously committed) in excess of
$50,000 or (h) agree to do any of the foregoing.
2.6. Terms of Office. The Company will use its best efforts
to adjust the classes in which directors serve so that the Independent
Directors will stand for election at the next annual meeting of
shareholders.
ARTICLE III.
MISCELLANEOUS
3.1. Authorization and Enforceability. Each of the parties
hereto represents and warrants that it is duly authorized to execute and
deliver this Agreement and that this Agreement is a valid and binding
obligation of such party enforceable against such party in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the rights
of creditors generally and by general equitable principles.
3.2. Specific Performance. Interstate and Vornado acknowledge
that the Company would not have an adequate remedy at law for money damages
in the event that any of the covenants of Interstate and Vornado in this
Agreement were not performed in accordance with its terms and therefore
agree that the Company shall be entitled to specific enforcement of such
covenants in addition to any other remedy to which it may be entitled, at
law or in equity.
3.3. Term. If the closing of the Citibank Agreement occurs,
this Agreement shall terminate three years from the date of such closing.
If the closing of the Citibank Agreement has not occurred, this Agreement
shall terminate on the earlier of (i) termination of the Citibank
<PAGE>
<PAGE> 6
Agreement or (ii) June 30, 1995. This Agreement is effective immediately
except that Sections 2.1, 2.2, 2.4 and 2.6 shall not become effective until
the closing of the Citibank Agreement has occurred.
3.4. Waivers. The failure at any time of any party to require
performance by any other party of any responsibility or obligation required
by this Agreement shall in no way affect a party's right to require such
performance at any time thereafter, nor shall the waiver by the party of a
breach of any provision of this Agreement by any other party constitute a
waiver of any other breach of the same or any other provision of this
Agreement nor constitute a waiver of the responsibility or obligation
itself.
3.5. Assignability. This Agreement shall be binding upon and
inure to the benefit of the successors, heirs and legatees of each party
hereto, as appropriate. Neither this Agreement nor any right or obligation
hereunder may be assigned or delegated in whole or in part to any other
person without the prior written consent of the other parties.
3.6. Notices. In any case where any notice or other
communication is required or permitted to be given hereunder such notice or
communication shall be in writing and (a) personally delivered, (b) sent by
registered United States mail, postage prepaid, return receipt requested,
(c) transmitted by telecopy of (d) sent by way of a recognized overnight
courier service, postage prepaid, return receipt requested with
instructions to deliver on the next business day, in each case as follows:
If to the Company, to:
Alexander's Inc.
31 West 34th Street
New York, New York 10001
Attention: Brian Kurtz
Telecopy: (212) 695-4221
With copy to:
Stephen Mann
c/o Clifford Companies
292 Madison Avenue
New York, New York 10017
Telecopy: (212) 689-8490
<PAGE>
<PAGE> 7
and
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: Douglas Bartner, Esq.
Telecopy: (212) 848-7179
If to Vornado or Interstate, to or in care of:
Vornado Realty Trust
Park 80 West
Plaza II
Saddle Brook, NJ 07662
Attention: Steven Roth
Telecopy: (201) 587-0600
With copy to:
Sullivan & Cromwell
1701 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attention: Janet T. Geldzahler, Esq.
Telecopy: (202) 293-6330
All such notices or other communications shall be deemed to
have been given or received (i) upon receipt if personally delivered, (ii)
on the fifth day following posting if by registered United States mail,
(iii) when sent if by confirmed telecopy or (iv) on the next business day
following deposit with an overnight courier.
3.7. Choice of Law. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of
Delaware without giving effect to the principles of conflict of laws
thereof.
3.8. Severability. Should any provision of this Agreement be
deemed in contradiction with the laws of any jurisdiction in which it is to
be performed or unenforceable for any reason, such provision shall be
deemed null and void solely for the purpose of the performance thereof in
such jurisdiction, but this Agreement shall remain in force in all other
respects. Should any provision of this Agreement be or become ineffective
because of changes in applicable laws or interpretations thereof or should
this Agreement
<PAGE>
<PAGE> 8
fail to include a provision that is required as a matter of law, the
validity of the other provisions of this Agreement shall not be affected
thereby. If such circumstances arise, the parties hereto shall negotiate
in good faith appropriate modifications to this Agreement to reflect those
changes that are required by law.
3.9. Third Party Beneficiaries. In the event the Independent
Directors shall not be in office or the Company has failed to seek
enforcement of its rights or the rights of its shareholders under this
Agreement despite a demand by the Independent Directors that the Company do
so, the present and future beneficial owners of voting securities of the
Company are intended third party beneficiaries of this Agreement and any
such person may take such action as may deemed necessary or appropriate to
enforce the rights and obligations arising pursuant to this Agreement or to
obtain the benefits intended to be conferred hereby.
3.10. References to Agreement. Any reference herein to this
Agreement shall be deemed to be a reference to such Agreement as the same
may be modified, varied, amended or supplemented from time to time by the
parties in accordance with the provisions hereof. Unless the context
otherwise expressly requires, the words "herein," "hereof" and "hereunder"
and other words of similar importance refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision.
3.11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreement or
understanding between the parties hereto whether oral or written, with
respect to the matters contemplated hereby.
3.12. Headings, etc. The Article and Section headings in this
Agreement are intended for convenience of reference only and shall not
affect the interpretation of this Agreement. Whenever the context shall
require, each term stated in either the singular or plural shall include
the singular and the plural. References herein to masculine, feminine or
neuter pronouns shall be construed to refer to another gender when the
context may require.
3.13. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
3.14. Amendments and Waivers. This Agreement may be amended
or modified and any provision hereof may be
<PAGE>
<PAGE> 9
waived only by a written instrument approved by the Independent Directors
and executed by each of the parties or by their respective successors,
assigns, heirs and legatees, as appropriate.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first written above.
ALEXANDER'S, INC.
By:/s/STEPHEN MANN
Name: Stephen Mann
Title: Chairman
VORNADO REALTY TRUST
By:/s/JOSEPH MACNOW
Name: Joseph Macnow
Title: Vice President and Chief
Financial Officer
INTERSTATE PROPERTIES
By:/s/STEVEN ROTH
Name: Steven Roth
General Partner
