AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST __, 1996
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CALI REALTY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 22-3305147
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
11 COMMERCE DRIVE
CRANFORD, NEW JERSEY 07016
(908) 272-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF PRINCIPAL EXECUTIVE OFFICES)
JOHN J. CALI
CHAIRMAN OF THE BOARD
11 COMMERCE DRIVE
CRANFORD, NEW JERSEY 07016
(908) 272-8000
(908) 272-6755 (FACSIMILE)
(NAME AND ADDRESS OF AGENT FOR SERVICE)
COPIES TO:
JONATHAN A. BERNSTEIN, ESQ.
BLAKE HORNICK, ESQ.
PRYOR, CASHMAN, SHERMAN & FLYNN
410 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 421-4100
(212) 326-0806 (FACSIMILE)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: As soon as possible after the Registration Statement becomes
effective.
<PAGE>
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
[ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule
434, check the following box. [ ]
<TABLE>
<CAPTION>
Amount Proposed maximum Proposed maximum Amount of
Title of shares to to be aggregate price aggregate registration
be registered registered per unit * offering price * fee
------------- ---------- ---------- ---------------- ---
<S> <C> <C> <C> <C>
Common Stock 93,458 shares $23.56 $2,201,870.48 $759.27
($0.01 par value)
</TABLE>
* Estimated solely for the purpose of calculating the registration fee and
computed in accordance with Rule 457(c) upon the basis of the high and low
prices per share of the Registrant's Common Stock as reported by the New
York Stock Exchange on August 5, 1996.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
<PAGE>
PROSPECTUS
93,458 Shares
CALI REALTY CORPORATION
Common Stock
All of the 93,458 shares of common stock, $0.01 par value per share
(the "Common Stock"), of Cali Realty Corporation (together with its
subsidiaries, the "Company") offered hereby are offered for the account of the
shareholder named herein (the "Selling Shareholder"). See "Selling Shareholder."
The Company will not receive any proceeds from the sale of such Common Stock by
the Selling Shareholder. The 93,458 shares of Common Stock offered hereby are
referred to herein as the "Selling Shareholder Shares."
Shares of Common Stock may be sold from time to time by the Selling
Shareholder, or by pledgees, donees, transferees or other successors in
interest. Such sales may be made on the New York Stock Exchange (the "NYSE") or
other exchanges on which the Common Stock is then traded, in the
over-the-counter market, or otherwise at prices and at terms then prevailing or
at prices related to the then current market price, or in negotiated
transactions. The Selling Shareholder Shares may be sold in one or more of the
following transactions: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the Selling Shareholder Shares as agent but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and resale by the
broker or dealer for its account pursuant to this Prospectus; (c) an exchange
distribution in accordance with the rules of the exchange; and (d) ordinary
brokerage transactions and transactions in which the broker solicits purchasers.
In effecting sales, brokers or dealers engaged by the Selling Shareholder may
arrange for the other brokers or dealers to participate. Brokers or dealers may
receive commissions or discounts from the Selling Shareholder in amounts to be
negotiated immediately prior to the sale. These brokers or dealers and any other
participating brokers or dealers, as well as certain pledgees, donees,
transferees and other successors in interest, may be deemed to be "underwriters"
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), in connection with the sales. In addition, any securities covered by this
Prospectus that qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than pursuant to this Prospectus.
The aggregate proceeds to the Selling Shareholder from the sale of the
Selling Shareholder Shares will be the purchase price of the Selling Shareholder
Shares sold less the aggregate agents' commissions and underwriters' discounts,
if any. By agreement, the Company will pay substantially all of the expenses
incident to the registration of the Selling Shareholder Shares, except for
selling commissions associated with the sale of the Selling Shareholder Shares,
all of which will be paid by the Selling Shareholder.
The Common Stock is listed on the NYSE under the symbol "CLI." The
closing price of the Common Stock as reported on the NYSE on August 5, 1996, was
$23.75 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES OR COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT
PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
The date of this Prospectus is August __, 1996.
<PAGE>
No dealer, salesperson or any other person has been authorized to give
any information or to make any representations other than those contained in
this Prospectus in connection with the offer made by this Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company or the Selling Shareholder. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy the securities offered hereby in any jurisdiction in which such offer or
solicitation is not authorized, or to any person to whom it is unlawful to make
such offer or solicitation. Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any implication that any
information contained therein is correct as of any time subsequent to the date
hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The Registration
Statement, the exhibits and schedules forming a part thereof and the reports,
proxy statements and other information filed by the Company with the Commission
in accordance with the Exchange Act can be inspected and copied at the
Commission's public reference section, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at the following regional offices of the Commission:
Seven World Trade Center, 13th Floor, New York, New York 10048 and Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can also be obtained at prescribed rates by
writing to the public reference section of the Commission, 450 Fifth Street, N
W., Washington, D.C. 20549. The Commission maintains a Web Site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of the
Commission's Web site is: http://www.sec.gov. In addition, the Company's Common
Stock is listed on the NYSE and similar information concerning the Company can
be inspected and copied at the offices of the NYSE, 20 Broad Street, New York,
New York 10005.
The Company has filed with the Commission a registration statement (the
"Registration Statement") (of which this Prospectus is a part) under the
Securities Act with respect to the securities offered hereby. This Prospectus
does not contain all of the information set forth in the Registration Statement,
certain portions of which have been omitted as permitted by the rules and
regulations of the Commission. Statements contained in this Prospectus as to the
contents of any contract or other document are not necessarily complete, and in
each instance reference is made to the copy of such contract or other document
filed as an exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference and the exhibits and schedules
thereto. For further information regarding the Company and the securities
offered hereby, reference is hereby made to the Registration Statement and such
exhibits and schedules which may be obtained from the Commission at its
principal office in Washington, D.C. upon payment of the fees prescribed by the
Commission.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company under the
Exchange Act with the Commission and are incorporated herein by reference:
a. The Company's Annual Report on Form 10-K (File No. 1-13274) for the
fiscal year ended December 31, 1995;
b. The Company's Proxy Statement relating to the Annual Meeting of
Shareholders to be held on May 13, 1996;
c. The Company's Quarterly Report on Form 10-Q (File No. 1-13274) for
the fiscal quarter ended June 30, 1996;
d. The Company's Current Report on Form 8-K, dated July 16, 1996 (File
No. 1-13274); and
e. The description of the Common Stock and the description of certain
provisions of Maryland Law and of the Company's Articles of
Incorporation and Bylaws, both contained in the Company's Registration
Statement on Form 8-A, dated August 9, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of this offering shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing such
documents (provided, however, that the information referred to in Item 402(a)(8)
of Regulation S-K of the Commission shall not be deemed specifically
incorporated by reference herein).
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein (or in the applicable Prospectus Supplement) or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner of the securities
offered hereby to whom this Prospectus is delivered, upon written or oral
request. Requests should be made to Barry Lefkowitz, Vice President-Leasing and
Chief Financial Officer of the Company, 11 Commerce Drive, Cranford, New Jersey
07016-3501 (telephone number: (908) 272-8000).
THE COMPANY
Cali Realty Corporation (together with its subsidiaries, the "Company")
is a fully-integrated real estate investment trust ("REIT") that owns and
operates a portfolio comprised predominantly of Class A office and office/flex
buildings located primarily in New Jersey, as well as commercial real estate
leasing, management, acquisition, development and construction businesses. As of
June 30, 1996, the Company owned 100 percent of 42 properties encompassing
approximately 4.2 million square feet and a 327 unit multifamily residential
property (collectively, the "Properties"). The 42 properties are comprised of 29
office buildings containing an aggregate of 3.7 million square feet (the "Office
<PAGE>
Properties") and 13 office/flex buildings containing an aggregate of
approximately 500,000 square feet (the "Office/Flex Properties"). The Company
believes that its Properties have excellent locations and access and are
well-maintained and professionally managed. As a result, the Company believes
that its Properties attract high quality tenants and achieve among the highest
rents, occupancy and tenant retention rates within their markets. As of June 30,
1996, the Office Properties and Office/Flex Properties were approximately 97.0
percent leased to over 430 tenants.
The Company's strategy has been to focus its development and ownership
of properties in sub-markets where it is, or can become, a significant and
preferred owner and operator. The Company will continue this strategy by
expanding, primarily through acquisitions, initially into sub-markets where it
has, or can achieve, similar status. Management believes that the recent trend
towards increasing rental and occupancy rates in office buildings in the
Company's sub-markets presents significant opportunities for growth. The Company
may also develop properties in such sub-markets. Management believes that its ex
tensive market knowledge provides the Company with a significant competitive
advantage which is further enhanced by its strong reputation for and emphasis on
delivering highly responsive management services, including direct and continued
access to the Company's senior management.
Cali Associates was founded by John J. Cali, Angelo R. Cali and Edward
Leshowitz (the "Founders") who have been involved in the development, leasing,
management, operation and disposition of commercial and residential properties
in Northern and Central New Jersey for over 40 years and have been primarily
focusing on office building development for the past fifteen years. In addition
to the Founders, the Company's executive officers have been employed by the
Company and its predecessor for an average of approximately 10 years. The
Company and its predecessor have built approximately four million square feet of
office space, more than one million square feet of industrial facilities and
over 5,500 residential units.
The Company has elected to be taxed as a REIT for federal income tax
purposes and expects to continue to elect such status. Although the Company
believes that it was organized and has been operating in conformity with the
requirements for qualification under the Internal Revenue Code of 1986, as
amended (the "Code"), no assurance can be given that the Company will continue
to qualify as a REIT. Qualification as a REIT involves the application of highly
technical and complex Code provisions of which there are only limited judicial
or administrative interpretations. If in any taxable year the Company were to
fail to qualify as a REIT, the Company would not be allowed a deduction for
distributions to stockholders in computing taxable income and would be subject
to federal taxation at regular corporate rates. As a result, such a failure
would adversely affect the Company's ability to make distributions to its
stockholders and could have an adverse affect on the market value and
marketability of the Common Stock.
To ensure that the Company qualifies as a REIT, the transfer of shares
of Common Stock and Preferred Stock (as defined below) is subject to certain
restrictions, and ownership of capital stock by any single person is limited to
9.8 percent of the value of such capital stock, subject to certain exceptions.
The Company's Articles of Incorporation provide that any purported transfer in
violation of the above-described ownership limitations shall be void ab initio.
The shares of Common Stock of the Company are listed on the NYSE under
the symbol "CLI." The Company has paid regular quarterly distributions on its
Common Stock since it commenced operations as a REIT in 1994. The Company
intends to continue making regular quarterly distributions to its Common
<PAGE>
Stockholders. Distributions depend upon a variety of factors, and there can be
no assurance that distributions will be made.
All of the Company's interests in the Properties are held by, and its
operations are conducted through, Cali Realty, L.P., a Delaware limited
partnership (the "Operating Partnership"), or by entities controlled by the
Operating Partnership. As of June 30, 1996, the Company was the beneficial owner
of approximately 85 percent of the Operating Partnership and is its sole general
partner. As used herein, the term "Units" refers to limited partnership
interests in the Operating Partnership.
The Company was incorporated under the laws of Maryland on May 24,
1994, its executive offices are located at 11 Commerce Drive, Cranford, New
Jersey 07016, and its telephone number is (908) 272-8000.
USE OF PROCEEDS
The shares of Common Stock offered hereby are being registered for the
account of the Selling Shareholders and, accordingly, the Company will not
receive any proceeds from the sale of the Selling Shareholder Shares by the
Selling Shareholders.
SELLING SHAREHOLDER
The Selling Shareholder is M.B.M. Associates. None of the Selling
Shareholder Shares are presently issued and outstanding. All of the Selling
Shareholder Shares are issuable upon the redemption of Units. The Selling
Shareholder received its Units redeemable for the Selling Shareholder Shares in
March 1995, in connection with an acquisition by the Company from the Selling
Shareholder of an office building located in Bergen County, New Jersey. The
Selling Shareholder was granted 93,458 Units redeemable for 93,458 shares of
Common Stock of the Company. The Selling Shareholder will receive all of the net
proceeds from the sale of its Selling Shareholder Shares offered hereby. Because
the Selling Shareholder may sell all or part of their Selling Shareholder Shares
pursuant to this Prospectus, and this offering is not being underwritten on a
firm commitment basis, no estimate can be given as to the number and percentage
of shares of Common Stock that will be held by the Selling Shareholder upon
termination of the offering covered by this Prospectus.
PLAN OF DISTRIBUTION
The Selling Shareholder Shares may be sold from time to time by the
Selling Shareholder, or by pledgees, donees, transferees or other successors in
interest. Such sales may be made on the NYSE or other exchanges on which the
Common Stock is traded, in the over-the-counter market, or otherwise at prices
and at terms then prevailing or at prices related to the then current market
price, or in negotiated transactions. The Selling Shareholder Shares may be sold
in one or more of the following transactions: (a) a block trade in which the
broker or dealer so engaged will attempt to sell the Selling Shareholder Shares
as agent but may position and resell a portion of the block as principal to
facilitate the transaction; (b) purchases by a broker or dealer as principal and
resale by the broker or dealer for its account pursuant to this Prospectus; (c)
an exchange distribution in accordance with the rules of the exchange; and (d)
ordinary brokerage transactions and transactions in which the broker solicits
purchasers. In effecting sales, brokers or dealers engaged by the Selling
Shareholder may arrange for other brokers or dealers to participate. Any broker
or dealer to be utilized by the Selling Shareholder will be selected by such
Selling Shareholder. Brokers or dealers will receive commissions or discounts
<PAGE>
from the Selling Shareholder in amounts to be negotiated immediately prior to
the sale. These brokers or dealers and any other participating brokers or
dealers, as well as certain pledgees, donees, transferees and other successors
in interest, may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act in connection with the sales. In addition, any
securities covered by this Prospectus that qualify for sale pursuant to Rule 144
under the Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus.
Upon the Company being notified by the Selling Shareholder that any
material arrangement has been entered into with a broker-dealer for the sale of
Selling Shareholder Shares through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer, a
supplemental prospectus will be filed, if required, pursuant to Rule 424(c)
under the Securities Act, disclosing: (i) the name of each such Selling
Shareholder and of the participating broker-dealer(s), (ii) the number of
Selling Shareholder Shares involved, (iii) the price at which such Selling
Shareholder Shares were sold, (iv) the commissions paid or discounts or
concessions allowed to such broker-dealer(s), where applicable, (v) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this Prospectus and (vi) other facts
material to the transaction.
The Selling Shareholder reserves the sole right to accept and, together
with any agent of the Selling Shareholder, to reject in whole or in part any
proposed purchase of the Selling Shareholder Shares. The Selling Shareholder
will pay any sales commissions or other seller's compensation applicable to such
transactions.
To the extent required, the amount of the Selling Shareholder Shares to
be sold, purchase prices, public offering prices, the names of any agents,
dealers or underwriters, and any applicable commissions or discounts with
respect to a particular offer will be set forth by the Company in a prospectus
supplement accompanying this Prospectus or, if appropriate, a post-effective
amendment to the Registration Statement. The Selling Shareholder and agents who
execute orders on its behalf may be deemed to be underwriters as that term is
defined in Section 2(11) of the Securities Act and a portion of any proceeds of
sales and discounts, commissions or other seller's compensation may be deemed to
be underwriting compensation for purposes of the Securities Act.
Offers and sales of shares of the Common Stock have not been registered
or qualified under the laws of any country, other than the United States. To
comply with certain states' securities laws, if applicable, the Selling
Shareholder Shares will be offered or sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Selling Shareholder Shares may not be offered or sold unless they have been
registered or qualified for sale in such states or an exemption from
registration or qualification is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of shares of the Common Stock may not
simultaneously engage in market-making activities with respect to such shares of
Common Stock for a period of two to nine business days prior to the commencement
of such distribution. In addition to and without limiting the foregoing, the
Selling Shareholder and any other person participating in a distribution will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including without limitation, Rules 10b-2, 10b-6 and
10b-7, which provisions may limit the timing of purchases and sales of any of
the shares of Common Stock by the Selling Shareholder or any such other person.
<PAGE>
All of the foregoing may affect the marketability of the Common Stock and the
brokers' and dealers' ability to engage in market-making activities with respect
to the Common Stock.
The Company will pay substantially all of the expenses incident to the
registration of the shares of Common Stock offered hereby, estimated to be
approximately $25,000.
DESCRIPTION OF SECURITIES TO BE REGISTERED
General
The authorized capital stock of the Company consists of 95,000,000
shares of Common Stock, par value $0.01 per share, and 5,000,000 shares of
preferred stock, par value $0.01 per share (the "Preferred Stock"). At August 8,
1996, 15,206,361 shares of Common Stock were issued and outstanding; no shares
of Preferred Stock are outstanding as of the date hereof.
Each outstanding share of Common Stock will entitle the holder to one
vote on all matters presented to shareholders for a vote, subject to the
provisions of the Company's Articles of Incorporation regarding the ownership of
shares of Common Stock in excess of the Ownership Limit described below. Holders
of shares of Common Stock will have no preemptive rights or cumulative voting
rights. All shares of Common Stock to be outstanding following this offering
will be duly authorized, fully paid, and nonassessable. Distributions may be
paid to the holders of shares of Common Stock if and when declared by the Board
of Directors of the Company out of funds legally available therefor. The Company
has paid regular and uninterrupted quarterly dividends from the third quarter of
1994.
Under Maryland law, shareholders are generally not liable for the
Company's debts or obligations. If the Company is liquidated, subject to the
right of any holders of Preferred Stock to receive preferential distribution,
each outstanding share of Common Stock will be entitled to participate pro rata
in the assets remaining after payment of, or adequate provision for, all known
debts and liabilities of the Company, including debts and liabilities arising
out of its status of general partner of the Operating Partnership.
With certain exceptions, the Company's Articles of Incorporation
provide that no person may own, or be deemed to own by virtue of the attribution
rules of the Code, more than 9.8 percent of the value of the Company's issued
and outstanding shares of capital stock. See "-- Restrictions on Transfer"
below.
The registrar and transfer agent for the Company's Common Stock is
Chemical Mellon Shareholder Services, LLC.
Under the Company's Articles of Incorporation, shares of Preferred
Stock may be issued from time to time, in one or more series, as authorized by
the Board of Directors. Prior to the issuance of shares of each series, the
Board of Directors is required by the Maryland General Corporation Law (the
"MGCL") and the Company's Articles of Incorporation to adopt resolutions and
file Articles Supplementary with the State Department of Assessments and
Taxation of Maryland, fixing for each such series the designations, powers,
preferences and rights of the shares of such series and the qualifications,
limitations or restrictions thereon, including, but not limited to, dividend
rights, dividend rate or rates, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the redemption price or
prices, and the liquidation preferences as are permitted by Maryland law.
<PAGE>
Because the Board of Directors has the power to establish the terms and
conditions of each series of Preferred Stock, it may afford the holders of any
series of Preferred Stock power, preferences and rights, voting or otherwise,
senior to the rights of holders of shares of Common Stock. The issuance of
Preferred Stock could have the effect of delaying or preventing a change in
control of the Company.
Redemption Rights
Beginning on the first anniversary of the Company's initial public
offering of shares of its Common Stock which closed in August 1994 (the "IPO"),
persons who received Units in the Operating Partnership in exchange for certain
formation partnership interests at the time of the IPO (such persons hereinafter
being referred to as members of the "Cali Group"), received rights which enable
them to require the Operating Partnership to redeem part or all of their Units
for cash (based upon the fair market value of an equivalent number of shares of
Common Stock at the time of such redemption) or, at the election of the Company,
shares of Common Stock (on a one-for-one basis). The obligation to redeem the
Cali Group's Units may be assumed by the Company in exchange for, at the
Company's election, either cash or shares of Common Stock, provided that the
Company may not pay for such redemption with shares of Common Stock to the
extent that it would result in a member of the Cali Group beneficially or
constructively owning shares of Common Stock in excess of the Ownership Limit.
See "-- Restrictions on Transfer" below.
Restrictions On Transfer
Ownership Limits. The Company's Articles of Incorporation contain
certain restrictions on the number of shares of capital stock that individual
shareholders may own, directly or beneficially. For the Company to qualify as a
REIT under the Code, no more than 50 percent of the value of its outstanding
shares of capital stock may be owned, directly or indirectly, by five or fewer
individuals (as defined in the Code to include certain entities) during the last
half of a taxable year (other than the first year) or during a proportionate
part of a shorter taxable year. The capital stock must also be beneficially
owned by 100 or more persons during at least 335 days of a taxable year or
during a proportionate part of a shorter taxable year. Because the Company
expects to continue to qualify as a REIT, the Articles of Incorporation of the
Company contain restrictions on the direct and beneficial acquisition of capital
stock intended to ensure compliance with these requirements.
The Company's Articles of Incorporation, subject to certain exceptions,
provide that no holder may own, or be deemed to own by virtue of the attribution
provisions of the Code, more than 9.8 percent (the "Ownership Limit") of the
value of the issued and outstanding shares of capital stock. The Board of
Directors may exempt a person from the Ownership Limit if evidence satisfactory
to the Board of Directors or the Company's tax counsel is presented that such
ownership will not then or in the future jeopardize the Company's status as a
REIT. As a condition of such exemption, the intended transferee must give
written notice to the Company of the proposed transfer and must furnish such
opinions of counsel, affidavits, undertakings, agreements and information as may
be required by the Board of Directors no later than the 15th day prior to any
transfer which, if consummated, would result in the intended transferee having
the direct or beneficial ownership of shares in excess of the Ownership Limit.
The foregoing restrictions on transferability and ownership will not apply if
the Board of Directors determines that it is no longer in the best interests of
the Company to continue to qualify as a REIT. Any transfer of securities that
would: (i) create a direct or indirect ownership of shares of stock in excess of
<PAGE>
the Ownership Limit; (ii) result in the shares of stock being owned by fewer
than 100 persons; or (iii) result in the Company being "closely held" within the
meaning of Section 856(h) of the Code shall be null and void, and the transferor
will be deemed not to have transferred the shares.
The Company's Articles of Incorporation exclude from the Ownership
Limit shareholders who exceeded the Ownership Limit immediately following the
IPO.
In addition to the foregoing transfer restrictions, the Company will
have the right, for a period of 90 days during the time any Excess Stock is held
by the Company in trust, to purchase all or any portion of the Excess Stock from
the original transferee-stockholder for the lesser of the price paid for the
shares by the original transferee-stockholder or the market price (as determined
in the manner set forth in the Articles of Incorporation by reference to the
average closing sale price of the shares as reported on the NYSE) of the shares
on the date on which the Company exercises its option to purchase. The 90-day
period begins on the date on which the Company receives written notice of the
transfer or other event resulting in the exchange of shares for Excess Stock.
All certificates representing shares of Common Stock will bear a legend
referring to the restrictions described above.
Every owner of more than 5 percent (or such lower percentage as
required by the Code or regulations thereunder) of the issued and outstanding
shares of capital stock must file a written notice with the Company containing
the information specified in the Articles of Incorporation no later than January
31 of each year. In addition, every shareholder shall upon demand be required to
disclose to the Company in writing such information as the Company may request
in order to determine the effect of such shareholder's direct, indirect and
constructive ownership of such shares on the Company's status as a REIT.
The foregoing ownership limitations may have the effect of precluding
acquisition of control of the Company without the consent of the Board of
Directors.
LEGAL MATTERS
Certain legal matters in connection with this offering, including the
validity of the issuance of the shares of Common Stock offered hereby, will be
passed upon for the Company by Pryor, Cashman, Sherman & Flynn, New York, New
York.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K of the Company for the year ended December 31,
1995 have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting. The financial statements incorporated in this
Prospectus by reference to the Current Report on Form 8-K of the Company, dated
June 16, 1996, have been so incorporated in reliance on the report of
Schonbraun, Safris, Sternlieb & Co., L.L.C., independent accountants, given on
the authority of said firm as experts in auditing and accounting.
<PAGE>
================================================================================
93,458 Shares
CALI REALTY
CORPORATION
Common Stock
-----------------
PROSPECTUS
-----------------
August __, 1996
================================================================================
<PAGE>
No dealer, salesperson or any other person has been authorized to give
any information or to make any representations other than those contained in
this Prospectus in connection with the offer made by this Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company or the Selling Shareholder. This
Prospectus does not con stitute an offer to sell or a solicitation of an offer
to buy, the securities offered hereby in any jurisdiction in which such offer or
soli citation is not authorized, or to any person to whom it is unlawful to make
such offer or soli citation. Neither the delivery of this Prospec tus nor any
sale made hereunder shall, under any circumstances, create any implication that
any information contained therein is correct as of any time subsequent to the
date hereof.
================================================================================
TABLE OF CONTENTS
Available Information
Incorporation of Certain Documents by
Reference
The Company
Use of Proceeds
Selling Shareholder
Plan of Distribution
Description of Securities to be
Registered
Legal Matters
Experts
===============================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
Estimated expenses to be paid by the Company in connection with the
issuance and distribution of the securities being registered are as follows:
Registration Fee $ 759.27
Legal Fees and Expenses 15,000.00
Accounting Fees and Expenses 10,000.00
Miscellaneous 3,000.00
---------
Total $28,759.27
ITEM 15. Indemnification of Directors and Officers.
The Company's officers and directors are indemnified under Maryland law,
the Articles of Incorporation and the Amended and Restated Agreement of Limited
Partnership of the Operating Partnership (the "Partnership Agreement of the
Operating Partnership"), against certain liabilities. The Articles of
Incorporation require the Company to indemnify its directors and officers to the
fullest extent permitted from time to time by the laws of the State of Maryland.
The bylaws contain provisions which implement the indemnification provisions of
the Articles of Incorporation.
The Maryland General Corporation Law ("MGCL") permits a corporation to
indemnify its directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason of
their service in those capacities unless it is established that the act or
omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, or the director or officer actually received an improper
personal benefit in money, property or services, or in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful, or the director or officer was adjudged to be liable
to the corporation for the act or omission. No amendment of the Articles of
Incorporation of the Company shall limit or eliminate the right to
indemnification provided with respect to acts or omissions occurring prior to
such amendment or repeal. Maryland law permits the Company to provide
indemnification to an officer to the same extent as a director, although
additional indemnification may be provided if such officer is not also a
director.
The MGCL permits the articles of incorporation of a Maryland
corporation to include a provision limiting the liability of its directors and
officers to the corporation and its stockholders for money damages, with
specified exceptions. The MGCL does not, however, permit the liability of
directors and officers to the corporation or its stockholders to be limited to
the extent that (1) it is proved that the person actually received an improper
benefit or profit in money, property or services (to the extent such benefit or
profit was received) or (2) a judgment or other final adjudication adverse to
such person is entered in a proceeding based on a finding that the person's
action, or failure to act, was the result of active and deliberate dishonesty
<PAGE>
and was material to the cause of action adjudicated in the proceeding. The
Articles of Incorporation of the Company contain a provision consistent with the
MGCL. No amendment of the Articles of Incorporation shall limit or eliminate the
limitation of liability with respect to acts or omissions occurring prior to
such amendment or repeal.
The Partnership Agreement of the Operating Partnership also provides for
indemnification of the Company and its officers and directors to the same extent
indemnification is provided to officers and directors of the Company in its
Articles of Incorporation, and limits the liability of the Company and its
officers and directors to the Operating Partnership and its partners to the same
extent liability of officers and directors of the Company to its stockholders is
limited under the Company's Articles of Incorporation.
The Company has entered into indemnification agreements with each of its
directors and officers. The indemnification agreements require, among other
things, that the Company indemnify its directors and officers to the fullest
extent permitted by law, and advance to the directors and officers all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company also must indemnify and advance
all expenses incurred by directors and officers seeking to enforce their rights
under the indemnification agreements, and cover directors and officers under the
Company's directors' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by provisions of the Articles of Incorporation and the bylaws and
Partnership Agreement of the Operating Partnership, it provides greater
assurance to directors and officers that indemnification will be available,
because, as a contract, it cannot be modified unilaterally in the future by the
Board of Directors or by the stockholders to eliminate the rights it provides.
ITEM 16. Exhibits.
Exhibit No Description
4.1 Form of Common Stock certificate(1)
5.1 Opinion of Pryor, Cashman, Sherman & Flynn
10.1 Form of Registration Rights Agreement among the Company and the
persons named therein
23.1 Consent of Pryor, Cashman, Sherman & Flynn (included as part of
Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Schonbraun, Safris, Sternlieb & Co., L.L.C.
- ---------------
(1) Incorporated herein by reference to Exhibit 5.1 to the Company's
Registration Statement on Form 8-A filed with the Commission on August 9,
1994.
<PAGE>
ITEM 17. Undertakings.
(a) The undersigned Registrant also 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;
(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;
(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 (1)(i) and (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 by the Registrant
pursuant to Section 13 or section 15(d) of the Exchange Act, that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that its incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering hereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted against the Registrant by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
<PAGE>
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on August 9, 1996.
CALI REALTY CORPORATION
By: /s/ John J. Cali
---------------------
JOHN J. CALI
CHAIRMAN OF THE BOARD
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacitities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ John J. Cali Chairman of the Board August 9, 1996
- ----------------------------------
JOHN J. CALI
/s/ Thomas A. Rizk President, Chief Executive Officer, August 9, 1996
- ------------------------------ and Director
THOMAS A. RIZK
/s/ Barry Lefkowitz Vice President -- Finance and Chief August 9, 1996
- -------------------------------- Financial Officer
BARRY LEFKOWITZ
/s/ Angelo R. Cali Director August 9, 1996
- --------------------------------
ANGELO R. CALI
/s/ Edward Leshowitz Director August 9, 1996
- ------------------------------
EDWARD LESHOWITZ
/s/ Brendan T. Byrne Director August 9, 1996
- -------------------------------
BRENDAN T. BYRNE
<PAGE>
<CAPTION>
<S> <C> <C>
/s/ Kenneth A. DeGhetto Director August 9, 1996
- ------------------------------
KENNETH A. DeGHETTO
/s/ James W. Hughes Director August 9, 1996
- -------------------------------
JAMES W. HUGHES
/s/ Irvin D. Reid Director August 9, 1996
- -----------------------------------
IRVIN D. REID
/s/ Alan Turtletaub Director August 9, 1996
- -----------------------------------
ALAN TURTLETAUB
</TABLE>
<PAGE>
Exhibit
No. Description
- ------- -----------
4.1 Form of Common Stock certificate(1)
5.1 Opinion of Pryor, Cashman, Sherman & Flynn
10.1 Form of Registration Rights Agreement among the Company
and the persons named therein
23.1 Consent of Pryor, Cashman, Sherman & Flynn (included as
part of Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Schonbraun, Safris, Sternlieb & Co., L.L.C.
- ---------------
(1) Incorporated herein by reference to Exhibit 5.1 to the Company's
Registration Statement on Form 8-A filed with the Commission on August 9,
1994.
August 9, 1996
Cali Realty Corporation
11 Commerce Drive
Cranford, New Jersey 07016
Gentlemen:
We refer to the Registration Statement on Form S-3, File No 333 -______
(the "Registration Statement"), as filed by you with the Securities and Exchange
Commission with respect to the registration under the Securities Act of 1933, as
amended (the "Act"), of 93,458 shares (the "Shares"), $.01 par value per Share,
of the Common Stock of Cali Realty Corporation (the "Company"), for reoffer and
resale by a certain selling shareholder (the "Selling Shareholder") named
therein.
We are qualified to practice law in the State of New York. We express no
opinion as to, and, for the purposes of the opinion set forth herein, we have
conducted no investigation of, and do not purport to be experts on, any laws
other than the laws of the State of New York, the Maryland General Corporation
Law and the federal laws of the United States of America.
We have been advised that the Selling Shareholder acquired its right to
receive Shares in connection with an acquisition by the Company. Such rights
enable the Selling Shareholder to exchange certain limited partnership interests
("Units") in the operating partnership through which the Company conducts its
real estate activities (the "Operating Partnership") for Shares. We have
examined the Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, and such other documents as we considered necessary for
the purposes of this opinion. Based on such examination, it is our opinion that
the Shares have been duly authorized and, upon issuance upon redemption of
Units, will be legally issued, fully-paid and non-assessable under the laws of
the State of Maryland (the state of incorporation of the Company).
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Pryor, Cashman, Sherman & Flynn
-----------------------------------
Pryor, Cashman, Sherman & Flynn
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
March 1, 1995, is by and among CALI REALTY CORPORATION, a Maryland corporation
(the "Company"), and MBM Associates, a New Jersey general partnership (the
"Investor").
W I T N E S S E T H:
WHEREAS, pursuant to a Contribution and Exchange Agreement
dated March 1, 1995 by and between Cali Realty, L.P., a Delaware limited
partnership (the "Operating Partnership"), the Investor and 1717 Realty
Associates L.P., a New Jersey limited partnership ("1717 Associates"), the
Investor has agreed to transfer certain property to 1717 Associates and, in
consideration therefor, the Operating Partnership will issue to the Investor
units of limited partner interests (the "Units") in the Operating Partnership;
WHEREAS, the Units will be redeemable for unregistered shares
of common stock, par value $.01 per share, of the Company (the "Common Stock");
and
WHEREAS, the Company has agreed to provide the Investor with
certain registration rights as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms used
herein shall have the meanings set forth in the preambles hereto and in this
Section 1.
1.1 "Cali Group" shall mean those individuals and entities,
other than the Company, that received Units at the time of the initial public
offering of the Company.
1.2 "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time
administering the Securities Act.
1.3 "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
1.4 "Holder" shall mean any registered holder, from
time to time, of Registrable Securities.
1.5 "Initiating Holders" shall mean any Holder or Holders who,
in the aggregate, are Holders of Registrable Securities representing at least
fifty percent (50%) of the Registrable Securities then outstanding, and who
initiate a request pursuant to Section 3.1 below for the registration of all or
part of such Holder or Holders' Registrable Securities.
1.6 "Person" shall mean any individual, firm, corporation,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, government (or an agency or political subdivision thereof)
or other entity of any kind.
<PAGE>
1.7 "Register", "registered" and "registration" shall refer to
a registration effected by preparing and filing a registration statement with
the Commission in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement by the Commission.
1.8 "Registrable Securities" shall mean any of the following
which are held by any Investor and its permitted transferees: (a) shares of
Common Stock which are held by any Investor and its permitted transfereeson the
date hereof, (b) shares of Common Stock issued pursuant to a dividend
reinvestment plan adopted by the Company, (c) shares of Common Stock then
outstanding which were issued as, or upon the conversion or exercise of other
securities issued as, a dividend or other distribution with respect to or in
replacement of other Registrable Securities, (d) shares of Common Stock then
issuable upon the conversion or exercise of other securities which were issued
as a dividend or other distribution with respect to or in replacement of other
Registrable Securities, and (e) any equity securities of the Company issued or
issuable with respect to the securities referred to in clauses (a) through (d)
by way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization;
provided, however, that any such Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (ii) they shall have been sold as permitted by Rule 144 (or any
successor provision) under the Securities Act, (iii) they shall be eligible for
sale pursuant to Rule 144(k) (or any successor provision) under the Securities
Act as confirmed in a written opinion of counsel to the Company addressed to the
Investor and its permitted transferees, (iv) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent public
distribution of them shall not require registration of them under the Securities
Act, or (v) they shall have ceased to be outstanding. For purposes of this
Agreement, a Person will be deemed to be a holder of Registrable Securities
whenever such Person has the unqualified right to acquire such Registrable
Securities (by conversion, redemption or otherwise, but disregarding any legal
restrictions upon the exercise of such right), whether or not such acquisition
has actually been effected.
1.9 "Registration Expenses" shall mean all expenses incurred
by the Company in compliance with this Agreement, excluding underwriters'
discounts and commissions but including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel for the
Company, and the fees and expenses of one counsel for all Holders, all blue sky
fees and expenses, and the expense of any special audits incident to or required
by any such registration (but excluding the compensation of regular employees of
the Company, which shall be paid in any event by the Company).
1.10 "Securities Act" shall mean the Securities Act of 1933,
as amended, or any similar federal statute enacted hereafter, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
1.11 "Selling Expenses" shall mean all underwriting
discounts and commissions applicable to the sale of Registrable
Securities.
1.12 "1994 Registration Rights Agreement" shall mean that
certain Registration Rights Agreement dated as of August 31, 1994 by any among
the Company and the Cali Group.
<PAGE>
2. Company Registration.
2.1 If the Company shall determine to register any of its
shares of Common Stock or other securities ("Other Securities") issued by it
having terms substantially similar to the Common Stock, either for its own
account or the account of a security holder or holders exercising any demand
registration rights, other than a registration relating solely to employee
benefit plans or a registration relating solely to a Rule 145 (under the
Securities Act) transaction, the Company will:
(a) promptly give to each Holder written notice thereof (which
shall include a list of the jurisdictions in which the Company intends
to attempt to qualify such securities under the applicable blue sky or
other state securities laws); and
(b) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests made by any Holder within fifteen (15)
days after receipt of the written notice from the Company described in
clause (a) above, except as set forth in Section 3.3 below. Such
written request may specify all or a part of a Holder's Registrable
Securities.
2.2 Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.1(a). The right of any Holder to require registration
pursuant to this Section 2 shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and any officers, directors or Other Shareholders (as defined below)
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company. "Other Shareholders" shall
mean Persons who, by virtue of their agreements with the Company, are entitled
to include their securities in such registration.
2.3 Limitations on Shares to be Included. With respect to
Company registrations, notwithstanding any other provision of this Section 2, if
the representative of the underwriters advises the Company in writing that
marketing factors require a limitation or elimination on the number of shares to
be underwritten, the representative may (subject to the allocation priority set
forth below) limit the number of Registrable Securities to be included in the
registration and underwriting. The Company shall so advise all Holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated first, to the Company for securities being sold for its own account or
to the security holder or holders exercising any demand registration rights on
such security holder or holders' account, second, among all Persons requesting
registration pursuant to the terms of the 1994 Registration Rights Agreement,
and third, among all such Holders requesting registration and all officers,
directors or Other Shareholders (except as provided in clause second above)
requesting registration pursuant to the exercise of piggyback registration
rights, in each case in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities or other securities of the Company (the
"Additional Shares") which are held by officers or directors of the Company or
which are held by Persons ("Other Shareholders") which they had requested to be
<PAGE>
included in such registration at the time of filing the registration statement.
If any Holder of Registrable Securities or any officer, director or Other
Shareholder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the underwriter.
2.4 Withdrawal from Registration. Any Holder requesting
inclusion of Registrable Securities pursuant to this Section 2 may, at any time
prior to the effective date of the registration statement relating to such
registration, revoke such request by delivering written notice of such
revocation to the Company; provided, however, that if the Company, in
consultation with its financial and legal advisors, determines that such
revocation would materially delay the registration or otherwise require a
recirculation of the prospectus contained in the registration statement, then
such Holder shall have no such right to revoke its request. If the withdrawal of
any Registrable Securities or Additional Shares would allow, within the
marketing limitations set forth above, the inclusion in the underwriting of a
greater number of shares of Registrable Securities or Additional Shares, then,
to the extent practicable and without delaying the underwriting, the Company
shall offer to the Holders and to the Other Shareholders an opportunity to
include additional shares of Registrable Securities or Additional Shares, as the
case may be, in the proportions and in the priorities discussed in Section 2.3
above.
2.5 Termination or Withdrawal by Company. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 2 prior to the effectiveness of such registration whether or not
any Holder has elected to include securities in such registration.
2.6 Certain Shelf Registrations. The foregoing
notwithstanding, in the event that prior to March 1, 1996 (the "Anniversary
Date") the Company shall register, pursuant to the 1994 Registration Rights
Agreement, any of the shares of Common Stock then held or acquirable by members
of the Cali Group through a shelf registration statement pursuant to Rule 415
under the Securities Act, then, subject to the provisions of the last sentence
of this Section 2.6, the Company shall provide written notice of this event to
the Holders at least thirty (30) days prior to the Anniversary Date (or promptly
following the occurrence of such event if such event occurs within thirty (30)
days prior to the Anniversary Date) and shall, as soon as reasonably practicable
following the Anniversary Date, undertake to register the Registrable Securities
pursuant to a similar shelf registration statement such that the Holders shall
receive substantially similar registration rights as they would have received
had the Registrable Securities been included in the original shelf registration
statement. Notwithstanding anything in this Section 2.6 to the contrary, if at
the time the Company is obligated to register the Registrable Securities
pursuant to this Section 2.6 the Company determines, in the good faith judgment
of the Board of Directors of the Company, with the advice of counsel, that the
filing of such shelf registration statement would require the disclosure of
non-public material information the disclosure of which would have a material
adverse effect on the Company or would otherwise adversely affect a material
financing, acquisition, disposition, merger or other significant transaction,
the Company shall deliver a certificate to such effect signed by its President
or any Vice President to the Holders and the Company shall not be required to
effect a registration pursuant to this Section 2.6 until the earlier of (A) the
date upon which such material information is disclosed to the public or ceases
to be material or (B) 90 days after the Company makes such good faith
determination.
<PAGE>
3. Requested Registration.
3.1 Request for Registration. At any time on or after March 1,
2000, if any Registrable Securities are outstanding and the Holders (and any
prior holder) have not yet had the opportunity to register such shares pursuant
to Section 2 above, including without limitation pursuant to Section 2.6 above,
upon written notice from Initiating Holders requesting that the Company effect
any registration with respect to all or part of the Registrable Securities held
by such Initiating Holders, the Company shall (a) promptly give written notice
of the proposed registration to all other Holders (the "Demand Registration
Notice") and (b) as soon as practicable but not later than sixty (60) days after
receipt of the request from the Initiating Holders, use its best efforts and
take all appropriate action to effect such registration (including, without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualification under the blue sky or other state securities laws
requested by Initiating Holders and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request given within thirty (30) days
after receipt of the Demand Registration Notice; provided, however, that:
(i) in no event shall the Company be required to effect,
or to take any action to effect, more than one registration
pursuant to this Section 3;
(ii) if, upon receipt of a registration request pursuant
to this Section 3, the Company is advised in writing by a
nationally recognized independent investment banking firm
selected by the Company to act as lead underwriter in
connection with a public offering of securities by the Company
(a "Company Offering") that, in such firm's opinion, a
registration at the time and on the terms requested would
materially adversely affect such Company Offering that had
been contemplated by the Company prior to the notice by the
Initiating Holders, the Company shall not be required to
effect a registration pursuant to this Section 3 until the
earliest of (A) three months after the completion of such
Company Offering, (B) the termination of any "black out"
period, if any, required by the underwriters to be applicable
to any Holder who has requested to have any Registrable
Securities registered in connection with such registration,
(C) promptly after abandonment of such Company Offering or (D)
four months after the date of written notice from the
Initiating Holders demanding registration pursuant to this
Section 3; and
(iii) if, while a registration request is pending
pursuant to this Section 3, the Company determines, in the
good faith judgment of the Board of Directors of the Company,
with the advice of counsel, that the filing of a registration
statement would require the disclosure of non-public material
information the disclosure of which would have a material
adverse effect on the Company or would otherwise adversely
affect a material financing, acquisition, disposition, merger
or other significant transaction, the Company shall deliver a
certificate to such effect signed by its President or any Vice
President to the proposed selling Holders and the Company
<PAGE>
shall not be required to effect a registration pursuant to
this Section 3 until the earlier of (A) the date upon which
such material information is disclosed to the public or ceases
to be material or (B) 90 days after the Company makes such
good faith determination.
3.2 Additional Shares to be Included. The registration
statement filed pursuant to the request of the Initiating Holders may, subject
to the provisions of Section 3.5 below, include (a) Additional Shares which are
held by officers or directors of the Company or which are held Other
Shareholders who, by virtue of agreements with the Company, are entitled to
include their securities with the Holders referred to in Section 3.1 above, and
(b) securities of the Company being sold for the account of the Company (the
"Company Shares").
3.3 Withdrawal of Registration. If the Initiating Holders
inform the Company by written notice that they are withdrawing their
registration request made pursuant to Section 3.1 above and the Initiating
Holders pay all of the Company's out-of-pocket expenses with respect to such
registration incurred to the date of such notice, then the registration
statement need not be filed and all efforts pursuant to this Agreement will not
count as a registration (or an exercise of rights) under this Section 3;
provided, however, that if the Company decides to go forward with the
registration on its own behalf, or on behalf of any other shareholders, then the
Initiating Holders shall not be required to pay any of the Company's
out-of-pocket expenses and such registration will not count as a registration
(or an exercise of rights) under this Section 3.
3.4 Underwriting.
(a) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section 3 and the Company shall include
such information in the Demand Registration Notice, and such Demand
Registration Notice shall also state that any registration pursuant to
this Section 3 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable
Securities in the underwriting to the extent provided herein and
subject to the limitations provided herein. A Holder may elect to
include in such underwriting all or a part of such Holder's Registrable
Securities.
(b) The Company shall (together with all Holders, officers,
directors and Other Shareholders proposing to distribute their
securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the underwriter
or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders.
3.5 Limitations on Shares to be Included. Notwithstanding any
other provision of this Section 3, if the representative of the underwriters
advises the Company or the Initiating Holders in writing that marketing factors
require a limitation on the number of shares to be underwritten or that the
inclusion of Additional Shares or Company Shares may adversely affect the sale
price (of the shares to be registered) that may be obtained, first the
Additional Shares shall be excluded from such registration to the extent so
required by such limitation, then the Company Shares shall be excluded from such
registration to the extent so required by such limitation, and if a limitation
<PAGE>
of the number of shares is still required, the number of shares that may be
included in the registration and underwriting shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities which they have requested to be included in such
registration statement. If the Company or any Holder of Registrable Securities,
officer, director or Other Shareholder who has requested inclusion in such
registration as provided above disapproves of the terms of any such
underwriting, such Person may elect to withdraw such Person's Registrable
Securities, Additional Shares or Company Shares therefrom by written notice to
the Company, the underwriter and the Initiating Holders. If the withdrawal of
any Registrable Securities, Additional Shares or Company Shares would allow,
within the marketing limitations set forth above, the inclusion in the
underwriting of a greater number of shares of Registrable Securities or
Additional Shares, then, to the extent practicable and without delaying the
underwriting, the Company shall offer first to the Holders and second to the
Other Shareholders an opportunity to include additional shares of Registrable
Securities or Additional Shares, as the case may be, in the proportions
discussed above.
4. Expenses of Registration. All Registration Expenses incurred in
connection with the registration or qualification of, or compliance with, any
registration statement under Sections 2 and 3 of this Agreement shall be borne
by the Company. All Selling Expenses shall be borne pro rata by each Holder and
each Other Shareholder in accordance with the number of shares sold.
5. Registration Procedures.
5.1 In the case of each registration to be effected by the
Company pursuant to this Agreement, the Company will keep each Holder advised in
writing as to the initiation of each registration and all amendments thereto and
as to the completion thereof, advise any such Holder, upon request, of the
progress of such proceedings, use its best efforts to effect the registration of
any Registrable Securities under the Securities Act, and will, at its expense:
(a) Prepare and file with the Commission a registration
statement covering such Registrable Securities and use its best efforts
to cause such registration statement to be declared effective by the
Commission and to keep such registration effective for a period of one
hundred eighty (180) days or until the Holder or Holders have completed
the distribution described in the registration statement relating
thereto, whichever first occurs; provided, however, that the Company
shall keep such registration effective for longer than one hundred and
eighty (180) days if the costs and expenses associated with such
extended registration are borne by the selling Holders;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities
covered by such registration statement until such time as all of such
Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set
forth in such registration statement;
(c) Furnish to each seller of Registrable Securities covered
by such registration statement and each Holder two conformed copies of
such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
<PAGE>
the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents,
as such seller or Holder, as the case may be, may reasonably request;
(d) Promptly notify each seller of Registrable Securities
covered by such registration statement and each Holder at any time when
a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller,
prepare and furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such shares, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or incomplete
in the light of the circumstances then existing;
(e) Use its best efforts (i) to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky laws of
such states of the United States of America where an exemption is not
available and as the sellers of Registrable Securities covered by such
registration statement shall reasonably request, (ii) to keep such
registration or qualification in effect for so long as such
registration statement remains in effect and (iii) to take any other
action which may be reasonably necessary or advisable to enable such
sellers to consummate the disposition in such jurisdictions of the
securities to be sold by such sellers; provided, however, that the
Company shall not for any such purpose be required to (x) qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this clause (e) be
obligated to be so qualified, (y) subject itself to taxation in any
such jurisdiction or (z) consent to general service of process in any
such jurisdiction;
(f) Use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the
Company and counsel to the seller or sellers of Registrable Securities
to enable the seller or sellers thereof to consummate the disposition
of such Registrable Securities;
(g) Use its best efforts to list all such Registrable
Securities registered in such registration on each securities exchange
or automated quotation system on which the Common Stock of the Company
is then listed;
(h) Provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities and a CUSIP number for all
such Registrable Securities, in each case not later than the effective
date of such registration;
<PAGE>
(i) Make available for inspection by any seller of Registrable
Securities and each Holder, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney
or accountant retained by any such seller, Holder or underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information
reasonably requested by any such seller, Holder, underwriter, attorney
or accountant in connection with such registration statement, which
information shall be subject to reasonable restrictions concerning
confidentiality and non-disclosure;
(j) Furnish to each selling Holder upon request a signed
counterpart, addressed to the selling Holder, of
(i) an opinion of counsel for the Company, dated the
effective date of the registration statement and in form
reasonably acceptable to the Company and such Holder, and
(ii) "comfort" letters signed by the Company's
independent public accountants who have examined and reported
on the Company's financial statements included in the
registration statement, to the extent permitted by the
standards of the American Institute of Certified Public
Accountants.
In the case of (i) and (ii) covering substantially the same matters
with respect to the registration statement (and the prospectus included
therein) and (in the case of the accountants' "comfort" letters) with
respect to events subsequent to the date of the financial statements,
as are customarily covered in opinions of issuer's counsel and in
accountants' "comfort" letters delivered to the underwriters in
underwritten public offerings of securities;
(k) Furnish to each selling Holder a copy of all
correspondence from or to the Commission in connection with any such
offering;
(l) In the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included in
such registration statement for sale in any jurisdiction, the Company
will use its reasonable best efforts promptly to obtain the withdrawal
of such order; and
(m) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and, if required,
make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least
twelve months, but not more than eighteen months, beginning with the
first month after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder.
5.2 It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Agreement that the Holders
proposing to register Registrable Securities shall furnish to the Company such
information regarding them, the Registrable Securities held by them, and the
intended method of distribution of such Registrable Securities as the Company
<PAGE>
shall reasonably request and as shall be required in connection with the action
to be taken by the Company.
5.3 In connection with the preparation and filing of each
registration statement under this Agreement, the Company will give the Holders
on whose behalf such Registrable Securities are to be registered and their
underwriters, if any, and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each such Holder such
access to the Company's books and records and such opportunities to discuss the
business of the Company with its officers, its counsel and the independent
public accountants who have certified the Company's financial statements, as
shall be necessary, in the opinion of such Holders or such underwriters or their
respective counsel, in order to conduct a reasonable and diligent investigation
within the meaning of the Securities Act. Without limiting the foregoing, each
registration statement, prospectus, amendment, supplement or any other document
filed with respect to a registration under this Agreement shall be subject to
review and reasonable approval by the Holders registering Registrable Securities
in such registration and by their counsel.
6. Indemnification.
6.1 Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will indemnify and hold harmless each Holder, each of its officers,
directors, partners, employees, agents, attorneys and consultants and each
Person controlling such Holder, and each underwriter, if any, and each Person
who controls any underwriter, against all claims, losses, damages and
liabilities, joint and several (or actions, proceedings or settlements in
respect thereof) arising out of or based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based upon any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities Act or
any rule or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each such Holder,
each of its officers, directors and partners, and each Person controlling such
Holder, each such underwriter and each Person who controls any such underwriter,
for any legal and any other expenses reasonably incurred in connection with
investigating and defending or settling any such claim, loss, damage, liability
or action; provided, however, that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission made in reliance
upon and based upon written information furnished to the Company by such Holder
or underwriter and expressly stated to be specifically for use therein.
6.2 Indemnification by the Holders. Each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration, qualification or compliance is being effected,
severally and not jointly, indemnify the Company, each of its directors and
officers and each underwriter, if any, of the Company's securities covered by
such a registration statement, each Person who controls the Company (other than
such Holder) or such underwriter within the meaning of the Securities Act and
the rules and regulations thereunder, each other such Holder and each of their
officers, directors and partners, and each Person controlling such Holder or
<PAGE>
other stockholder, against all claims, losses, damages, expenses and liabilities
(or actions in respect thereof) arising out of or based upon any untrue
statement (or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company, each of its directors and officers, each underwriter
or control Person, each other Holder and each of their officers, directors and
partners and each Person controlling such Holder or other shareholder for any
legal or any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
and expressly stated to be specifically for use therein; provided, however, that
the liability of any such Holder under this Section 6.2 shall be limited to the
amount of proceeds received by such Holder in the offering giving rise to such
liability.
6.3 Notices of Claims, Procedures, etc. Each party entitled to
indemnification under this Section 6 (the "Indemnified Party") shall give notice
to the party required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom; provided,
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at the Indemnified Party's
sole expense; provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 6 unless such failure is prejudicial to the
ability of the Indemnifying Party to defend such claim or action.
Notwithstanding the foregoing, such Indemnified Party shall have the right to
employ its own counsel in any such litigation, proceeding or other action if (i)
the employment of such counsel has been authorized by the Indemnifying Party, in
its sole and absolute discretion, or (ii) the named parties in any such claims
(including any impleaded parties) include any such Indemnified Party and the
Indemnified Party and the Indemnifying Party shall have been advised in writing
(in suitable detail) by counsel to the Indemnified Party either (A) that there
may be one or more legal defenses available to such Indemnified Party which are
different from or additional to those available to the Indemnifying Party, or
(B) that there is a conflict of interest by virtue of the Indemnified Party and
the Indemnifying Party having common counsel, in any of which events, the legal
fees and expenses of a single counsel for all Indemnified Parties with respect
to each such claim, defense thereof, or counterclaims thereto, shall be borne by
the Indemnifying Party. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement (x) which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation, or (y) which requires action other than the payment of money by the
Indemnifying Party. Each Indemnified Party shall cooperate to the extent
reasonably required and furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
<PAGE>
6.4 Contribution. If the indemnification provided for in this
Section 6 shall for any reason be held by a court to be unavailable to an
Indemnified Party under Section 6.1 or 6.2 hereof in respect of any loss, claim,
damage or liability, or any action in respect thereof, then, in lieu of the
amount paid or payable under Section 6.1 or 6.2, the Indemnified Party and the
Indemnifying Party under Section 6.1 or 6.2 shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating the same), (i) in such
proportion as is appropriate to reflect the relative fault of the Company and
the prospective sellers of Registrable Securities covered by the registration
statement which resulted in such loss, claim, damage or liability, or action or
proceeding in respect thereof, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action or proceeding in
respect thereof, as well as any other relevant equitable considerations or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as shall be appropriate to reflect the relative benefits
received by the Company and such prospective sellers from the offering of the
securities covered by such registration statement; provided, that for purposes
of this clause (ii), the relative benefits received by the prospective sellers
shall be deemed not to exceed the amount of proceeds received by such
prospective sellers. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Such prospective sellers' obligations to contribute as
provided in this Section 6.4 are several in proportion to the relative value of
their respective Registrable Securities covered by such registration statement
and not joint. In addition, no Person shall be obligated to contribute hereunder
any amounts in payment for any settlement of any action or claim effected
without such Person's consent, which consent shall not be unreasonably withheld.
7. Information by Holder. Each Holder of Registrable Securities shall
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
8. Transfer or Assignment of Registration Rights. The ights with
respect to any Registrable Securities to cause the Company to register such
securities granted to a Holder by the Company under this Agreement may be
transferred or assigned by a stockholder, in whole or in part, to a transferee
or assignee of any Registrable Securities and, in such case, the Company shall
be given written notice stating the name and address of said transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned.
9. Rule 144 and Rule 144A. At such time as the Company becomes subject
to the reporting requirements of the Exchange Act, the Company shall file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder, and will
take all actions reasonably necessary to enable holders of Registrable
Securities to sell such securities without registration under the Securities Act
within the limitation of the provisions of (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, (b) Rule 144A under the
Securities Act, as such Rule may be amended from time to time, if applicable or
(c) any similar rules or regulations hereafter adopted by the Commission. Upon
the request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
<PAGE>
10.Specific Performance. Each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
11. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement.
Without limiting the generality of the foregoing, the Company will not hereafter
enter into any agreement with respect to its securities which grants, or modify
any existing agreement with respect to its securities to grant, to the holder of
its securities in connection with an incidental registration of such securities
higher priority to the rights granted to the Purchaser under Section 2 of this
Agreement; provided, however, the Company shall be entitled to enter into an
agreement which grants, or modify any existing agreement with respect to its
securities to grant, to the holder of its securities in connection with an
incidental registration of such securities equal priority to the rights granted
to the Purchaser under Section 2 of this Agreement.
12.Benefits of Agreement: Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, legal representatives and heirs; this
Agreement does not create, and shall not be construed as creating, any rights
enforceable by any other Person.
13. Complete Agreement. This Agreement constitutes the complete
understanding among the parties with respect to its subject matter and
supersedes all existing agreements and understandings, whether oral or written,
among them. No alteration or modification of any provisions of this Agreement
shall be valid unless made in writing and signed by a majority in interest of
the Holders.
14.Section Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.Notices. All notices, offers, acceptances and other communications
required or permitted to be given or to otherwise be made to any party to this
Agreement shall be deemed to be sufficient if contained in a written instrument
delivered by hand, first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, if to the Corporation, to it at Cali Realty Corporation, 11 Commerce
Drive, Cranford, New Jersey 07016, Attention: Thomas A. Rizk, Esq., with a copy
to Pryor, Cashman, Sherman & Flynn, 410 Park Avenue, New York, New York 10022,
Attention: Jonathan A. Bernstein, Esq., and if to any Holder, to the address of
such Holder as set forth in the stock transfer books of the Corporation.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and
the next business day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery. Any party may change the address to
which each such notice or communication shall be sent by giving written notice
to tie other parties of such new address in the manner provided herein for
giving notice.
<PAGE>
16.Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York without
giving effect to the provisions, policies or principles thereof respecting
conflict or choice of laws.
17.Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be deemed an original but all of which taken
together shall constitute one and the same agreement.
18. Severability. Any provision of this Agreement which is determined
to be illegal, prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such illegality, prohibition or
unenforceability without invalidating the remaining provisions hereof which
shall be severable and enforceable according to their terms and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first set forth above.
CALI REALTY CORPORATION
By:
Name:
Title:
MBM ASSOCIATES
By:
Name:
Title:
EXHIBIT 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Cali Realty
Corporation of our report dated February 15, 1996, except for Note 1, as to
which the date is March 12, 1996, appearing on page 38 on Form 10-K for the year
ended December 31, 1995. We also consent to the reference to us under the
heading "Experts" in such prospectus.
/s/ Price Waterhouse LLP
- ------------------------
Price Waterhouse LLP
New York, New York
August 9, 1996
EXHIBIT 23.3
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Cali Realty
Corporation of our report dated May 2, 1996, appearing on page 7 on Form 8-K
dated July 16, 1996. We also consent to the reference to us under the heading
"Experts" in such prospectus.
/s/ Schonbraun Safris Sternlieb & Co., L.L.C.
- ---------------------------------------------
Schonbraun Safris Sternlieb & Co., L.L.C.
West Orange, New Jersey
August 9, 1996
