AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST , 1996
REGISTRATION NO. 333-9081
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
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 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. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed maximum
Title of shares Amount to maximum aggregate Amount of
to be be aggregate price offering registration
registered registered per unit price(1) fee
---------- ---------- -------- -------- ---
<S> <C> <C>
Preferred $500,000,000 $172,413.79
Stock(2) (5) (6)
Common Stock(3)
Warrants(4)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee and
exclusive of accrued interest, if any.
(2) There are being registered hereunder an indeterminate number of shares
of Preferred Stock of the Registrant as may be sold, from time to time,
by the Registrant.
(3) There are being registered hereunder an indeterminate number of shares
of Common Stock of the Registrant as may be sold, from time to time, by
the Registrant. There are also being registered hereunder an
indeterminate number of shares of Common Stock of the Registrant as
shall be issuable upon conversion of or in exchange for convertible
Preferred Stock or Warrants registered hereby. No separate consideration
will be received for the Common Stock issuable upon conversion of or in
exchange for convertible Preferred Stock or Warrants.
(4) There are being registered hereunder an indeterminate number of Warrants
to purchase either Preferred Stock or Common Stock of the Registrant as
may be sold, from time to time, by the Registrant. Warrants may be sold
separately or with the Preferred Stock or Common Stock.
<PAGE>
(5) Or an equivalent amount in another currency or currencies or as
determined by reference to an index or, if the securities are to be
offered at a discount, the approximate proceeds to the Registrant.
(6) Calculated in accordance with Rule 457(o) under the Securities Act of
1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth estimated expenses (except for
Commission and NASD fees) to be incurred in connection with the issuance and
distribution of the securities being registered.
Commission Registration Fee $172,413.79
NASD Fee 0
NYSE Listing Fee 14,800,00
Printing and Engraving Expenses 50,000.00
Legal Fees and Expenses (other than Blue Sky) 250,000.00
Accounting Fees and Expenses 175,000.00
Blue Sky Fees and Expenses (including fees of counsel) 5,000.00
Miscellaneous 10,000.00
----------
Total $677,213.79
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's officers and directors are indemnified under Maryland
law, the Articles of Incorporation and the Amended and Restated Agreement of
Limited Partnership of the Operating Partnership (the "Partnership Agreement of
the Operating Partnership"), against certain liabilities. The Articles of
Incorporation require the Company to indemnify its directors and officers to the
fullest extent permitted from time to time by the laws of the State of Maryland.
The bylaws contain provisions which implement the indemnification provisions of
the Articles of Incorporation.
The Maryland General Corporation Law ("MGCL") permits a corporation to
indemnify its directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason of
their service in those capacities unless it is established that the act or
omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, or the director or officer actually received an improper
personal benefit in money, property or services, or in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful, or the director or officer was adjudged to be liable
to the corporation for the act or omission. No amendment of the Articles of
Incorporation of the Company shall limit or eliminate the right to
indemnification provided with respect to acts or omissions occurring prior to
such amendment or repeal. Maryland law permits the Company to provide
indemnification to an officer to the same extent as a director, although
additional indemnification may be provided if such officer is not also a
director.
The MGCL permits the articles of incorporation of a Maryland
corporation to include a provision limiting the liability of its directors and
officers to the corporation and its stockholders for money damages, with
specified exceptions. The MGCL does not, however, permit the liability of
directors and officers to the corporation or its stockholders to be limited to
<PAGE>
the extent that (1) it is proved that the person actually received an improper
benefit or profit in money, property or services (to the extent such benefit or
profit was received) or (2) a judgment or other final adjudication adverse to
such person is entered in a proceeding based on a finding that the person's
action, or failure to act, was the result of active and deliberate dishonesty
and was material to the cause of action adjudicated in the proceeding. The
Articles of Incorporation of the Company contain a provision consistent with the
MGCL. No amendment of the Articles of Incorporation shall limit or eliminate the
limitation of liability with respect to acts or omissions occurring prior to
such amendment or repeal.
The Partnership Agreement of the Operating Partnership also provides
for indemnification of the Company and its officers and directors to the same
extent indemnification is provided to officers and directors of the Company in
its Articles of Incorporation, and limits the liability of the Company and its
officers and directors to the Operating Partnership and its partners to the same
extent liability of officers and directors of the Company to its stockholders is
limited under the Company's Articles of Incorporation.
The Company has entered into indemnification agreements with each of
its directors and officers. The indemnification agreements require, among other
things, that the Company indemnify its directors and officers to the fullest
extent permitted by law, and advance to the directors and officers all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company also must indemnify and advance
all expenses incurred by directors and officers seeking to enforce their rights
under the indemnification agreements, and cover directors and officers under the
Company's directors' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by provisions of the Articles of Incorporation and the bylaws and
Partnership Agreement of the Operating Partnership, it provides greater
assurance to directors and officers that indemnification will be available,
because, as a contract, it cannot be modified unilaterally in the future by the
Board of Directors or by the stockholders to eliminate the rights it provides.
<PAGE>
ITEM 16. EXHIBITS.
Exhibit
No. Description
1.1 Form of Underwriting Agreement for equity securities (1)
3.1 Amended and Restated Articles of Incorporation of Cali Realty
Corporation, incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-11 (Registration
No. 33-79892)
3.2 Articles of Amendment to the Amended and Restated Articles of
Incorporation of Cali Realty Corporation
3.3 Amended and Restated Bylaws of Cali Realty Corporation,
incorporated by reference to Exhibit 3.4 to the Company's
Registration Statement on Form S-11 (Registration No.
33-79892)
4.1 Form of Common Stock certificate, incorporated by reference to
Exhibit 5.1 to the Company's Registration Statement on Form
8-A, filed with the Commission on August 9, 1994
4.2 Form of Common Stock Warrant Agreement (1)
4.3 Form of Articles Supplementary for the Preferred Stock (1)
4.4 Form of Preferred Stock Certificate (1)
4.7 Form of Preferred Stock Warrant Agreement (1)
5.1 Opinion of Swidler & Berlin, Chartered regarding the validity
of the securities being registered
8.1 Opinion of Pryor, Cashman, Sherman & Flynn regarding tax
matters
12.1 Calculation of Ratios of Earnings to Fixed Charges (2)
23.1 Consent of Swidler & Berlin, Chartered (included as part of
Exhibit 5.1)
23.2 Consent of Pryor, Cashman, Sherman & Flynn (included as part
of Exhibit 8.1)
23.3 Consent of Price Waterhouse LLP
23.4 Consent of Schonbraun, Safris, Sternlieb & Co., L.L.C. (2)
- ---------------
(1) To be filed by amendment.
(2) Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the
Underwriters, at the Closing specified in the Underwriting Agreement,
certificates in such denominations and registered in such names as required by
the Underwriters to permit prompt deliver to each purchaser.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of the registration
statement as of the time it was declared effective.
<PAGE>
(2) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned Registrant also hereby undertakes:
(1) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that its incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering hereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted against the Registrant by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on this 28th day of July,
1996.
CALI REALTY CORPORATION
By: /s/ JOHN J. CALI
----------------
JOHN J. CALI
CHAIRMAN OF THE BOARD
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Dated: August 9, 1996 /s/ Thomas A. Rizk
------------------
Thomas A. Rizk
President, Chief Executive
Officer and Director
Dated: August 9, 1996 /s/ Barry Lefkowitz
-------------------
Barry Lefkowitz
Vice President - Finance and
Chief Financial Officer
Dated: August 9, 1996 /s/ Angelo R. Cali
------------------
Angelo R. Cali
Director
Dated: August 9, 1996 /s/ Edward Leshowitz
--------------------
Edward Leshowitz
Director
Dated: August 9, 1996 /s/ Brendan T. Byrne
--------------------
Brendan T. Byrne
Director
Dated: August 9, 1996 /s/ Kenneth A. DeGhetto
-----------------------
Kenneth A. DeGhetto
Director
<PAGE>
Dated: August 9, 1996 /s/ James W. Hughes
-------------------
James W. Hughes
Director
Dated: August 9, 1996 /s/ Irvin D. Reid
-----------------
Irvin D. Reid
Director
Dated: August 9, 1996 /s/ Alan Turtletaub
-------------------
Alan Turtletaub
Director
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
1.1 Form of Underwriting Agreement for equity securities (1)
3.1 Amended and Restated Articles of Incorporation of
Cali Realty Corporation, incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement
on Form S-11 (Registration No. 33-79892)
3.2 Articles of Amendment to the Amended and Restated
Articles of Incorporation of Cali Realty Corporation
3.3 Amended and Restated Bylaws of Cali Realty
Corporation, incorporated by reference to Exhibit 3.4
to the Company's Registration Statement on Form S-11
(Registration No. 33-79892)
4.1 Form of Common Stock certificate, incorporated by reference to Exhibit
5.1 to the Company's Registration Statement on Form 8-A, filed with
the Commission on August 9, 1994
4.2 Form of Common Stock Warrant Agreement (1)
4.3 Form of Articles Supplementary for the Preferred Stock (1)
4.4 Form of Preferred Stock Certificate (1)
4.7 Form of Preferred Stock Warrant Agreement (1)
5.1 Opinion of Swidler & Berlin, Chartered regarding the
validity of the securities being registered
8.1 Opinion of Pryor, Cashman, Sherman & Flynn regarding
tax matters
12.1 Calculation of Ratios of Earnings to Fixed Charges (2)
23.1 Consent of Swidler & Berlin, Chartered (included as part
of Exhibit 5.1)
23.2 Consent of Pryor, Cashman, Sherman & Flynn (included as
part of Exhibit 8.1)
23.3 Consent of Price Waterhouse LLP (2)
23.4 Consent of Schonbraun, Safris, Sternlieb & Co., L.L.C. (2)
- ---------------
(1) To be filed by amendment.
(2) Previously filed.
ARTICLES OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
CALI REALTY CORPORATION
CALI REALTY CORPORATION, a Maryland corporation (the
"Corporation"), with its principal office in the State of Maryland c/o United
Corporate Services, Inc., 20 South Charles Street, Baltimore, Maryland 21201,
hereby certifies to the State Department of Assessments and Taxation of
Maryland, that:
FIRST: The charter of the Corporation is hereby amended by
deleting in its entirety existing Article IV, Section I, of the Amended and
Restated Articles of Incorporation, and inserting in lieu thereof the following:
"Authorized Shares. The total number of shares of stock which the
Corporation has authority to issue is 100,000,000 shares, of which
95,000,000 shares are shares of Common Stock, $.01 par value per share
("Common Stock") and 5,000,000 shares are shares of Preferred Stock,
$.01 par value per share ("Preferred Stock"). The aggregate par value
of all authorized shares of stock having par value is $1,000,000."
SECOND: The Board of Directors of the Corporation on March 5,
1996, duly adopted a resolution in which was set forth the foregoing amendment
to the charter, declaring that said amendment to the charter as proposed was
advisable and directing that it be submitted for action thereon by the
stockholders of the Corporation at the annual meeting to be held on May 13,
1996.
THIRD: Notice setting forth the said amendment of the charter
and stating that a purpose of the meeting of the stockhold ers would be to take
action thereon, was given, as required by law, to all stockholders entitled to
vote thereon. The amendment of the charter of the Corporation as hereinabove set
forth was approved by the stockholders of the Corporation at said meeting by the
affirmative vote of at least two-thirds of all the votes entitled to be cast
thereon.
FOURTH: The amendment of the charter of the Corporation as
hereinabove set forth has been duly adopted by the Board of Directors and
approved by the stockholders of the Corporation.
FIFTH: (a) The total number of shares of all classes of stock
which the Corporation was heretofore authorized to issue is 30,000,000 shares,
consisting of 25,000,000 shares of Common Stock, $.01 par value per share, and
5,000,000 shares of Preferred Stock, $.01 par value per share, with an aggregate
par value of $300,000.
(b) The total number of shares of all classes of stock
is increased by this amendment to 100,000,000 shares, consisting of 95,000,000
shares of Common Stock, $.01 par value per share, and 5,000,000 shares of
Preferred Stock, $.01 par value per share, with an aggregate par value of
$1,000,000.
<PAGE>
SIXTH: The information required by subsection (b)(2)(i) of
Section 2-607 of the Maryland General Corporation Law was not changed by the
amendment to the charter of the Corporation as hereinabove set forth.
IN WITNESS WHEREOF, Cali Realty Corporation, has caused these
presents to be signed in its name and on its behalf by its President and
witnessed by its Secretary on May 13, 1996.
CALI REALTY CORPORATION
By: /s/ Thomas A. Rizk
------------------
Thomas A. Rizk, President, Chief
Executive Officer and Director
Witness:
/s/ Brant Cali
- --------------
Brant Cali, Chief Operating
Officer and Secretary
<PAGE>
THE UNDERSIGNED, President of Cali Realty Corporation, who executed on
behalf of said corporation the foregoing Articles of Amendment, of which this
certificate is made a part, hereby acknowledges, in the name and on behalf of
said corporation, the foregoing Articles of Amendment to be the corporate act of
said corporation and further certifies that, to the best of his knowledge,
information and belief, the matters and facts set forth therein with respect to
the approval thereof are true in all material respects, under the penalties of
perjury.
/s/ Thomas A. Rizk
------------------
Thomas A. Rizk, President, Chief
Executive Officer and Director
Cali Realty Corporation
August 5, 1996
Page 1
August 5, 1996
Cali Realty Corporation
11 Commerce Drive
Cranford, New Jersey 07016
Re: Cali Realty Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as Maryland counsel to Cali Realty Corporation, a
Maryland corporation (the "Company"), in connection with the filing by the
Company with the Securities and Exchange Commission of a Registration Statement
on Form S-3 (the "Registration Statement"), under the Securities Act of 1933, as
amended, relating to the proposed issuance of up to $500,000,000 in aggregate
public offering price of the Company's preferred stock, par value $.01 per share
("Preferred Stock"), common stock, par value $.01 per share ("Common Stock"),
warrants to purchase Preferred Stock ("Preferred Stock Warrants"), and warrants
to purchase Common Stock ("Common Stock Warrants," and, together with Preferred
Stock Warrants, Preferred Stock and Common Stock, "Offered Securities").
Capitalized terms defined in the Registration Statement and not otherwise
defined herein are used herein with the meanings as so defined.
In so acting, we have examined the Registration Statement and such
corporate records, certificates, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of the Company as we have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents, and the
conformity of final documents to the forms submitted to us for review. We have
relied upon the representations and statements of officers and other
representatives of the Company with respect to the factual determinations
underlying the legal conclusions set forth herein. We have not attempted to
verify independently such representations and statements.
<PAGE>
Cali Realty Corporation
August 5, 1996
Page 2
Based on the foregoing, and subject to the assumptions and
qualifications stated herein, we are of the opinion that:
1. The Common Stock, when (a) duly authorized by appropriate
resolutions of the Company's Board of Directors, and (b) issued, sold and
delivered in the manner and for the consideration stated in the Registration
Statement and any prospectus supplement relating thereto, will be legally
issued, fully paid and nonassessable.
2. When (a) the terms of the Preferred Stock have been established in
accordance with (i) the Articles of Incorporation of the Company, (ii) the
Registration Statement and any prospectus supplement relating thereto, (iii)
duly adopted resolutions of the Company's Board of Directors, and (iv)
appropriate Articles Supplementary (incorporating the form of Articles
Supplementary provisions filed as Exhibit 4.3 to the Registration Statement),
duly adopted, executed, filed with and accepted for record by the Maryland State
Department of Assessments and Taxation, and (b) the Preferred Stock has been
issued, sold and delivered in the manner and for the consideration stated in the
Registration Statement, any prospectus supplement relating thereto and the
appropriate Articles Supplementary, the Preferred Stock will be legally issued,
fully paid and nonassessable.
3. When (a) one or more warrant agreements (incorporating the form of
Common Stock Warrant Agreement provisions filed as Exhibit 4.2 to the
Registration Statement) under which the Common Stock Warrants will be issued
have been duly executed and delivered by the Company and a warrant agent, (b)
the terms of the Common Stock Warrants have been established in accordance with
the appropriate warrant agreement and duly adopted resolutions of the Company's
Board of Directors authorizing the issue and sale of the Common Stock Warrants
and reserving an appropriate number of shares of Common Stock to be issued upon
the exercise of the Common Stock Warrants, (c) the Common Stock Warrant
certificates have been executed and authenticated in accordance with the terms
of the appropriate warrant agreement and (d) the Common Stock Warrants have been
issued, sold and delivered in the manner and for the consideration stated in the
Registration Statement, any prospectus supplement relating thereto and the
appropriate warrant agreement, the Common Stock Warrants will be legal, valid
and binding obligations of the Company and the shares of Common Stock that may
be issuable upon the exercise of such Common Stock Warrants, when so issued in
accordance with the terms of the appropriate warrant agreement and against
payment of the exercise price or other consideration set forth therein, will be
legally issued, fully paid and nonassessable.
4. When (a) one or more warrant agreements (incorporating the form of
Preferred Stock Warrant Agreement provisions filed as Exhibit 4.7 to the
Registration Statement) under which the Preferred Stock Warrants will be issued
have been duly executed and delivered by the Company and a warrant agent, (b)
the terms of the Preferred Stock Warrants have been established in accordance
with the appropriate warrant agreement and duly adopted resolutions of the
Company's Board of Directors authorizing the issue and sale of the Preferred
Stock Warrants and ing an appropriate number of shares of Preferred Stock to be
issued upon reserving an appropriate number of shares of Preferred Stock to be
issued upon the exercise of the Preferred Stock Warrants, (c) the Preferred
Stock Warrant certificates have been executed and authenticated in accordance
with the terms of the appropriate warrant agreement and (d) the Preferred Stock
<PAGE>
Cali Realty Corporation
August 5, 1996
Page 3
Warrants have been issued, sold and delivered in the manner and for the
consideration stated in the Registration Statement, any prospectus supplement
relating thereto and the appropriate warrant agreement, the Preferred Stock
Warrants will be legal, valid and binding obligations of the Company and the
shares of Preferred Stock that may be issuable upon the exercise of such
Preferred Stock Warrants, when so issued in accordance with the terms of the
appropriate warrant agreement and against payment of the exercise price or other
consideration set forth therein, will be legally issued, fully paid and
nonassessable.
Our opinion is strictly limited to the Maryland General Corporation
Law, excluding Maryland securities or "Blue Sky" laws, as currently in effect.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. We further consent to any and all references to our firm
as Maryland counsel in the Prospectus which is a part of the Registration
Statement.
This opinion is rendered solely for your benefit in connection with the
transactions described above upon the understanding that we are not hereby
assuming any professional responsibility to any other person. This opinion may
not be relied upon by any other person and this opinion may not be used,
disclosed, quoted, filed with a governmental agency or otherwise referred to
without our express prior written consent. The opinions expressed in this letter
are limited to the matters expressly set forth herein, and no other opinions
should be inferred beyond the matters expressly stated herein.
Very truly yours,
/s/ Swidler & Berlin, Chartered
-------------------------------
SWIDLER & BERLIN, CHARTERED
Cali Realty Corporation
8/8/96
Page 1
August 8, 1996
Cali Realty Corporation
11 Commerce Drive
Cranford, NJ 07016
Re: Certain Federal Income Tax Matters
Ladies and Gentlemen:
We have acted as tax counsel to Cali Realty Corporation (the "Company")
in connection with the Prospectus included as part of that certain Registration
Statement on Form S-3 filed with the Securities and Exchange Commission and as
amended through the date hereof (the "Registration Statement"). In connection
therewith, you have requested our opinion with respect to the qualification of
the Company as a real estate investment trust ("REIT") under the Internal
Revenue Code of 1986, as amended (the "Code") and the accuracy of the discussion
included in the Registration Statement under the heading "Federal Income Tax
Considerations."
We hereby consent to the use of our opinions as an Exhibit to the
Registration Statement and to any and all references to our firm in the
Prospectus that is a part of the Registration Statement, which Prospectus will
be delivered to prospective purchasers of securities of the Company, and we
hereby consent to such use of our opinion. All defined terms used herein shall
have the same meaning as used in the Registration Statement.
FACTS AND ASSUMPTIONS RELIED UPON
In rendering the opinions expressed herein, we have examined the
Articles of Incorporation and Bylaws of the Company, and such other records,
certificates and documents as we have deemed necessary or appropriate for
purposes of rendering the opinions set forth herein.
In our examination of documents, we have assumed, with your consent,
that all documents submitted to us are authentic originals, or if submitted as
photocopies, that they faithfully reproduce the originals thereof, that all such
documents have been or will be duly executed to the extent required, that all
representations and statements set forth in such documents are true and correct,
and that all obligations imposed by any such on the parties thereto have been or
will be performed or satisfied in accordance with their terms. We have also
assumed, without investigation, that all documents, certificates, warranties and
covenants on which we have relied in rendering the opinions set forth below and
that were given or dated earlier than the date of this letter continue to remain
accurate, insofar as relevant to the opinions set forth herein, from such
earlier date through and including the date of this letter.
We have reviewed the Registration Statement and the descriptions set
forth therein of the Company and its investments and activities. We have relied
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8/8/96
Page 2
upon the representations of the Company and its affiliates regarding the manner
in which the Company has been and will continue to be owned and operated. We
have also relied upon the representations of the accountants for the Company
regarding the type and amount of income reviewed by the Company during its
taxable year ended December 31, 1995 and the character and amount of
distributions made with respect to its taxable year ended December 31, 1995, and
the representations similarly made with respect to prior years of the Company.
We note that for its taxable year ending December 31, 1995, the Company elected
to treat consent dividends declared in January 1996 as having been paid during
its 1995 taxable year pursuant to Section 858 of the Code. We have neither
independently investigated nor verified such representations, and we assume that
such representations are true, correct and complete and that all representations
made "to the best of the knowledge and belief" of any person(s) or party(ies)
are and will be true, correct and complete as if made without such
qualification. We assume that the Company has been and will be operated in
accordance with applicable laws and the terms and conditions of applicable
documents, and the descriptions of the Company and its investments, and the
proposed investments, activities, operations and governance of the Company set
forth in the Registration Statement continue to be true. In addition, we have
relied on certain additional facts and assumptions described below.
The foregoing representations are all contained in letters to us dated
as of the date hereof (the "Certificates"). No facts have come to our attention
that are inconsistent with the facts and representations set forth in the
Certificates.
OPINIONS
Based upon and subject to the foregoing, we are of the following
opinions:
1. Assuming that a timely election for REIT status has been made, the
Company has been organized in conformity with the requirements for qualification
as a REIT under the code, and its method of operation as described in the
representations referred to above, will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code.
2. The discussion contained in that portion of the Registration
Statement under the caption "Federal Income Tax Considerations" fairly
summarizes the federal income tax considerations that are likely to be material
to a holder of common stock.
The opinions expressed herein are based upon the Code, the Treasury
Regulations promulgated thereunder, current administrative positions of the
Internal Revenue Service, and existing judicial decisions, any of which could be
changed at any time, possibly on a retroactive basis. Any such changes could
adversely affect the opinions rendered herein and the tax consequences to the
Company and the investors in the common stock. In addition, as noted above, our
opinions are based solely on the documents that we have examined, the additional
information that we have obtained, and the representations that are being made
to us, and cannot be relied upon if any of the facts contained in such documents
or in such additional information are, or later become, inaccurate or if any of
the representations made to use are, or later become, inaccurate.
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Cali Realty Corporation
8/8/96
Page 3
We express no opinion with respect to the Registration Statement other
than those expressly set forth herein. Furthermore, the Company's qualification
as a REIT will depend on (i) the Company meeting, in its actual operations, the
applicable asset composition, source of income, shareholder diversification,
distribution, recordkeeping and other requirements of the Code necessary for a
corporation to qualify as a REIT and (ii) the qualification of the Class A-3, B,
C and D mortgage pay-through bonds held by the Company (directly or indirectly
through the Operating Partnership) as regular interests in a real estate
mortgage investment conduit under the Code. We will not review these operations,
and no assurance can be given that the actual operations of the Company and its
affiliates will meet these requirements or the representations made to us with
respect thereto.
Finally, our opinion is limited to the tax matters specifically covered
hereby, and we have not been asked to address, nor have we addressed, any other
tax consequences of an investment in the common stock.
Very truly yours,
/s/ Pryor, Cashman, Sherman & Flynn
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Pryor, Cashman, Sherman & Flynn
