AMENDMENT NO. 1
TO
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OR SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
URSTADT BIDDLE PROPERTIES INC.
(Exact name of registrant as specified in its charter)
MARYLAND 04-2458042
(State of incorporation or organization) (I.R.S. Employer Identification No.)
321 RAILROAD AVENUE
GREENWICH, CONNECTICUT 06830 06830
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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SERIES C SENIOR CUMULATIVE PREFERRED STOCK, NEW YORK STOCK EXCHANGE, INC.
PAR VALUE $.01 PER SHARE
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form relates:
Securities to be registered pursuant to Section 12(g) of the Act: None.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The following description of certain provisions of our Series C
preferred stock is intended as a summary only, and you should read this
description together with the complete text of our charter and the articles
supplementary of our Series C preferred stock, which are exhibits to this
registration statement. The capitalized terms used but not otherwise defined in
this registration statement have the respective meanings given to them in the
articles supplementary.
GENERAL
Under our charter, we are authorized to issue up to 20,000,000 shares
of preferred stock in one or more series, with such designations, powers,
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications and terms or
conditions of redemption, in each case, if any, as are permitted by Maryland law
and as our Board of Directors may determine by adoption of an amendment to our
charter without any further vote or action by our stockholders. We currently
have 150,000 shares of Series B preferred stock outstanding and 400,000 shares
of Series C preferred stock outstanding.
On May 29, 2003, we issued 400,000 shares of our Series C preferred
stock in a private placement. The holders of our Series C preferred stock have
no preemptive rights with respect to any shares of our capital stock or any of
our other securities convertible into or carrying rights or options to purchase
any shares of our capital stock.
We currently have reserved 150,000 shares of Series A Participating
preferred stock, $0.01 par value (the "Series A preferred stock"), for issuance
pursuant to a rights agreement, dated March 12, 1997, as amended, between our
Company and The Bank of New York, as rights agent. Under the rights agreement,
one right to purchase 1/100th of a share of Series A preferred stock (structured
so as to be substantially the equivalent of one share of our common stock or our
Class A common stock, as applicable) is attached to each issued and outstanding
share of our common stock and to each issued and outstanding share of our Class
A common stock. The rights are not exercisable and are attached to, and may not
trade separately from, our common stock or Class A common stock, as applicable,
and the Series A preferred stock will not be issued, unless certain
change-in-control events occur. In the event that the rights become exercisable,
the Series A preferred stock will rank junior to our Series C preferred stock as
to dividends and amounts distributed upon liquidation.
MATURITY
Our Series C preferred stock has no stated maturity and is not subject
to any sinking fund or mandatory redemption.
RANK
Our Series C preferred stock ranks, with respect to dividend rights and
rights upon our liquidation, dissolution or winding up:
o senior to our common stock and Class A common stock and to all other
equity securities we issue ranking junior to our Series C preferred
stock with respect to dividend rights or rights upon our liquidation,
dissolution or winding up, including the Series A preferred stock, if
and when issued;
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o on a parity with our Series B preferred stock and with all other equity
securities we issue the terms of which specifically provide that such
equity securities rank on a parity with our Series C preferred stock
with respect to dividend rights or rights upon our liquidation,
dissolution or winding up; and
o junior to all our existing and future indebtedness.
Without the affirmative vote or consent of at least two-thirds of the
outstanding Series C preferred stock, we may not issue any equity securities
which rank senior to our Series C preferred stock with respect to dividend
rights or rights upon our liquidation, dissolution, or winding up. The term
"equity securities" does not include convertible debt securities, which rank
senior to our Series C preferred stock prior to conversion.
DIVIDENDS
Holders of shares of our Series C preferred stock are entitled to
receive, when and as declared by our Board of Directors, out of our funds
legally available for the payment of dividends, preferential cumulative cash
dividends at the rate of 8.5% per annum of the Liquidation Preference. If we
violate the fixed charge coverage ratio covenant or the capitalization ratio
covenant, and fail to cure the violation on or before the second succeeding
dividend payment date, the initial dividend yield will be increased to 2.0% over
the initial dividend yield (the "first default dividend yield") as of that
second succeeding dividend payment date. If we remain in violation of either the
fixed charge ratio covenant or the capitalization ratio covenant on four
consecutive dividend payment dates subsequent to the initial violation of either
covenant, the initial dividend yield will increase to the greater of (a) the
discount rate (as defined below) plus 7.0% or (b) 15% (the "second default
dividend yield") as of that fourth consecutive dividend payment date. See "-
Covenants." The first default dividend yield and the second default dividend
yield will revert back to the initial dividend yield if we remain in compliance
with the fixed charge coverage ratio covenant and the capitalization ratio
covenant on two consecutive dividend payment dates after the first default
dividend yield or second default dividend yield takes effect.
These dividends are cumulative from May 29, 2003, the date of original
issue, and are payable quarterly in arrears on January 31, April 30, July 31 and
October 31 of each year, or, if not a business day, the next succeeding business
day, for the quarterly periods ended January 31, April 30, July 31 and October
31, as applicable. A dividend payable on our Series C preferred stock for any
partial dividend period is computed on the basis of a 360-day year consisting of
twelve 30-day months. Dividends are payable to holders of record as they appear
in our stockholder records at the close of business on the applicable record
date determined each quarter by our Board of Directors, as provided by the
Maryland General Corporation Law.
We will not declare dividends on our Series C preferred stock or pay or
set aside for payment dividends on our Series C preferred stock at any time if
the terms and provisions of any agreement of our Company, including any
agreement relating to our indebtedness, prohibits the declaration, payment or
setting aside for payment or provides that the declaration, payment or setting
apart for payment would constitute a breach or a default under the agreement, or
if the declaration or payment is restricted or prohibited by law.
Notwithstanding the foregoing, dividends on our Series C preferred
stock accrue whether or not we have earnings, whether or not there are funds
legally available for the payment of those dividends and whether or not those
dividends are declared. Accrued but unpaid dividends on our Series C preferred
stock do not bear interest and holders of our Series C preferred stock are not
entitled to any distributions in excess of full cumulative distributions
described above.
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Except as described in the next sentence, we will not declare or pay or
set apart for payment dividends on any of our capital stock ranking, as to
dividends, on a parity with or junior to our Series C preferred stock (other
than a dividend in shares of our common stock or Class A common stock or in
shares of any other class of stock ranking junior to our Series C preferred
stock as to dividends and upon liquidation) for any period unless full
cumulative dividends on our Series C preferred stock for all past dividend
periods and the then current dividend period have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof is
set apart for such payment. When we do not pay dividends in full (or we do not
set apart a sum sufficient to pay them in full) upon our Series C preferred
stock and the shares of any other series of preferred stock ranking on a parity
as to dividends with our Series C preferred stock, we will declare all dividends
upon our Series C preferred stock and any other series of preferred stock
ranking on a parity as to dividends with our Series C preferred stock
proportionately so that the amount of dividends declared per share of Series C
preferred stock and such other series of preferred stock will in all cases bear
to each other the same ratio that accrued dividends per share on our Series C
preferred stock and such other series of preferred stock (which will not include
any accrual in respect of unpaid dividends for prior dividend periods if such
preferred stock does not have a cumulative dividend) bear to each other.
Except as described in the immediately preceding paragraph, unless full
cumulative dividends on our Series C preferred stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, we will not declare or pay or set aside for
payment dividends (other than on shares of our common stock or Class A common
stock or other shares of capital stock ranking junior to our Series C preferred
stock as to dividends and upon liquidation) or declare or make any other
distribution on our common stock or Class A common stock, or any other capital
stock ranking junior to or on a parity with our Series C preferred stock as to
dividends or upon liquidation, nor will we redeem, purchase or otherwise acquire
for any consideration, or pay or make available any monies for a sinking fund
for the redemption of, any of our shares of common stock or Class A common stock
or any other shares of our capital stock ranking junior to or on a parity with
our Series C preferred stock as to dividends or upon liquidation (except by
conversion into or exchange for our other capital stock ranking junior to our
Series C preferred stock as to dividends and upon liquidation or redemption for
the purpose of preserving our qualification as a REIT).
Holders of shares of our Series C preferred stock are not entitled to
any dividend, whether payable in cash, property or stock, in excess of full
cumulative dividends on our Series C preferred stock as described above. Any
dividend payment made on shares of our Series C preferred stock is first
credited against the earliest accrued but unpaid dividend due with respect to
those shares which remains payable. So long as no dividends are in arrears, we
are entitled at any time and from time to time to repurchase shares of Series C
preferred stock in open-market transactions duly authorized by our Board of
Directors and effected in compliance with applicable laws.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding
up of our affairs, the holders of shares of Series C preferred stock are
entitled to be paid out of our assets legally available for distribution to our
stockholders a liquidation preference of $100 per share (the "Liquidation
Preference"), plus an amount equal to any accrued and unpaid dividends to the
date of payment, but without interest, before any distribution of assets may be
made to holders of our common stock or Class A common stock or any other class
or series of our capital stock ranking junior to our Series C preferred stock as
to liquidation rights. However, the holders of the shares of Series C preferred
stock are not entitled to receive the liquidating distribution described above
until the liquidation preference of any other series or class of our capital
stock hereafter issued ranking senior as to liquidation rights to our
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Series C preferred stock has been paid in full. The holders of Series C
preferred stock and all series or classes of our capital stock ranking on a
parity as to liquidation rights with our Series C preferred stock are entitled
to share proportionately, in accordance with the respective preferential amounts
payable on such capital stock, in any distribution (after payment of the
liquidation preference of any of our capital stock ranking senior to our Series
C preferred stock as to liquidation rights) which is not sufficient to pay in
full the aggregate of the amounts of the liquidating distributions to which they
would otherwise be respectively entitled. Holders of Series C preferred stock
are entitled to written notice of any liquidation. After payment of the full
amount of the liquidating distributions to which they are entitled, the holders
of Series C preferred stock have no right or claim to any of our remaining
assets. Our consolidation or merger with or into any other corporation, trust or
entity or of any other corporation with or into the Company, or the sale, lease
or conveyance of all or substantially all of our property or business, is not
deemed to constitute our liquidation, dissolution or winding up.
Our charter provides that, in determining whether a distribution to
holders of Series C preferred stock (other than upon voluntary or involuntary
liquidation) by dividend, redemption or other acquisition of shares of our stock
or otherwise is permitted under the Maryland General Corporation Law, no effect
will be given to amounts that would be needed, if we were to be dissolved at the
time of the distribution, to satisfy the preferential rights upon distribution
of holders of shares of our stock whose preferential rights upon dissolution are
superior to those receiving the distribution.
RATING
Our Series C preferred stock has been rated BB by Fitch Ratings. A
security rating is not a recommendation to buy, sell or hold securities and may
be subject to revision or withdrawal at any time by the assigning rating
organization.
REDEMPTION
Except in certain circumstances relating to the preservation of our
qualification as a REIT under the Internal Revenue Code, and to a change in
control, our Series C preferred stock is not redeemable before May 29, 2013 (the
"tenth anniversary date"). See "- Change of Control." However, in order to
ensure that we remain qualified as a REIT for federal income tax purposes, we
have the right to purchase from a holder of shares of Series C preferred stock
at any time any shares of Series C preferred stock in excess of 7.5% of the
value of our outstanding capital stock. See "- Restrictions on Ownership and
Transfer." On and after the tenth anniversary date, we may, at our option, upon
not less than 30 nor more than 60 days' written notice, redeem shares of our
Series C preferred stock, in whole or in part, at any time or from time to time,
for cash at a redemption price of $100 per share, plus all accrued and unpaid
dividends to the date fixed for redemption (except with respect to shares of
Series C preferred stock which have been converted into shares of excess stock
pursuant to our charter), without interest. Holders of Series C preferred stock
to be redeemed will be required to surrender our Series C preferred stock at the
place designated in such notice and will be entitled to the redemption price and
any accrued and unpaid dividends payable upon the redemption following surrender
of the preferred stock. If we have given notice of redemption of any shares of
Series C preferred stock and if we have set aside the funds necessary for the
redemption in trust for the benefit of the holders of any shares of Series C
preferred stock so called for redemption, then from and after the redemption
date dividends will cease to accrue on such shares of Series C preferred stock,
the shares of Series C preferred stock will no longer be deemed outstanding and
all rights of the holders of the shares will terminate, except the right to
receive the redemption price. If less then all of the outstanding shares of
Series C preferred stock is to be redeemed, our Series C preferred stock to be
redeemed will be selected proportionately (as nearly as may be practicable
without creating fractional shares) or by any other equitable method we
determine.
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Unless we have declared and paid, we are contemporaneously declaring
and paying, or we have declared and set aside a sum sufficient for the payment
of the full cumulative dividends on all shares of Series C preferred stock for
all past dividend periods and the then current dividend period, we may not
redeem any Series C preferred stock unless we simultaneously redeem all
outstanding shares of Series C preferred stock and we will not purchase or
otherwise acquire directly or indirectly any shares of Series C preferred stock
(except by exchange for shares of our capital stock ranking junior to our Series
C preferred stock as to dividends and upon liquidation). Notwithstanding the
foregoing, we may purchase excess stock in order to ensure that we continue to
meet the requirements for qualification as a REIT or any purchase or exchange
offer made on the same terms to holders of all outstanding shares of Series C
preferred stock. So long as no dividends are in arrears, we are entitled at any
time and from time to time to repurchase shares of Series C preferred stock in
open-market transactions duly authorized by our Board of Directors and effected
in compliance with applicable laws.
We will give notice of redemption by publication in a newspaper of
general circulation in the City of New York, such publication to be made once a
week for two successive weeks commencing not less than 30 nor more than 60 days
prior to the redemption date. We will mail a similar notice, postage prepaid,
not less than 30 nor more than 60 days prior to the redemption date, addressed
to the respective holders of record of our Series C preferred stock to be
redeemed at their respective addresses as they appear on our stock transfer
records. No failure to give such notice or any defect in the notice or in the
mailing of the notice will affect the validity of the proceedings for the
redemption of any shares of Series C preferred stock except as to a holder to
whom notice was defective or not given. Each notice will state:
o the redemption date;
o the redemption price;
o the number of shares of Series C preferred stock to be redeemed;
o the place or places where our Series C preferred stock is to be
surrendered for payment of the redemption price; and
o that dividends on the shares to be redeemed will cease to accrue on such
redemption date.
If we redeem less than all of our Series C preferred stock held by any
holder, the notice mailed to such holder will also specify the number of shares
of Series C preferred stock held by such holder to be redeemed.
Immediately prior to any redemption of Series C preferred stock, we
will pay, in cash, any accumulated and unpaid dividends through the redemption
date, unless a redemption date falls after the applicable dividend record date
and prior to the corresponding dividend payment date, in which case each holder
of Series C preferred stock at the close of business on the applicable dividend
record date is entitled to the dividend payable on such shares on the
corresponding dividend payment date notwithstanding the redemption of such
shares before the dividend payment date.
CHANGE OF CONTROL
In the event of a change of control of the Company, each holder of
shares of Series C preferred stock has the right, at the holder's option, to
require us to repurchase all or any part of the holder's Series C preferred
stock for cash at a repurchase price of $100 per share, plus all accrued and
unpaid dividends, if any, up to the date fixed for repurchase (except with
respect to shares of Series C
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preferred stock which have been converted into shares of excess stock pursuant
to our charter), without interest pursuant to the procedures described below
(the "change of control put option"), subject to the Maryland General
Corporation Law.
In connection with any change of control, we will be required to mail
to each holder of shares of Series C preferred stock, not later than the date of
the occurrence of the change of control, a notice of such occurrence, which will
specify the purchase price and the purchase date, which will be no fewer than 30
business days and no more than 40 business days from the date the notice is
mailed (the "put option payment date"), and describe the procedure that must be
followed by the holder to tender the holder's shares of Series C preferred
stock. We will be required to deliver a copy of this notice to each record and
known beneficial holder of shares of Series C preferred stock as of the date
that is 15 days prior to the date the notice is mailed. To exercise the change
of control put option, a holder of shares of Series C preferred stock must
deliver, on or before the third business day preceding the put option payment
date, written notice to us (or to a paying agent designated by us for such
purpose) of the holder's exercise of the change of control put option,
indicating the number of shares of Series C preferred stock to be repurchased by
us. Holders of shares of Series C preferred stock will be entitled to withdraw,
in whole or in part, any tender of shares of Series C preferred stock pursuant
to an exercise of the change of control put option by delivering to us (or to a
paying agent designated by us for such purpose), on or before the second
business day preceding the put option payment date, a telegram, telex, facsimile
transmission or letter stating the name of the holder, the number of shares of
Series C preferred stock initially to be delivered for purchase, and a statement
that the holder is withdrawing its exercise of the change of control put option
as to all or part of the tendered shares of Series C preferred stock.
In the event of a change of control of the Company, we will have the
right, at our option, to redeem all or any part of the shares of each holder of
Series C preferred stock at (a) before the tenth anniversary date, the
make-whole price (as defined below) as of the date fixed for redemption (except
with respect to shares of Series C preferred stock converted into shares of
excess stock pursuant to our charter) and (b) on or after the tenth anniversary
date, the redemption price of $100 per share, plus all accrued and unpaid
dividends, if any, up to the date fixed for redemption (except with respect to
shares of Series C preferred stock converted into shares of excess stock
pursuant to our charter), in each case pursuant to the procedures applicable to
other redemptions of shares of Series C preferred stock. See "- Redemption."
We will comply, to the extent applicable, with Sections 13 and 14 of
the Exchange Act and the provisions of Regulation 14E promulgated thereunder and
any other securities laws and regulations applicable to a repurchase of our
Series C preferred stock pursuant to a change of control.
VOTING RIGHTS
Holders of our Series C preferred stock do not have any voting rights,
except as described below.
Whenever dividends on any shares of Series C preferred stock are in
arrears for three or more consecutive or non-consecutive quarterly periods
within any five-year period a preferred dividend default will exist, the number
of directors then constituting our Board of Directors will be increased by two
(if not already increased by reason of a similar arrearage with respect to any
parity preferred as defined below), and the holders of the shares of Series C
preferred stock (subject to certain restrictions in the case of any regulated
person (as defined below)) will be entitled to vote separately as a class with
all other series of preferred stock ranking on a parity with our Series C
preferred stock as to dividends or upon liquidation and upon which like voting
rights have been conferred and are exercisable, including, in that instance, our
Series B preferred stock ("parity preferred"), in order to fill the newly
created
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vacancies, for the election of a total of two additional directors of the
Company (the "preferred stock directors") at a special meeting called by us at
the request of holders of record of at least 20% of our Series C preferred stock
or the holders of record of at least 20% of any series of parity preferred so in
arrears (unless the request is received less than 90 days before the date fixed
for the next annual or special meeting of stockholders) or at the next annual
meeting of stockholders, and at each subsequent annual meeting until all
dividends accumulated on the shares of Series C preferred stock and parity
preferred for the past dividend periods and the dividend for the then current
dividend period are fully paid or declared and a sum sufficient for payment has
been set aside to pay them. In the event our directors are divided into classes,
each vacancy will be apportioned among the classes of directors to prevent
stacking in any one class and to insure that the number of directors in each of
the classes of directors are as nearly equal as possible.
Each preferred stock director, as a qualification for election (and
regardless of how elected), will submit to our Board of Directors a duly
executed, valid, binding and enforceable letter of resignation from the Board of
Directors, to be effective upon the date upon which all dividends accumulated on
the shares of Series C preferred stock and parity preferred for the past
dividend periods and the dividend for the then current dividend period are fully
paid or declared and a sum sufficient for payment has been set aside to pay them
at which time the terms of office of all persons elected as preferred stock
directors by the holders of our Series C preferred stock and any parity
preferred will, upon the effectiveness of their respective letters of
resignation, terminate, and the number of directors then constituting the Board
of Directors will be reduced accordingly. A quorum for any meeting will exist if
at least a majority of the outstanding shares of Series C preferred stock and
shares of parity preferred are represented in person or by proxy at the
meetings.
The preferred stock directors will be elected upon the affirmative vote
of a plurality of the shares of Series C preferred stock and the parity
preferred present and voting in person or by proxy at a duly called and held
meeting at which a quorum is present. If and when all accumulated dividends and
the dividend for the then current dividend period on our Series C preferred
stock are paid in full or declared and set aside for payment in full, the
holders of Series C preferred stock will be divested of the foregoing voting
rights (subject to revesting in the event of each and every preferred dividend
default).
Any preferred stock director may be removed at any time with or without
cause by, and will not be removed otherwise than by the vote of, the holders of
record of a majority of the outstanding shares of Series C preferred stock when
they have the voting rights described above (voting separately as a class with
all series of parity preferred). So long as a preferred dividend default
continues, any vacancy in the office of a preferred stock director may be filled
by written consent of the preferred stock director remaining in office, or if
none remains in office, by a vote of the holders of record of a majority of the
outstanding shares of Series C preferred stock when they have the voting rights
described above (voting separately as a class with all series of parity
preferred). The preferred stock directors will each be entitled to one vote per
director on any matter properly coming before our Board of Directors.
Notwithstanding the preceding paragraph, any and all shares of Series C
preferred stock owned by a regulated person which exceed 4.9% of the total
issued and outstanding shares of Series C preferred stock will not be entitled
to vote for the election of preferred stock directors (and will not be counted
for purposes of determining the percentage of holders of Series C preferred
stock necessary to call the special meeting described above or whether a quorum
is present at the special meeting or for any other similar purpose described
above) so long as those shares are owned by a regulated person.
So long as any shares of Series C preferred stock remain outstanding,
we will not, without the affirmative vote or consent of the holders of at least
two-thirds of the shares of our Series C preferred stock outstanding at the
time, given in person or by proxy, either in writing or at a meeting
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(voting separately as a class):
o voluntarily terminate our status as a REIT;
o enter into or undertake any senior obligations (as defined below) at any
time during which we are in violation of the fixed charge coverage ratio
covenant or the capitalization ratio covenant; or
o amend, alter or repeal the provisions of our charter or the articles
supplementary, whether by merger, consolidation or otherwise (an
"Event"), so as to materially and adversely affect any preferences,
conversion and other rights, voting powers, restrictions, limitations as
to dividends, qualifications, and terms and conditions of redemption of
our Series C preferred stock or the holders our Series C preferred
stock.
However, without the affirmative vote or consent of each holder of
shares of our Series C preferred stock outstanding at the time, no
amendment, alteration or repeal of the provisions of our charter or of
the articles supplementary may be made that will (w) reduce the number
of shares of our Series C preferred stock required to consent to certain
amendments, alterations or repeals of our charter or the articles
supplementary, (x) reduce the initial dividend yield or the Liquidation
Preference or change the method of calculation of the first default
dividend yield, the second default dividend yield, or the make-whole
price, (y) change the payment date for payment of dividends with respect
to our Series C preferred stock or change the period with respect to
which such dividends are paid, or (z) alter or modify the rights of any
holder of Series C preferred stock arising under certain provisions of
the articles supplementary described in "- Change of Control." With
respect to the occurrence of any Event described above, so long as our
Series C preferred stock (or any equivalent class or series of stock
issued by the surviving corporation in any merger or consolidation to
which we became a party) remains outstanding with the terms thereof
materially unchanged, the occurrence of any such Event will not be
deemed to materially and adversely affect any preferences, conversion
and other rights, voting powers, restrictions, limitations as to
dividends, qualifications, and terms and conditions of redemption of
holders of our Series C preferred stock. Any increase in the amount of
the authorized preferred stock or the creation or issuance of any other
series of preferred stock, or any increase in the amount of the
authorized shares of such series, in each case ranking on a parity with
or junior to our Series C preferred stock with respect to payment of
dividends or the distribution of assets upon our liquidation,
dissolution or winding up, or the issuance of additional shares of
Series C preferred stock or up to 100 additional shares of Series B
preferred stock will not be deemed to materially and adversely affect
any preferences, conversion and other rights, voting power,
restrictions, limitations as to dividends, qualifications, and terms and
conditions of redemption.
So long as any shares of Series C preferred stock remain outstanding
and any holder of our Series C preferred stock as of the date of its issuance
continues to hold, beneficially or of record, at least 75% of the number of
shares of Series C preferred stock which the holder owns, beneficially or of
record, as of the date of its issuance, we will not without the affirmative vote
or consent of the holders of at least 85% of the shares of our Series C
preferred stock outstanding at the time, given in person or by proxy, either in
writing or at a meeting (voting separately as a class), amend or waive certain
provisions of the articles supplementary described in "- Covenants."
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which the vote would otherwise be required is
effected, all outstanding shares of Series C
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preferred stock are redeemed or called for redemption upon proper notice and we
deposit sufficient funds in trust to effect the redemption.
Except as expressly stated in the articles supplementary, our Series C
preferred stock will not have any relative, participating, optional or other
special voting rights and powers, and the consent of the holders of our Series C
preferred stock will not be required for the taking of any corporate action,
including any merger or consolidation involving us, our liquidation or
dissolution or a sale of all or substantially all of our assets, irrespective of
the effect that the merger, consolidation or sale may have upon the rights,
preferences or voting power of the holders of our Series C preferred stock.
CONVERSION
Our Series C preferred stock is not convertible into or exchangeable
for any of our other securities or property.
COVENANTS
The articles supplementary provide that so long as any share of Series
C preferred stock remains outstanding:
o We will not permit the fixed charge coverage ratio to be less than 1.30
or the capitalization ratio to exceed 0.55 measured, in each case, at
the end of each fiscal quarter.
o We will not enter into any senior obligation which results in a
violation of the fixed charge coverage ratio covenant or the
capitalization ratio covenant, compliance with these covenants being
determined (a) in the case of the fixed charge coverage ratio covenant,
after giving effect on a pro forma basis to any senior obligation as if
the senior obligation had been issued on the first day of the
calculation period (as defined below), and (b) in the case of the
capitalization ratio covenant, as of the end of our fiscal quarter
immediately preceding our fiscal quarter in which the senior obligation
is issued and undertaken, after giving effect on a pro forma basis to
any senior obligation as if the senior obligation had been issued on the
first day of such immediately preceding quarter.
CERTAIN DEFINITIONS
Below is a summary of certain of the defined terms used in the articles
supplementary. You should refer to the articles supplementary for the full
definition of all these terms, as well as any other terms used but not defined
in this prospectus.
"Calculation period" means, as of any date of determination, the period
comprised of our two most recently completed fiscal quarters immediately
preceding our fiscal quarter in which that date of determination occurs.
"Capitalization ratio" means, as of any date of determination, the
ratio obtained by dividing (i) the sum of (A) the aggregate amount of our debt
and (B) the aggregate amount of our preferred stock by (ii) the sum of (A) the
aggregate amount of our debt, (B) the aggregate amount of our preferred stock,
(C) the aggregate amount of capital (including additional paid in capital) which
in accordance with generally accepted accounting principles would be reflected
on our balance sheet in connection with our common equity securities as of the
end of the quarter immediately preceding our fiscal quarter in which that date
of determination occurs and (D) our accumulated depreciation as set forth on our
balance sheet as of the end of the quarter immediately preceding our fiscal
quarter in which that date of determination occurs.
10
"Change of control" means either (a) the occurrence of any merger or
other acquisition as a consequence of which a majority of the outstanding shares
of our common equity securities are owned or acquired by the merging or
acquiring person, entity or group or (b) the occurrence of any event or
transaction as a consequence of which the persons, entities or organizations
described in (A), (B) and (C), below, cease, in the aggregate, to own,
beneficially or of record, or cease to control the voting or disposition or the
power to direct the voting or disposition of, at least 75% of the number of
shares of our common equity securities which the persons, entities or
organizations in (A), (B) or (C), below, in the aggregate, own, beneficially or
of record, or control the voting or disposition or have the power to direct the
voting or disposition of, as of the May 29, 2003 (excluding any stock options or
other stock rights which any such person, entity or organization may now own or
subsequently acquire for purposes of this definition): (A) Charles J. Urstadt;
(B) Charles J. Urstadt's spouse, any of his children or any of their spouses, or
any of his grandchildren or any of their spouses; or (C) any trust, corporation,
partnership, limited liability company or other entity or organization
controlled by Charles J. Urstadt or any of his relatives described in (B) above
or in which Charles J. Urstadt or any of his relatives described in (B) above
has any economic, beneficial or other interest.
"Debt" of our Company or any subsidiary means any indebtedness of our
Company or any subsidiary, whether or not contingent, in respect of (a) borrowed
money or evidenced by bonds, notes, debentures or similar instruments, (b)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by our Company or any subsidiary,
(c) reimbursement obligations, contingent or otherwise, in connection with
letters of credit or amounts representing the balance deferred and unpaid of the
purchase price of any property except any balance that constitutes an accrued
expense or trade payable or (d) any lease of property by our Company or any
subsidiary as lessee which is reflected on our consolidated balance sheet as a
capitalized lease in accordance with generally accepted accounting principles,
in the case of items of indebtedness under (a) through (c) above to the extent
that any of those items (other than reimbursement obligations in connection with
letters of credit) would appear as a liability on our consolidated balance sheet
in accordance with generally accepted accounting principles, and also includes,
to the extent not otherwise included, any obligation by our Company or any
subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than our Company or any subsidiary) (it
being understood that debt will be deemed to be incurred by our Company or any
subsidiary whenever our Company or the subsidiary creates, assumes, guarantees
or otherwise becomes liable in respect of the debt).
"Discount rate" means, as of any date of determination, the yield to
maturity implied by (a) the yields reported, as of 10:00 A.M. (New York City
time) on the second business day preceding that date of determination on the
display designated as "Page 678" on the Telerate Access Service (or any other
display as may replace Page 678 on Telerate Access Service) for actively traded
U.S. Treasury securities having a 30-year maturity as of that date of
determination, or (b) if the yields are not reported at that time or the yields
reported at that time are not ascertainable, the Treasury Constant Maturity
Series Yields reported for the latest day for which the yields have been so
reported as of the second business day preceding the date of determination in
Federal Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a 30-year
constant maturity as of that date of determination.
"Fixed charge coverage ratio" means, as of any date of determination,
the ratio obtained by dividing (i) the sum of (A) interest expense for the
calculation period and preferred dividends for the calculation period and (B)
funds from operations for the calculation period by (ii) the sum of (A) interest
expense for the calculation period and (B) preferred dividends for the
calculation period; provided,
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however, that (x) if we have issued any debt or preferred stock since the
beginning of the calculation period that remains outstanding or (y) if the
transactions giving rise to the need to calculate the fixed charge coverage
ratio is an issuance of debt or preferred stock, or both (x) and (y), interest
expense and preferred dividends for the calculation period shall be calculated
after giving effect on a pro forma basis to the debt or preferred stock as if
the debt or preferred stock had been issued on the first day of the calculation
period and the discharge of any other debt or preferred stock refinanced,
refunded, exchanged or otherwise discharged with the proceeds of the new debt or
preferred stock as if any such discharge had occurred on the first day of the
calculation period.
"Funds from operations" ("FFO") means, with respect to any fiscal
quarter, the measure of FFO as recently defined and clarified by the National
Association of Real Estate Investment Trusts from time to time. FFO is currently
defined as net income, computed in accordance with generally accepted accounting
principles, for that quarter, excluding gains (or losses) from sales of
properties, plus depreciation and amortization and after adjustments for
unconsolidated joint ventures.
"Interest expense" means, for any period, our total interest expense,
including (a) interest expense attributable to capital leases, (b) amortization
of debt discount and debt issuance cost, (c) capitalized interest, (d) non-cash
interest payments, and (e) interest actually paid by us under any guarantee of
debt or other obligation of any other person.
"Make-whole price" means, for any share of Series C preferred stock, as
of any date of determination, the sum of (a) the present value as of that date
of determination of all remaining scheduled dividend payments of that share of
Series C preferred stock until the tenth anniversary date, discounted by the
discount rate, (b) the Liquidation Preference and (c) all accrued and unpaid
dividends thereon to such date of determination.
"Preferred Dividends" means, for any period, dividends accrued during
such period in respect of all preferred stock held by persons other than us.
"Regulated Person" means any bank holding company, subsidiary of a bank
holding company or other person or entity that is subject to the Bank Holding
Company Act of 1956, as amended from time to time.
"Senior Obligation" means any (a) debt other than accounts payable
incurred in the ordinary course of our business and (b) any of our equity
securities which rank senior to our Series C preferred stock with respect to the
payment of dividends or the distribution of assets upon our liquidation,
dissolution, or winding up.
RESTRICTIONS ON OWNERSHIP AND TRANSFER
To qualify as a REIT under the Internal Revenue Code, we must meet
several requirements regarding the number of our stockholders and concentration
of ownership of our shares. Our charter contains provisions that restrict the
ownership and transfer of our shares to assist us in complying with these
Internal Revenue Code requirements. We refer to these restrictions as the
"ownership limit."
The ownership limit provides that, in general, no person may own more
than 7.5% of the aggregate value of all outstanding stock of the Company. It
also provides that:
o a transfer that violates the limitation is void;
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o a transferee gets no rights to the shares that violate the limitation;
o shares transferred to a stockholder in excess of the ownership limit are
automatically converted, by operation of law, into shares of "excess
stock"; and
o the excess stock will be held by us as trustee of a trust for the
exclusive benefit of future transferees to whom the shares of capital
stock will ultimately be transferred without violating the ownership
limit.
Pursuant to authority under our charter, our Board of Directors has
determined that the ownership limit does not apply to Mr. Charles J. Urstadt,
our Chairman and Chief Executive Officer, and his affiliates and associates who
currently own in the aggregate 35.4% and 1.7% of our outstanding common stock
and Class A common stock, respectively. Such holdings represent approximately
31.4% of our outstanding voting interests. The ownership limitation may
discourage a takeover or other transaction in which holders of Series C
preferred stock might have the right to require us to repurchase all or any part
of their shares or otherwise receive a premium for their shares above
then-current market prices or might otherwise deem to be in their best
interests.
Ownership of our stock is subject to attribution rules under the
Internal Revenue Code, which may result in a person being deemed to own stock
held by other persons. The Board of Directors may waive the ownership limit if
it determines that the waiver will not jeopardize our status as a REIT. As a
condition of such a waiver, the Board of Directors may require an opinion of
counsel satisfactory to it or undertakings or representations from the applicant
with respect to preserving our REIT status. We required no such waiver with
respect to Mr. Urstadt's ownership rights, which are established as part of our
charter.
Any person who acquires stock in violation of the ownership limit must
notify us immediately and provide us with any information we may request in
order to determine the effect of the acquisition on our status as a REIT. The
ownership limit will not apply if our Board of Directors determines that it is
no longer in our best interests to qualify as a REIT. Otherwise, the ownership
limit may be changed only by an amendment to our charter by a vote of two-thirds
of the voting power of our common equity securities.
Our charter provides that any purported transfer which results in a
direct or indirect ownership of shares of capital stock in excess of the
ownership limit or that would result in the disqualification of the Company as a
REIT will be null and void, and the intended transferee will acquire no rights
to the shares of capital stock. The foregoing restrictions on transferability
and ownership will not apply if our Board of Directors determines that it is no
longer in our best interests to attempt to qualify, or to continue to qualify,
as a REIT. Our Board of Directors may, in its sole discretion, waive the
ownership limit if evidence satisfactory to our Board of Directors and our tax
counsel is presented that the changes in ownership will not then or in the
future jeopardize our REIT status and our Board of Directors otherwise decides
that such action is in our best interests.
Shares of Series C preferred stock owned, or deemed to be owned, or
transferred to a stockholder in excess of the ownership limit will automatically
be converted into shares of "excess stock" that will be transferred, by
operation of law, to us as trustee of a trust for the exclusive benefit of the
transferees to whom such shares of capital stock may be ultimately transferred
without violating the ownership limit. While the excess stock is held in trust,
it will not be entitled to vote, it will not be considered for purposes of any
stockholder vote or the determination of a quorum for such vote, and except upon
liquidation it will not be entitled to participate in dividends or other
distributions. Any distribution paid to a proposed transferee of excess stock
prior to the discovery by us that Series C
13
preferred stock has been transferred in violation of the provision of our
charter is required to be repaid to us upon demand. The excess stock is not
treasury stock, but rather constitutes a separate class of our issued and
outstanding stock. The original transferee-stockholder may, at any time the
excess stock is held by us in trust, transfer the interest in the trust
representing the excess stock to any person whose ownership of shares of capital
stock exchanged for such excess stock would be permitted under the ownership
limit, at a price not in excess of (a) the price paid by the original
transferee-stockholder for shares of Series C preferred stock that were
exchanged into excess stock, or (b) if the original transferee-stockholder did
not give value for such shares (e.g., the shares were received through a gift,
devise or other transaction), the average closing price for our Series C
preferred stock for the ten days immediately preceding such sale, gift or other
transaction if such Series C preferred stock is then listed on a national
securities exchange, and if such Series C preferred stock is not then listed on
a national securities exchange, its redemption price, as applicable. Immediately
upon the transfer to the permitted transferee, the excess stock will
automatically be converted back into shares of Series C preferred stock. If the
foregoing transfer restrictions are determined to be void or invalid by virtue
of any legal decision, statute, rule or regulation, then the intended transferee
of any shares of excess stock may be deemed, at our option, to have acted as an
agent on behalf of us in acquiring the excess stock and to hold the excess stock
on behalf of us.
In addition, we will have the right, for a period of 90 days during the
time any shares of excess stock are held by us in trust, to purchase all or any
portion of the excess stock from the original transferee-stockholder at the
lesser of (a) the price initially paid for such shares by the original
transferee-stockholder, or if the original transferee-stockholder did not give
value for such shares (e.g., the shares were received through a gift, devise or
other transaction), the average closing price for our Series C preferred stock
for the ten days immediately preceding such sale, gift or other transaction, and
(b) the average closing price for our Series C preferred stock for the ten
trading days immediately preceding the date we elect to purchase such shares, or
in each case if our Series C preferred stock is not then listed on a national
securities exchange, its redemption price, as applicable. The 90-day period
begins on the date notice is received of the violative transfer if the original
transferee-stockholder gives notice to us of the transfer, or, if no such notice
is given, the date our Board of Directors determines that a violative transfer
has been made.
All stock certificates bear a legend referring to the restrictions
described above.
REGISTRATION RIGHTS
Pursuant to the registration rights agreement we agreed to use
reasonable efforts to (a) file and cause to become effective with the SEC as
soon as reasonably practicable after May 29, 2003, this registration statement;
and (b) keep effective the registration statement until the earlier of two years
following the effective date of the registration statement and the time when all
of our Series C preferred stock has been sold under the registration statement
or otherwise ceased to be a Restricted Security (as defined in the registration
rights agreement). We agreed to provide to each holder of Series C preferred
stock prior written notice of the filing of the registration statement so that
each holder may participate in the resales of our Series C preferred stock
beneficially owned by the holder pursuant to the registration statement and each
holder is entitled to obtain from our transfer agent certificates issued in the
name of the holder or its nominee in fully registered form representing our
Series C preferred stock beneficially owned by the holder. We also agreed to
provide each holder of Series C preferred stock copies of the prospectus which
is a part of the registration statement, notify each holder of Series C
preferred stock when the registration statement for our Series C preferred stock
has become effective and take certain other actions as are required to permit
unrestricted resales of our Series C preferred stock. A holder of Series C
preferred stock who sells such Series C preferred stock under the registration
statement generally is required to be named as a selling security holder in the
related prospectus and to deliver a prospectus to
14
purchasers, is subject to certain of the civil liability provisions under the
Securities Act in connection with the sales and is bound by the provisions of
the registration rights agreement which are applicable to the holder (including
certain indemnification and contribution rights and obligations).
The preceding summary of certain provisions of the registration rights
agreement is not intended to be complete and you should read this summary
together with the complete text of the registration rights agreement.
LISTING
Our Series C preferred stock has been approved for listing on the NYSE
under the symbol "UBPPrC." After our shares begin trading on the NYSE, trading
on The PORTAL(SM) Market will cease.
TRANSFER AND DIVIDEND PAYING AGENT
The Bank of New York is the transfer and dividend paying agent in
respect of our Series C preferred stock.
ITEM 2. EXHIBITS.
The securities described herein are to be registered on the NYSE on
which rour common stock and Class A common stock are registered. The following
exhibits ^defining the rights of our stockholders are filed herewith or
incorporated by reference, as indicated below:
1. Amended Articles of Incorporation of the Company (incorporated by
reference to Exhibit C of Amendment No. 1 to the Registrant's Statement
on Form S-4 (SEC File No. 333-19113)).
2. Articles Supplementary of the Company (incorporated by reference to
Annex A of Exhibit 4.1 of the Registrant's Current Report on Form 8-K
dated August 3, 1998 (SEC File No. 001-12803)).
3. Articles Supplementary of the Company (incorporated by reference to
Exhibit 4.1 of the Registrant's Current Report on Form 8-K dated
January 8, 1998 (SEC File No. 001-12803)).
4. Articles Supplementary of the Company (incorporated by reference to
Exhibit A of Exhibit 4.1 of the Registrant's Current Report on Form 8-K
dated March 12, 1997 (SEC File No. 001-12803)).
5. Articles Supplementary of the Company.
6. By-laws of the Company (incorporated by reference to Exhibit D of
Amendment No. 1 to the Registrant's Registration Statement on Form S-4
(SEC File No. 333-19113)).
7. Amended and Restated Rights Agreement between the Company and The Bank
of New York, as Rights Agent, dated as of July 31, 1998 (incorporated
by reference to
15
Exhibit 10-1 of the Registrant's Current Report on Form 8-K dated
November 5, 1998 (SEC File No. 001-12803)).
8. Subscription Agreement, dated January 8, 1998, by and among the Company
and the Initial Purchasers (incorporated by reference to Exhibit 4.2 of
the Registrant's Current Report on Form 8-K dated January 8, 1998 (SEC
File No. 001-12803)).
9. Registration Rights Agreement, dated January 8, 1998, by and among the
Company and the Initial Purchasers (incorporated by reference to
Exhibit 4.3 of the Registrant's Current Report on Form 8-K dated
January 8, 1998 (SEC File No. 001-12803)).
10. Waiver and Amendment of Registration Rights Agreement dated as of April
16, 1999, by and among the Company and the Initial Purchasers
(incorporated by reference to Exhibit 10.15 of the Registrant's Annual
Report on Form 10-K for the year ended October 31, 1999 (SEC File No.
001-12803)).
11. Waiver and Amendment of Registration Rights Agreement dated as of
September 14, 2001 by and among the Company and the Initial Purchasers
(incorporated by reference to Exhibit 10.17 of the Registrant's Annual
Report on Form 10-K for the year ended October 31, 2001 (SEC File No.
001-12803)).
12. Amendment to Registration Rights Agreement dated as of December 31,
2001 by and among the Company and the Remaining Initial Purchasers
(incorporated by reference to Exhibit 10.22 of the Registrant's Annual
Report on Form 10-K for the year ended October 31, 2002 (SEC File No.
001-12803)).
13. Registration Rights Agreement dated as of May 29, 2003 by and between
the Company and Ferris, Baker Watts, Incorporated.
16
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this amendment no. 1 to registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
Dated: September 17, 2003
URSTADT BIDDLE PROPERTIES INC.
By: /s/ James R. Moore
-----------------------
James R. Moore
Executive Vice President
17
EXHIBIT INDEX
EXHIBIT NO. PAGE
================================================================================
1. Amended Articles of Incorporation of the Company (incorporated by
reference to Exhibit C of Amendment No. 1 to the Registrant's Statement
on Form S-4 (SEC File No. 333-19113)).
2. Articles Supplementary of the Company (incorporated by reference to
Annex A of Exhibit 4.1 of the Registrant's Current Report on Form 8-K
dated August 3, 1998 (SEC File No. 001-12803)).
3. Articles Supplementary of the Company (incorporated by reference to
Exhibit 4.1 of the Registrant's Current Report on Form 8-K dated
January 8, 1998 (SEC File No. 001-12803)).
4. Articles Supplementary of the Company (incorporated by reference to
Exhibit A of Exhibit 4.1 of the Registrant's Current Report on Form 8-K
dated March 12, 1997 (SEC File No. 001-12803)).
5. Articles Supplementary of the Company.*
6. By-laws of the Company (incorporated by reference to Exhibit D of
Amendment No. 1 to the Registrant's Registration Statement on Form S-4
(SEC File No. 333-19113)).
7. Amended and Restated Rights Agreement between the Company and The Bank
of New York, as Rights Agent, dated as of July 31, 1998 (incorporated
by reference to Exhibit 10-1 of the Registrant's Current Report on Form
8-K dated November 5, 1998 (SEC File No. 001-12803)).
8. Subscription Agreement, dated January 8, 1998, by and among the Company
and the Initial Purchasers (incorporated by reference to Exhibit 4.2 of
the Registrant's Current Report on Form 8-K dated January 8, 1998 (SEC
File No. 001-12803)).
9. Registration Rights Agreement, dated January 8, 1998, by and among the
Company and the Initial Purchasers (incorporated by reference to
Exhibit 4.3 of the Registrant's Current Report on Form 8-K dated
January 8, 1998 (SEC File No. 001-12803)).
10. Waiver and Amendment of Registration Rights Agreement dated as of April
16, 1999, by and among the Company and the Initial Purchasers
(incorporated by reference to Exhibit 10.15 of the Registrant's Annual
Report on Form 10-K for the year ended October 31, 1999 (SEC File No.
001-12803)).
11. Waiver and Amendment of Registration Rights Agreement dated as of
September 14, 2001 by and among the Company and the Initial Purchasers
(incorporated by reference to Exhibit 10.17 of the Registrant's Annual
Report on Form 10-K for the year ended October 31, 2001 (SEC File No.
001-12803)).
12. Amendment to Registration Rights Agreement dated as of December 31,
2001 by and among the Company and the Remaining Initial Purchasers
(incorporated by reference to Exhibit 10.22 of the Registrant's Annual
Report on Form 10-K for the year ended October 31, 2002 (SEC File No.
001-12803)).
13. Registration Rights Agreement dated as of May 29, 2003 by and between
the Company and Ferris, Baker Watts, Incorporated.*
*Filed herewith.