-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Iu8/ge/tKo54GmYH2JhKphLFN70py01P/Lxnt7Dhxl7lpT/O6O+16EiBbihBo1+X 1Rx1SvkAeSQJC6ySyj4t0w== 0000950123-96-006395.txt : 19961113 0000950123-96-006395.hdr.sgml : 19961113 ACCESSION NUMBER: 0000950123-96-006395 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19960930 FILED AS OF DATE: 19961112 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALEXANDERS INC CENTRAL INDEX KEY: 0000003499 STANDARD INDUSTRIAL CLASSIFICATION: OPERATORS OF NONRESIDENTIAL BUILDINGS [6512] IRS NUMBER: 510100517 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-06064 FILM NUMBER: 96658945 BUSINESS ADDRESS: STREET 1: 31 WEST 34TH ST CITY: NEW YORK STATE: NY ZIP: 10001 BUSINESS PHONE: 2125602121 MAIL ADDRESS: STREET 1: 31 WEST 34TH ST STREET 2: 7TH FLOOR CITY: NEW YOK STATE: NY ZIP: 10001 10-Q 1 ALEXANDER'S, INC. 1 EXHIBIT INDEX ON PAGE 13 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q [XX] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended: SEPTEMBER 30, 1996 ------------------------------------------------ or [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to ------------------------- ------------------- Commission File Number: 1-6064 ALEXANDER'S, INC. - ------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 51-0100517 - ------------------------------------------------------------------------------- (State or other jurisdiction of incorporation (I.R.S. Employer or organization) Identification Number) PARK 80 WEST, PLAZA II, SADDLE BROOK, NEW JERSEY 07663 - ------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) (201)587-8541 - ------------------------------------------------------------------------------- (Registrant's telephone number, including area code) - ------------------------------------------------------------------------------- (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. [X] Yes [ ] No APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PRECEDING FIVE YEARS Indicate by check mark whether the registrant has filed all reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. [ ] Yes [ ] No As of October 25, 1996 there were 5,000,850 common shares outstanding. Page 1 of 43 2 ALEXANDER'S, INC. INDEX
Page Number ----------- PART I. FINANCIAL INFORMATION: ---------------------- Item 1. Financial Statements: Consolidated Balance Sheets as of September 30, 1996 and December 31, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 1996 and September 30, 1995 . . . . . . . . . . . 4 Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 1996 and September 30, 1995 . . . . . . . . . . . 5 Notes to Consolidated Financial Statements . . . . . . . . . . . . . . . . . 6 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations . . . . . . . . . . . . . . . . . . . . 8 PART II. OTHER INFORMATION: ----------------- Item 5. Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . . . . . . . . 11 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Exhibit Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Exhibit 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Exhibit 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Page 2 of 43 3 PART I. FINANCIAL INFORMATION ALEXANDER'S, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (AMOUNTS IN THOUSANDS EXCEPT SHARE AMOUNTS)
SEPTEMBER 30, DECEMBER 31, 1996 1995 ------------ ----------- ASSETS: Real estate, at cost: Land $ 46,082 $ 46,082 Buildings, leaseholds and improvements (including $34,996 of construction in progress at December 31, 1995) 112,528 96,238 Capitalized expenses and predevelopment costs 45,058 33,165 --------- -------- Total 203,668 175,485 Less accumulated depreciation and amortization (38,784) (37,794) --------- -------- 164,884 137,691 Investment in unconsolidated joint venture 11,098 12,744 --------- -------- Real estate, net 175,982 150,435 Cash and cash equivalents 10,969 8,471 Restricted cash 6,377 16,905 Accounts receivable, net of allowance for doubtful accounts of $147 in each period 228 180 Receivable arising from the straight-lining of rents, net 5,504 4,228 Deferred lease and other expense 8,362 10,460 Deferred debt expense 2,850 4,341 Other assets 1,579 3,521 -------- -------- TOTAL ASSETS $211,851 $198,541 ======== ======== SEPTEMBER 30, DECEMBER 31, 1996 1995 ------------ ----------- LIABILITIES AND DEFICIENCY IN NET ASSETS: Liabilities: Debt $192,599 $182,883 Amounts due to Vornado Realty Trust and its affiliate 4,978 8,482 Liability for postretirement healthcare benefits 14,357 15,526 Accounts payable and accrued liabilities 5,130 4,389 Other liabilities from discontinued operations 2,760 5,797 Minority interest 600 600 --------- --------- TOTAL LIABILITIES 220,424 217,677 --------- --------- Commitments and contingencies Deficiency in Net Assets: Common stock; $1.00 par value per share; authorized, 10,000,000 shares; issued 5,173,450 5,174 5,174 Additional capital 24,843 24,843 Deficit (37,630) (48,193) --------- --------- (7,613) (18,176) Less treasury shares, 172,600 shares at cost (960) (960) -------- -------- Total deficiency in net assets (8,573) (19,136) -------- -------- TOTAL LIABILITIES AND DEFICIENCY IN NET ASSETS $211,851 $198,541 ======== ========
See notes to consolidated financial statements. Page 3 of 43 4 ALEXANDER'S, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS (amounts in thousands except share amounts)
FOR THE THREE MONTHS ENDED FOR THE NINE MONTHS ENDED ---------------------------- ----------------------------- SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30, 1996 1995 1996 1995 ------------ ------------- ------------- ------------ Revenues: Property rentals $ 4,315 $ 2,571 $ 11,768 $ 7,614 Expense reimbursements 398 280 1,365 875 Equity in income of unconsolidated joint venture 666 1,270 2,616 2,131 -------- ------- -------- ------- Total revenues 5,379 4,121 15,749 10,620 -------- ------- -------- ------- Expenses: Operating (including management fee to Vornado of $210 and $630 in 1996 and $210 and $490 in 1995) 1,481 1,124 3,984 2,726 General and administrative (including management fee to Vornado of $540 and $1,620 in 1996 and $540 and $1,260 in 1995) 961 825 3,333 3,523 Depreciation and amortization 549 460 1,372 1,393 Reorganization costs - - - 1,938 -------- ------- -------- ------- Total expenses 2,991 2,409 8,689 9,580 -------- ------- -------- ------- Operating income 2,388 1,712 7,060 1,040 Interest and debt expense (including interest on loan from Vornado) (3,657) (3,986) (10,393) (10,208) Other income and interest income, net 639 348 2,294 1,132 -------- ------- -------- ------- Loss before reversal of deferred taxes (630) (1,926) (1,039) (8,036) Reversal of deferred taxes - - - 1,406 -------- ------- -------- ------- Loss from continuing operations (630) (1,926) (1,039) (6,630) Income from discontinued operations - - 11,602 - -------- ------- -------- ------- Net (loss)/income $ (630) $(1,926) $ 10,563 $(6,630) ======== ======= ======== ======= Net (loss)/income per share: Continuing operations $(.13) $(.39) $(.21) $(1.33) Discontinued operations - - 2.32 - ------ ------ ----- ------ Net (loss)/income $(.13) $(.39) $2.11 $(1.33) ===== ===== ===== ====== Weighted average number of common shares outstanding during period 5,000,850 5,000,850 5,000,850 5,000,850
See notes to consolidated financial statements. Page 4 of 43 5 ALEXANDER'S, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (amounts in thousands)
FOR THE NINE MONTHS ENDED ---------------------------------- SEPTEMBER 30, SEPTEMBER 30, 1996 1995 ------------- -------------- CASH FLOWS FROM OPERATING ACTIVITIES: Net loss from continuing operations $ (1,039) $ (6,630) Adjustments to reconcile net loss to net cash provided by (used in) continuing operating activities: Depreciation and amortization (including debt issuance costs) 2,863 3,591 Straight-lining of rental income (1,276) (1,147) Equity in income of unconsolidated joint venture (net of distributions of $4,262 in 1996 and contributions of $951 in 1995) 1,646 (3,082) Change in assets and liabilities: Accounts receivable (48) (366) Note receivable - 4,550 Amounts due to Vornado Realty Trust and its affiliate (1,585) (1,355) Liability for postretirement healthcare benefits (1,169) (126) Accounts payable and accrued liabilities 742 2 Other 1,620 (1,459) -------- -------- Net cash provided by (used in) operating activities of continuing operations 1,754 (6,022) Net cash provided by (used in) discontinued operations 8,683 (28,425) -------- -------- Net cash provided by (used in) operating activities 10,437 (34,447) -------- -------- CASH FLOWS FROM INVESTING ACTIVITIES: Additions to real estate (28,183) (28,480) Cash restricted for construction financing 2,126 (6,098) Cash restricted for operating liabilities 8,402 (14,684) -------- -------- Net cash used in investing activities (17,655) (49,262) -------- -------- CASH FLOWS FROM FINANCING ACTIVITIES: Issuance of debt 10,527 138,425 Debt repayments (811) (39,766) Deferred debt expense - (5,553) -------- -------- Net cash provided by financing activities 9,716 93,106 -------- -------- Net increase in cash and cash equivalents 2,498 9,397 Cash and cash equivalents at beginning of period 8,471 2,363 -------- -------- Cash and cash equivalents at end of period $ 10,969 $ 11,760 ======== ======== SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: Cash payments for interest (including capitalized interest of $6,452 and $4,569) $ 15,354 $ 12,579 ======== ========
See notes to consolidated financial statements. Page 5 of 43 6 ALEXANDER'S, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. CONSOLIDATED FINANCIAL STATEMENTS The consolidated balance sheet as of September 30, 1996, the consolidated statements of operations for the three and nine months ended September 30, 1996 and September 30, 1995, and the consolidated statements of cash flows for the nine months ended September 30, 1996 and September 30, 1995 are unaudited. In the opinion of management, all adjustments (which include only normal recurring adjustments) necessary to present fairly the financial position, results of operations and changes in cash flows have been made. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted. These condensed consolidated financial statements should be read in conjunction with the financial statements and notes thereto included in the Company's 1995 Annual Report to Shareholders. The results of operations for the three and nine months ended September 30, 1996 are not necessarily indicative of the operating results for the full year. 2. RELATED PARTY TRANSACTIONS Under a management and development agreement (the "Management Agreement") with Vornado Realty Trust ("Vornado"), Alexander's incurred fees of $937,000 and $1,162,000 in the three months ended September 30, 1996 and 1995 and $4,405,000 and $2,713,000 in the nine months ended September 30, 1996 and 1995. The fees for the nine months ended September 30, 1996, included $1,443,000 related to the substantial completion of the redevelopment of the Rego Park I property in the quarter ended March 31, 1996. The fee pursuant to the Management Agreement is in addition to the leasing fee the Company pays to Vornado under the terms of its leasing agreement. Subject to the payment of rents by tenants, Vornado is due $4,357,000 at September 30, 1996 under such agreement. The lease which Vornado had previously negotiated with Caldor on behalf of the Company for a portion of its Rego Park I property was rejected in March 1996 in Caldor's bankruptcy proceedings, resulting in $1,717,000 of previously recorded leasing fees payable and the corresponding deferred lease expense being reversed in the quarter ended March 31, 1996. In addition, the Company incurred interest on its loan from Vornado of $1,889,000 in each of the three-month periods ended September 30, 1996 and 1995, of which $1,045,000 was capitalized this year and $279,000 was capitalized last year. Interest on the loan was $5,627,000 and $4,087,000 in the nine months ended September 30, 1996 and 1995, of which $2,882,000 and $900,000 were capitalized. Page 6 of 43 7 ALEXANDER'S, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 3. CONTINGENCIES Paramus Property Recently, the Company was notified that the State of New Jersey had reduced the acreage that it intends to condemn to approximately 9 acres from the 10 acres it had previously sought. The land subject to the condemnation is located on the periphery of the property and will be used to lessen traffic congestion. The New Jersey Department of Transportation ("DOT") amended its offer to purchase the land to approximately $15,000,000 (previously $15,400,000) based on an appraisal performed on its behalf for the reduced acreage. The Company is negotiating with the DOT to attempt to reach agreement on the value and other terms. In the event that the Company and the DOT do not reach agreement, a formal process may be initiated by the DOT pursuant to which, among other things, a group of independent commissioners will be appointed by a court to adjudicate the disputed matters. Environmental Matters The results of a 1993 Phase I environmental study at the Kings Plaza Shopping Center's ("Center") property show that certain adjacent properties owned by third parties have experienced petroleum hydrocarbon contamination. Based on this study and preliminary investigation of the Center's property and its history, there is potential for contamination on the property. If contamination is found on the property, the Center may be required to engage in remediation activities; management is unable to estimate the financial impact of potential contamination if any is discovered in the future. If further investigations reveal that there is contamination on its site, since the Center believes such contamination would have resulted from activities of third parties, the Center intends to pursue all available remedies against any of these third parties. The Company is aware of the presence of asbestos-containing materials at several of its properties and believes that it manages such asbestos in accordance with applicable laws. The Company plans to abate or remove such asbestos as appropriate. Caldor Corporation ("Caldor") In September 1995, Caldor, which leases the Fordham Road and Flushing Properties from the Company, filed for relief under Chapter 11 of the United States Bankruptcy Code. Property rentals from these two leases represent approximately 39% of the Company's consolidated revenues for the nine months ended September 30, 1996 and approximately 56% of the Company's consolidated revenues for the year ended December 31, 1995. Caldor leased these properties "as is", expended the entire cost of refurbishing these stores and has not affirmed either of these leases, but continues to pay rent on both of these locations. The loss of property rental payments under either of these leases could have a material adverse effect on the financial condition and results of operations of the Company. Caldor was also a lessee for a portion of the Rego Park I property. Caldor received Bankruptcy Court approval to reject the lease effective March 18, 1996. The Company has filed a claim for damages based on such rejection. Page 7 of 43 8 ALEXANDER'S, INC. AND SUBSIDIARIES MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RESULTS OF OPERATIONS The Company's revenues, which consist of property rentals, tenant expense reimbursements and equity in income of unconsolidated joint venture were $5,379,000 in the quarter ended September 30, 1996, compared to $4,121,000 in the prior year's quarter, an increase of $1,258,000. Revenues were $15,749,000 for the nine months ended September 30, 1996, compared to $10,620,000 for the prior year's nine months, an increase of $5,129,000. Property rentals were $4,315,000 in the quarter ended September 30, 1996, compared to $2,571,000 in the prior year's quarter, an increase of $1,744,000. Property rentals were $11,768,000 in the nine months ended September 30, 1996, compared to $7,614,000 in the prior year's nine months, an increase of $4,154,000. These increases resulted primarily from the commencement of rents and paid parking at the Company's Rego Park I property in March 1996. The increases in tenant expense reimbursements reflect a corresponding increase in operating expenses passed through to tenants. Equity in income of unconsolidated joint venture ("the Kings Plaza Shopping Center") was $666,000 in the quarter ended September 30, 1996, compared to $1,270,000 in the prior year's quarter, a decrease of $604,000. This decrease resulted primarily because billings to tenants for certain reimbursable expenses in the prior year's quarter included a cumulative adjustment and therefore represented nine months of expenses. In the current year these expenses were billed ratably over the nine months. Equity in income of the Kings Plaza Shopping Center was $2,616,000 for the nine months ended September 30, 1996, compared to $2,131,000 in the prior year's nine months, an increase of $485,000. This increase resulted primarily from an increase in rent from mall tenants. Operating expenses were $1,481,000 in the quarter ended September 30, 1996, compared to $1,124,000 in the prior year's quarter, an increase of $357,000. Operating expenses were $3,984,000 in the nine months ended September 30, 1996, compared to $2,726,000 in the prior year's nine months, an increase of $1,258,000. These increases resulted from (i) expenses in connection with the paid parking operations in Rego Park and (ii) real estate taxes, maintenance and utility expenses, which were primarily passed through to tenants. General and administrative expenses were $961,000 in the quarter ended September 30, 1996, compared to $825,000 in the prior year's quarter, an increase of $136,000. Expenses were lower in the prior year's quarter as a result of a franchise tax credit during that period. General and administrative expenses were $3,333,000 in the nine months ended September 30, 1996 compared to $3,523,000 in the prior year's nine months, a decrease of $190,000. This decrease resulted primarily from lower professional fees. Interest and debt expense for the quarter and nine months ended September 30, 1996, did not change significantly from such expense for the prior year's periods. The increase in interest and debt expense for the quarter and the nine months ended September 30, 1996 resulting from higher levels of average debt was offset by an increase in interest capitalized during development this year. Other income and interest income, net was $639,000 in the quarter ended September 30, 1996, compared to $348,000 in the prior year's quarter, an increase of $291,000. Other income and interest income, net was $2,294,000 in the nine months ended September 30, 1996, compared to $1,132,000 in the prior year's nine months, an increase of $1,162,000. These increases resulted primarily from (i) the amortization of deferred gains in connection with the Company's postretirement healthcare benefits and workmen's compensation insurance refunds aggregating $416,000 and $946,000 in the three and nine Page 8 of 43 9 ALEXANDER'S, INC. AND SUBSIDIARIES MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS months ended September 30, 1996 and (ii) a reimbursement of expenses of $658,000 received in the second quarter of this year from the Company's partner in the unconsolidated joint venture, partially offset by (iii) a decrease in interest income of $232,000 and $521,000 as a result of lower average cash invested this year than in the prior year. As a result of the Company's election to be taxed as a REIT for the year ended December 31, 1995, the deferred tax balance of $1,406,000 at December 31, 1994 was reversed, resulting in an income tax benefit in the quarter ended March 1995. Discontinued Operations The Company recorded income from discontinued operations of $11,602,000 in the quarter ended June 30, 1996 comprised of (i) $9,602,000 from the settlement of a tax certiorari proceeding against the County of Nassau for overpayment of taxes on its former Valley Stream Store property and (ii) $2,000,000 from the reduction of "Other liabilities of discontinued operations" to amounts estimated to be needed to resolve these liabilities. LIQUIDITY AND CAPITAL RESOURCES Nine Months Ended September 30, 1996 Cash provided by operating activities of $10,437,000 was comprised of (i) net cash provided by discontinued operations of $8,683,000 (proceeds from settlement of tax certiorari proceedings, net of payment of allowed general unsecured claims) and (ii) $2,194,000 from results of operations (net loss from continuing operations of $1,039,000 offset by non-cash items of $3,233,000), offset by (iii) a net change in operating assets and liabilities of $440,000. Net cash used in investing activities of $17,655,000 was comprised of capital expenditures of $28,183,000, offset by the release of cash restricted for operating liabilities of $10,528,000. Net cash provided by financing activities of $9,716,000 was comprised of proceeds from the issuance of debt of $10,527,000, offset by repayments of debt of $811,000. Nine Months Ended September 30, 1995 Cash used in operating activities of $34,447,000 was comprised of (i) a net loss of $6,630,000, (ii) the payment of liabilities of discontinued operations of $28,425,000 and (iii) non-cash items of $638,000, offset by (iv) a net change in operating assets and liabilities of $1,246,000. Net cash used in investing activities of $49,262,000 was comprised of (i) capital expenditures of $28,480,000, (ii) cash restricted for construction financing of $6,098,000 and (iii) cash restricted for operating liabilities of $14,684,000. Net cash provided by financing activities of $93,106,000 was comprised of proceeds from the issuance of debt of $132,872,000 (net of deferred debt expense), offset by repayments of debt of $39,766,000. In connection with the redevelopment of the existing building and the construction of a multi-level parking structure on its Rego Park I property, the Company has expended approximately $36,500,000 and expects to expend up to an additional $3,000,000 to complete the project. At September 30, 1996, there was $1,700,000 available under a $60,000,000 construction loan to fund these expenditures with the balance to be funded from existing cash. The Company estimates that its capital expenditure requirements for other redevelopment projects will include: (i) the redevelopment of the Paramus property at a cost of Page 9 of 43 10 ALEXANDER'S, INC. AND SUBSIDIARIES MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS approximately $50,000,000 to $60,000,000 and (ii) the demising of the Kings Plaza Store which may have an improvement cost between $5,000,000 and $10,000,000. Further, the Company is evaluating redevelopment plans for the Lexington Avenue site, which may involve razing the existing building and developing a large multi-use building requiring capital in excess of $300,000,000 to be expended. While the Company anticipates that financing will be available for these redevelopment projects, there can be no assurance that such financing will be obtained or if obtained, that such financings will be on terms that are acceptable to the Company. In addition, it is uncertain as to when these projects will commence. On September 18, 1995, Caldor, which leases the Fordham Road and Flushing Properties from the Company, filed for relief under Chapter 11 of the United States Bankruptcy Code. Caldor accounted for approximately 39% of the Company's consolidated revenues for the nine months ended September 30, 1996 and approximately 56% of the Company's consolidated revenues for the year ended December 31, 1995. Caldor leased these properties "as is", expended the entire cost of refurbishing these stores and continues to pay rent on both of these locations. The loss of property rental payments under either of these leases could have a material adverse effect on the financial condition and results of operations of the Company. Caldor was also a lessee for a portion of the Rego Park I property. Caldor received Bankruptcy Court approval to reject the lease effective March 18, 1996. The Company has filed a claim for damages based on such rejection. Alexander's current operating properties (five of its nine properties) do not generate sufficient cash flow to pay all of its expenses. The Company's four non-operating properties (Lexington Avenue, Paramus, the Kings Plaza Store and Rego Park II) are in various stages of redevelopment. As rents commence from a portion of the redevelopment properties, the Company expects that cash flow will become positive. The Company estimates that the fair market values of its assets are substantially in excess of their historical cost and that there is additional borrowing capacity. Alexander's continues to evaluate its needs for capital which may be raised through (a) property specific or corporate borrowing, (b) the sale of securities and (c) asset sales. In December 1995, the Company completed a tax certiorari proceeding with the City of New York regarding the Kings Plaza Shopping Center property. As a result of this settlement, $6,000,000 of the $8,000,000 held in escrow for unpaid real estate taxes was released during the nine months ended September 30, 1996 and the balance is expected to be released in the near future. In addition, the Company may receive proceeds from condemnation proceedings of a portion of its Paramus property -- see Note 3 - Contingencies - - "Paramus Property". Although there can be no assurance, the Company believes that these cash sources will be adequate to fund cash requirements until its operations generate adequate cash flow. Page 10 of 43 11 ALEXANDER'S, INC. PART II. OTHER INFORMATION ITEM 5. OTHER MATTERS On November 7, 1996, the Board of Directors of the Company amended the By-Laws of the Company to require advance written notice (a "Stockholder's Notice") of (i) any business or proposal to be brought by any stockholder of the Company at an annual meeting of stockholders (which notice must contain certain specified information relating to any such business or proposal and any such stockholder) and (ii) any stockholder's intention to nominate a director at a stockholder meeting (which notice must contain certain specific information relating to any such stockholder and any such nominee). The requirements set forth in the By-Laws are in addition to all applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder with respect to the matters described above. A copy of the By-Laws of the Company, as amended, has been filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996. Pursuant to the By-Laws, with respect to the 1997 Annual Meeting, a Stockholder's Notice must be delivered to or mailed to, postage prepaid, and received at the principal executive offices of the Company no later than March 23, 1997 and no earlier than February 21, 1997. A Stockholder's Notice should be addressed to the Secretary of the Company, Alexander's, Inc., Park 80 West, Plaza II, Saddle Brook, New Jersey 07663. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K. (a) Exhibits: The following exhibits are filed with this Quarterly Report on Form 10-Q. 3.1 Amended By-Laws of the Registrant 27 Financial Data Schedule (b) Reports on Form 8-K None Page 11 of 43 12 ALEXANDER'S, INC. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. ALEXANDER'S, INC. -------------------------------- (Registrant) Date: November 7, 1996 /s/ Joseph Macnow ----------------------------------- JOSEPH MACNOW Vice President - Chief Financial Officer and Chief Accounting Officer Page 12 of 43 13 ALEXANDER'S, INC. EXHIBIT INDEX
PAGE NUMBER IN SEQUENTIAL EXHIBIT NO. NUMBERING ----------- -------------- 3.1 Amended By-Laws of the Registrant 14 27 Financial Data Schedule 43
Page 13 of 43 EX-3.1 2 AMENDED BY-LAWS 1 BY-LAWS OF ALEXANDER'S, INC. (As Amended on November 7, 1996) ARTICLE I Meetings of Stockholders. Section 1.1 Annual Meetings. The annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date, and at such time and place within or without the State of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board or any Vice Chairman of the Board to be held on such date, and at such time and place within or without the State of Delaware as the Board of Directors, the Chairman of the Board or any Vice Chairman of the Board, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board or any Vice Chairman of the Board whenever stockholders owning not less than a majority of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board or any Vice Chairman of the Board. Page 14 of 43 2 2 Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board or any Vice Chairman of the Board, and the Secretary or an Assistant Secretary, of every meeting of stockholders stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be delivered either personally or by mail, to each stockholder entitled to vote at such voting meeting not less than ten or more than fifty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request. Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of a majority of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where provided otherwise by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority in interest of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside or act as secretary of such meeting, may adjourn the meeting from time to time until a quorum shall be present. Page 15 of 43 3 3 Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and, except where otherwise provided by statute, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholder entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse to or be unable to serve, then such appointment may be made by the presiding officer at the meeting. Section 1.9 Written Consent in Lieu of Meeting. Whenever under the laws of the State of Delaware action required to be approved or consented to by stockholders may be so proved or consented to by unanimous or other written consent or approval without a meeting then such consent or approval shall be as effective as if made by the stockholders at a meeting. Section 1.10 Advance Notice of Business to Be Transacted at Annual Meetings. To be properly brought before the annual meeting of the stockholders, business must be either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (b) otherwise Page 16 of 43 4 4 properly brought before the meeting by or at the direction of the Board (or any duly authorized committee thereof) or (c) otherwise properly brought before the meeting by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 1.10 and on the record date for the determination of stockholders entitled to vote at such meeting and (ii) who complies with the notice procedures set forth in this Section 1.10. In addition to any other applicable requirements, including but not limited to the requirements of Rule 14a-8 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than 60 days nor more than 90 days prior to the anniversary date of the immediately preceding annual meeting of the stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within 30 days before or 60 days after such anniversary date, notice by the stockholder in order to be timely must be so received not earlier than the 90th day prior to such annual meeting and not later than the close of business on the later of (i) the 60th day prior to such annual meeting or (ii) the tenth day following the day on which (A) such notice of the date of the annual meeting is mailed or (B) public disclosure of the date of the annual meeting is made, whichever first occurs. For the Page 17 of 43 5 5 purposes of these By-Laws, "public disclosure" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act. To be in proper written form, a stockholder's notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting (a) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, (b) the name and record address of such stockholder, and the beneficial owner, if any, on whose behalf such notice is made (c) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder, and the beneficial owner, if any, together with evidence reasonably satisfactory to the Secretary of such beneficial ownership, (d) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder or the beneficial owner in such business and (e) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting. Notwithstanding anything in these By-Laws to the contrary, no business shall be conducted at the annual meeting of the stockholders except business brought before such meeting in accordance with the procedures set forth in this Section 1.10; provided, however, that, once business has been properly brought before such meeting in accordance with such Page 18 of 43 6 6 procedures, nothing in this Section 1.10 shall be deemed to preclude discussion by any stockholder of any such business. If the presiding officer of such meeting determines that business was not properly brought before the meeting in accordance with the foregoing procedures, the presiding officer shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors or stockholders (any such resolution of either the Board of Directors or stockholders being subject to any later resolution of either of them) but in no event shall such number be less than three or more than the maximum number permitted by the Amended and Restated Certificate of Incorporation. Section 2.2 Classification of Directors; Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders, as provided in the Amended and Restated Certificate of Incorporation of the Corporation and herein. Commencing with the election of directors taking place at the 1975 meeting of the stockholders, the Board of Directors shall be divided into three classes, designated Classes, I, II and III, respectively. The Board of Directors shall by resolution fix such classes as nearly equal in number as possible, and any increase or decrease in the number of directors from Page 19 of 43 7 7 time to time shall be made in such a way as to preserve such equality as nearly as possible; provided, however, that with respect to the class of directors nominated for election for a term expiring in 1984, such class shall consist of only four persons. The term of office of one of the classes of directors shall expire each year. At the annual meeting of the stockholders held in 1975, Class I directors shall be elected with terms expiring at the 1976 annual meeting, Class II directors shall be elected with the terms expiring at the 1977 annual meeting and Class III directors shall be elected with terms expiring at the 1978 annual meeting. Upon expiration of the term of any class of directors, their successors shall be elected to hold office until the third succeeding annual meeting of stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation or removal in the manner hereinafter provided. Section 2.3 Nomination of Directors and Advance Notice Thereof. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided in the Amended and Restated Certificate of Incorporation with respect to the right of holders of preferred stock or any other class of capital stock of the Corporation to nominate and elect a specified number of directors in certain circumstances. Nominations of persons for election to the Board may be made at any annual meeting of the stockholders, or at any special meeting of the stockholders called for the purpose of electing directors, (a) by or at the direction of the Board (or any duly authorized committee thereof) or (b) by any stockholder Page 20 of 43 8 8 of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.3 and on the record date for the determination of stockholders entitled to vote at such meeting and (ii) who complies with the notice procedures set forth in this Section 2.3. In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation (a) in the case of an annual meeting, not less than 60 days nor more than 90 days prior to the anniversary date of the immediately preceding annual meeting of the stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within 30 days before or 60 days after such anniversary date, notice by the stockholder in order to be timely must be so received not earlier than the 90th day prior to such annual meeting and not later than the close of business on the later of (i) the 60th day prior to such annual meeting or (ii) the tenth day following the day on which (A) such notice of the date of the annual meeting is mailed or (B) such public disclosure of the date of the annual meeting is made, whichever first occurs, or (b) in the case of a special meeting of stockholders called for the purpose of electing directors, not earlier than the 90th day prior to such special meeting and not later than the close of business on the later of (i) the 60th day prior to such special meeting or (ii) the tenth day following the day on which (A) notice of the date of the special meeting is mailed or (B) public disclosure of the date of the special meeting is made, whichever first occurs. Page 21 of 43 9 9 To be in proper written form, a stockholder's notice to the Secretary must set forth (a) as to each person whom the stockholder proposes to nominate for election as a director, (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by the person and (iv) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (b) as to the stockholder giving the notice, (i) the name and record address of such stockholder, and the beneficial owner, if any, on whose behalf such notice is made (ii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder and the beneficial owner, if any, together with evidence reasonably satisfactory to the Secretary of such beneficial ownership, (iii) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (iv) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the person(s) named in its notice and (v) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations Page 22 of 43 10 10 promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation. No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 2.3. If the presiding officer of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the presiding officer of the meeting shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded. Notwithstanding anything in this Section 2.3 to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public disclosure naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least 70 days prior to the first anniversary of the preceding year's annual meeting, a stockholder's notice required by this Section 2.3 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public disclosure is first made by the Corporation. Section 2.4 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation or removal, or as the result of the Page 23 of 43 11 11 increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Any director so chosen shall hold office until the next election of the class of directors for which such director shall have been chosen and until his successor shall have been elected or until his earlier death, resignation or removal in the manner hereinafter provided. If the whole Board shall resign, said Board, prior to their resignations, may elect their successors, who will take office upon such resignations. Section 2.5 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place or place or regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board, any Vice Chairman of the Board, or any three directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephoned or delivered to him personally, not later than two days before the day on which the meeting is Page 24 of 43 12 12 to be held. Such notice shall state the time and place of such meeting but, unless otherwise required by statute, the Amended and Restated Certificate of Incorporation of the Corporation or these By-Laws, need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Whenever the laws of the State of Delaware authorize or permit directors to act other than at a meeting, including, but not limited to, acting through unanimous or other written consents, then such action shall be as effective as if taken by the directors at a meeting. Section 2.6 Quorum. A majority of the total number of members of the Board of Directors as constituted from time to time shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Amended and Restated Certificate of Incorporation or by these By-Laws. Section 2.7 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board or any Vice Chairman of the Board. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors Page 25 of 43 13 13 or one of the above named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.8 Removal of Directors. At any special meeting of the stockholders, duly called as provided in these By-Laws, any director or directors may, by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.4. Section 2.9 Compensation of Directors. Directors shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of two or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall Page 26 of 43 14 14 have and may exercise the power of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. The Board may designate one or more directors as alternate members of any committee, who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-Laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or any Assistant Secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or Page 27 of 43 15 15 waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable, addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof by telegram, radio, cable or other writing. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings, and report the same to the Board of Directors when required. Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of a majority but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time and until a quorum shall be present. Subject to the foregoing and other provisions of these By-Laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Page 28 of 43 16 16 Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board or any Vice Chairman of the Board. Unless otherwise specified in such notice, such resignation shall take effect upon receipt thereof by the Board or any such officer. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by the Board of Directors. Section 3.7 Compensation. Committee member shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity when receiving compensation therefor. Section 3.8 Committees to Advise the Board of Directors. The Board of Directors may create, in addition to Committees of the Board as hereinbefore provided in this Article, one or more committees the sole function and responsibility of which shall be to make recommendations to the Board of Directors with respect to the management and operations of the Corporation. Such committees may be given such titles as may be deemed Page 29 of 43 17 17 appropriate by the Board of Directors. Each such committee shall consist of two or more persons appointed by the Board of Directors, which persons shall be directors or officers of the Corporation. The Board of Directors may designate from among the members of each such committee a Chairman, a Vice Chairman and a Secretary. Such committees shall continue in existence at the pleasure of the Board of Directors, and the members of each such committee shall continue to serve as such at the pleasure of the Board of Directors. ARTICLE IV Officers Section 4.1 Number. The officers of the Corporation shall be a Chairman of the Board, one or more Vice Chairman of the Board, a Chief Executive Officer, a Vice President, a Secretary, a Treasurer, and such other officers as may be elected or appointed in accordance with the provisions of Sections 4.2 or 4.4. Section 4.2 Vice Presidents and General Counsel. The officers of the Corporation may include one or more vice presidents who shall have such further titles and designations (including, without limitation, executive vice president, senior vice president, vice president--[with description of particular function or responsibility], and any combination of the foregoing) as the Board of Directors may from time to time determine. The Board of Directors may from time to time determine the seniority as amongst the vice presidents, in terms of either titles and designations or individuals at the time serving, or both. The officers of the Corporation may also include a General Counsel. Page 30 of 43 18 18 Section 4.3 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.4) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.5 or shall have been removed in the manner provided in Section 4.6. Section 4.4 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more Assistant Vice Presidents, one or more Assistant Secretaries and one or more Assistant Treasurers) to hold office for such period, have such authority and perform such duties as are provided in these By-Laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.5 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer or other officer in the Office of the Chief Executive Officer. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or any such officer. Page 31 of 43 19 19 Section 4.6 Removal. Any officer specifically designated in Section 4.1 or 4.2 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.4 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.7 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-Laws for regular election or appointment to such office. Section 4.8 The Chairman of the Board. The Chairman of the Board shall be elected from among the members of the Board of Directors. If present, he shall preside at all meetings of stockholders and he shall see that all orders and resolutions of the Board of Directors are carried into effect. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent. From time to time, he shall report to the Board of Directors all Page 32 of 43 20 20 matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall also perform such other duties as are given to him by these By-Laws or as from time to time may be assigned to him by the Board of Directors. Section 4.9 The Vice Chairman of the Board. The Vice Chairman of the Board or, if there shall be more than one, the Vice Chairmen, shall be elected from among the members of the Board of Directors. He or they, as the case may be, shall assist the Chairman of the Board. He or they, as the case may be, may sign with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent. From time to time, he or they, as the case may be, shall report to the Board of Directors all matters within his or their, as the case may be, knowledge which the interests of the Corporation may require to be brought to their attention. He or they, as the case may be, shall also perform such other duties as are given to him or them, as the case may be, by these By-Laws or as from time to time may be assigned to him or them, as the case may be, by the Board of Directors. Section 4.10 The Chief Executive Officer. The Chief Executive Officer shall perform such duties as are given to him by these By-Laws or as from time to time may be assigned to him by the Board of Directors. Subject to the overall authority of the Board of Page 33 of 43 21 21 Directors, the Chief Executive Officer shall be the chief executive officer and the chief operating officer of the Corporation and shall have supervision of the day-to-day operations and administration of the Corporation. The Chief Executive Officer may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent. From time to time, the Chief Executive Officer shall report to the Board of Directors all matters within their knowledge which the interests of the Corporation may require to be brought to their attention. Section 4.11 The Vice Presidents. The Vice Presidents shall perform such duties as are given to them by these By-Laws or as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, any Vice Chairman of the Board, or the Chief Executive Officer and, in the order of their seniority, or in any other order as the Board of Directors may from time to time determine, shall, in the absence of the Chief Executive Officer, have all the powers of and be subject to all restrictions upon the Chief Executive Officer; and may sign, if so authorized, in the name of the Corporation, deeds, mortgages, bonds and other instruments. Section 4.12 General Counsel. If there is a General Counsel, he shall be the chief legal officer of the Corporation. He shall perform such duties as are given to him by these By-Laws or as from time to time may be assigned to him by the Board of Directors, Page 34 of 43 22 22 the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer or other officers occupying the Office of the Chief Executive Officer. Section 4.13 The Secretary. The Secretary shall: (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors, and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-Laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an Assistant Secretary or an Assistant Treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of the Secretary and such other duties as are given to him by these By-Laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer or other officer occupying the Office of the Chief Executive Officer. Page 35 of 43 23 23 Section 4.14 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer or other officer occupying the Office of the Chief Executive Officer) shall perform all the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The Assistant Secretaries shall perform such other duties as from time to time may be assigned to them respectively by the Board of Directors, the Chairman of the Board or any Vice Chairman of the Board, the Chief Executive Officer or other officer occupying the Office of the Chief Executive Officer. Section 4.15 The Treasurer. The Treasurer shall: (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such other banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-Laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors or the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer or other officer occupying the Office of the Chief Executive Officer, whenever requested, a statement of the financial condition of the Corporation and of all of his transactions as Treasurer; Page 36 of 43 24 24 (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation, reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an Assistant Secretary or an Assistant Treasurer shall sign) certificates representing stock of the Corporation, the issuances of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-Laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer or other officer occupying the Office of the Chief Executive Officer. Section 4.16 Assistant Treasurers. At the request of the Treasurer or in his absence or disability the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors or the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer or other officer occupying the Office of the Chief Executive Officer) shall perform all the duties of the Treasurer, and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them respectively by the Board of Directors, the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer or other officer occupying the Office of the Chief Executive Officer or the Treasurer. Page 37 of 43 25 25 Section 4.17 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibility for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposits of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, any officer occupying the Office of the Chief Executive Officer, any Vice Presidents, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agents or agent, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained by or contracted for, by or behalf of the Corporation, and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances, may make, execute and deliver promissory Page 38 of 43 26 26 notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, and any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board or any Vice Chairman of the Board or Page 39 of 43 27 27 by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1 In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1 The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of Page 40 of 43 28 28 the State of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1 The fiscal year of the Corporation shall commence on January 1st and end on December 31st in each year. ARTICLE IX Personal Borrowing by Directors and Officers Section 9.1 No Director of officer of the Corporation shall borrow funds from the Corporation or from any subsidiary corporation of the Corporation by any manner or means whatsoever, and the Corporation shall not make any loans whatsoever to any Director or officer by any manner or means. Nothing contained in this Section, however, shall be deemed to prohibit the making or accepting of advances of reasonable sums for travel expenses in connection with the business of the Corporation or any subsidiary corporation, provided that such advances shall be accounted for promptly upon completion of the particular travel involved with respect to each such advance. Page 41 of 43 29 29 ARTICLE X Amendments Section 10.1 All By-Laws of the Corporation may be amended, altered or repealed, and new By-Laws may be made by the affirmative vote of the holders of record of a majority of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present; provided, however, that the power to amend, alter or repeal Article IX of the By-Laws and this proviso is reserved exclusively to the stockholders. Page 42 of 43 EX-27 3 FINANCIAL DATA SCHEDULE
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE COMPANY'S UNAUDITED FINANCIAL STATEMENTS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 1,000 9-MOS DEC-31-1996 SEP-30-1996 17,346 0 228 147 0 0 203,668 38,784 211,851 0 192,599 0 0 5,174 (13,747) 211,851 0 15,749 0 3,984 3,333 0 10,393 (1,039) 0 (1,039) 11,602 0 0 10,563 2.11 2.11
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