UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES
EXCHANGE ACT OF 1934
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Material Pursuant to §240.14a-12
Feldman Mall Properties, Inc.
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FELDMAN
MALL PROPERTIES, INC.
1010 Northern Blvd,
Suite 314
Great Neck, New York 11021
May 8,
2008
Dear Stockholder:
We cordially invite you to attend our 2008 annual meeting of
stockholders. We will hold the meeting at New York Marriott
Marquis, 1535 Broadway, New York, New York 10036
on May 28, 2008 at 10:00 a.m. local time.
At the annual meeting, we will ask our stockholders to:
1. Elect six directors to our Board of Directors to serve
until the 2009 annual meeting of stockholders and until their
successors are duly elected and qualify;
2. Ratify the appointment of KPMG LLP as our independent
registered public accounting firm for the fiscal year ending
December 31, 2008; and
3. Transact such other business as may properly come before
the annual meeting or any postponement or adjournment of the
meeting.
The attached proxy statement contains details of the proposals
to be voted on at the annual meeting and other important
matters. We encourage you to read the proxy statement carefully.
YOUR BOARD OF DIRECTORS HAS CONCLUDED THAT THE ELECTION OF THE
SIX NOMINEES AS DIRECTORS AND THE RATIFICATION OF THE
APPOINTMENT OF KPMG LLP AS OUR INDEPENDENT PUBLIC ACCOUNTANTS
ARE IN THE BEST INTERESTS OF OUR COMPANY AND THE BEST INTERESTS
OF OUR STOCKHOLDERS. THE BOARD OF DIRECTORS RECOMMENDS THAT YOU
VOTE FOR APPROVAL OF THESE PROPOSALS.
We cordially invite all stockholders to attend the annual
meeting in person. Any stockholder attending the annual meeting
may vote in person even if he or she previously returned a proxy.
Sincerely,
Larry Feldman
Chairman of the Board
FELDMAN
MALL PROPERTIES, INC.
TABLE OF CONTENTS
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held On May 28,
2008
NOTICE IS HEREBY GIVEN that the 2008 annual meeting of
stockholders, or the Annual Meeting, of Feldman Mall Properties,
Inc., a Maryland corporation, will be held at New York
Marriott Marquis, 1535 Broadway, New York,
New York 10036 on May 28, 2008 at 10:00 a.m.
local time, for the following purposes as further described in
the accompanying proxy statement:
1. To elect to the Board of Directors six members to hold
office until the 2009 annual meeting of stockholders and until
their successors are duly elected and qualify. The nominees to
the Board are the following: Larry Feldman, Bruce E. Moore,
Lawrence S. Kaplan, Paul H. McDowell, Wendy Luscombe and James
W. Sight.
2. To ratify the appointment of KPMG LLP as our independent
registered public accounting firm for the fiscal year ending
December 31, 2008.
3. To transact such other business as may properly come
before the annual meeting or any postponement or adjournment of
the meeting.
The Board of Directors has fixed the close of business on
May 9, 2008 as the record date for the determination of
stockholders entitled to receive notice of and to vote at the
Annual Meeting or any postponement or adjournment of the
meeting. Holders of record of our common stock at the close of
business on that day will be entitled to vote at the Annual
Meeting.
By Order of the Board of Directors
Thomas E. Wirth
Secretary
Great Neck, New York
May 8, 2008
WHETHER OR NOT YOU EXPECT TO ATTEND THE ANNUAL MEETING, TO
ENSURE YOUR REPRESENTATION AT THE ANNUAL MEETING, PLEASE MARK,
SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD AS PROMPTLY AS
POSSIBLE IN THE POSTAGE PREPAID ENVELOPE ENCLOSED FOR THAT
PURPOSE.
FELDMAN
MALL PROPERTIES, INC.
1010 Northern Blvd,
Suite 314
Great Neck, New York 11021
PROXY
STATEMENT
2008 Annual Meeting of
Stockholders
To Be Held May 28,
2008
We are sending this proxy statement to holders of our common
stock as of May 9, 2008 in connection with the solicitation
by our Board of Directors of proxies to be voted at our 2008
Annual Meeting of Stockholders or at any postponement or
adjournment of the meeting.
This proxy statement is accompanied by a copy of our Annual
Report to Stockholders for the year ended December 31, 2007.
About the
Meeting
Who is
entitled to vote at the meeting?
Only holders of record of our common stock at the close of
business on May 9, 2008 are entitled to receive notice of
and to vote at the Annual Meeting or at any postponement or
adjournment of the meeting. Each outstanding share of common
stock entitles its holder to cast one vote for each matter to be
voted upon. Stockholders do not have the right to cumulate votes
in the election of directors.
What
constitutes a quorum?
The presence, either in person or by proxy, of the holders of a
majority of the voting power of the outstanding common stock on
the record date is necessary to constitute a quorum at the
Annual Meeting. As of the record date, there will be 13,018,811
issued and outstanding shares of common stock.
What
are the voting rights of stockholders and what vote is needed to
approve each proposal?
Each stockholder is entitled to one vote for each share of
common stock registered in the stockholders name on the
record date. A plurality of the votes cast by holders of the
outstanding common stock is required for the election of
directors. A majority of the votes cast at the meeting by
holders of our common stock is required for the approval and
ratification of each other matter. We will treat abstentions as
shares that are present and entitled to vote for purposes of
determining the presence or absence of a quorum. Abstentions do
not constitute a vote for or against any
matter being voted on at the Annual Meeting and will not be
counted as votes cast. Therefore, abstentions will
have no effect on any of the proposals, assuming a quorum is
present. Broker non-votes, or proxies from brokers
or nominees indicating that such broker or nominee has not
received instructions from the beneficial owner or other entity
entitled to vote such shares on a particular matter with respect
to which such broker or nominee does not have discretionary
voting power, will be treated in the same manner as abstentions
for the purposes of the Annual Meeting.
How is
my vote counted?
If you properly execute a proxy in the accompanying form, and if
we receive it prior to voting at the Annual Meeting, the shares
that the proxy represents will be voted in the manner specified
on the proxy. If no specification is made, the common stock will
be voted FOR the proposals relating to the election of the six
nominees as directors and the ratification of our independent
auditors and as recommended by the Board with regard to all
other matters in the discretion of the proxy holder.
Votes cast by proxy or in person at the Annual Meeting will be
tabulated by the election inspectors appointed for the meeting,
who will determine whether or not a quorum is present. The
election inspectors will treat abstentions as shares that are
present and entitled to vote for purposes of determining the
presence of a quorum but as unvoted for purposes of determining
the approval of any matter submitted to the stockholders for a
vote. Under the rules of the New York Stock Exchange, or the
NYSE, if your shares are held by a broker, bank, or other
nominee, your shares may be voted by such nominee on the
proposals relating to the election of the six nominees as
directors and the ratification of our independent auditors, even
if you do not provide voting instructions, because they involve
matters that are considered routine.
Can I
change my vote after I submit my proxy card?
If you cast a vote by proxy, you may revoke it at any time
before it is voted by giving written notice to our Secretary
expressly revoking the proxy, by properly signing and forwarding
to us a proxy dated later, or by attending the Annual Meeting
and personally voting the common stock owned of record by you.
Who
pays the costs of soliciting proxies?
We will pay the costs of soliciting proxies from our
stockholders. In addition to solicitation by mail, certain of
our directors, officers and regular employees may solicit the
return of proxies by telephone, facsimile, personal interview or
otherwise without being paid additional compensation. We will
also reimburse brokerage firms and other persons representing
the beneficial owners of our shares for their reasonable
expenses in forwarding proxy solicitation material to the
beneficial owners in accordance with the proxy solicitation
rules and regulations of the Securities and Exchange Commission,
or the SEC, and the NYSE. The Altman Group, Inc. has been
engaged to solicit proxies on our behalf for a fee of $7,000
plus expenses.
NO PERSON IS AUTHORIZED ON OUR BEHALF TO GIVE ANY INFORMATION OR
TO MAKE ANY REPRESENTATIONS WITH RESPECT TO THE
PROPOSALS OTHER THAN THE INFORMATION AND REPRESENTATIONS
CONTAINED IN THIS PROXY STATEMENT, AND, IF GIVEN OR MADE, SUCH
INFORMATION AND/OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED AND THE DELIVERY OF THIS PROXY
STATEMENT SHALL, UNDER NO CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN OUR AFFAIRS SINCE THE DATE
HEREOF.
2
PROPOSAL 1:
ELECTION OF DIRECTORS
In accordance with the provisions of our charter, each member of
our Board is elected annually.
If a nominee becomes unavailable to serve as a director for any
reason, the shares represented by any proxy will be voted for
the person, if any, who may be designated by the Board to
replace that nominee. At this time, the Board has no reason to
believe that any nominee will be unavailable to serve as a
director if elected.
All of the nominees for director, other than
Messrs. Feldman and Moore, are independent within the
standards prescribed by the NYSE.
The following table sets forth the name, age and the position(s)
with us (if any) currently held by each person nominated as a
director:
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Name
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Age
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Title
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Larry Feldman
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54
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Chairman
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Lawrence S. Kaplan(1)
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65
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Director
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Bruce E. Moore(2)
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65
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Director
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Paul H. McDowell(3)
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46
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Director
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Wendy Luscombe(4)
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56
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Director
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James W. Sight
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52
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Director Nominee
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(1)
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Chairman of the Audit Committee and member of the Compensation
Committee and the Nominating and Corporate Governance Committee.
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Effective as of April 1, 2008, Mr. Moore is no longer
deemed independent within the meaning of the rules of the NYSE
and the SEC. Prior to April 1, 2008, Mr. Moore served
as chairman of the Compensation Committee and was a member of
the Audit Committee and Nominating and Corporate Governance
Committee.
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(3)
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Chairman of the Nominating and Corporate Governance Committee
and a member of the Compensation Committee and the Audit
Committee.
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(4)
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Our Board of Directors elected Ms. Luscombe to serve as a
director of our company effective May 12, 2008. She fills
the vacancy created by James C. Bourg who did not stand for
re-election at our 2007 annual meeting of stockholders. On
May 12, 2008, she will also become the Chair of the
Compensation Committee and a member of the Audit Committee and
the Nominating and Corporate Governance Committee.
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Larry Feldman
is the Chairman of our Board and has served
in that capacity since our incorporation in 2004. From our
inception through October 2007, Mr. Feldman also served as
our Chief Executive Officer. From 1999 to 2004, he served as
Chairman and Chief Executive Officer of Feldman Equities of
Arizona, LLC, our predecessor. From 1997 until 1998, he served
as Chairman of the Board, Chief Executive Officer and President
of Tower Realty Trust. From 1990 until 1997, Mr. Feldman
served as President and Chief Executive Officer of Feldman
Equities, where he was employed since 1980. Mr. Feldman is
also the founder and former Chairman of the Midtown West
Association of New York City and a member of the International
Council of Shopping Centers and National Association of Real
Estate Investment Trusts. Mr. Feldman graduated from
Windham College in 1976 with a B.S. in Economics.
Paul H. McDowell
has served as one of our directors since
the closing of our initial public offering in December 2004.
Mr. McDowell is a founder of CapLease, Inc., a NYSE listed
REIT, where he has been continuously employed since 1994,
including as Chief Executive Officer since March 2001, and as
Senior Vice President, General Counsel and Secretary from 1994
until February 2001. He has served on the board of directors of
CapLease since November 2001 and was named Chairman of its Board
of Directors in December 2007. From 1991 until 1994,
Mr. McDowell was Corporate Counsel for Sumitomo Corporation
of America, the principal U.S. subsidiary of one of the
worlds largest integrated trading companies. As Corporate
Counsel, Mr. McDowell advised on a wide range of domestic and
international corporate legal matters, including acquisitions,
complex financing transactions, power plant development,
shipping, litigation management and real estate. From 1987 to
1990, Mr. McDowell was an associate in the corporate
department at the Boston law firm of Nutter,
McClennen & Fish.
3
Mr. McDowell received a JD with honors from Boston
University School of Law in 1987 and received a Bachelor of Arts
from Tulane University in 1982.
Bruce E. Moore
has served as one of our directors since
the closing of our initial public offering in December 2004.
Mr. Moore has been a Director of American Land Lease, a
NYSE listed publicly traded REIT, since July 2001, and is a
member of its Audit, Compensation, Nominating and Corporate
Governance Committees. From 1998 to 2001, Mr. Moore served
as President and Chief Operating Officer of American Land Lease.
Mr. Moore is the founder and is the Chief Executive Officer
of Brandywine Financial Services Corporation and its affiliates,
or Brandywine, a private real estate firm specializing in
various aspects of the real estate industry, including asset
management, consulting, development, property management,
brokerage and capital formation. Mr. Moore holds a Masters
in Accounting and a Bachelor of Science in Economics from the
Wharton School of the University of Pennsylvania. In addition,
Mr. Moore is a member of the National Association of Real
Estate Investment Trusts and the International Council of
Shopping Centers.
Lawrence S. Kaplan
has served as one of our directors
since the closing of our initial public offering in December
2004. Mr. Kaplan is a Certified Public Accountant. He
retired as a partner from Ernst & Young LLP in
September of 2000 where he was the national director of that
firms REIT Advisory Services group. Mr. Kaplan joined
Ernst & Young LLP as a partner in 1995 and was
actively involved in the formation of numerous publicly traded
REITs. After his retirement, Mr. Kaplan was retained by
Ernst & Young LLP as a consultant during 2000 and
2001. Mr. Kaplan has served on the board of governors of
the National Association of Real Estate Investment Trusts and
has been actively involved in REIT legislative and regulatory
matters for over 20 years. Mr. Kaplan is a member of
the board of directors of Highwoods Properties, Inc., a publicly
traded REIT, where he serves as chairman of the Audit Committee.
Mr. Kaplan is also a member of the board of directors of
Maguire Properties, Inc., a publicly traded REIT, where he also
serves as chairman of the Audit Committee. Mr. Kaplan holds
a Bachelor of Science degree from the University of Chicago and
an MBA from Columbia University.
Wendy Luscombe
was elected by our Board of Directors to
serve as a director effective May 12, 2008. She fills the
vacancy created by Mr. Bourg who did not stand for
re-election at our 2007 annual meeting of stockholders.
Ms. Luscombe has been a Trustee of Acadia Realty Trust
since May 2004. She is also the Principal of WKL Associates,
Inc., a real estate investment manager and consultant founded in
1994. Ms. Luscombe was the Chief Executive Officer of Pan
American Properties, Inc., a REIT sponsored by British Coal
Pension Funds, for ten years. She also served as a member of the
Board of Governors of NAREIT. For nearly 25 years,
Ms. Luscombe has served on various boards of public
companies in the United States and United Kingdom, and is an
audit committee financial expert, as defined by the
SEC. She was a Board member, Chairman of the Investment
Committee and member of the Audit Committee of PXRE Group Ltd.,
an NYSE listed reinsurance company until August 2007 when PXRE
Group Ltd. merged with Argonaut Group. Ms. Luscombe also
serves as co-lead director, Executive Committee member and Audit
Committee member for Zweig Fund and Zweig Total Return Fund,
public closed-end mutual funds since May 2002. Additionally, she
serves as Chairman of the Management Oversight Committee for
Deutsche Bank International Real Estate Opportunities Fund.
Ms. Luscombe is also a member of National Association of
Corporate Directors, or NACD, and an NACD certified director.
She is a member of NACDs teaching faculty, a Fellow of the
Royal Institution of Chartered Surveyors and a member of the
Chartered Institute of Arbitrators.
James W. Sight
is our director nominee. He currently
serves as a director of LSB Industries, a company listed on the
American Stock Exchange. From 1995 to 2006, Mr. Sight has
been a consultant at Westmoreland Coal and was active in its
reorganization efforts. From 2001 to 2005, Mr. Sight served
as a director of Programmers Paradise, a NASDAQ listed computer
and software merchant. Prior to serving on the Board of
Programmers Paradise, Mr. Sight also served as a director
at various public companies, including Nevada Chemicals and U.S.
Home Corporation. Mr. Sight holds a B.S. in Finance from
the University of Pennsylvania Wharton School of Economics.
The affirmative vote of a plurality of the votes cast at the
Annual Meeting is required for the election of the six nominees
for director.
Recommendation
Regarding the Election of Directors
The Board recommends that you vote
FOR
the six named
nominees to be elected as our directors.
Other
Directors Not Standing for Election
Effective April 10, 2007, we entered into an agreement to
issue, at a price of $25 per share, up to $50 million 6.85%
Series A Cumulative Convertible Preferred Stock, or the
Series A Preferred Stock, to Inland American Real Estate
Trust, Inc., or Inland American, a public non-listed REIT
sponsored by an affiliate of the Inland Real Estate
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Group of Companies. Under the terms of the
Articles Supplementary relating to the Series A
Preferred Stock, at all times during which the Series A
Preferred Stock is outstanding, the holders of the Series A
Preferred Stock have the right to elect one person to serve as
one of our directors. In addition, in the event that, beginning
on March 31, 2008 (upon public release of the unaudited
interim financial statements for such date) and each March 31
thereafter, our fixed charge coverage ratio measured on a
trailing 12-month basis shall be less than 1.20 to 1.00 or our
capitalization ratio shall be less than 0.75 to 1.00, the
holders of the Series A Preferred Stock shall have the
right to elect one additional member to our Board. We do not
expect to meet the fixed charge coverage ratio of 1.20 to 1.00
when we release our unaudited financial statements as of and for
the period ended March 31, 2008. As a consequence, Inland
American will have the right to elect two directors to our Board
of Directors. Effective May 7, 2008, the following
designees of Inland American have been elected to our Board:
Thomas H. McAuley
, age 63, was elected by the
holders of the Series A Preferred Stock as a director of
our Board on May 8, 2008. Mr. McAuley has been a
director of Inland Real Estate Corporation since 2004. He has
been the President of Inland Capital Markets Group, Inc., an
affiliate of The Inland Group, Inc., a subsidiary of which is
the sponsor of Inland American Real Estate Trust, Inc., since
2005, and was the former Chairman and Chief Executive Officer of
IRT Property Company, an Atlanta-based real estate investment
trust that was traded on the New York Stock Exchange, from 1995
to 2003. Prior to joining IRT in 1995, Mr. McAuley was a
regional partner with Faison and Associates, a real estate
management and development company, which was the successor by
purchase of Ewing Southeast Realty where Mr. McAuley served
as Chairman and Chief Executive Officer from 1988 to 1993.
Mr. McAuley is a director of RBC Bank, The Westervelt
Company, Forestar Real Estate Group (NYSE: FOR) and Bank of
Atlanta and is a member of the International Council of Shopping
Centers, the National Association of Real Estate Investment
Trusts and the NACD.
Thomas P. McGuinness,
age 52, was elected by the holders
of the Series A Preferred Stock as a director of our Board on
May 8, 2008. Mr. McGuinness has been President of
Inland American HOLDCO Management, LLC, an affiliate of The
Inland Group, Inc., a subsidiary of which is the sponsor of
Inland American Real Estate Trust, Inc., since October 2005. He
oversees a staff of 150 employees, with four Senior
Vice Presidents reporting directly to him on the day-to-day
operations of Inland American HOLDCO and its management
companies. Mr. McGuinness is also responsible for the
performance and activities of diverse platforms created within
Inland American, including Inland American Winston Hotels,
Inland American Lodging, Inland American Communities, Student
Housing, and Inland Public Properties (Public to Private
ventures). He also takes leadership on new acquisitions and
partnerships. Mr. McGuinness oversees a diverse and
nationally-positioned portfolio of 45 million square feet,
including retail, office, and industrial properties, and
15,015 hotel rooms. From January 2005 to
January 2007, Mr. McGuinness has been Chief Operating
Officer and a director of Inland Retail Real Estate, Inc.
Mr. McGuinness joined the Inland organization in property
management in 1982. He is a licensed real estate broker. Prior
to joining the Inland organization, Mr. McGuinness was
former President of the Chicagoland Apartment Association and
former Regional Vice President of the National Apartment
Association. He was on the board of directors of the Apartment
Building Owners and Managers Association, and was a trustee with
the Service Employees Local #1 Health and Welfare Fund, as well
as the Pension Fund, and holds SCLS and SCSM accreditations from
the International Council of Shopping Centers.
5
PROPOSAL 2:
RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
The Board has appointed KPMG LLP as our independent registered
public accounting firm for the fiscal year ending
December 31, 2008. We expect a representative of KPMG LLP
to attend the Annual Meeting to make a statement, if he or she
desires, and to respond to appropriate questions.
Stockholder ratification of the selection of KPMG LLP as our
independent registered public accounting firm is not required by
the Bylaws or otherwise. However, the Board is submitting the
selection of KPMG LLP to the stockholders for ratification as a
matter of corporate practice. If the stockholders fail to ratify
the selection, the Audit Committee may reconsider whether or not
to retain KPMG in the future. Even if the selection is ratified,
the Audit Committee in its discretion may direct the appointment
of a different independent registered public accounting firm at
any time during the year if the Audit Committee determines that
such a change would be in our best interests.
The affirmative vote of a majority of the votes cast at the
Annual Meeting is required for the ratification of the selection
of KPMG LLP as our independent registered public accounting firm.
Recommendation
Regarding Ratification of the Appointment of KPMG LLP
The Board recommends that you vote
FOR
ratification of
this appointment.
6
OTHER
INFORMATION
Information
Regarding the Board of Directors and Its Committees
How
often did the Board meet during 2007?
The Board conducts its business through meetings and actions
taken by written consent in lieu of meetings. During the fiscal
year ended December 31, 2007, the Board held
eighteen meetings attended by all directors and acted
four times by written consent in lieu of a meeting.
What
Committees has the Board Established?
The Board has three standing committees: the Audit Committee,
the Compensation Committee, and the Nominating and Corporate
Governance Committee.
The Audit
Committee
The Audit Committee is responsible for, among other things,
retaining or dismissing our independent registered accounting
firm, reviewing with the auditors the plan and scope of the
audit and audit fees, monitoring the adequacy of reporting and
internal controls and meeting periodically with management and
our independent auditors.
From the date of the closing of our initial public offering in
December 2004 through March 31, 2008, the Audit Committee
has been composed of Lawrence S. Kaplan (Chairman), Paul H.
McDowell and Bruce E. Moore. On April 1, 2008,
Mr. Moore resigned from the Audit Committee. Our Board of
Directors elected Ms. Luscombe to serve as a director of
our company effective May 12, 2008. On such date, she will
become a member of the Audit Committee. Each of the current
members and the new proposed member of the Audit Committee is
independent as defined by the Audit Committees charter and
the SEC rules, and each of whom meet the financial literacy
standard required by the rules of the NYSE. Mr. Kaplan
qualifies as an audit committee financial expert as
defined by the SEC. Other members of the Board may also qualify
as financial experts. The Audit Committee operates under a
written charter that was adopted by the Board in 2004. A copy of
the charter may be found on our website at www.feldmanmall.com.
The Audit Committee met eleven times during 2007.
The
Compensation Committee
From the date of the closing of our initial public offering in
December 2004 through March 31, 2008, the Compensation
Committee has been composed of Lawrence S. Kaplan, Paul H.
McDowell and Bruce E. Moore (Chairman). On April 1, 2008,
Mr. Moore resigned from the Compensation Committee. On
May 12, 2008, Ms. Luscombe will become the Chair of
the Compensation Committee. Each of the members and the new
proposed Chairman of the Compensation Committee is independent
as defined by the Compensation Committees charter and the
NYSE listing standards. The functions of the Compensation
Committee are described under the Report of Compensation
Committee contained elsewhere in this proxy statement. The
Compensation Committee operates under a written charter that was
adopted by the Board in 2004. A copy of the charter may be found
on our website at www.feldmanmall.com. The Compensation
Committee met once during 2007 and acted once by written consent
in lieu of a meeting.
The
Nominating and Corporate Governance Committee
From the date of the closing of our initial public offering in
December 2004 through March 31, 2008, the Nominating and
Corporate Governance Committee has been composed of Lawrence S.
Kaplan, Paul H. McDowell (Chairman) and Bruce E. Moore. On
April 1, 2008, Mr. Moore resigned from the Nominating
and Corporate Governance Committee. On May 12, 2008,
Ms. Luscombe will become a member of the Nominating and
Corporate Governance Committee. The Nominating and Corporate
Governance Committee is responsible for, among other things,
considering and recommending actions relating to corporate
governance matters. In addition, the Committee considers and
recommends to the Board individuals to serve as our directors.
In making such recommendations, the Nominating and Corporate
Governance Committee considers such factors as it deems
appropriate. These factors may include judgment, skill,
diversity, experience with businesses and other organizations
comparable to our company, the interplay of the candidates
experience with the experience of other Board members, and the
extent to which the candidate would be a desirable addition to
the Board and any committees. The Committee may solicit and
consider suggestions of the directors or management regarding
possible nominees, may consider nominees suggested by
stockholders and generally shall guide the process of recruiting
new directors. The Nominating and Corporate Governance Committee
may employ professional search firms or consultants (for which
it may pay a
7
fee) to assist it in identifying potential members of the Board
with the desired skills and disciplines. Nominations made by
stockholders should be made in accordance with the procedures
set forth in this proxy statement under Other
Matters When Are Stockholder Proposals Due for the
2009 Annual Meeting? Candidates proposed by stockholders
will be considered using the same criteria and in the same
manner as all other candidates are considered.
Each of the members and the new proposed member of the
Nominating and Corporate Governance Committee is independent, as
independence is defined by the NYSE listing standards. The
Nominating and Corporate Governance Committee operates under a
written charter that was adopted by the Board in 2004. A copy of
the charter may be found on our website at www.feldmanmall.com.
The Nominating and the Corporate Governance Committee met
two times during 2007.
Are
there any special arrangements under which members of our Board
serve as Directors?
On May 5, 2008, we issued a joint press release with James
W. Sight announcing that we had entered into a settlement
agreement with Mr. Sight under which, among other things,
Mr. Sight agreed to irrevocably withdraw his nomination of
a slate of candidates for election to our Board at the Annual
Meeting and to vote his shares in favor of all of the
Boards director nominees at the Annual Meeting. As part of
the settlement agreement, we agreed to nominate Mr. Sight
for election as a director at the Annual meeting. Except with
regard to the settlement agreement with Mr. Sight and with
regard to the rights of holders of the Series A Preferred
Stock as described above under PROPOSAL 1: ELECTION
OF DIRECTORS Other Directors Not Standing for
Election, no arrangement or understanding exists between
any director and any other person or persons pursuant to which
any director was or is to be selected as a director or nominee.
Executive
Officers and Other Officers
Who
Are Our Key Officers?
As previously announced, we experienced significant changes in
our executive management team during and since the year ended
December 31, 2007. In particular, we announced the
following changes:
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Lloyd Miller
, former Executive Vice President of Leasing,
resigned from the Company effective April 17, 2007.
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James Bourg
, former Executive Vice President and Chief
Operating Officer, resigned from all of his positions with the
Company in the first quarter of 2008.
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Larry Feldman
, the Chairman of our Board, entered into a
letter agreement dated October 26, 2007 with the Company,
pursuant to which he agreed to step down as our Chief Executive
Officer.
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Thomas Wirth
was named President and retained his
position as Chief Financial Officer.
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Information with regard to Mr. Wirth is set forth below. He
serves at the pleasure of the Board. Company officers are
customarily elected as officers at the annual organizational
meeting of the Board held following each annual meeting of
stockholders.
Thomas Wirth
has been our President and Chief Financial
Officer since October 2007. He has served as our Executive Vice
President and our Chief Financial Officer since December 2004
and has served as our Corporate Secretary since November 2006.
Mr. Wirth is responsible for managing all of our
capital-raising initiatives, financial reporting and investor
relations activities, as well as overseeing all other finance,
treasury and accounting functions. Mr. Wirth served as a
Vice President and Principal Accounting Officer of SL Green
Realty Corp. from February 2004 to August 2004, Chief Financial
Officer of SL Green Realty Corp. from June 1999 to February
2004, and Vice President of Finance of SL Green Realty Corp.
from 1997 to 1999. Prior to joining SL Green Realty Corp.,
Mr. Wirth was Vice President of Financial Reporting and
Analysis for Greenwich, Connecticut-based United Waste System,
Inc., a waste management company acquired in 1997 by USA Waste
Systems, Inc. Mr. Wirth also spent ten years with
Ernst & Young LLP in various positions, including
Senior Manager. Mr. Wirth received his B.A. degree in
business management and accounting from Gettysburg College in
1985.
Some of the executive management and property functions that had
been the responsibility of our executive officers will be
performed by Brandywine pursuant to our agreement with
Brandywine which is described below under Certain
Relationships and Related Transactions.
8
REPORT OF
THE AUDIT COMMITTEE
In connection with our financial statements for the fiscal year
ended December 31, 2007, the Audit Committee has reviewed
and discussed our audited financial statements with management
and our independent registered public accounting firm. The Audit
Committee has discussed with the independent registered public
accounting firm the matters required to be discussed by
Statement on Auditing Standards No. 61,
Communication
with Audit Committees,
as amended. The Audit Committee has
received and reviewed the written disclosures and the letter
from the independent public accountants required by Independence
Standard No. 1,
Independence Discussions with Audit
Committees
, as amended, and have discussed with the
independent registered public accounting firm their
independence. The Audit Committee has discussed with our
independent registered public accounting firm the overall scope
and plans for their audit. The Audit Committee met with our
independent registered public accounting firm, with and without
management present, to discuss the results of their
examinations, their evaluations of our internal controls and the
overall quality of our financial reporting and our compliance
with Section 404 of the Sarbanes-Oxley Act of 2002.
Based on the reviews and discussions referred to above, the
Audit Committee did not become aware of any material
misstatements or omissions in the financial statements referred
to above and we recommended to the Board that the financial
statements be included in our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2007 filed with the
SEC.
Submitted
by the Audit Committee:
Lawrence S. Kaplan (Chairman)
Paul H. McDowell
The above report will not be deemed to be incorporated by
reference into any filing by us under the Securities Act of
1933, as amended, or the Securities Exchange Act of 1934, as
amended, except to the extent that we specifically incorporate
the same by reference.
9
CORPORATE
GOVERNANCE MATTERS
This section of our proxy statement contains information about a
variety of our corporate governance policies and practices. In
this section, you will find information about how we are
complying with the NYSEs final corporate governance rules
that were approved by the SEC. We are committed to operating our
business under strong and accountable corporate governance
practices. You are encouraged to visit the corporate governance
section of our corporate website at www.feldmanmall.com to view
or to obtain copies of our committee charters, code of business
conduct and ethics and corporate governance guidelines.
Additional information relating to the corporate governance of
our company is also included in other sections of this Proxy
Statement.
Corporate
Governance Guidelines
Our Board has approved a set of guidelines that provide the
framework for the governance of our Company. Our Board
recognizes that there is on-going and energetic debate about
corporate governance standards and that best practices and legal
requirements will evolve over time. Our Board will review these
guidelines and other aspects of governance periodically, as
necessary. Our corporate governance guidelines may be found on
our website at www.feldmanmall.com and are available in print to
any stockholder upon request.
Director
Independence
Our Corporate Governance Guidelines provide that a majority of
the directors serving on our Board must be independent as
required by NYSE listing standards. Based upon its review of all
relevant facts and circumstances, our Board has affirmatively
determined, based upon its review of all relevant facts and
circumstances and after considering all applicable
relationships, if any, between or among the directors and our
company or our management (any such relationships, if any, are
described in the section of this proxy statement entitled
Certain Relationships and Related Transactions),
that Lawrence S. Kaplan, Paul H. McDowell, Wendy Luscombe,
Thomas H. McAuley and Thomas P. McGuinness qualify as
independent directors under NYSE listing standards. James W.
Sight, our director nominee, will also qualify as an independent
director under the NYSE listing standards upon his election to
our Board at the Annual Meeting.
Meetings
of Non-Management Directors
Our non-management directors meet regularly in scheduled
executive sessions, without management present. These meetings
normally follow each scheduled quarterly meeting of our Board.
The current chairman of our Board is Larry Feldman and the
current chairman of the Nominating and Corporate Governance
Committee is Paul H. McDowell. Stockholders wishing to
communicate directly with the Chairman or the independent
directors may send correspondence addressed in care of: Company
Secretary, 1010 Northern Boulevard, Suite 314, Great Neck,
NY 11021.
Committee
Charters
Our Audit, Compensation, Disclosure and Nominating and Corporate
Governance Committee charters meet the standards that have been
established by the NYSE. Copies of these charters are available
on our website at www.feldmanmall.com and are available in print
to any stockholder upon request.
Code of
Business Conduct and Ethics
Our Code of Business Conduct and Ethics documents the principles
of conduct and ethics to be followed by our directors, officers
and employees. The purpose of the Code is to promote honest and
ethical conduct, compliance with applicable governmental rules
and regulations, full, fair, accurate, timely and understandable
disclosure in periodic reports, prompt internal reporting of
violations of the Code, and a culture of honesty and
accountability. A copy of the Code has been provided to each of
our directors, officers and employees. Among its many features,
the Code describes how employees can report any matter that may
be of concern to them on an anonymous basis. We have also
established an independent hotline service that may be used by
employees who wish to report any concerns or suspected
violations of our standards of conduct, policies or laws and
regulations. A copy of our Code of Business Conduct and Ethics
may be found on our website at www.feldmanmall.com and is
available in print to any stockholder upon request.
Audit
Committee Financial Expert
Our Board has determined that Lawrence Kaplan, the Chairman of
our Audit Committee, meets the criteria of an audit
committee financial expert, as defined by the SEC.
Mr. Kaplan has agreed to serve as our companys Audit
Committee financial expert.
10
Disclosure
Committee
We maintain a Disclosure Committee consisting of members of our
executive management staff. The Disclosure Committee meets at
least quarterly. The purpose of the Committee is to bring
together employees involved in the preparation of our financial
statements so that the group can discuss any issues or matters
of which the members are aware that should be considered for
disclosure in our public SEC filings. The Disclosure Committee
reports to our Board and, as appropriate, to our Audit
Committee. The Disclosure Committee has adopted a written
charter to memorialize the Committees purpose and
procedures. A copy of the charter may be found on our website at
www.feldmanmall.com.
Communications
with Stockholders
We provide the opportunity for stockholders to communicate with
the members of our Board. Communications to members of our
Board, any of its committees, or one or more of its individual
members may be made by mail to
c/o Company
Secretary, 1010 Northern Boulevard, Suite 314, Great Neck,
NY 11021.
Whistleblowing
and Whistleblower Protection Policy
Our Audit Committee has established procedures for (1) the
anonymous and confidential submission by employees of complaints
or concerns regarding questionable accounting and auditing
matters and (2) the receipt, retention and treatment of
employee complaints or concerns regarding such matters. An
employee may make a report by (i) calling our Compliance
Hotline at
866-294-5491,
(ii) emailing our Compliance Email Box at
https://secure.ethicspoint.com/domain/en/report_custom.asp?clientid=8076,
or (iii) delivering the report via regular mail, to
c/o Audit
Committee, Feldman Mall Properties, Inc., 1010 Northern
Boulevard, Suite 314, Great Neck, NY 11021. Any such
communications may be made anonymously.
Identification
of Director Candidates
Our Corporate Governance Guidelines and the written charter of
the Nominating and Corporate Governance Committee give such
committee responsibility for assisting our Board in identifying
and reviewing director candidates to determine whether they
qualify for membership on our Board and for recommending to our
Board the director nominees to be considered for election at our
annual meetings of stockholders.
In making such recommendations, the Nominating and Corporate
Governance Committee considers such factors as it deems
appropriate. These factors may include judgment, skill,
diversity, experience with businesses and other organizations
comparable to our company, the interplay of the candidates
experience with the experience of other Board members, and the
extent to which the candidate would be a desirable addition to
the Board and any committees. The Committee may solicit and
consider suggestions of the directors or management regarding
possible nominees, may consider nominees suggested by
stockholders and generally shall guide the process of recruiting
new directors. The Nominating and Corporate Governance Committee
may employ professional search firms or consultants (for which
it may pay a fee) to assist it in identifying potential members
of the Board with the desired skills and disciplines.
Nominations made by stockholders should be made in accordance
with the procedures set forth in this proxy statement under
Other Matters When Are Stockholder Proposals
Due for the 2009 Annual Meeting? Candidates proposed by
stockholders will be considered using the same criteria and in
the same manner as all other candidates are considered.
11
EXECUTIVE
COMPENSATION
Overview
Set forth below is a discussion of the principles underlying our
executive compensation policies and decisions, which are the
most important factors relevant to an analysis of these policies
and decisions. They provide qualitative information regarding
the manner and context in which compensation is awarded to, and
earned by, our executive officers and place in perspective the
data presented in the table and narrative that follow. As
discussed above under Other Information
Executive Officers and Other Officers Who Are Our
Key Officers? we experienced significant changes in our
executive management team during and since the year ended
December 31, 2007. In particular, Lloyd Miller and Jim
Bourg left the Company. They are no longer being compensated by
us. In addition, Larry Feldman, the Chairman of our Board,
entered into a letter agreement dated October 26, 2007 with
us pursuant to which he agreed to step down as our Chief
Executive Officer. Mr. Feldman continues to be compensated
under the terms of his existing employment agreement with the
Company dated December 13, 2004. Further, Tom Wirth has
been named President and remains Chief Financial Officer. He
also continues to be compensated under the terms of his existing
employment agreement with the Company dated August 13,
2004, which was subsequently amended on July 10, 2007.
Compensation
Discussion and Analysis
The Compensation Committee sets our compensation philosophy.
The basic philosophy underlying our executive compensation
policies, plans, and programs is that executive and stockholder
financial interests should be aligned as closely as possible,
and that compensation should be designed:
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To attract, retain, motivate and reward key employees to drive
achievement of our current and long-term strategic, business and
financial goals in the creation of stockholder value;
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To provide an appropriate mix of current compensation and
long-term rewards, which is properly balanced between salary and
performance-based pay and includes cash, equity compensation and
other benefits;
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To align stockholder interests and employee rewards; and
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To establish appropriate incentives for management and employees
that are consistent with our culture and values.
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In accordance with these objectives, a significant part of
executive compensation is subject to our overall performance and
the total return generated for our stockholders. We believe that
this approach best enables us to achieve our objectives and
satisfy the interests of our stockholders.
Setting
Executive Compensation
Through March 31, 2008, the Compensation Committee was
comprised of three independent directors, Bruce Moore
(Chairman), Larry Kaplan and Paul McDowell. Effective as of
April 1, 2008, Mr. Moore resigned from the
Compensation Committee. On May 12, 2008, Ms. Luscombe
will become the Chair of the Compensation Committee.
The Compensation Committee exercises independent discretion in
respect of executive compensation matters. The Compensation
Committee operates under a written charter adopted by our Board,
a copy of which is available on our website at
www.feldmanmall.com.
Subject to the terms of employment agreements that were adopted
by us in connection with our initial public offering, the
Compensation Committee determines the total compensation and the
allocation of such compensation among base salary, annual bonus
amounts and other long-term incentive compensation as well as
the allocation of such items among cash and equity compensation
for our executive management team. We do not have a
pre-established policy for the allocation between either cash
and non-cash compensation or annual and long-term incentive
compensation. Subject to the terms of such employment
agreements, the ultimate determination on total compensation and
the elements that comprise that total compensation is made
solely by the Compensation Committee.
The Compensation Committee had two meetings during 2007 to
evaluate executive performance against the goals and objectives
set at the beginning of the year, to monitor market conditions
in light of these goals and objectives, to determine whether
existing compensation arrangements were adequate to retain
certain executives in
12
light of our announcement on June 5, 2007 to explore
strategic alternatives in order to enhance stockholder value,
and to review our compensation practices. The Compensation
Committee then reports to our Board.
What
Executive Compensation is Designed to Reward
The Compensation Committee has designed executive compensation
to achieve three primary objectives:
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Hiring and Retaining Key Executives.
Hiring
and retaining an experienced, committed and effective team.
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Linking Compensation to Performance.
The
Compensation Committee generally rewards the achievement of
specific annual, long-term and strategic goals of both our
Company and each individual executive officer. The Compensation
Committee normally measures performance of each executive
officer by considering (1) our performance and the
performance of each executive officers department against
financial measures established at the beginning of the year and
(2) a subjective evaluation of each executive officer.
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Aligning the Interests of our Executive Officers with our
Stockholders.
Long-term incentive compensation is
designed to provide incentives for executive officers to
successfully implement our long-term strategic goals and to
retain such executive officer. We have designed our annual and
long-term incentive programs to award performance-based equity
to allow our executive officers to grow their ownership in our
Company and create a further alignment with our stockholders.
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Measuring
2007 Performance
Our compensation philosophy normally measures our performance as
a whole and the performance of each executive officers
area of responsibility. We measure performance through the
achievement of specific, objective financial goals by us and the
department of each executive officer as well as through a
subjective evaluation of each executive officer.
Elements
of our Executive Compensation Program and Why We Chose Each
Element
Executive compensation has been structured to provide short and
long-term incentives that promote continuing improvements in our
financial results and returns to our stockholders. The elements
of our executive compensation are primarily comprised of three
elements designed to complement each other. We view the various
components of compensation as related but distinct. Subject to
the parameters of the employment agreements that were adopted by
us in connection with our initial public offering, the
Compensation Committee looks to establish total compensation
packages that it believes will best create retention incentives,
link compensation to performance and align the interests of our
executive officers and our stockholders, as follows:
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Annual base salaries.
Annual base salaries are
paid for ongoing performance throughout the year. Our policy is
to set salaries at levels we believe will attract, retain and
motivate highly competent individuals. In establishing base
salary levels for our key executives, we consider the
executives position and responsibility, experience, length
of service with us and overall performance, as well as the
compensation practices of other companies in the markets where
we compete for executive talent. We provide this element of
compensation to compensate executive officers for services
rendered during the fiscal year. There were no increases to
annual base salaries of our executive officers during 2007.
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Bonuses.
We intend to award bonuses in the
future to executive officers and other employees based upon:
(1) overall Company performance; (2) departmental
performance; (3) individual performance; and (4) other
factors we determine to be appropriate. Bonuses may consist of a
cash component and an equity component. The equity component
will likely consist of restricted stock. Restricted stock awards
typically vest in equal installments over a period of years. We
provide this element of compensation because we believe that it
promotes loyalty, hard work and focus, honesty and vision. There
were no bonuses awarded to our executive officers in 2007.
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Long-Term Incentives.
Our 2004 long-term stock
incentive plan provides for long-term incentives through grants
of restricted stock, long-term incentive units, or
LTIP Units, stock appreciation rights, phantom shares,
dividend equivalent rights
and/or
other
equity-based awards, the exact form and number of which will
vary, depending on the position and salary of the executive
officer. These equity based awards will be designed to link
executive compensation to our long-term common stock
performance. The Compensation Committee has the full authority
to administer and interpret our 2004 long-term stock incentive
plan, to authorize the granting of awards, to determine the
eligibility of employees, directors, executive officers,
advisors, consultants and other personnel, our subsidiaries, our
affiliates and other persons expected to provide significant
services to us or our subsidiaries to receive an award, to
determine the number of shares
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of common stock to be covered by each award (subject to the
individual participant limitations provided in the 2004
long-term stock incentive plan), to determine the terms,
provisions and conditions of each award (which may not be
inconsistent with the terms of our 2004 long-term stock
incentive plan), to prescribe the form of instruments evidencing
awards and to take any other actions and make all determinations
that it deems necessary or appropriate in connection with our
2004 long-term stock incentive plan or the administration or
interpretation thereof. In connection with this authority, the
Compensation Committee establishes performance goals that must
be met in order for awards to be granted or to vest, or for the
restrictions on any such awards to lapse. We provide this
element of compensation because we believe that it provides an
incentive for executive officers to remain with us and focus on
the long-term growth in our stock price. For more information on
our 2004 long-term stock incentive plan, we refer you to our
Registration Statement on
Form S-11
filed by us on December 14, 2004. There were no long-term
incentive awards issued in 2007 and 2006 to our current officers.
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Other
Personal Benefits
Employee compensation also includes various benefits, such as
health insurance plans and profit sharing and retirement plans
in which substantially all of our employees are entitled to
participate. At the present time, we provide health, life and
disability insurance plans and a 401(k) plan, standard paid time
off benefits and other standard employee benefits.
How
Each Element and Our Decisions Regarding Each Element Fit Into
Our Overall Compensation Objectives and Affect Decisions
Regarding Other Elements
Our compensation program seeks to reward our executive officers
for their superior performance and our Companys
performance, while closely aligning the interests of our
executive officers with the interests of our stockholders. In
making compensation decisions, the Compensation Committee
considers various measures of Company and industry performance,
including funds from operations (FFO). Consistent with this
approach, the Compensation Committee pays our executive officers
annual base salaries in order to provide them with a minimum
compensation level that is intended to reflect such executive
officers value and contributions to our success in light
of salary norms of our competitors. The Compensation Committee
may elect to pay our executive officers annual incentives to
reward them for achievement of financial and other performance
of our Company and of such executive officers department,
with a component of performance based on a subjective
evaluation. The Compensation Committee may elect to pay our
executive officers long-term incentives to act as a retention
tool and to provide continued and additional incentives to
maximize our stock price and thereby more closely align the
economic interests of our executive officers with those of our
stockholders. Through the elements of our compensation program,
the Compensation Committee seeks to maintain a competitive total
compensation package for each executive officer, while being
sensitive to our fiscal year budget, annual accounting costs and
the impact of share dilution in making such compensation
payments.
Other
Matters
Tax and Accounting Treatment.
The Compensation
Committee reviews and considers the deductibility of executive
compensation under Section 162(m) of the Internal Revenue
Code of 1986, as amended. Section 162(m) limits the
deductibility on our tax return of compensation over
$1 million to any of our named executive officers unless,
in general, the compensation is paid pursuant to a plan which is
performance-related, non-discretionary and has been approved by
our stockholders. The Compensation Committees policy with
respect to Section 162(m) is to make every reasonable
effort to ensure that compensation is deductible to the extent
permitted while simultaneously providing our executive officers
with appropriate compensation for their performance. The
Compensation Committee may make compensation payments that are
not fully deductible if in its judgment such payments are
necessary to achieve the objectives of our compensation program.
We account for stock-based payments through our 2004 long-term
stock incentive plan in accordance with the requirements of
Statement of Financial Accounting Standards No. 123(R), or
SFAS No. 123(R).
Other
Policies
Although we do not have any policy in place regarding minimum
ownership requirements for either our executive officers or
directors, our named executive officers all have significant
stakes in us. We do not have any policy in place regarding the
ability of our executive officers or directors to engage in
hedging activities with respect to our common stock. In
addition, we do not have nonqualified deferred compensation
plans.
14
Compensation
Committee Report
Our executive compensation philosophy, policies, plans and
programs are under the supervision of the Compensation
Committee, which is composed of the non-management directors
named above, each of whom has been determined by our Board to be
independent under the applicable rules of the SEC and the NYSE
listing standards.
The Compensation Committee has reviewed and discussed the
Compensation Discussion and Analysis with management. Based on
the review and discussions, the Compensation Committee
recommended to our Board that the Compensation Discussion and
Analysis be included in our 2007 Annual Report on
Form 10-K.
Submitted by the Compensation Committee
Lawrence S. Kaplan
Paul H. McDowell
15
Summary
Compensation Table(1)
The following table sets forth the annual base salary and other
compensation paid or earned in 2007 to our former Chief
Executive Officer, our President and Chief Financial Officer and
our former Executive Vice President and Chief Operating Officer
who would have been the most highly compensated executive
officer, other than our former Chief Executive Officer and our
President and Chief Financial Officer, during the fiscal year
ended December 31,2007. The executive officers are referred
to herein collectively as the
named executive
officers
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Restricted
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Stock
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All Other
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Salary
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Awards(3)
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Compensation(4)
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Name and Principal Position
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Year(2)
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($)
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Bonus ($)
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($)
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($)
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Total
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Larry Feldman(5)
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2007
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$
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250,000
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$
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10,563
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$
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260,563
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Chairman and Former Chief Executive Officer
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2006
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$
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250,000
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$
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9,749
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$
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259,749
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James C. Bourg(6)
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2007
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$
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225,000
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$
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9,322
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$
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234,322
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Former Executive Vice President and Chief Operating Officer
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2006
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$
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225,000
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$
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20,000
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$
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8,793
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$
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253,793
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Thomas Wirth(7)
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2007
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$
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225,000
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$
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190,261
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$
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26,610
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$
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441,871
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President and Chief Financial Officer
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2006
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$
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225,000
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$
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25,000
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$
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190,261
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$
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78,556
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$
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518,817
|
|
|
|
|
(1)
|
|
The columns for Option
Awards, Non-Equity Incentive Plan Compensation
and Change in Pension Value and Nonqualified Deferred
Compensation Earnings have been omitted because they are
not applicable.
|
|
(2)
|
|
We have included only two years of
compensation in this table, as permitted by SEC rules phasing in
new disclosure requirements.
|
|
(3)
|
|
Amounts shown do not reflect
compensation actually received by the named executive. Instead,
the amounts in this column include the aggregate amount
recognized for financial reporting purposes in accordance with
SFAS No. 123(R) for restricted stock that vested
during 2007 and 2006. See note 2 to the financial
statements included in our
Form 10-K
for the assumptions we made in valuing all the awards included
in this column.
|
|
(4)
|
|
The amounts in this column include
the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Health Insurance
|
|
|
Dividends on
|
|
|
All Other
|
|
|
|
Car Allowance
|
|
|
Premiums(*)
|
|
|
Stock Awards
|
|
|
Compensation
|
|
|
Larry Feldman
|
|
$
|
6,000
|
|
|
$
|
4,563
|
|
|
$
|
|
|
|
$
|
10,563
|
|
James C. Bourg
|
|
$
|
6,000
|
|
|
$
|
3,322
|
|
|
$
|
|
|
|
$
|
9,322
|
|
Thomas E. Wirth
|
|
$
|
6,000
|
|
|
$
|
3,110
|
|
|
$
|
17,500
|
|
|
$
|
26,610
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(*)
|
|
Represents annual amounts for
health insurance costs in excess of amounts paid for
non-executive officers. We currently pay 75% of health insurance
premiums for all full-time employees and their families and 100%
of health insurance premiums for executive officers and their
families. Insurance costs included in the table represent the
25% of premiums that we do not pay for all full-time employees.
|
|
|
|
(5)
|
|
Mr. Feldman entered into a
letter agreement with us on October 26, 2007 pursuant to
which he agreed to step down as our Chief Executive Officer. He
remains Chairman of our Board.
|
|
(6)
|
|
On December 31, 2007, we
entered into a settlement agreement with Mr. Bourg pursuant
to which he resigned as our Executive Vice President and Chief
Operating Officer on March 28, 2008.
|
|
(7)
|
|
As of October 26, 2007,
Mr. Wirth was elected our President and he remained as our
Chief Financial Officer.
|
Stock
Grants and Stock Options in 2007
During 2007, we granted restricted stock awards totaling
5,000 shares of stock to two employees. Executive officers
received none of these awards.
Aggregate
Option Exercises in 2007
No options were exercised by any Company employees, officers or
directors during 2007.
16
Stock
Vested in 2007(1)
The following table sets forth information about the vesting of
our named executive officers restricted stock awards in
2007:
|
|
|
|
|
|
|
|
|
|
|
Number of Shares
|
|
|
Value Realized on
|
|
|
|
Acquired on Vesting
|
|
|
Vesting(2)
|
|
Name
|
|
(#)
|
|
|
($)
|
|
|
Larry Feldman(3)
|
|
|
|
|
|
$
|
|
|
James C. Bourg(4)
|
|
|
|
|
|
|
|
|
Thomas E. Wirth(5)
|
|
|
15,385
|
|
|
|
195,236
|
|
|
|
|
(1)
|
|
The columns related to stock option
awards have been omitted because they are not applicable.
|
|
(2)
|
|
The amounts in this column have
been computed based on the closing price of our common stock on
the vesting date.
|
|
(3)
|
|
Mr. Feldman entered into a
letter agreement with us on October 26, 2007 pursuant to
which he agreed to step down as our Chief Executive Officer. He
remains Chairman of our Board.
|
|
(4)
|
|
On December 31, 2007, we
entered into a settlement agreement with Mr. Bourg pursuant
to which he resigned as our Executive Vice President and Chief
Operating Officer on March 28, 2008.
|
|
(5)
|
|
As of October 26, 2007,
Mr. Wirth was elected our President and he remained as our
Chief Financial Officer.
|
Outstanding
Equity Awards(1)
The following table sets forth certain information with respect
to all outstanding equity awards held by each named executive
officer as of December 31, 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Incentive Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
|
|
|
|
Equity Incentive Plan
|
|
|
Market or Payout
|
|
|
|
|
|
|
Market Value of
|
|
|
Awards: Number of
|
|
|
Value of Unearned
|
|
|
|
Number of Shares
|
|
|
Shares of Stock
|
|
|
Unearned Shares,
|
|
|
Shares, Units or Other
|
|
|
|
of Stock That Have
|
|
|
That Have Not
|
|
|
Units or Other Rights
|
|
|
Rights That Have Not
|
|
|
|
Not Vested
|
|
|
Vested(2)
|
|
|
That Have Not Vested
|
|
|
Vested
|
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
($)
|
|
|
Larry Feldman(3)
|
|
|
|
|
|
$
|
|
|
|
|
|
|
|
$
|
|
|
James C. Bourg(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas E. Wirth(5)
|
|
|
46,153
|
|
|
|
170,305
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
The columns related to stock option
awards have been omitted because they are not applicable.
|
|
(2)
|
|
The amounts in this column have
been computed based on the closing price of our common stock on
December 31, 2007, the last business day of the year
($3.69). The actual value realized by the executive will depend
on the market value of our common stock on the date that the
awards vest.
|
|
(3)
|
|
Mr. Feldman entered into a
letter agreement with us on October 26, 2007 pursuant to
which he agreed to step down as our Chief Executive Officer. He
remains Chairman of our Board.
|
|
(4)
|
|
On December 31, 2007, we
entered into a settlement agreement with Mr. Bourg pursuant
to which he resigned as our Executive Vice President and Chief
Operating Officer on March 28, 2008.
|
|
(5)
|
|
These shares vest in three equal
installments on January 1, 2008, 2009 and 2010. As of
October 26, 2007, Mr. Wirth was elected our President
and he remained as our Chief Financial Officer.
|
Compensation
Committee Interlocks and Insider Participation
The members of our Compensation Committee are Lawrence S. Kaplan
and Paul H. McDowell. No member of our Compensation Committee is
or was formerly an officer or an employee of our company. No
executive officer of our company serves as a member of the board
of directors or compensation committee of any entity that has
one or more executive officers serving as a member of our Board
of Directors, nor has such interlocking relationship existed in
the past.
Section 16(a)
Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as
amended, requires our directors, executive officers and persons
who own more than 10% of a registered class of our equity
securities to file with the SEC initial reports of ownership and
reports of changes in ownership of common stock and other of our
equity securities. Directors, officers and greater than 10%
stockholders are required to furnish us with copies of all
Section 16(a) forms they file.
To our knowledge, based solely on a review of the copies of such
reports furnished to us, during the fiscal year ended
December 31, 2007, all Section 16(a) filing
requirements applicable to our directors, officers and greater
than
17
10% beneficial owners were met, except that Larry Feldman, our
Chairman, did not timely file one Form 4 to report one
transaction.
Directors
Compensation(1)
Mr. Feldman does not receive any compensation from us for
his services as a director. We pay non-employee directors an
annual retainer of $50,000, paid in quarterly installments of
$12,500. The Chairman of the Audit Committee receives an
additional $30,000 per annum, paid in quarterly installments of
$7,500 and the Chairmen of the Compensation Committee and the
Nominating and Corporate Governance Committee each receive an
additional $2,500 per annum. In addition, independent directors
were entitled to receive 1,000 shares of stock upon
completion of our initial public offering and an additional
1,000 shares upon each annual meeting of stockholders;
2,000 shares of stock were issued to each of the
independent directors in 2005 in satisfaction of such
obligations. Each stock grant to independent directors is
non-contingent and vests immediately upon issuance. In 2007, we
deferred the issuance of 1,000 shares of stock that each
then independent director was entitled to upon the 2007 annual
meeting until the Annual Meeting. Each independent director will
also receive 1,000 shares of stock as previously scheduled
at the Annual Meeting.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Earned or Paid in
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
|
Stock Awards(2)
|
|
|
Total
|
|
Name and Principal Position
|
|
Year
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
Lawrence S. Kaplan
|
|
|
2007
|
|
|
$
|
80,000
|
|
|
|
|
|
|
$
|
80,000
|
|
Bruce E. Moore(3)
|
|
|
2007
|
|
|
|
50,000
|
|
|
|
|
|
|
|
50,000
|
|
Paul H. McDowell
|
|
|
2007
|
|
|
|
50,000
|
|
|
|
|
|
|
|
50,000
|
|
Wendy Luscombe(4)
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas H. McAuley(5)
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas P. McGuinness(5)
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
The columns for Option
Awards, Non-Equity Incentive Plan
Compensation, Change in Pension Value and
Nonqualified Deferred Compensation Earnings and All
Other Compensation have been omitted because they are not
applicable.
|
|
(2)
|
|
Amounts in this column represent
the grant date fair value of the stock awards recognized for
financial reporting purposes in accordance with
SFAS No. 123(R).
|
|
(3)
|
|
Effective as of April 1, 2008,
Mr. Moore is no longer deemed independent within the
meaning of the rules of the NYSE and the SEC.
|
|
(4)
|
|
Our Board of Directors elected
Ms. Luscombe to serve as a director of our company
effective May 12, 2008. She fills the vacancy created by
Mr. Bourg who did not stand for re-election at our 2007
annual meeting of stockholders. Effective May 12, 2008, she
will become the Chair of the Compensation Committee and a member
of the Audit Committee and the Nominating and Corporate
Governance Committee.
|
|
(5)
|
|
On May 8, 2008, the holders of
the Series A Preferred Stock elected Messrs. McAuley
and McGuinness to serve on our Board.
|
We and each of our directors and executive officers have entered
into indemnification agreements. The indemnification agreements
provide that we will indemnify the directors and the executive
officers to the fullest extent permitted by our charter and
Maryland law against certain liabilities (including settlements)
and expenses actually and reasonably incurred by them in
connection with any threatened or pending legal action,
proceeding or investigation to which any of them is, or is
threatened to be, made a party by reason of their status as our
director, officer or agent, or by reason of their serving as a
director, officer or agent of another company at our request. We
will not indemnify the directors and executive officers if it is
established that: (1) the act or omission was material to
the matter giving rise to the proceeding and was committed in
bad faith or the result of active and deliberate dishonesty,
(2) the director or officer actually received an improper
personal benefit, or (3) in the case of a criminal
proceeding, the director or officer had reasonable cause to
believe the act or omission was unlawful. In addition, we will
not indemnify the directors and executive officers for a
proceeding brought by a director or officer against us, except
to enforce indemnification. If an amendment to the charter or
Maryland law with respect to removal of limitations on
indemnification is approved, the indemnification agreements will
be amended accordingly. We are not required to indemnify any
director or executive officer for liabilities: (1) for
which he or she has already been unconditionally reimbursed from
other sources, or (2) resulting from an accounting of
profits under Section 16(b) of the Securities Exchange Act
of 1934, as amended. In addition, we have obtained director and
officer insurance for our directors and executive officers.
Employment
Agreements
We have a written employment agreement with Larry Feldman, the
Chairman of our Board and until recently our Chief Executive
Officer. If Mr. Feldmans employment is terminated
(i) by Mr. Feldman for a good reason, generally
defined as material reduction of authority, duties or
responsibility, reduction in annual salary below $250,000,
relocation of his office more than 25 miles from Long
Island, New York, failure of our Company to
18
provide an office, equipment and secretarial assistance, failure
of our Company to pay any amounts owing under the employment
agreement, our Companys breach of the employment agreement
or a Change of Control (as defined in the employment agreements)
involving our company, or (ii) by our Company other than as
a result of Mr. Feldmans death, disability,
conviction of (or pleading nolo contendere to) a felony, or
engagement in the performance of his duties in willful
misconduct, willful or gross neglect, fraud, misappropriation or
embezzlement, Mr. Feldman also will be entitled to
(a) a lump sum cash payment equal to 2.99 multiplied by the
sum of Mr. Feldmans then current annual base salary
and Mr. Feldmans maximum potential bonus for the year
(subject to certain minimum amounts) in which termination occurs
(e.g. three times Mr. Feldmans then current annual
base salary), (b) full vesting of all outstanding
equity-based awards held by Mr. Feldman, (c) three
years of continuing coverage under group health plans, and
(d) any additional tax
gross-up
payment necessary for Mr. Feldman to pay any excise tax
imposed on excess parachute payments under
Section 4999 of the Internal Revenue Code.
Mr. Feldmans employment agreement also provides that,
during the term of his employment and for 12 months
thereafter, he will not engage in any business that competes
with us or provide any services to any other company that does
so, he will not solicit or hire any of our employees, and he
will not interfere with our Companys relationship with any
customer or client of our Company. We entered into a letter
agreement with Mr. Feldman on October 26, 2007
pursuant to which he agreed to step down as our Chief Executive
Officer. Under the terms of this letter agreement,
Mr. Feldman has agreed to forego any severance payments
arising out of his change of status, unless his employment with
us is terminated by him or us on or prior to May 31, 2008.
In December 2004, we entered into three-year employment
agreements with James E. Bourg, our former Executive Vice
President and former Chief Operating Officer, and Thomas Wirth,
our President and Chief Financial Officer. In addition to the
compensation provisions described in the table above labeled
Summary of Executive Compensation, these agreements
provide that if the executives employment is terminated
(i) by the executive for a good reason, generally defined
as material reduction of authority, duties or responsibility,
reduction in annual salary below $225,000, relocation of his
office, failure of our Company to provide an office, equipment
and secretarial assistance, failure of our Company to pay any
amounts owing under the employment agreement, or our
companys breach of the employment agreement or a Change of
Control (as defined in the employment agreements) involving our
company, or (ii) by our Company other than as a result of
the executives death, disability, conviction of (or
pleading nolo contendere to) a felony, or engagement in the
performance of his duties in willful misconduct, willful or
gross neglect, fraud, misappropriation or embezzlement, the
executive also will be entitled to (a) a lump sum cash
payment of equal to 2.99 multiplied by the sum of the
executives then current annual base salary and the
executives bonus for the year in which termination occurs
(but assuming a minimum $150,000 bonus), (b) full vesting
of all outstanding equity-based awards held by the executive
and, for those executives holding limited partnership units in
Feldman Equities Operating Partnership, LP (the operating
partnership through which our Company conducts business), the
immediate right to convert such units to common stock in our
Company and sell the common stock, and (c) three years of
continuing coverage under group health plans. Each
executives employment agreement also provides that, during
the term of his employment and for 12 months thereafter, he
will not engage in any business that competes with us or provide
any services to any other company that does so, he will not
solicit or hire any of our employees, and he will not interfere
with our Companys relationship with any customer or client
of our Company.
On July 10, 2007, Mr. Wirths employment
agreement was amended such that his term of employment with us
will be extended for one year, or until November 6, 2008.
In addition, his employment agreement was modified to provide
that, for the purpose of calculating the amount to be paid to
Mr. Wirth upon a Change of Control, as defined in the
employment agreement, the average bonus shall not be deemed to
be less than $200,000. No other modifications have been made to
his employment agreement.
On December 31, 2007, we entered into a settlement
agreement with Mr. Bourg and he resigned with good
reason as our Executive Vice President and Chief Operating
Officer, effective March 28, 2008. Pursuant to this
settlement agreement, we agreed to pay Mr. Bourg an
aggregate of approximately $1.3 million, payable in two
installments in December 2007 and March 2008.
Effective April 17, 2007, we entered into an agreement with
Lloyd Miller, our Executive Vice President of Leasing since
November 2005, pursuant to which he agreed to resign from our
company. We made a severance payment to Mr. Miller in the
amount of $147,000 and also repurchased 15,500 of
Mr. Millers shares of our common stock at a price of
$12.50 per share. Subsequent to the execution of this agreement,
Mr. Miller notified us that he had exercised his right to
rescind the agreement. He also threatened to make a claim
against us alleging breach of his employment contract with us.
We settled this matter with Mr. Miller in the amount of
$325,000. We have not named a replacement for Mr. Miller.
19
Cost of
Termination Under Employment Agreements
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
of Medical/
|
|
|
Acceleration
|
|
|
|
|
|
|
|
|
|
|
|
|
Welfare
|
|
|
and
|
|
|
|
|
|
|
|
|
|
Cash
|
|
|
Benefits
|
|
|
Continuation
|
|
|
Excise
|
|
|
Total
|
|
|
|
Severance
|
|
|
(Actual
|
|
|
of Equity
|
|
|
Tax
|
|
|
Termination
|
|
Type of Termination/Name(1)
|
|
Payment(2)
|
|
|
Value)(3)
|
|
|
Awards
|
|
|
Gross-Up
|
|
|
Benefits
|
|
|
Termination Upon Death
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry Feldman(4)
|
|
|
|
|
|
$
|
54,756
|
|
|
|
|
|
|
|
|
|
|
$
|
54,756
|
|
Thomas E. Wirth(6)
|
|
$
|
25,000
|
|
|
|
37,316
|
|
|
$
|
574,630
|
|
|
|
|
|
|
|
636,946
|
|
James Bourg
|
|
|
20,000
|
|
|
|
39,865
|
|
|
|
|
|
|
|
|
|
|
|
59,865
|
|
Termination Upon Disability
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry Feldman(4)
|
|
|
|
|
|
|
54,756
|
|
|
|
|
|
|
|
|
|
|
|
54,756
|
|
Thomas E. Wirth(6)
|
|
|
25,000
|
|
|
|
37,316
|
|
|
|
574,630
|
|
|
|
|
|
|
|
636,946
|
|
James Bourg
|
|
|
20,000
|
|
|
|
39,865
|
|
|
|
|
|
|
|
|
|
|
|
59,865
|
|
Termination With Cause or Without Good Reason
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry Feldman(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas E. Wirth(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James Bourg(7)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination Without Cause or With Good Reason
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry Feldman(4)(5)
|
|
|
2,990,000
|
|
|
|
54,756
|
|
|
|
|
|
|
|
|
|
|
|
3,044,756
|
|
Thomas E. Wirth(6)
|
|
|
740,025
|
|
|
|
37,316
|
|
|
|
574,630
|
|
|
|
|
|
|
|
1,351,971
|
|
James Bourg
|
|
|
1,270,750
|
|
|
|
39,865
|
|
|
|
|
|
|
|
|
|
|
|
1,310,615
|
|
Termination in Connection With a Change of Control
(COC)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry Feldman(4)(5)
|
|
|
2,990,000
|
|
|
|
54,756
|
|
|
|
|
|
|
$
|
1,463,901
|
|
|
|
4,508,657
|
|
Thomas E. Wirth(6)(8)
|
|
|
1,270,750
|
|
|
|
37,316
|
|
|
|
574,630
|
|
|
|
|
|
|
|
1,882,696
|
|
James Bourg
|
|
|
1,270,750
|
|
|
|
39,865
|
|
|
|
|
|
|
|
|
|
|
|
1,310,615
|
|
Aggregate Top 3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination Upon Death
|
|
|
45,000
|
|
|
|
131,937
|
|
|
|
574,630
|
|
|
|
|
|
|
|
751,567
|
|
Termination Upon Disability
|
|
|
45,000
|
|
|
|
131,937
|
|
|
|
574,630
|
|
|
|
|
|
|
|
751,567
|
|
Termination With Cause or Without Good Reason
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination Without Cause or With Good Reason
|
|
|
5,000,775
|
|
|
|
131,937
|
|
|
|
574,630
|
|
|
|
|
|
|
|
5,707,342
|
|
Termination in Connection With a Change of Control (COC)(8)
|
|
|
5,531,500
|
|
|
|
131,937
|
|
|
|
574,630
|
|
|
|
1,463,901
|
|
|
|
7,701,968
|
|
|
|
|
(1)
|
|
In analyzing the golden
parachute tax rules (assuming that such rules are
potentially applicable here), we have taken the position for
purposes of completing the table that no value has been assigned
to the post-termination non-competition covenants in the
employment agreements with each person set forth in the table.
|
|
(2)
|
|
All amounts reflect cash.
|
|
(3)
|
|
The cost of the medical and dental
insurance is based on the average cost paid by us for health
insurance for named individuals during 2007, each of whom will
receive these benefits for three years.
|
|
(4)
|
|
We entered into a letter agreement
on October 26, 2007 with Mr. Feldman pursuant to which
he agreed to step down as our Chief Executive Officer. Under the
terms of this letter agreement, Mr. Feldman has agreed to
forego any severance payments arising out of his change of
status, unless his employment with us is terminated by him or us
on or prior to May 31, 2008.
|
|
(5)
|
|
Under the employment agreement for
Mr. Feldman, if any payments constitute excess
parachute payments under Section 280G of the Internal
Revenue Code, or the Code, such that Mr. Feldman incurs an
excise tax under Section 4999 of the Code, we will provide
an excise tax
gross-up
payment in an amount such that Mr. Feldman would receive
the same amount of severance had the excise tax not applied. The
cost of the excise tax
gross-up
is
an estimate based on a number of assumptions including:
(i) Mr. Feldman is subject to a change of control
during 2006, (ii) terminated on December 31, 2006
without cause following that change of control.
|
|
(6)
|
|
As of October 26, 2007,
Mr. Wirth was elected our President and he remained as our
Chief Financial Officer.
|
|
(7)
|
|
On December 31, 2007, we
entered into a settlement agreement with Mr. Bourg and he
resigned with good reason as our Executive Vice
President and Chief Operating Officer effective March 28,
2008. Pursuant to this settlement agreement, we agreed to pay
Mr. Bourg an aggregate of approximately $1.3 million,
payable in two installments in December 2007 and March 2008.
|
|
(8)
|
|
On July 10, 2007,
Mr. Wirths employment agreement was amended to
provide that, for the purpose of calculating the amount to be
paid to Mr. Wirth upon a Change of Control, as defined in
his employment agreement, the average bonus shall not be deemed
to be less than $200,000.
|
20
Independent
Auditors Fees and Services
The following summarizes the fees paid to KPMG LLP for the years
ended December 31, 2007 and 2006:
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2006
|
|
|
Audit fees(1)
|
|
$
|
1,555,000
|
|
|
$
|
1,846,500
|
|
Audit-related fees(2)
|
|
|
183,000
|
|
|
|
192,800
|
|
All other fees
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fees
|
|
$
|
1,738,000
|
|
|
$
|
2,039,300
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Audit fees are the
aggregate fees billed by KPMG LLP for professional services
rendered in connection with our annual audit, review of
unaudited financial information and audit of our internal
controls over financial reporting for the years ended
December 31, 2007 and 2006. Excludes
out-of-pocket
expenses billed.
|
|
(2)
|
|
Audit-related fees
include fees relating to audits or limited reviews of
unconsolidated joint ventures.
|
Our Audit Committee is responsible for retaining and terminating
our independent auditors (subject, if applicable, to stockholder
ratification) and for approving the performance of any non-audit
services by the independent auditors. In addition, the Audit
Committee is responsible for reviewing and evaluating the
qualifications, performance and independence of the lead partner
of the independent auditors and for presenting its conclusions
with respect to the independent auditors to the full Board.
Pre-Approval
Policies and Procedures of our Audit Committee
The Audit Committee Charter provides that our Audit Committee
must pre-approve all audit services and permissible non-audit
services provided by our independent auditors, except for any
de minimis
non-audit services. Non-audit services are
considered
de minimis
if (i) the aggregate amount of
all such non-audit services constitutes less than 5% of the
total amount of fees we paid to our independent auditors during
the fiscal year in which they are provided; (ii) we did not
recognize such services at the time of the engagement to be
non-audit services; and (iii) such services are promptly
brought to our Audit Committees attention and approved
prior to the completion of the audit by our Audit Committee or
any of its member(s) who has authority to give such approval.
None of the fees reflected above were approved by our Audit
Committee pursuant to this
de minimis
exception. Our
Audit Committee may delegate to one or more of its members who
is an independent director the authority to grant pre-approvals.
All fees for services performed during 2007 and 2006 were
pre-approved by the Audit Committee.
21
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information available to
us as of May 8, 2008 with respect to any of our common
stock or operating partnership units of Feldman Equities
Operating Partnership LP owned by our continuing directors and
executive officers, and any individual or group of stockholders
known to be the beneficial owner of more than 5% of the issued
and outstanding common stock. There are no other of our
directors, nominees for director or executive officers who
beneficially own common stock.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
% of Common
|
|
|
|
Common Stock
|
|
|
% of Basic
|
|
|
Operating
|
|
|
Stock if all OP
|
|
|
|
Beneficially
|
|
|
Common Stock
|
|
|
Partnership Units
|
|
|
Units Converted to
|
|
Name and Address of Beneficial Owner(1)
|
|
Owned
|
|
|
Outstanding
|
|
|
Owned
|
|
|
Stock
|
|
|
Larry Feldman(2)
|
|
|
395,079
|
|
|
|
3.0
|
%
|
|
|
947,610
|
(11)
|
|
|
9.6
|
%
|
Thomas Wirth(2)
|
|
|
94,038
|
(12)
|
|
|
*
|
|
|
|
|
|
|
|
*
|
|
Lawrence S. Kaplan(3)
|
|
|
3,000
|
|
|
|
*
|
|
|
|
|
|
|
|
*
|
|
Bruce E. Moore(4)
|
|
|
13,000
|
|
|
|
*
|
|
|
|
|
|
|
|
*
|
|
Paul H. McDowell(5)
|
|
|
4,000
|
|
|
|
*
|
|
|
|
|
|
|
|
*
|
|
James W. Sight(6)
|
|
|
880,500
|
|
|
|
6.8
|
%
|
|
|
|
|
|
|
6.3
|
%
|
Thomas H. McAuley(7)(8)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas P. McGuinness(7)(9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All executive officers, directors and nominees for director as a
group(10)
|
|
|
1,389,617
|
|
|
|
10.7
|
%
|
|
|
947,610
|
|
|
|
16.7
|
%
|
Wells Fargo Capital Management Incorporated(13)
|
|
|
1,176,746
|
|
|
|
9.0
|
%
|
|
|
|
|
|
|
8.4
|
%
|
Paul J. Denby(14)
|
|
|
700,000
|
|
|
|
5.4
|
%
|
|
|
|
|
|
|
5.0
|
%
|
Inland American Real Estate Trust, Inc.(15)
|
|
|
4,829,599
|
(16)
|
|
|
29.2
|
%(17)
|
|
|
|
|
|
|
27.6
|
%
|
|
|
|
*
|
|
Less than 1.0%.
|
|
(1)
|
|
Except as otherwise indicated and
subject to applicable community property laws and similar
statutes, the person listed as the beneficial owner of shares
has sole voting power and dispositive power with respect to the
shares.
|
|
(2)
|
|
c/o Feldman
Mall Properties, Inc., 1010 Northern Avenue, Suite 314,
Great Neck, NY 11021. On October 26, 2007, Mr. Feldman
resigned his position as our Chief Executive Officer.
|
|
(3)
|
|
P.O. Box L, Yardley, PA 19067
|
|
(4)
|
|
c/o Brandywine
Financial Services Corp., 2 Ponds Edge Drive
POB 500, Chadds Ford, PA 19397.
|
|
(5)
|
|
c/o Capital
Lease Funding, Inc., 1065 Avenue of Americas,
19
th
Floor, New York, New York 10018.
|
|
(6)
|
|
8500 College Blvd., Overland
Park, Kansas 66210.
|
|
(7)
|
|
Messrs. McAuley and McGuinness are
each an executive officer of an affiliate of The Inland Group,
Inc., a subsidiary of which is the sponsor of Inland American
Real Estate Trust, Inc. Each of Messrs. McAuley and
McGuinness disclaims beneficial ownership of our common stock
owned by Inland American Real Estate Trust, Inc.
|
|
(8)
|
|
100 Galleria Parkway,
Suite 1030, Atlanta GA 30339.
|
|
(9)
|
|
c/o Inland American HOLDCO
Management, LLC, 2901 Butterfield Rd., Oak Brook, IL 60523.
|
|
(10)
|
|
This group is composed of the six
directors (Larry Feldman, Lawrence Kaplan, Bruce Moore,
Paul McDowell, Thomas H. McAuley and Thomas P.
McGuinness), James W. Sight who is a director nominee and
Thomas Wirth who is an executive officer but not a director.
|
|
(11)
|
|
Includes operating partnership
units of Feldman Equities Operating Partnership LP issued to
Feldman Partners, LLC, an Arizona limited liability company, or
Feldman Partners. Feldman Partners is controlled by Larry
Feldman and is owned by Larry Feldman and his brother, sisters,
children, nieces and nephews.
|
|
(12)
|
|
Includes 76,923 shares of
restricted stock that will vest evenly over five years, with the
first vesting occurring January 1, 2006.
|
|
(13)
|
|
This information was obtained from
Schedule 13G/A filed with the SEC on January 25, 2008.
The stockholders address is 525 Market Street,
San Francisco, CA 94105.
|
|
(14)
|
|
This information was obtained from
Schedule 13D filed with the SEC on March 12, 2008. The
stockholders address is 4613 Redwood Court, Irving, Texas
75038.
|
|
(15)
|
|
This information was obtained from
Schedule 13D/A filed with the SEC on April 22, 2008.
The stockholders address is 2901 Butterfield Road, Oak
Brook, Illinois 60523.
|
|
(16)
|
|
Includes
(i) 1,283,500 shares of our common stock and
(ii) 3,546,099 shares of our common stock assuming the
conversion of 2,000,000 shares of the Series A
Preferred Stock at the initial conversion ratio of
1.77305 shares of our common stock per share of the
Series A Preferred Stock. Inland Investment Advisors, Inc.
shares the power of disposition with Inland American Real Estate
Trust, Inc.
|
|
(17)
|
|
The percentage is calculated based
on a total of 13,018,811 of our shares of common stock
outstanding as of May 7, 2008 plus 3,546,099 shares
deemed to be outstanding pursuant to
Rule 13d-3(d)(1)(i)
under the Securities Exchange Act of 1934, as amended.
|
22
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Policies
and Procedures With Respect to Related Party
Transactions
It is the policy of our Board of Directors that all related
party transactions (generally, transactions involving amounts
exceeding $120,000 in which a related party (directors and
executive officers or their immediate family members, or
stockholders owning 5% or more of our outstanding stock)) shall
be subject to approval or ratification.
Pursuant to Maryland law, a contract or other transaction
between us and a director or between us and any other
corporation or other entity in which any of our directors is a
director or has a material financial interest is not void or
voidable solely on the grounds of such common directorship or
interest, the presence of such director at the meeting at which
the contract or transaction is authorized, approved or ratified
or the counting of the directors vote in favor thereof,
provided that:
|
|
|
|
|
the fact of the common directorship or interest is disclosed or
known to our Board or a committee of our Board, and our Board or
committee authorizes, approves or ratifies the transaction or
contract by the affirmative vote of a majority of disinterested
directors, even if the disinterested directors constitute less
than a quorum;
|
|
|
|
the fact of the common directorship or interest is disclosed or
known to our stockholders entitled to vote thereon, and the
transaction or contract is authorized, approved or ratified by a
majority of the votes cast by our stockholders entitled to vote
(other than the votes of shares owned of record or beneficially
by the interested director or corporation or other
entity); or
|
|
|
|
the transaction or contract is fair and reasonable to us.
|
Our policy requires that all contracts and transactions between
us and any related parties must be approved by the affirmative
vote of a majority of our disinterested directors. Where
appropriate, in the judgment of our disinterested directors, our
Board may obtain a fairness opinion or engage independent
counsel to represent the interests of non-affiliated
stockholders, although our Board will have no obligation to do
so.
Related
Party Transactions
Messrs. Feldman and Bourg have the right to receive
additional OP Units for ownership interests contributed as
part of the formation transactions upon our achieving a 15%
internal rate of return from the Harrisburg joint venture on or
prior to December 31, 2009. The right to receive such
additional OP Units is a financial instrument that we
recorded as an obligation of the offering that is adjusted to
fair value each reporting period until the thresholds have been
achieved and the OP Units have been issued. Based on the
expected operating performance of the Harrisburg Mall, the fair
value is estimated to be $0 million and $3.9 million
at December 31, 2007 and 2006, respectively. The reduction
in the fair value estimate for the year ended December 31,
2007 totaling $3.9 million was caused by our reduction of
the anticipated return we will receive on the project. The
decrease in our anticipated return is due to an increase in the
anticipated redevelopment costs and delays in the timing of
certain redevelopment plans. The fair value of this obligation
is assessed by management on a quarterly basis.
We entered into a consulting contract with Ed Feldman, the
father of our Chairman, Larry Feldman, to provide professional
acquisition services. The agreement pays Mr. Feldman $3,000
per month commencing July 1, 2005. For the years ended
December 31, 2007, 2006 and 2005, Mr. Feldman received
$33,000, $36,000 and $18,000, respectively. There were $3,000
and zero due at December 31, 2007 and 2006, respectively.
In April 2007, we entered into an agreement to issue and sell to
Inland American up to 2,000,000 shares of our Series A
Preferred Stock in one or more private placements.
Messrs. McAuley and McGuinness were elected to our Board on
May 8, 2008 by the holders of the Series A Preferred
Stock and each of Messrs. McAuley and McGuinness is an executive
officer of an affiliate of The Inland Group, Inc., a subsidiary
of which is the sponsor of Inland American Real Estate Trust Inc.
On December 21, 2007, we announced that, in conjunction
with our continuing efforts to restructure, the Phoenix office
will be closed except for a minimal leasing staff. In addition,
James Bourg, our former Executive Vice President and Chief
Operating Officer and a director, resigned from our company.
Mr. Bourg left in the first quarter of 2008. In connection
with Mr. Bourgs departure, we incurred a severance
charge of approximately $1.3 million that was accrued in
the fourth quarter of 2007. As of December 31, 2007, we
owed Mr. Bourg approximately $670,000 which we paid in
March 2008.
On April 1, 2008, we entered into an agreement with
Brandywine, and a member of The Brandywine Companies, for which
Bruce E. Moore, one of our directors, is the chairman and chief
executive officer. The
23
Brandywine Companies are privately held, with offices in Chadds
Ford, Pennsylvania, Clearwater, Florida and Orlando, Florida.
Since its origins in the early 1970s, Brandywine has
developed expertise in all aspects of ownership and management
of commercial and residential real estate. Historically,
Mr. Moore managed, and Brandywine performed similar
services for, a New York Stock Exchange traded company. In
addition, in connection with a joint venture with another New
York Stock Exchange retail REIT, Brandywine provides property
management and accounting services.
Pursuant to this agreement, effective as of April 1, 2008,
Brandywine agreed to provide us various accounting and
management services relating to certain of our properties (the
Projects), such as supervision of our operations,
maintenance and development of certain of our properties, lease
administration, bookkeeping, accounting, our compliance with
FASB 141 and FASB 13, as amended, financial statement
preparation, coordination of our compliance with the
Sarbanes-Oxley Act of 2002, as amended, and our financial
statement audits (collectively, the Project
Services). In addition, Brandywine agreed to provide us
certain corporate accounting and administrative services,
including, among other things, information technology user
support, financial statement preparation and audits, reports to
joint venture partners, periodic reports to lenders, payroll
preparation and filing coordination, human resources management,
cash management, general ledger accounting, accounts payable,
accounts receivable, cost allocation, inter-company billing and
funding and FASB 109 compliance (collectively, the
Corporate Services). As compensation to Brandywine
for the Project Services (with certain exceptions) and the
Corporate Services, we agreed to pay Brandywine a fee equal to
(a) with respect to the Project Services, 1.50% of our
gross revenue generated by the Projects, payable monthly, plus
(b) with respect to the Corporate Services, $60,000 per
month, plus (c) travel and other
out-of-pocket
expenses incurred by Brandywine in connection with such
services. In connection with this agreement, Brandywine was paid
a total set-up fee of $350,000. This agreement has an initial
term through June 30, 2009 and can be renewed on a
year-to-year
basis but is subject to termination by the parties at any time
starting June 30, 2008 upon no less than 90 days prior
to written notice. As a result of this transaction, Bruce E.
Moore was no longer deemed independent from our management, as
such term is defined by the rules of the NYSE and the SEC.
24
OTHER
MATTERS
When Are
Stockholder Proposals Due for the 2009 Annual
Meeting?
We tentatively scheduled our 2009 annual meeting for
May 27, 2009. Under SEC rules, proposals from our eligible
stockholders for presentation for action at the 2009 annual
meeting of stockholders must be received by us no later than
5:00 p.m., Eastern Standard Time, January 8, 2009, in
order to be considered for inclusion in the Proxy Statement and
Proxy for the 2009 annual meeting. Any such proposals, as well
as any questions relating thereto, should be directed to our
Secretary at our principal executive offices. Proposals we
receive after 5:00 p.m., Eastern Standard Time,
January 8, 2009 will not be included in the Proxy Statement
or acted upon at the 2009 annual meeting.
Under our current Bylaws, and as SEC rules permit, stockholders
must follow certain procedures to nominate a person for election
as a director at an annual or special meeting, or to introduce
an item of business at an annual meeting. A stockholder must
notify our Secretary in writing of the director nominee or the
other business. The notice must include the required information
and be delivered to the Secretary at our principal executive
offices not earlier than the
150
th
day and not later than the
120
th
day prior to the first anniversary of the date of mailing of the
notice for the preceding years annual meeting, provided,
however, that in the event that the date of the annual meeting
is advanced or delayed by more than 30 days from the first
anniversary of the date of the preceding years annual
meeting, notice by the stockholder must be delivered not earlier
than the
150
th
day and not later than 5:00 p.m., Eastern Standard Time, on
the later of the
120
th
day prior to the date of such annual meeting or the tenth day
following the day on which disclosure of such annual meeting
date is first made. The public announcement of a postponement or
adjournment of an annual meeting does not change or create a new
opportunity for notice as described above.
The stockholders notice shall set forth the following, as
applicable:
(1) as to each individual whom the stockholder proposes to
nominate for election or reelection as a director, (a) the
name, age, business address and residence address of such
individual, (b) the class, series and number of any shares
of our stock that are beneficially owned by such individual,
(c) the date such shares were acquired and the investment
intent of such acquisition, and (d) all other information
relating to such individual that is required to be disclosed in
solicitations of proxies for election of directors in an
election contest (even if an election contest is not involved),
or is otherwise required, in each case pursuant to
Regulation 14A and Schedule 14A (or any successor
provision) under the Securities Exchange Act of 1934 and the
rules thereunder (including such individuals written
consent to being named in the proxy statement as a nominee and
to serving as a director if elected);
(2) as to any other business that the stockholder proposes
to bring before the meeting, a description of such business, the
reasons for proposing such business at the meeting and any
material interest in such business of such stockholder and any
Stockholder Associated Person (as defined below) individually or
in the aggregate (including any anticipated benefit to the
stockholder and the Stockholder Associated Person therefrom);
(3) as to the stockholder giving the notice and any
Stockholder Associated Person, the class, series and number of
all shares of stock of the Corporation which are owned by such
stockholder and by such Stockholder Associated Person, if any,
and the nominee holder for, and number of, shares owned
beneficially but not of record by such stockholder and by any
such Stockholder Associated Person;
(4) as to the stockholder giving the notice and any
Stockholder Associated Person covered by clauses (2) or
(3) above, the name and address of such stockholder, as
they appear on our stock ledger and current name and address, if
different, and of such Stockholder Associated Person; and
(5) to the extent known by the stockholder giving the
notice, the name and address of any other stockholder supporting
the nominee for election or reelection as a director or the
proposal of other business on the date of such
stockholders notice.
Stockholder Associated Person
of any
stockholder means (1) any person controlling, directly or
indirectly, or acting in concert with, such stockholder,
(2) any beneficial owner of shares of our stock owned of
record or beneficially by such stockholder and (3) any
person controlling, controlled by or under common control with
such Stockholder Associated Person.
25
Are there
any other matters coming before the 2008 Annual
Meeting?
Our management does not intend to bring any other matters before
the Annual Meeting and knows of no other matters that are likely
to come before the meeting. In the event any other matters
properly come before the Annual Meeting, the persons named in
the accompanying proxy will vote the shares represented by such
proxy in accordance with their discretion on such matters.
We urge you to submit your vote on the accompanying proxy card
by completing, signing, dating and returning it in the
accompanying postage-paid return envelope at your earliest
convenience, whether or not you presently plan to attend the
meeting in person.
By Order of the Board of Directors
Thomas E. Wirth
Secretary
Great Neck, New York
May 8, 2008
26
FELDMAN MALL PROPERTIES, INC.
1010 Northern Blvd, Suite 314
Great Neck, New York 11021
Proxy for Annual Meeting of Stockholders to be held on May 28, 2008
THIS PROXY IS SOLICITED BY OUR BOARD OF DIRECTORS
For the annual meeting of stockholders to be held May 28, 2008, the undersigned appoints
Lawrence Feldman, Lawrence S. Kaplan, Bruce E. Moore, Paul H. McDowell, Wendy Luscombe and James W.
Sight, or any one of them, with full power of substitution, to attend the Annual Meeting of
Stockholders of Feldman Mall Properties, Inc. on May 28, 2008 (the
Annual Meeting
), and
any adjournments or postponements thereof, to cast on behalf of the
undersigned all votes that the undersigned is entitled to cast at the
Annual Meeting and otherwise to represent the undersigned at the
Annual Meeting with all powers possessed by the undersigned if
personally present at the Annual Meeting.
When
properly executed, the votes entitled to be cast by the undersigned
will be cast as directed. If this proxy is executed but
no direction is indicated, the votes entitled to be cast by the
undersigned will be cast
FOR
the proposal to elect Lawrence Feldman,
Lawrence S. Kaplan, Bruce E. Moore, Paul H. McDowell, Wendy Luscombe and James W. Sight as
directors to serve until the 2009 annual meeting of stockholders or until their respective
successors are duly elected and qualify and
FOR
the approval of the appointment of KPMG LLP as our
Independent Registered Public Accounting Firm for the fiscal year
2008. The votes entitled to be cast by the undersigned will be cast in the discretion of
the proxy holder on any other business that properly comes before the Annual Meeting or any
adjournment or postponement thereof. The undersigned hereby revokes any proxy heretofore given with
respect to such meeting.
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Please vote and sign on other side and
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SEE REVERSE
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return promptly in the enclosed envelope.
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SIDE
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þ
Please mark your votes as in this example.
1.
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Proposal to elect six directors to serve until the 2009 annual meeting of stockholders or
until their successors are duly elected and duly qualify.
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Nominees:
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Lawrence Feldman
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Lawrence S. Kaplan
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Bruce E. Moore
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Paul H. McDowell
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Wendy Luscombe
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James W. Sight
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FOR ALL NOMINEES
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WITHHOLD
AUTHORITY FOR
ALL NOMINEES
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FOR ALL EXCEPT
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o
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o
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o
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2.
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Proposal to approve the appointment of KPMG LLP as our Independent Registered Public
Accounting Firm for the fiscal year 2008.
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FOR
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AGAINST
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ABSTAIN
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o
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o
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o
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3.
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In their discretion, to vote and otherwise represent the
undersigned upon such other business as may properly come before the meeting and any
adjournments or postponements thereof.
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The undersigned hereby acknowledge(s) receipt of a copy of the accompanying notice of
annual meeting of stockholder, the proxy statement with respect
thereto and our annual
report to stockholders with respect to our 2007 fiscal year, the
terms of each of which are incorporated herein by reference, and hereby revoke(s) any proxy
or proxies heretofore given. This proxy may be revoked at any time before it is exercised.
o
MARK HERE FOR ADDRESS CHANGE AND NOTE BELOW
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Signature:
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Date:
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Signature:
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Date:
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If Held Jointly
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Note: Please sign exactly as name appears hereon. Joint owners should each sign. When signing
as attorney, executor, administrator, trustee or guardian, please give full title as such.
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