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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) : September 12, 1997
(September 10, 1997)
SIMON DeBARTOLO GROUP, L.P.
(Exact name of registrant as specified in its charter)
Delaware 333-11491 34-1755769
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
115 WEST WASHINGTON STREET
INDIANAPOLIS, INDIANA 46204
(Address of principal executive offices)(Zip Code)
Registrant's telephone number, including area code: 317.636.1600
Not Applicable
(Former name or former address, if changed since last report)
Item 5. Other Events
On September 11, 1997, Simon DeBartolo Group, L.P. amended and supplemented
its previously issued tender offer to purchase all of the outstanding
beneficial interests in The Retail Property Trust. In addition, on
September 10, 1997, the Independent Trustees of The Retail Property Trust agreed
to and accepted the terms of the offer as amended and supplemented and
recommended that its shareholders accept the offer. A copy of the Amendment and
Supplement to Offer to Purchase for Cash, dated September 11, 1997, and a letter
evidencing acceptance by the independent Trustees of The Retail Property Trust,
dated September 10, 1997, are attached hereto and incorporated herein as
Exhibits 99.1 and 99.2, respectively. Additionally, a copy of the September
12, 1997 press release announcing the amended and supplemented tender offer is
attached hereto as Exhibit 99.3.
Item 7. Financial Statements and Exhibits
Financial Statements:
None
Exhibits:
Exhibit No. Description
- ----------- -----------
99.1 Amendment and Supplement to Offer to Purchase for Cash
All Outstanding Beneficial Interests
(the "Shares") in The Retail Property Trust
99.2 Letter evidencing acceptance of the amended and supplemeneted
offer by the Independant Trustees of The Retail Property Trust
99.3 Press Release dated September 12, 1997
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: September 12, 1997
SIMON DeBARTOLO GROUP, L.P.
By: Simon DeBartolo Group, Inc.
General Partner
By: /s/ James M. Barkley
-------------------------
James M. Barkley,
Secretary/General Counsel
EXHIBIT 99.1
AMENDMENT AND SUPPLEMENT TO
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING BENEFICIAL INTERESTS (THE "SHARES") IN
THE RETAIL PROPERTY TRUST
FOR
$19 3/8 NET PER SHARE
BY
SIMON DEBARTOLO GROUP, L.P.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON SEPTEMBER 25, 1997, UNLESS EXTENDED (THE "EXPIRATION DATE").
THE UNAFFILIATED TRUSTEES OF THE RETAIL PROPERTY TRUST ("RPT") PRESENT AT
A MEETING HELD ON SEPTEMBER 10, 1997 UNANIMOUSLY RECOMMENDED THAT THE RPT
SHAREHOLDERS ACCEPT THE OFFER DESCRIBED HEREIN.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE THAT NUMBER OF SHARES
WHICH, TOGETHER WITH SHARES OWNED BY SIMON DEBARTOLO GROUP, L.P. ("SDG") AND
ITS AFFILIATES, CONSTITUTES AT LEAST A MAJORITY OF THE SHARES OUTSTANDING ON
THE EXPIRATION DATE.
THE OFFER IS NOT CONDITIONED UPON SDG OBTAINING FINANCING.
IMPORTANT INFORMATION
Any holder desiring to tender Shares should complete and sign the enclosed
Letter of Transmittal (or a facsimile thereof) in accordance with the
instructions in the Letter of Transmittal, and deliver it and any other
required documents to the First Chicago Trust Company of New York (the
"Depositary"), together with such Shares (or tender such Shares pursuant to the
procedure for book-entry transfer set forth under the caption "THE
OFFER_Procedure for Tendering Shares"). A holder who has Shares registered in
the name of a broker, dealer, commercial bank, trust company or other nominee
must contact such broker, dealer, commercial bank, trust company or other
nominee if he desires to tender such Shares and request such nominee to effect
the transaction on his behalf.
Any holder who desires to tender Shares and whose Shares are not
immediately available, or who cannot otherwise deliver such Shares and any
other required documents to the Depositary by the Expiration Date, or who
cannot timely comply with the procedure for book-entry transfer, may tender
such Shares pursuant to the guaranteed delivery procedure set forth under the
caption "THE OFFER_Procedure for Tendering Shares_Guaranteed Delivery."
Questions and requests for assistance or for additional copies of this
Offer to Purchase (as amended and supplemented, this "Offer to Purchase") or
the accompanying Letter of Transmittal may be directed to the Dealer Manager at
the address and telephone number set forth on the last page of this Offer to
Purchase.
THE DEALER MANAGER FOR THE OFFER IS:
MERRILL LYNCH & CO.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THE OFFER, OTHER THAN THOSE CONTAINED HEREIN
OR IN THE ACCOMPANYING LETTER OF TRANSMITTAL. IF MADE OR GIVEN, SUCH
RECOMMENDATION OR ANY SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY SDG.
The date of this Offer to Purchase is August 28, 1997, as amended and
supplemented through September 11, 1997.
Table Of Contents
Page
SUMMARY 1
The Offer 1
SDG 1
Expiration Date 1
Certain Consequences to Non-Tendering Holders 1
GENERAL INFORMATION 2
Introduction 2
Background of the Offer 2
Purpose of the Offer 5
SDG 5
Source of Funds 6
Impact On Shares Outstanding After the Offer 6
THE OFFER 6
Terms of the Offer 6
Withdrawal Rights 7
Purchase of Shares; Payment of Purchase Price 7
Procedure for Tendering Shares 8
Conditions of the Offer 11
Extension; Termination; Amendments 12
THE DEPOSITARY 12
FEES AND EXPENSES 13
MISCELLANEOUS 13
i
SUMMARY
The following summary is qualified in its entirety by reference to the
detailed information contained elsewhere in this Offer to Purchase. Capitalized
terms not otherwise defined in this summary have the meanings ascribed to them
elsewhere in this Offer to Purchase.
THE OFFER
Simon DeBartolo Group, L.P., a Delaware limited partnership ("SDG"), is
offering to purchase for cash all of the outstanding beneficial interests (the
"Shares") in The Retail Property Trust, a Massachusetts business trust ("RPT"),
for $19 net per Share, upon the terms and subject to the conditions set forth
in this Offer to Purchase and in the enclosed Letter of Transmittal (the
"Offer").
THE UNAFFILIATED TRUSTEES OF RPT PRESENT AT A MEETING HELD ON SEPTEMBER
10, 1997 UNANIMOUSLY RECOMMENDED THAT THE RPT SHAREHOLDERS ACCEPT THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE THAT NUMBER OF SHARES
WHICH, TOGETHER WITH SHARES OWNED BY SDG AND ITS AFFILIATES, CONSTITUTES AT
LEAST A MAJORITY OF THE SHARES OUTSTANDING ON THE EXPIRATION DATE.
THE OFFER IS NOT CONDITIONED UPON SDG OBTAINING FINANCING.
According to RPT's Quarterly Report to Shareholders for the quarter ended
March 31, 1997, there were 38,376,000 Shares outstanding as of March 31, 1997.
As of the date hereof, SDG beneficially owns 2,257,562 Shares, representing
approximately 5.9% of the outstanding Shares, excluding treasury Shares. The
Shares beneficially owned by SDG were recently acquired in open market
purchases prior to the commencement of this Offer on August 28, 1997 (the
"Commencement Date"). See "GENERAL INFORMATION_Background of the Offer."
Consummation of the Offer is subject to certain other conditions described
in this Offer to Purchase. See "THE OFFER_Conditions of the Offer." Subject to
compliance with applicable securities laws and the terms set forth in this
Offer to Purchase, SDG reserves the right (i) to waive any and all conditions
to the Offer, (ii) to extend or to terminate the Offer, and (iii) otherwise to
amend the Offer in any respect. Any such waiver, extension or amendment may be
made by press release or such other means of announcement as SDG deems
appropriate. See "THE OFFER_Terms of the Offer."
SDG
Information regarding SDG is set forth in the following documents (which
documents were included as Appendices A and B to the Offer to Purchase dated
August 28, 1997 previously sent by SDG to holders of Shares): (i) SDG's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996 and (ii) SDG's
Quarterly Report on Form 10-Q for the six months ended June 30, 1997.
EXPIRATION DATE
The Offer will expire at 12:00 Midnight, New York City time, on September
25, 1997 (the "Expiration Date"), unless and until SDG shall have extended the
period of time during which the Offer is open, in which event the Expiration
Date will be the latest time and date at which the Offer, as so extended by
SDG, expires.
CERTAIN CONSEQUENCES TO NON-TENDERING HOLDERS
There is currently a limited trading market for the Shares. The successful
completion of the Offer could result in the trading market for the Shares
becoming more limited, which could adversely affect the liquidity and increase
the volatility of the trading prices of the Shares. See "GENERAL
INFORMATION_Impact on Shares Outstanding After the Offer."
1
GENERAL INFORMATION
INTRODUCTION
Simon DeBartolo Group, L.P., a Delaware limited partnership ("SDG"),
hereby offers to purchase for cash all of the outstanding beneficial interests
(the "Shares") in The Retail Property Trust, a Massachusetts business trust
("RPT"), for $19 net per Share. The Offer is being made upon the terms and
subject to the conditions set forth in this Offer to Purchase and in the
accompanying Letter of Transmittal.
Tendering holders of Shares will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer.
SDG will pay all fees and expenses of Merrill Lynch & Co., which is acting as
the dealer manager (the "Dealer Manager"), and the First Chicago Trust Company
of New York, which is acting as the depositary (the "Depositary"), in
connection with the Offer.
Holders of Shares who are not holders of Shares on the register therefor
should (i) obtain a properly completed Letter of Transmittal from the
registered holder with signatures guaranteed by an Eligible Institution (as
defined in "THE OFFER_Procedure for Tendering Shares"), (ii) obtain and include
with the Letter of Transmittal Shares properly endorsed for transfer by the
registered holder or accompanied by appropriate powers of attorney from the
registered holder, with signatures guaranteed by an Eligible Institution, or
(iii) effect a record transfer of such Shares and comply with the requirements
applicable to registered holders for tendering prior to the Expiration Date.
Any Shares validly tendered prior to the Expiration Date, accompanied by a
properly completed Letter of Transmittal and accepted by SDG for purchase, will
be transferred of record by the transfer agent as of the Expiration Date upon
the request of SDG.
BACKGROUND OF THE OFFER
SDG has been extremely interested in acquiring control of, and the entire
beneficial interest in, RPT for a long period of time. On June 27, 1997, in a
letter to the shareholders of RPT, William Dickey, on behalf of the
unaffiliated trustees of RPT (the "Special Committee"), set forth the status of
the strategic alternatives being considered by the Board of Trustees of RPT
(the "Board") with a mind to "maximize shareholder value and create liquidity"
for the shareholders of RPT.
The letter outlined the process by which in November, 1996 the Board
investigated strategic alternatives for RPT by appointing a Special Committee
(of which Mr. Dickey is a member) and hiring Lazard Freres & Co. LLC ("Lazard")
to act as financial advisor. According to the letter, in December, 1996 Lazard
began to analyze the available to RPT, which included a sale,
merger or other combination with an existing publicly-traded real estate
investment trust (a "REIT") and a liquidation of the assets of Shopping Center
Associates, a New York general partnership of which RPT is a general partner
("SCA"). In January, 1997, a group led by Jeremiah O'Connor, a trustee of RPT
(the "O'Connor Group"), notified the Board that it was engaged in negotiations
for a proposed transaction involving SCA assets. In March, 1997, Mr. O'Connor
and representatives of Goldman, Sachs & Co. ("Goldman"), presented to the Board
a proposal for the merger of SCA, The Richard E. Jacobs Group, NED Management
Limited Partnership and Wellspark Group Limited Partnership into a new REIT
("Newco"), with a subsequent public offering of the shares of Newco
(collectively, "Project Future IPO"). The Special Committee directed Lazard to
consider the proposal and negotiate with other Project Future IPO parties to
"maximize the potential value to RPT."
Lazard then reported to the Special Committee that it had had
conversations with representatives of public companies which would be likely
suitors for SCA assets, including SDG and, based on its conversations with such
potential acquirers and its investigation and analysis, Lazard concluded that
Project Future IPO "appeared to be preferable to RPT shareholders." The Board
approved the execution of a non-binding letter of intent with the parties to
Project Future IPO. However, the Board thereafter obtained a limited waiver of
the exclusivity provision of the letter of intent in order to continue
conversations with third party purchasers, including SDG, that had previously
expressed an interest in acquiring the assets of SCA. According to the June
27th letter, no specific price or terms were given to Lazard by SDG in the
letters wherein SDG expressed its interest, and thus Lazard confirmed its
initial conclusion that Project Future IPO was preferable. However, no specific
price or terms were given because SDG had not been permitted access to
information about SCA sufficient to enable it to make an informed offer for
SCA.
In a letter dated July 8, 1997 from David Simon to Mr. William Dickey, in
his capacity as trustee of RPT, and to Matthew Lustig of Lazard, Mr. Simon
affirmed SDG's interest in pursuing an acquisition of RPT and reiterated SDG's
position that any such acquisition proposal necessarily required a due
2
diligence review of RPT by SDG before a definitive proposal could be made. The
letter recounted that SDG's requests for more detailed information concerning
RPT had gone unheeded, resulting in SDG being unable to make a definitive offer
to RPT shareholders. Mr. Simon then described the benefits that a transaction
with SDG would provide to shareholders of RPT, which included liquidity,
certainty and enhanced opportunities for future growth, and closed the letter
by stating that a definitive proposal could be provided to RPT shareholders
within 30 days following SDG's receipt of requested diligence materials.
On July 17, 1997, Mr. Dickey, on behalf of the Board, sent a letter to the
shareholders of RPT in order to summarize the meeting of shareholders held on
July 9, 1997. The primary purpose of the meeting was to detail Lazard's
activities to date and its preliminary analysis of Project Future IPO and other
strategic alternatives. A copy of the detailed presentation made to
shareholders by Lazard at the meeting accompanied the letter. This presentation
included information about relative valuation of RPT Shares offered by Project
Future IPO and other alternatives as well as an update on the status of other
items of negotiation in Project Future IPO, including the payment of break up
fees, lock up arrangements after the initial public offering, and timing of the
transaction. The letter stated that the Board announced at the meeting an
agreement in principle with Mr. O'Connor with respect to RPT's potential
pursuit of an alternative transaction to Project Future IPO. Mr. Lustig also
stated that the Board had received additional correspondence from SDG and other
parties, but noted that it would be premature to commence negotiations with a
third party since neither proposal contained terms or conditions. The Board
then stated that it believed that the best strategy for shareholders was to
pursue negotiations for Project Future IPO.
At the request of Mr. Dickey, Matthew Lustig wrote Mr. Simon a letter
dated July 22, 1997, in response to Mr. Simon's letter of July 8, 1997, wherein
Mr. Lustig told Mr. Simon, on behalf of the Board, that the Board had
considered SDG's letter at the July 9, 1997 Board meeting. The letter stated
that while the Board appreciated SDG's desire to make a definitive proposal,
RPT was a party to an exclusivity and confidentiality agreement and that the
Board was not prepared to terminate those negotiations in order to pursue a
transaction with SDG. As a result, according to Mr. Lustig, RPT would not
respond to SDG's overtures or provide information regarding SCA assets to SDG.
Mr. Simon immediately responded to the July 22, 1997 letter that Mr.
Lustig sent on behalf of the Board by sending a letter to the Board that same
day wherein he reiterated that SDG was interested in making a definitive
acquisition proposal for RPT but was precluded from so doing because of the
refusal by the Board to make available customary due diligence information. In
the letter Mr. Simon went on to express his dismay that all prior requests for
information by SDG had been rebuffed, only to now be told that RPT had become a
party to an exclusivity agreement. The letter then stated that the presence of
an exclusivity agreement was particularly shocking given that SDG had been
requesting information of RPT for three months. In his letter Mr. Simon asked
why the Board would enter into an exclusivity arrangement with affiliated
parties (the O'Connor Group) when the Board knew that another entity was
willing to make a bona fide offer for RPT. Mr. Simon then asked that in light
of SDG's interest in making an offer that the exclusivity arrangement not be
extended or any break-up fee arrangement be entered into by RPT.
In a letter dated August 8, 1997, William Dickey told RPT's shareholders
that the Board approved Project Future IPO at a Board meeting held on August 7,
1997 and stated that the Formation Agreement for Project Future IPO (the
"Formation Agreement") provided that information regarding SCA and its assets
may be made available for a period of 30 days to qualified parties to conduct
due diligence and submit an alternative proposal to RPT. The letter then stated
that any proposal received and believed to be superior to Project Future IPO
would give the Board the right to terminate Project Future IPO and accept the
superior proposal, subject to RPT shareholder approval.
On August 11, 1997, Lazard sent a letter to third parties, including Mr.
Simon, wherein it solicited expressions of interest from third parties
regarding a possible transaction involving RPT and SCA on the condition that
the third parties sign a confidentiality and a standstill agreement.
On August 13, 1997, Mr. Simon proposed that some changes to the
confidentiality agreement be made and also forwarded a list of material SDG
wished to review in connection with the operations of RPT, including a copy of
the Formation Agreement and related documents to which SCA was now a party. Mr.
Simon indicated that SDG would not execute the standstill agreement sent by
Lazard, since the confidentiality agreement afforded SCA and the other parties
to the Formation Agreement adequate protection.
On August 15, 1997, Paul Taylor, a trustee of RPT, sent Mr. Simon a letter
that contained the fully executed confidentiality agreement, as well as a copy
of the quarterly report of RPT for first quarter 1997; letters to RPT
shareholders dated June 27, July 17 and August 8, 1997; the presentation
booklet of Lazard dated July 17, 1997 sent to RPT shareholders; and the names
and addresses of RPT shareholders as of June 30, 1997. The letter stated that
a copy of the Formation Agreement would be sent with a proxy statement towards
the end of the month. The letter also stated that the additional material
requested by SDG in its August 13th letter would not be provided to SDG until
SDG returned an executed copy of the standstill agreement that Lazard
forwarded to SDG. On or about August 28, 1997, the Board distributed to
RPT's
shareholders a Confidential Proxy Statement and Information Memorandum (the
"Proxy Statement"), which included a copy of the Formation Agreement.
3
According to the form of the Formation Agreement included as an exhibit to
the Proxy Statement, if RPT specifies a Superior Proposal to the other parties
to the Formation Agreement (the "Principal Sponsors") on or before September
10, 1997, then, not later than 5:00 p.m., New York City time, on September 20,
1997, the Principal Sponsors may submit to RPT in writing a proposal for a
merger, reorganization, share exchange, consolidation or similar transaction
involving, or any purchase of, all or any significant portion of the assets or
any equity securities of, RPT or SCA (any such transaction or acquisition, an
"Acquisition Proposal") that RPT shall evaluate promptly, and in no event later
than 5:00 p.m., New York City time, on September 25, 1997, for the purpose of
determining whether such Acquisition Proposal is a "Matching Proposal". For
these purposes, an Acquisition Proposal submitted by the Principal Sponsors
shall be a "Matching Proposal" if either (i) such Acquisition Proposal is
identical in all material respects to the Superior Proposal specified by RPT to
the Principal Sponsors on or before September 10, 1997 or (ii) a majority of
the RPT Unaffiliated Trustees does not determine in good faith (after
consultation with Lazard and based upon analysis not inconsistent with the
principles, procedures and methodology employed by Lazard in rendering the
opinion referred to in the Formation Agreement), that such Acquisition Proposal
is likely, if consummated, to result in a transaction less favorable to RPT or
the RPT shareholders from a financial point of view than is the Superior
Proposal, taking into account, among other things, all legal, financial and
regulatory aspects of the respective proposals and persons making the
respective proposals; provided, that, for purposes of determining whether an
Acquisition Proposal is a Matching Proposal, (x) any break-up, topping or
similar fees and expenses payable with respect to any Superior Proposal shall
be disregarded, and the Principal Sponsors shall not be required to pay any
such fees or expenses and (y) if the Superior Proposal includes as
consideration marketable securities of a class listed on a national securities
exchange or included in the NASDAQ National Market System, an Acquisition
Proposal by the Principal Sponsors that in lieu thereof offers the cash
equivalent thereof, as determined by a majority of the RPT Unaffiliated
Trustees in good faith after consultation with Lazard, shall be deemed to be
identical in all material respects. If an Acquisition Proposal timely
submitted by the Principal Sponsors constitutes a Matching Proposal, then,
promptly after the determination thereof, RPT and the Principal Sponsors are
required to execute and deliver documentation to evidence or effect such
Matching Proposal.
On August 28, 1997, SDG commenced the Offer. The original Offer provided
for a purchase price of $17.50 net per Share in cash. The original Offer was
conditioned upon, among other things: (i) there being validly tendered and not
withdrawn prior to the Expiration Date a sufficient number of Shares (including
Shares owned by SDG) to enable SDG or its affiliates to own at least a majority
of the outstanding Shares on the Expiration Date and (ii) SDG having the
exclusive power and authority to effect a merger of SCA with SDG and make all
"Major Decisions" (as that term is defined in the partnership agreement of
SCA), including the ability to (A) direct the disposition of SCA's assets and
(B) terminate any existing management contracts for properties owned in whole
or in part by SCA and its affiliates. An additional condition of the original
Offer was that, as of the Expiration Date of the Offer, there shall not have
occurred any change or development, including without limitation a change or
development involving a prospective change, in or affecting the business or
financial affairs of SDG and its subsidiaries which, in the sole judgment of
SDG, would or might prohibit, restrict or delay consummation of the Offer or
impair the contemplated benefits of the Offer to SDG or might be material to
holders in deciding whether to accept the Offer.
On September 6, 1997, Mr. Taylor, on behalf of the Board, sent a letter to
RPT's shareholders (the "September 6th Letter") outlining certain terms of a
potential sale of certain SCA assets. In the letter, the Board also described
those conditions to the original Offer described in the previous paragraph and
cited various reasons why it believed such conditions might not be able to be
satisfied.
On September 5, 1997, SDG commenced an action in the United States
District Court for the Southern District of New York against The Richard E.
Jacobs Group, Inc. and New England Development, Inc. seeking a preliminary and
permanent injunction. The complaint alleges that defendants obtained material
non-public information from RPT and seeks to prohibit defendants and persons
acting in concert with them from purchasing shares of RPT or voting rights on
such shares without disclosure of the material non-public information, and from
violating Section 10(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rules 10b-5 and 10b-13 thereunder. The complaint alleges
that the illegal purchases are designed to establish a blocking position to
assure defendants control of RPT and deny RPTs shareholders any meaningful
opportunity to accept SDG's more favorable offer.
SDG and its advisors have been engaged in ongoing discussions with RPT and
its advisors regarding the Offer and possible changes in the Offer. On
September 10, 1997, SDG negotiated proposals relating to the Offer with RPT and
ultimately sent to the Board a letter stating that:
4
"[U]pon advice to SDG by the RPT Board of Trustees (evidenced by
receipt of an executed copy of this letter) that it will (1) recommend
that the holders of the Shares accept the Offer and declare it to be a
"Superior Proposal" (within the meaning of the Formation Agreement
dated as of August 7, 1997) and (2) exercise its right to terminate
the Formation Agreement if there is no "Matching Proposal" (within the
meaning of the Formation Agreement), SDG will as soon as practicable,
and in any event within two (2) business days following receipt of
such advice, amend the Offer to increase the Offer price to $19 net
per Share, in cash, and to change the Offer as set forth in the
enclosed markup of the Offer. SDG agrees that RPT shall have the
right to enforce SDG's obligations to conduct the Offer on the terms
and conditions set forth in the enclosed markup of the Offer. In
addition, but not as a condition to the foregoing, SDG expects to
enter into a business combination with RPT, or RPT and Shopping Center
Associates ("SCA"), pursuant to which non-tendering holders of Shares
would receive the same price per Share as provided in the Offer."
On September 10, 1997, RPT agreed to SDG's proposal and SDG amended the
Offer accordingly.
The Unaffiliated Trustees of RPT present at a meeting held on September
10, 1997 unanimously resolved, among other things, that (i) the terms of the
amended Offer are fair and in the best interest of RPT and the RPT shareholders
and (ii) the amended Offer is a "Superior Proposal" within the meaning of the
Formation Agreement. The Unaffiliated Trustees present at such meeting also
unanimously recommended that the RPT shareholders accept the amended Offer.
The existence of a Matching Proposal would not require SDG to terminate
the Offer.
From July 25, 1997 through August 14, 1997 SDG has purchased 2,257,562
Shares, representing approximately 5.9% of the outstanding Shares, in open
market purchases.
PURPOSE OF THE OFFER
The purpose of the Offer is to acquire control of, and the entire equity
interest in, RPT. As soon as practicable, SDG expects to enter into a business
combination with RPT, or RPT and SCA, pursuant to which non-tendering holders
of Shares would receive the same price per Share as provided in the Offer.
The Offer is designed to maximize value and liquidity for RPT's
shareholders. SDG believes that there are important economic and qualitative
benefits of the Offer, including that the Offer could be consummated as soon as
September 25, 1997.
SDG
SDG is a subsidiary and the primary operating partnership of Simon
DeBartolo Group, Inc., a Maryland corporation ("Parent"). Parent is a self-
administered and self-managed REIT. SDG is engaged primarily in the ownership,
development, management, leasing, acquisition, and expansion of income
producing properties, primarily regional malls and community shopping centers.
Through its affiliated management companies, SDG provides architectural,
design, construction and other services to the properties SDG owns or in which
it holds an interest, as well as certain other regional malls and community
shopping centers owned by third parties. As of June 30, 1997, SDG owned or held
an interest in 186 income-producing properties, including 114 super-regional
and regional malls, 65 community shopping centers, three specialty retail
centers and four mixed-use properties located in 33 states. SDG and its
affiliates manage approximately 130 million square feet of gross leasable area
of retail and mixed-use properties.
The general partners of SDG are Parent and SD Property Group, Inc., a
99.99% owned subsidiary of Parent ("SDPG"). SDPG is the managing general
partner of SDG.
The executive offices of SDG are located at National City Center, 115 West
Washington Street, Suite 15 East, Indianapolis, Indiana 46204, and its
telephone number is (317) 636-1600.
Detailed information regarding SDG and its financial performance is set
forth in the following documents (which were included as Appendices A and B to
the Offer to Purchase dated August 28, 1997 previously sent by SDG to holders
of Shares): (i) SDG's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 and (ii) SDG's Quarterly Report on Form 10-Q for the six
months ended June 30, 1997.
5
SOURCE OF FUNDS
SDG expects to obtain the funds required to purchase all Shares pursuant
to the Offer, and to pay related fees and expenses, either from funds available
under existing credit facilities or under a borrowing facility to be
negotiated.
IMPACT ON SHARES OUTSTANDING AFTER THE OFFER
The Shares are not currently listed for trading on a securities exchange
or reported on a quotation system. To the extent that Shares are tendered and
purchased pursuant to the Offer, trading in the Shares that remain outstanding
following the consummation of the Offer may be significantly reduced, which may
adversely affect the liquidity of such Shares. Reduced trading also may tend to
increase the volatility of the trading prices of untendered Shares.
THE OFFER
TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer, SDG will
purchase all outstanding Shares properly tendered on or prior to the Expiration
Date. The Offer will expire at 12:00 Midnight, New York City time, on September
25, 1997 (the "Expiration Date"), unless and until SDG shall have extended the
period of time during which the Offer is open, in which event the Expiration
Date will be the latest time and date at which the Offer, as so extended by
SDG, expires. For a description of SDG's right to extend the period of time
during which the Offer is open and to terminate or amend the Offer, see "THE
OFFER_Extension; Termination; Amendments."
Consummation of the Offer is subject to certain conditions as described in
this Offer to Purchase. See "THE OFFER_Conditions of the Offer." Subject to
compliance with applicable securities laws and the terms set forth in this
Offer to Purchase, SDG reserves the right: (a) to waive any and all conditions
to the Offer; (b) to extend or to terminate the Offer; and (c) otherwise to
amend the Offer in any respect; provided that, without the consent of a
majority of the Unaffiliated Trustees of RPT (within the meaning of RPT's
Declaration of Trust), no amendment may be made which: (i) decreases the Offer
price per Share or changes the form of consideration; (ii) decreases the number
of shares sought; (iii) amends or imposes additional conditions to the Offer;
(iv) amends the terms of the Offer governing the right of SDG to amend, extend
or terminate the Offer; (v) alters the right of tendering holders of Shares to
withdraw previously tendered Shares or (vi) modifies the Proxy Restriction (as
hereinafter defined); provided, that the foregoing proviso shall apply only
from and after the date that the Board recommends pursuant to Rule 14e-2 under
the Exchange Act that holders of Shares tender their Shares pursuant to the
Offer and shall cease to apply if thereafter the Board withdraws, modifies or
changes its recommendation with respect to the Offer. Any such waiver,
extension or amendment may be made by press release or such other means of
announcement as SDG deems appropriate.
Subject to compliance with applicable securities laws, SDG expressly
reserves the right, at any time and from time to time, and regardless of
whether any of the events set forth in "THE OFFER_Conditions of the Offer"
shall have occurred or shall have been determined by SDG to have occurred, to
extend the period during which the Offer is open either: (i) to comply with
the requirements of applicable law, rules and regulations or as approved by the
Unaffiliated Trustees of RPT; (ii) at the request of RPT, to a date not later
than October 9, 1997; (iii) for such periods as may be determined in the sole
discretion of SDG so long as the conditions set forth herein have not been
satisfied immediately prior to any expiration date or (iv) for such periods as
may be determined in the sole discretion of SDG if the conditions set forth
herein (including, without limitation, the Minimum Condition) have been
satisfied so long as SDG shall have accepted for payment all Shares validly
tendered and not withdrawn prior to the Expiration Date to which such extension
relates; provided, that the foregoing provisions shall apply only from and
after the date that the Board recommends pursuant to Rule 14e-2 under the
Exchange Act that holders of Shares tender their Shares pursuant to the Offer
and shall cease to apply if thereafter the Board withdraws, modifies or changes
its recommendation with respect to the Offer, and in the event that such
provisions are not applicable, SDG may extend the Offer from time to time in
its discretion. SDG may, upon any such extension thereby delay acceptance for
payment of, and the payment for, any Shares by giving written notice of such
extension to the Depositary. The rights reserved by SDG in this paragraph are
in addition to SDG's rights to terminate the Offer pursuant to "THE
OFFER_Conditions of the Offer."
There can be no assurance that SDG will exercise its right to extend,
terminate or amend the Offer. Except as otherwise provided herein, during any
extension and irrespective of any amendment to the Offer, all Shares previously
tendered pursuant to the Offer and not accepted for payment will remain subject
to the Offer and may be accepted thereafter for payment by SDG.
6
SDG reserves the right to assign its rights under the Offer to other
persons such that after the consummation of the Offer the beneficial ownership
of Shares in RPT are held by 100 or more persons (within the meaning of Section
856(a)(5) of the Internal Revenue Code of 1986, as amended (the "Code")).
If, on or after the Commencement Date, RPT should reclassify, combine,
split, divide or redeem, purchase or otherwise acquire, directly or indirectly,
or otherwise change the Shares or its capitalization, or disclose that it has
taken any such action, then SDG may make such adjustments to the purchase price
and other terms of the Offer as it deems appropriate. If on or after the
Commencement Date, RPT should declare or pay any cash or stock dividend or
other distribution on, or issue any rights with respect to, the Shares that is
payable or distributable to shareholders of record on a date prior to the
transfer to the name of SDG or the nominee or transferee of SDG on RPT's stock
transfer records of such Shares that are purchased pursuant to the Offer: (i)
the purchase price payable per Share by SDG pursuant to the Offer will be
reduced to the extent any such divided or distribution is payable in cash and
(ii) any non-cash dividend, distribution (including additional Shares) or right
received and held by a tendering holder of Shares shall be required to be
promptly remitted and transferred by the tendering holder to the Depositary for
the account of SDG, accompanied by appropriate documentation of transfer.
Pending such remittance or appropriate assurance thereof, SDG will, subject to
applicable law, be entitled to all rights and privileges as owner of any such
non-cash dividend, distribution or right and may withhold the entire purchase
price or deduct from the purchase price the amount or value thereof, as
determined by SDG in its sole discretion.
SDG will not vote any Shares for which it receives proxies pursuant to the
Offer unless it has accepted such Shares for payment pursuant the Offer (the
"Proxy Restriction").
WITHDRAWAL RIGHTS
Tenders of Shares made pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may be withdrawn at any time on or prior
to the Expiration Date. If SDG extends the Offer, is delayed in its acceptance
for payment of Shares or is unable to purchase Shares validly tendered pursuant
to the Offer for any reason, then without prejudice to SDG's rights under the
Offer, the Depositary may nevertheless, on behalf of SDG, retain tendered
Shares and such Shares may not be withdrawn, subject to Rule 14e-1(c) under the
Exchange Act, which provides that no person who makes a tender offer shall fail
to pay the consideration offered or return the securities deposited by or on
behalf of security holders promptly after the termination or withdrawal of the
tender offer. Any such delay in acceptance for payment will be accompanied by
an extension of the Offer to the extent required by law.
For a withdrawal to be effective, a written, telegraphic, telex or
facsimile transmission notice of withdrawal must be timely received by the
Depositary at one of its addresses set forth on the last page of this Offer to
Purchase. Any notice of withdrawal must specify the name of the person who
tendered the Shares to be withdrawn, the number of Shares to be withdrawn and
the name of the registered holder, if different from that of the person who
tendered such Shares. If Share certificates to be withdrawn have been delivered
or otherwise identified to the Depositary, then prior to the physical release
of such certificates, the serial numbers shown on such certificates must be
submitted to the Depositary and the signatures on the notice of withdrawal must
be guaranteed by an Eligible Institution unless such Shares have been tendered
for the account of any Eligible Institution. If Shares have been tendered
pursuant to the procedure for book-entry transfer, any notice of withdrawal
must specify the name and number of the account at the book-entry transfer
facility to be credited with the withdrawn Shares, in which case a notice of
withdrawal will be effective if delivered to the Depositary by any method of
delivery described in the first sentence of this paragraph.
All questions as to the form and validity (including time of receipt) of
any notice of withdrawal will be determined by SDG, in its sole discretion,
whose determination will be final and binding. None of SDG, the Dealer Manager,
the Depositary or any other person will be under any duty to give notification
of any defects or irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification.
Any Shares properly withdrawn will thereafter be deemed not to have been
validly tendered for purposes of the Offer. However, withdrawn Shares may be
retendered at any time prior to the Expiration Date.
PURCHASE OF SHARES; PAYMENT OF PURCHASE PRICE
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such
extension or amendment) and applicable law, SDG will purchase, by accepting for
payment, and will pay for, all of the outstanding Shares validly tendered prior
to the Expiration Date as soon as practicable after such Expiration Date.
7
Subject to applicable law, SDG expressly reserves the right, in its sole
discretion, to delay acceptance for payment of or payment for the Shares in
order to comply, in whole or in part, with any applicable law. In all cases,
payment for Shares purchased pursuant to the Offer will be made only after
timely receipt by the Depositary of (a) such Shares, or timely confirmation of
a book-entry transfer (a "Book-Entry Confirmation") of such Shares into the
Depositary's account at a book-entry transfer facility pursuant to the
procedures set forth in "THE OFFER -- Procedure for Tendering Shares", (b) a
properly completed and duly executed Letter of Transmittal (or a facsimile
thereof), and (c) all necessary signature guarantees and any other documents
required by the Letter of Transmittal. See THE OFFER_Procedure for Tendering
Shares" for a description of the procedures for tendering Shares pursuant to
the Offer.
If SDG is delayed in its acceptance for payment of or payment for any
Shares tendered pursuant to the Offer (whether before or after SDG's acceptance
for payment of such Shares), or SDG extends the Offer or is unable to accept
for payment of or pay for the Shares tendered pursuant to the Offer, then,
without prejudice to SDG's rights hereunder, SDG may instruct the Depositary to
retain tendered Shares, and such Shares may not be withdrawn, subject to Rule
14e-1(c) under the Exchange Act, which provides that no person who makes a
tender offer shall fail to pay the consideration offered or return the
securities deposited by or on behalf of the holders of such securities promptly
after the termination or withdrawal of the tender offer.
If the consideration offered in the Offer is increased, all tendering
holders of the Shares subject to the Offer whose securities are accepted for
payment pursuant to the Offer will be given the increased consideration for
their securities regardless of whether such tenders have previously been
accepted for payment or paid for.
For purposes of the Offer, SDG will be deemed to have accepted for payment
(and therefore purchased) Shares when and if it gives oral or written notice to
the Depositary of its acceptance of such Shares for payment pursuant to the
Offer. Payment for Shares purchased pursuant to the Offer will be made by
depositing the aggregate purchase price therefor with the Depositary, which
will act as agent for tendering holders for the purpose of receiving payment
from SDG and transmitting payment to the tendering holders.
SDG will pay all transfer taxes, if any, payable on the transfer to it of
Shares purchased pursuant to the Offer. If, however, payment of the purchase
price is to be made to, or (in the circumstances permitted by the Offer) if
unpurchased Shares are to be registered in the name of, any person other than
the registered holder, or if tendered certificates are registered in the name
of any person other than the person signing the Letter of Transmittal, the
amount of all transfer taxes, if any (whether imposed on the registered holder
or such other person), payable on account of the transfer to such person will
be deducted from the purchase price unless satisfactory evidence of the payment
of such taxes, or exemption therefrom, is submitted. (See Instruction 6 of the
Letter of Transmittal.)
PROCEDURE FOR TENDERING SHARES
Proper Tender of Shares. For Shares to be properly tendered pursuant to
the Offer, either (a) the Letter of Transmittal (or a facsimile thereof)
properly completed and duly executed, along with any required signature
guarantees and any other documents required by the Letter of Transmittal, must
be received prior to the Expiration Date by the Depositary at its address set
forth on the last page of this Offer to Purchase and (i) such Shares must be
received by the Depositary or (ii) such Shares must be tendered pursuant to the
procedure for book-entry transfer described under the caption "-- Book-Entry
Transfer" below and a Book-Entry Confirmation must be received by the
Depositary, in each case on or prior to the Expiration Date or (b) the
tendering holder must comply with the guaranteed delivery procedures described
under the caption "-- Guaranteed Delivery" below. Holders whose Shares are
registered in the name of a nominee are urged to contact such nominee promptly
if they wish to accept the Offer.
Except as provided below under the captions "-- Book- Entry Transfer" and
"-- Guaranteed Delivery", unless the Shares being tendered are deposited with
the Depositary on or prior to the Expiration Date (accompanied by a properly
completed and duly executed Letter of Transmittal along with any required
signature guarantees and any other documents required by the Letter of
Transmittal), SDG may, at its option, reject such tender. If less than the
entire number of any Shares evidenced by a submitted certificate is to be
tendered, the tendering holder should fill in the number of Shares tendered in
the appropriate box on the Letter of Transmittal. The entire number of Shares
represented by the certificates for all Shares deposited with the Depositary
will be deemed to have been tendered unless otherwise indicated. A tendering
holder must also check the appropriate box on the Letter of Transmittal,
indicating whether or not such holder was a holder of record of Shares on
August 20, 1997.
In all cases, notwithstanding any other provision hereof, payment for
Shares tendered and accepted for payment pursuant to the Offer will be made
only after the timely receipt by the Depositary of (i) certificates for such
Shares or a timely Book-Entry Confirmation with respect to such Shares, (ii)
the Letter of Transmittal (or a facsimile thereof) properly completed and duly
executed, and (iii) any required signature guarantees and any other documents
required by such Letter of Transmittal. Accordingly, tendering holders may be
paid at different times depending upon when certificates for Shares, Letters of
Transmittal and Book-Entry Confirmations are actually received by the
Depositary.
8
Method of Delivery. All Letters of Transmittal, Notices of Guaranteed
Delivery and Shares should be delivered only by courier, or transmitted by
mail, and deliveries should be made only to the Depositary, and not to SDG or
the Dealer Manager. The method of delivery of certificates for Shares and all
other required documents is at the option and risk of the tendering holder, and
delivery will be deemed to be made only when actually received by the
Depositary. If certificates for Shares are sent by mail, registered mail with
return receipt requested, properly insured, is recommended.
Appointment as Proxy. By executing a Letter of Transmittal, a holder of
tendered Shares irrevocably appoints SDG or its designees and each of them as
the holder's attorneys-in-fact and proxies, in the manner set forth in the
Letter of Transmittal, each with full power of substitution, to the full extent
of the holder's rights with respect to the Shares tendered by the holder and
accepted for payment by SDG. SDG reserves the right to require that, in order
for Shares to be deemed validly tendered, immediately upon SDG's payment for
such Shares, SDG must be able to exercise full voting rights with respect to
such Shares and other securities, including voting at any meeting of
shareholders by written consent or otherwise.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal if the Letter of Transmittal is signed by the registered holder of
the Shares tendered therewith and payment is to be made directly to such
registered holder, or if Shares are tendered for the account of a member firm
of a registered national securities exchange, a member of the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
having an office, branch or agency in the United States (each such entity being
hereinafter referred to as an "Eligible Institution"). In all other cases, all
signatures on the Letter of Transmittal must be guaranteed by an Eligible
Institution. (See Instruction 1 of the Letter of Transmittal.) If a certificate
representing Shares is registered in the name of a person other than the signer
of a Letter of Transmittal, or if payment is to be made, or Shares not
purchased or tendered are to be issued, to a person other than the registered
holder, then the certificate must be endorsed or accompanied by a written
instrument or instruments of transfer in form satisfactory to SDG, in either
case, duly executed by the registered holder with the signatures guaranteed by
an Eligible Institution.
Backup Federal Income Tax Withholding. A holder whose tendered Shares are
accepted for payment may be subject to "backup withholding" under the
provisions of federal income tax law at the rate of 31% with respect to the
cash payable to such holder as a result of the Offer. Backup withholding will
not apply if such holder (a) is a corporation or comes within certain other
exempt categories, and when required demonstrates this fact, or (b) provides
SDG (as payor) with his correct taxpayer identification number (which, in the
case of a holder who is an individual, is his social security number), and
certifies under penalty of perjury that such number is correct and that (i) the
holder has not been notified by the Internal Revenue Service (the "IRS") that
such holder is subject to backup withholding as a result of failure to report
all interest or dividends or (ii) the IRS has notified the holder that he no
longer is subject to backup withholding. If SDG is not provided with the
correct taxpayer identification number or adequate basis for exemption, the
holder may be subject to a penalty imposed by the IRS. Any amount paid as
backup withholding will be credited against the holder's tax liability.
Therefore, unless an exemption and evidence thereof is provided in a
satisfactory manner, to prevent backup withholding each tendering holder must
complete and sign the Substitute Form W-9 provided in the Letter of
Transmittal. See Instruction 10 of the Letter of Transmittal.
FIRPTA Withholding. To prevent the withholding of federal income tax in
an amount equal to 10% of the amount of the purchase price per Share purchased,
each holder of tendered Shares must complete the FIRPTA Affidavit included in
the Letter of Transmittal certifying the holder's taxpayer identification
number and address and that the holder is not a foreign person. See
Instruction 11 to the Letter of Transmittal.
Book-Entry Transfer. The Depositary has established an account or accounts
with respect to the Shares at The Depository Trust Company, Midwest Securities
Trust Company and Philadelphia Depository Trust Company (each, a "Book-Entry
Transfer Facility") for purposes of the Offer, and any financial institution
that is a participant in a Book-Entry Transfer Facility's system may make
book-entry delivery of the Shares by causing such Book-Entry Transfer Facility
to transfer such Shares into the Depositary's account at such Book-Entry
Transfer Facility in accordance with that Book-Entry Transfer Facility's
procedure for such transfer. Although delivery of Shares may be effected
through book-entry transfer at a Book-Entry Transfer Facility, a properly
completed and duly executed Letter of Transmittal (or a facsimile thereof) with
any required signature guarantees, a confirmation of such tender and any other
documents required by the Letter of Transmittal must, in any case, be
transmitted to and received by the Depositary at the appropriate address set
forth on the last page of this Offer to Purchase on or prior to the Expiration
Date, or the holder must comply with the guaranteed delivery procedures
described below.
9
Guaranteed Delivery. If a holder desires to tender Shares pursuant to the
Offer and such holder's certificates are not immediately available or time will
not permit all required documents to reach the Depositary on or prior to the
Expiration Date, or such holder cannot complete the procedures for book-entry
transfer on a timely basis, such Shares may nevertheless be tendered provided
that all of the following conditions are satisfied:
(a) The tender is made by or through an Eligible Institution;
(b) On or prior to the Expiration Date, the Depositary receives from
such Eligible Institution at the address for the Depositary set
forth on the last page hereof a properly completed and duly executed
Notice of Guaranteed Delivery (by telegram, telex, facsimile
transmission, mail or hand delivery) substantially in the form made
available by SDG, setting forth the name and address of the holder,
the description of the Shares and the number of the Shares tendered,
stating that the tender is being made thereby and guaranteeing that,
within three New York Stock Exchange trading days after the date of
execution of such Notice of Guaranteed Delivery, a duly executed
Letter of Transmittal (or a facsimile thereof), together with the
certificates representing such Shares (or appropriate Book-Entry
Confirmation) and any required signature guarantees and any other
documents required by the Letter of Transmittal and the instructions
thereto will be deposited by the Eligible Institution with the
Depositary; and
(c) The certificates for the tendered Shares in proper form for transfer
(or appropriate Book-Entry Confirmation), together with a properly
completed and duly executed Letter of Transmittal (or a facsimile
thereof), any required signature guarantees and any other documents
required by the Letter of Transmittal and the instructions thereto,
are received by the Depositary within three New York Stock Exchange
trading days after the date of execution of such Notice of
Guaranteed Delivery.
In all cases, payment for Shares tendered and accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of certificates for such Shares, a properly completed and duly executed Letter
of Transmittal (or facsimile thereof), any required signature guarantees and
any other documents required by the Letter of Transmittal.
Tender Constitutes an Agreement. The proper tender of Shares pursuant to
any of the procedures described above will constitute a binding agreement
between the tendering holder and SDG upon the terms and subject to the
conditions of the Offer, and a representation that such holder owns the Shares
being tendered and is entitled to tender such Shares as contemplated by the
Offer, all within the meaning of Rule 14e-4 under the Exchange Act.
Further, by executing a Letter of Transmittal as set forth above, and
subject to and effective upon acceptance for payment of and payment for the
Shares tendered therewith, a tendering holder irrevocably sells, assigns and
transfers to or upon the order of SDG all right, title and interest in and to
all the Shares tendered thereby, waives any and all other rights with respect
to the Shares, and releases and discharges SDG from any and all claims such
holder may have now, or may have in the future, arising out of, or related to,
the Shares and each such holder appoints the Depositary the true and lawful
agent and attorney-in-fact of such holder with respect to such Shares, with
full power of substitution and resubstitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest) to (a) deliver
certificates for such Shares or transfer ownership of such Shares on the
account books maintained by any of the Book-Entry Transfer Facilities,
together, in each case, with all accompanying evidences of transfer and
authenticity, to or upon the order of SDG, (b) present such Shares for transfer
on the books of SDG, and (c) receive all benefits or otherwise exercise all
rights of beneficial ownership of such Shares (except that the Depositary will
have no rights to or control over funds from SDG, except as agent for SDG, for
the purchase price for any Shares tendered hereby that are purchased by SDG),
all in accordance with the terms of the Offer.
Determination of Validity; Rejection of Shares; No Obligation to Give
Notice of Defects. All questions as to the amount of Shares to be accepted and
the validity, form, eligibility (including the time of receipt) and acceptance
for payment of any tender of Shares pursuant to the procedures described herein
and the form and validity of all documents will be determined by SDG in its
sole discretion, which determination shall be final and binding on all parties.
SDG reserves the absolute right to reject any or all tenders determined by it
not to be in proper form or the acceptance of or payment for which may be
unlawful. SDG also reserves the absolute right to waive any of the conditions
of the Offer and any defect or irregularity in the tender of any particular
Shares. SDG's interpretation of the terms and conditions of the Offer
(including without limitation the instructions in the Letter of Transmittal)
shall be final and binding. No alternative, conditional or contingent tenders
will be accepted. Unless waived, any irregularities in connection with tenders
must be cured within such time as SDG shall determine. None of SDG, the
Depositary, the Dealer Manager or any other person will be under any duty to
give notification of any defects or irregularities in such tenders or will
incur any liabilities for failure to give such notification. Tenders of such
Shares will not be deemed to have been made until such irregularities have been
cured or waived. Any Shares received by the Depositary that are not properly
tendered and as to which the irregularities have not been cured or waived will
be returned by the Depositary to the tendering holders, unless such holders
have otherwise provided in the Letters of Transmittal, as promptly as
practicable following the Expiration Date.
10
CONDITIONS OF THE OFFER
The valid tender, not withdrawn prior to the Expiration Date, of a
sufficient number of Shares (including those Shares currently owned by SDG) to
enable SDG or its affiliates, on the Expiration Date: (i) to own at least a
majority of the outstanding Shares and (ii) to possess, together with valid
proxies obtained pursuant to the Offer, full voting rights with respect to a
majority of the outstanding Shares (including voting at any meeting of
shareholders then scheduled and any adjournments or postponements thereof
(including, without limitation, the meeting of shareholders currently scheduled
to be held on September 30, 1997) or acting by written consent without a
meeting) regarding any matter to be voted on by holders of Shares after the
date such Shares are accepted for payment pursuant to this Offer to Purchase,
is a condition to the consummation of the Offer (the "Minimum Condition").
In addition, SDG shall not be required to accept for payment, purchase or
pay for any Shares tendered, and may terminate or amend the Offer or may
postpone, subject to the provisions of Rule 14e-1(c) under the Exchange Act,
the acceptance for payment of, the purchase of and the payment for, Shares
tendered, if, at any time prior to acceptance of the applicable Shares for
payment, any of the following events shall have occurred or shall have been
determined by SDG to have occurred which, in the sole judgment of SDG in any
such case and regardless of the circumstances (including without limitation any
action or omission to act by SDG), makes it inadvisable to proceed with the
Offer or with any such purchase or payment:
(a) there shall have been threatened, instituted or pending any action or
proceeding by any government or governmental, regulatory or administrative
agency or authority or tribunal, domestic or foreign, which challenges the
making of the Offer or the acquisition of Shares pursuant to the Offer; or
(b) there shall have been any action taken, or any statute, rule,
regulation, judgment, order, decree or injunction promulgated, enacted,
entered, enforced or deemed to be applicable to the Offer, by any court or any
government or governmental, regulatory or administrative agency, authority or
tribunal, domestic or foreign, which directly or indirectly: (i) makes the
acceptance for payment of, or payment for, some or all of the Shares illegal or
otherwise restricts or prohibits consummation of the Offer; (ii) delays or
restricts the ability of SDG, or renders SDG unable, to accept for payment or
pay for some or all of the Shares or (iii) materially impairs in a substantial
way the contemplated benefits of the Offer to SDG; or
(c) there shall have occurred: (i) any general suspension of, shortening
of hours for, or limitation on prices for, trading in securities on the New
York Stock Exchange or in the over-the-counter market (whether or not
mandatory); (ii) a declaration of a banking moratorium or any suspension of
payments in respect of banks by federal or state authorities in the United
States (whether or not mandatory); (iii) a commencement or continuation of a
war, armed hostilities or other international or national crisis directly or
indirectly involving the United States; (iv) any limitation (whether or not
mandatory) by any governmental authority on, or other event having a reasonable
likelihood of affecting, the extension of credit by banks or other lending
institutions in the United States; (v) any significant change in United States
currency exchange rates or a suspension of, or limitation on, the markets
therefor (whether or not mandatory); (vi) any significant adverse change in
United States securities or financial markets generally or (vii) in the case of
any of the foregoing existing at the time of the commencement of the Offer, a
material acceleration or worsening thereof; or
(d) RPT, SCA or any of their respective affiliates shall have: (i) issued, or
authorized or proposed the issuance of, any partnership interests or
securities, or any securities convertible into, or rights, warrants or options
to acquire, any such interests or securities; (ii) declared or paid any
dividend or distribution (other than cash distributions in the ordinary course
of business in accordance with past practice) or (iii) engaged in, authorized,
proposed or announced its intention to engage in, authorize or propose, any
merger, consolidation or business combination transaction, any material
acquisition of assets, material disposition of assets or material change in its
capitalization, or any comparable event not in the ordinary course of business,
other than: (w) the mere continued existence of the Formation Agreement in the
form executed on August 7, 1997; (x) the announced transactions with respect to
the Chicago Partnerships (as such term is defined in the September 6th Letter)
substantially in accordance with the terms described in the September 6th
Letter; (y) the purchase by RPT or SCA of the interests of any other partner in
the South Hills Village joint venture on an arms' length basis and (z) the
completion of the Sherwood Transaction (as defined in the September 6th Letter)
substantially in accordance with the terms of the contract of sale for such
transaction referred to in the September 6th Letter.
11
The foregoing conditions are for the sole benefit of SDG and may be
asserted by SDG regardless of the circumstances giving rise to any such
condition (including any action or inaction by SDG) and may be waived by SDG in
whole or in part at any time and from time to time in its sole discretion.
Shareholders have to otherwise comply with the terms and conditions of their
applicable purchase agreement. SDG expressly reserves the right to assign all
or any of its rights herein to other entities. The failure by SDG at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any
such right and each such right shall be deemed an ongoing right which may be
asserted at any time and from time to time. Any determination by SDG concerning
the Minimum Condition or the events described in this section shall be final
and binding upon all parties.
If the Minimum Condition is not satisfied or if any of the events
described in the foregoing conditions have occurred, SDG may (i) terminate the
Offer and return tendered Shares to the holders who tendered them; (ii) extend
the Offer and retain all tendered Shares until the expiration of the Offer or
(iii) amend the Offer by giving oral or written notice of such amendment to the
Depositary. Any extension, termination or amendment of the Offer will be
followed as promptly as practicable by announcement thereof, such announcement
in the case of an extension to be issued no later than 9:00 A.M., New York City
time, on the next business day following the previously scheduled Expiration
Date. Without limiting the manner in which SDG may choose to make such
announcement, SDG will not, unless otherwise required by law, have any
obligation to publish, advertise or otherwise communicate any such announcement
other than by making a release to the Dow Jones News Service or such other
means of announcement as SDG deems appropriate.
EXTENSION; TERMINATION; AMENDMENTS
Subject to compliance with applicable securities laws and the terms set
forth herein (including those terms set forth under "THE OFFER-Terms of the
Offer"), SDG expressly reserves the right, at any time and from time to time,
to extend the period of time during which the Offer is open by giving oral or
written notice of such extension to the Depositary and making a public
announcement thereof.
SDG shall not terminate the Offer except upon the occurrence of any of the
conditions specified in "_ Conditions of the Offer", by giving oral or written
notice of such termination or postponement to the Depositary and making a
public announcement thereof.
Subject to compliance with applicable securities laws and the terms set
forth herein (including those terms set forth under "THE OFFER-Terms of the
Offer"), SDG further reserves the right, in its sole discretion, to amend the
Offer in any respect. Any amendment to the Offer will apply to all Shares
tendered pursuant to the Offer, regardless of when or in what order such Shares
are tendered.
Any extension, waiver, delay, termination or amendment of the Offer will
be followed as promptly as practicable by public announcement thereof, such
announcement in the case of an extension to be issued no later than 9:00 A.M.,
New York City time, on the next business day after the previously scheduled
Expiration Date. Without limiting the manner in which SDG may choose to make
such announcement, SDG will not, unless otherwise required by law, have any
obligation to publish, advertise or otherwise communicate any such announcement
other than by making a release to the Dow Jones News Service or such other
means of announcement as SDG deems appropriate.
THE DEPOSITARY
The Depositary for the Offer is the First Chicago Trust Company of New
York. All deliveries, correspondence and questions sent or presented to the
Depositary relating to the Offer should be directed to one of the addresses or
telephone numbers set forth on the last page of this Offer to Purchase.
Directors, officers and regular employees of SDG (who will not be
specifically compensated for such services) and the Dealer Manager may contact
holders of Shares by mail, telephone, telex, telegraph and personal interviews
regarding the Offer and may request brokers, dealers and other nominees to
forward this Offer to Purchase and related materials to beneficial owners of
Shares.
Requests for information or additional copies of this Offer to Purchase
and the related Letter of Transmittal should be directed to Dealer Manager.
12
FEES AND EXPENSES
Merrill Lynch & Co. is acting as Dealer Manager for SDG in connection with
the Offer and has provided certain financial advisory services to SDG in
connection with the Offer. Pursuant to its agreement with the Dealer Manager,
SDG will compensate the Dealer Manager for services as a Dealer Manager in
connection with the Offer, and will reimburse the Dealer Manager for its
reasonable out-of-pocket expenses. SDG has agreed to indemnify the Dealer
Manager against certain liabilities in connection with its services as a Dealer
Manager and financial advisers, including liabilities under the federal
securities laws.
Pursuant to its agreement with the Depositary, SDG will pay the Depositary
reasonable and customary compensation for its services in connection with the
Offer, plus reimbursement for reasonable out-of-pocket expenses. SDG will
indemnify the Depositary against certain liabilities and expenses in connection
therewith, including liabilities under the federal securities laws.
Brokers, dealers (including the Dealer Manager, commercial banks and trust
companies will be reimbursed by SDG for customary mailing and handling expenses
incurred by them in forwarding material to their customers. SDG will not pay
any fees or commissions to any broker, dealer or other person (other than the
Dealer Manager and the Depositary) in connection with the solicitation of
tenders of Shares pursuant to the Offer.
MISCELLANEOUS
SDG is not aware of any jurisdiction where the making of the Offer is not
in compliance with the laws of such jurisdiction. If SDG becomes aware of any
jurisdiction where the making of the Offer would not be in compliance with such
laws, SDG will make a good faith effort to comply with any such laws or seek to
have such laws declared inapplicable to the Offer. If, after such good faith
effort, SDG cannot comply with any such applicable laws, the Offer will not be
made to (nor will tenders be accepted from or on behalf of) the holders of
Shares residing in such jurisdiction.
SIMON DEBARTOLO GROUP, L.P.
13
Facsimile copies of the Letter of Transmittal will be accepted. Letters of
Transmittal, certificates for Shares and any other required documents should be
sent by each holder or his broker, dealer, commercial bank, trust company or
other nominee to the Depositary at one of the addresses as set forth below:
THE DEPOSITARY:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Mail: By Overnight By Hand:
Courier:
First Chicago Trust First Chicago Trust First Chicago Trust
Company Company Company
of New York of New York of New York
Attention: Tenders & Attention: Tenders & Attention: Tenders &
Exchanges Exchanges Exchanges
P.O. Box 2565, Suite Suite 4680-CBE: c/o THE DEPOSITORY
4660 14 Wall Street, 8th TRUST COMPANY
Jersey City, NJ 07303- Floor 55 Water Street, DTC TAD
2565 New York, NY 10005 Vietnam Veterans
Memorial Plaza
New York, NY 10041
For Information: (212)
805-7190 (Call Collect)
Any questions or requests for assistance or additional copies of this
Offer to Purchase, Letter of Transmittal and Notice of Guaranteed Delivery may
be directed to the Dealer Manager at its telephone number and location set
forth below. You may also contact your broker dealer, commercial bank or trust
company or any other nominee for assistance concerning the Offer.
THE DEALER MANAGER:
MERRILL LYNCH & CO.
World Financial Center
North Tower
New York, New York 10281-1329
(212) 449-8209
(Call Collect)
14
EXHIBIT 99.2
SIMON DEBARTOLO GROUP
September 10, 1997
The Board of Trustees
The Retail Property Trust
399 Park Avenue, 25th Floor
New York, New York 10022
Gentlemen:
We refer to the Offer to Purchase dated August 28, 1997 (the "Offer")
pursuant to which Simon DeBartolo Group, L.P. ("SDG") has offered to acquire
all of the outstanding shares of beneficial interest ("Shares") of the Retail
Property Trust ("RPT"). Upon advice to SDG by the RPT Board of Trustees
(evidenced by receipt of an executed copy of this letter) that it will (1)
recommend that the holders of the Shares accept the Offer and declare it to be
a "Superior Proposal" (within the meaning of the Formation Agreement dated as
of August 7, 1997) and (2) exercise its right to terminate the Formation
Agreement if there is no "Matching Proposal" (within the meaning of the
Formation Agreement), SDG will as soon as practicable, and in any event within
two (2) business days following receipt of such advice, amend the Offer to
increase the Offer price to $19.375 net per Share, in cash, and to change the
Offer as set forth in the enclosed markup of the Offer. SDG agrees that RPT
shall have the right to enforce SDG's obligations to conduct the Offer on the
terms and conditions set forth in the enclosed markup of the Offer. In
addition, but nor as a condition to the foregoing, SDG expects to enter into a
business combination with RPT, or RPT and Shopping Center Associates ("SCA"),
pursuant to which non-tendering holders of Shares would receive the same price
per Share as provided in the Offer.
We are in receipt of a certain letter agreement dated August 7, 1997 (the
"O'Conner Letter") between J.W. O'Conner & Co. Incorporated and RPT. We agree
that if in connection with the Offer there occurs an "Alternate Proposal" (as
that term is defined in the O'Conner Letter), which includes SCA. SDG shall
use its reasonable efforts to cause the transactions contemplated by such
Alternate Proposal to be structured on a basis such that, to the extent
practicable, the receipt by O'Conner Retail Partners, L.P. of the "O'Conner
Payment" (as described in the O'Conner Letter) will be a non-taxable
transaction.
The Board of Trustees
The Retail Property Trust
September 10, 1997
Page -2-
RPT will provide SDG, on a continuing basis, with complete and accurate
information regarding the record ownership of the Shares to that it can verify
the number of Shares tendered and the effectiveness of the proxies provided.
If the terms of this letter are acceptable to RPT, please sign below and
return an executed copy of the letter to the undersigned.
Sincerely,
SIMON DeBARTOLO GROUP, L.P.
By: SD Property Group, INC., its managing
general partner
By:/s/ David Simon
-----------------
David Simon, Chief Executive Officer
AGREED TO AND ACCEPTED ON
SEPTEMBER____, 1997:
THE RETAIL PROPERTY TRUST
By: Paul E. Taylor Jr.
Name: Paul E. Taylor Jr.
Title: Unaffiliated Trustee
Enclosures
EXHIBIT 99.3
SIMON DEBARTOLO GROUP
CONTACTS:
David Simon Stephen E. Sterrett
Chief Executive Officer Treasurer
317.263.7161 317.685.7363
FOR IMMEDIATE RELEASE
SIMON DeBARTOLO GROUP INCREASES ITS CASH TENDER OFFER
FOR RETAIL PROPERTY TRUST
INDEPENDENT TRUSTEES OF RPT RECOMMEND SIMON OFFER
Indianapolis, Indiana - September 12, 1997 . . . Simon DeBartolo Group, Inc.
(NYSE:SPG) announced today that its primary operating partnership Simon
DeBartolo Group, L.P. ("SDG") has amended and supplemented its cash tender
offer for all of the outstanding beneficial interests (the "Shares") of The
Retail Property Trust, a private Massachusetts business trust ("RPT"), to
provide for, among other things, an increased offering price of $19 3/8 per
Share. The revised offer also eliminates several conditions to the Offer.
The Unaffiliated Trustees of RPT present at a meeting held on September 10,
1997, unanimously recommended that the RPT shareholders accept the revised
Offer of SDG.
The tender offer, which was commenced on August 28, 1997, continues to be
conditioned upon there being tendered and not withdrawn a number of Shares,
which together with Shares owned by SDG and its affiliates, constitutes at
least a majority of Shares outstanding upon the expiration of SDG's tender
offer. SDG believes that there are approximately 38.3 million Shares
outstanding; SDG currently owns approximately 2.3 million Shares, all of which
were purchased in open market transactions prior to commencement of the tender
offer. The tender offer will expire at 12:00 Midnight, New York City time, on
September 25, 1997.
Merrill Lynch & Co. is acting as financial advisor to SDG and as Dealer Manager
in connection with the tender offer.
RPT is a privately held real estate investment trust which owns substantially
all of the interests in a partnership which in turn owns interests in 12
regional malls and one community center, comprising approximately 12 million
square feet of gross leasable area in 8 states.
-more-
Page two
Simon DeBartolo Group, Inc., headquartered in Indianapolis, Indiana, is a self-
administered and self-managed real estate investment trust which, through its
subsidiary partnerships, is engaged primarily in the ownership, development,
management, leasing, acquisition and expansion of income-producing properties,
primarily regional malls and community shopping centers. It currently owns or
has an interest in 187 properties which consist of existing regional malls,
community shopping centers and specialty and mixed-use properties containing an
aggregate of 115 million square feet of gross leasable area in 33 states.
Simon DeBartolo Group, together with its affiliated management company, manages
approximately 131 million square feet of gross leasable area in retail and
mixed-use properties.
Simon DeBartolo Group is the largest publicly traded real estate company in
North America as measured by market capitalization, with a current total market
capitalization of approximately $10 billion.