- --------------------------------------------------------------------------------
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OMB APPROVAL
OMB NUMBER: 3235-0515
EXPIRES: APRIL 30, 2005
ESTIMATED AVERAGE BURDEN
HOURS PER RESPONSE: 43.5
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
SCHEDULE TO/A
TENDER OFFER STATEMENT UNDER
SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
------------------------------
(AMENDMENT NO. 6)
TAUBMAN CENTERS, INC.
(Name of Subject Company (Issuer))
SIMON PROPERTY ACQUISITIONS, INC.
SIMON PROPERTY GROUP, INC.
WESTFIELD AMERICA, INC.
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
876664103
(CUSIP Number of Class of Securities)
James M. Barkley, Esq. Peter R. Schwartz, Esq.
Simon Property Group, Inc. Westfield America, Inc.
National City Center 11601 Wilshire Boulevard
115 West Washington Street 12th floor
Suite 15 East Los Angeles, CA 90025
Indianapolis, IN 46024 Telephone: (310) 445-2427
Telephone: (317) 636-1600
(Name, Address and Telephone Numbers of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
------------------------------
Copies to:
Steven A. Seidman, Esq. Scott V. Simpson, Esq.
Robert B. Stebbins, Esq. Skadden, Arps, Slate, Meagher & Flom, LLP
Willkie Farr & Gallagher One Canada Square
787 Seventh Avenue Canary Wharf
New York, New York 10019 London, E14 5DS, England
Telephone: (212) 728-8000 Telephone: (44)20 7519 7000
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
$1,243,725,540 $248,745.11
* Estimated for purposes of calculating the amount of the filing fee only.
Calculated by multiplying $20.00, the per share tender offer price, by
62,186,277 shares of Common Stock, consisting of (i) 52,207,756 outstanding
shares of Common Stock, (ii) 2,269 shares of Common Stock issuable upon
conversion of 31,767,066 outstanding shares of Series B Non-Participating
Convertible Preferred Stock, (iii) 7,097,979 shares of Common Stock issuable
upon conversion of outstanding partnership units of The Taubman Realty
Group, Limited Partnership ("TRG") and (iv) 2,878,273 shares of Common Stock
issuable upon conversion of outstanding options (each of which entitles the
holder thereof to purchase one partnership unit of TRG which, in turn, is
convertible into one share of Common Stock), based on the Registrant's
Preliminary Proxy Statement on Schedule 14A filed on December 20, 2002, the
Registrant's Schedule 14D-9 filed on December 11, 2002 and the Registrant's
Quarterly Report on Form 10-Q for the period ended September 30, 2002.
** The amount of the filing fee calculated in accordance with
Regulation 240.0-11 of the Securities Exchange Act of 1934, as amended,
equals 1/50th of one percent of the value of the transaction.
/X/ Check the box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $248,745.11 Filing Party: Simon Property Group, Inc.; Simon
Property Acquisitions, Inc.; Westfield
Form or Registration No.: Schedule TO (File No. 005-42862), America, Inc.
Amendment No. 1 and Amendment No. 5 to
the Schedule TO
Date Filed: December 5, 2002, December 16, 2002
and January 15, 2003
/ / Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
/ / Check the appropriate boxes below to designate any transactions to which
the statement relates.
/X/ third-party tender offer subject to Rule 14d-1.
/ / issuer tender offer subject to Rule 13e-4.
/ / going-private transaction subject to Rule 13e-3.
/ / amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: / /
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SCHEDULE TO
This Amendment No. 6 amends and supplements the Tender Offer Statement on
Schedule TO originally filed with the Securities and Exchange Commission (the
"Commission") on December 5, 2002, as amended and supplemented by Amendment
No. 1 thereto filed with the Commission on December 16, 2002, by Amendment
No. 2 thereto filed with the Commission on December 27, 2002, by Amendment
No. 3 thereto filed with the Commission on December 30, 2002, by Amendment
No. 4 thereto filed with the Commission on December 31, 2002 and by Amendment
No. 5 thereto filed with the Commission on January 15, 2003 (as amended and
supplemented, the "Schedule TO") relating to the offer by Simon Property
Acquisitions, Inc., a Delaware corporation (the "Purchaser") and wholly owned
subsidiary of Simon Property Group, Inc., a Delaware corporation ("SPG Inc."),
to purchase all of the outstanding shares of common stock, par value $.01 per
share (the "Shares"), of Taubman Centers, Inc. (the "Company") at a purchase
price of $20.00 per Share, net to the seller in cash, without interest thereon,
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated December 5, 2002 (the "Offer to Purchase"), and the Supplement to the
Offer to Purchase, dated January 15, 2003 (the "Supplement"), and in the related
revised Letter of Transmittal (which, together with any supplements or
amendments, collectively constitute the "Offer"). This Amendment No. 6 to the
Schedule TO is being filed on behalf of the Purchaser, SPG Inc. and Westfield
America, Inc.
Capitalized terms used and not defined herein shall have the meanings
assigned to such terms in the Offer to Purchase, the Supplement and the Schedule
TO, as applicable.
The information set forth in the Supplement is hereby incorporated by
reference in answer to Items 1 through 11 of this Schedule TO.
Item 12. EXHIBITS.
(a)(1)(I) Supplement to the Offer to Purchase, dated January 15, 2003.
(a)(1)(J) Revised Letter of Transmittal.
(a)(1)(K) Revised Notice of Guaranteed Delivery.
(a)(1)(L) Revised Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees.
(a)(1)(M) Form of Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies and other
Nominees.
(a)(5)(I) Letter to Shareholders of Taubman Centers, Inc., dated
January 15, 2003.
(a)(5)(J) Offer Agreement, dated January 15, 2003, between Simon
Property Group, Inc., Simon Property Acquisitions, Inc. and
Westfield America, Inc.
(a)(5)(K) Commitment Letter, dated January 15, 2003, between Westfield
America Limited Partnership, UBS AG, Stamford Branch and
Deutsche Bank AG, Cayman Islands Branch.
SIGNATURE
After due inquiry and to the best of their knowledge and belief, the
undersigned hereby certify as of January 15, 2003 that the information set forth
in this statement is true, complete and correct.
SIMON PROPERTY GROUP, INC.
By: /s/ JAMES M. BARKLEY
------------------------------------------------
Name: James M. Barkley
Title: Secretary and General Counsel
SIMON PROPERTY ACQUISITIONS, INC.
By: /s/ JAMES M. BARKLEY
------------------------------------------------
Name: James M. Barkley
Title: Secretary and Treasurer
After due inquiry and to the best of its knowledge and belief, the
undersigned hereby certifies as of January 15, 2003 that the information set
forth in this statement is true, complete and correct.
WESTFIELD AMERICA, INC.
By: /s/ PETER R. SCHWARTZ
------------------------------------------------
Name: Peter R. Schwartz
Title: Senior Executive Vice President
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
--------- ------------------------------------------------------------
(a)(1)(I) Supplement to the Offer to Purchase, dated January 15, 2003.
(a)(1)(J) Revised Letter of Transmittal.
(a)(1)(K) Revised Notice of Guaranteed Delivery.
(a)(1)(L) Revised Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees.
(a)(1)(M) Form of Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies and other
Nominees.
(a)(5)(I) Letter to Shareholders of Taubman Centers, Inc., dated
January 15, 2003.
(a)(5)(J) Offer Agreement, dated January 15, 2003, between Simon
Property Group, Inc., Simon Property Acquisitions, Inc. and
Westfield America, Inc.
(a)(5)(K) Commitment Letter, dated January 15, 2003, between Westfield
America Limited Partnership, UBS AG, Stamford Branch and
Deutsche Bank AG, Cayman Islands Branch.
SUPPLEMENT TO THE OFFER TO PURCHASE DATED DECEMBER 5, 2002
SIMON PROPERTY ACQUISITIONS, INC.,
A WHOLLY OWNED SUBSIDIARY OF
SIMON PROPERTY GROUP, INC.,
HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TAUBMAN CENTERS, INC.
TO
$20.00 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, FEBRUARY 14, 2003, UNLESS THE OFFER IS EXTENDED.
SIMON PROPERTY GROUP, INC., WESTFIELD AMERICA, INC. AND SIMON PROPERTY
ACQUISITIONS, INC. (INCLUDING ANY SUCCESSOR THERETO, THE "PURCHASER") HAVE
ENTERED INTO AN AGREEMENT, DATED JANUARY 15, 2003, WHICH PROVIDES, AMONG OTHER
THINGS, THAT (I) ALL DECISIONS WITH RESPECT TO THE OFFER SHALL BE MADE JOINTLY
BY SIMON PROPERTY GROUP, INC. AND WESTFIELD AMERICA, INC. AND (II) IF THE OFFER
IS CONSUMMATED, WESTFIELD AMERICA, INC. (OR ITS DESIGNATED ASSIGNEE) WILL
ACQUIRE 50% OF THE PURCHASER (OR ITS DESIGNEE) AT A PURCHASE PRICE EQUAL TO 50%
OF THE AGGREGATE OFFER PRICE (AS DEFINED IN THE OFFER TO PURCHASE) PAID BY THE
PURCHASER IN THE OFFER, AND SIMON PROPERTY GROUP, INC. AND WESTFIELD
AMERICA, INC. WILL JOINTLY CONTROL THE SHARES OF COMMON STOCK OF TAUBMAN
CENTERS, INC. (THE "SHARES") PURCHASED IN THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER CONDITIONS SET FORTH IN THE OFFER
TO PURCHASE, (1) THERE BEING VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE
EXPIRATION OF THE OFFER SUCH NUMBER OF SHARES THAT REPRESENTS, TOGETHER WITH
SHARES OWNED BY THE PURCHASER, SIMON PROPERTY GROUP, INC., WESTFIELD
AMERICA, INC. OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, AT LEAST TWO-THIRDS
( 2/3) OF THE TOTAL VOTING POWER OF TAUBMAN CENTERS, INC., (2) THE PURCHASER
BEING SATISFIED, IN ITS SOLE DISCRETION, THAT AFTER CONSUMMATION OF THE OFFER
NONE OF THE SHARES ACQUIRED BY THE PURCHASER SHALL BE DEEMED "EXCESS STOCK" (AS
DEFINED IN THE OFFER TO PURCHASE), (3) FULL VOTING RIGHTS FOR ALL SHARES TO BE
ACQUIRED BY THE PURCHASER IN THE OFFER HAVING BEEN APPROVED BY THE SHAREHOLDERS
OF TAUBMAN CENTERS, INC. PURSUANT TO THE MICHIGAN CONTROL SHARE ACT (AS DEFINED
IN THE OFFER TO PURCHASE), OR THE PURCHASER BEING SATISFIED, IN ITS SOLE
DISCRETION, THAT THE PROVISIONS OF SUCH STATUTE ARE INVALID OR OTHERWISE
INAPPLICABLE TO THE SHARES TO BE ACQUIRED BY THE PURCHASER PURSUANT TO THE
OFFER, AND (4) THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT,
AFTER CONSUMMATION OF THE OFFER, THE MICHIGAN BUSINESS COMBINATION ACT (AS
DEFINED IN THE OFFER TO PURCHASE) WILL NOT PROHIBIT FOR ANY PERIOD OF TIME, OR
IMPOSE ANY SHAREHOLDER APPROVAL REQUIREMENT WITH RESPECT TO, THE PROPOSED SECOND
STEP MERGER OR ANY OTHER BUSINESS COMBINATION INVOLVING TAUBMAN CENTERS, INC.
AND THE PURCHASER (OR ANY OTHER AFFILIATE OF SIMON PROPERTY GROUP, INC. OR
WESTFIELD AMERICA, INC.). SEE THE INTRODUCTION AND SECTION 9 OF THIS SUPPLEMENT
AND THE INTRODUCTION AND SECTIONS 1 AND 14 OF THE OFFER TO PURCHASE FOR MORE
INFORMATION.
(COVER CONTINUED ON NEXT PAGE)
------------------------
THE DEALER MANAGER FOR THE OFFER IS:
MERRILL LYNCH & CO.
January 15, 2003
(COVER CONTINUED FROM PREVIOUS PAGE)
------------------------
SIMON PROPERTY GROUP, INC., WESTFIELD AMERICA, INC. AND THE PURCHASER ARE
SEEKING TO NEGOTIATE WITH TAUBMAN CENTERS, INC. WITH RESPECT TO THE COMBINATION
OF TAUBMAN CENTERS, INC. WITH THE PURCHASER. SIMON PROPERTY GROUP, INC. AND
WESTFIELD AMERICA, INC. ARE WILLING TO ALLOW HOLDERS OF LIMITED PARTNERSHIP
INTERESTS IN THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP, INCLUDING THE TAUBMAN
FAMILY, TO RETAIN THEIR ECONOMIC INTEREST IN THE TAUBMAN REALTY GROUP LIMITED
PARTNERSHIP, OR AT SUCH HOLDERS' OPTION, TO PARTICIPATE IN A POTENTIAL
TRANSACTION ON MUTUALLY ACCEPTABLE TERMS TO BE AGREED TO BY THE PARTIES WHEREBY
SUCH HOLDERS COULD RECEIVE EITHER THE OFFER PRICE (AS DEFINED HEREIN) OR AN
EQUIVALENT VALUE FOR SUCH HOLDERS' LIMITED PARTNERSHIP INTERESTS BY EXCHANGING
SUCH INTERESTS ON A TAX EFFICIENT BASIS FOR SIMON PROPERTY GROUP, L.P. LIMITED
PARTNERSHIP INTERESTS AND/OR SECURITIES OF CERTAIN AFFILIATES OF WESTFIELD
AMERICA, INC. ALTHOUGH THEY ARE OPEN TO DISCUSSING VARIOUS POTENTIAL
TRANSACTIONS WITH THE HOLDERS OF SUCH LIMITED PARTNERSHIP UNITS, NONE OF SIMON
PROPERTY GROUP, INC., WESTFIELD AMERICA, INC. NOR THE PURCHASER HAS MADE OR IS
MAKING AN OFFER TO EXCHANGE SUCH SECURITIES FOR ANY SECURITIES AT THIS TIME.
ANY SUCH OFFER WOULD ONLY BE MADE IN ACCORDANCE WITH APPLICABLE SECURITIES
LAWS. HOLDERS OF LIMITED PARTNERSHIP INTERESTS IN THE TAUBMAN REALTY GROUP
LIMITED PARTNERSHIP AND THE COMPANY'S SERIES A AND SERIES B PREFERRED STOCK ARE
NOT ELIGIBLE TO RECEIVE THE OFFER PRICE OR OTHER CONSIDERATION IN CONNECTION
WITH THE OFFER. THE PURCHASER RESERVES THE RIGHT TO AMEND THE OFFER (INCLUDING
AMENDING THE NUMBER OF SHARES TO BE PURCHASED AND THE OFFER PRICE) UPON ENTERING
INTO A MERGER AGREEMENT WITH TAUBMAN CENTERS, INC., OR TO NEGOTIATE A MERGER
AGREEMENT WITH TAUBMAN CENTERS, INC. NOT INVOLVING A TENDER OFFER PURSUANT TO
WHICH THE PURCHASER WOULD TERMINATE THE OFFER AND THE SHARES WOULD, UPON
CONSUMMATION OF SUCH MERGER, BE CONVERTED INTO CASH AND/OR SECURITIES OF SIMON
PROPERTY GROUP, INC., OR ITS AFFILIATES OR CERTAIN AFFILIATES OF WESTFIELD
AMERICA, INC. IN SUCH AMOUNTS AS ARE NEGOTIATED BY SIMON PROPERTY GROUP, INC.,
WESTFIELD AMERICA, INC. AND TAUBMAN CENTERS, INC.
------------------------
IMPORTANT
SHAREHOLDERS WHO HAVE ALREADY TENDERED SHARES PURSUANT TO THE OFFER AND WHO
HAVE NOT WITHDRAWN SUCH SHARES NEED NOT TAKE ANY FURTHER ACTION TO RECEIVE THE
INCREASED OFFER PRICE OF $20.00 PER SHARE IF SHARES ARE ACCEPTED AND PAID FOR BY
THE PURCHASER PURSUANT TO THE OFFER, EXCEPT AS REQUIRED BY THE GUARANTEED
DELIVERY PROCEDURE IF SUCH PROCEDURE WAS UTILIZED.
If you wish to tender all or any part of your Shares prior to the expiration
of the Offer, you should either (1) complete and sign the original (BLUE) Letter
of Transmittal or the revised (GRAY) Letter of Transmittal (or a facsimile
thereof) in accordance with the instructions therein, have your signature
thereon guaranteed if required by Instruction 1 thereto, mail or deliver the
original (BLUE) Letter of Transmittal or the revised (GRAY) Letter of
Transmittal (or a facsimile thereof) and any other required documents to the
Depositary for the Offer and either deliver the certificates for such Shares to
the Depositary for the Offer along with the original (BLUE) Letter of
Transmittal or the revised (GRAY) Letter of Transmittal (or a facsimile
thereof), deliver such Shares pursuant to the procedures for book-entry
transfers set forth in Section 3 of the Offer to Purchase or, if applicable,
deliver such Shares pursuant to the procedures for Shares held in the Taubman
Centers, Inc. Direct Registration System set forth in Section 2 of this
Supplement, or (2) request your broker, dealer, commercial bank, trust company
or other nominee to effect the transaction for you. If you have Shares
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee, you must contact such broker, dealer, commercial bank, trust
company or other nominee if you desire to tender your Shares.
A shareholder who desires to tender Shares and whose certificates
representing such Shares are not immediately available or who cannot comply with
the procedures for book-entry transfer on a timely basis may tender such Shares
by following the procedures for guaranteed delivery set forth in Section 3 of
the Offer to Purchase.
Any questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth on the back cover of this Supplement. Additional copies of the Offer
to Purchase, this Supplement, the Letter of Transmittal, the Notice of
Guaranteed Delivery and other related materials may be obtained from the
Information Agent.
TABLE OF CONTENTS
PAGE
----
INTRODUCTION....................................................... 1
THE OFFER.......................................................... 7
1. AMENDED TERMS OF THE OFFER; EXPIRATION DATE................. 7
2. PROCEDURES FOR ACCEPTING THE OFFER AND TENDERING SHARES..... 7
3. PRICE RANGE OF THE SHARES................................... 8
4. CERTAIN INFORMATION CONCERNING THE COMPANY.................. 8
5. CERTAIN INFORMATION CONCERNING THE PURCHASER, SPG INC. AND
WEA......................................................... 8
6. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY SINCE
DECEMBER 5, 2002............................................ 10
7. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; STATE
ANTI-TAKEOVER LAWS.......................................... 11
8. SOURCE AND AMOUNT OF FUNDS.................................. 13
9. CERTAIN CONDITIONS TO THE OFFER............................. 14
10. CERTAIN LEGAL MATTERS; REQUIRED APPROVALS................... 15
11. CERTAIN FEES AND EXPENSES................................... 15
12. MISCELLANEOUS............................................... 16
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF SIMON PROPERTY I-1
GROUP, INC.....................................
DIRECTORS AND EXECUTIVE OFFICERS OF SIMON PROPERTY I-7
ACQUISITIONS, INC..............................
DIRECTORS AND EXECUTIVE OFFICERS OF WESTFIELD I-7
AMERICA, INC....................................
DIRECTORS AND EXECUTIVE OFFICERS OF WESTFIELD I-9
AMERICA MANAGEMENT LIMITED.....................
DIRECTORS AND EXECUTIVE OFFICERS OF WESTFIELD I-13
HOLDINGS LIMITED...............................
i
To: All Holders of Shares of Common Stock
of Taubman Centers, Inc.
INTRODUCTION
The information in this supplemental offer to purchase (this "Supplement")
amends and supplements the Offer to Purchase dated December 5, 2002 (as amended
and supplemented, the "Offer to Purchase") of Simon Property
Acquisitions, Inc., a Delaware corporation (including any successor thereto, the
"Purchaser"). The Purchaser is a wholly owned subsidiary of Simon Property
Group, Inc., a Delaware corporation ("SPG Inc."). SPG Inc. is the general
partner and the owner of a majority of the equity interests of Simon Property
Group, L.P., a Delaware limited partnership ("SPG L.P."). Pursuant to this
Supplement, the Purchaser has increased the price of its offer to purchase all
the outstanding shares of common stock, par value $.01 per share (the "Common
Stock" or the "Shares"), of Taubman Centers, Inc., a Michigan corporation (the
"Company"), to $20.00 per Share, net to the seller in cash, without interest
thereon (the "Offer Price"), upon the terms and subject to the conditions set
forth in the Offer to Purchase and in the related revised Letter of Transmittal
(which, together with any amendments or supplements thereto, constitute the
"Offer"). The Purchaser is also extending the Expiration Date of the Offer to
February 14, 2003.
SPG Inc., Westfield America, Inc. ("WEA"), and the Purchaser have entered
into an agreement, dated January 15, 2003 (the "Offer Agreement"), which
provides, among other things, that (i) all decisions with respect to the Offer
shall be made jointly by SPG Inc. and WEA and (ii) if the Offer is consummated,
WEA (or its designated assignee) will acquire 50% of the Purchaser (or its
designee) at a purchase price equal to 50% of the aggregate Offer Price paid by
the Purchaser in the Offer, and SPG Inc. and WEA will jointly control the Shares
purchased in the Offer.
The purpose of the Offer is for SPG Inc. and WEA to acquire control of, and
ultimately all the Common Stock of, the Company. If the Offer is consummated,
SPG Inc. and WEA currently intend, as soon as practicable following the
consummation of the Offer, to propose and seek to have the Company consummate a
merger or similar business combination (the "Proposed Merger") with the
Purchaser (or its designated assignee) pursuant to which each then outstanding
Share (other than Shares held by the Purchaser, SPG Inc., WEA or their
respective subsidiaries) would be converted into the right to receive an amount
in cash per Share equal to the highest price per Share paid by the Purchaser
pursuant to the Offer, without interest. The Offer is not being made for shares
of Series A Cumulative Redeemable Preferred Stock, $.01 par value, of the
Company (the "Series A Preferred Stock") or Series B Non-Participating
Convertible Preferred Stock, $.001 par value, of the Company (the "Series B
Preferred Stock"). Each outstanding share of Series A Preferred Stock and
Series B Preferred Stock would remain outstanding following consummation of the
Proposed Merger.
To facilitate the Offer, SPG Inc. and the Purchaser filed a preliminary
proxy statement on Schedule 14A with the Securities and Exchange Commission (the
"Commission") on December 16, 2002 (the "Agent Designation Proxy Statement"),
relating to the solicitation of agent designations from the Company's
shareholders to provide for the calling of a special meeting of the Company's
shareholders to (1) amend the Company's Restated Articles of Incorporation (as
amended, the "Charter") to provide that the purchase by the Purchaser of all the
Shares tendered pursuant to the Offer would not trigger the Company's Excess
Share Provision (as defined below) and (2) urge the Board of Directors of the
Company (the "Company Board") to pass a resolution approving the Offer in order
to satisfy the Business Combination Condition if the Company Board opts into or
the Company otherwise becomes subject to Chapter 7A (the "Michigan Business
Combination Act") of the Michigan Business Corporation Act (the "MBCA"). The
grant of an agent designation with respect to the Agent Designation Proxy
Statement is not a condition to the tender of Shares into the Offer and is not
being sought by means of the Offer to Purchase or this Supplement. Any
solicitation of agent
1
designations or proxies is being made only pursuant to the Agent Designation
Proxy Statement in accordance with applicable securities laws.
Except as otherwise expressly set forth in this Supplement or the revised
Letter of Transmittal, all the terms and conditions previously set forth in the
Offer to Purchase remain applicable in all respects to the Offer, and this
Supplement and the revised Letter of Transmittal should be read in conjunction
with the Offer to Purchase. Unless the context requires otherwise, capitalized
terms not defined herein have the meanings ascribed to them in the Offer to
Purchase.
BY TENDERING SHARES INTO THE OFFER, THE COMPANY'S SHAREHOLDERS WILL
EFFECTIVELY EXPRESS TO THE COMPANY BOARD AND THE TAUBMAN FAMILY THAT THEY WISH
TO BE ABLE TO ACCEPT THE OFFER OR A SIMILAR TRANSACTION WITH SPG INC., WEA AND
THEIR RESPECTIVE AFFILIATES. THIS DIRECTIVE TO THE COMPANY BOARD SHOULD
ENCOURAGE ALL MEMBERS OF THE COMPANY BOARD, ACTING AS FIDUCIARIES FOR THE COMMON
SHAREHOLDERS, TO NEGOTIATE WITH SPG INC., WEA AND THE PURCHASER AND/OR TO REMOVE
ALL IMPEDIMENTS TO THE CONSUMMATION OF THE OFFER.
THE TENDER OF SHARES INTO THE OFFER DOES NOT CONSTITUTE THE GRANT OF A
PROXY, CONSENT, AGENT DESIGNATION OR AUTHORIZATION FOR OR WITH RESPECT TO ANY
SPECIAL MEETING OF THE COMPANY'S SHAREHOLDERS. THE OFFER DOES NOT CONSTITUTE A
SOLICITATION OF PROXIES OR AGENT DESIGNATIONS FOR ANY MEETING OF THE COMPANY'S
SHAREHOLDERS. ANY SUCH SOLICITATION WHICH THE PURCHASER, SPG INC., WEA OR ANY OF
THEIR RESPECTIVE SUBSIDIARIES MIGHT SEEK WILL BE MADE ONLY PURSUANT TO SEPARATE
PROXY SOLICITATION MATERIALS COMPLYING WITH THE REQUIREMENTS OF SECTION 14(A) OF
THE SECURITIES EXCHANGE ACT OF 1934, AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
PROCEDURES FOR TENDERING ARE SET FORTH IN SECTION 3 OF THE OFFER TO PURCHASE
AND SECTION 2 OF THIS SUPPLEMENT. TENDERING SHAREHOLDERS MAY USE EITHER THE
ORIGINAL (BLUE) LETTER OF TRANSMITTAL AND THE ORIGINAL (YELLOW) NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY DISTRIBUTED WITH THE OFFER TO PURCHASE OR THE
REVISED (GRAY) LETTER OF TRANSMITTAL AND THE REVISED (BEIGE) NOTICE OF
GUARANTEED DELIVERY DISTRIBUTED WITH THIS SUPPLEMENT.
SHAREHOLDERS WHO HAVE ALREADY TENDERED SHARES PURSUANT TO THE OFFER USING
THE PREVIOUSLY DISTRIBUTED (BLUE) LETTER OF TRANSMITTAL OR (YELLOW) NOTICE OF
GUARANTEED DELIVERY AND WHO HAVE NOT WITHDRAWN SUCH SHARES NEED NOT TAKE ANY
FURTHER ACTION IN ORDER TO RECEIVE THE INCREASED OFFER PRICE OF $20.00 PER SHARE
IF SHARES ARE ACCEPTED FOR PAYMENT AND PAID FOR BY THE PURCHASER PURSUANT TO THE
OFFER, EXCEPT AS MAY BE REQUIRED BY THE GUARANTEED DELIVERY PROCEDURE IF SUCH
PROCEDURE WAS UTILIZED.
SPG INC., WEA AND THE PURCHASER ARE SEEKING TO NEGOTIATE WITH THE COMPANY
WITH RESPECT TO THE COMBINATION OF THE COMPANY WITH THE PURCHASER. SPG INC. AND
WEA ARE WILLING TO ALLOW HOLDERS OF LIMITED PARTNERSHIP INTERESTS IN THE TAUBMAN
REALTY GROUP LIMITED PARTNERSHIP, INCLUDING THE TAUBMAN FAMILY, TO RETAIN THEIR
ECONOMIC INTEREST IN THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP OR, AT SUCH
HOLDERS' OPTION, TO PARTICIPATE IN A POTENTIAL TRANSACTION ON MUTUALLY
ACCEPTABLE TERMS TO BE AGREED TO BY THE PARTIES WHEREBY SUCH HOLDERS COULD
RECEIVE
2
EITHER THE OFFER PRICE (AS DEFINED HEREIN) OR AN EQUIVALENT VALUE FOR SUCH
HOLDERS' LIMITED PARTNERSHIP INTERESTS BY EXCHANGING SUCH INTERESTS ON A TAX
EFFICIENT BASIS FOR SPG L.P. LIMITED PARTNERSHIP INTERESTS AND/OR SECURITIES OF
CERTAIN AFFILIATES OF WEA. ALTHOUGH THEY ARE OPEN TO DISCUSSING VARIOUS
POTENTIAL TRANSACTIONS WITH HOLDERS OF SUCH LIMITED PARTNERSHIP UNITS, NONE OF
SPG INC., WEA NOR THE PURCHASER HAS MADE OR IS MAKING AN OFFER TO EXCHANGE SUCH
SECURITIES FOR ANY SECURITIES AT THIS TIME. ANY SUCH OFFER WOULD ONLY BE MADE IN
ACCORDANCE WITH APPLICABLE SECURITIES LAWS. HOLDERS OF LIMITED PARTNERSHIP
INTERESTS IN THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP AND THE COMPANY'S
SERIES A AND SERIES B PREFERRED STOCK ARE NOT ELIGIBLE TO RECEIVE THE OFFER
PRICE OR OTHER CONSIDERATION IN CONNECTION WITH THE OFFER. THE PURCHASER
RESERVES THE RIGHT TO AMEND THE OFFER (INCLUDING AMENDING THE NUMBER OF SHARES
TO BE PURCHASED AND THE OFFER PRICE) UPON ENTERING INTO A MERGER AGREEMENT WITH
THE COMPANY OR TO NEGOTIATE A MERGER AGREEMENT WITH THE COMPANY NOT INVOLVING A
TENDER OFFER PURSUANT TO WHICH THE PURCHASER WOULD TERMINATE THE OFFER AND THE
SHARES WOULD, UPON CONSUMMATION OF SUCH MERGER, BE CONVERTED INTO CASH AND/OR
SECURITIES OF SPG INC., ITS AFFILIATES OR CERTAIN AFFILIATES OF WEA IN SUCH
AMOUNTS AS ARE NEGOTIATED BY SPG INC., WEA AND THE COMPANY.
CERTAIN CONDITIONS TO THE OFFER
The Offer is subject to the fulfillment of certain conditions, including the
following: (1) the Minimum Tender Condition, (2) the Excess Share Condition,
(3) the Control Share Condition and (4) the Business Combination Condition, each
of which is described in the Offer to Purchase. See Section 9 of this Supplement
and the Introduction and Sections 1 and 14 of the Offer to Purchase for more
information.
MINIMUM TENDER CONDITION. Consummation of the Offer is conditioned upon
there being validly tendered and not withdrawn prior to the expiration of the
Offer such number of Shares that represents, together with Shares owned by the
Purchaser, SPG Inc., WEA or any of their respective subsidiaries, at least
two-thirds ( 2/3) of the total voting power of the Company. According to the
Taubman Family Schedule 13D, the Taubman family purportedly holds or controls a
33.6% voting stake in the Company that may affect the satisfaction of the
Minimum Tender Condition. SPG Inc., WEA and the Purchaser believe that the
Company Board (or a committee of its directors independent of the holders of
Series B Preferred Stock), acting as fiduciaries for the common shareholders,
could and should take all necessary actions to afford the holders of Shares the
ability to satisfy the Minimum Tender Condition, and SPG Inc., WEA and the
Purchaser hereby request that they take such action. SPG Inc. and the Purchaser
also have commenced litigation challenging the legality of the voting rights of
the Series B Preferred Stock and the New 3% Shares held or controlled by the
Taubman family and the ability of the Taubman family to vote these shares in
order to increase the likelihood that the holders of Shares will be able to
satisfy the Minimum Tender Condition.
According to the Company's public filings, as of December 16, 2002 there
were issued and outstanding (i) 52,207,756 shares of Common Stock,
(ii) 31,767,066 shares of Series B Preferred Stock, which shares are convertible
into shares of Common Stock at a rate of one share of Common Stock for each
14,000 shares of Series B Preferred Stock, in specified circumstances (any
resulting fractional shares will be redeemed for cash), (iii) 7,097,979
partnership units of Taubman L.P. which have rights of conversion into 7,097,979
shares of Common Stock of the Company, and (iv) options to purchase 2,878,273
partnership units of Taubman L.P. Each outstanding option is currently
exercisable, and,
3
pursuant to the Charter, each unit holder who is issued a partnership unit of
Taubman L.P. (whether upon exercise of an option or otherwise) shall also
receive a share of Series B Preferred Stock for a purchase price of $.001 per
share.
Based on the information set forth in the Taubman Family Schedule 13D and
the preliminary proxy statement filed by the Company on December 20, 2002,
Mr. Robert S. Taubman and the Taubman family have the right to vote 26,784,060
shares of Series B Preferred Stock and 1,385,997 shares of Common Stock
(excluding the 245,016 and 545,535 presently vested options granted to
Mr. Robert S. Taubman and Mr. William S. Taubman, respectively). According to
the Taubman Family Schedule 13D, if voting rights with respect to such shares
are legal and valid, such shares represent approximately 33.6% of the Company's
outstanding voting securities.
The Minimum Number of Shares required to be validly tendered and not
properly withdrawn is approximately 40,654,869 Shares, based on the foregoing,
excluding the 11,000 Shares currently owned by SPG Inc. and the Purchaser and
assuming (i) the voting rights with respect to the Taubman family's Series B
Preferred Stock and the New 3% Shares are held to be invalid, as sought by the
Purchaser in the Complaint, (ii) no shares of Common Stock have been issued in
connection with any conversion of Series B Preferred Stock held or controlled by
the Taubman family, (iii) conversion into 356 shares of Common Stock of all
4,983,006 shares of Series B Preferred Stock not held or controlled by the
Taubman family, (iv) conversion into 7,097,979 shares of Common Stock of all
7,097,979 partnership units of Taubman L.P. which have rights of conversion,
(v) options to purchase 2,878,273 partnership units of Taubman L.P. are
exercised and subsequently converted into Common Stock, and (vi) that since
December 16, 2002 there have been no issuances of additional shares of Common
Stock, Series B Preferred Stock or partnership units of Taubman L.P. (other than
as described in clauses (iii), (iv) and (v) above), or of additional securities
or rights convertible into or exercisable for Common Stock, Series B Preferred
Stock or partnership units of Taubman L.P. Based on the foregoing and the
assumptions set forth in clauses (ii)-(vi) above, but assuming instead that the
Taubman family's Series B Preferred Stock and the New 3% Shares maintain their
voting rights, the Minimum Number of Shares required to be validly tendered and
not properly withdrawn would be greater than the number of Shares currently
outstanding under the existing capital structure of the Company.
Unless the shares of voting stock of the Company held or controlled by the
Taubman family are voted in favor of removing the impediments to the
consummation of the Offer, satisfaction of the Minimum Tender Condition requires
that either (i) the veto power that the Taubman family purports to wield over
the Offer is invalidated or (ii) the Company Board otherwise acts to remove
impediments to the consummation of the Offer.
EXCESS SHARE CONDITION. Consummation of the Offer is conditioned upon the
Purchaser being satisfied, in its sole discretion, that the provisions of
Article III, Section 2, Subsection (d) of the Charter (the "Excess Share
Provision") have been amended or waived in such manner that will permit the
Purchaser to purchase all of the Shares tendered pursuant to the Offer without
triggering the Excess Share Provision.
Unless the shares of voting stock of the Company held or controlled by the
Taubman family are voted in favor of removing the impediments to the
consummation of the Offer, satisfaction of the Excess Share Condition requires
that either (i) the veto power that the Taubman family purports to wield over
the Offer is invalidated or (ii) the Company Board otherwise acts to remove the
impediments to the consummation of the Offer.
CONTROL SHARE CONDITION. Consummation of the Offer is conditioned upon full
voting rights for all Shares to be acquired by the Purchaser pursuant to the
Offer having been approved by the Company's shareholders under the Michigan
Control Share Act or the Purchaser being satisfied, in its sole discretion, that
the Michigan Control Share Act is invalid or otherwise inapplicable to the
Shares to be acquired by the Purchaser in the Offer.
4
On December 5, 2002, SPG Inc. and the Purchaser filed a preliminary proxy
statement (the "Control Share Proxy Statement") with the Commission for a
potential meeting of the Company's shareholders. The purpose of the meeting
would be to allow the Company's shareholders to approve voting rights under the
Michigan Control Share Act for Shares acquired by the Purchaser pursuant to the
Offer.
On December 11, 2002, the Company filed a Schedule 14D-9 with the Commission
(as amended, the "Company Schedule 14D-9") announcing that the Company Board had
made certain amendments to the Company's By-Laws on December 10, 2002 (the
"December 10 By-Law Amendments"). The December 10 By-Law Amendments provide,
among other things, that the Michigan Control Share Act does not apply to the
Company. Accordingly, SPG Inc. and the Purchaser believe that, as of the current
date, the Control Share Condition has been satisfied. Notwithstanding the
foregoing, SPG Inc. and the Purchaser believe there is a possibility that the
Company could, through a further amendment to its By-Laws, opt into the Michigan
Control Share Act. If the Company, through a further amendment to its By-Laws or
otherwise, again becomes subject to the requirements of the Michigan Control
Share Act, the Control Share Condition will need to be satisfied again, and
continue to be satisfied, before the Offer can be consummated. SPG Inc. and the
Purchaser currently do not plan on requesting the meeting of the Company's
shareholders as contemplated by the Control Share Proxy Statement unless the
Company again becomes subject to the Michigan Control Share Act.
BUSINESS COMBINATION CONDITION. Consummation of the Offer is conditioned
upon the Purchaser being satisfied, in its sole discretion, that the Michigan
Business Combination Act will not prohibit for any period of time, or impose any
shareholder approval with respect to, the Proposed Merger or any other "Business
Combination" (as defined in the Michigan Business Combination Act) involving the
Company and the Purchaser or any other affiliate of SPG Inc.
In the Company Schedule 14D-9, the Company disclosed, among other things,
that the requirements of the Michigan Business Combination Act do not currently
apply to it. As a result, SPG Inc. and the Purchaser believe that, as of the
current date, the Business Combination Condition is satisfied. Nonetheless, in
the Company Schedule 14D-9 the Company indicated its belief that the Company may
at any time opt into the Michigan Business Combination Act through further
action by the Company Board. It is possible that if the Company, through an
action of the Company Board or otherwise, becomes subject to the requirements of
the Michigan Business Combination Act, the Business Combination Condition will
need to be satisfied again, and continue to be satisfied, before the Offer can
be consummated.
As discussed in the Offer to Purchase, SPG Inc. and the Purchaser believe
that the issuance of the Series B Preferred Stock by the Company Board to the
Taubman family for nominal consideration was illegal because the Series B
Preferred Stock was issued in violation of the Company Board's fiduciary duties
and without adequate disclosure or shareholder approval as required under
Michigan law. SPG Inc. and the Purchaser have commenced litigation seeking to
invalidate any voting rights with respect to certain shares of the Company's
stock, including the Series B Preferred Stock, held or controlled by the Taubman
family. In connection with the litigation, on December 26, 2002, SPG Inc. and
the Purchaser filed a Memorandum of Law in Opposition to Defendants' Motion to
Dismiss Count One of the Complaint in the United States District Court for the
Eastern District of Michigan, in response to the Motion to Dismiss SPG Inc.'s
and the Purchaser's First Claim for Relief for failure to state a claim under
the Michigan Control Share Act, filed on December 16, 2002 by the Company, the
Company Board and certain members of the Taubman family. On December 27, 2002,
SPG Inc. and the Purchaser filed an amended complaint (the "Amended Complaint")
in the United States District Court for the Eastern District of Michigan against
the Company, the Company Board and certain members of the Taubman family which,
among other things, added a claim that the amendment to the Company's By-Laws
adopted by the Company Board on December 20, 2002 (the "December 20 By-Law
Amendments"), purporting to eliminate the right of the holders of 25% of the
outstanding
5
voting shares of the Company to call a special meeting and set the date thereof,
should be declared null, void and of no further force and effect. The Amended
Complaint alleges that the December 20 By-Law Amendments have the purpose and
effect of interfering with the shareholder franchise and constitutes an
inequitable manipulation of the corporate machinery and a breach of the Company
Board's fiduciary duties. The litigation is currently pending and the Court has
not yet made a determination as to any of the claims of SPG Inc. and the
Purchaser.
On January 15, 2003, SPG Inc. and WEA announced that SPG Inc., WEA and the
Purchaser had entered into the Offer Agreement and that WEA had joined in the
Offer under and on the terms of the Offer Agreement. On that same day, SPG Inc.
issued a press release announcing that the Offer Price was increased to $20.00,
that the Expiration Date of the Offer was extended to February 14, 2003, and
that unless two-thirds ( 2/3) of the outstanding Common Stock, or 34,805,171
Shares (based on the number of Shares outstanding as of December 16, 2002), were
tendered and not withdrawn prior to midnight on February 14, 2003, SPG Inc. and
WEA will withdraw the Offer and terminate their efforts to acquire the Company.
Notwithstanding any success by SPG Inc. and WEA in obtaining tenders of
two-thirds ( 2/3) of the Shares, the conditions to the Offer have not changed
and the Offer is still subject to satisfaction or waiver of the Minimum Tender
Condition (which, as described above, requires tenders of Shares representing at
least two-thirds ( 2/3) of the total voting power of the Company) and the other
conditions set forth in the Offer to Purchase.
CERTAIN OTHER CONDITIONS TO THE CONSUMMATION OF THE OFFER ARE DESCRIBED IN
THE INTRODUCTION, SECTION 14 OF THE OFFER TO PURCHASE AND SECTION 9 OF THE
SUPPLEMENT. THE PURCHASER RESERVES THE RIGHT (SUBJECT TO THE APPLICABLE RULES
AND REGULATIONS OF THE COMMISSION) TO AMEND OR WAIVE ANY ONE OR MORE OF THE
TERMS AND CONDITIONS OF THE OFFER AT ANY TIME OR FROM TIME TO TIME PRIOR TO THE
EXPIRATION DATE. SEE SECTION 9 OF THIS SUPPLEMENT AND THE INTRODUCTION AND
SECTIONS 1, 11 AND 14 OF THE OFFER TO PURCHASE FOR MORE INFORMATION.
THE OFFER TO PURCHASE, THE ORIGINAL LETTER OF TRANSMITTAL, THIS SUPPLEMENT
AND THE REVISED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD
BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
6
THE OFFER
1. AMENDED TERMS OF THE OFFER; EXPIRATION DATE.
The discussion set forth in Section 1 of the Offer to Purchase is hereby
amended and supplemented as follows:
The price per Share to be paid pursuant to the Offer has been increased from
$18.00 per Share to $20.00 per Share, net to the seller in cash, without
interest thereon (the "Offer Price"). All shareholders whose Shares are validly
tendered and not withdrawn and accepted for payment pursuant to the Offer
(including Shares tendered prior to the date of this Supplement) will receive
the increased price. The term "Expiration Date" means 12:00 midnight, New York
City time, on February 14, 2003, unless and until the Purchaser, in its sole
discretion, extends the period of time for which the Offer is open, in which
event the term "Expiration Date" means the time and date at which the Offer, as
so extended by the Purchaser, will expire.
This Supplement, the revised (GRAY) Letter of Transmittal and all other
relevant materials will be mailed to record holders of Shares and will be
furnished to brokers, dealers, banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the Company's shareholder
lists, or, if applicable, who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to beneficial owners of
Shares.
2. PROCEDURES FOR ACCEPTING THE OFFER AND TENDERING SHARES.
The discussion set forth in Section 3 of the Offer to Purchase is hereby
amended and supplemented as follows:
SHARES HELD IN THE TAUBMAN CENTERS, INC. DIRECT REGISTRATION SYSTEM. If a
shareholder wants to tender Shares in its account under the Taubman
Centers, Inc. Direct Registration System ("DRS"), such shareholder must:
(1) complete the box in the revised Letter of Transmittal entitled
"Tender of Shares Held in the Taubman Centers, Inc. Direct Registration
System" by choosing the option to tender all of the Shares in its DRS
account or the option to tender a specific number of the Shares in its DRS
account (if such shareholder checks more than one box, does not check a box,
or if such shareholder checks the second box but does not indicate a number
of Shares, it will be assumed that all Shares held in such shareholder's
account under the DRS are being tendered);
(2) indicate the number of Shares being tendered from such shareholder's
DRS account in the box in the revised Letter of Transmittal entitled
"Description of Shares Being Tendered."
If a shareholder tenders its Shares held in a DRS account, all such Shares
credited to such shareholder's DRS account, including fractional shares, will be
tendered, unless otherwise specified in the box in the revised Letter of
Transmittal entitled "Tender of Shares Held in the Taubman Centers, Inc. Direct
Registration System."
7
3. PRICE RANGE OF THE SHARES.
The discussion set forth in Section 6 of the Offer to Purchase is hereby
amended and supplemented as follows:
The following table sets forth, for the periods indicated, the reported high
and low closing prices for the Shares on the NYSE as reported by the PR
Newswire:
COMMON STOCK
-------------------
HIGH LOW
-------- --------
2002:
Fourth Quarter............................................ $ 16.99 $ 12.58
2003:
First Quarter (through January 14, 2003).................. $ 16.29 $ 15.94
On October 15, 2002, the last trading day prior to SPG Inc.'s private
communication to the Company expressing its interest in pursuing a business
combination, the closing price of a share of Common Stock on the NYSE was $13.32
per share. On January 14, 2003, the last trading day prior to the announcement
of the increase in the Offer Price and the execution of the Offer Agreement
among SPG Inc., WEA and the Purchaser, the closing price of a share of Common
Stock on the NYSE was $15.94 per share. SHAREHOLDERS ARE URGED TO OBTAIN A
CURRENT MARKET QUOTATION FOR THE SHARES.
4. CERTAIN INFORMATION CONCERNING THE COMPANY.
The discussion set forth in the first paragraph of Section 8 of the Offer to
Purchase is hereby amended and supplemented as follows:
The information concerning the Company contained in this Offer to Purchase
has been taken from or based upon publicly available documents and records on
file with the Commission and other public sources and is qualified in its
entirety by reference thereto. None of the Purchaser, SPG Inc., WEA, their
respective affiliates, the Dealer Manager, the Information Agent or the
Depositary has received any representations from the Company regarding any
information contained in such documents or records or the completeness or
accuracy of any such information, and none of the Purchaser, SPG Inc., WEA,
their respective affiliates, the Dealer Manager, the Information Agent or the
Depositary generally has access to a means of obtaining independently verified
information, or themselves verifying any such information, concerning the
Company. None of the Purchaser, SPG Inc., WEA, their respective affiliates, the
Dealer Manager, the Information Agent or the Depositary take responsibility for
the accuracy or completeness of the information contained in such documents and
records, or for any failure by the Company to disclose events which may have
occurred or may affect the significance or accuracy of any such information but
which are unknown to the Purchaser, SPG Inc., WEA, their respective affiliates,
the Dealer Manager, the Information Agent or the Depositary, except to the
extent required by law.
5. CERTAIN INFORMATION CONCERNING THE PURCHASER, SPG INC. AND WEA.
The discussion set forth in Section 9 of the Offer to Purchase is hereby
amended and supplemented as follows:
WEA is a real estate investment trust specializing in enclosed shopping
centers. WEA has interests in 63 major shopping centers in the United States
branded as "Westfield Shoppingtowns." WEA's portfolio of Westfield Shoppingtowns
includes clusters of shopping centers in major markets in the East Coast,
Midwest and West Coast. WEA has shopping centers in 14 states, comprising
64.0 million square feet of retail space. WEA's principal executive offices are
located at 11601 Wilshire Boulevard, 12th Floor, Los Angeles, California 90025,
and its telephone number is (310) 478-4456.
8
WEA is controlled by Westfield America Trust, an Australian publicly traded
unit trust. Westfield America Trust is listed on the Australian Stock Exchange
and is currently the second largest property trust listed on the Australian
Stock Exchange. Westfield America Trust's sole investment is a 74.7% economic
interest in WEA. Westfield America Trust's principal executive offices are
located at Level 24, Westfield Towers, 100 William Street, Sydney NSW 2011,
Australia.
Westfield America Management Limited ("WAML") is the responsible entity and
trustee of Westfield America Trust. WAML's principal executive offices are
located at Level 24, Westfield Towers, 100 William Street, Sydney NSW 2011,
Australia. WAML is a wholly owned subsidiary of Westfield Holdings Limited, an
Australian company listed on the Australian Stock Exchange. Westfield Holding
Limited's principal executive offices are located at Level 24, Westfield Towers,
100 William Street, Sydney NSW 2011, Australia.
Solely for U.S. securities laws purposes, Westfield Holdings Limited may be
deemed to be a controlling person of WAML. References to "controlling" and
"controlling person" are made herein solely with respect to U.S. securities laws
and are not intended to refer or apply in any respect to Australian legal
matters.
Interests associated with the Lowy family own 28.13% of the outstanding
shares of Westfield Holdings Limited. In addition, Frank P. Lowy is the Chairman
of the Westfield Holdings Limited Board and David H. Lowy, Steven M. Lowy and
Peter S. Lowy are directors of Westfield Holdings Limited.
Because the consideration offered consists solely of cash, the Offer is not
subject to any financing condition and the Offer is for all of the outstanding
Shares, the Purchaser believes that the financial condition of the Purchaser,
SPG Inc., WEA and their respective affiliates is not material to a decision by a
holder of Shares whether to sell, tender or hold Shares pursuant to the Offer.
The name, business address and telephone number, citizenship, present
principal occupation and employment history of each of the directors and
executive officers of SPG Inc., WEA and the Purchaser are set forth in
Schedule I of this Offer to Purchase.
Except as set forth elsewhere in this Offer to Purchase (including
Schedule I hereto), (i) none of the Purchaser, SPG Inc. or WEA or, to the
knowledge of the Purchaser, SPG Inc. or WEA, any of the persons listed in
Schedule I hereto or any associate or majority owned subsidiary of SPG Inc. or
WEA or of any of the persons so listed, beneficially owns or has a right to
acquire any Shares or any other equity securities of the Company and (ii) none
of the Purchaser, SPG Inc. or WEA or, to the knowledge of the Purchaser,
SPG Inc. or WEA, any of the persons or entities referred to in clause (i) above
or any of their executive officers, directors or subsidiaries, has effected any
transaction in the Shares or any other equity securities of the Company during
the past 60 days.
Except as set forth in this Offer to Purchase, (i) none of the Purchaser,
SPG Inc. or WEA or, to the knowledge of the Purchaser, SPG Inc. or WEA, any of
the persons listed on Schedule I hereto, has any contract, arrangement,
understanding or relationship with any other person with respect to any
securities of the Company and (ii) during the two years prior to the date of
this Offer to Purchase, there have been no transactions that would require
reporting under the rules and regulations of the Commission between Purchaser,
SPG Inc. or WEA or any of SPG Inc.'s or WEA's respective subsidiaries or, to the
knowledge of Purchaser, SPG Inc. or WEA, any of the persons listed in
Schedule I hereto, on the one hand, and the Company or any of its executive
officers, directors and/or affiliates, on the other hand.
Except as set forth in this Offer to Purchase, during the two years prior to
the date of this Offer to Purchase, there have been no contracts, negotiations
or transactions between Purchaser, SPG Inc. or WEA or any of SPG Inc.'s or WEA's
respective subsidiaries or, to the knowledge of Purchaser, SPG Inc. or WEA, any
of the persons listed in Schedule I hereto, on the one hand, and the Company or
its affiliates, on the other hand, concerning a merger, consolidation or
acquisition, a tender offer or
9
other acquisition of securities, an election of directors or a sale or other
transfer of a material amount of assets.
None of the Purchaser, SPG Inc., WEA or the persons listed in Schedule I
has, during the past five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors). None of the Purchaser,
SPG Inc., WEA or the persons listed in Schedule I has, during the past five
years, been a party to any judicial or administrative proceeding (except for
matters that were dismissed without sanction or settlement) that resulted in a
judgment, decree or final order enjoining the person from future violations of,
or prohibiting activities subject to, federal or state securities laws, or a
finding of any violation of federal or state securities laws.
6. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY SINCE DECEMBER 5, 2002.
The discussion set forth in Section 10 of the Offer to Purchase is hereby
amended and supplemented as follows:
On December 5, 2002, the Purchaser commenced the Offer and filed the Control
Share Proxy Statement with the Commission calling for a potential shareholder
meeting under the Michigan Control Share Act to allow the Company's shareholders
to approve voting rights for the Shares that the Purchaser is seeking to
purchase in the Offer.
On December 11, 2002, the Company filed the Company Schedule 14D-9 with the
Commission announcing that the Company Board recommended that the Company's
shareholders reject the Offer and not tender their Shares pursuant to the Offer.
The Company Schedule 14D-9 also announced the December 10 By-Law Amendments.
SPG Inc. and the Purchaser believe that the Company adopted the December 10
By-Law Amendments opting out of the Michigan Control Share Act to avoid a
shareholder referendum on the Offer.
On December 16, 2002, SPG Inc. and the Purchaser filed the Agent Designation
Proxy Statement with the Commission relating to the solicitation of agent
designations from the Company's shareholders to provide for the calling of a
special meeting of the Company's shareholders. On December 16, 2002, SPG Inc.
and the Purchaser filed Amendment No. 1 to the Schedule TO announcing that
certain conditions to the Offer, based on information disclosed by the Company
in the Company Schedule 14D-9, had been satisfied as of that date.
On December 20, 2002, the Company filed a preliminary solicitation statement
with the Commission and announced that the Company had made additional
amendments to the By-Laws relating to the timing and procedures to call a
special meeting of the Company's shareholders. SPG Inc. and the Purchaser
believe that the Company adopted the December 20 By-Law Amendments in order to
impede SPG Inc.'s and the Purchaser's ability to call a special meeting of the
Company's shareholders.
On December 30, 2002, SPG Inc. and the Purchaser filed an amended complaint
in the United States District Court for the Eastern District of Michigan against
the Company, the Company Board and certain members of the Taubman family, which,
among other things, challenges the validity of the December 20 By-Law
Amendments.
In 2002, SPG Inc., WEA and The Rouse Company acquired certain mall assets
from Rodamco North America, N.V. As a result of that transaction, SPG Inc. and
WEA own certain assets in partnership and have developed a business
relationship. In January 2003, SPG Inc. and WEA held discussions concerning the
terms on which WEA might participate in the Offer. These discussions culminated
in the execution on January 15, 2003 by SPG Inc., WEA and the Purchaser of the
Offer Agreement, pursuant to which the parties agreed, among other things, that
if the Offer is successful,
10
WEA would participate in the Offer by acquiring 50% of the Purchaser for a
purchase price equal to 50% of the aggregate Offer Price paid by the Purchaser
in the Offer.
On January 15, 2003, SPG Inc. and WEA announced that SPG Inc., WEA and the
Purchaser had entered into the Offer Agreement and that WEA had joined in the
Offer under and on the terms of the Offer Agreement. On that same day, SPG Inc.
issued a press release announcing that the Offer Price was increased to $20.00,
that the Expiration Date of the Offer was extended to February 14, 2003, and
that unless two-thirds ( 2/3) of the outstanding Common Stock, or 34,805,171
Shares (based on the number of Shares outstanding as of December 16, 2002), were
tendered and not withdrawn prior to midnight on February 14, 2003, SPG Inc. and
WEA will withdraw the Offer and terminate their efforts to acquire the Company.
Notwithstanding any success by SPG Inc. and WEA in obtaining tenders of
two-thirds ( 2/3) of the Shares, the conditions to the Offer have not changed
and the Offer is still subject to satisfaction or waiver of the Minimum Tender
Condition (which, as described above, requires tenders of Shares representing at
least two-thirds ( 2/3) of the total voting power of the Company) and the other
conditions set forth in the Offer to Purchase.
The discussion set forth under the caption "TRANSACTIONS WITH THE COMPANY"
in Section 10 of the Offer to Purchase is hereby amended and supplemented as
follows:
Certain affiliates of SPG Inc., WEA and the Company, along with certain
other entities, were members in MerchantWired, LLC, a limited liability company
formed for the purpose of providing high speed broad band networks to retailers
for retail stores throughout the United States. As of September 2002, the
members of MerchantWired elected to discontinue operations.
7. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; STATE ANTI-TAKEOVER LAWS.
The discussion set forth under the caption "GENERAL" in Section 11 of the
Offer to Purchase is hereby amended and supplemented as follows:
The purpose of the Offer is for SPG Inc. and WEA to acquire control of, and
ultimately all the Common Stock of, the Company. If the Offer is consummated,
SPG Inc. and WEA currently intend, as soon as practicable following the
consummation of the Offer, to propose and seek to have the Company consummate a
merger or similar business combination (the "Proposed Merger") with the
Purchaser (or its designated assignee) pursuant to which each then outstanding
Share (other than Shares held by the Purchaser, SPG Inc., WEA or their
respective subsidiaries) would be converted into the right to receive an amount
in cash per Share equal to the highest price per Share paid by the Purchaser
pursuant to the Offer, without interest. However, certain provisions of the
MBCA, the Charter and the By-Laws may impede the ability of the Purchaser to
obtain control of the Company and to consummate the Proposed Merger.
Accordingly, the timing and details of the Proposed Merger will depend on a
variety of factors and legal requirements, the actions of the Company Board, the
number of Shares acquired by the Purchaser pursuant to the Offer and whether the
Minimum Tender Condition, the Excess Share Condition, the Control Share
Condition, the Business Combination Condition and the other conditions to the
Offer set forth in the Introduction and Section 14 of the Offer to Purchase have
been satisfied.
At the effective time of the Proposed Merger, each Share that is issued and
outstanding immediately prior to the effective time of the Proposed Merger
(other than Shares owned by the Purchaser, SPG Inc. or WEA or their respective
subsidiaries) would be converted into an amount in cash equal to the highest
price per Share paid in the Offer. Each outstanding share of Series A Preferred
Stock and Series B Preferred Stock would remain outstanding following
consummation of the Proposed Merger.
The Purchaser, SPG Inc. and WEA currently intend to pursue the Proposed
Merger following consummation of the Offer. The Purchaser, however, reserves the
right to amend the terms of the
11
Proposed Merger or to pursue an alternative second-step business combination
transaction involving the Company in which the Shares not owned by the
Purchaser, SPG Inc., WEA or their respective subsidiaries would be converted
into securities or consideration, or exchanged for cash.
SPG Inc. and WEA intend, following consummation of the Offer, to allocate
economic interests in, responsibility for, and management of, the Company's
properties (subject to existing contractual rights and limitations) and the
Company's interest therein, on a basis to be agreed, and will negotiate mutually
agreeable arrangements implementing such allocation.
The discussion set forth in the penultimate paragraph of Section 11 of the
Offer to Purchase is hereby amended and supplemented as follows:
OTHER. The Purchaser reserves the right to purchase, following the
consummation or termination of the Offer, additional Shares in the open market,
in privately negotiated transactions, in another tender offer or exchange offer
or otherwise. In addition, in the event that the Purchaser decides not to pursue
the Proposed Merger, the Purchaser will evaluate its other alternatives after
the expiration or consummation of the Offer. Such alternatives could include
proposing a merger on terms other than those described above, purchasing
additional Shares in the open market, in privately negotiated transactions, in
another tender offer or exchange offer or otherwise, or taking no further action
to acquire additional Shares. Any additional purchases of Shares after the
expiration or consummation of the Offer could be at a price greater or less than
the price to be paid for Shares in the Offer and could be for cash or other
consideration. Alternatively, the Purchaser, SPG Inc., WEA or any of their
respective affiliates may sell or otherwise dispose of any or all Shares
acquired pursuant to the Offer or otherwise. Each such transaction may be
effected on terms and at prices then determined by such entity, which may vary
from the terms and price in the Offer.
None of SPG, Inc., WEA nor the Purchaser has made or is making an offer to
sell, or a solicitation of an offer to buy, any securities of SPG, Inc. or the
Purchaser at this time. None of SPG, Inc., WEA nor the Purchaser has made or is
making an offer to exchange any of their securities for any securities at this
time. Any such offer would only be made in accordance with applicable securities
laws. Holders of The Taubman Realty Group Limited Partnership interests and the
Company's Series A or Series B Preferred Stock are not eligible to receive the
Offer Price or other consideration in connection with the Offer.
12
The discussion set forth in Section 11 of the Offer to Purchase is hereby
amended and supplemented as follows:
On December 5, 2002, SPG Inc. and the Purchaser filed the Control Share
Proxy Statement with the Commission for a potential meeting of the Company's
shareholders. The purpose of the meeting would be to allow the Company's
shareholders to approve voting rights for Shares acquired by the Purchaser
pursuant to the Offer. On December 11, 2002, the Company filed the Company
Schedule 14D-9 with the Commission in which it disclosed that it had amended its
By-Laws on December 10, 2002 to opt out of Section 7B of the Michigan Business
Corporation Act. Notwithstanding the foregoing, SPG Inc. and the Purchaser
believe there is a possibility that the Company could, through a further
amendment to its By-Laws, opt in to Section 7B of the Michigan Business
Corporation Act. SPG Inc. and the Purchaser currently do not plan to request the
meeting of the Company's shareholders as contemplated by the Control Share Proxy
Statement unless the Company again becomes subject to Section 7B of the Michigan
Business Corporation Act.
In connection with the Offer, SPG Inc. and the Purchaser filed the Agent
Designation Proxy Statement with the Commission on December 16, 2002, relating
to the solicitation of agent designations from the Company's shareholders to
provide for the calling of a special meeting of the Company's shareholders to
(1) amend the Company's Charter to provide that the purchase by the Purchaser of
all the Shares tendered pursuant to the Offer would not trigger the Excess Share
Provision and (2) urge the Company Board to pass a resolution approving the
Offer in order to satisfy the Business Combination Condition if the Company
Board opts into or the Company otherwise becomes subject to the Michigan
Business Combination Act. The grant of an agent designation with respect to the
Agent Designation Proxy Statement is not a condition to the tender of Shares
into the Offer.
On January 15, 2003, SPG Inc., WEA and the Purchaser entered into the Offer
Agreement, pursuant to which SPG Inc. and WEA have agreed, among other things,
(i) that all decisions with respect to the Offer shall be made jointly by
SPG Inc. and WEA, (ii) that following the consummation of the Offer, WEA (or its
designated assignee) will acquire 50% of the Purchaser (or its designee) at a
purchase price equal to 50% of the aggregate Offer Price paid by the Purchaser
in the Offer and (iii) that SPG Inc. and WEA intend, following consummation of
the Offer, to allocate economic interests in, responsibility for, and management
of, the Company's properties (subject to existing contractual rights and
limitations) and the Company's interest therein, on a basis to be agreed, and
will negotiate mutually agreeable arrangements implementing such allocation.
8. SOURCE AND AMOUNT OF FUNDS.
The discussion set forth in Section 12 of the Offer to Purchase is hereby
amended and supplemented as follows:
As a result of the increase in the Offer Price, the Purchaser estimates that
the total amount of funds required to acquire the outstanding Shares pursuant to
the Offer and to pay related fees and expenses will be approximately $1.268
billion (assuming (i) all Shares not owned by the Purchaser, SPG Inc., WEA or
their respective subsidiaries are tendered, (ii) exercise of all options to
acquire partnership units of Taubman L.P., and subsequent conversion into Common
Stock, (iii) conversion into Common Stock of all other partnership units of
Taubman L.P. which have rights of conversion and (iv) no issuances of Common
Stock in connection with any conversion of Series B Preferred Stock).
SPG L.P. will provide the Purchaser with sufficient funds to purchase all
Shares that are tendered and not withdrawn in the Offer. SPG L.P. has possession
of, or has or will have available to it, sufficient funds to fund the purchase
by the Purchaser of all of these Shares pursuant to the Offer. SPG L.P. intends
to obtain the necessary funds from available cash, working capital, available
borrowings under the Credit Facility (as defined below) and/or one or more new
credit facilities on terms and conditions to be determined. The "Credit
Facility" means SPG L.P.'s existing Third Amended and Restated Credit Agreement,
dated as of April 16, 2002, among SPG L.P., the Lenders
13
named therein, the Co-Agents named therein, UBS AG, Stamford Branch, as Payment
and Disbursement Agent, JPMorgan Securities Inc. as Joint Lead Arranger and
Joint Book Manager and Banc of America Securities LLC as Joint Lead Arranger and
Joint Book Manager and Commerzbank AG as Documentation Agent and J.P. Morgan
Chase Bank as Joint Syndication Agent and Banc of America, N.A. as Joint
Syndication Agent and Citicorp Real Estate, Inc. as Joint Syndication Agent, in
the aggregate principal amount of $1.25 billion. The Credit Facility (i) bears
an interest rate of LIBOR plus 65 basis points and provides for variable pricing
based upon SPG L.P.'s credit rating, (ii) expires on April 16, 2005 unless SPG
L.P., at its option, renews the facility for an additional 12 months provided no
default has occurred, (iii) is unsecured and (iv) contains customary
representations and warranties, covenants, mandatory prepayment provisions and
events of default. SPG L.P. expects to repay the borrowings under the Credit
Facility out of cash from operations and the proceeds from other short- and
long-term debt financings and/or equity issuances. The Purchaser currently does
not have alternative financing arrangements in the event that it does not obtain
financing under its primary financing plans.
Pursuant to the Offer Agreement, WEA has agreed, following the consummation
of the Offer, to acquire 50% of the Purchaser at a purchase price equal to 50%
of the aggregate Offer Price paid by the Purchaser in the Offer. WEA has
represented to SPG Inc. that it will have funds sufficient to pay for such
equity interests.
Westfield America Limited Partnership ("WALP") has obtained from Deutsche
Bank AG, Cayman Islands Branch and UBS AG, Stamford Branch, a commitment letter,
dated January 15, 2003, providing for a credit facility (the "WALP Credit
Facility") in an aggregate amount of up to $550 million. WALP will provide WEA
or its designated assignee with sufficient funds to acquire 50% of the Purchaser
(or its designee) upon completion of the Offer. WEA will unconditionally
guarantee all obligations under the WALP Credit Facility. The WALP Credit
Facility has a term of six months and will be subject to two six-month
extensions upon satisfaction of customary conditions. The WALP Credit Facility
will bear interest at a rate of LIBOR plus 2.50% during the initial six-month
term, 3.00% during the first extension period, or 3.50% during the second
extension period. The WALP Credit Facility will be secured by a pledge of the
equity of the WEA subsidiary acquiring the interest in the Purchaser and will
contain customary representations and warranties, covenants, voluntary and
mandatory repayment provisions and events of default. WALP expects to repay the
borrowings under the WALP Credit Facility out of cash from operations, the
proceeds from other short- and long-term debt financings, joint venture equity,
asset sales and/or issuances of securities. WEA currently does not have
alternative financing arrangements in the event that it does not obtain
financing under its primary financing plans.
THE OFFER IS NOT CONDITIONED ON ANY OF THE PURCHASER, SPG INC., WEA OR SPG
L.P. OBTAINING FINANCING.
9. CERTAIN CONDITIONS TO THE OFFER.
The discussion set forth on Section 14 of the Offer to Purchase is hereby
amended and supplemented to change all references to "SPG Inc." to "SPG Inc. or
WEA" and to make all grammatical changes in connection therewith as the context
requires.
The discussion set forth in the penultimate paragraph of Section 14 of the
Offer to Purchase is hereby amended and supplemented as follows:
The foregoing conditions are for the sole benefit of the Purchaser and may
be asserted by the Purchaser regardless of the circumstances (including any
action or inaction by the Purchaser) giving rise to any such conditions and may
be waived by the Purchaser in whole or in part at any time and from time to time
prior to the Expiration Date, in each case, in the exercise of the sole
discretion of the Purchaser. The failure by the Purchaser 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 that may be asserted
at any time and from time to time. Any determination by the Purchaser concerning
any
14
condition described in this Section 14 shall be final and binding on all
parties. A public announcement may be made of a material change in, or waiver
of, such conditions and the Offer may, in certain circumstances, be extended in
connection with any such change or waiver.
The discussion set forth in Subsection (3) of Section 14 of the Offer to
Purchase is hereby amended and supplemented as follows:
(3) the Purchaser shall become aware of any change that has or will have
occurred (or any development that has or will have occurred involving
prospective changes) in the business, assets, liabilities, condition (financial
or otherwise), prospects or results of operations of the Company or any of its
subsidiaries that has, or could reasonably be expected to have, in the sole
discretion of the Purchaser made on a reasonable basis, a material adverse
effect on the Company or, assuming consummation of the Offer or the Proposed
Merger, on the Purchaser, SPG Inc. or WEA or any affiliate of SPG Inc. or WEA;
or
The discussion set forth in Section 14 of the Offer to Purchase is hereby
amended and supplemented as follows:
On December 11, 2002, the Company increased its regular quarterly dividend
to $0.26 per share of Common Stock and declared a quarterly dividend of $0.51875
per share on its Series A Preferred Stock (together, the "December 11
Dividends"). On December 11, 2002, the Company filed the Company Schedule 14D-9
with the Commission announcing that the Company Board had made the December 10
By-Law Amendments. As and to the extent any of the conditions set forth in
subsection (5) of this Section 14 were triggered by the December 10 By-Law
Amendments or by the declaration or payment of the December 11 Dividends, the
Purchaser has waived such conditions with respect to such events.
The December 10 By-Law Amendments include an amendment to opt out of the
Michigan Control Share Act. As such, the Control Share Condition has been
satisfied as of the date hereof. According to the Company Schedule 14D-9, the
requirements of the Michigan Business Combination Act do not currently apply to
the Company. As such, the Business Combination Condition has been satisfied as
of the date hereof.
10. CERTAIN LEGAL MATTERS; REQUIRED APPROVALS.
The discussion set forth on Section 15 of the Offer to Purchase is hereby
amended and supplemented to change all references to "SPG Inc." to "SPG Inc. or
WEA" and to make all grammatical changes in connection therewith as the context
requires.
11. CERTAIN FEES AND EXPENSES.
The discussion set forth in the first paragraph of Section 16 of the Offer
to Purchase is hereby amended and supplemented as follows:
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") is
acting as exclusive financial advisor to WEA in connection with the Offer. WEA
has agreed to indemnify Merrill Lynch and certain related persons against
certain liabilities and expenses, including liabilities under the federal
securities laws. At any time, Merrill Lynch and its affiliates may actively
trade the debt and equity securities of affiliates of WEA for their own account
or for the accounts of customers and, accordingly, may hold a long or short
position in those securities. Merrill Lynch and its affiliates render various
investment banking and other advisory services to WEA and its affiliates and are
expected to continue to render such services, for which they have received and
expect to continue to receive customary compensation from WEA and its
affiliates.
15
12. MISCELLANEOUS.
SPG, Inc., the Purchaser and WEA have filed with the Commission amendments
to the Tender Offer Statement on Schedule TO furnishing additional information
with respect to the Offer, and may file further amendments thereto. The Schedule
TO and any and all amendments thereto, including exhibits, may be examined and
copies may be obtained from the principal office of the Commission in the same
manner as described in Section 9 of the Offer to Purchase.
Except as modified by this Supplement and any amendments to the Schedule TO,
the terms and conditions set forth in the Offer to Purchase remain applicable in
all respects to the Offer, and this Supplement should be read in conjunction
with the Offer to Purchase and the revised (GRAY) Letter of Transmittal.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF SPG INC., WEA OR THE PURCHASER CONCERNING THE OFFER
NOT CONTAINED IN THE SCHEDULE TO (AS AMENDED), THE OFFER TO PURCHASE OR IN THE
SUPPLEMENT OR IN THE LETTER OF TRANSMITTAL, AND IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
SIMON PROPERTY ACQUISITIONS, INC.
January 15, 2003
16
SCHEDULE I
The discussion set forth in Schedule I of the Offer to Purchase is hereby
amended and supplemented as follows:
DIRECTORS AND EXECUTIVE OFFICERS OF
SIMON PROPERTY GROUP, INC.
The name, current principal occupation or employment and material
occupations, positions, offices or employment for the past five years, of each
director and executive officer of SPG Inc. are set forth below. Unless otherwise
indicated below, the business address of each director and officer is 115 West
Washington Street, Indianapolis, Indiana 46204, telephone: 317-636-1600. None of
the directors and officers of SPG Inc. listed below has, during the past five
years, (1) been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) or (2) been a party to any judicial or administrative
proceeding that resulted in a judgment, decree or final order enjoining the
person from future violations of, or prohibiting activities subject to, federal
or state securities laws, or a finding of any violation of federal or state
securities laws. Except as otherwise indicated below, all directors and officers
listed below are citizens of the United States. Fredrick W. Petri owns 100
Shares and children of David Simon own 125 Shares, each representing less than
..01% of the total outstanding Shares.
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
Melvin Simon Co-Chairman of the Board Melvin Simon has been Co-Chairman of the Board of
Directors of SPG Inc. (the "SPG Inc. Board") since
1998 and prior to such date was Co-Chairman of the
Board and a director of Simon DeBartolo Group,
Inc., the predecessor company of SPG Inc. (the
"Predecessor Company") from its incorporation in
1993. Melvin Simon is Co-Chairman of the Board of
Directors of Melvin Simon & Associates, Inc.
("MSA"), a company Melvin Simon founded in 1960
with his brother, Herbert Simon. Melvin Simon is
also a member of SPG Inc.'s Executive and
Nominating Committees.
Herbert Simon Co-Chairman of the Board Herbert Simon has been Co-Chairman of the SPG Inc.
Board since 1998 and prior to such date was a
director of the Predecessor Company since its
incorporation in 1993. Herbert Simon was Chief
Executive Officer of the Predecessor Company from
its incorporation in 1993 to 1995, when he was
appointed Co-Chairman of the Board. Herbert Simon
is also Co-Chairman of the Board of Directors of
MSA. Herbert Simon serves as a member of SPG
Inc.'s Compensation, Executive and Nominating
Committees. Herbert Simon is currently a director
of Kohl's Corporation, a specialty retailer.
David Simon Chief Executive Officer; David Simon is the Chief Executive Officer of SPG
Director Inc. and has been a director since 1998. Prior to
such date, David Simon was Chief
I-1
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
Executive Officer of the Predecessor Company since
1995 and a director of the Predecessor Company
from its incorporation in 1993. David Simon also
served as President of the Predecessor Company
from its incorporation until 1996. David Simon has
been Executive Vice President of MSA since 1990.
From 1988 to 1990, David Simon worked as a Vice
President of Wasserstein Perella & Company, a firm
specializing in mergers and acquisitions. David
Simon is the son of Melvin Simon and the nephew of
Herbert Simon. David Simon also currently serves
as a director of First Health Group Corp. David
Simon is a member of SPG Inc.'s Executive
Committee.
Hans C. Mautner Vice Chairman of the Mr. Mautner has been Vice Chairman of the SPG Inc.
Board Board since 1998 and prior to such date was
Chairman of the Board of Directors and Chief
Executive Officer of Corporate Property Investors,
Inc. ("CPI") and of Corporate Realty Consultants,
Inc. ("CRC") from 1989 to 1998. Mr. Mautner was a
director of CPI from 1973 to 1998 and of CRC from
1975 to 1998 and served as Vice President of CPI
from 1972 to 1973. Mr. Mautner was appointed
Executive Vice President of CPI and CRC in 1973
and elected President of CPI and CRC in 1976.
Subsequently Mr. Mautner was elected Chairman and
President of CPI and CRC in 1988, and elected
Chairman, President and Chief Executive Officer of
CPI and CRC in 1989. Prior to joining CPI,
Mr. Mautner was a General Partner of Lazard
Freres. Mr. Mautner also serves as a board member
for various funds in The Dreyfus Family of Funds.
Mr. Mautner is a member of SPG Inc.'s Executive
Committee.
Richard S. Sokolov President and Chief Mr. Sokolov is President and the Chief Operating
Operating Officer; Officer of SPG Inc. and has been a director since
Director 1998. Prior to such date he was a director of the
Predecessor Company from 1996. Mr. Sokolov was
President and Chief Executive Officer and a
director of DeBartolo Realty Corporation from its
incorporation until it merged with the Predecessor
Company in 1996. Prior to that Mr. Sokolov had
served as Senior Vice President, Development of
The Edward J. DeBartolo Corporation since 1986 and
as Vice President and General Counsel of The
Edward J. DeBartolo Corporation since 1982.
Mr. Sokolov is a trustee and a member of the
I-2
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
Executive Committee of the International Council
of Shopping Centers. Mr. Sokolov serves as a
member of SPG Inc.'s Executive Committee.
Birch Bayh Director Mr. Bayh is currently a director of SPG Inc.
Mr. Bayh has been a Partner in the Washington,
D.C. law firm of Venable, Baetjer, Howard &
Civiletti, LLP since May 1, 2001. Prior to that
date, Mr. Bayh was a partner of Oppenheimer Wolff
& Donnelly LLP for more than five years. Mr. Bayh
served as a United States Senator from Indiana
from 1963 to 1981. Mr. Bayh is currently a
director of ICN Pharmaceuticals, Inc. Mr. Bayh has
been a director of SPG Inc. since 1998 and prior
to such date was a director of the Predecessor
Company since 1993. Mr. Bayh is a Member of SPG
Inc.'s Compensation, Nominating and Governance
Committees.
Mr. Bayh's current business address is Venable,
Baetjer, Howard & Civiletti, LLP, 1201 New York
Ave., NW, Suite 1000, Washington, D.C. 20005.
Melvyn E. Bergstein Director Mr. Bergstein is currently a director of SPG Inc.
Mr. Bergstein has been the Chairman and Chief
Executive Officer of DiamondCluster International,
Inc. since 2000. Mr. Bergstein co-founded Diamond
Technology Partners in 1994 which combined with
Cluster Consulting in late 2000 to form
DiamondCluster International. Prior to founding
Diamond Technology Partners, Mr. Bergstein served
in several capacities throughout a 21-year career
with Arthur Andersen LLP's consulting division, as
partner, managing director of worldwide
technology, board member and chairman of the
Consulting Oversight Committee. Mr. Bergstein has
been a director of SPG Inc. since 2001 and a
member of the Compensation and Governance
Committees.
Mr. Bergstein's current business address is
DiamondCluster International, 875 N. Michigan,
Suite 3000, Chicago, IL 60611.
M. Denise DeBartolo Director Ms. DeBartolo York is currently a director of SPG
York Inc. Ms. DeBartolo York is Chairman of The
DeBartolo Corporation. She previously served as
Chairman of the Board of The Edward J. DeBartolo
Corporation and in other
I-3
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
executive capacities with The Edward J. DeBartolo
Corporation for more than five years.
Ms. DeBartolo York has been a director of SPG Inc.
since 1998 and prior to that was a director of the
Predecessor Company from 1996. Ms. DeBartolo York
serves as a member of SPG Inc.'s Nominating
Committee.
Ms. DeBartolo York's current business address is
The DeBartolo Corp., 7620 Market Street,
Youngstown, OH 44512.
G. William Miller Director Mr. Miller is currently a director of SPG Inc.
Mr. Miller has been Chairman of the Board and
Chief Executive Officer of G. William Miller & Co.
Inc., a merchant banking firm, since 1983.
Mr. Miller is a former Secretary of the U.S.
Treasury and a former Chairman of the Federal
Reserve Board. From January 1990 until February
1992, Mr. Miller was Chairman and Chief Executive
Officer of Federated Stores, Inc., the parent
company of predecessors to Federated Department
Stores, Inc. Mr. Miller is currently also a
director of Repligen Corporation. He has been a
director of SPG Inc. since 1998 and prior to such
date served as a director of the Predecessor
Company from 1996. Mr. Miller serves as a member
of SPG Inc.'s Audit, Nominating and Governance
Committees.
Mr. Miller's current business address is G.
William Miller & Company, 1215 19th Street, NW,
Washington, D.C. 20036.
Fredrick W. Petri Director Mr. Petri is currently a director of SPG Inc. He
is a partner of Petrone, Petri & Company, a real
estate investment firm that Mr. Petri founded in
1993. Mr. Petri has also been an officer of
Housing Capital Company since its formation in
1994. Prior to that, he was an Executive Vice
President of Wells Fargo Bank, where for over 18
years Mr. Petri held various real estate
positions. Mr. Petri has previously been a member
of the Board of Governors and a Vice President of
the National Association of Real Estate Investment
Trusts and a director of the National Association
of Industrial and Office Park Development.
Mr. Petri is also a trustee of the Urban Land
Institute and the University of Wisconsin's Real
Estate Center. Mr. Petri has been a director of
SPG Inc. since 1998 and prior to that was a
director of the Predecessor
I-4
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
Company since 1996. Mr. Petri currently serves as
a member of SPG Inc.'s Compensation and Audit
Committees.
Mr. Petri's current business address is Petrone,
Petri & Co., 1825 S. Grant Street, Ste. 630, San
Mateo, CA 94402.
J. Albert Smith, Jr. Director Mr. Smith is currently a director of SPG Inc.
Mr. Smith has been President of Bank One Central
Indiana since September 2001. Mr. Smith was the
Managing Director of Bank One Corporation from
October 1998 to September 2001. Mr. Smith was
President of Bank One, Indiana, NA, a commercial
bank, from September 1994 until October 1998. From
1974 until September 1994, Mr. Smith was President
of Banc One Mortgage Corporation, a mortgage
banking firm. Mr. Smith has been a director of SPG
Inc. since 1998 and prior to that was a director
of the Predecessor Company since 1993. He serves
as a member of SPG Inc.'s Audit Committee.
Mr. Smith's current business address is Bank One,
Indianapolis, 111 Monument Circle, IN1-0175,
Indianapolis, IN 46204.
Pieter S. van den Berg Director Mr. van den Berg is currently a director of SPG
Inc. Mr. van den Berg has been an adviser to the
Board of Managing Directors of PGGM, a Dutch
pension fund, since 1991. He has been a director
of SPG Inc. since 1998. Mr. van den Berg serves as
a member of SPG Inc.'s Audit Committee. Mr. van
den Berg is a citizen of The Netherlands.
Mr. van den Berg's current business address is
PGGM Beleggingen/Investments, P.O. Box 4001, NL
3700 KA Zeist.
Philip J. Ward Director Mr. Ward is currently a director of SPG Inc.
Mr. Ward is the Senior Managing Director, Head of
Real Estate Investments, for CIGNA Investments,
Inc., a wholly owned subsidiary of CIGNA
Corporation. He is a member of the International
Council of Shopping Centers, the Urban Land
Institute, the National Association of Industrial
and Office Parks and the Society of Industrial and
Office Realtors. Mr. Ward has been a director of
SPG Inc. since 1998 and prior to that was a
director of the Predecessor Company since 1996.
Mr. Ward serves as a
I-5
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
member of SPG Inc.'s Compensation Committee.
Mr. Ward's current business address is Cigna
Investments, Inc., 280 Trumbell St., Suite H17C,
Hartford, CT 06103.
Stephen E. Sterrett Executive Vice President Mr. Sterrett serves as SPG Inc.'s Executive Vice
and Chief Financial President and Chief Financial Officer. He joined
Officer MSA in 1989 and also held various positions with
MSA until 1993.
James M. Barkley General Counsel; Mr. Barkley serves as the General Counsel and
Secretary Secretary both for SPG Inc. and for MSA. He joined
MSA in 1978 as Assistant General Counsel for
Development Activity.
Randolph L. Foxworthy Executive Vice Mr. Foxworthy is the Executive Vice President--
President-- Corporate Development of SPG Inc. Mr. Foxworthy
Corporate Development joined MSA in 1980 and has been an Executive Vice
President in charge of Corporate Development of
MSA since 1986.
Gary Lewis Executive Vice Mr. Lewis is the Executive Vice President--
President--Leasing Leasing of SPG Inc. Mr. Lewis joined MSA in 1986
and held various positions with MSA and SPG Inc.
prior to becoming Executive Vice President in
charge of Leasing of SPG Inc. in 2002.
Andrew A. Juster Senior Vice President Mr. Juster currently serves as SPG Inc.'s
and Treasurer Treasurer. He joined MSA in 1989 and held various
financial positions with MSA until 1993 and
thereafter has held various positions with SPG,
Inc.
John Rulli Executive Vice President Mr. Rulli serves as SPG Inc.'s Executive Vice
and Chief Administrative President and Chief Administrative Officer. He
Officer joined SPG in 1988 and held various positions with
SPG before becoming SPG's Executive Vice President
in 1993 and Chief Administrative Officer in 2000.
J. Scott Mumphrey Executive Vice Mr. Mumphrey serves as SPG Inc.'s Executive Vice
President--SPG President and President of the management group
Management Group for SPG Inc. He joined MSA in 1974 and also held
various positions with MSA before becoming Senior
Vice President of property management in 1993. In
2000, he became the president of Simon Business
Network.
I-6
DIRECTORS AND EXECUTIVE OFFICERS OF
SIMON PROPERTY ACQUISITIONS, INC.
The name, current principal occupation or employment and material
occupations, positions, offices or employment for the past five years, of each
director and executive officer of the Purchaser are set forth below. Unless
otherwise indicated below, the business address of each director and officer is
115 West Washington Street, Indianapolis, Indiana 46204, telephone:
317-636-1600. None of the directors and officers of the Purchaser listed below
has, during the past five years, (1) been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (2) been a party to
any judicial or administrative proceeding that resulted in a judgment, decree or
final order enjoining the person from future violations of, or prohibiting
activities subject to, federal or state securities laws, or a finding of any
violation of federal or state securities laws. All directors and officers listed
below are citizens of the United States.
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
Stephen E. Sterrett President and Director Mr. Sterrett serves as SPG Inc.'s Executive Vice
President and Chief Financial Officer. He joined
MSA in 1989 and held various positions with MSA
until 1993. Mr. Sterrett is the President of the
Purchaser and also serves as a director of the
Purchaser, positions he has held since the
Purchaser's incorporation in November 2002.
James M. Barkley Secretary, Treasurer and Mr. Barkley serves as SPG Inc.'s General Counsel
Director and Secretary. Mr. Barkley holds the same position
for MSA. He joined MSA in 1978 as Assistant
General Counsel for Development Activity.
Mr. Barkley is the treasurer and secretary of the
Purchaser and also serves as a director of the
Purchaser, positions he has held since the
Purchaser's incorporation in November 2002.
DIRECTORS AND EXECUTIVE OFFICERS OF WESTFIELD AMERICA, INC.
The name, current principal occupation or employment and material
occupations, positions, offices or employment for the past five years, of each
director and executive officer of WEA are set forth below. Unless otherwise
indicated below, the business address of each director and officer is 11601
Wilshire Boulevard, 12th Floor, Los Angeles, California 90025. None of the
directors and officers of WEA listed below has, during the past five years,
(1) been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (2) been a party to any judicial or administrative
proceeding that resulted in a judgment, decree or final order enjoining the
person from future violations of, or prohibiting activities subject to, federal
or state securities laws, or a finding of any violation of federal or state
securities laws. Except as otherwise noted, all directors and officers listed
below are citizens of the United States. Randall Smith is the beneficial owner
of 800 Shares, including 300 Shares owned by Mr. Smith directly and 500 Shares
owned by a trust over which Mr. Smith exercises voting authority, each
representing less than .01% of the total outstanding Shares.
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
Peter S. Lowy Director; President and Peter S. Lowy was appointed a director of WEA in
Chief Executive Officer 1994. Mr. Lowy was an Executive Vice President of
WEA from 1994 until March 1997,
I-7
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
was Co-President from May 1997 to July 2000 and is
currently President and Chief Executive Officer of
WEA. Mr. Lowy was appointed a director of WAML
upon its incorporation in 1996. Mr. Lowy is a
Managing Director of Westfield Holdings Limited
and has been responsible for Westfield Holdings
Limited's United States operations since 1990.
Mr. Lowy is a citizen of Australia.
Richard E. Green Director; Vice Chairman Richard E. Green was appointed a director of WEA
of Operations in July 2000. Mr. Green served as Co-President of
WEA from May 1997 to July 2000 and is currently
Vice Chairman of Operations of WEA. From 1993 to
the present, Mr. Green served as President of
Westfield Corporation, Inc., a subsidiary of
Westfield Holdings Limited. From 1980 to 1988, he
held the position of President of Westfield
Holdings Limited's United States operations. From
1968 to 1980 he was an Executive Vice President of
WEA, which was then owned by the May Company.
Mark A. Stefanek Director; Chief Mark A. Stefanek was appointed Senior Vice
Financial Officer and President and Chief Financial Officer of WEA in
Treasurer 1995 and became Chief Financial Officer and
Treasurer in 1997. He was appointed a director of
WEA in 2001. He is a certified public accountant
and spent the first seven years of his career at
Arthur Andersen. From 1985 to 1991 he was Chief
Financial Officer of Western Development
Corporation and for the three previous years he
was with Cadillac Fairview Urban Development, Inc.
From 1991 to 1994 he served as Vice President,
Finance and Administration for Disney Develoment
Company.
Peter R. Schwartz Senior Executive Vice Peter R. Schwartz was appointed Senior Executive
President Vice President of WEA in 2002. Mr. Schwartz was a
Partner of Debevoise & Plimpton from 1994 until
joining WEA in 2002. Prior to becoming a Partner,
Mr. Schwartz was an associate at Debevoise &
Plimpton from 1984 until 1994.
Dimitri Vazelakis Executive Vice President Dimitri Vazelakis became Executive Vice President
of WEA in 1997. Mr. Vazelakis joined Westfield
Holdings Limited in 1972, came to Westfield
Holdings Limited's United States operations in
1986 and in 1989 he began heading activities in
development, design and
I-8
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
construction. Between 1979 and 1986, he worked
with Westfield Holdings Limited in Australia,
attaining the position of Deputy General Manager
of Design and Construction.
John Schroder Executive Vice President John Schroder was appointed Executive Vice
President of WEA in 2000. Mr. Schroder joined
Westfield Holdings Limited in 1994 as State
Manager Queensland. Between 1994 and 2000 he
worked with Westfield Holdings Limited in
Australia attaining the positions of Director
Management, Marketing and Food Leasing and
Director of Leasing.
Mr. Schroder is a citizen of Australia.
Randall Smith Executive Vice President Randall Smith has served as an Executive Vice
President of WEA since 1997. With over 20 years of
experience in the field, Mr. Smith was Vice
President at WEA for nine years, before joining
Westfield Holdings Limited in 1994.
Roger D. Burghdorf Executive Vice President Roger D. Burghdorf was appointed an Executive Vice
President of WEA in 1997. From 1989 to 1997, Mr.
Burghdorf was Executive Vice President and
Director of Leasing at WEA.
DIRECTORS AND EXECUTIVE OFFICERS OF WESTFIELD AMERICA MANAGEMENT LIMITED
The name, current principal occupation or employment and material
occupations, positions, offices or employment for the past five years, of each
director and executive officer of WAML are set forth below. Unless otherwise
indicated below, the business address of each director and officer is c/o
Westfield America Management Limited, Level 24, Westfield Towers, 100 William
Street, Sydney NSW 2011, Australia. None of the directors and officers of WAML
listed below has, during the past five years, (1) been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (2) been a
party to any judicial or administrative proceeding that resulted in a judgment,
decree or final order enjoining the person from future violations of, or
prohibiting activities subject to, federal or state securities laws, or a
finding of any violation of federal or state securities laws. Except as
otherwise noted, all directors and officers listed below are citizens of
Australia.
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
Frank P. Lowy, AC Chairman of the Board Frank P. Lowy is Chairman of WAML. Mr. Lowy was
appointed to this position upon the incorporation
of WAML in 1996. Mr. Lowy is also Chairman of the
Board of Directors and co-founder of Westfield
Holdings Limited. Mr. Lowy is a member of the
Board of the Reserve Bank of Australia and was
appointed to that position in 1995. Mr. Lowy was a
director of WEA from February 1994 to October
2001.
I-9
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
Jillian Broadbent, BA Non-Executive Director Jillian Broadbent is a non-executive director of a
number of Australian companies. Ms. Broadbent was
appointed a non-executive director of WAML and
Westfield Management Limited in May 2002. Ms.
Broadbent is a member of the Board of the Reserve
Bank of Australia and was appointed to that
position in May 1998. She is also a director of
the Special Broadcasting Services (SBS)
(Multilingual Subscriber Television Limited),
Coca-Cola Amatil Ltd, Woodside Petroleum Ltd,
Woodside Energy Ltd and Mid-Eastern Oil Ltd. Ms.
Broadbent was a senior executive of Bankers Trust
Australia Limited from 1976 to 1998. She was a
director of Versign Australia Limited from August
2000 to September 2002.
Ms. Broadbent's current business address is Level
16, 167 Macquarie Street, Sydney NSW 2000,
Australia.
Roy L. Furman Non-Executive Director Roy L. Furman was appointed a non-executive
director of WAML in May 2002. Mr. Furman is Vice
Chairman of Jefferies & Company, an international
investment banking and securities firm, and
Chairman of Jefferies Capital Partners, a group of
private equity funds. Mr. Furman has held these
positions since May 2001. He was co-founder of
Furman Selz (1973), an international investment
banking, institutional brokerage and
money-management firm, which was acquired by ING
in 1998. Mr. Furman then became Vice Chairman of
ING Furman Selz until May 2001, interrupted by a
nine month position as Chairman of Livent, a
theatrical production company. Mr. Furman was also
a director of WEA from July 1996 to October 2001.
Mr. Furman is a citizen of the United States. His
current business address is Jefferies & Company
Inc., 520 Madison Avenue, 8th Floor, New York, NY
10022, USA.
Herman Huizinga Non-Executive Director Herman Huizinga was appointed a non-executive
director of WAML in May 2002. Mr. Huizinga was a
director of WEA from May 1997 to October 2001.
Mr. Huizinga also serves on the board of
Industrial Tunnel Method (Rotterdam) and the board
of the Eye Hospital in Rotterdam.
I-10
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
Mr. Huizinga is a citizen of The Netherlands. His
current business address is Hoevensbaan 218, 2950
Kapellan, Belgium.
Stephen P. Johns Executive Director, Stephen P. Johns was appointed an executive
Capital Markets of the director of WAML upon its incorporation in 1996.
Westfield Group; Mr. Johns is the Executive Director, Capital
Director Markets of the Westfield Group. Mr. Johns joined
the Westfield Group in 1970 and became Finance
Director in 1985 and Group Finance Director in
1997. Mr. Johns was appointed Executive Director,
Capital Markets of the Westfield Group in 2002.
Mr. Johns has been an executive director of
Westfield Holdings Limited since 1985.
Peter S. Lowy Managing Director of the Peter S. Lowy was appointed an executive director
Westfield Group; of WAML upon its incorporation in 1996. Mr. Lowy
Director is a Managing Director of the Westfield Group and
has been responsible for the Westfield Group's
United States operations since 1990. Mr. Lowy is
responsible for all fundraising, capital markets
and new business development activities for the
Group globally. Mr. Lowy was appointed a director
of WEA in 1994. Mr. Lowy was an Executive Vice
President of WEA from 1994 until March 1997, was
Co-President from May 1997 to July 2000 and is
currently President and Chief Executive Officer of
WEA. Mr. Lowy was appointed an executive director
of Westfield Holdings Limited in 1987 and a
Managing Director in 1997.
Mr. Lowy's current business address is 11601
Wilshire Boulevard, 12th Floor, Los Angeles,
California 90025, USA.
Steven M. Lowy Managing Director of the Steven M. Lowy was appointed an executive director
Westfield Group; of WAML upon its incorporation in 1996. Mr. Lowy
Director is a Managing Director of the Westfield Group with
responsibility for all operating areas of the
Group's business globally, including development,
design and construction, leasing, centre
management and marketing. Mr. Lowy joined
Westfield Holdings Limited in 1987 and he was
appointed an executive director in 1989 and a
Managing Director in 1997. He was also a director
of WEA from July 2000 to October 2001.
Robert Mansfield, AO Non-Executive Director Robert Mansfield was appointed a non-executive
director of WAML in May 2002. Mr. Mansfield is
the non-executive chairman of Telstra Corporation
Limited (appointed January 2000),
I-11
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
chairman of CDS Technologies Pty Limited
(appointed 1996), director of Datacraft Asia Ltd
(appointed April 1997), director of Data Holdings
plc (appointed July 2000) and national chairman of
the Starlight Children's Foundation of Australia
(appointed 1999). Mr. Mansfield is chairman and
director of McDonald's Australia Limited. Mr.
Mansfield held the position of CEO of McDonald's
Australia from September 1989 to July 2002. Mr.
Mansfield was formerly CEO of Wormald
International Ltd (1989-1991), Optus
Communications (1992-1995) and John Fairfax
Limited (1995-1996). He also has filled a number
of roles for the Australian Federal Government.
Mr. Mansfield's current business address is
Telstra Corporation, Level 16, 167 Macquarie
Street, Sydney NSW 2000, Australia.
Francis T. Vincent, Non-Executive Director Francis T. Vincent was appointed a non-executive
Jr. director of WAML in May 2002. He served as the
eighth Commissioner of Major League Baseball in
the United States from September 1989 to September
1992. Prior to 1989, Mr. Vincent was Executive
Vice President of the Coca-Cola Company from 1983
to 1988 and served as Chief Executive Officer for
Columbia Pictures Industries, Inc. from 1978 to
1983. He was Associate Director of the Division of
Corporation Finance at the United States
Securities and Exchange Commission in 1978. Mr.
Vincent was also a director of WEA from May 1997
to October 2001. He was a director of Time Warner,
Inc. from 1993 to 2001 and has been a director of
AOL Time Warner, Inc. since 2001.
Mr. Vincent is a citizen of the United States. His
current business address is Vincent Enterprises,
2nd Floor, 290 Harbor Drive, Stamford, CT 06902,
USA.
Marlon Teperson Chief Financial Officer Marlon Teperson joined the Westfield Group in
of the Westfield Group 1988. He is the Group Chief Financial Officer
responsible for financial matters within the
Group. Prior to this appointment in April 2002,
Mr. Teperson held the positions of Chief Financial
Officer for the Group's operations in the United
States (1992 - 1994), Senior Finance Executive for
Management and Leasing (1994 - 1995), General
Manager Finance (1995 - 1996), Director--Finance &
Accounting (Australia and
I-12
PRESENT PRINCIPAL
NAME OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------ --------------------------------------------------
New Zealand) (1997 - 1998) and Deputy Chief
Financial Officer (1999 - 2002).
Victor P. Hoog Antink Director--Funds Victor P. Hoog Antink is the Director--Funds
Management Management responsible for the operations of
Westfield Trust, Westfield America Trust and
Carindale Property Trust, including direct contact
with current and potential institutional investors
in the Trusts. Prior to this appointment, Mr. Hoog
Antink was General Manager of Westfield America
Trust responsible for the initial structuring and
establishment of Westfield America Trust in 1996
and subsequently the day to day management of
Westfield America Trust. Between January and
October 1999 Mr. Hoog Antink was the Chief
Executive Officer of the St Lukes Group Limited in
New Zealand.
I-13
DIRECTORS AND EXECUTIVE OFFICERS OF WESTFIELD HOLDINGS LIMITED
The name, current principal occupation or employment and material
occupations, positions, offices or employment for the past five years, of each
director and executive officer of Westfield Holdings Limited are set forth
below. Unless otherwise indicated below, the business address of each director
and officer is c/o Westfield America Management Limited, Level 24, Westfield
Towers, 100 William Street, Sydney NSW 2011, Australia. None of the directors
and officers of Westfield Holdings Limited listed below has, during the past
five years, (1) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (2) been a party to any judicial or
administrative proceeding that resulted in a judgment, decree or final order
enjoining the person from future violations of, or prohibiting activities
subject to, federal or state securities laws, or a finding of any violation of
federal or state securities laws. All directors and officers listed below are
citizens of Australia.
NAME PRESENT PRINCIPAL OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ---------------------------- --------------------------------------------------
Frank P. Lowy, AC Chairman of the Board Frank P. Lowy is Chairman of the Board of
Directors and co-founder of Westfield Holdings
Limited. Mr. Lowy is also Chairman of WAML. Frank
P. Lowy was appointed to this position upon the
incorporation of WAML in 1996. Mr. Lowy is a
member of the Board of the Reserve Bank of
Australia and was appointed to that position in
1995. Mr. Lowy was a director of WEA from February
1994 to October 2001.
Frederick G. Hilmer, Non-Executive Deputy Frederick G. Hilmer was appointed a non- executive
AO Chairman director of Westfield Holdings Limited in 1991 and
was appointed non-executive Deputy Chairman in
1997. Mr. Hilmer is the Chief Executive Officer
and Director of John Fairfax Holdings Limited and
was appointed to this position in 1998. Between
1989 and 1997, Mr. Hilmer was Dean and Professor
of Management at the Australian Graduate School of
Management in the University of New South Wales.
He has served as deputy chairman and a director of
a number of major companies, including Coca-Cola
Amatil Limited (March 1998 to February 1999), the
Fosters Group Limited (November 1990 to April
1999), The Pacific Power Corporation of New South
Wales (August 1995 to October 1998), Port Jackson
Partners Limited (May 1991 to October 1998),
Macquarie Bank (June 1989 to July 1995) and TNT
Limited (February 1994 to December 1996). Prior to
1989 he spent 19 years with McKinsey & Company.
Mr. Hilmer was a director of WAML from 1996 to May
2002. He was also a director of WEA from 1996 to
June 2000.
I-14
NAME PRESENT PRINCIPAL OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ---------------------------- --------------------------------------------------
Mr. Hilmer's current business address is John
Fairfax Holdings Limited, Level 19, 201 Sussex
Street, Sydney NSW 2000, Australia.
David H. Lowy Non-Executive Deputy David H. Lowy joined Westfield Holdings Limited in
Chairman of the Board 1977 and worked for Westfield Holdings Limited in
the United States from 1977 to 1981. Mr. Lowy was
appointed as an executive director of Westfield
Holdings Limited in 1982 and served as a Managing
Director of Westfield Holdings Limited from 1987
to June 2000 when he was appointed as a
non-executive Deputy Chairman. Mr. Lowy is a
member of the Presidents Council of the Children's
Hospital at Westmead, Sydney and is Founder and
President of Temora Aviation Museum. Mr. Lowy is
the Chief Executive of LFG Holdings Pty Limited.
Mr. Lowy was a director of WAML from 1996 to May
2002 and WEA from 1996 to June 2000.
Mr. Lowy's current business address is Level 23,
Westfield Towers, 100 William Street, Sydney NSW
2011, Australia.
Robert A. Ferguson Non-Executive Director Robert A. Ferguson was appointed a non-executive
director of Westfield Holdings Limited in 1994.
Mr. Ferguson is a director and chairman of Nextgen
Network Pty Limited and was appointed to that
position in February 2000. He was a director and
chairman of Vodafone Pacific Limited from February
2000 to October 2002. Mr. Ferguson is a director
of the Sydney Institute (appointed October 1993),
the Australian Davos Connection, Inc (appointed
January 1999) and The Sydney Writer's Festival
Limited (appointed July 2000). Mr Ferguson was a
director of BT Financial Group Limited and served
as Chairman from 1999 to 2001. Mr. Ferguson was a
director of Bankers Trust Australia Limited from
November 1985 to October 2002, holding the
position of Managing Director from 1986 to 1999.
He was a director of the St. James' Ethic Centre
from June 1992 to 2002. Mr. Ferguson was also a
director of WAML from 1996 to May 2002.
Mr. Ferguson's current business address is
Whitley, Oldbury Road Moss Vale, New South Wales
2577 Australia.
David M. Gonski Non-Executive Director David M. Gonski was appointed a non-executive
director of Westfield Holdings Limited in 1985.
Mr. Gonski was a director of WAML from 1996
I-15
NAME PRESENT PRINCIPAL OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ---------------------------- --------------------------------------------------
to May 2002. Mr. Gonski is the chairman of
Investec Wentworth Pty Limited (appointed 1989).
He is chairman of Coca-Cola Amatil Limited
(appointed director in October 1997, deputy
chairman in February 1998 and chairman in April
2001). He is also a director of John Fairfax
Holdings Limited (appointed March 1993),
Australian & New Zealand Banking Group Limited
(appointed February 2002) and ING Australia
Limited (appointed April 2002 having previously
been in that position from February 1986 to July
1999). Mr. Gonski is the President of the Art
Gallery of New South Wales' Trust and Chairman of
the National Institute of Dramatic Art and the
Australia Council for the Arts. Mr. Gonski was a
director and chairman of Morgan Stanley Dean
Witter Australia Limited (August 1999 to February
2002). He also held the position of director of
Mercantile Mutual Holdings Limited (November 1987
to July 1999) and ING Bank (Australia) Limited
(November 1987 to July 1999). He was a director of
Hoyts Cinemas Limited (September 1994 to June
1999) and Angus & Coote (Holdings) Ltd (September
1993 to March 1999).
Mr. Gonski's current business address is Investec
Wentworth Pty Limited, Level 16, The Investec
Building, 167 Macquarie Street, Sydney NSW 2000,
Australia.
Stephen P. Johns Executive Director, Capital Stephen P. Johns has been an executive director of
Markets of the Westfield Westfield Holdings Limited since 1985. Mr. Johns
Group was appointed an executive director of WAML upon
its incorporation in 1996. Mr. Johns is the
Executive Director, Capital Markets of the
Westfield Group. He joined the Westfield Group in
1970 and became Finance Director in 1985 and Group
Finance Director in 1997. Mr. Johns was appointed
to his current position in 2002.
Peter S. Lowy Managing Director of the Peter S. Lowy was appointed an executive director
Westfield Group of Westfield Holdings Limited in 1987 and a
Managing Director in 1997. Mr. Lowy is a Managing
Director of the Westfield Group and has been
responsible for the Westfield Group's United
States operations since 1990. Mr. Lowy is
responsible for all fundraising, capital markets
and new business development activities for the
Group globally. Mr.Lowy was appointed a director
of WEA in 1994. He was an Executive
I-16
NAME PRESENT PRINCIPAL OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ---------------------------- --------------------------------------------------
Vice President of WEA from 1994 until March 1997,
was Co-President from May 1997 to July 2000 and is
currently President and Chief Executive Officer of
WEA. Mr. Lowy was appointed an executive director
of WAML upon its incorporation in 1996.
Mr. Lowy's current business address is 11601
Wilshire Boulevard, 12th Floor, Los Angeles,
California 90025, USA.
Steven M. Lowy Managing Director Steven M. Lowy joined Westfield Holdings Limited
in 1987 and he was appointed an executive director
in 1989 and a Managing Director in 1997. Mr. Lowy
was appointed an executive director of WAML upon
its incorporation in 1996. Mr. Lowy is a Managing
Director of the Westfield Group with
responsibility for all operating areas of the
Group's business globally, including development,
design and construction, leasing, centre
management and marketing. He was also a director
of WEA from July 2000 to October 2001.
Dean R. Wills, AO Non-Executive Director Dean R. Wills was appointed a non-executive
director of Westfield Holdings Limited in 1994.
Mr. Wills was a director of WAML from February
1996 to May 2002. Mr. Wills is the Chairman of
Transfield Services Limited (appointed March 2001)
and the Coca-Cola Australia Foundation Limited
(appointed May 2002). He served as the Chairman of
the Coca-Cola Amatil Group from May 1984 to April
1999, and as a Director of Coca-Cola Amatil from
August 1975 to April 1999. Mr. Wills has been a
director of John Fairfax Holdings Limited since
October 1994 and was appointed Chairman in
November 2002. Mr. Wills was the Deputy Chairman
of the Australian Grand Prix Corporation from 1994
to April 2002. He was also the Chairman of AXA
Asia Pacific Limited from April 1997 to April 30,
2000.
His current business address is c/o: Coca-Cola
Amatil Level 5, 71 Macquarie Street Sydney NSW
Australia.
Carla Zampatti, AM Non-Executive Director Carla Zampatti was appointed a non-executive
director of Westfield Holdings Limited in 1997.
Ms. Zampatti is the Executive Chairman of the
Carla Zampatti Group and has held that position
since 1965. Ms. Zampatti was appointed as
I-17
NAME PRESENT PRINCIPAL OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ---------------------------- --------------------------------------------------
Chairman of Special Broadcasting Service (SBS)
(Multilingual Subscriber Television Limited) in
March 2000. Ms. Zampatti is also a director of
McDonalds Australia Limited (appointed June 1996),
the Australian Graduate School of Management,
University of New South Wales (appointed February
1999) and a Trustee of the Sydney Theatre Company
Foundation Trust. Ms. Zampatti was a director of
British America Tobacco Australasia Limited from
August 1998 to July 2001. She was a director of
Westfield America Management Limited from 1997 to
May 2002. She was a director of WAML from 1997 to
May 2002.
Her current business address is Carla Zampatti Pty
Ltd, 437 Kent Street, Sydney NSW 2000, Australia.
Richard E. Green Vice Chairman Richard E. Green was appointed Vice Chairman of
Operations--United States Operations--United States in 2000. From 1993 to
the present, Mr. Green served as President of
Westfield Corporation, Inc., a subsidiary of
Westfield Holdings Limited. From 1980 to 1988, he
held the position of President of Westfield
Holdings Limited's U.S. operations. Mr. Green
served as Co-President of WEA from May 1997 to
July 2000 and is currently Vice Chairman of
Operations of WEA. Richard E. Green was appointed
a director of WEA in July 2000. From 1968 to 1980
he was an Executive Vice President of WEA, which
was then owned by the May Company.
Mr. Green is a citizen of the United States.
Mr. Green's current business address is
11601 Wilshire Boulevard, 12th Floor, Los Angeles,
California 90025.
Marlon Teperson Chief Financial Officer of Marlon Teperson joined the Westfield Group in
the Westfield Group 1988. He is the Group Chief Financial Officer
responsible for financial matters within the
Group. Prior to this appointment in April 2002,
Mr. Teperson held the positions of Chief Financial
Officer for the Group's operations in the United
States (1992 - 1994), Senior Finance Executive for
Management and Leasing (1994 - 1995), General
Manager Finance (1995 - 1996), Director--Finance &
Accounting (Australia and New Zealand) (1997 -
1998) and Deputy Chief Financial Officer (1999 -
2002).
I-18
NAME PRESENT PRINCIPAL OCCUPATION MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ---------------------------- --------------------------------------------------
Peter Allen Director--Europe Peter Allen joined the Westfield Group in 1996. He
is Director--Europe, responsible for the Group's
operations in the United Kingdom. Prior to
locating to the United Kingdom in 1998, Peter was
Director for Business Development. Peter Allen has
15 years' experience in shopping center
development and finance in Australia, Asia, the
United States and Europe.
His current business address is 30 Old Burlington
Street, London, England WIS 3AR.
Simon Julian Tuxen Group General Counsel Simon Tuxen joined the Westfield Group in July
2002. He holds the position of Group General
Counsel, Company Secretary and Group Compliance
Officer. Mr. Tuxen is a solicitor of the Supreme
Court of Victoria. Prior to joining the Westfield
Group, Mr. Tuxen was General Counsel BIL
International Limited (March 2001 - June 2002) and
Group Legal Manager Jardine Matheson Limited Hong
Kong (1993 - 2001). Prior to this, he was a
Partner at Mallesons Stephen Jaques, solicitors.
Peter R. Schwartz General Counsel--United Peter R. Schwartz joined the Westfield Group in
States October 2002. Mr. Schwartz is also Senior
Executive Vice President of WEA. Mr. Schwartz was
a Partner of Debevoise & Plimpton from 1997 until
joining the Westfield Group in 2002. Prior to
becoming a Partner, Mr. Schwartz was an associate
at Debevoise & Plimpton from 1984 until 1997.
Mr. Schwartz is a United States citizen. His
current business address is 11601 Wilshire
Boulevard, 12th Floor, Los Angeles, California
90025.
I-19
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates for Shares
and any other required documents should be sent or delivered by each shareholder
of the Company or his broker, dealer, commercial bank, trust company or other
nominee to the Depositary at one of its addresses set forth below:
The Depositary for the Offer is:
COMPUTERSHARE TRUST COMPANY OF NEW YORK
BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND/OVERNIGHT DELIVERY:
Attn: Computershare Trust Company (For Eligible Institutions Attn: Computershare Trust Company
of New York Only) of New York
Wall Street Station (212) 701-7636 Wall Street Plaza
P.O. Box 1010 CONFIRM FACSIMILE BY TELEPHONE: 88 Pine Street, 19th Floor
New York, New York 10268-1010 (212) 701-7624 New York, New York 10005
(registered or certified mail recommended)
Any questions or requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
listed below. Additional copies of the Offer to Purchase, this Supplement and
the revised Letter of Transmittal and other tender offer materials may be
obtained from the Information Agent as set forth below, and will be furnished
promptly at the Purchaser's expense. You may also contact your broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
MACKENZIE PARTNERS, INC.
105 Madison Avenue
New York, New York 10016
(212) 929-5500 (call collect)
or
CALL TOLL-FREE (800) 322-2885
E-MAIL: proxy@mackenziepartners.com
THE DEALER MANAGER FOR THE OFFER IS:
MERRILL LYNCH & CO.
4 World Financial Center
New York, New York 10080
CALL TOLL-FREE (866) 276-1462
LETTER OF TRANSMITTAL
TO TENDER
SHARES OF COMMON STOCK
OF
TAUBMAN CENTERS, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED DECEMBER 5, 2002
AND THE SUPPLEMENT THERETO DATED JANUARY 15, 2003
BY
SIMON PROPERTY ACQUISITIONS, INC.,
A WHOLLY OWNED SUBSIDIARY OF
SIMON PROPERTY GROUP, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, FEBRUARY 14, 2003, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
COMPUTERSHARE TRUST COMPANY OF NEW YORK
BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND/OVERNIGHT DELIVERY:
Attn: Computershare Trust Company (For Eligible Institutions Attn: Computershare Trust Company
of New York Only) of New York
Wall Street Station (212) 701-7636 Wall Street Plaza
P.O. Box 1010 88 Pine Street, 19th Floor
New York, New York 10268-1010 New York, New York 10005
(registered or certified mail recommended) CONFIRM FACSIMILE BY TELEPHONE:
(212) 701-7624
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TO A NUMBER OTHER THAN THE
ONE LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.
THE INSTRUCTIONS CONTAINED WITHIN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
SHAREHOLDERS WHO HAVE ALREADY TENDERED SHARES PURSUANT TO THE OFFER USING
THE PREVIOUSLY DISTRIBUTED (BLUE) LETTER OF TRANSMITTAL OR (YELLOW) NOTICE OF
GUARANTEED DELIVERY NEED NOT TAKE ANY FURTHER ACTION IN ORDER TO RECEIVE THE
INCREASED OFFER PRICE OF $20.00 PER SHARE IF SHARES ARE ACCEPTED FOR PAYMENT AND
PAID FOR BY THE PURCHASER PURSUANT TO THE OFFER, EXCEPT AS MAY BE REQUIRED BY
THE GUARANTEED DELIVERY PROCEDURE, IF SUCH PROCEDURE WAS UTILIZED.
This revised Letter of Transmittal or the previously circulated (blue)
Letter of Transmittal is to be used by shareholders of Taubman Centers, Inc.
(a) if certificates for Shares (as such term is defined below) are to be
forwarded or (b) unless an Agent's Message (as defined in Instruction 2 below)
is utilized, if delivery of Shares is to be made by book-entry transfer to an
account maintained by the Depositary at the Book-Entry Transfer Facility (as
defined in and pursuant to the procedures set forth in the Offer to Purchase) or
(c) if Shares are to be tendered that are held in an account under the Taubman
Centers, Inc. Direct Registration System. Shareholders who deliver Shares by
book-entry transfer are referred to herein as "Book-Entry Shareholders" and
other shareholders who deliver Shares are referred to herein as "Certificate
Shareholders."
Shareholders whose certificates for Shares are not immediately available or
who cannot deliver either the certificates for, or a Book-Entry Confirmation (as
defined in the Offer to Purchase) with respect to, their Shares and all other
documents required hereby to the Depositary on or prior to the Expiration Date
(as defined in Section 1 of the Offer to Purchase) must tender their Shares
pursuant to the guaranteed delivery procedures described in Section 3 of the
Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY
TRANSFER FACILITY WILL NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE DEPOSITARY'S ACCOUNT AT THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING
(ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY
DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution:
DTC Account Number:
Transaction Code Number:
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE
DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s):
Window Ticket No. (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution which Guaranteed Delivery:
If delivered by Book-Entry Transfer, check box: / /
Account Number:
Transaction Code Number:
PLEASE INCLUDE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED
DELIVERY
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DESCRIPTION OF SHARES TENDERED
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NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) SHARES TENDERED
APPEAR(S) ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
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TOTAL NUMBER OF NUMBER OF
CERTIFICATE SHARES REPRESENTED SHARE(S)
NUMBER(S)(1) BY TENDERED(2)
CERTIFICATE(S)(1)
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TOTAL SHARES:
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(1) Need not be completed by Book-Entry Shareholders.
(2) Unless otherwise indicated, it will be assumed that all Shares represented by share certificates delivered to the
Depositary are being tendered hereby. See Instruction 4.
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TENDER OF SHARES HELD IN THE TAUBMAN CENTERS, INC. DIRECT REGISTRATION SYSTEM
(SEE INSTRUCTION 12)
Complete this section if you want to tender Shares held in your account
under the Taubman Centers, Inc. Direct Registration System. Please check only
one box. If you check more than one box, do not check a box, or you check the
second box but do not indicate a number of Shares, it will be assumed that all
Shares held in your account under the Direct Registration System of Taubman
Centers, Inc. are being tendered.
/ / Please tender ALL of the Shares credited to my account.
/ / Please tender the following number of Shares credited to my
account:
Number of Shares to be tendered.
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NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE INSTRUCTIONS SET FORTH
IN THIS LETTER OF TRANSMITTAL CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to Simon Property Acquisitions, Inc., a
Delaware corporation (the "Purchaser") and a wholly owned subsidiary of Simon
Property Group, Inc., a Delaware corporation ("SPG Inc."), the above-described
shares of common stock, par value $.01 per share (the "Common Stock" or the
"Shares") of Taubman Centers, Inc., a Michigan corporation, pursuant to the
Purchaser's offer to purchase all outstanding Shares at a price of $20.00 per
Share, net to the seller in cash, without interest thereon, upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated December 5,
2002 (the "Offer to Purchase"), the Supplement thereto, dated January 15, 2003
(the "Supplement"), and in this Letter of Transmittal (which, together with any
amendments or supplements thereto or hereto, collectively constitute the
"Offer"), receipt of which is hereby acknowledged. The undersigned understands
that the Purchaser reserves the right to transfer or assign, in whole at any
time, or in part from time to time, to one or more of its affiliates, the right
to purchase all or any portion of the Shares tendered pursuant to the Offer, but
any such transfer or assignment will not relieve the Purchaser of its
obligations under the Offer and will in no way prejudice the rights of tendering
shareholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer. Receipt of the Offer is hereby acknowledged.
Upon the terms and subject to the conditions of the Offer (and if the Offer
is extended or amended, the terms and conditions of any such extension or
amendment), subject to, and effective upon, acceptance for payment of, and
payment for, the Shares tendered herewith in accordance with the terms of the
Offer, including, without limitation, the Introduction and Section 14 of the
Offer to Purchase and the Introduction and Sections 1, 2 and 9 of the
Supplement, the undersigned hereby sells, assigns and transfers to, or upon the
order of, the Purchaser all right, title and interest in and to, and any and all
claims in respect of or arising or having arisen as a result of the
undersigned's status as a holder of, all the Shares that are being tendered
hereby (and any and all non-cash dividends, distributions, rights, other Shares
or other securities issued or issuable in respect thereof on or after
December 5, 2002 (collectively, "Distributions")) and irrevocably constitutes
and appoints the Depositary as the true and lawful agent and attorney-in-fact of
the undersigned with respect to such Shares (and all Distributions), with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to (i) deliver certificates for such Shares
(and any and all Distributions), or transfer ownership of such Shares (and any
and all Distributions) on the account books maintained by the Book-Entry
Transfer Facility or other account books maintained with respect to the Taubman
Centers, Inc. Direct Registration System, together, in any such case, with all
accompanying evidences of transfer and authenticity, to or upon the order of the
Purchaser, (ii) present such Shares (and any and all Distributions) for transfer
on the books of Taubman Centers, Inc. and (iii) receive all benefits and
otherwise exercise all rights of beneficial ownership of such Shares (and any
and all Distributions), all in accordance with the terms of the Offer.
If, on or after December 4, 2002, Taubman Centers, Inc. declares or pays any
cash dividend on the Shares or other distribution on the Shares (except for
regular quarterly cash dividends on the Shares not in excess of $.255 per Share
having customary and usual record dates and payment dates), or issues with
respect to the Shares any additional Shares, shares of any other class of
capital stock, other voting securities or any securities convertible into, or
rights, warrants or options, conditional or otherwise, to acquire, any of the
foregoing, payable or distributable to shareholders of record on a date prior to
the transfer of the Shares purchased pursuant to the Offer to the Purchaser or
its nominee or transferee on Taubman Centers, Inc.'s stock transfer records,
then, subject to the provisions of Section 14 of the Offer to Purchase and
Section 9 of the Supplement, (1) the Offer Price (as defined in the Offer to
Purchase) may, in the sole discretion of the Purchaser, be reduced by the amount
of any such cash dividends or cash distributions and (2) the whole of any such
non-cash dividend, distribution or issuance to be received by the tendering
shareholders will (a) be received and held by the tendering shareholders for the
account of the Purchaser and will be required to be promptly remitted and
transferred by each tendering shareholder to the Depositary for the account of
the Purchaser, accompanied by appropriate documentation of transfer, or (b) at
the direction of the Purchaser, be exercised for the benefit of the Purchaser,
in which case the proceeds of such exercise will promptly be remitted to the
Purchaser. Pending such remittance and subject to applicable law, the Purchaser
will be entitled to all rights and privileges as owner of any such non-cash
dividend, distribution, issuance or proceeds and may withhold the entire Offer
Price or deduct from the Offer Price the amount or value thereof, as determined
by the Purchaser in its sole discretion.
By executing this Letter of Transmittal, the undersigned hereby irrevocably
appoints Stephen E. Sterrett, Executive Vice President and Chief Financial
Officer of SPG Inc., James M. Barkley, Secretary and General Counsel of SPG
Inc., and Shelly J. Doran, Vice President of Investor Relations of SPG Inc., and
each of them, or any other designees of the Purchaser, as the attorneys-in-fact
and proxies of the undersigned, each with full power of substitution and
resubstitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest) to vote at any annual or special meeting of Taubman
Centers, Inc.'s shareholders or any adjournment or postponement thereof or
otherwise in such manner as each such attorney-in-fact and proxy or his
substitute will in his sole discretion deem proper with respect to, to execute
any written consent concerning any matter as each such attorney-in-fact and
proxy or his substitute will in his sole discretion deem proper with respect to,
and to otherwise act as each such attorney-in-fact and proxy or his substitute
will in his sole discretion deem proper with respect to, all of the Shares (and
any and all Distributions) tendered hereby and
accepted for payment by the Purchaser. This appointment will be effective if and
when, and only to the extent that, the Purchaser accepts such Shares for payment
pursuant to the Offer. This power of attorney and proxy are irrevocable and are
granted in consideration of the acceptance for payment of such Shares in
accordance with the terms of the Offer. Such acceptance for payment will,
without further action, revoke any prior powers of attorney and proxies granted
by the undersigned at any time with respect to such Shares (and any and all
Distributions), and no subsequent powers of attorney, proxies, consents or
revocations may be given by the undersigned with respect thereto (and, if given,
will not be deemed effective). The Purchaser reserves the right to require that,
in order for Shares or other securities to be deemed validly tendered,
immediately upon the Purchaser's acceptance for payment of such Shares, the
Purchaser must be able to exercise full voting, consent and other rights of a
record and beneficial holder with respect to such Shares (and any and all
Distributions), including voting at any meeting of Taubman Centers, Inc.'s
shareholders.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares tendered
hereby and all Distributions, that the undersigned owns the Shares tendered
hereby within the meaning of Rule 14e-4 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that the tender of the
tendered Shares complies with Rule 14e-4 under the Exchange Act, and that when
the same are accepted for payment by the Purchaser, the Purchaser will acquire
good, marketable and unencumbered title thereto and to all Distributions, free
and clear of all liens, restrictions, charges and encumbrances and the same will
not be subject to any adverse claims.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Depositary or the Purchaser to be necessary or desirable
to complete the sale, assignment and transfer of the Shares tendered hereby and
all Distributions. In addition, the undersigned will remit and transfer promptly
to the Depositary for the account of the Purchaser all Distributions in respect
of the Shares tendered hereby, accompanied by appropriate documentation of
transfer, and, pending such remittance and transfer or appropriate assurance
thereof, the Purchaser will be entitled to all rights and privileges as owner of
each such Distribution and may withhold the entire purchase price of the Shares
tendered hereby or deduct from such purchase price the amount or value of such
Distribution as determined by the Purchaser in its sole discretion.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall not be affected by, and will survive, the death or incapacity
of the undersigned, and any obligation of the undersigned hereunder will be
binding upon the heirs, executors, administrators, personal representatives,
trustees in bankruptcy, successors and assigns of the undersigned. Except as
stated in the Offer and this Letter of Transmittal, this tender is irrevocable.
Shares tendered pursuant to the Offer may be withdrawn at any time prior to
the Expiration Date and, unless theretofore accepted for payment by the
Purchaser pursuant to the Offer, may also be withdrawn at any time after the
Expiration Date. See Section 4 of the Offer to Purchase.
The undersigned understands that the valid tender of Shares pursuant to any
one of the procedures described in Section 3 of the Offer to Purchase,
Section 2 of the Supplement and in the Instructions hereto will constitute a
binding agreement between the undersigned and the Purchaser upon the terms and
subject to the conditions of the Offer (and if the Offer is extended or amended,
the terms or conditions of any such extension or amendment), including the
undersigned's representation that the undersigned owns the Shares being
tendered. The undersigned recognizes that under certain circumstances set forth
in the Offer to Purchase, the Purchaser may not be required to accept for
payment any of the Shares tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the purchase price of all Shares
purchased and/or return any certificates for Shares not tendered or accepted for
payment in the name(s) of the registered holder(s) appearing above under
"Description of Shares Tendered." Similarly, unless otherwise indicated under
"Special Delivery Instructions," please mail the check for the purchase price of
all Shares purchased and/or return any certificates for Shares not tendered or
not accepted for payment (and any accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing above under "Description of
Shares Tendered." In the event that the boxes entitled "Special Payment
Instructions" and "Special Delivery Instructions" are both completed, please
issue the check for the purchase price of all Shares purchased and/or return any
certificates evidencing Shares not tendered or not accepted for payment (and any
accompanying documents, as appropriate) in the name(s) of, and deliver such
check and/or return any such certificates (and any accompanying documents, as
appropriate) to, the person(s) so indicated. Unless otherwise indicated herein
in the box entitled "Special Payment Instructions," please credit any Shares
tendered herewith (a) by book-entry transfer that are not accepted for payment
by crediting the account at the Book-Entry Transfer Facility designated above
and (b) by credit in connection with the Taubman Centers, Inc. Direct
Registration System that are not accepted for payment by crediting the account
with the Taubman Centers, Inc. Direct Registration System designated above. The
undersigned recognizes that the Purchaser has no obligation, pursuant to the
"Special Payment Instructions," to transfer any Shares from the name of the
registered holder thereof if the Purchaser does not accept for payment any of
the Shares so tendered.
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST, DESTROYED OR STOLEN AND SEE INSTRUCTION 11.
NUMBER OF SHARES REPRESENTED BY LOST, DESTROYED OR STOLEN
CERTIFICATES: ____________
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SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
accepted for payment (less the amount of any federal income and backup
withholding tax required to be withheld) is to be issued in the name of
someone other than the undersigned, if certificates for Shares not tendered
or not accepted for payment are to be issued in the name of someone other
than the undersigned or if Shares tendered hereby and delivered by
book-entry transfer that are not accepted for payment are to be returned by
credit to an account maintained at a Book-Entry Transfer Facility other than
the account indicated above.
Issue: / / Check
/ / Share Certificate(s) to:
Name(s): ___________________________________________________________________
____________________________________________________________________________
(PLEASE PRINT)
Address: ___________________________________________________________________
(INCLUDE ZIP CODE)
__________________________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER) (SEE SUBSTITUTE
FORM W-9)
/ / Credit Shares delivered by book-entry transfer and not purchased to the
Book-Entry Transfer Facility account.
____________________________________________________________________________
(ACCOUNT NUMBER)
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SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment (less the amount of any federal income and backup
withholding tax required to be withheld) is to be sent to someone other than
the undersigned or to the undersigned at an address other than that shown
under "Description of Shares Tendered."
Mail: / / Check
/ / Share Certificate(s) to:
Name(s): ___________________________________________________________________
____________________________________________________________________________
(PLEASE PRINT)
Address: ___________________________________________________________________
(INCLUDE ZIP CODE)
__________________________________________________________________________
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IMPORTANT--SHAREHOLDERS SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
____________________________________________________________________________
____________________________________________________________________________
(SIGNATURE(S) OF SHAREHOLDER(S))
Dated: __________________
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
the Share certificate(s) or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other person acting
in a fiduciary or representative capacity, please provide the following
information and see Instruction 5.)
If a holder holds Direct Registration Shares, the person(s) signing
above hereby direct(s) Mellon Investor Services, LLC, as the Company's
transfer agent (the "Transfer Agent"), to place a stop transfer instruction
against the aforementioned number of Shares held as Direct Registration
Shares pending expiration of the Offer. Upon expiration of the Offer, the
Transfer Agent is further directed to follow the instructions set forth in
Section 3 of the Offer to Purchase for delivery to the Depositary.
Name(s): ___________________________________________________________________
____________________________________________________________________________
(PLEASE PRINT)
Capacity (Full Title): _____________________________________________________
(SEE INSTRUCTION 5)
Address: ___________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No.: _______________________________________________
Taxpayer Identification or Social Security No.: ____________________________
(SEE SUBSTITUTE FORM W-9)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature: ______________________________________________________
Names(s): __________________________________________________________________
(PLEASE PRINT)
Title: _____________________________________________________________________
Name of Firm: ______________________________________________________________
Address: ___________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No.: _______________________________________________
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Section, includes any
participant in any of the Book-Entry Transfer Facility's systems whose name
appears on a security position listing as the owner of the Shares) of Shares
tendered herewith, unless such registered holder(s) has (have) completed either
the box entitled "Special Payment Instructions" or the box entitled "Special
Delivery Instructions" on the Letter of Transmittal or (b) if such Shares are
tendered for the account of a financial institution (including most commercial
banks, savings and loan associations and brokerage houses) that is a participant
in the Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(each, an "Eligible Institution"). In all other cases, all signatures on this
Letter of Transmittal must be guaranteed by an Eligible Institution. See
Instruction 5.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares evidenced by certificates listed and
transmitted hereby, the Share certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on the Share certificates. Signature(s) on any
such Share certificates or stock powers must be guaranteed by an Eligible
Institution (unless signed by an Eligible Institution).
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be completed by shareholders of
Taubman Centers, Inc. either if Share certificates are to be forwarded herewith
or, unless an Agent's Message is utilized, if delivery of Shares is to be made
by book-entry transfer pursuant to the procedures set forth herein and in
Section 3 of the Offer to Purchase. For a shareholder validly to tender Shares
pursuant to the Offer, either (a) a properly completed and duly executed Letter
of Transmittal (or facsimile thereof), together with any required signature
guarantees or an Agent's Message (in connection with book-entry transfer) and
any other required documents, must be received by the Depositary at one of its
addresses set forth herein on or prior to the Expiration Date and either
(i) certificates for tendered Shares must be received by the Depositary at one
of such addresses on or prior to the Expiration Date or (ii) Shares must be
delivered pursuant to the procedures for book-entry transfer set forth herein
and in Section 3 of the Offer to Purchase and a Book-Entry Confirmation must be
received by the Depositary on or prior to the Expiration Date or (b) the
tendering shareholder must comply with the guaranteed delivery procedures set
forth herein and in Section 3 of the Offer to Purchase.
Shareholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Depositary on or prior to the Expiration Date or who cannot comply with the
book-entry transfer procedures on a timely basis may tender their Shares by
properly completing and duly executing the Notice of Guaranteed Delivery
pursuant to the guaranteed delivery procedure set forth herein and in Section 3
of the Offer to Purchase.
Pursuant to such guaranteed delivery procedures, (i) such tender must be
made by or through an Eligible Institution, (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form provided by
the Purchaser, must be received by the Depositary on or prior to the Expiration
Date, and (iii) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation with respect to all tendered Shares),
together with a properly completed and duly executed Letter of Transmittal (or a
facsimile thereof), with any required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message, and any other required documents must
be received by the Depositary within three trading days after the date of
execution of such Notice of Guaranteed Delivery. A "trading day" is any day on
which the New York Stock Exchange is open for business.
The term "Agent's Message" means a message transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares, that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary, transmitted by telegram or facsimile transmission, or mailed to the
Depositary and must include a guarantee by an Eligible Institution in the form
set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of:
(1) Share certificates representing tendered Shares, and
(2) a Letter of Transmittal (or a facsimile thereof) or a Book-Entry
Confirmation with respect to all tendered Shares, properly completed and
duly executed, together with any required signature guarantees, or an
Agent's Message in connection with a book-entry transfer of Shares and any
other documents required by the Letter of Transmittal.
Accordingly, payment might not be made to all tendering shareholders at the same
time, and will depend upon when Share certificates representing, or Book-Entry
Confirmations of, such Shares are received into the Depositary's account at the
Book-Entry Transfer Facility.
The signatures on this Letter of Transmittal cover the Shares tendered
hereby.
THE METHOD OF DELIVERY OF THE SHARES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. THE SHARES
WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION).
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. All tendering shareholders, by executing
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the number of Shares tendered and the Share
certificate numbers with respect to such Shares should be listed on a separate
signed schedule attached hereto.
4. PARTIAL TENDERS. (Not applicable to shareholders who tender by
book-entry transfer or hold through the Taubman Centers, Inc. Direct
Registration System). If fewer than all the Shares evidenced by any Share
certificate delivered to the Depositary herewith are to be tendered hereby, fill
in the number of Shares that are to be tendered in the box entitled "Number of
Shares Tendered." In any such case, new certificate(s) for the remainder of the
Shares that were evidenced by the old certificates will be sent to the
registered holder, unless otherwise provided in the appropriate box on this
Letter of Transmittal, as soon as practicable after the acceptance for payment
of the Shares tendered herewith. All Shares represented by certificates
delivered to the Depositary will be deemed to have been tendered unless
otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificate(s) without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are held of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any Share certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to the Purchaser of the authority of such person so to act must be
submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares listed and transmitted hereby, no endorsements of Share certificates or
separate stock powers are required unless payment or certificates for Shares not
tendered or not accepted for payment are to be issued in the name of a person
other than the registered holder(s). SIGNATURES ON ANY SUCH SHARE CERTIFICATES
OR STOCK POWERS MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares evidenced by certificates listed and
transmitted hereby, the Share certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on the Share certificates. Signature(s) on any
such Share certificates or stock powers must be guaranteed by an Eligible
Institution (unless signed by an Eligible Institution).
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction
6, the Purchaser will pay all stock transfer taxes with respect to the transfer
and sale of any Shares to it or its order pursuant to the Offer. If, however,
payment of the purchase price of any Shares purchased is to be made to, or if
certificates for Shares not tendered or not accepted for payment are to be
registered in the name of, any person other than the registered holder(s), or if
tendered certificates are registered in the name of any person other than the
person(s) signing this Letter of Transmittal, the amount of any stock transfer
taxes (whether imposed on the registered holder(s) or such other person or
otherwise) payable on account of the transfer to such other person will be
deducted from the purchase price of such Shares purchased unless evidence
satisfactory to the Purchaser of the payment of such taxes or exemption
therefrom is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE CERTIFICATES EVIDENCING THE
SHARES TENDERED HEREBY.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the purchase
price of any Shares accepted for payment is to be issued in the name of, and/or
Share certificates for Shares not accepted for payment or not tendered are to be
issued in the name of and/or returned to, a person other than the signer of this
Letter of Transmittal or if a check is to be sent, and/or such certificates are
to be returned, to a person other than the signer of this Letter of Transmittal,
or to an address other than that shown above, the appropriate boxes on this
Letter of Transmittal should be completed. Any shareholder(s) delivering Shares
by book-entry transfer may request that Shares not purchased be credited to such
account maintained at the Book-Entry Transfer Facility as such shareholder(s)
may designate in the box entitled "Special Payment Instructions." If no such
instructions are given, any such Shares not purchased will be returned by
crediting the account at the Book-Entry Transfer Facility designated above as
the account from which such Shares were delivered.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance or additional copies of the Offer to Purchase, the Supplement,
this Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 may
be directed to MacKenzie Partners, Inc., the Information Agent for the Offer
(the "Information Agent"), or to Merrill Lynch, Pierce, Fenner & Smith,
Incorporated (the "Dealer Manager"), at their respective addresses and telephone
numbers set forth below.
9. IRREGULARITIES; WAIVER OF CONDITIONS. All questions as to validity
(including time of receipt) and acceptance for payment of any tender of Shares
will be determined by the Purchaser, in its sole discretion, whose determination
shall be final and binding. The Purchaser reserves the absolute right to reject
any and all tenders determined by it not to be in the appropriate form or the
acceptance for purchase of which may, in the opinion of its counsel, be
unlawful. As set forth in the Offer to Purchase, the Purchaser also reserves the
absolute right to waive any of the conditions of the Offer or any defect or
irregularity in the tender of any Shares of any particular stockholder whether
or not similar defects or irregularities are waived in the case of other
stockholders. The Purchaser's interpretations of the terms and conditions of the
Offer (including these instructions) will be final and binding. Unless waived,
any defects or irregularities must be cured within such time as the Purchaser
shall determine. None of the Purchaser, the Dealer Manager, the Depositary, the
Information Agent or any other person will be under any duty to give notice of
any defects or irregularities in tenders or shall incur any liability for
failure to give any such notification. Tenders shall not be deemed to have been
made until all defects and irregularities have been cured or waived.
10. BACKUP WITHHOLDING. In order to avoid "backup withholding" of federal
income tax on payments pursuant to the Offer, a shareholder surrendering Shares
in the Offer must, unless an exemption applies, provide the Depositary with such
shareholder's correct taxpayer identification number ("TIN") on Substitute
Form W-9 in this Letter of Transmittal and certify, under penalties of perjury,
that such TIN is correct and that such shareholder is not subject to backup
withholding.
Backup withholding is not an additional income tax. Rather, the amount of
the backup withholding can be credited against the federal income tax liability
of the person subject to the backup withholding, provided that the required
information is given to the Internal Revenue Service. If backup withholding
results in an overpayment of tax, a refund may be obtained by the shareholder
upon filing an income tax return.
The shareholder is generally required to give the Depositary the TIN (i.e.,
social security number or employer identification number) of the record owner of
the Shares. If the Shares are held in more than one name or are not in the name
of the actual owner, consult the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional guidance
on which number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
shareholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
shareholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 30% on all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
shareholder if a TIN is provided to the Depositary within 60 days.
Certain shareholders (including, among others, most corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign shareholders should complete and sign the main signature
form and a Form W-8BEN, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
11. LOST, DESTROYED OR STOLEN SHARE CERTIFICATES. If any certificate(s)
representing Shares has (have) been lost, destroyed or stolen, the shareholder
should promptly notify Mellon Investor Services, LLC, the transfer agent for
Taubman Centers, Inc. at (888) 877-2889 and check the box immediately preceding
the special payment/special delivery instructions and indicate the number of
Shares lost. The shareholder will then be instructed as to the steps that must
be taken in order to replace the Share certificate(s). This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen Share certificates have been followed.
12. SHARES HELD IN THE TAUBMAN CENTERS, INC. DIRECT REGISTRATION
SYSTEM. If you want to tender Shares held in your account under the Taubman
Centers, Inc. Direct Registration System ("DRS"), you must:
- complete the box in this Letter of Transmittal entitled "Tender of Shares
Held in the Taubman Centers, Inc. Direct Registration System" by choosing
the option to tender all of the Shares in your DRS account or the option
to tender a specific number of the Shares in your DRS account (if you
check more than one box, do not check a box, or if you check the second
box but do not indicate a number of Shares, it will be assumed that all
Shares held in your account under the DRS are being tendered); and
- indicate the number of Shares being tendered from your DRS account in the
box in this Letter of Transmittal entitled "Description of Shares
Tendered."
If you tender Shares held in your DRS account, all such Shares credited to
your DRS account, including fractional shares, will be tendered, unless
otherwise specified in the box entitled "Tender of Shares Held in the Direct
Registration System."
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF) TOGETHER WITH
ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN
AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE
DEPOSITARY ON OR PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR
TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED
PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE ON OR PRIOR TO
THE EXPIRATION DATE, OR THE TENDERING SHAREHOLDER MUST COMPLY WITH THE
PROCEDURES FOR GUARANTEED DELIVERY.
IMPORTANT TAX INFORMATION
Under Federal income tax law, a shareholder whose tendered Shares are
accepted for payment is generally required to provide the Depositary (as payer)
with such shareholder's correct taxpayer identification number on Substitute
Form W-9 below. If such shareholder is an individual, the taxpayer
identification number is his social security number. If a tendering shareholder
is subject to backup withholding, such shareholder must cross out item (2) of
Part 2 (the Certification box) on the Substitute Form W-9. If the Depositary is
not provided with the correct taxpayer identification number, the shareholder
may be subject to a $50 penalty imposed by the Internal Revenue Service. In
addition, payments that are made to such shareholder with respect to Shares
purchased pursuant to the Offer may be subject to backup withholding.
Certain shareholders (including, among others, most corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that shareholder must submit a statement, signed under penalties of
perjury, attesting to that individual's exempt status. Such statements can be
obtained from the Depositary. Exempt shareholders, other than foreign
individuals, should furnish their TIN, write "Exempt" on the face of the
Substitute Form W-9 below, and sign, date and return the Substitute Form W-9 to
the Depositary. See the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional instructions.
If backup withholding applies, the Depositary is required to withhold 30% of
any payments made to the shareholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained from the Internal Revenue Service.
TO BE COMPLETED BY ALL TENDERING SHAREHOLDERS
(SEE INSTRUCTION 10)
PAYER'S NAME: COMPUTERSHARE TRUST COMPANY OF NEW YORK AS DEPOSITARY
- --------------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE Part I: PLEASE PROVIDE YOUR TIN IN THE Social Security Number
FORM W-9 BOX AT RIGHT AND CERTIFY BY SIGNING (If awaiting TIN write "Applied For")
Department of the Treasury AND DATING BELOW OR ------------------------
Internal Revenue Service Employer Identification Number
(If awaiting TIN write "Applied For")
-----------------------------------------------------------------------------------
PART 3--Awaiting TIN / /
Payer's Request for Taxpayer
Identification Number (TIN)
- --------------------------------------------------------------------------------------------------------------------------------
Part 2--Certification--UNDER PENALTIES OF PERJURY, I CERTIFY THAT:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued
for me), and
(2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been
notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been notified by the IRS that you are currently
subject to backup withholding because of underreporting interest or dividends on your tax returns. However, if after being
notified by the IRS that you are subject to backup withholding, you receive another notification from the IRS that you are no
longer subject to backup withholding, do not cross out such item (2). (Also see instructions in the enclosed Guidelines.)
Signature Date
-------------------------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 30% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number has not been issued to me,
and either (1) I have mailed or delivered an application to receive a Taxpayer Identification Number to
the appropriate Internal Revenue Service Center or Social Security Administration Office or (2) I intend
to mail or deliver an application in the near future. I understand that if I do not provide a Taxpayer
Identification Number to the Depositary by the time of payment, 30% of all reportable payments made to me
thereafter will be withheld, but that such amounts will be refunded to me if I provide a certified
Taxpayer Identification Number to the Depositary within sixty (60) days.
SIGNATURE DATE
Name:
(PLEASE PRINT)
Address:
(INCLUDE ZIP CODE)
FACSIMILE COPIES OF THIS LETTER OF TRANSMITTAL, PROPERLY COMPLETED AND DULY
EXECUTED, WILL BE ACCEPTED. THE LETTER OF TRANSMITTAL, CERTIFICATES FOR SHARES
AND ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT OR DELIVERED BY EACH SHAREHOLDER
OF TAUBMAN CENTERS, INC. OR HIS BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY
OR OTHER NOMINEE TO THE DEPOSITARY AT ONE OF ITS ADDRESSES SET FORTH ABOVE.
Any questions or requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth below.
Requests for additional copies of the Offer to Purchase, the Supplement, the
Letter of Transmittal and other tender offer materials may be directed to the
Information Agent or to brokers, dealers, commercial banks or trust companies.
THE INFORMATION AGENT FOR THE OFFER IS:
MACKENZIE PARTNERS, INC.
105 Madison Avenue
New York, New York 10016
(212) 929-5500 (call collect)
or
CALL TOLL-FREE (800) 322-2885
E-MAIL: proxy@mackenziepartners.com
THE DEALER MANAGER FOR THE OFFER IS:
MERRILL LYNCH & CO.
4 World Financial Center
New York, New York 10080
CALL TOLL-FREE (866) 276-1462
January 15, 2003
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
TAUBMAN CENTERS, INC.
TO
SIMON PROPERTY ACQUISITIONS, INC.,
A WHOLLY OWNED SUBSIDIARY OF
SIMON PROPERTY GROUP, INC.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, FEBRUARY 14, 2003, UNLESS THE OFFER IS EXTENDED.
As set forth in Section 3 of the Offer to Purchase, dated December 5, 2002,
this Notice of Guaranteed Delivery, or a form substantially equivalent hereto
(including the previously distributed (yellow) Notice of Guaranteed Delivery),
must be used to accept the Offer (as defined below) if certificates representing
shares of common stock, par value $.01 per share (the "Common Stock" or
"Shares"), of Taubman Centers, Inc., a Michigan corporation, are not immediately
available, if the procedure for book-entry transfer cannot be completed on or
prior to the Expiration Date (as defined in the Offer to Purchase), or if time
will not permit all required documents to reach the Depositary on or prior to
the Expiration Date. Such form may be delivered by hand, transmitted by
facsimile transmission or mailed to the Depositary. See Section 3 of the Offer
to Purchase.
The Depositary for the Offer is:
COMPUTERSHARE TRUST COMPANY OF NEW YORK
BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND/OVERNIGHT DELIVERY:
Attn: Computershare Trust Company (For Eligible Institutions Attn: Computershare Trust Company
of New York Only) of New York
Wall Street Station (212) 701-7636 Wall Street Plaza
P.O. Box 1010 88 Pine Street, 19th Floor
New York, New York 10268-1010 CONFIRM FACSIMILE BY TELEPHONE: New York, New York 10005
(registered or certified mail recommended) (212) 701-7624
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TO A NUMBER OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an "Eligible Institution"
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to such Eligible Institution.
Tendering shareholders may use either this revised (beige) Notice of Guaranteed
Delivery or the original (yellow) Notice of Guaranteed Delivery previously
distributed with the Offer to Purchase.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
Ladies and Gentlemen:
The undersigned hereby tenders to Simon Property Acquisitions, Inc., a
Delaware corporation (the "Purchaser") and a wholly owned subsidiary of Simon
Property Group, Inc., a Delaware corporation ("SPG Inc."), upon the terms and
subject to the conditions set forth in the Purchaser's Offer to Purchase, dated
December 5, 2002 (the "Offer to Purchase"), and the Supplement thereto, dated
January 15, 2003 (the "Supplement"), and the related revised Letter of
Transmittal (which, together with any amendments or supplements thereto,
constitute the "Offer"), receipt of which is hereby acknowledged, the number of
shares set forth below of common stock, par value, $.01 per share (the "Common
Stock" or the "Shares") of Taubman Centers, Inc., a Michigan corporation,
pursuant to the guaranteed delivery procedures set forth in Section 3 of the
Offer to Purchase.
Number of Shares tendered: Name(s) of Record Holder(s):
PLEASE PRINT
Certificate Nos. (if available): Address(es):
ZIP CODE
Check box if Shares will be tendered by Area Code and Tel. No.:
book-entry transfer: / /
Account Number: Signature(s):
Dated:
THE GUARANTEE BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
The undersigned, a firm which is a bank, broker, dealer, credit union,
savings association or other entity which is a member in good standing of a
recognized Medallion Program approved by the Securities Transfer
Association Inc., including the Securities Transfer Agents Medallion Program,
the Stock Exchange Medallion Program and the New York Stock Exchange Medallion
Signature Program or any other "eligible guarantor institution" (as such term is
defined under Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended), hereby (a) represents that the above-named recordholder(s) "own(s)"
the Shares tendered hereby within the meaning of Rule 14e-4 under the Securities
Exchange Act of 1934 ("Rule 14e-4"), (b) represents that the tender of Shares
effected hereby complies with Rule 14e-4 and (c) guarantees to deliver to the
Depositary either certificates representing the Shares tendered hereby, in
proper form for transfer, or confirmation of book-entry transfer of such Shares
into the Depositary's account at The Depository Trust Company, in each case with
delivery of a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), with any required signature guarantees, or an Agent's
Message, and any other documents required by the Letter of Transmittal, within
three trading days (as defined in the Offer to Purchase) after the date hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the same time period herein.
Failure to do so could result in a financial loss to such Eligible Institution.
Name of Firm:
AUTHORIZED SIGNATURE
Address: Name:
PLEASE PRINT
Title:
ZIP CODE
Area Code & Tel. No.: Date:
DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED DELIVERY.
CERTIFICATES SHOULD BE SENT ONLY WITH YOUR LETTER OF TRANSMITTAL.
2
MERRILL LYNCH & CO.
FOUR WORLD FINANCIAL CENTER
NEW YORK, NEW YORK 10080
(866) 276-1462 (CALL TOLL-FREE)
SIMON PROPERTY ACQUISITIONS, INC.,
A WHOLLY OWNED SUBSIDIARY OF
SIMON PROPERTY GROUP, INC.,
HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TAUBMAN CENTERS, INC.
TO
$20.00 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, FEBRUARY 14, 2003, UNLESS THE OFFER IS EXTENDED.
January 15, 2003
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been engaged by Simon Property Acquisitions, Inc. (the "Purchaser"),
a Delaware corporation and a wholly owned subsidiary of Simon Property Group,
Inc. ("SPG Inc."), to act as Dealer Manager in connection with the offer being
made by SPG Inc. through the Purchaser to purchase all outstanding shares of
common stock, par value $.01 (the "Common Stock" or the "Shares"), of Taubman
Centers, Inc., a Michigan corporation, at a price of $20.00 per Share, net to
the seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated December 5, 2002 (the
"Offer to Purchase") and the Supplement thereto, dated January 15, 2003 (the
"Supplement") and in the related revised Letter of Transmittal (which, together
with any amendments or supplements thereto, constitute the "Offer") enclosed
herewith. In this context, we hereby request that you please furnish copies of
the enclosed materials to those of your clients for whose accounts you hold
Shares registered in your name or in the name of your nominee.
As discussed in the Supplement, the Offer is being amended on the date
hereof to (1) increase the offer price to $20.00 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Offer and the revised Letter of Transmittal and (2) reflect the
fact that SPG Inc., Westfield America, Inc. ("WEA"), and the Purchaser have
entered into an Offer Agreement, dated January 15, 2003, which provides, among
other things, that (i) all decisions with respect to the Offer shall be made
jointly by SPG Inc. and WEA and (ii) if the Offer is consummated, WEA (or its
designated assignee) will acquire 50% of the Purchaser (or its designee) at a
purchase price equal to 50% of the aggregate Offer Price (as defined in the
Offer to Purchase) paid by the Purchaser in the Offer, and SPG Inc. and WEA will
jointly control the Shares purchased in the Offer.
The Offer and withdrawal rights now expire at 12:00 Midnight, New York City
time, on Friday, February 14, 2003, unless the Offer is extended.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE SUPPLEMENT AND THE REVISED
LETTER OF TRANSMITTAL, ALL OF THE TERMS AND CONDITIONS OF THE OFFER PREVIOUSLY
SET FORTH IN THE OFFER TO PUCHASE REMAIN APPLICABLE IN ALL RESPECTS TO THE
OFFER, AND THE SUPPLEMENT AND THE REVISED LETTER OF TRANSMITTAL SHOULD BE READ
IN CONJUNCTION WITH THE OFFER TO PURCHASE.
THE OFFER IS CONDITIONED UPON, AMONG OTHER CONDITIONS SET FORTH IN THE OFFER
TO PURCHASE, (1) THERE BEING VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE
EXPIRATION OF THE OFFER SUCH NUMBER OF SHARES THAT REPRESENTS, TOGETHER WITH
SHARES OWNED BY THE PURCHASER, SPG INC., WEA OR ANY OF THEIR RESPECTIVE
SUBSIDIARIES, AT LEAST TWO-THIRDS ( 2/3) OF THE TOTAL VOTING POWER OF TAUBMAN
CENTERS, INC., (2) THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT
AFTER CONSUMMATION OF THE OFFER NONE OF THE SHARES ACQUIRED BY
THE PURCHASER SHALL BE DEEMED "EXCESS STOCK" (AS DEFINED IN THE OFFER TO
PURCHASE), (3) FULL VOTING RIGHTS FOR ALL SHARES TO BE ACQUIRED BY THE PURCHASER
IN THE OFFER HAVING BEEN APPROVED BY THE SHAREHOLDERS OF TAUBMAN CENTERS, INC.
PURSUANT TO THE MICHIGAN CONTROL SHARE ACT (AS DEFINED IN THE OFFER TO
PURCHASE), OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE
PROVISIONS OF SUCH STATUTE ARE INVALID OR OTHERWISE INAPPLICABLE TO THE SHARES
TO BE ACQUIRED BY THE PURCHASER PURSUANT TO THE OFFER, AND (4) THE PURCHASER
BEING SATISFIED, IN ITS SOLE DISCRETION, THAT, AFTER CONSUMMATION OF THE OFFER,
THE MICHIGAN BUSINESS COMBINATION ACT (AS DEFINED IN THE OFFER TO PURCHASE) WILL
NOT PROHIBIT FOR ANY PERIOD OF TIME, OR IMPOSE ANY SHAREHOLDER APPROVAL
REQUIREMENT WITH RESPECT TO, THE PROPOSED SECOND STEP MERGER OR ANY OTHER
BUSINESS COMBINATION INVOLVING TAUBMAN CENTERS, INC. AND THE PURCHASER (OR ANY
OTHER AFFILIATE OF SPG INC. OR WEA).
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, we are enclosing
the following documents:
1. Supplement dated January 15, 2003;
2. Revised (gray) Letter of Transmittal for your use in accepting the Offer
and tendering Shares and for the information of your clients;
3. Revised (beige) Notice of Guaranteed Delivery to be used to accept the
Offer if certificates for Shares and all other required documents cannot
be delivered to the Depositary, or if the procedures for book-entry
transfer cannot be completed, on or prior to the Expiration Date;
4. A printed form of a revised letter which may be sent to your clients for
whose accounts you hold Shares registered in your name or in the name of
your nominee, with space provided for obtaining such clients'
instructions with regard to the Offer;
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
6. A return envelope addressed to Computershare Trust Company of New York
(the "Depositary").
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, FEBRUARY 14, 2003, UNLESS THE
OFFER IS EXTENDED.
TENDERING SHAREHOLDERS MAY USE EITHER THE ORIGNAL (BLUE) LETTER OF
TRANSMITTAL AND THE ORIGINAL (YELLOW) NOTICE OF GUARANTEED DELIVERY PREVIOUSLY
DISTRIBUTED WITH THE OFFER TO PURCHASE OR THE REVISED (GRAY) LETTER OF
TRANSMITTAL AND THE REVISED (BEIGE) NOTICE OF GUARANTEED DELIVERY.
SHAREHOLDERS WHO HAVE ALREADY TENDERED SHARES PURSUANT TO THE OFFER AND WHO
HAVE NOT WITHDRAWN SUCH SHARES NEED NOT TAKE ANY FURTHER ACTION IN ORDER TO
RECEIVE THE INCREASED OFFER PRICE OF $20.00 PER SHARE IF SHARES ARE ACCEPTED FOR
PAYMENT AND PAID FOR BY THE PURCHASER PURSUANT TO THE OFFER, EXCEPT AS MAY BE
REQUIRED BY THE GUARANTEED DELIVERY PROCEDURE IF SUCH PROCEDURE WAS UTILIZED.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of the Offer as so
extended or amended), the Purchaser will purchase, by accepting for payment, and
will pay for all Shares validly tendered and not withdrawn on or prior to the
Expiration Date as soon as practicable after the Expiration Date. Payment for
Shares purchased pursuant to the Offer will, in all cases, be made only after
timely receipt by the Depositary of (i) certificates for such Shares, or timely
confirmation of a book-entry transfer of such Shares (if such procedure is
available) into the Depositary's account at The Depository Trust Company
pursuant to the procedures described in Section 3 of the Offer to Purchase and
Section 2 of the Supplement (if and to the extent applicable), (ii) a properly
completed and duly executed Letter of Transmittal (or a properly completed and
manually signed facsimile thereof) or an Agent's Message (as defined in the
Offer to Purchase) in connection with a book-entry transfer, and (iii) any other
documents required by the Letter of Transmittal.
The Purchaser will not pay any fees or commissions to any broker, dealer or
other person (other than the Dealer Manager and the Information Agent, as
described in the Offer to Purchase) for soliciting tenders
2
of Shares pursuant to the Offer. The Purchaser will, however, upon request,
reimburse brokers, dealers, commercial banks and trust companies and other
nominees for customary clerical and mailing expenses incurred by them in
forwarding the enclosed materials to their customers.
The Purchaser will pay or cause to be paid all stock transfer taxes
applicable to its purchase of Shares pursuant to the Offer, subject to
Instruction 6 of the Letter of Transmittal.
In order to accept the Offer, (i) a duly executed and properly completed
Letter of Transmittal (or facsimile thereof), with any required signature
guarantees, or an Agent's Message in connection with a book-entry transfer of
Shares, and any other required documents, should be sent to the Depositary, and
(ii) either certificates representing the tendered Shares should be delivered or
such Shares should be tendered by book-entry transfer into the Depositary's
account at The Depository Trust Company, all in accordance with the instructions
set forth in the Letter of Transmittal and in the Offer to Purchase.
If holders of Shares wish to tender, but it is impracticable for them to
forward their certificates or other required documents or to complete the
procedures for delivery by book-entry transfer prior to the expiration of the
Offer, a tender may be effected by following the guaranteed delivery procedures
specified in Section 3 of the Offer to Purchase.
Except as otherwise expressly set forth in the Supplement and the revised
Letter of Transmittal, all of the terms and conditions of the Offer previously
set forth in the Offer to Purchase remain applicable in all respects to the
Offer, and the Supplement and the revised Letter of Transmittal should be read
in conjunction with the Offer to Purchase.
Questions or requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth on the back cover of the enclosed Supplement. Requests for additional
copies of the Offer to Purchase, the Supplement, the Letter of Transmittal and
other tender offer materials may be directed to the Information Agent or to
brokers, dealers, commercial banks or trust companies.
Very truly yours,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS WILL CONSTITUTE YOU THE
AGENT OF PURCHASER, SPG INC., WEA, THE DEALER MANAGER, TAUBMAN CENTERS, INC.,
THE INFORMATION AGENT, THE DEPOSITARY, OR ANY AFFILIATE OF ANY OF THE FOREGOING,
OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT
ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS
ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
3
SIMON PROPERTY ACQUISITIONS, INC.,
A WHOLLY OWNED SUBSIDIARY OF
SIMON PROPERTY GROUP, INC.,
HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TAUBMAN CENTERS, INC.
TO
$20.00 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, FEBRUARY 14, 2003, UNLESS THE OFFER IS EXTENDED.
January 15, 2003
To Our Clients:
Enclosed for your consideration are a Supplement, dated January 15, 2003
(the "Supplement"), to the Offer to Purchase, dated December 5, 2002 (the "Offer
to Purchase"), and the related revised Letter of Transmittal (which, together
with the Offer to Purchase and any amendments or supplements thereto,
collectively constitute the "Offer") in connection with the offer by Simon
Property Acquisitions, Inc., (the "Purchaser"), a Delaware corporation and a
wholly owned subsidiary of Simon Property Group, Inc. ("SPG Inc."), to purchase
all outstanding shares of common stock, par value $.01 per share (the "Common
Stock" or the "Shares"), of Taubman Centers, Inc., a Michigan corporation, at a
purchase price of $20.00 per Share, net to you in cash, without interest
thereon.
WE ARE THE HOLDER OF RECORD OF SHARES HELD FOR YOUR ACCOUNT. A TENDER OF
SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR
INSTRUCTIONS. THE ENCLOSED LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD BY US FOR YOUR
ACCOUNT.
Accordingly, we hereby request instructions as to whether you wish us to
tender any or all of the Shares held by us for your account, upon the terms and
subject to the conditions set forth in the Offer.
Your attention is invited to the following:
1. The offer price has increased to $20.00 per Share, net to you in cash,
without interest thereon, upon the terms and subject to the conditions
set forth in the Offer.
2. SPG Inc., Westfield America, Inc. ("WEA") and the Purchaser have entered
into an Offer Agreement, dated January 15, 2003, which provides, among
other things, that (i) all decisions with respect to the Offer shall be
made jointly by SPG Inc. and WEA and (ii) if the Offer is consummated,
WEA (or its designated assignee) will acquire 50% of the Purchaser (or
its designee) at a purchase price equal to 50% of the aggregate Offer
Price (as defined in the Offer to Purchase) paid by the Purchaser in the
Offer, and SPG Inc. and WEA will jointly control the Shares purchased in
the Offer.
3. The Offer is being made for all outstanding Shares.
4. Following the consummation of the Offer, SPG Inc. and WEA currently
intend, as soon as practicable, to propose and seek to have Taubman
Centers, Inc. consummate a merger or similar business combination (the
"Proposed Merger") with the Purchaser or its assignee or another
subsidiary of SPG Inc., pursuant to which each then outstanding Share
(other than Shares held by the Purchaser, SPG Inc., WEA or their
respective subsidiaries) would be converted into the right to receive an
amount in cash per Share equal to the highest price per Share paid by the
Purchaser pursuant to the Offer, without interest.
5. The Offer and withdrawal rights now expire at 12:00 Midnight, New York
City time, on Friday, February 14, 2003, unless the Offer is extended.
6. Except as otherwise expressly set forth in the Supplement and the
revised Letter of Transmittal, all of the terms and conditions of the
Offer previously set forth in the Offer to Purchase remain applicable in
all respects to the Offer, and the Supplement and the revised Letter of
Transmittal should be read in conjunction with the Offer to Purchase.
7. THE OFFER IS CONDITIONED UPON, AMONG OTHER CONDITIONS SET FORTH IN THE
OFFER TO PURCHASE, (1) THERE BEING VALIDLY TENDERED AND NOT WITHDRAWN
PRIOR TO THE EXPIRATION OF THE OFFER SUCH NUMBER OF SHARES THAT
REPRESENTS, TOGETHER WITH SHARES OWNED BY THE PURCHASER, SPG INC., WEA OR
ANY OF THEIR RESPECTIVE SUBSIDIARIES, AT LEAST TWO-THIRDS ( 2/3) OF THE
TOTAL VOTING POWER OF TAUBMAN CENTERS, INC., (2) THE PURCHASER BEING
SATISFIED, IN ITS SOLE DISCRETION, THAT AFTER CONSUMMATION OF THE OFFER
NONE OF THE SHARES ACQUIRED BY THE PURCHASER SHALL BE DEEMED "EXCESS
STOCK" (AS DEFINED IN THE OFFER TO PURCHASE), (3) FULL VOTING RIGHTS FOR
ALL SHARES TO BE ACQUIRED BY THE PURCHASER IN THE OFFER HAVING BEEN
APPROVED BY THE SHAREHOLDERS OF TAUBMAN CENTERS, INC. PURSUANT TO THE
MICHIGAN CONTROL SHARE ACT (AS DEFINED IN THE OFFER TO PURCHASE), OR THE
PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE PROVISIONS OF
SUCH STATUTE ARE INVALID OR OTHERWISE INAPPLICABLE TO THE SHARES TO BE
ACQUIRED BY THE PURCHASER PURSUANT TO THE OFFER, AND (4) THE PURCHASER
BEING SATISFIED, IN ITS SOLE DISCRETION, THAT, AFTER CONSUMMATION OF THE
OFFER, THE MICHIGAN BUSINESS COMBINATION ACT (AS DEFINED IN THE OFFER TO
PURCHASE) WILL NOT PROHIBIT FOR ANY PERIOD OF TIME, OR IMPOSE ANY
SHAREHOLDER APPROVAL REQUIREMENT WITH RESPECT TO, THE PROPOSED MERGER OR
ANY OTHER BUSINESS COMBINATION INVOLVING TAUBMAN CENTERS, INC. AND THE
PURCHASER (OR ANY OTHER AFFILIATE OF SPG INC. OR WEA).
8. Any stock transfer taxes applicable to the sale of Shares to Purchaser
pursuant to the Offer will be paid by Purchaser, except as otherwise
provided in Instruction 6 of the Letter of Transmittal.
The Purchaser will not pay any fees or commissions to any broker, dealer or
other person (other than the Dealer Manager and the Information Agent, as
described in the Offer to Purchase) for soliciting tenders of Shares pursuant to
the Offer.
The Offer is being made solely by the Offer to Purchase, the Supplement and
the related revised Letter of Transmittal and is being made to all holders of
the Shares. The Purchaser is not aware of any state where the making of the
Offer is prohibited by administrative or judicial action pursuant to any valid
state statute. If the Purchaser becomes aware of any valid state statute
prohibiting the making of the Offer or the acceptance of Shares pursuant
thereto, the Purchaser will make a good faith effort to comply with any such
state statute. If, after such good faith effort the Purchaser cannot comply with
any such state statute, the Offer will not be made to (nor will tenders be
accepted from or on behalf of) the holders of Shares in such state. In any
jurisdiction where the securities, blue sky or other laws require the Offer to
be made by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of the Purchaser by Merrill Lynch & Co., the Dealer Manager for the
Offer, or one or more registered brokers or dealers which are licensed under the
laws of such jurisdiction.
In all cases, payment for Shares purchased pursuant to the Offer will be
made only after timely receipt by Computershare Trust Company of New York (the
"Depositary") of (a) the Share certificates ("Share Certificates") representing
such Shares or timely confirmation (a "Book-Entry Confirmation") of the book-
entry transfer of such Shares (if such procedure is available) into the
Depositary's account at The Depository Trust Company (the "Book-Entry Transfer
Facility"), pursuant to the procedures set forth in Section 3 of the Offer to
Purchase and Section 2 of the Supplement (if and to the extent applicable),
(b) a Letter of Transmittal (or a facsimile thereof), properly completed and
duly executed, with any required signature guarantees, or an Agent's Message (as
defined in the Offer to Purchase) in connection with a book-entry transfer, and
(c) any other documents required by the Letter of Transmittal.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing and returning to us the instruction form set forth
on the reverse side of this letter. An envelope to return your instructions to
us is enclosed. If you authorize the tender of your Shares, all such Shares will
be
2
tendered unless otherwise specified on the reverse side of this letter. Your
instructions should be forwarded to us in ample time to permit us to submit a
tender on your behalf prior to the expiration of the Offer.
IF YOU HAVE ALREADY TENDERED SHARES PURSUANT TO THE OFFER AND HAVE NOT
WITHDRAWN SUCH SHARES, YOU NEED NOT TAKE ANY FURTHER ACTION TO RECEIVE THE
INCREASED OFFER PRICE OF $20.00 PER SHARE IF SHARES ARE ACCEPTED AND PAID FOR BY
THE PURCHASER PURSUANT TO THE OFFER, EXCEPT AS MAY BE REQUIRED BY THE GUARANTEED
DELIVERY PROCEDURE, IF SUCH PROCEDURE WAS UTILIZED.
3
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TAUBMAN CENTERS, INC.
The undersigned acknowledge(s) receipt of your letter, the Offer to
Purchase, dated December 5, 2002 (the "Offer to Purchase"), the enclosed
Supplement to the Offer to Purchase, dated January 15, 2003 (the "Supplement")
and the related revised Letter of Transmittal (which, together with the Offer to
Purchase and any amendments or supplements thereto, constitute the "Offer") in
connection with the Offer by Simon Property Acquisitions, Inc., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Simon Property
Group, Inc., a Delaware corporation ("SPG Inc."), to purchase all outstanding
shares of common stock, par value $.01 per share (the "Common Stock" or the
"Shares"), of Taubman Centers, Inc., a Michigan corporation, at a price of
$20.00 per Share, net to the seller in cash, without interest thereon, upon the
terms and subject to the conditions set forth in the Offer.
This will instruct you to tender the number of Shares indicated below (or if
no number is indicated below, all Shares) held by you for the account of the
undersigned, upon the terms and subject to the conditions set forth in the
Offer.
Number of Common Shares to Be Tendered(*)
Dated: ____________
--------------------------------------
--------------------------------------
Signature(s)
--------------------------------------
Print Name(s)
--------------------------------------
--------------------------------------
Print Addresses(es)
--------------------------------------
Area Code and Telephone Number
--------------------------------------
Tax ID or Social Security Number
- ------------------------
* Unless otherwise indicated, it will be assumed that all Shares held by us
for your account are to be tendered.
4
[SIMON PROPERTY GROUP LOGO]
January 15, 2003
DEAR TAUBMAN CENTERS SHAREHOLDER:
Simon Property Group (NYSE: SPG) has today increased its cash tender offer
to acquire all outstanding common shares of Taubman Centers, Inc. (NYSE: TCO) to
a price of $20.00 per share.
We are also pleased to announce that Westfield America, Inc., the U.S.
subsidiary of Westfield America Trust (ASX: WFA), has joined us in this offer.
SPG has worked successfully with Westfield in the past and produced significant
value for all shareholders involved--we are confident we can do so again with
TCO.
This increased cash offer represents a:
- 50% PREMIUM over TCO's price before SPG first made a written acquisition
proposal
- 25% PREMIUM over TCO's closing price yesterday
- 25% PREMIUM over the highest closing price in TCO's 10-year history before
SPG's proposal
This all-cash offer is not conditioned on due diligence or financing. Nor is
it conditioned on participation by the limited partners of Taubman Realty Group
operating partnership.
IF YOU WANT $20.00 PER TCO SHARE IN CASH, YOU MUST TENDER NOW
If you want the opportunity to receive $20.00 in cash for your TCO shares,
you must tender your shares. UNLESS AT LEAST TWO-THIRDS, OR APPROXIMATELY
35 MILLION, OF TCO'S APPROXIMATELY 52.2 MILLION OUTSTANDING COMMON SHARES, ARE
TENDERED BY FEBRUARY 14, 2003, WE WILL WITHDRAW OUR OFFER AND TERMINATE OUR
EFFORTS TO ACQUIRE TCO.
SEND A MESSAGE TO THE TCO BOARD
Despite the compelling premium being offered, your Board has thus far
refused to even discuss a transaction because the Taubman family--which owns
approximately 1% of TCO's common shares--opposes a sale. The public shareholders
of TCO--who own approximately 99% of TCO's common shares--should be the ones to
decide whether to accept our premium all-cash offer. TENDERING YOUR SHARES BY
FEBRUARY 14 IS THE ONLY WAY FOR YOU TO TELL YOUR BOARD THAT YOU DEMAND THAT
OPPORTUNITY.
Remember, TCO shares were trading at only $13.32 before SPG first offered to
acquire TCO. WE ARE OFFERING YOU $20.00 IN CASH--TCO HAS FAILED TO OFFER YOU ANY
CREDIBLE ALTERNATIVE TO DELIVER COMPARABLE IMMEDIATE VALUE.
SPG AND WESTFIELD ARE JOINING TOGETHER TO ACQUIRE TCO--
BUT WE NEED YOUR SUPPORT
Your Board is standing in the way of you receiving $20.00 per share. SHOW
THEM YOU OBJECT. With strong shareholder support, we are confident the offer can
be successfully completed.
Stand up and be counted. TENDER YOUR SHARES TODAY--and send a clear message
to the TCO Board. If you need information or assistance with tendering, please
call MacKenzie Partners toll-free at (800) 322-2885.
Very truly yours,
DAVID SIMON,
CHIEF EXECUTIVE OFFICER
EXHIBIT 99(a)(5)(J)
EXECUTION COPY
Offer Agreement (this "AGREEMENT"), dated as of January 15, 2003,
between Westfield America, Inc., a Missouri corporation ("W"), Simon Property
Group, Inc., a Delaware corporation ("S") and Simon Property Acquisitions, Inc.,
a Delaware corporation (the "PURCHASER").
W I T N E S S E T H:
--------------------
WHEREAS, S has formed the Purchaser for the purpose of making a cash
tender offer to acquire all of the shares of the issued and outstanding common
stock, $0.01 par value (the "TARGET SHARES"), of T, a corporation organized
under the laws of Michigan (the "TARGET") for $20.00 per share, net to the
seller in cash (the "OFFER");
WHEREAS, W has agreed to participate in the Amended Offer (as defined
below);
WHEREAS, it is proposed that upon Successful Completion of the Amended
Offer, W (or its designated assignee) will subscribe for shares of the Purchaser
(or its designated assignee);
WHEREAS, following the consummation of the Amended Offer, S and W (i)
will jointly control the Purchaser and the Target Shares purchased in the
Amended Offer and (ii) currently intend to cause Purchaser (or its designated
assignee) to consummate a merger or similar business combination with Target;
WHEREAS, W and S desire to set forth certain agreements relating to the
Amended Offer, their joint acquisition of the Target Shares and their joint
control over the Purchaser, the Target and the underlying Target business;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, W and S hereby agree as follows:
ARTICLE I
DEFINED TERMS
1.01 DEFINED TERMS. Capitalized terms used herein without definition
shall have the meanings ascribed to them in S's Offer to Purchase, dated
December 5, 2002, as amended from time to time. In addition, the following terms
shall have the meanings ascribed thereto in this Section 1.01:
(a) "AMENDED OFFER" shall have the meaning ascribed to it in
Section 2.01(a).
(b) "AMENDED OFFER PRICE" shall be $20.00 per Target Share.
(c) "EXPIRATION DATE" shall mean the date that the Offer expires.
(d) "OFFER DOCUMENTS" shall mean all of the documentation
distributed to Target's shareholders or otherwise publicly filed in connection
with the Offer.
(e) "OPERATING PARTNERSHIP" shall mean The Target Realty Group
Limited Partnership.
(f) "PURCHASER" shall have the meaning ascribed to it in the first
recital hereto or any designated assignee or successor of such entity.
(g) "S LITIGATION" shall have the meaning ascribed to it in
Section 2.02(a).
(h) "SUCCESSFUL COMPLETION" means the satisfaction or waiver of
all of the conditions to the Amended Offer.
(i) "OFFER" shall have the meaning ascribed to it in the first
recital hereto.
ARTICLE II
THE AMENDED OFFER
2.01 AMENDED OFFER TO PURCHASE.
(a) As promptly as practicable following the execution hereof, the
Offer will be amended to, among other things, add relevant information with
respect to W, increase the purchase price per Target Share to the Amended Offer
Price and extend the expiration date thereof to midnight (New York City time) on
February 14, 2003 (as further amended from time to time in accordance with this
Agreement, the "AMENDED OFFER"). S and W will agree to the form and content of
information to be provided to Target shareholders in connection with the Amended
Offer.
(b) Each of S and W agrees that the information provided by it for
use in the Offer Documents will be true and correct in all material respects and
will comply in all material respects with the provisions of applicable federal
securities laws. Each of S and W agrees to indemnify one another for any damage
resulting from such information which is inaccurate, incomplete or misleading.
(c) Each of S and W agrees promptly (i) to correct any information
provided by it for use in the Offer Documents if and to the extent that such
information shall have become false or misleading in any material respect and
(ii) to supplement the information provided by it specifically for use in the
Offer Documents to include any information that shall become necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
-2-
(d) S (with W's cooperation) shall take all steps necessary to
file with the Commission all documents with respect to the Amended Offer and to
disseminate the Offer Documents to the holders of Target Shares, in each case as
and to the extent required by applicable federal securities laws.
(e) S agrees to provide W and its counsel with any comments,
whether written or oral, that the Purchaser or its counsel may receive from time
to time from the Commission or its staff with respect to the Offer Documents.
2.02 DECISION-MAKING IN RELATION TO THE AMENDED OFFER. All
decisions with respect to the Amended Offer including any amendment thereto
shall be made jointly by S and W. Such decisions shall include but not be
limited to: (i) extending the Expiration Date, (ii) satisfaction or waiver of
the conditions to the Amended Offer and accepting the tendered shares or
(iii) amending or modifying any other term of the Amended Offer. All
decisions relating to the current pending litigation between S and Target
(the "S LITIGATION") shall be made by S following consultation and/or notice
(as appropriate) to W.
ARTICLE III
THE PURCHASER
3.01 FORMATION.
(a) S hereby represents and warrants to W that the Purchaser is a
recently formed corporation with no liabilities (other than its obligations
under the Offer) and S is the registered and beneficial owner of all of the
issued and outstanding shares of the Purchaser. S has good title to the issued
and outstanding shares of the Purchaser free and clear of all encumbrances.
Except for activities associated with the Offer (including the S Litigation),
Purchaser has not engaged in any business or activities of any kind whatsoever.
(b) Promptly following Successful Completion, W (or a designated
assignee which is a subsidiary of W) will subscribe for equity interests in the
Purchaser at a purchase price equal to 50% of the aggregate price paid by
Purchaser in the Amended Offer to acquire Target Shares, which purchase price
shall be paid in cash at the time of such subscription and shall be immediately
distributed by Purchaser to S or S's designee. W hereby represents and warrants
to S that it will have funds sufficient to pay for such equity interests. The
authorized capital stock or similar equity interests or units of the Purchaser
will consist solely of two classes with identical economic and other rights.
Following Successful Completion of the Amended Offer and the subscription by W,
the Purchaser will be owned 50% by S and 50% by W. Neither W nor S will be
permitted to sell their shares in Purchaser to any third party, other than
transfers following or concurrent with Successful Completion to a majority owned
subsidiary of such entity.
-3-
(c) If and to the extent that additional equity or partnership
interests in the Target (other than the Target Shares) or its subsidiaries are
acquired, W and S shall each contribute 50% (or such other percentage as may be
agreed upon by W and S) of such purchase price, in a form and on terms and
conditions to be agreed upon by W and S at such time.
3.02 GOVERNANCE
(a) Subject to subsection (c) below, each of S and W will have
joint decision-making authority with respect to matters relating to the
Purchaser and its subsidiaries, including matters concerning the structure,
governance and activities thereof. In furtherance of the foregoing, S will not
take any action prior to the subscription by W of shares of the Purchaser
concerning the structure, governance or activities of the Purchaser, without the
prior agreement of W.
(b) Following the subscription by W of shares of the Purchaser
described in Section 3.01 above, each of the parties will have and may exercise
a 50% voting interest in the Purchaser (which may also be held in one or more
designated assignees each of which is a subsidiary of such party) and will have
the right to appoint 50% of the Purchaser's directors or similar governing
representatives. All Purchaser executive appointments will be subject to
approval by the board of directors or similar governing body of the Purchaser.
In addition, the parties will establish a protocol for the management of the
Purchaser as well as a list of those items that will require board approval. The
provisions of this paragraph will apply equally to the governance of the Target
following the consummation of the Amended Offer in order to effectuate the
transactions contemplated hereby (including on-going operation of Target's
assets).
(c) S and W intend, following Successful Completion, to allocate
economic interests in, responsibility for, and management of, the Target
properties (subject to existing contractual rights and limitations) and the
Target's interest therein on a basis to be agreed, and will negotiate mutually
agreeable arrangements implementing any such allocation.
ARTICLE IV
EXPENSES
4.01 Except as set forth in Section 4.02, all fees, costs and
expenses incurred in connection with the Offer, this Agreement and the
transactions contemplated hereby (including all such fees, costs and expenses
incurred by W and S through the date hereof), shall be paid by the party
incurring such fees, costs and expenses; provided, however, that W shall
reimburse S for $500,000 of S's out of pocket expenses incurred to date.
4.02 All fees, costs and expenses incurred in connection with the
Offer, this Agreement and the transactions contemplated hereby by W and S
after the date hereof, and all fees, costs and expenses incurred in
connection with the Offer, this Agreement and the transactions contemplated
hereby by the parties in the event of Successful
-4-
Completion regardless of when incurred, shall be shared by W and S on a 50/50
basis, subject to adjustment based on the ultimate allocation as per Section
3.02(c).
ARTICLE V
ADDITIONAL AGREEMENTS
5.01 BEST EFFORTS; COOPERATION. Upon the terms and subject to the
conditions hereof, each of S and W agrees to use its reasonable best efforts
to take or cause to be taken all actions and to do or cause to be done all
things necessary, proper or advisable to consummate the transactions
contemplated by this Agreement (including, but not limited to, coordinating
their actions in all respects concerning the acquisition of the Target
Shares) and shall use their respective reasonable best efforts to obtain all
necessary waivers, consents and approvals and to effect all necessary filings
and enter into all appropriate documentation required to consummate the
transactions contemplated hereby. The parties hereto shall cooperate on a
joint basis in responding to inquiries from, and making presentations to, the
Target, Target shareholders and regulatory authorities and any and all
communications from the Target, Target shareholders and regulatory
authorities received by the Purchaser, W and/or S shall be made available
immediately to the parties hereto.
5.02 DISCLOSURE. Any written news releases and any other
disclosure required to be filed with, or provided to, any governmental
authority or stock exchange (other than routine information) pertaining to
this Agreement or the transactions contemplated hereby will be reviewed by
and agreed upon by both S and W prior to release, subject to requirements of
law.
ARTICLE VI
MISCELLANEOUS
6.01 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered or sent by facsimile, in each case to the
parties at their respective executive offices.
6.02 HEADINGS. The headings contained in this Agreement are for
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
6.03 SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties
-5-
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
6.04 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written
and oral.
6.05 ASSIGNMENT. No party may assign this Agreement without the
consent of the other party; provided that a party may assign its rights
hereunder to an affiliate, but no such assignment shall relieve the assignor of
any of its obligations hereunder.
6.06 NO THIRD-PARTY BENEFICIARIES. This Agreement shall be binding
upon W and S and shall inure to the sole benefit of W and S, and their
respective successors, heirs, legal representatives and permitted assigns.
Nothing herein, express or implied, is intended to or shall confer upon any
other person or entity any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
6.07 AMENDMENT; WAIVER. This Agreement may not be amended or
modified except by an instrument in writing signed by each of W and S.
6.08 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any state or federal court sitting in the City of New York, and
the parties hereto hereby irrevocably submit to the exclusive jurisdiction of
such courts in any such action or proceeding and irrevocably waive the defense
of an inconvenient forum to the maintenance of any such action or proceeding.
6.09 COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by the parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
6.10 TERMINATION. This Agreement shall terminate upon expiration of
the Amended Offer or upon the agreement of the parties hereto. In the event of
termination of this Agreement as provided in this Section 6.10, this Agreement
shall forthwith become void and have no effect, without any liability or
obligation on the part of S and W, except that Article IV shall continue in
effect and except that nothing herein shall relieve any party for breach of any
of its representations, warranties, covenants or agreements set forth in this
Agreement.
-6-
IN WITNESS WHEREOF, W, S and the Purchaser have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
WESTFIELD AMERICA, INC.
By: /s/ Peter S. Lowy
-------------------------------------
Name: Peter S. Lowy
Title: President and Chief Executive
Officer
SIMON PROPERTY GROUP, INC.
By: /s/ David Simon
-------------------------------------
Name: David Simon
Title: Chief Executive Officer
SIMON PROPERTY ACQUISITIONS, INC.
By: /s/ James M. Barkley
-------------------------------------
Name: James M. Barkley
Title: Secretary and Treasurer
[Signature Page to Offer Agreement]
EXHIBIT 99(a)(5)(K)
January 15, 2003
CONFIDENTIAL
Westfield America Limited Partnership
11601 Wilshire Boulevard
12th Floor
Los Angeles, CA 90025
Attention: Mark Stefanek
Re: LONESTAR
Ladies and Gentlemen:
Deutsche Bank AG, Cayman Islands Branch ("DB AG") and UBS AG,
Stamford Branch ("UBS") (collectively, the "INITIAL LENDERS") are pleased to
provide Westfield America Limited Partnership ("WALP") with our several
financing commitments ("each a COMMITMENT", and collectively, the "COMMITMENTS")
for a six month (subject to extensions as provided in the Term Sheet referenced
below) term credit facility in an aggregate amount of up to US$550 million (the
"FACILITY"), subject to (i) WALP's acceptance of this Commitment Letter; (ii)
satisfaction of the terms and conditions set forth in the Term Sheet attached
hereto as EXHIBIT A and incorporated herein by reference; and (iii) the
additional terms and conditions otherwise set forth herein and the Fee Letters
referenced below.
In connection with the Facility, Deutsche Bank Securities Inc.
and UBS Warburg LLC are pleased to act as the co-lead arrangers and joint book
running managers (collectively, the "CO-LEAD ARRANGERS"), UBS Warburg LLC is
pleased to act as syndication agent (the "SYNDICATION AGENT"), and DB AG is
pleased to act as administrative agent (the "AGENT").
Subject to the satisfaction of the conditions contained in
this Commitment Letter, including, without limitation, the coordinated and
concurrent closing of each Commitment, each of DB AG and UBS severally commits
to lend up to one-half of the Facility, each on the terms and conditions
referred to herein and in the attached Exhibits.
Capitalized terms used but not otherwise defined herein have
the meanings set forth in the Term Sheet.
1. COMMITMENT CONDITIONS. This Commitment and the funding of
the Facility prior to the Termination Date (as defined below) are subject to
satisfaction of the following
conditions precedent, and such other conditions precedent as are customary for
transactions of this type, all as determined by Initial Lenders and Co-Lead
Arrangers:
(a) The formation of the Westfield Acquisition Vehicle as a
bankruptcy remote single purpose entity wholly owned, directly or indirectly, by
WALP (together with WALP, the "BORROWER").
(b) Approval of all aspects of the Lonestar Acquisition and
the principal documents governing the Lonestar Acquisition.
(c) Approval of the organizational structure, control
provisions and organizational documents of the Borrower, Guarantor, Westfield
Acquisition Vehicle and the Westfield Acquisition Vehicle's principal
subsidiaries and joint ventures, including any entity in which Westfield
Acquisition Assets will be held and, if applicable, the Lone Star Newco and the
Lone Star OP (such entities are referred to collectively as the "BORROWER
PARTIES").
(d) Concurrent closing of the Lone Star Acquisition;
(e) The preparation, execution and delivery of loan
documentation, opinions of Borrower's counsel covering such matters as Initial
Lenders may require in good faith, and all other contracts, instruments, addenda
and documents deemed necessary by Initial Lenders to evidence the Facility
("LOAN DOCUMENTS"). In preparing the Loan Documents, Initial Lenders and
Administrative Agent will give due consideration to the terms of the credit
agreement entered into by WALP and Deutsche Bank Trust Company Americas with
regard to WALP's existing $245 million credit facility (the "GROWTH CREDIT
AGREEMENT"), subject to appropriate underwriting factors applicable to this
transaction and the results of Lender's due diligence.
(f) The absence of (i) any change, occurrence, or development
that could, in the good faith opinion of Administrative Agent or Initial
Lenders, have a material adverse effect on the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Borrower,
the Guarantor or the Westfield Acquisition Assets;
(g) Satisfaction with the results of all legal, business, and
financial due diligence; including (i) all aspects of the Westfield Acquisition
Assets, and the Westfield Acquisition Vehicle's acquisition thereof; (ii) all
material contracts and agreements of the Borrower Parties; and (iii) tax, REIT,
ERISA, and other regulatory matters affecting the Borrower Parties.
(h) The absence of any events which would constitute a default
under the Loan Documents, including any material inaccuracy of any
representations and warranties made by any Borrower Party in the Loan Documents.
2
(i) Delivery of such consents and approvals as may be
necessary or appropriate to consummate the transactions contemplated herein.
(j) Payment of all Agreed Fees (as defined below) and expenses
as provided herein.
(k) The absence of any default by WALP or its affiliates under
this Commitment Letter.
(l) Full compliance of the proposed transaction with
Regulation U and all other applicable bank regulations.
(m) The Loan Documents shall have been fully executed and
delivered by the Borrower Parties and all conditions precedent to the closing of
the Facility as contemplated herein shall have been fully satisfied
(collectively, the "CLOSING" and the date upon which the Closing occurs, the
"CLOSING DATE") no later than July 14, 2003 (the "TERMINATION DATE").
2. SYNDICATION AND COOPERATION. Initial Lenders may assign all
or any of their portion of the Commitments to additional Lenders, before or
after Closing. DBSI (either directly or through its affliates) and UBS Warburg
LLC (in such capacity, the "SYNDICATORS") will manage all aspects of the
syndication, including the timing of all offers to potential Lenders and the
acceptance of commitments, the amounts offered and the compensation provided.
Syndicators will consult with WALP concerning the syndication, but all final
decisions regarding same shall be made by Syndicators. Syndicators and each
Lender shall have the right, before or after the Closing, to sell, assign,
syndicate, participate, or transfer any portion of the Facility and the Loan
Documents to one or more investors (other than any direct competitor of WALP or
any of its affiliates that is a nationally recognized publicly-traded regional
shopping mall company). Whether prior to or after the Closing, WALP agrees to
take all actions as Syndicators may reasonably request to assist Syndicators in
forming a syndicate acceptable to them. WALP's assistance in forming such a
syndicate shall include but not be limited to: (i) making its senior management
and representatives and senior management and representatives of the Guarantor
available to participate in informational meetings with potential Lenders at
such times and places as Syndicators may reasonably request; (ii) using its
reasonable efforts to ensure that the syndication efforts benefit from its
lending relationships; and (iii) providing Syndicators with all information that
currently exists or could reasonably be obtained and is reasonably deemed
necessary to successfully complete the syndication.
Syndicators, Co-Lead Arrangers, Initial Lenders and each other
Lender, if any, may freely discuss the Facility contemplated hereby and any
other potential transactions with any and all of its affiliates, any prospective
lender or participant, and may freely disclose to any such affiliate,
prospective lender or participant any and all information at any time provided
to Agent or any other Lender by or on behalf of Borrower, Guarantor, or any of
their subsidiaries or
3
affiliates. It is understood and agreed that any such disclosure shall be
subject to customary confidentiality provisions reasonably acceptable to you.
3. FEES. WALP agrees to pay the fees set forth in the separate
fee letters (the "FEE LETTERS") dated the date hereof with Initial Lenders and
Agent in accordance with the terms of the Fee Letters (the "AGREED FEES"). The
effectiveness of this Commitment is subject to WALP's payment of (i) the Initial
Underwriting Fee specified in the Fee Letters in immediately available funds on
or before the Expiration Date specified below; and (ii) the Second Underwriting
Fee and Final Underwriting Fee at the times and subject to the conditions
specified in the Fee Letters.
4. INDEMNIFICATION; EXPENSES. WALP agrees to indemnify and
hold harmless Agent, Co-Lead Arrangers, the Syndication Agent, each Lender and
each of the other Indemnified Persons identified and as set forth in the
indemnification provisions attached as Exhibit B hereto (the "INDEMNIFICATION
PROVISIONS") and hereby made a part hereof as though fully set forth herein.
In further consideration of the issuance of this Commitment
Letter, and recognizing that in connection herewith Co-Lead Arrangers and
Initial Lenders are incurring substantial costs and expenses in connection with
the documentation of the Commitments and the Facility, due diligence,
syndication, and underwriting with respect to the proposed Facility, including,
without limitation, fees and expenses of counsel, transportation, duplication
and printing, third party consultant costs, and search fees, WALP agrees to pay
such reasonable out-of-pocket, third party costs and expenses (whether incurred
before or after the date hereof), regardless of whether any loan documentation
is entered into, the Closing occurs, or the transactions contemplated hereunder
are consummated; provided, however, that if the Closing does not occur solely as
a result of Initial Lenders' default under the terms of this Commitment Letter,
then all such costs and expenses shall be borne by Initial Lenders and Co-Lead
Arrangers, as applicable.
5. DISCLOSURE. WALP agrees that this Commitment Letter is for
its confidential use only and will not be disclosed by WALP to any person other
than its investors, affiliates, accountants, attorneys and other advisors, and
then only on a "need to know" basis in connection with the Facility and on a
confidential basis. Notwithstanding the foregoing, following its acceptance
hereof, and subject to the following sentence, WALP and its affiliates may: (i)
make public disclosure of the existence of the Commitments, (ii) file a copy of
this Commitment Letter in any public record in which it is required by law to be
filed, (iii) make such other public disclosures of the terms and conditions
hereof as WALP is required by law to make; and (iv) disclose this Commitment
Letter or the terms hereof to any party to the Lone Star Acquisition and to the
employees, officers, directors, accountants, attorneys and other advisors of any
such party, to the extent required in the Lone Star Acquisition Agreement.
Except as required by law,
4
WALP shall not issue any press release or similar public disclosure related to
the Facility without the prior written consent of Initial Lenders (such consent
shall not be unreasonably withheld).
WALP represents and warrants that (i) all information that has
been or will hereafter be made available by WALP or any of its representatives
in connection with the Facility to Co-Lead Arrangers, Initial Lenders, any
Lender, any potential Lender, or any of their representatives (collectively, the
"LENDER PARTIES"), is and will be, to the best of its knowledge, complete and
correct in all material respects and does not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein, taken as a whole, not misleading in
light of the circumstances under which such statements were or are made and (ii)
all financial projections, if any, that have been or will be prepared by WALP,
Guarantor, or any of their representatives and made available to the Lender
Parties in connection with the financing contemplated hereby have been or will
be prepared in good faith based upon reasonable assumptions. WALP agrees to
supplement the information and projections from time to time prior to the
Closing so that the representations and warranties contained in this paragraph
remain complete and correct.
6. EXPIRATION AND TERMINATION OF COMMITMENT. This Commitment
shall: (i) expire if not countersigned and returned to the undersigned prior to
the Expiration Date; and (ii) terminate if the Closing does not occur prior to
the Termination Date. WALP's obligations under Sections 3, 4, and 5 relating to
fees, indemnification, costs and expenses and confidentiality shall survive the
expiration or termination of this Commitment and the provisions in Section 2
relating to syndication shall survive the Closing and shall have the same force
and effect as if incorporated directly in the Facility Credit Agreement.
7. MISCELLANEOUS: The following provisions shall be applicable
both to this Commitment Letter and to the Fee Letters.
RELIANCE ON INFORMATION. In undertaking the Commitments,
Initial Lenders are relying and will continue to rely, without independent
verification, thereof, on the accuracy of the information furnished to us by
WALP and Guarantor, or on their behalf, and the representations and warranties
made by WALP herein. We may also rely on any publicly available information
issued or authorized to be issued by Borrower, the Guarantor, or any of their
subsidiaries or affiliates. We have no obligation to investigate, and have not
undertaken any independent investigation of, any information or materials,
public or otherwise, made available by Borrower, Guarantor, or any of their
subsidiaries or affiliates. The obligations of Initial Lenders under this
Commitment Letter and of any Lender that issues a portion of the Commitments for
the Facility are made solely for the benefit of the Borrower and may not be
relied upon or enforced by any other person or entity.
COMPLETE AGREEMENT; WAIVERS AND OTHER CHANGES TO BE IN
WRITING. This Commitment Letter supersedes all previous negotiations, agreements
and other understandings
5
relating to the Facility, including, without limitation, previous discussions
regarding the terms contained on the attached Exhibits. Please note, however,
that the terms and conditions to be set forth in the Loan Documents are not
limited to those set forth herein or in the attached Exhibits. Those matters
that are not covered or made clear herein or in the attached Exhibits are
subject to mutual agreement of the parties. No alteration, waiver, amendment or
supplement of or to this Commitment Letter or the Fee Letters shall be binding
or effective unless the same is set forth in a writing signed by a duly
authorized representative of each party hereto or thereto.
POWER, AUTHORITY AND BINDING EFFECT. Each of the parties
hereto represents and warrants to each of the other parties hereto that (i) it
has all requisite power and authority to enter into this Commitment and the Fee
Letters and (ii) each of this Commitment Letter and the Fee Letters has been
duly and validly authorized by all necessary corporate action on the part of
such party, has been duly executed and delivered by such party and constitutes a
legally valid and binding agreement of such party, enforceable against it in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally.
TIME OF ESSENCE. Time shall be of the essence whenever
and wherever a date or period of time is prescribed or referred to in this
Commitment.
GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. This Commitment shall be governed by and construed in accordance with
the laws of the State of New York.
EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT TO TRIAL
BY JURY WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF
THIS COMMITMENT OR THE TRANSACTIONS OR THE MATTERS CONTEMPLATED BY THIS
COMMITMENT. EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
FEDERAL AND NEW YORK COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH
ANY DISPUTE RELATED TO THIS COMMITMENT, THE TRANSACTIONS CONTEMPLATED BY THIS
COMMITMENT OR ANY MATTERS RELATED TO THIS COMMITMENT. IN THE EVENT OF
LITIGATION, THIS LETTER MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
NO RIGHTS OR LIABILITY. Neither this Commitment Letter
nor the Fee Letters creates, nor shall any of them be construed as creating, any
rights enforceable by a person or entity not a party hereto, except as provided
in the indemnification provisions. WALP, on behalf of itself and each other
Borrower Party, acknowledges and agrees that: (i) none of the Lender Parties is,
nor shall any one of them be construed as, a fiduciary or agent of any Borrower
Party or any other person and shall have no duties or liabilities to any such
person's equity holders or creditors by virtue of this Commitment Letter or the
Fee Letters, all of which are
6
hereby expressly waived; (ii) none of the Lender Parties shall have any
liability (including, without limitation, liability for any losses, claims,
damages, obligations, penalties, judgments, awards, liabilities, costs, expenses
or disbursements resulting from any negligent act or omission of any of them),
whether direct or indirect, in contract, tort or otherwise, to Borrower,
Guarantor or any other Borrower Party (including, without limitation, their
respective equity holders and creditors) or any other person for or in
connection with this Commitment Letter, the Fee Letters or the Facility, except
that a claim in contract for actual direct damages directly and proximately
caused by (A) a breach of any contractual obligation expressly set forth in any
written agreement signed by the party against which enforcement of such claim is
sought or (B) the gross negligence or willful misconduct of any Indemnified
Person, shall not be impaired hereby; and (iii) the Initial Lenders were induced
to enter into this Commitment Letter and the Fee Letters by, inter alia, the
provisions in Sections 3, 4, and 7 herein.
NO LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES. No party hereto shall ever be liable for any special, indirect
or consequential damages or, to the fullest extent that a claim for punitive
damages may lawfully be waived, for any punitive damages on any claim (whether
founded in contact, tort, legal duty or any other theory of liability) arising
from or related in any manner to this Commitment Letter or the negotiation,
execution, administration, performance, breach, or enforcement of this
Commitment Letter or the instruments and agreements evidencing, governing or
relating to the Facility contemplated hereby or any amendment thereto or the
consummation of, or any failure to consummate, the Facility or any act,
omission, breach or wrongful conduct in any manner related thereto.
COUNTERPARTS. This Commitment Letter may be executed in
one or more counterparts, each of which shall constitute an original, and all of
which together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Commitment Letter by facsimile shall be effective
as delivery of a manually executed counterpart of this Commitment Letter.
7
CERTAIN UNDEFINED TERMS. Due to the sensitive nature of
some of the information associated with the Lone Star Acquisition, that term and
various other related terms have not been specifically defined in this
Commitment Letter. Following the issuance of a press release by WALP with regard
to the proposed Lone Star Acquisition, the parties agree to promptly revise this
Commitment Letter to define such terms and clarify any related matters.
8
Please evidence WALP's acceptance of the provisions of this
Commitment, including, without limitation, the attached Exhibits, by (i) signing
the enclosed copy of this Commitment Letter; (ii) signing the Fee Letters; and
(iii) returning the signed Commitment Letter and Fee Letters to the undersigned,
together with payment of the Initial Underwriting Fee, at or before 5:00 P.M.
(New York City time) on January 15, 2003 (the "EXPIRATION DATE"), the time at
which the Commitments (if not so accepted prior thereto) will expire.
Very truly yours,
DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH
By: /s/ Steven P. Lapham
------------------------
Name: Steven P. Lapham
----------------------
Its: Director
----------------------
UBS AG, STAMFORD BRANCH
By: /s/ David A. Juge
----------------------
Name: David A. Juge
----------------------
Title: Managing Director
----------------------
By: /s/ Oliver Trumbau
-----------------------
Name: Oliver Trumbau
----------------------
Title: Director
----------------------
ACCEPTED this __day
of January, 2003
WESTFIELD AMERICA LIMITED PARTNERSHIP, a Delaware limited
partnership
By: WESTFIELD AMERICA, INC., a
Missouri corporation, its
General Partner
By: /s/ Mark Stefanek
---------------------------
Name: Mark Stefanek
-------------------------
Title: CFO and Treasurer
-------------------------
9
EXHIBIT A
TERM SHEET
BORROWER: Westfield America Limited Partnership ("WALP") and
a newly created, bankruptcy remote, single purpose
entity wholly owned, directly or indirectly, by
WALP ("Westfield Acquisition Vehicle")(WALP and
Westfield Acquisition Vehicle are referred to
hereinafter, collectively, as "Borrower").
Westfield Acquisition Vehicle shall own directly
or indirectly 100% of all the assets to be
allocated to Westfield (referred to hereinafter as
the "Westfield Acquisition Assets") in connection
with the Lone Star stock acquisition ("Lone Star
Acquisition"). In the event the acquisition of the
Westfield Acquisition Assets is structured through
a synthetic partnership with Simon Properties and
the Minority Holders, the transaction (the
"Alternative Structure") shall comply with the
additional terms set forth in ATTACHMENT A hereto.
GUARANTOR: Westfield America Inc. ("Guarantor") shall provide
an unconditional guaranty of all obligations
incurred by the Borrower under the Facility.
FACILITY AMOUNT: Up to US$550 million, subject to reduction based
on the percentage of the shares actually acquired
and allocated to Westfield in connection with the
Lone Star Acquisition.
FACILITY: An interim, term facility to be fully funded (the
amount funded, the "Funded Amount"), upon
satisfaction of all conditions precedent, at
closing. Upon payment or prepayment no portion of
the Facility may be re-borrowed.
PURPOSE: Proceeds from the Facility shall be used to
finance the direct or indirect acquisition of the
Westfield Acquisition Assets.
TERM: Six months from the Closing Date, subject to
extension as provided below.
10
EXTENSION: Two (2) six-month extensions upon satisfaction of
customary conditions, including the following: (i)
payment of the extension fee specified below; (ii)
no event of default, or uncured monetary default,
default under any negative covenant, or other
material non-monetary default ; (iii) prepayment
of the Facility so the principal balance is no
greater than 85% of the Funded Amount on the first
extension date, and the principal balance is no
greater than 50% of the Funded Amount on the
second extension date; (iv) ratification of the
transaction by all guarantors and pledgors.
INTEREST RATE: The Applicable Margin plus, at the Borrower's
election, one, two, three or six-month LIBOR
calculated on an actual/360 day basis. During the
initial term the Applicable Margin shall be 2.50%,
during the first extension period, the Applicable
Margin shall be 3.00%, and during the second
extension period, the Applicable Margin shall be
3.50%. The Credit Agreement shall contain
customary provisions for an Alternative Base Rate
equal to the Applicable Margin plus the greater of
prime or the federal funds rate plus 50 basis
points. Notwithstanding the foregoing, during the
first three (3) loan months, Borrower may only
select one month LIBOR.
In no event will interest accrue at less than
3.90% per annum during the initial term, 4.40% per
annum during the first extension period, and 4.90%
per annum during the second extension period.
EXTENSION FEE: Each term extension option shall be subject to the
payment of an extension fee equal to 0.25%
multiplied by the outstanding principal amount of
the Facility on the respective extension date.
RECOURSE: The Facility shall be fully recourse to the
Borrower and Guarantor.
SECURITY: Lenders shall receive a pledge of WALP's ownership
interest in Westfield Acquisition Vehicle
VOLUNTARY REPAYMENTS: The Borrower shall be permitted to repay all or a
portion of the Facility at any time without
penalty, subject to LIBOR breakage costs and
customary administrative procedures.
11
MANDATORY REPAYMENTS: The Borrower shall be required to repay the
principal amount of the Facility: (i) dollar for
dollar in the amount of 100% of net proceeds
(without duplication) from any debt or equity
issuances by Westfield America Trust ("WAT"),
Guarantor (including issuances to WAT , and net
proceeds from such issuances shall include sums
contributed to Guarantor by WAT from debt or
equity issuances by WAT), Borrower or any of
Borrower's subsidiaries (the "Borrower Related
Parties"); provided however that the following
shall be exempt from the mandatory prepayment
requirement: (A) the acquisition of additional
Capital Stock of WEA by Westfield America Trust
pursuant to the Stock Subscription Agreement dated
as of May 29, 1998; (B) customary dividend
reinvestment activities with respect to WAT, WALP
and WEA pursuant to customary documents relating
thereto (as approved by Initial Lenders); and (C)
construction loans incurred in conjunction with
the redevelopment of existing properties (and in
the ordinary course of the business activities) of
the Borrower Related Parties; (D) prepayments
required pursuant to the Growth Credit Agreement
(defined below); and (E) the issuance of operating
partnership interests by WALP as consideration for
the acquisition of additional properties; and (ii)
dollar for dollar in the amount of 100% of net
proceeds allocable (directly or indirectly) to
Westfield Acquisition Vehicle, after payment of
applicable sums due under the relevant senior loan
documents, including applicable release payments,
from the sale, refinancing, or other specified
disposition of the Westfield Acquisition Assets.
INFORMATION: The Guarantor and Borrower shall provide the
Administrative Agent, Co-Lead Arrangers, and the
Lenders such additional information as shall be
reasonably requested by them.
REPRESENTATIONS AND Customary for facilities of this type.
WARRANTIES:
AFFIRMATIVE COVENANTS: Customary for facilities of this type.
12
NEGATIVE COVENANTS: Customary for facilities of this type, including
but not limited to the following:
1. Limitations on additional Indebtedness.
Westfield Acquisition Vehicle shall not
incur indebtedness other than the Loan.
2. Limitations on distributions. Neither WALP
nor Guarantor shall make dividends or
distributions (i) during any period in which
an event of default remains outstanding or
(ii) in the aggregate, during any period of
four consecutive quarters, in excess of 100%
of "FFO"; provided however, that in the case
of clause (ii) and non-monetary events of
default, WALP and Guarantor may make
distributions to the extent (but only to the
extent) necessary to maintain REIT status.
So long as an event of default under the
Loan Documents remains uncured, the
Westfield Acquisition Vehicle shall not be
permitted to make any dividends or
distributions to its members. Distributions
in respect of the sale, refinancing, or
other specified disposition of the Westfield
Acquisition Assets shall be subject to the
mandatory payment provisions set forth
above.
3. Amendments. No amendment to organizational
documents of the Borrower or Guarantor
except as otherwise specifically permitted
under the Loan Documents (clarifications,
modifications to permit issuance of more
capital stock, modifications which have no
substantive effect on Lenders).
4. Conduct of Business. All transactions
between the Borrower, Guarantor, and their
affiliates shall be conducted on a basis no
less favorable to the Borrower or Guarantor
than an arm's length transaction would be.
13
5. Transfers and Mergers. Without Initial
Lenders' prior written consent: (i) except
in situations where no Change of Control
shall occur (to be defined in the Credit
Agreement), WALP and Guarantor shall not
consolidate or merge with any Person and
shall not sell, assign, lease or otherwise
dispose of substantially all of its
properties; (ii) Westfield Acquisition
Vehicle shall not enter into any merger,
consolidation, reorganization or liquidation
and shall not sell, assign, lease or
otherwise dispose of substantially all of
its properties; (iii) transfers of interests
in Westfield Acquisition Vehicle shall not
be permitted unless at all times WALP
directly or indirectly owns and controls
100% of the ownership interests in Westfield
Acquisition Vehicle and other customary
conditions to such transfer (notice, absence
of default, approval of applicable
organizational documents, etc.) are
satisfied.
WESTFIELD ACQUISITION Customary for facilities of this type, including
VEHICLE FINANCIAL but not limited to the following types of covenants
COVENANTS: (in each case exclusive of the Facility):
1. Minimum Interest Coverage Ratio.
2. Minimum Fixed Charge Coverage Ratio.
3. Maximum Total Leverage Ratio.
4. Maximum Secured Leverage Ratio.
5. Minimum Net Worth.
6. Minimum Debt Yield Ratio.
14
GUARANTOR FINANCIAL Guarantor financial covenants shall consist of the
COVENANTS: following and shall apply to the Consolidated
Guarantor Group (on a consolidated basis including
WALP and its subsidiaries):
(a) Sum of Guarantor Unrestricted Cash and
Guarantor Cash Equivalents plus the amount of
unused availability under the WALP Secured Line of
Credit shall be maintained in an amount of at
least $25,000,000 as measured on the last day of
each calendar quarter;
(b) Total Guarantor Debt shall not exceed 65% of
Guarantor Capitalized Value at any time;
(c) Ratio of Guarantor EBITDA to Guarantor
Interest Expense for the twelve (12) month period
ending on the last day of each calendar quarter
shall not be less than 1.85 to 1:00;
(d) Ratio of Guarantor Adjusted EBITDA to
Guarantor Fixed Charges for the twelve (12) month
period ending on the last day of each calendar
quarter shall not be less than 1.50x;
(e) Guarantor Shareholders' Funds shall not be
less than $1,250,000,000 as measured on the last
day of each calendar quarter.
(f) Guarantor shall maintain a minimum ratio of
Adjusted EBITDA to Consolidated Indebtedness of
12.50%
(g) Guarantor dividend payout ratio shall not
exceed the greater of (i) 100% of FFO; or (ii) the
minimum amount necessary to maintain REIT status.
HEDGING REQUIREMENT: Not less than 75% of the WALP's consolidated
indebtedness and any other borrowed indebtedness
allocable to the Westfield Acquisition Vehicle
shall be either: (i) fixed rate obligations or
(ii) subject to interest rate hedging
arrangements.
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EVENTS OF DEFAULT: Customary for facilities of this type, including
events of default under other material
indebtedness of the Guarantor and its subsidiaries
(except to the extent, prior to Administrative
Agent's acceleration of the Facility, such
indebtedness is repaid in full or the event of
default in respect of such indebtedness is cured
in accordance with the underlying loan documents).
CO-LEAD ARRANGERS' Morrison & Foerster LLP.
AND AGENT'S COUNSEL
GOVERNING LAW: New York or as determined by Co-Lead Arrangers'
Counsel.
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ATTACHMENT A
ALTERNATIVE STRUCTURE TERMS
THE FOLLOWING TERMS SHALL BE IN ADDITION TO THOSE SET FORTH IN
THE ATTACHED TERM SHEET:
BORROWER: Westfield Acquisition Vehicle shall own
directly 100% of all Westfield-related
ownership interests in a newly formed,
bankruptcy remote limited partnership or
limited liability company ("Lone Star
Newco") by and between the Westfield
Acquisition Vehicle (which will own
approximately a [50%] equity interest), and
affiliates of The Simon Property Group
("Simon," which will own approximately a
[50%] equity interest).
Lone Star Newco shall own directly or
indirectly all of the general partnership
interest in the Lone Star operating
partnership ("Lone Star OP") and all of the
remaining partnership interests not held by
the Minority Holders. The structure,
organizational documents, and all control
and management rights (including any rights
held by the Minority Holders) with respect
to the Lone Star Newco and the Lone Star OP
shall be subject to approval by the Initial
Lenders.
SECURITY: Lenders shall receive a pledge of
Westfield Acquisition Vehicle's ownership
interest in Lone Star Newco.
NEGATIVE PLEDGE The Loan Documents will contain such
specific restrictions on Borrower's
exercise of voting or approval rights
under the Lone Star Newco and/or Lone
Star OP organizational documents as may
be necessary or appropriate to preserve
Westfield Acquisition Vehicle's control
over the Westfield Acquisition Assets.
MANDATORY PREPAYMENT The Borrower shall be required to repay
the principal amount of the Facility
dollar for dollar in the amounts
allocable to Westfield Acquisition
Vehicle from future capital raised by
Lone Star Newco.
RESTRICTIONS OF DISTRIBUTIONS: Subject to such exceptions as the Initial
Lenders shall have approved in
conjunction with their review and
approval of the Lone Star Newco and Lone
Star OP organizational documents, all
distributions by Lone Star OP in respect
of the Westfield Acquisition Assets shall
be passed through to Westfield
Acquisition Vehicle.
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AMENDMENTS TO ORGANIZATIONAL No amendment to organizational documents
DOCUMENTS of the Lone Star Newco except as
otherwise specifically permitted under
the Loan Documents (clarifications,
modifications which have no substantive
effect on Lenders).
TRANSFERS AND MERGERS Without Initial Lenders' prior written
consent, (i) Lone Star Newco and Lone
Star OP shall not consolidate or merge
with any Person and shall not sell,
assign, lease or otherwise dispose of
substantially all of its properties; and
(ii) transfers of Borrower's interests in
Lone Star Newco and Lone Star OP shall
not be permitted unless at all times WALP
directly or indirectly owns and controls
100% of such ownership interests and
other customary conditions to such
transfer (notice, absence of default,
approval of applicable organizational
documents, etc.) are satisfied.
WESTFIELD ACQUISITION VEHICLE The covenants specified in the Term Sheet
FINANCIAL COVENANTS: with respect to the Westfield Acquisition
Vehicle shall apply only to that portion
of Westfield Acquisition Assets owned,
directly or indirectly, by Westfield
Acquisition Vehicle (and not to any
assets allocated to Simon in connection
with the Lone Star Acquisition, or any
portion of the Westfield Acquisition
Assets owned by third parties
unaffiliated with Westfield).
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EXHIBIT B
INDEMNIFICATION PROVISIONS
Capitalized terms used and not otherwise defined herein are used with
the meanings attributed thereto in the Commitment dated January 14, 2003 (the
"COMMITMENT") from Deutsche Bank AG, Cayman Islands Branch ("DB AG") and UBS AG,
Stamford Branch ("UBS") to Westfield America Limited Partnership ("WALP") of
which these Indemnification Provisions form an integral part.
To the fullest extent permitted by applicable law, WALP agrees that it
will, and will cause each of the Borrowers, Guarantor, and the other Borrower
Parties, jointly and severally, to indemnify and hold harmless each of the
Lender Parties and their affiliated entities, directors, officers, employees,
legal counsel, agents, and controlling persons (within the meaning of the
federal securities laws)(all of the foregoing, collectively, the "INDEMNIFIED
PERSONS"), from and against any and all losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses and disbursements,
including, but not limited to, all attorneys fees and legal costs, expenses and
disbursements incurred in respect of any and all actions, suits, proceedings and
investigations, directly or indirectly, caused by, relating to, based upon,
arising out of or in connection with (i) the Facility, (ii) the Commitments, the
Commitment Letter, and the Fee Letters, or (iii) any untrue statement or alleged
untrue statement of a material fact contained in, or omissions or alleged
omissions from any filing with any governmental agency or similar statements or
omissions in or from any information furnished by Borrower or Guarantor or any
of their subsidiaries or affiliates to any of the Indemnified Persons or any
other person in connection with the Facility or the Commitment; provided,
however, such indemnity agreement shall not apply to any portion of any such
loss, claim, damage, obligation, penalty, judgment, award, liability, cost,
expense or disbursement to the extent it is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the gross negligence or willful misconduct of any of
the Indemnified Persons.
These Indemnification Provisions shall be in addition to any liability
which Borrower, Guarantor, or any other Borrower Party may have to the
Indemnified Persons.
If any action, suit, proceeding or investigation is commenced, as to
which any of the Indemnified Persons proposes to demand indemnification, they
shall notify WALP with reasonable promptness; provided, however, that any
failure by any of the Indemnified Persons to so notify WALP shall not relieve
WALP or any other Borrower Party from its obligations hereunder, except to the
extent, but only to the extent, the interests of any Borrower Party are
prejudiced by such failure. Agent, on behalf of the Indemnified Persons, shall
have the right to retain counsel of its choice to represent the Indemnified
Persons, and WALP shall, or shall cause the other Borrower Parties, jointly and
severally, to pay the reasonable fees, expenses and disbursement of such
counsel; and such counsel shall, to the extent consistent with its
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professional responsibilities, cooperate with WALP and other Borrower Parties
and any counsel designated by WALP or other Borrower Parties. Without the prior
written consent of Agent, WALP shall not, and shall not permit any of the other
Borrower Parties to, settle or compromise any claim, or permit a default or
consent to the entry of any judgment in respect thereof, unless such settlement,
compromise or consent includes, as an unconditional term thereof, the giving by
the claimant to each of the Indemnified Persons of an unconditional and
irrevocable release from all liability in respect of such claim.
Neither expiration nor termination of the Commitment shall affect these
Indemnification Provisions which shall then remain operative and in full force
and effect.
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