EXHIBIT 99(D)
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AGREEMENT AND PLAN OF MERGER
DATED AS OF FEBRUARY 14, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇.,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MANAGEMENT LIMITED (ACN 072 780 619),
in its capacity as responsible entity and trustee of
WESTFIELD AMERICA TRUST
AND
MALL ACQUISITION CORP.
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GLOSSARY OF DEFINED TERMS
DEFINED TERMS DEFINED IN SECTION
Acquisition Proposal..............................................................................................10.12(a)
Articles of Merger.....................................................................................................2.2
beneficial ownership..............................................................................................10.12(b)
beneficially own...................................................................................................10.12(b)
Certificate of Merger...............................................................................................2.2(a)
Certificates........................................................................................................3.2(b)
Closing................................................................................................................2.3
Closing Date...........................................................................................................2.3
Code...................................................................................................................3.3
Common Stock......................................................................................................Recitals
Company...........................................................................................................Recitals
Company Board.....................................................................................................Recitals
Company Disclosure Schedule.....................................................................................Article IV
Company Requisite Vote..............................................................................................4.3(b)
Company Securities..................................................................................................4.2(a)
Company Stockholder Meeting.........................................................................................7.1(a)
Covered Transactions...................................................................................................4.9
DGCL...................................................................................................................2.1
Dissenting Shares......................................................................................................3.5
Dissenting Stockholders................................................................................................3.5
Effective Time.........................................................................................................2.2
Estimated First-Quarter Closing Date................................................................................7.11(c)
Estimated Second Quarter Closing Date...............................................................................7.11(d)
Excess Stock........................................................................................................4.2 (a)
Exchange Act.........................................................................................................1.1(a)
Expenses.............................................................................................................9.3(b)
First-Quarter Dividend Amount.......................................................................................7.11(a)
First-Quarter Notice................................................................................................7.11(c)
Financial Advisor...................................................................................................1.2(a)
GAAP...................................................................................................................6.1
Governmental Entity....................................................................................................4.5
Indemnified Parties.................................................................................................7.5(a)
Indemnified Party...................................................................................................7.5(a)
Joinder Date...........................................................................................................7.8
know..............................................................................................................10.12(c)
knowledge.........................................................................................................10.12(c)
Law...............................................................................................................10.12(d)
Lien................................................................................................................4.2(b)
Material Adverse Effect...........................................................................................10.12(e)
Merger.................................................................................................................2.1
Merger Consideration...............................................................................................3.2 (a)
Merger Sub.........................................................................................................Recitals
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DEFINED TERMS DEFINED IN SECTION
MGBCL..................................................................................................................2.1
Offer................................................................................................................1.1(a)
Offer Affiliates..................................................................................................Recitals
Offer Completion....................................................................................................7.11(a)
Offer Documents.....................................................................................................1.3(a)
Offer Price.........................................................................................................1.1(a)
Offer to Purchase...................................................................................................1.1(b)
OP Partnership Agreement...............................................................................................7.12
Parent............................................................................................................Recitals
Paying Agent........................................................................................................3.2(a)
person............................................................................................................10.12(f)
Preferred Stock.....................................................................................................4.2(a)
Pro Rata First-Quarter Dividend Amount..............................................................................7.11(c)
Pro Rata Second Quarter Dividend Amount.............................................................................7.11(d)
Proxy Statement........................................................................................................4.4
REIT...................................................................................................................6.1
SC Stock.............................................................................................................4.2(a)
Schedule TO.........................................................................................................1.3(a)
Schedule 14D-9......................................................................................................1.3(a)
SEC.................................................................................................................1.1(c)
Second-Quarter Dividend.............................................................................................7.11(b)
Senior Preferred Stock...............................................................................................4.2(a)
Series C Agreements.................................................................................................Recital
Series C Stock.......................................................................................................4.2(a)
Series C-1 Stock.....................................................................................................4.2(a)
Series C-2 Stock.....................................................................................................4.2(a)
Series D Stock.......................................................................................................4.2(a)
Series D-1 Stock.....................................................................................................4.2(a)
Series E Stock.......................................................................................................4.2(a)
Shares..............................................................................................................1.1(a)
Special Committee.................................................................................................Recitals
subsidiary........................................................................................................10.12(g)
Superior Company Proposal............................................................................................7.3(a)
Surviving Corporation..................................................................................................2.1
Takeover Statutes.......................................................................................................4.9
Tax...............................................................................................................10.12(h)
Taxes.............................................................................................................10.12(h)
the date of this Agreement.........................................................................................10.11(b)
the date hereof....................................................................................................10.11(b)
Transactions........................................................................................................1.2(a)
Warrants............................................................................................................4.2(a)
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TABLE OF CONTENTS
PAGE
ARTICLE I
THE OFFER
SECTION 1.1 THE OFFER.....................................................................................................1
SECTION 1.2 COMPANY ACTIONS...............................................................................................2
SECTION 1.3 SEC DOCUMENTS.................................................................................................3
ARTICLE II
THE MERGER
SECTION 2.1 THE MERGER....................................................................................................4
SECTION 2.2 EFFECTIVE TIME................................................................................................5
SECTION 2.3 CLOSING OF THE MERGER.........................................................................................5
SECTION 2.4 EFFECTS OF THE MERGER.........................................................................................5
SECTION 2.5 ARTICLES OF INCORPORATION AND BYLAWS..........................................................................5
SECTION 2.6 DIRECTORS.....................................................................................................5
SECTION 2.7 OFFICERS......................................................................................................5
ARTICLE III
CONVERSION OF SHARES
SECTION 3.1 CONVERSION OF CAPITAL STOCK...................................................................................5
SECTION 3.2 EXCHANGE OF CERTIFICATES......................................................................................6
SECTION 3.3 WITHHOLDING TAXES.............................................................................................7
SECTION 3.4 WARRANTS......................................................................................................7
SECTION 3.5 APPRAISAL RIGHTS..............................................................................................7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
SECTION 4.1 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES..................................................................8
SECTION 4.2 CAPITALIZATION OF THE COMPANY AND ITS SUBSIDIARIES............................................................8
SECTION 4.3 AUTHORITY RELATIVE TO THIS AGREEMENT;
STOCKHOLDER APPROVAL...................................................................................10
SECTION 4.4 SCHEDULE 14D-9; OFFER DOCUMENTS;
PROXY STATEMENT........................................................................................10
SECTION 4.5 CONSENTS AND APPROVALS; NO VIOLATIONS........................................................................11
SECTION 4.6 LITIGATION...................................................................................................11
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SECTION 4.7 OPINION OF FINANCIAL ADVISOR.................................................................................11
SECTION 4.8 BROKERS......................................................................................................11
SECTION 4.9 TAKEOVER STATUTE.............................................................................................11
ARTICLE V
REPRESENTATION AND WARRANTIES
OF PARENT AND MERGER SUB
SECTION 5.1 ORGANIZATION.................................................................................................12
SECTION 5.2 AUTHORITY RELATIVE TO THIS AGREEMENT.........................................................................12
SECTION 5.3 PROXY STATEMENT; OFFER DOCUMENTS.............................................................................12
SECTION 5.4 CONSENTS AND APPROVALS; NO VIOLATIONS........................................................................13
SECTION 5.5 FINANCING....................................................................................................13
ARTICLE VI
COVENANTS RELATED TO CONDUCT OF BUSINESS
SECTION 6.1 CONDUCT OF BUSINESS OF THE COMPANY...........................................................................13
SECTION 6.2 ACCESS TO INFORMATION........................................................................................16
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.1 COMPANY STOCKHOLDER MEETING, PROXY STATEMENT.................................................................16
SECTION 7.2 REASONABLE BEST EFFORTS......................................................................................17
SECTION 7.3 ACQUISITION PROPOSALS........................................................................................17
SECTION 7.4 PUBLIC ANNOUNCEMENTS.........................................................................................18
SECTION 7.5 INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE..........................................................18
SECTION 7.6 NOTIFICATION OF CERTAIN MATTERS..............................................................................19
SECTION 7.7 SEC FILINGS..................................................................................................20
SECTION 7.8 OBLIGATIONS OF MERGER SUB....................................................................................20
SECTION 7.9 ANTITAKEOVER STATUTES........................................................................................20
SECTION 7.10 STOCKHOLDER LITIGATION......................................................................................20
SECTION 7.11 INTERIM DIVIDEND............................................................................................20
SECTION 7.12 PARTNERSHIP REDEMPTIONS.....................................................................................22
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 8.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE MERGER..................................................22
ARTICLE IX
TERMINATION; AMENDMENT; WAIVER
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SECTION 9.1 TERMINATION..................................................................................................22
SECTION 9.2 EFFECT OF THE TERMINATION....................................................................................23
SECTION 9.3 FEES AND EXPENSES............................................................................................23
SECTION 9.4 AMENDMENT....................................................................................................24
SECTION 9.5 EXTENSION; WAIVER............................................................................................24
ARTICLE X
MISCELLANEOUS
SECTION 10.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES...............................................................24
SECTION 10.2 ENTIRE AGREEMENT; ASSIGNMENT................................................................................25
SECTION 10.3 NOTICES.....................................................................................................25
SECTION 10.4 GOVERNING LAW...............................................................................................26
SECTION 10.5 DESCRIPTIVE HEADINGS........................................................................................26
SECTION 10.6 PARTIES IN INTEREST.........................................................................................26
SECTION 10.7 SEVERABILITY................................................................................................26
SECTION 10.8 SPECIFIC PERFORMANCE........................................................................................26
SECTION 10.9 WAIVER OF JURY TRIAL........................................................................................27
SECTION 10.10 COUNTERPARTS...............................................................................................27
SECTION 10.11 INTERPRETATION.............................................................................................27
SECTION 10.12 DEFINITIONS................................................................................................27
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of February 14, 2001, is among
Westfield America, Inc., a Missouri corporation (the "COMPANY"), Westfield
America Management Limited (ACN 072 780 619) ("PARENT"), in its capacity as
responsible entity and trustee of Westfield America Trust, an Australian public
unit trust, and Mall Acquisition Corp., a Delaware corporation to be formed
prior to the Effective Time and to be owned, directly or indirectly, by Parent
and/or one or more of the Offer Affiliates (as hereinafter defined) ("MERGER
SUB").
WHEREAS, Parent and certain of its affiliates named on ANNEX B hereto (the
"OFFER AFFILIATES"), directly and indirectly, collectively beneficially own
approximately 77.5% of the outstanding shares of common stock, par value $.01
per share (the "COMMON STOCK"), of the Company; and
WHEREAS, it is proposed that Parent make a cash tender offer to acquire all
outstanding shares of Common Stock not already owned by Parent and the Offer
Affiliates for $16.25 per share, net to the seller in cash, upon the terms and
subject to the conditions set forth herein; and
WHEREAS, the Board of Directors of the Company (the "COMPANY BOARD"), based
on the unanimous recommendation of a special committee of independent directors
of the Company (the "SPECIAL COMMITTEE"), has (i) approved this Agreement, (ii)
determined that each of this Agreement, the Offer (as hereinafter defined) and
the Merger (as hereinafter defined) pursuant to which Merger Sub shall merge
with and into the Company, with the Company as the surviving corporation, is
advisable and fair to, and in the best interests of, the stockholders of the
Company (other than Parent, the Offer Affiliates and Merger Sub), (iii) resolved
to approve the Offer, the Merger and this Agreement and the transactions
contemplated hereby, and (iv) recommended acceptance of the Offer and, if
applicable, approval and adoption of this Agreement by such stockholders of the
Company, subject to the terms and conditions set forth herein; and
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, certain holders of the Company's issued and outstanding shares of SC
Stock (as hereinafter defined) have entered into agreements (the "SERIES C
AGREEMENTS") providing for certain actions relating to the SC Stock owned by
them; and
WHEREAS, the Company, Parent and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with the
Offer and the Merger.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements herein contained, and intending to be
legally bound hereby, the Company, Parent and Merger Sub hereby agree as
follows:
ARTICLE I
THE OFFER
SECTION 1.1 THE OFFER. (a) As promptly as practicable (but in no event more
than twelve (12) business days after the date of this Agreement), Parent shall
commence (within the meaning
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of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")) a tender offer (the "OFFER") for all of the outstanding shares
of Common Stock (other than for shares owned by the Parent and the Offer
Affiliates at the time of the Offer) (the "SHARES") at a price of $16.25 per
Share, to the seller in cash (such price, or such higher price per Share as may
be paid in the Offer, being referred to herein as the "OFFER PRICE"), subject to
the conditions set forth in Section 3.3 below and ANNEX A hereto.
(b) The obligations of Parent to commence the Offer and to accept for
payment and to pay for any Shares validly tendered on or prior to the expiration
of the Offer and not withdrawn shall be subject only to the conditions set forth
in ANNEX A hereto. The Offer shall be made by means of an offer to purchase (the
"OFFER TO PURCHASE") containing the terms set forth in this Agreement and the
conditions set forth in ANNEX A hereto. Parent shall not, without the prior
written consent of the Company, (i) terminate the Offer, except in accordance
with the terms of ANNEX A attached hereto or (ii) extend the expiration of the
Offer except as specifically provided herein.
(c) Parent expressly reserves the right to modify the terms of the Offer;
PROVIDED, THAT, without the Special Committee's prior written consent, Parent
shall not decrease the Offer Price or decrease the number of Shares sought,
change the form of consideration or amend any other condition of the Offer in
any manner materially adverse to the holders of the Shares (other than with
respect to insignificant changes or amendments and subject to the penultimate
sentence of this Section 1.1(c)) or impose additional conditions without the
prior written consent of the Special Committee; PROVIDED, HOWEVER, that, if on
the initial scheduled expiration date of the Offer, which shall be twenty (20)
business days after the date that the Offer is commenced, all conditions to the
Offer shall not have been satisfied or waived, Parent may, from time to time
until such time as all such conditions are satisfied or waived, in its sole
discretion, extend the expiration date; PROVIDED, FURTHER, HOWEVER, that the
expiration date of the Offer may not be extended beyond ninety (90) calendar
days after commencement of the Offer without the Special Committee's prior
written consent. In addition, the Offer Price may be increased and the Offer may
be extended to the extent required by applicable Law (as hereinafter defined) in
connection with such increase, in each case without the consent of the Special
Committee. In addition, Parent may make available a "subsequent offering
period," in accordance with Rule 14d-11 of the United States Securities and
Exchange Commission (the "SEC"), of not greater than twenty (20) business days.
On the terms and subject to the prior satisfaction or waiver of the conditions
of the Offer and this Agreement, Parent shall accept for payment and pay for all
Shares validly tendered and not withdrawn pursuant to the Offer as soon as
practicable after the expiration of the Offer.
(d) The parties understand and agree that the Offer Price has been
calculated based upon the accuracy of the representation and warranty set forth
in Section 4.2(a) and that, in the event the number of outstanding shares of
Common Stock exceeds the amounts specifically set forth in Section 4.2(a)
(including, without limitation, as a result of any stock split, reverse stock
split, stock dividend, including any dividend or distribution of securities
convertible into stock or stock equivalent of the Company, recapitalization, or
other like change occurring after the date of this Agreement), the Offer Price
shall be appropriately adjusted. The provisions of this Section 1.1(d) shall
not, however, affect the representation and warranty set forth in Section
4.2(a).
SECTION 1.2 COMPANY ACTIONS. (a) The Company hereby approves of and
consents to the Offer and represents that the Company Board, based on the
unanimous recommendation of the Special Committee, has (i) approved this
Agreement, (ii) determined that each of the Agreement, the Offer and the Merger
are advisable and fair to, and in the best interests of, the stockholders of the
2
Company (other than Parent, the Offer Affiliates and Merger Sub), (iii) received
the opinion of ▇▇▇▇▇▇ Brothers, Inc., financial advisor to the Company (the
"FINANCIAL ADVISOR"), to the effect that, subject to the assumptions therein
stated, the Offer Price to be received by holders of Shares pursuant to the
Offer and the Merger Consideration (as hereinafter defined) pursuant to the
Merger is fair to the stockholders of the Company (other than Parent, the Offer
Affiliates and Merger Sub) from a financial point of view, (iv) resolved to
approve the Offer, the Merger and this Agreement and the transactions
contemplated hereby, including the Offer and the Merger (collectively, the
"TRANSACTIONS") (such approval and adoption having been made in accordance with
the MGBCL (as hereinafter defined)), and (v) recommended acceptance of the
Offer, and, if applicable, the approval and adoption of this Agreement by such
stockholders of the Company. The Company further represents and warrants that
(x) the Special Committee has been duly authorized and constituted, and (y) the
Special Committee, at a meeting thereof duly called, unanimously determined that
the terms of each of this Agreement, the Offer, the Merger and the other
transactions contemplated by this Agreement are advisable and fair to, and in
the best interests of, the stockholders of the Company (other than Parent, the
Offer Affiliates and Merger Sub), and unanimously determined to recommend that
the Company Board (1) approve this Agreement and the transactions contemplated
hereby, (2) determine that each of this Agreement, the Offer and the Merger is
advisable and fair to, and in the best interests of, the stockholders of the
Company (other than Parent, the Offer Affiliates and Merger Sub), (3) recommend
that the holders of Shares accept the Offer and tender their Shares pursuant to
the Offer, and (4) recommend that the Company's stockholders approve and adopt
this Agreement, if applicable. The Company has been advised by each of its
directors that each such person either intends to tender pursuant to the Offer
all Shares owned by such person or vote all Shares owned by such person in favor
of the Merger.
(b) In connection with the Offer, the Company will promptly furnish or
cause to be furnished to Parent mailing labels, security position listings and
any available listings or computer files containing the names and addresses of
all holders of record of the Shares as of a recent date, and shall furnish
Parent with such additional information (including, but not limited to, updated
lists of holders of the Shares and their addresses, mailing labels and lists of
security positions) and such assistance as Parent or its agents may reasonably
request in communicating the Offer to the record and beneficial holders of the
Shares. Subject to the requirements of applicable Law, and except for such steps
as are necessary to disseminate the Offer Documents (as hereinafter defined) and
any other documents necessary to consummate the Merger, Parent and its
affiliates and associates shall hold in confidence the information contained in
any such labels, listings and files and all other information delivered pursuant
to this Section 1.2(b), will use such information only in connection with the
Offer and the Merger and, if this Agreement shall be terminated, will deliver to
the Company all copies, extracts or summaries of such information in their
possession or the possession of their agents.
SECTION 1.3 SEC DOCUMENTS. (a) On the date the Offer is commenced, Parent
shall file with SEC (i) a Tender Offer Statement on Schedule TO in accordance
with the Exchange Act with respect to the Offer (together with all amendments
and supplements thereto and including the exhibits thereto, the "SCHEDULE TO"),
and (ii) together with the Company, a Rule 13e-3 Transaction Statement on
Schedule 13E-3 with respect to the Offer, which shall be filed as part of the
Schedule TO. The Schedule TO will include, as exhibits, the Offer to Purchase
and a form of letter of transmittal (collectively, together with any amendments
and supplements thereto, the "OFFER DOCUMENTS"). The Company hereby consents to
the inclusion in the Offer Documents of the recommendations of the Company Board
and the Special Committee described in Section 1.2(a). Concurrently with the
filing of the Schedule TO by Parent, the Company shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 in accordance with the
Exchange Act (together with all amendments and
3
supplements thereto and including the exhibits thereto, the "SCHEDULE 14D-9"),
which shall, except as otherwise provided herein, contain the recommendation
referred to in clause (v) of Section 1.2(a) hereof.
(b) Parent will take all steps necessary to ensure that the Offer
Documents, and the Company will take all steps necessary to ensure that the
Schedule 14D-9, will comply in all material respects with the provisions of
applicable Federal and state securities Laws. The information provided and to be
provided by Parent or the Company for use in the Schedule TO, the Offer
Documents and the Schedule 14D-9 shall not, on the date first filed with the SEC
or first published, sent or provided to stockholders, as the case may be,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Parent will take all steps necessary to cause the Offer Documents,
and the Company will take all steps necessary to cause the Schedule 14D-9, to be
filed with the SEC and to be disseminated to holders of the Shares, in each case
as and to the extent required by applicable Federal and state securities Laws.
Each of Parent, on the one hand, and the Company, on the other hand, will
promptly correct any information provided by it for use in the Offer Documents
and the Schedule 14D-9 if and to the extent that it shall have become false and
misleading in any material respect and Parent will take all steps necessary to
cause the Offer Documents, and the Company will take all steps necessary to
cause the Schedule 14D-9, as so corrected to be filed with the SEC and to be
disseminated to holders of the Shares, in each case as and to the extent
required by applicable Federal and state securities Laws. Parent and its counsel
shall be given a reasonable opportunity to review and comment upon the Schedule
14D-9 and all amendments and supplements thereto prior to their filing with the
SEC or dissemination to stockholders of the Company. The Special Committee and
its counsel shall be given a reasonable opportunity to review and comment upon
the Offer Documents prior to their filing with the SEC or dissemination to
stockholders of the Company. The Company agrees to provide Parent and its
counsel with copies of any written comments that the Company or its counsel may
receive from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments and Parent agrees to provide the Company and
its counsel with copies of any written comments that Parent, or its counsel may
receive from the SEC or its staff with respect to the Offer Documents promptly
after the receipt of such comments.
ARTICLE II
THE MERGER
SECTION 2.1 THE MERGER. At the Effective Time (as hereinafter defined) and
upon the terms and subject to the conditions of this Agreement and in accordance
with the Delaware General Corporation Law (the "DGCL") and the Missouri General
and Business Corporation Law (the "MGBCL"), Merger Sub shall be merged with and
into the Company as soon as reasonably practicable after the Offer Completion
(as hereinafter defined) (subject to the other terms of this Agreement,
including, without limitation, Section 7.1 and Article VIII and IX) (the
"MERGER"). Following the Merger, the Company shall continue as the surviving
corporation (the "SURVIVING CORPORATION") and the separate corporate existence
of Merger Sub shall cease. Parent may, upon notice to the Company, modify the
structure of the Merger (including, without limitation, the applicable
provisions of Sections 2.5 and 3.1) if Parent determines it advisable to do so
because of tax or other considerations, and the Company shall promptly enter
into any amendment to this Agreement necessary or desirable to accomplish such
structural modification; provided, however, that no such amendment shall have an
adverse effect upon the stockholders of the Company (other than Parent, the
Offer Affiliates and Merger Sub).
4
SECTION 2.2 EFFECTIVE TIME. Subject to the provisions of this Agreement,
Parent, Merger Sub and the Company shall cause the Merger to be consummated by
filing (i) this Agreement or a certificate of merger or certificate of ownership
and merger with the Secretary of State of the State of Delaware and (ii)
articles of merger with Secretary of State of the State of Missouri in the form
set forth on Schedule 2.2(ii) to this Agreement (the "ARTICLES OF MERGER", the
terms of which are incorporated in this Agreement by reference) or, in each case
such other appropriate documents (collectively, the "CERTIFICATE OF MERGER"), in
such forms as are required by, and executed in accordance with, the relevant
provisions of the DGCL and the MGBCL. The Merger shall become effective upon
such filing or at such time thereafter as is provided in the Certificate of
Merger (the "EFFECTIVE TIME").
SECTION 2.3 CLOSING OF THE MERGER. The closing of the Merger (the
"CLOSING") will take place at a time and on a date to be specified by the
parties (the "CLOSING DATE"), which shall be no later than the second business
day after satisfaction or waiver of the conditions set forth in Article VIII
(other than those conditions that by their nature are to be satisfied at the
Closing, but subject to the fulfillment or waiver of those conditions), at the
offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other time, date or place as agreed to in
writing by the parties hereto.
SECTION 2.4 EFFECTS OF THE MERGER. The Merger shall have the effects set
forth in the DGCL and the MGBCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the property, rights,
privileges, powers and franchises of the Company and Merger Sub shall vest in
the Surviving Corporation, and all debts, liabilities, obligations,
restrictions, disabilities and duties of the Company and Merger Sub shall become
the debts, liabilities, obligations, restrictions, disabilities and duties of
the Surviving Corporation.
SECTION 2.5 ARTICLES OF INCORPORATION AND BYLAWS. The articles of
incorporation of the Company in effect at the Effective Time shall be the
articles of incorporation of the Surviving Corporation. The bylaws of the
Company in effect at the Effective Time shall be the bylaws of the Surviving
Corporation until amended in accordance with applicable Law.
SECTION 2.6 DIRECTORS. The directors of Merger Sub at the Effective Time
shall be the initial directors of the Surviving Corporation, to hold office in
accordance with the articles of incorporation and bylaws of the Surviving
Corporation until their successors are duly elected or appointed and qualified
or until their earlier death, resignation or removal; PROVIDED, HOWEVER, that
immediately following the Effective Time, the board of directors of the
Surviving Corporation shall be comprised of those individuals set forth on
Schedule 2.6 to this Agreement.
SECTION 2.7 OFFICERS. The officers of the Company at the Effective Time
shall be the initial officers of the Surviving Corporation, to hold office in
accordance with the articles of incorporation and bylaws of the Surviving
Corporation until their successors are duly elected or appointed and qualified
or until their earlier death, resignation or removal.
ARTICLE III
CONVERSION OF SHARES
SECTION 3.1 CONVERSION OF CAPITAL STOCK. As of the Effective Time, by
5
virtue of the Merger and without any action on the part of the holders of any
shares of capital stock of the Company or any shares of capital stock of Merger
Sub, the Merger shall have such effects on the capital stock of the Company and
Merger Sub as are set forth in the Articles of Merger filed with the Secretary
of State of the State of Missouri.
SECTION 3.2 EXCHANGE OF CERTIFICATES.
(a) PAYING AGENT. Prior to the Effective Time, Parent shall designate a
bank, trust company or other person, reasonably acceptable to the Special
Committee, to act as agent for the holders of the Shares in connection with the
Merger (the "PAYING AGENT") to receive the funds to which holders of the Shares
shall become entitled pursuant to the terms of the Articles of Merger. Parent
shall, from time to time, make available to the Paying Agent funds in amounts
and at times necessary for the prompt payment of the Offer Price in cash,
without interest (the "MERGER CONSIDERATION"), as provided herein and in the
Articles of Merger. All interest earned on such funds shall be paid to Parent.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable after the
Effective Time, Parent shall cause the Paying Agent to mail to each holder of
record of a certificate or certificates which immediately prior to the Effective
Time represented outstanding Shares (the "CERTIFICATES") whose Shares were
converted into the right to receive the Merger Consideration pursuant to the
terms of the Articles of Merger, (i) a letter of transmittal (which shall
specify that delivery shall be effective, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the Paying
Agent and shall be in such form not inconsistent with this Agreement as Parent
may specify) and (ii) instructions for use in surrendering the Certificates in
exchange for payment of the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Paying Agent, together with such letter of
transmittal, duly executed, and such other documents as may reasonably be
required by the Paying Agent, Parent shall cause the Paying Agent to pay to the
holder of such Certificate the Merger Consideration, and the Certificate so
surrendered shall forthwith be cancelled. In the event of a surrender of a
Certificate representing Shares which are not registered in the transfer records
of the Company under the name of the person surrendering such Certificate,
payment may be made to a person other than the person in whose name the
Certificate so surrendered is registered if such Certificate shall be properly
endorsed or otherwise be in proper form for transfer and the person requesting
such payment shall pay any transfer or other Taxes (as hereinafter defined)
required by reason of payment to a person other than the registered holder of
such Certificate or establish to the satisfaction of the Paying Agent that such
Tax has been paid or is not applicable. Until surrendered as contemplated by
this Section 3.2, each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive upon such surrender the
Merger Consideration which the holder thereof has the right to receive in
respect of such Certificate pursuant to the provisions of this Article III. No
interest shall be paid or will accrue on the Merger Consideration payable to
holders of Certificates pursuant to the provisions of this Article III.
(c) TRANSFER BOOKS; NO FURTHER OWNERSHIP RIGHTS IN SHARES. At the Effective
Time, the stock transfer books of the Company with respect to the Shares shall
be closed and thereafter there shall be no further registration of transfers of
the Shares on the records of the Company. From and after the Effective Time, the
holders of Certificates evidencing ownership of the Shares outstanding
immediately prior to the Effective Time shall cease to have rights with respect
to such Shares, except as otherwise provided for herein or by applicable Law.
If, after the Effective Time, Certificates are presented to the Surviving
Corporation for any reason, they shall be cancelled and exchanged as provided in
this Article III.
6
(d) TERMINATION OF FUND; NO LIABILITY. At any time following twelve (12)
months after the Effective Time, the Surviving Corporation shall be entitled to
require the Paying Agent to deliver to it any funds (including any interest
received with respect thereto) which had been made available to the Paying Agent
and which have not been disbursed to holders of Certificates, and thereafter
such holders shall be entitled to look to the Surviving Corporation (subject to
abandoned property, escheat or other similar Laws) only as general creditors
thereof with respect to the Merger Consideration payable upon due surrender of
their Certificates, without any interest thereon. Notwithstanding the foregoing,
none of Parent, the Surviving Corporation or the Paying Agent shall be liable to
any holder of a Certificate for Merger Consideration delivered to a public
official pursuant to any applicable abandoned property, escheat or similar Law.
(e) LOST CERTIFICATES. If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Surviving Corporation, the posting by such person of a bond in such reasonable
amount as the Surviving Corporation may direct as indemnity against any claim
that may be made against it with respect to such Certificate, the Paying Agent
shall pay in exchange for such lost, stolen or destroyed Certificate the Merger
Consideration pursuant to this Agreement.
SECTION 3.3 WITHHOLDING TAXES. Parent, the Company and Merger Sub shall be
entitled to deduct and withhold, or cause the Paying Agent to deduct and
withhold, from the Offer Price or the Merger Consideration payable to a holder
of Shares pursuant to the Offer or the Merger any withholding and stock transfer
Taxes and such amounts as are required under the Internal Revenue Code of 1986,
as amended (the "CODE"), or any applicable provision of state, local or foreign
Tax Law. To the extent that amounts are so withheld by Parent, the Company or
Merger Sub, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the Shares in respect of which
such deduction and withholding was made by Parent, the Company or Merger Sub.
SECTION 3.4 WARRANTS. All Warrants (as hereinafter defined) issued and
outstanding immediately prior to the Effective Time shall be retained and remain
outstanding in accordance with their terms as warrants to purchase capital stock
of the Surviving Corporation.
SECTION 3.5 APPRAISAL RIGHTS. (a) Notwithstanding any provision of this
Agreement to the contrary, Shares (collectively, the "DISSENTING SHARES") that
are outstanding immediately prior to the Effective Time and that are held by
stockholders who (x) shall have neither voted in favor of the Merger nor
consented thereto in writing and (y) shall have demanded properly in writing
appraisal for such Shares in accordance with Section 351.455 of MGBCL (the
"DISSENTING STOCKHOLDERS") shall not be converted into, or represent the right
to receive, the Merger Consideration. Such Dissenting Stockholders shall be
entitled to receive payment of the appraised value of such Shares held by them
in accordance with the provisions of such Section 351.455, except that all
Dissenting Shares held by stockholders who shall have failed to perfect or who
effectively shall have withdrawn or lost their rights to appraisal of such
Shares under such Section 351.455 shall thereupon be deemed to have been
converted into, and to have become exchangeable for, as of the Effective Time,
the right to receive the Merger Consideration, without any interest thereon,
upon surrender, in the manner provided in Section 3.2(b), of the certificate or
certificates that formerly evidenced such Shares.
(b) The Company shall give Parent (i) prompt notice of any demands for
appraisal received by the Company, withdrawals of such demands, and any other
instruments served pursuant to MGBCL and received by the Company and (ii) the
opportunity to direct all negotiations and proceedings with
7
respect to demands for appraisal under MGBCL. The Company shall not, except with
the prior written consent of Parent, make any payment with respect to any
demands for appraisal or offer to settle or settle any such demands.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
Except as set forth in the disclosure schedule delivered by the Company to
Parent prior to the execution of this Agreement (the "COMPANY DISCLOSURE
SCHEDULE") (each section of which qualifies the correspondingly numbered
representation and warranty or covenant to the extent expressly specified
therein), the Company hereby represents and warrants to each of Parent and
Merger Sub as follows:
SECTION 4.1 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES. (a) The Company
and each of its subsidiaries, is a corporation or legal entity duly organized,
validly existing and in good standing under the Laws of the jurisdiction of its
organization and has all requisite corporate, partnership or similar power and
authority to own, lease and operate its properties and to carry on its
businesses as now conducted and proposed by the Company or any such subsidiary
to be conducted. Each of the Company and its subsidiaries is duly qualified or
licensed and in good standing to do business in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business conducted
by it makes such qualification or licensing necessary, except where the failure
to be so duly qualified or licensed and in good standing does not and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company.
SECTION 4.2 CAPITALIZATION OF THE COMPANY AND ITS SUBSIDIARIES. (a) The
authorized capital stock of the Company, immediately prior to the Closing, will
consist of (i) 200,000,000 shares of Common Stock of which, as of the date
hereof, 73,354,863 are issued and outstanding, (ii) 205,000,000 shares of excess
stock, par value $.01 per share ("EXCESS STOCK"), of which, as of the date
hereof, none are issued and outstanding, (iii) 200 shares of voting senior
preferred stock, par value $1.00 per share ("SENIOR PREFERRED STOCK"), of which,
as of the date hereof, none are issued and outstanding, and (iv) 5,000,000
shares of preferred stock, par value $1.00 per share ("PREFERRED STOCK"), of
which (A) 940,000 shares have been designated Series A cumulative redeemable
preferred stock and of which, as of the date hereof, 940,000 shares are issued
and outstanding, (B) 400,000 shares have been designated Series B Preferred
Shares and of which, as of the date hereof, 270,000 shares are issued and
outstanding, (C) 416,667 shares have been designated Series C cumulative
convertible redeemable preferred stock ("SERIES C STOCK") and of which, as of
the date hereof, 416,667 shares are issued and outstanding, (D) 138,889 shares
have been designated Series C-1 cumulative convertible redeemable preferred
stock ("SERIES C-1 STOCK") and of which, as of the date hereof, 138,889 shares
are issued and outstanding, (E) 138,889 shares have been designated Series C-2
cumulative convertible redeemable preferred stock ("SERIES C-2 STOCK", and,
together with the Series C Stock and Series C-1 Stock, the "SC STOCK") and of
which, as of the date hereof, 138,889 shares are issued and outstanding, (F)
694,445 shares have been designated Series D cumulative convertible redeemable
preferred stock ("SERIES D STOCK") and of which, as of the date hereof, 694,445
shares are issued and outstanding, (G) 138,889 shares have been designated
Series D-1 cumulative convertible redeemable preferred stock ("SERIES D-1
STOCK") and of which, as of the date hereof, 138,889 shares are
8
issued and outstanding, (H) 477,778 shares have been designated Series E
cumulative convertible redeemable preferred stock ("SERIES E STOCK") and of
which, as of the date hereof, 477,778 shares are issued and outstanding, and (I)
107,483 shares have been designated Series F cumulative redeemable preferred
stock and of which, as of the date hereof, no shares are issued and outstanding.
All issued and outstanding shares of capital stock of the Company (i) have been
duly authorized and validly issued, (ii) are fully paid and non-assessable,
(iii) were issued in compliance with all applicable federal and state Laws
concerning the issuance of securities and (iv) are free of preemptive rights. As
of the date hereof, (i) 11,175,648 shares of Common Stock were reserved for
issuance and issuable upon or otherwise deliverable in connection with the
exercise of the warrants (the "WARRANTS") listed on Section 4.2 of the Company
Disclosure Schedule, (ii) 4,166,670 shares of Common Stock were reserved for
issuance and issuable upon or otherwise deliverable in connection with the
conversion of outstanding shares of Series C Stock, (iii) 1,388,890 shares of
Common Stock were reserved for issuance and issuable upon or otherwise
deliverable in connection with the conversion of outstanding shares of Series
C-1 Stock, (iv) 1,388,890 shares of Common Stock were reserved for issuance and
issuable upon or otherwise deliverable in connection with the conversion of
outstanding shares of Series C-2 Stock, (v) 6,944,450 shares of Common Stock
were reserved for issuance and issuable upon or otherwise deliverable in
connection with the conversion of outstanding shares of Series D Stock, (vi)
1,388,890 shares of Common Stock were reserved for issuance and issuable upon or
otherwise deliverable in connection with the conversion of outstanding shares of
Series D-1 Stock, and (vii) 4,778,000 shares of Common Stock were reserved for
issuance and issuable upon or otherwise deliverable in connection with the
conversion of outstanding shares of Series E Stock. Except as set forth above
and except as otherwise set forth on Section 4.2 of the Company Disclosure
Schedule, as of the date hereof, there are outstanding (i) no shares of capital
stock or other voting securities of the Company; (ii) no securities of the
Company or any of its subsidiaries convertible into or exchangeable for shares
of capital stock or voting securities of the Company; (iii) no options or other
rights to acquire from the Company or any of its subsidiaries, and no
obligations of the Company or any of its subsidiaries to issue, any capital
stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of the Company; and (iv) no equity
equivalents, interests in the ownership or earnings of the Company or any of its
subsidiaries or other similar rights (including stock appreciation rights)
(collectively, "COMPANY SECURITIES"). Except as set forth above and except as
otherwise set forth on Section 4.2 of the Company Disclosure Schedule, there are
no outstanding obligations of the Company or any of its subsidiaries to
repurchase, redeem or otherwise acquire any Company Securities. There are no
stockholder agreements, voting trusts or other agreements or understandings to
which the Company or any of its subsidiaries is a party or to which it is bound
relating to the voting of any shares of capital stock of the Company.
(b) Except as otherwise set forth on Section 4.2 of the Company Disclosure
Schedule, all of the outstanding capital stock or other equity or ownership
interests of the Company's subsidiaries is owned by the Company, directly or
indirectly, free and clear of any Lien (as hereinafter defined) or any other
limitation or restriction (including any restriction on the right to vote or
sell the same, except as may be provided as a matter of Law). There are no
securities of the Company or its subsidiaries convertible into or exchangeable
for, no options or other rights to acquire from the Company or its subsidiaries,
and no other contract, understanding, arrangement or obligation (whether or not
contingent) providing for the issuance or sale, directly or indirectly of, any
capital stock or other equity or ownership interests in, or any other securities
of, any subsidiary of the Company. There are no outstanding obligations
(contractual or otherwise) of the Company or its subsidiaries to repurchase,
redeem or otherwise acquire any outstanding shares of capital stock or other
equity or ownership interests in any subsidiary of the Company. For purposes of
this Agreement, "LIEN" means, with respect to any asset (including, without
limitation, any security) any mortgage, lien, pledge, charge, security interest
or
9
encumbrance of any kind in respect of such asset.
SECTION 4.3 AUTHORITY RELATIVE TO THIS AGREEMENT; STOCKHOLDER APPROVAL. (a)
The Company has all necessary corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
No other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby
(other than, with respect to the Merger and this Agreement, the Company
Requisite Vote (as hereinafter defined)). This Agreement has been duly and
validly executed and delivered by the Company and constitutes a valid, legal and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in equity).
(b) The Company Board by unanimous vote and acting on the unanimous
recommendation of the Special Committee, duly and validly authorized the
execution and delivery of this Agreement, and taken all corporate actions
required to be taken by the Company Board for the consummation of the
transactions, including the Offer and the Merger, contemplated hereby and has
(i) approved this Agreement, (ii) determined that each of this Agreement, the
Offer and the Merger is advisable and fair to, and in the best interests of, the
stockholders of the Company (other than Parent, the Offer Affiliates and Merger
Sub), (iii), resolved to approve the Offer, the Merger and this Agreement and
the transactions contemplated hereby, and (iv) recommended acceptance of the
Offer and, if applicable, approval and adoption of this Agreement by such
stockholders of the Company, subject to the terms and conditions set forth
herein. The Company Board has directed that this Agreement, to the extent
required, be submitted to the stockholders of the Company for their approval.
The affirmative approval of the holders of shares of Common Stock representing
at least two-thirds of the outstanding shares of Common Stock as of the record
date for the Company (the "COMPANY REQUISITE VOTE") is the only vote of the
holders of any class or series of capital stock of the Company necessary to
adopt this Agreement and approve the transactions contemplated hereby.
SECTION 4.4 SCHEDULE 14D-9; OFFER DOCUMENTS; PROXY STATEMENT. Neither the
Schedule 14D-9, any other document required to be filed by the Company with the
SEC or any other Governmental Entity (as hereinafter defined) in connection with
the Transactions, nor any information supplied by the Company for inclusion in
the Offer Documents shall, at the respective times the Schedule 14D-9 and any
such other filings by the Company, the Offer Documents or any amendments or
supplements thereto are filed with the SEC or other applicable Governmental
Entity or are first published, sent or given to stockholders of the Company, as
the case may be, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements made therein, in light of the circumstances under which they
are made, not misleading. The proxy statement (the "PROXY STATEMENT") relating
to the Company Stockholder Meeting (as hereinafter defined) to be held in
connection with the Merger, if required to be held pursuant to applicable Law
will not, on the date the Proxy Statement (including any amendment or supplement
thereto) is first mailed to stockholders of the Company, contain any untrue
statement of a material fact, or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they are made, not misleading or shall,
at the time of the Company Stockholder Meeting or at the Effective Time, omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the Company
Stockholder Meeting which shall have become false or
10
misleading in any material respect. The Schedule 14D-9, and any other document
required to be filed by the Company with the SEC in connection with the
Transactions and the Proxy Statement will, when filed by the Company with the
SEC, comply as to form in all material respects with the applicable provisions
of the Exchange Act and the rules and regulations thereunder. Notwithstanding
the foregoing, the Company makes no representation or warranty with respect to
the statements made in any of the foregoing documents based on and in conformity
with information supplied in writing by or on behalf of Parent or Merger Sub
specifically for inclusion therein.
SECTION 4.5 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Exchange Act, state securities or blue sky
Laws, the filing and recordation of the Certificate of Merger as required by the
DGCL and the MGBCL, the filing (if applicable) of a statement of reduction of
stated capital pursuant to Section 351.195 of the MGBCL, and as otherwise set
forth in Section 4.5 of the Company Disclosure Schedule, no filing with or
notice to, and no permit, authorization, consent or approval of, any court or
tribunal or administrative, governmental or regulatory body, agency or authority
(a "GOVERNMENTAL ENTITY") is necessary for the execution and delivery by the
Company of this Agreement or the consummation by the Company of the transactions
contemplated hereby, except where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings or give such
notice does not and could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect on the Company.
SECTION 4.6 LITIGATION. There is no suit, claim, action, proceeding or
investigation pending or, to the Company's knowledge, threatened against the
Company or any of its subsidiaries or any of their respective properties or
assets which, as of the date hereof, (i) questions the validity of this
Agreement or any action to be taken by the Company in connection with the
consummation of the transactions contemplated hereby or (ii) would reasonably be
expected to otherwise prevent or delay the consummation of the transactions
contemplated by this Agreement.
SECTION 4.7 OPINION OF FINANCIAL ADVISOR. The Financial Advisor has
delivered to the Special Committee and the Company Board its opinion, dated the
date of this Agreement, to the effect that, as of such date, the consideration
to be received in the Offer and the Merger by the Company's stockholders is fair
to the Company's stockholders (other than Parent, the Offer Affiliates and
Merger Sub) from a financial point of view, and such opinion has not been
withdrawn or modified. The Company has been authorized by the Financial Advisor
to permit the inclusion of such opinion in its entirety in the Offer Documents,
the Schedule 14D-9 and the Proxy Statement, so long as such inclusion is in form
and substance reasonably satisfactory to the Financial Advisor and its counsel.
SECTION 4.8 BROKERS. No broker, finder or investment banker (other than the
Financial Advisor, a true and correct copy of whose engagement agreement has
been made available to Parent) is entitled to any brokerage, finder's or other
fee or commission or expense reimbursement in connection with the transactions
contemplated by this Agreement based upon arrangements made by and on behalf of
the Company or any of its subsidiaries.
SECTION 4.9 TAKEOVER STATUTE. The transactions contemplated hereby (the
"COVERED TRANSACTIONS") are exempt from the requirements of any "moratorium",
"control share", "fair price", "affiliate transaction", "business combination"
or other antitakeover Laws and regulations of the State of Missouri
(collectively, "TAKEOVER STATUTES"), including, without limitation, Sections
351.407
11
and 351.459 of the MGBCL, or any antitakeover provision in the Company's
articles of incorporation and bylaws.
ARTICLE V
REPRESENTATION AND WARRANTIES
OF PARENT AND MERGER SUB
Parent and Merger Sub hereby represent and warrant to the Company as
follows (representations and warranties made by or in respect of Merger Sub
shall be initially made on the Joinder Date (as hereinafter defined)):
SECTION 5.1 ORGANIZATION. (a) Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing under the Laws
of the jurisdiction of its organization and has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
businesses as now conducted or proposed by Parent or Merger Sub to be conducted,
except where the failure to be duly organized, existing and in good standing or
to have such power and authority could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Parent.
(b) Each of Parent and Merger Sub is duly qualified or licensed and in good
standing to do business in each jurisdiction in which the property owned, leased
or operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so duly
qualified or licensed and in good standing does not and could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
Parent.
SECTION 5.2 AUTHORITY RELATIVE TO THIS AGREEMENT. (a) Each of Parent and
Merger Sub has all necessary corporate power and authority to execute and
deliver this Agreement and to consummate the Transactions contemplated hereby.
No other corporate proceedings on the part of Parent or Merger Sub are necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by each
of Parent and Merger Sub and constitutes a valid, legal and binding agreements
of each of Parent and Merger Sub, enforceable against each of Parent and Merger
Sub in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law or in
equity).
(b) The Board of Directors of Merger Sub and the stockholder(s) of Merger
Sub have duly and validly authorized the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, and
taken all corporate actions required to be taken by such Boards of Directors and
the stockholder(s) of Merger Sub for the consummation of the transactions.
SECTION 5.3 PROXY STATEMENT; OFFER DOCUMENTS. The Offer Documents and any
other documents to be filed by Parent or Merger Sub with the SEC or any other
Governmental Entity in connection with the Transactions will (in the case of the
Offer Documents and any such other documents filed with the SEC under the
Exchange Act) comply as to form in all material respects with the requirements
of the Exchange Act, and will not, on the date of filing with the SEC or other
12
applicable Governmental Entity or, in the case of the Proxy Statement, on the
date the Proxy Statement is first mailed to stockholders of the Company, contain
any untrue statement of a material fact, or omit to state any material fact
required to be stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they are made, not
misleading or shall, at the time of the Company Stockholder Meeting or at the
Effective Time, omit to state any material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of
proxies for the Company Stockholder Meeting which shall have become false or
misleading in any material respect. Notwithstanding the foregoing, neither
Parent nor Merger Sub makes any representation or warranty with respect to the
statements made in any of the foregoing documents based on and in conformity
with information supplied by or on behalf of the Company specifically for
inclusion therein.
SECTION 5.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Exchange Act, state securities or blue sky
Laws and the filing and recordation of the Certificate of Merger as required by
the DGCL and the MGBCL, no filing with or notice to, and no permit,
authorization, consent or approval of, any Governmental Entity is necessary for
the execution and delivery by Parent or Merger Sub of this Agreement or the
consummation by Parent or Merger Sub of the Transactions contemplated hereby,
except where the failure to obtain such permits, authorizations, consents or
approvals or to make such filings or give such notice do not or could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Parent. Neither the execution, delivery and performance of
this Agreement by Parent or Merger Sub nor the consummation by Parent or Merger
Sub of the Transactions contemplated hereby will (i) conflict with or result in
any breach of any provision of the respective articles of incorporation or
bylaws (or similar governing documents) of Parent or Merger Sub, (ii) result in
a violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or Lien) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which Parent or Merger Sub is a
party or by which either of them or any of their respective properties or assets
may be bound or (iii) violate any Law applicable to Parent or Merger Sub or any
of their respective properties or assets, except in the case of (ii) or (iii)
for violations, breaches or defaults which do not or could not reasonably be
expected to have, individually or in the aggregate, a material adverse effect on
the ability of Parent or Merger Sub to consummate the transactions contemplated
by this Agreement.
SECTION 5.5 FINANCING. Parent will have available, and will provide Merger
Sub with, the funds necessary to consummate the Offer and the Merger.
ARTICLE VI
COVENANTS RELATED TO CONDUCT OF BUSINESS
SECTION 6.1 CONDUCT OF BUSINESS OF THE COMPANY. Except as contemplated by
this Agreement, during the period from the date hereof to the Effective Time,
the Company will, and will cause each of its subsidiaries to, conduct its
operations in the ordinary and usual course of business consistent with past
practice and take all such actions necessary to continue to qualify as a real
estate investment trust within the meaning of the Code ("REIT") (including,
without limitation, at the request of Parent, by issuing shares of voting
preferred stock in such number, to such persons and at such times as are
reasonably requested by Parent in order to facilitate continued compliance with
the conditions set forth in Section 856(a)(5) of the Code) and, to the extent
consistent
13
therewith, with no less diligence and effort than would be applied in the
absence of this Agreement, seek to preserve intact its current business
organizations, seek to keep available the service of its current officers and
seek to preserve its relationships with customers, suppliers and others having
business dealings with it to the end that goodwill and ongoing businesses shall
be unimpaired at the Effective Time. Without limiting the generality of the
foregoing, and except as otherwise expressly provided in this Agreement or in
Section 6.1 of the Company Disclosure Schedule, prior to the Effective Time,
neither the Company nor any of its subsidiaries will, without the prior written
consent of Parent:
(a) amend its articles of incorporation or bylaws (or other similar
governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any stock
of any class or any other securities convertible into or exchangeable for any
stock or any equity equivalents (including, without limitation, any stock
options or stock appreciation rights);
(c) (i) split, combine or reclassify any shares of its capital stock; (ii)
except as expressly set forth in Section 7.11 below and other than as necessary
to maintain the Company's qualification as a REIT without the imposition of any
excise taxes pursuant to Section 4981 of the Code, declare, set aside or pay any
dividend or other distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock; (iii) make any other
actual, constructive or deemed distribution in respect of any shares of its
capital stock or otherwise make any payments to stockholders in their capacity
as such; or (iv) redeem, repurchase or otherwise acquire any of its securities
or any securities of any of its subsidiaries;
(d) adopt a plan of complete or partial liquidation, dissolution, merger,
consolidation, restructuring, recapitalization or other reorganization of the
Company or any of its subsidiaries (other than the Merger);
(e) alter through merger, liquidation, reorganization, restructuring or in
any other fashion the corporate structure or ownership of any subsidiary;
(f) (i) incur or assume any long-term or short-term debt or issue any debt
securities, except for borrowings under existing lines of credit in the ordinary
and usual course of business consistent with past practice and in amounts not
material to the Company and its subsidiaries taken as a whole; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other person, except in
the ordinary and usual course of business consistent with past practice and in
amounts not material to the Company and its subsidiaries, taken as a whole, and
except for obligations of the wholly owned subsidiaries of the Company; (iii)
make any loans, advances or capital contributions to, or investments in, any
other person (other than to the wholly owned subsidiaries of the Company); (iv)
pledge or otherwise encumber shares of capital stock of the Company or its
subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or
intangible, or create or suffer to exist any material Lien thereupon;
(g) enter into or adopt any bonus, profit sharing, compensation, severance,
termination, stock option, stock appreciation right, restricted stock,
performance unit, stock equivalent, stock purchase agreement, pension,
retirement, deferred compensation, employment, severance or other employee
benefit agreement, trust, plan, fund, award or other arrangement for the benefit
or welfare of
14
any director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay any
benefit not required by any plan and arrangement as in effect as of the date
hereof (including, without limitation, the granting of stock appreciation rights
or performance units);
(h) acquire, sell, lease or dispose of any assets outside the ordinary and
usual course of business consistent with past practice or any assets which in
the aggregate are material to the Company and its subsidiaries taken as a whole,
enter into any commitment or transaction outside the ordinary and usual course
of business consistent with past practice;
(i) except as may be required as a result of a change in Law or in
generally accepted accounting principles applied on a consistent basis ("GAAP"),
change any of the accounting principles or practices used by it;
(j) revalue in any material respect any of its assets other than in the
ordinary and usual course of business consistent with past practice or as
required by GAAP;
(k) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or division
thereof or any equity interest therein; (ii) enter into any contract or
agreement, other than in the ordinary and usual course of business consistent
with past practice or amend in any material respect any material contracts or
agreements; (iii) authorize any new capital expenditure or expenditures which,
individually, is in excess of $50.0 million or, in the aggregate, are in excess
of $250.0 million; or (iv) enter into or amend any contract, agreement,
commitment or arrangement providing for the taking of any action that would be
prohibited hereunder;
(l) make or revoke any Tax election (other than an election to treat a
corporation as a "taxable REIT subsidiary" within the meaning of Section 856(l)
of the Code), settle or compromise any Tax liability, change (or make a request
to any taxing authority to change) any aspect of its method of accounting for
Tax purposes, or take any action or enter into any agreement which could
reasonably be expected to result in the termination of the Company's status as a
REIT;
(m) pay, discharge or satisfy any material claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the ordinary
and usual course of business consistent with past practice of liabilities
reflected or reserved against in the consolidated financial statements of the
Company and its subsidiaries or incurred in the ordinary and usual course of
business consistent with past practice or waive the benefits of, or agree to
modify in any manner, any confidentiality, standstill or similar agreement to
which the Company or any of its subsidiaries is a party;
(n) settle or compromise any pending or threatened suit, action or claim
relating to the transactions contemplated hereby;
(o) enter into any agreement or arrangement that limits or otherwise
restricts the Company or any of its subsidiaries or any successor thereto or
that could, after the Effective Time, limit or restrict the Surviving
Corporation and its affiliates (including Parent) or any successor thereto, from
engaging or competing in any line of business or in any geographic area; or
(p) take, propose to take, or agree in writing or otherwise to take, any of
the actions
15
described in Sections 6.1(a) through 6.1(o) or any action which would make any
of the representations or warranties of the Company contained in this Agreement
(i) which are qualified as to materiality untrue or incorrect or (ii) which are
not so qualified untrue or incorrect in any material respect.
SECTION 6.2 ACCESS TO INFORMATION. Between the date hereof and the
Effective Time, the Company will give Parent and Merger Sub and their authorized
representatives (including counsel, financial advisors and auditors) reasonable
access during normal business hours to all employees, offices and other
facilities and to all books and records of the Company and its subsidiaries,
will permit Parent and Merger Sub to make such inspections as Parent and Merger
Sub may reasonably require and will cause the Company's officers and those of
its subsidiaries to furnish Parent and Merger Sub with such financial and
operating data and other information with respect to the business, properties
and personnel of the Company and its subsidiaries as Parent or Merger Sub may
from time to time reasonably request, provided that no investigation pursuant to
this Section 6.2 shall affect or be deemed to modify any of the representations
or warranties made by the Company.
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.1 COMPANY STOCKHOLDER MEETING, PROXY STATEMENT. (a)
If required by applicable Law in order to consummate the Merger, the Company,
acting through the Company Board, shall, in accordance with applicable Law, its
articles of incorporation and by-laws:
(i) as promptly as practicable following the acceptance for payment
and purchase of Shares by Merger Sub pursuant to the Offer duly call, give
notice of, convene and hold a special meeting of its stockholders (the
"COMPANY STOCKHOLDER MEETING") for the purposes of considering and taking
action upon the approval of the Merger and the approval and adoption of
this Agreement;
(ii) prepare and file with the SEC a preliminary proxy or information
statement relating to the Merger and this Agreement and (x) obtain and
furnish the information required to be included by the SEC in the Proxy
Statement and, after consultation with Parent, respond promptly to any
comments made by the SEC with respect to the preliminary proxy or
information statement and cause a definitive proxy or information
statement, including any amendment or supplement thereto to be mailed to
its stockholders at the earliest practicable date; PROVIDED that no
amendment or supplement to the Proxy Statement will be made by the Company
without consultation with Parent and its counsel and (y) use its reasonable
best efforts to obtain the necessary approvals of the Merger and this
Agreement by its stockholders; and
(iii) unless this Agreement has been terminated in accordance with
Article IX, subject to its rights pursuant to Section 7.3, include in the
Proxy Statement the recommendation of the Company Board that stockholders
of the Company vote in favor of the approval of the Merger and the approval
and adoption of this Agreement.
(b) Parent shall vote, or cause to be voted, all of the Shares then
owned by it or Merger Sub in favor of the approval and adoption of this
Agreement. The Company has been advised that the Offer Affiliates currently
intend, subject to the requirements of applicable Law, to vote all of the Shares
owned by them in favor of the approval and adoption of this Agreement.
16
(c) Notwithstanding anything else in this Agreement, in the event that
Merger Sub shall acquire ownership of an aggregate number of the outstanding
shares of each class of capital stock of the Company, pursuant to the Offer or
otherwise, sufficient to enable Merger Sub or the Company to cause the Merger to
become effective under applicable Law without a meeting of stockholders of the
Company, the parties hereto shall, at the request of Parent and subject to
Article VIII below, take all necessary and appropriate action (including,
without limitation, modifying the provisions of Sections 2.5 and 3.1) to cause
the Merger to become effective as soon as practicable after the consummation of
such acquisition, without a meeting of stockholders of the Company, in
accordance with the terms of Section 351.447 of the MGBCL.
SECTION 7.2 REASONABLE BEST EFFORTS. Subject to the terms and conditions of
this Agreement, each party will 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 under applicable Laws to consummate the Offer and
the Merger and the other Transactions contemplated by this Agreement.
SECTION 7.3 ACQUISITION PROPOSALS. (a) From the date hereof until the
termination hereof, the Company will not, nor will it permit any of its
subsidiaries to, nor will it authorize or permit any officer, director or
employee of or any investment banker, attorney, accountant or other advisor or
representative of, the Company or any of its subsidiaries to, directly or
indirectly, (i) solicit, initiate or encourage the submission of any Acquisition
Proposal (as hereinafter defined) or (ii) participate in any discussions or
negotiations regarding, or furnish to any person any information with respect
to, or take any other action to facilitate, any Acquisition Proposal or any
inquiries or the making of any proposal that constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal. Notwithstanding the foregoing,
prior to the acceptance for payment of Shares pursuant to the Offer, the Company
may, to the extent required by the fiduciary obligations of the Company Board,
as determined in good faith by a majority of the disinterested members thereof
after consultation with outside counsel, in response to the Acquisition Proposal
that was made by a person whom the Special Committee determines, in good faith
after consultation with outside counsel and an independent financial advisor, to
be reasonably capable of making a Superior Company Proposal (as hereinafter
defined), that was not solicited by the Company and that did not otherwise
result from a breach of this Section 7.3(a), (x) furnish information with
respect to the Company to the person or group making such Acquisition Proposal
and its representatives pursuant to a customary confidentiality agreement and
(y) participate in discussions and negotiations with such person or group and
its representatives to the extent required regarding such Acquisition Proposal.
For purposes of this Agreement, "SUPERIOR COMPANY PROPOSAL" means any proposal
made by a third party to acquire all or substantially all the equity securities
or assets of the Company, pursuant to a tender or exchange offer, a merger, a
consolidation, a liquidation or dissolution, a recapitalization or a sale of all
or substantially all its assets, (i) on terms which a majority of the
disinterested directors of the Company determines in its good faith judgment to
represent superior value for the holders of Shares than the Offer and the
Merger, taking into account all the terms and conditions of such proposal and
this Agreement (including any proposal by Parent to amend the terms of this
Agreement, the Offer and the Merger) and (ii) that is reasonably capable of
being completed, taking into account all financial, regulatory, legal and other
aspects of such proposal.
(b) Neither the Company Board nor the Special Committee will withdraw or
modify, or propose to withdraw or modify, in a manner adverse to Parent, its
approval or recommendation of this Agreement, the Offer or the Merger unless the
Company Board or the Special Committee, after consultation with independent
legal counsel, determines in good faith that such action is necessary for the
Company Board or the Special Committee to comply with its fiduciary duties under
applicable Law.
17
Nothing contained in this Section 7.3(b) shall prohibit the Company from taking
and disclosing to its stockholders a position contemplated by Rule 14e-2(a)
promulgated under the Exchange Act or from making any disclosure to the
Company's stockholders if, in the good faith reasonable judgment of the Company
Board or the Special Committee, after consultation with independent legal
counsel, failure so to disclose would be inconsistent with its obligations under
applicable Law; PROVIDED, that except as otherwise permitted in this Section
7.3(b), the Company shall not withdraw or modify, or propose to withdraw or
modify, its position with respect to the Offer or the Merger or approve or
recommend, or propose to approve or recommend, an Acquisition Proposal.
Notwithstanding anything contained in this Agreement to the contrary, any action
by the Company Board or the Special Committee permitted by, and taken in
accordance with, this Section 7.3(b) shall not constitute a breach of this
Agreement by the Company. Nothing in this Section 7.3(b) shall (i) permit the
Company to terminate this Agreement (except as provided in Article IX hereof) or
(ii) affect any other obligations of the Company under this Agreement.
SECTION 7.4 PUBLIC ANNOUNCEMENTS. Each of Parent, Merger Sub and the
Company will consult with one another before issuing any press release or
otherwise making any public statements with respect to the transactions
contemplated by this Agreement, including, without limitation, the Merger, and
shall not issue any such press release or make any such public statement prior
to such consultation, except as may be required by applicable Law or by
obligations pursuant to any listing agreement with the New York Stock Exchange
or the Australian Stock Exchange, as applicable, as reasonably determined in
good faith, after consultation with legal counsel, by Parent, Merger Sub or the
Company, as the case may be.
SECTION 7.5 INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE. (a)
Following the Effective Time, Parent shall cause the Surviving Corporation, to
the fullest extent permitted by applicable Law, to indemnify, defend and hold
harmless each person who is now, or has been at any time prior to the date
hereof, or who becomes prior to the Effective Time, a director, officer, agent,
representative or employee of the Company (each an "INDEMNIFIED PARTY" and,
collectively, the "INDEMNIFIED PARTIES") against all losses, expenses (including
reasonable attorneys' fees and expenses), claims, damages or liabilities or,
subject to the proviso of the next succeeding sentence, amounts paid in
settlement, arising out of actions or omissions occurring at or prior to the
Effective Time and whether asserted or claimed prior to, at or after the
Effective Time that are in whole or in part (i) based on, or arising out of the
fact that such person is or was a director, officer, agent, representative or
employee of the Company or (ii) based on, arising out of or pertaining to the
transactions contemplated by this Agreement. In the event of any such loss,
expense, claim, damage or liability (whether or not arising before the Effective
Time), (i) the Surviving Corporation shall advance the reasonable fees and
expenses of counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to the Surviving Corporation, promptly after statements
therefor are received and otherwise advance to such Indemnified Party upon
request reimbursement of documented expenses reasonably incurred, in either case
to the extent not prohibited by the MGBCL and upon receipt of any affirmation
and undertaking required by the MGBCL, (ii) the Surviving Corporation will
cooperate in the defense of any such matter and (iii) any determination required
to be made with respect to whether an Indemnified Party's conduct complies with
the standards set forth under the MGBCL and the Company's articles of
incorporation or bylaws shall be made by independent counsel mutually acceptable
to Parent and the Indemnified Party; PROVIDED, HOWEVER, that the Surviving
Corporation shall not be liable for any settlement effected without its written
consent. The Indemnified Parties as a group may retain only one law firm with
respect to each related matter except to the extent there is, in the opinion of
counsel to an Indemnified Party, under applicable standards of professional
conduct, a conflict on any significant issue between positions of any
18
two or more Indemnified Parties.
(b) For a period of six (6) years after the Effective Time, the Surviving
Corporation shall cause to be maintained in effect the policies of directors'
and officers' liability insurance maintained by the Company for the benefit of
those persons who are covered by such policies at the Effective Time (or the
Surviving Corporation may substitute therefor policies of at least the same
coverage with respect to matters occurring prior to the Effective Time), to the
extent that such liability insurance can be maintained annually at a cost to the
Surviving Corporation not greater than 150 percent of the premium for the
current Company directors' and officers' liability insurance; PROVIDED THAT if
such insurance cannot be so maintained or obtained at such costs, the Surviving
Corporation shall maintain or obtain as much of such insurance as can be so
maintained or obtained at a cost equal to 150 percent of the current annual
premiums of the Company for such insurance.
(c) In the event the Surviving Corporation or any of its successors or
assigns (i) consolidates with or merges into any other person and shall not be
the continuing or surviving corporation or entity of such consolidation or
merger or (ii) transfers all or substantially all of its properties and assets
to any person, then and in either such case, proper provision shall be made so
that the successors and assigns of the Surviving Corporation shall assume the
obligations set forth in this Section 7.5.
(d) To the fullest extent permitted by Law, from and after the Effective
Time, all rights to indemnification now existing in favor of the employees,
agents, directors or officers of the Company with respect to their activities as
such prior to the Effective Time, as provided in the Company's articles of
incorporation or bylaws, in effect on the date thereof or otherwise in effect on
the date hereof, shall survive the Merger and shall continue in full force and
effect for a period of not less than six years from the Effective Time.
(e) The provisions of this Section 7.5 are intended to be for the benefit
of, and shall be enforceable by, each Indemnified Party, his or her heirs and
his or her representatives.
SECTION 7.6 NOTIFICATION OF CERTAIN MATTERS. The Company shall give prompt
notice to Parent and Merger Sub, and Parent and Merger Sub shall give prompt
notice to the Company, of (i) the occurrence or nonoccurrence of any event the
occurrence or nonoccurrence of which would be likely to cause any representation
or warranty contained in this Agreement, which is qualified as to materiality,
to be untrue or inaccurate, or any representation or warranty not so qualified,
to be untrue or inaccurate in any material respect at or prior to the Effective
Time, (ii) any material failure of the Company, Parent or Merger Sub, as the
case may be, to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it hereunder, (iii) any notice of, or other
communication relating to, a default or event which, with notice or lapse of
time or both, would become a default, received by it or any of its subsidiaries
subsequent to the date of this Agreement and prior to the Effective Time, under
any contract or agreement material to the financial condition, properties,
businesses or results of operations of it and its subsidiaries taken as a whole
to which it or any of its subsidiaries is a party or is subject, (iv) any notice
or other communication from any third party alleging that the consent of such
third party is or may be required in connection with the transactions
contemplated by this Agreement, or (v) any Material Adverse Effect in their
respective financial condition, properties, businesses or results of operations,
taken as a whole, other than changes resulting from general economic conditions;
PROVIDED, HOWEVER, that the delivery of any notice pursuant to this Section 7.6
shall not cure such breach or non-compliance or limit or otherwise affect the
remedies
19
available hereunder to the party receiving such notice.
SECTION 7.7 SEC FILINGS. Each of Parent and the Company shall promptly
provide the other party (or its counsel) with copies of all filings made by the
other party or any of its subsidiaries with the SEC or any other Governmental
Entity in connection with this Agreement and the transactions contemplated
hereby.
SECTION 7.8 OBLIGATIONS OF MERGER SUB. Subject to the terms of this
Agreement, Parent will take all reasonable action necessary to cause Merger Sub
(i) to be incorporated prior to the Effective Time and become a party to this
Agreement by executing a counterpart of this Agreement where indicated on the
signature page hereof (the date of such execution, the "JOINDER DATE") and (ii)
to perform its obligations under this Agreement and to consummate the Merger on
the terms and conditions set forth in this Agreement. All representations,
warranties, covenants, agreements, rights and obligations of Merger Sub herein
shall become effective as to Merger Sub as of the Joinder Date.
SECTION 7.9 ANTITAKEOVER STATUTES. If any Takeover Statute is or may become
applicable to the Covered Transactions, each of Parent, Merger Sub and the
Company shall take such actions as are necessary so that the Covered
Transactions may be consummated as promptly as practicable on the terms
contemplated hereby and otherwise act to eliminate or minimize the effects of
any Takeover Statute on the Covered Transactions.
SECTION 7.10 STOCKHOLDER LITIGATION. The Company shall give Parent
reasonable opportunity to participate in the defense of any stockholder
litigation against the Company and/or its officers and directors relating to the
transactions contemplated hereby.
SECTION 7.11 INTERIM DIVIDEND. (a) Parent and the Company hereby agree that
if and to the extent that Parent does not accept for payment and pay for all
Shares validly tendered and not withdrawn pursuant to the Offer after the
expiration of the Offer (the "OFFER COMPLETION") prior to March 20, 2001, the
Company Board shall on such date declare a dividend for the fiscal quarter ended
March 31, 2001, of $0.3725 per share (or such other amount as the Company Board
determines based upon the estimated earnings for the fiscal year and the
applicable distribution requirements under the Code) of Common Stock (the "FIRST
QUARTER DIVIDEND AMOUNT"), such dividend to be paid on the earlier of (x) the
date of the Offer Completion and (y) April 30, 2001 to holders of record of
shares of Common Stock on March 30, 2001 or such earlier date of the Offer
Completion.
(b) Parent and the Company hereby agree that if and to the extent that the
Offer Completion does not occur prior to June 19, 2001, the Company Board shall
on such date declare a dividend for the fiscal quarter ended June 30, 2001, of
$0.3725 per share (or such other amount as the Company Board determines based
upon the estimated earnings for the fiscal year and the applicable distribution
requirements under the Code) of Common Stock (the "SECOND QUARTER DIVIDEND
AMOUNT"), such dividend to be paid on the earlier of (x) the date of the Offer
Completion and (y) July 31, 2001 to holders of record of Common Stock on June
30, 2001 or such earlier date of the Offer Completion.
(c) If Parent determines that the Offer Completion is reasonably likely to
occur prior to March 20, 2001, it shall deliver notice (a "FIRST QUARTER
NOTICE") to such effect to the Company, which First Quarter Notice shall include
Parent's reasonable estimate of the anticipated date of the Offer
20
Completion (the "ESTIMATED FIRST QUARTER CLOSING DATE") and which First Quarter
Notice shall be delivered no less than fifteen days prior to the Estimated First
Quarter Closing Date. Upon receipt of such a First Quarter Notice, the Company
Board shall promptly (and no later than four days after receipt of the First
Quarter Notice) declare a dividend equal to the Pro Rata First Quarter Dividend
Amount (as defined below), such dividend to be paid on the earlier of (x) the
Estimated First Quarter Closing Date and (y) the date of the Offer Completion to
holders of record of Common Stock on a date no less than 10 days prior to the
Estimated First Quarter Closing Date. "PRO RATA FIRST QUARTER DIVIDEND AMOUNT"
shall equal the First Quarter Dividend Amount MULTIPLIED by a fraction (1) the
numerator of which shall be the number of days from January 1, 2001 until the
Estimated First Quarter Closing Date and (2) the denominator of which shall be
90.
(d) If Parent determines that the Offer Completion is reasonably likely to
occur after April 1, 2001 but prior to June 19, 2001, it shall deliver notice (a
"SECOND QUARTER NOTICE") to such effect to the Company, which Second Quarter
Notice shall include Parent's reasonable estimate of the anticipated date of the
Offer Completion (the "ESTIMATED SECOND QUARTER CLOSING DATE") and which Second
Quarter Notice shall be delivered no less than fifteen days prior to the
Estimated Second Quarter Closing Date. Upon receipt of such a Second Quarter
Notice, the Company Board shall promptly (and no later than four days after
receipt of the Second Quarter Notice) declare a dividend equal to the Pro Rata
Second Quarter Dividend Amount (as defined below), such dividend to be paid on
the earlier of (x) the Estimated Second Quarter Closing Date and (y) the date of
the Offer Completion to holders of record of Common Stock on a date no less than
10 days prior to the Estimated Second Quarter Closing Date. "PRO RATA SECOND
QUARTER DIVIDEND AMOUNT" shall equal the Second Quarter Dividend Amount
MULTIPLIED by a fraction (1) the numerator of which shall be the number of days
from April 1, 2001 until the Estimated Second Quarter Closing Date and (2) the
denominator of which shall be 91.
(e) If the actual date of the Offering Completion occurs on or prior to the
fifteenth day after the Estimated First Quarter Closing Date, no further
dividends shall be paid by the Company to the holders of Common Stock other than
the dividend paid in accordance with Section 7.11(c) above. However, if the date
of the Offering Completion does not occur on or prior to such fifteenth day, the
provisions of Sections 7.11(a), (b), (c) and (d) shall remain applicable;
PROVIDED, HOWEVER, that upon the further application of such Sections 7.11(a)
and (c) there shall be deducted from the First Quarter Dividend Amount or the
Pro Rata First Quarter Dividend Amount, as the case may be, any amounts paid as
a Pro Rata First Quarter Dividend Amount under previous application(s) of
Section 7.11(c) above.
(f) If the actual date of the Offering Completion occurs on or prior to the
fifteenth day after the Estimated Second Quarter Closing Date, no further
dividends shall be paid by the Company to the holders of Common Stock other than
the dividends paid in accordance with Sections 7.11(a) and (d) above. However,
if the date of the Offering Completion does not occur on or prior to such
fifteenth day, the provisions of Sections 7.11(b) and (d) shall remain
applicable; PROVIDED, HOWEVER, that upon the further application of such
sections there shall be deducted from the Second Quarter Dividend Amount or the
Pro Rata Second Quarter Dividend Amount, as the case may be, any amounts paid as
a Pro Rata Second Quarter Dividend Amount under previous application(s) of
Section 7.11(d) above.
(g) Parent and the Company agree to use their reasonable best efforts to
modify the terms of this Section 7.11 if and to the extent necessary to preserve
the intent and purpose of this Section 7.11.
SECTION 7.12 PARTNERSHIP REDEMPTIONS. For a period of one year following
21
the Effective Time, Parent and the Company hereby agree that the Value of a Reit
Share (as such term is defined in the First Amended and Restated Agreement of
Limited Partnership of Westfield America Limited Partnership, as amended (the
"OP PARTNERSHIP AGREEMENT")) shall be no less than the Offer Price for purposes
of determining the cash amount payable to holders of Partnership Common Units or
Investor Unit Rights (as such terms are defined in the OP Partnership Agreement)
upon redemption of such securities. In addition, Parent and the Company hereby
agree that no such redemption shall be satisfied using Reit Shares if such Reit
Shares are not publicly-traded at the time of such redemption.
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 8.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE MERGER.
The respective obligations of each party to consummate the transactions
contemplated by this Agreement are subject to the fulfillment at or prior to the
Effective Time of each of the following conditions, any or all of which may be
waived in whole or in part by the party being benefitted thereby, to the extent
permitted by applicable Law:
(a) This Agreement shall have been approved and adopted by the Company
Requisite Vote, if required by applicable Law.
(b) There shall not be in effect any Law of any Governmental Entity of
competent jurisdiction, restraining, enjoining or otherwise preventing
consummation of the transactions contemplated by this Agreement or permitting
such consummation only subject to any condition or restriction that has or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company (or an effect on Parent and its subsidiaries that,
were such effect applied to the Company and its subsidiaries, has or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company).
(c) Parent or its affiliates shall have purchased all Shares validly
tendered and not withdrawn pursuant to the Offer.
ARTICLE IX
TERMINATION; AMENDMENT; WAIVER
SECTION 9.1 TERMINATION. This Agreement may be terminated and the Merger
contemplated herein may be abandoned at any time prior to the Effective Time,
whether before or after approval of matters presented in connection with the
Merger by the stockholders of the Company:
(a) By the mutual written consent of Parent and the Company;
(b) By either of Parent or the Company if (i) a statute, rule or executive
order shall have been enacted, entered or promulgated prohibiting the
Transactions on the terms contemplated by this Agreement or (ii) any
Governmental Entity shall have issued an order, decree or ruling or taken any
other action (which order, decree, ruling or other action the parties hereto
shall use their reasonable best efforts to lift), in each case permanently
restraining, enjoining or otherwise prohibiting the Transactions and such
22
order, decree, ruling or other action shall have become final and
non-appealable.
(c) By either of Parent or the Company if the Offer has not been
consummated on or before the ninetieth (90) day following the commencement of
the Offer (or, if such date is not a business day in the United States, the
first such business day thereafter); PROVIDED, that the party seeking to
terminate this Agreement pursuant to this Section 9.1(c) shall not have breached
in any material respect its obligations under this Agreement in any manner that
shall have proximately contributed to the failure to consummate the Merger on or
before such date;
(d) By the Company:
(i) if Parent shall have terminated the Offer or the Offer expires without
Parent purchasing any Shares pursuant thereto; PROVIDED, that the Company may
not terminate this agreement pursuant to this Section 9.1(d)(i) if the Company
is in material breach of this Agreement; or
(ii) if there shall be a material breach by Parent or Merger Sub of any of
their representations, warranties, covenants or agreements contained in this
Agreement; or
(e) By Parent or Merger Sub:
(i) If prior to the purchase of the Shares pursuant to the Offer, (A) the
Company Board or the Special Committee shall have withdrawn, or modified or
changed in a manner adverse to Parent or Merger Sub its approval or
recommendation of the Offer, this Agreement or the Merger or shall have
recommended or approved an Acquisition Proposal, or (B) there shall have been a
material breach of any provision of Section 7.3; or
(ii) if Parent shall have terminated the Offer without Parent purchasing
any Shares thereunder; PROVIDED that Parent or Merger Sub may not terminate this
Agreement pursuant to this Section 9.1(e)(ii) if Parent or Merger Sub is in
material breach of this Agreement; or
(iii) if there shall be a material breach by the Company of any of its
representations, warranties, covenants or agreements contained in this
Agreement.
SECTION 9.2 EFFECT OF THE TERMINATION. In the event of termination of this
Agreement by either the Company or Parent or Merger Sub as provided in Section
9.1, this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Parent, Merger Sub or the Company, other
than the provisions of this Section 9.2, Section 9.3 and Article X and except to
the extent that such termination results from the willful and material breach by
a party of any of its representations, warranties, covenants or agreements set
forth in this Agreement.
SECTION 9.3 FEES AND EXPENSES. (a) Except as provided below, all fees and
expenses incurred in connection with the Offer, the Merger, this Agreement and
the Transactions shall be paid by the party incurring such fees or expenses,
whether or not the Offer or the Merger is consummated.
(b) If Parent or Merger Sub terminates this Agreement pursuant to Section
9.1(e)(i), then the Company shall pay, or cause to be paid to Parent, at the
time of termination, an amount equal to Parent's and Merger Sub's actual and
reasonably documented out-of-pocket expenses incurred by Parent
23
or Merger Sub in connection with the Offer, the Merger, this Agreement and the
consummation of the Transactions, including, without limitation, the fees (other
than any break-up, success or other contingent fee) and out-of-pocket expenses
payable to all banks, investment banking firms and other financial institutions
and persons and their respective agents and counsel incurred in connection with
acting as Parent's or Merger Sub's financial advisor with respect to, or
arranging or committing to provide or providing any financing for, the
Transactions up to an aggregate of $5.0 million (the "EXPENSES"). Any payments
required to be made pursuant to this Section 9.3 shall be made by wire transfer
of same day funds to an account designated by Parent.
(c) The Company shall pay all Company Taxes, such as (a) transfer, stamp
and documentary Taxes or fees and (b) sales, use, gains, real property transfer
and other or similar Taxes or fees, incident to preparing for, entering into and
carrying out this Agreement and the consummation of the transactions
contemplated hereby.
(d) The Company acknowledges that the agreements contained in this Section
9.3 are an integral part of the transactions contemplated by this Agreement, and
that, without these agreements, Parent and Merger Sub would not have entered
into this Agreement; accordingly, if the Company fails to promptly pay the
amount due pursuant to this Section 9.3, and, in order to obtain such payment,
Parent commences a suit which results in a judgment against the Company for the
fee set forth in this Section 9.3, the Company shall pay to Parent its costs and
expenses (including attorneys' fees) in connection with such suit, together with
interest from the date of termination of this Agreement on the amounts owed at
the prime rate of Citibank, N.A. in effect from time to time during such period
plus two percent.
SECTION 9.4 AMENDMENT. This Agreement may be amended by action taken by the
Company, Parent and Merger Sub at any time before or after approval of the
Merger by the Company Requisite Vote but, after any such approval, no amendment
shall be made which requires the approval of such stockholders under applicable
Law without such approval; provided, however, that no amendment shall be made
without the approval of the Special Committee. This Agreement may not be amended
except by an instrument in writing signed on behalf of the parties hereto.
SECTION 9.5 EXTENSION; WAIVER. At any time prior to the Effective Time,
each party hereto (for these purposes, Parent and Merger Sub shall together be
deemed one party and the Company shall be deemed the other party) may (i) extend
the time for the performance of any of the obligations or other acts of the
other party, (ii) waive any inaccuracies in the representations and warranties
of the other party contained herein or in any document, certificate or writing
delivered pursuant hereto, or (iii) waive compliance by the other party with any
of the agreements or conditions contained herein. Any agreement on the part of
either party hereto to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party. The failure of
either party hereto to assert any of its rights hereunder shall not constitute a
waiver of such rights.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations, warranties, covenants and agreements in this Agreement or in
any exhibit, schedule or instrument delivered pursuant to this Agreement shall
survive beyond the Effective Time, except for those covenants and agreements
contained herein and therein that by their terms apply or are to
24
be performed in whole or in part after the Effective Time and this Article X.
This Section 10.1 shall not limit any covenant or agreement of the parties which
by its terms contemplates performance after the Effective Time.
SECTION 10.2 ENTIRE AGREEMENT; ASSIGNMENT. (a) This Agreement constitutes
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(b) Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by operation of Law (including, but not limited to,
by merger or consolidation) or otherwise; PROVIDED, HOWEVER, that Merger Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations under this Agreement to any other affiliate of Parent, but no such
assignment shall relieve Parent or Merger Sub of its obligations hereunder if
such assignee does not perform such obligations. Any assignment in violation of
the preceding sentence shall be void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 10.3 NOTICES. All notices, requests, instructions or other
documents to be given under this Agreement shall be in writing and shall be
deemed given, (i) five business days following sending by registered or
certified mail, postage prepaid, (ii) when sent if sent by facsimile; PROVIDED,
that the fax is promptly confirmed by telephone confirmation thereof, (iii) when
delivered, if delivered personally to the intended recipient and (iv) one
business day following sending by overnight delivery via a national courier
service, and in each case, addressed to a party at the following address for
such party:
if to Parent or
to Merger Sub, to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇
with a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Company, to:
Westfield America, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
25
with a copy to: Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
SECTION 10.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Delaware, without giving
effect to the choice of Law principles thereof (other than those provisions set
forth herein that are required to be governed by the MGBCL).
SECTION 10.5 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION 10.6 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its successors and
permitted assigns, and, except as provided in Section 7.5, nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
SECTION 10.7 SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is invalid or unenforceable, (a) if necessary, a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
SECTION 10.8 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to seek an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of Delaware or in Delaware state court, this
being in addition to any other remedy to which they are entitled at Law or in
equity. In addition, each of the parties hereto (a) consents to submit itself to
the personal jurisdiction of any federal court located in the State of Delaware
or any Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, and (c) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated hereby
in any court other than a federal or state court sitting in the State of
Delaware.
26
SECTION 10.9 WAIVER OF JURY TRIAL. Each of the parties hereto hereby waives
to the fullest extent permitted by applicable Law any right it may have to a
trial by jury with respect to any litigation directly or indirectly arising out
of, under or in connection with this Agreement or the transactions contemplated
hereby. Each of the parties hereto (a) certifies that no representative, agent
or attorney of any other party has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to enforce that
foregoing waiver and (b) acknowledges that it and the other hereto have been
induced to enter into this Agreement and the Transactions, as applicable, by,
among other things, the mutual waivers and certifications in this Section 10.9.
SECTION 10.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
SECTION 10.11 INTERPRETATION. (a) The words "hereof," "herein" and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit and
schedule references are to the articles, sections, paragraphs, exhibits and
schedules of this Agreement unless otherwise specified. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." All terms defined in
this Agreement shall have the defined meanings contained herein when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein. The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms. Any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or
statute as from time to time, amended, qualified or supplemented, including (in
the case of agreements and instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor statutes and all attachments
thereto and instruments incorporated therein. References to a person are also to
its permitted successors and assigns.
(b) The phrases "THE DATE OF THIS AGREEMENT," "THE DATE HEREOF" and terms
of similar import, unless the context otherwise requires, shall be deemed to
refer to February 14, 2001.
(c) The parties have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
SECTION 10.12 DEFINITIONS. (a) "ACQUISITION PROPOSAL" means an offer or
proposal regarding any of the following (other than the transactions
contemplated by this Agreement) involving the Company or any of its
subsidiaries: (i) any merger, consolidation, share exchange, recapitalization,
business combination or other similar transaction; (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of all or a
significant portion of the assets of the Company and its subsidiaries, taken as
a whole, in a single transaction or series of related transactions; (iii) any
tender offer or exchange offer for ten percent (10%) or more of the outstanding
shares of Common Stock or the filing of any document under the Securities Act of
1933, as amended, or Exchange Act in connection therewith; (iv) any other
transaction the consummation of which would reasonably be expected to impede,
interfere with, prevent or materially delay the transactions contemplated by
this Agreement; or (v) any public announcement of a proposal, plan or intention
to do any of the foregoing or any agreement to engage in
27
any of the foregoing.
(b) "BENEFICIAL OWNERSHIP" or "BENEFICIALLY OWN" shall have the meaning
provided in Section 13(d) of the Exchange Act and the rules and regulations
thereunder.
(c) "KNOW" or "KNOWLEDGE" means, with respect to any party, the actual
knowledge of such party's executive officers, without any duty of inquiry.
(d) "LAW" means any law, statute, order, writ, injunction, decree,
ordinance, award, stipulation, statute, judicial or administrative doctrine,
rule or regulation entered by any Governmental Entity.
(e) "MATERIAL ADVERSE EFFECT" means with respect to any entity, any event,
circumstance, change, effect or development that, individually or in the
aggregate with all other events, circumstances, changes, effects or development,
is or would reasonably be expected to be materially adverse to (i) the assets,
properties, condition (financial or otherwise) or results of operations of such
entity and its subsidiaries taken as a whole or (ii) the ability of such party
to consummate the transactions contemplated by this Agreement, excluding any
such effect resulting from or arising in connection with (A) general economic
conditions affecting generally the industry in which the Company competes or (B)
general market conditions in the United States.
(f) "PERSON" means an individual, corporation, limited liability company,
partnership, association, trust, unincorporated organization, other entity or
group (as defined in the Exchange Act).
(g) "SUBSIDIARY" means, when used with reference to any entity, any
corporation or other organization, whether incorporated or unincorporated, (i)
of which such party or any other subsidiary of such party is a general or
managing partner or (ii) a majority of the outstanding voting securities or
interests of which, having by their terms ordinary voting power to elect a
majority of the board of directors or others performing similar functions with
respect to such corporation or other organization, is directly or indirectly
owned or controlled by such party or by any one or more of its subsidiaries.
(h) "TAX" or "TAXES" means all Taxes, charges, fees, imposts, levies,
gaming or other assessments, including, without limitation, all net income,
gross receipts, capital, sales, use, ad valorem, value added, transfer,
franchise, profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp, occupation,
property and estimated Taxes, customs duties, fees, assessments and charges of
any kind whatsoever, together with any interest and any penalties, fines,
additions to Tax or additional amounts imposed by any taxing authority (domestic
or foreign) and shall include any transferee liability in respect of Taxes, any
liability in respect of Taxes imposed by contract, Tax sharing agreement, Tax
indemnity agreement or any similar agreement.
[signature page follows]
28
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
WESTFIELD AMERICA MANAGEMENT LIMITED,
in its capacity as responsible entity and
trustee of
WESTFIELD AMERICA TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
WESTFIELD AMERICA, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
▇▇▇ ▇. ▇▇▇▇▇▇, on behalf of
the Special Committee of
the Board of Directors of
Westfield America, Inc.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
AGREED AND ACCEPTED as of
_______ __, 2001
MALL ACQUISITION CORP.
By:
-------------------------------------------------
Name:
Title:
29
ANNEX A
CONDITIONS TO THE OFFER
Capitalized terms used but not defined herein shall have the meanings set
forth in the Agreement and Plan of Merger of which this Annex A is a part.
Notwithstanding any other provision of the Offer, Parent shall not be required
to accept for payment or, subject to any applicable rules and regulations of the
SEC, including Rule 14e-1(c) under the Exchange Act (relating to Parent's
obligation to pay for or return tendered Shares promptly after termination or
withdrawal of the Offer), pay for, and may delay the acceptance for payment of
or, subject to the restriction referred to above, the payment for, any tendered
Shares, and, subject to the terms of the Agreement, may delay acceptance for
payment or terminate the Offer and not accept for payment any tendered Shares,
if at any time on or after the date of the Agreement and prior to the acceptance
for payment of Shares pursuant to the Offer, any of the following events shall
occur:
(a) there shall be any Law enacted, promulgated or deemed applicable to the
Offer or the Merger, or any suit, action or proceeding by any Governmental
Entity shall be pending (i) challenging or seeking to make illegal, materially
delay, or otherwise, directly or indirectly, restrain or prohibit or make
materially more costly, the making of the Offer, the acceptance for payment of
any tendered Shares, or the purchase of Shares, or the consummation of the
Merger, or seeking to obtain material damages in connection with the Offer or
the Merger, (ii) seeking to prohibit or impose any material limitations on
Parent's or Merger Sub's ownership or operation (or that of any of their
respective subsidiaries or affiliates) of all or a material portion of their or
the Company's businesses or assets, (iii) seeking to compel Parent or Merger Sub
or their respective subsidiaries and affiliates to dispose of or hold separate
any material portion of the business or assets of the Company or Parent and
their respective subsidiaries, in each case taken as a whole, (iv) seeking to
impose material limitations on the ability of Parent or Merger Sub, or rendering
Parent or Merger Sub unable, to accept for payment, pay for or purchase some or
all of the Shares pursuant to the Offer and the Merger, (v) imposing material
limitations on the ability of Merger Sub or Parent effectively to exercise full
rights of ownership of the Shares, including, without limitation, the right to
vote the Shares purchased by it on all matters properly presented to the
Company's stockholders, (vi) limit or prohibit any material business activity by
Parent, Merger Sub or any of their respective subsidiaries or affiliates,
including, without limitation, requiring the prior consent of any person or
entity (including any Governmental Entity) to future transactions by Parent,
Merger Sub or any of their respective subsidiaries or affiliates, or (vii) which
otherwise would reasonably be expected to have a Material Adverse Effect on the
Company or, as a result of the Transactions, Parent and its subsidiaries; or
(b) there shall have occurred (1) any general suspension of trading in, or
limitation on prices for, securities on the New York Stock Exchange, the
American Stock Exchange, the Australian Stock Exchange, and in the Nasdaq
National Market System (excluding suspensions or limitations resulting solely
from physical damage or interference with such exchanges not related to market
conditions), (2) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or Australia (whether or not
mandatory), (3) any limitation or proposed limitation (whether or not mandatory)
by any United States or Australian Governmental Entity that has a material
adverse effect generally on the extension of credit by banks or other financial
institutions, or (4) in the case of any of the situations in clauses (1) through
(3) inclusive, existing at the time of the commencement of the Offer, a material
acceleration or worsening thereof; or
(c) the representations and warranties of the Company set forth in the
Agreement shall not
A-1
be true and accurate as of the date of consummation of the Offer as though made
on or as of such date (except for those representations and warranties that
address matters only as of a particular date or only with respect to a specific
period of time which need only be true and accurate as of such date or with
respect to such period) except, in each case where the failures of such
representations and warranties to be true and accurate (without giving effect to
any limitation as to "materiality" or "material adverse effect" set forth
therein) do not or would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on the Company; or
(d) the Company shall have failed to perform, in any material respect, any
obligation or to comply, in any material respect, with any material agreement or
covenant of the Company to be performed or complied with by it under the
Agreement; or
(e) the Company Board or the Special Committee (i) shall have withdrawn, or
modified or changed in a manner adverse to Parent or Merger Sub (including by
amendment of the Schedule 14D-9) its recommendation of the Offer, the Agreement,
or the Merger, (ii) shall have recommended an Acquisition Proposal, or (iii)
shall have adopted any resolution to effect any of the foregoing; or
(f) it shall have been publicly disclosed, or Parent or Merger Sub shall
have otherwise learned, that beneficial ownership (determined for the purposes
of this paragraph as set forth in Rule 13d- 3 promulgated under the Exchange
Act) of 10% or more of the then-outstanding Shares has been acquired by any
person, other than Parent or any of its affiliates; or
(g) since the date of the Agreement there shall have occurred any event,
circumstance, change, effect or development that, individually or in the
aggregate with any other events, circumstances, changes, effects or
developments, has had or would reasonably be expected to have a Material Adverse
Effect on the Company; or
(h) the Agreement shall have been terminated in accordance with its terms;
which in the sole judgment of Parent or Merger Sub, in any such case, and
regardless of the circumstances (including any action or inaction by Parent or
Merger Sub) giving rise to such condition makes it inadvisable to proceed with
the Offer and/or with such acceptance for payment of or payments for Shares.
The foregoing conditions are for the sole benefit of Parent and Merger Sub
and may be waived by Parent or Merger Sub, in whole or in part, at any time and
from time to time, in the sole discretion of Parent or Merger Sub. The failure
by Parent or Merger Sub at any time to exercise any of the foregoing rights
shall not be deemed a waiver of any right and each such right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
A-2
ANNEX B
OFFER AFFILIATES
Westfield Corporation, Inc.
Westfield American Investments Pty. Limited
B-1
SCHEDULE 2.2(ii)
STATE OF MISSOURI
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, SECRETARY ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. 65102
Corporation Division
ARTICLES OF MERGER
(To be submitted in duplicate)
Pursuant to the provisions of The General and Business Corporation Law
of Missouri, the undersigned corporations certify the following:
(1) That WESTFIELD AMERICA, INC. of MISSOURI
------------------------- ----------------------
(Name of Corporation) (Parent State)
(2) That MALL ACQUISITION CORP. of DELAWARE
------------------------- ----------------------
(Name of Corporation) (Parent State)
are hereby merged and that the above named WESTFIELD AMERICA, INC.
---------------------------
is the surviving corporation. (Name of Corporation)
(3) That the Board of Directors of WESTFIELD AMERICA, INC.
----------------------------------------
(Name of Corporation)
met on , 2001 and by resolution adopted by a majority vote of the
members of such board approved the Plan of Merger set forth in these
articles.
(4) That the Board of Directors of MALL ACQUISITION CORP.
----------------------------------------
(Name of Corporation)
met on , 2001 and by resolution adopted by a majority vote of the
members of such board approved the Plan of Merger set forth in these
articles.
(5) The Plan of Merger thereafter was submitted to a vote at the special
meeting of the shareholders of WESTFIELD AMERICA, INC. held on
,2001 at and at such meeting there were shares
entitled to vote and voted in favor and
voted against said plan.
(6) The Plan of Merger thereafter was submitted to a vote at the special
meeting of the shareholders of MALL ACQUISITION CORP. held on ,
2001 at and at such meeting there were shares
entitled to vote and voted in favor
and voted against said plan.
(7) PLAN OF MERGER
1. WESTFIELD AMERICA, INC. of MISSOURI is the survivor.
2. All of the property, rights, privileges, leases and patents of
MALL ACQUISITION CORP. are to be transferred to and become the
property of WESTFIELD AMERICA, INC. the survivor. The officers
and board of directors of the above named corporations are
authorized to execute all deeds, assignments, and documents of
every nature which may be needed to effectuate a full and
complete transfer of ownership.
3. The officers of WESTFIELD AMERICA, INC. and board of directors of
MALL ACQUISITION CORP. shall be the
-1-
officers and directors of the surviving corporation until their
successors are duly elected and qualified under the provisions of the
bylaws of the surviving corporation.
4. The Merger shall have the following effects on the outstanding shares of
WESTFIELD AMERICA, INC. :
(a) CANCELLATION OF TREASURY STOCK. All shares of common stock, par
value $.01 per share (the "COMMON STOCK"), voting senior preferred
stock, par value $1.00 per share (the "SENIOR PREFERRED STOCK"),
preferred stock, par value $1.00 per share (the "PREFERRED STOCK"),
and excess stock, par value $.01 per share (the "EXCESS STOCK"), of
Westfield America, Inc. that are owned by Westfield America, Inc. or
any subsidiary of Westfield America, Inc. shall no longer be
outstanding, shall be cancelled and retired without payment of any
consideration therefor and shall cease to exist.
(b) RETENTION OF SHARES.
(i) Each share of Common Stock owned by Westfield America Trust,
Mall Acquisition Corp., Westfield American Investments Pty.
Limited and Westfield Corporation, Inc. issued and outstanding
immediately prior to the effective time of the Merger shall be
retained and remain outstanding as a share of Common Stock of
Westfield America, Inc. as the surviving corporation.
(ii) Each share of Senior Preferred Stock, Preferred Stock and
Excess Stock issued and outstanding immediately prior to the
effective time of the Merger (other than any such shares
cancelled pursuant to clause (a) above) shall be retained and
remain outstanding as a share of Senior Preferred Stock,
Preferred Stock or Excess Stock, as applicable, of Westfield
America, Inc. as the surviving corporation.
(c) EXCHANGE OF SHARES. Each issued and outstanding share of Common
Stock (other than shares of Common Stock to be cancelled in accordance
with clause (a) above, shares of Common Stock to be retained in
accordance with clause (b)(i) above, and shares of Common Stock that
are outstanding immediately prior to the effective time of the Merger
and that are held by shareholders who shall have neither voted in
favor of the Merger nor consented thereto in writing and who shall
have demanded properly in writing appraisal for such Shares in
accordance with Section 351.455 of the General and Business
Corporation Law of Missouri) shall be converted into the right to
receive $16.25 in cash, without interest (the "MERGER CONSIDERATION").
All such shares of Common Stock, when so converted, shall no longer be
outstanding and shall automatically be cancelled and retired and shall
cease to exist, and each holder of a certificate representing any such
shares of Common Stock shall cease to have any rights with respect
thereto, except the right to receive the Merger Consideration therefor
upon the surrender of such certificate, without interest.
5. The Merger shall have the following effects on the outstanding shares of
MALL ACQUISITION CORP.:
(a) Each issued and outstanding share of class A common stock, par
value $.01 per share, of Mall Acquisition Corp. shall be converted
into and become one fully paid and nonassessable share of Common Stock
of the Surviving Corporation.
(b) Each issued and outstanding share of class B common stock, par
value $.01 per share, of Mall Acquisition Corp. shall be converted
into the right to receive $1.00 in cash, without interest (the "CLASS
B CONSIDERATION"). All such shares of class B common stock, when so
converted, shall no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist, and each holder of a
certificate representing any such shares of class B common stock shall
cease to have any rights with respect thereto, except the right to
receive the Class B Consideration therefor upon the surrender of such
certificate, without interest.
6. The articles of incorporation of WESTFIELD AMERICA, INC. the survivor
ARE NOT amended.
-2-
IN WITNESS WHEREOF, these Articles of Merger have been executed in duplicate by
the aforementioned corporations as of the day and year hereafter acknowledged.
CORPORATE SEAL WESTFIELD AMERICA, INC.
---------------------------------------
(Name of Corporation)
By
---------------------------------------
(Its President or Vice President)
ATTEST:
By
-----------------------------------------------------
Its Secretary or Assistant Secretary
CORPORATE SEAL MALL ACQUISITION CORP.
-------------------------------------------------
(Name of Corporation)
By
---------------------------------------
(Its Secretary or Assistant Secretary)
ATTEST:
By
-----------------------------------------------------
Its Secretary or Assistant Secretary
-3-
State of
------------------------------------------------- )
County of )
----------------------------------------------- )ss.
I, , a Notary Public, do hereby certify that
on the day of , 2001, personally appeared before
me who being by me first duly sworn,
declared that he is the of WESTFIELD AMERICA, INC.
that he signed the foregoing documents as of the
corporation, and that the statements therein contained are true.
---------------------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires
-4-
State of
------------------------------------------------- )
County of )
----------------------------------------------- )ss.
I, , a Notary Public, do hereby certify that
on the day of , 2001, personally appeared before
me who being by me first duly sworn,
declared that he is the of MALL ACQUISITION CORP.
that he signed the foregoing documents as of the
corporation, and that the statements therein contained are true.
---------------------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires
-5-