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As filed with the Securities and Exchange Commission on February 18, 1999
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------
PAN PACIFIC RETAIL PROPERTIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 33-0752457
(State Or Other Jurisdiction Of (I.R.S. Employer
Incorporation Or Organization) Identification No.)
1631 SOUTH MELROSE DRIVE, SUITE B
VISTA, CALIFORNIA 92083
(760) 727-1002
(Address, Including Zip Code, and Telephone Number,
Including Area Code of Registrant's Principal Executive Offices)
-------------------------------
STUART A. TANZ
DIRECTOR, PRESIDENT AND CHIEF EXECUTIVE OFFICER
1631 SOUTH MELROSE DRIVE, SUITE B
VISTA, CALIFORNIA 92083
(760) 727-1002
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code of Agent For Service)
-------------------------------
COPIES TO:
WILLIAM J. CERNIUS, ESQ.
LATHAM & WATKINS
650 TOWN CENTER DRIVE, 20TH FLOOR
COSTA MESA, CALIFORNIA 92626-1925
(714) 540-1235
-------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time-to-time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement of the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEES
<TABLE>
<CAPTION>
==================================================================================================================
Proposed Maximum Proposed Maximum
Title of Shares to be Amount to be Aggregate Price Aggregate Offering Amount of
Registered Registered Per Share(1) Price(2) Registration Fee(3)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value per share 750,000 shares $18.28 $13,710,000 $4,154.55
==================================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(c) of the rules and regulations under the
Securities Act of 1933, as amended, and is based on a per share price of
$18.28, the average of the high and low prices of the Company's Common
Stock as reported on the New York Stock Exchange Composite Tape on February
12, 1999.
(2) Based upon the average of the high and low prices of the shares of Common
Stock reported on the New York Stock Exchange on February 12, 1999,
pursuant to Rule 457(c) of the Securities Act of 1933.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 of the Securities Act of 1933.
-------------------------------
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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SUBJECT TO COMPLETION, DATED FEBRUARY 18, 1999
PROSPECTUS
PAN PACIFIC RETAIL PROPERTIES, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
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750,000 SHARES COMMON STOCK
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We have adopted a Dividend Reinvestment and Stock Purchase Plan in order to
provide both existing stockholders and interested new investors with a
convenient and cost effective method to purchase shares of our common stock.
Under the Plan, existing stockholders may purchase shares of common stock by
reinvesting all or a portion of the cash dividends from their shares of common
stock or by making optional cash payments to purchase additional shares of
common stock. New investors may also purchase common stock under the Plan with
an initial investment of at least $250. Stockholders and other investors may
begin participating in the Plan by completing a Plan Enrollment Form and
returning it to The Bank of New York, as agent, who will administer the Plan.
Our common stock is listed on the New York Stock Exchange under the symbol
"PNP."
Some of the significant features of the Plan are as follows:
- - If you are an existing stockholder, you may purchase additional shares of
common stock by automatically reinvesting all or any part of the cash
dividends paid on your shares of common stock. There is no minimum or
maximum limitation on the amount of dividends you may reinvest under the
Plan.
- - If you are an existing stockholder, you may purchase additional common
stock by making optional cash purchases of between $100 and $25,000 in each
quarterly period between dividend payment dates. Optional cash purchases in
excess of the maximum may be made with our permission.
- - If you are not an existing stockholder, you may make an initial cash
purchase of common stock of at least $250 (with a maximum of $25,000 per
quarterly period). Initial optional cash purchases of our common stock in
excess of the maximum may be made with our permission.
- - Shares of our common stock purchased with reinvested dividends or through
optional cash purchases may be purchased without brokerage fees, commissions
or other charges.
- - We may sell newly issued shares directly to the agent or instruct the agent
to purchase shares in the open market or privately negotiated transactions,
or elect a combination of these two alternatives.
- - Newly issued shares purchased with reinvested dividends or through optional
cash purchases may be purchased at a discount ranging from 0% to 5%
(initially expected to be 2%).
- - Holders of shares in broker or nominee names may participate in the Plan,
in which case, brokers or nominees will reinvest dividends and make optional
cash purchases on behalf of beneficial owners.
- - You may also make automatic monthly investments by authorizing electronic
funds to be transferred from your banking or checking accounts. You may make
an electronic fund transfer for as little as $100 per month (after the
initial investment), but in no case for more than $25,000 per quarterly
period.
Participation in the Plan is entirely voluntary, and you may terminate your
participation at any time. If you do not choose to participate in the Plan you
will continue to receive cash dividends, as declared, in the usual manner.
The Prospectus relates to the offer and sale of up to 750,000 authorized but
unissued shares of Common Stock under the Plan. You should retain this
Prospectus for future reference.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE
--------------------------
The date of this Prospectus is February 18, 1999.
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TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
Incorporation Of Certain Documents By Reference......................................2
Where You Can Find More Information..................................................3
Forward-Looking Statements...........................................................3
The Company..........................................................................4
Dividend And Distribution Policy.....................................................4
Use Of Proceeds......................................................................4
The Plan.............................................................................5
1. What Is The Purpose Of This Plan?............................................5
2. What Are The Benefits Of The Plan?...........................................5
3. Who Will Administer The Plan?................................................6
4. Who Is Eligible To Participate?..............................................6
5. How Does An Eligible Holder Of Common Stock Or Any Other Interested
Investor Enroll In The Plan And Become A Participant?......................7
6. What Does The Enrollment Form Provide?.......................................7
7. When Will Participation In The Plan Begin?...................................8
8. How Many Shares May Be Purchased By A Participant During Any Quarterly
Period?....................................................................8
9. Can A Stockholder Request A Waiver Of The Purchase Limitation?...............8
10. At What Price Will Shares Be Purchased?......................................9
11. How And When Will We Determine Whether Shares Of Common Stock Will Be
Newly Issued Or Purchased In The Market? How And When Will We
Establish A Discount?.....................................................10
12. How Many Shares Are Being Sold Under The Plan?..............................10
13. When Will Shares Be Acquired Under The Plan?................................10
14. How Are Optional Cash Purchases Made?.......................................11
15. Will We Pay Interest On Funds We Hold For Optional Cash Purchases
Prior To Investment?......................................................11
16. What Are The Federal Income Tax Consequences For Reinvestment?..............11
17. What Other Things Should I Consider When Making A Decision To
Participate In The Plan?..................................................12
18. What If I Have More Than One Account?.......................................12
19. Will Certificates Be Issued For Share Purchases?............................12
20. May I Add Shares Of Common Stock To My Account By Transferring Stock
Certificates That I Possess?..............................................12
21. What Reports Will Be Sent To Participants In The Plan?......................13
22. What Happens If I Sell Or Transfer Shares Of Common Stock Or Acquire
Additional Shares Of Stock?...............................................13
23. How May I Transfer All Or A Part Of My Shares Held In The Plan To
Another Person?...........................................................14
24. How Will My Shares Be Voted?................................................14
25. Who Pays The Expenses Of The Plan?..........................................14
26. What Are Our Or The Agent's Responsibilities Under The Plan?................14
27. What Happens If We Issue A Stock Dividend, Subscription Rights,
Declare A Stock Split Or Make Any Other Distribution In Respect Of
Shares Of Common Stock?...................................................14
28. May Shares In My Account Be Pledged?........................................14
29. May The Plan Be Changed Or Terminated?......................................15
30. How May Participants Withdraw From The Plan?................................15
31. When May A Stockholder Rejoin The Plan?.....................................15
Certain Federal Income Tax Consequences Of Participating In The Plan................15
Restrictions On Ownership Of Shares.................................................17
Plan Of Distribution And Underwriters...............................................17
Experts.............................................................................17
Legal Matters.......................................................................18
Compliance With Applicable Law And Regulations......................................18
Governing Law.......................................................................18
</TABLE>
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission (the "SEC") allows us to "incorporate
by reference" the information we file with them, which means that we can
disclose important information to you by referring you to those documents.
We incorporate by reference the documents listed below:
(i) Annual Report on Form 10-K for the fiscal year ending December 31,
1997;
(ii) Proxy statement dated May 13, 1998;
(iii) Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
(iv) Quarterly Report on Form 10-Q for the quarter ended June 30, 1998;
(v) Quarterly Report on Form 10-Q for the quarter ended September 30,
1998;
(vi) Current Report on Form 8-K dated May 19, 1998;
(vii) Current Report on Form 8-K dated October 9, 1998;
(viii) Amendment to Current Report on Form 8-K/A dated October 9, 1998;
(ix) Current Report on Form 8-K dated November 5, 1998; and
(x) The description of our common stock contained in our Registration
Statement on Form 8-A dated August 4, 1997 (File No. 001-13243).
All documents that we file with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") after the date on the Prospectus and prior to the termination of the
offering of the common stock will be deemed to be incorporated by reference into
this Prospectus and to be part hereof from the date of filing such documents.
Any statement contained in this Prospectus or in a document incorporated or
deemed to be incorporated by reference in this Prospectus will be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document, as the
case may be, which also is or is deemed to be incorporated by reference herein,
modifies or supersedes that statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
Copies of these documents (not including the exhibits unless specifically
incorporated by reference) will be provided without charge to you or any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request. Copies of this Prospectus, as amended or supplemented from time to
time, and any other documents (or parts of documents) that constitute part of
this Prospectus under Section 10(a) of the Securities Act of 1933, as amended
(the "Securities Act") will also be provided without charge to you, upon written
or oral request. Requests for copies should be directed to:
David L. Adlard
Executive Vice President, Chief Financial Officer, Secretary and Treasurer
Pan Pacific Retail Properties, Inc.
1631 South Melrose Drive, Suite B, Vista, California 92083
(760) 727-1002.
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act and
thus have filed all the appropriate reports, proxy statements and other
information with the SEC. These materials can be inspected and copied at Room
1024 of the offices of the SEC, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, the regional offices of the SEC located at 7 World Trade
Center, 13th Floor, New York, New York 10048, and at Suite 1400, Citicorp
Center, 500 West Madison Street, Chicago, Illinois 60661 at their prescribed
rates. The SEC maintains a World Wide Web site at http://www.sec.gov that
contains reports, proxy and other information regarding registrants that file
electronically with the SEC. You may also inspect reports, proxy materials and
other information concerning us at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005.
We have filed with the SEC a Registration Statement on Form S-3 (together
with all amendments and exhibits thereto, the "Registration Statement") under
the Securities Act. This Prospectus is part of the Registration Statement that
we filed with the SEC and does not contain all of the information set forth in
the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the SEC. You may inspect the Registration
Statement and the related exhibits, without charge at the public reference
facilities maintained by the SEC at the Public Reference Room of the SEC, Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and you
may obtain copies from the SEC upon payment of the prescribed fees.
FORWARD-LOOKING STATEMENTS
Some of the information included or incorporated by reference in this
Prospectus contains forward-looking statements including statements that are not
historical or factual. We intend these forward looking statements to be covered
by the safe harbor provisions for forward looking statements contained in the
Private Securities Litigation Reform Act of 1995 and we are including this
paragraph for purposes of complying with these safe harbor provisions. The
forward looking statements include, among other things, statements regarding our
intent, belief or expectations of our Company and its officers. You can identify
these statements by the use of terminology such as "may," "will," "expect,"
"believe," "intend," "plan," "estimate," "should" and other comparable terms or
the negative thereof. In addition, we, through our senior management, from time
to time make forward looking oral and written public statements concerning our
expected future operations and other developments.
Holders of our common stock and other investors are cautioned that, while
forward looking statements reflect our good faith beliefs and best judgment
based upon current information, they are not guarantees of future performance
and are subject to known and unknown risks and uncertainties. Actual results may
differ materially from the expectations contained in the forward looking
statements as a result of various factors. Such factors include, but are not
limited to:
- Fluctuations in the market value of the Common Stock could adversely
affect stockholder values and our ability to raise capital which would
slow our growth;
- Changes in the availability of additional acquisitions, including
increased competition for those acquisitions, could slow our growth;
- Financial performance and operations of our shopping centers could be
adversely affected by many factors including the tenants', particularly
anchor tenants', ability to pay rent and our ability to retain tenants
or relet space;
- Declines in national economic conditions or the economic conditions in
the regions in which our properties are located could adversely affect
our performance;
- General real estate conditions and risks;
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- Uncertainty of completion of pending acquisitions which may be subject
to completion of customary due diligence, consents of lenders and other
closing conditions;
- Shopping center developments may not be timely or successfully executed;
- Renovations of certain properties may not be successfully completed;
- The general uncertainty associated with computer and electronic
devices' ability to properly function beginning January 1, 2000 (the
"Year 2000" issue), particularly the uncertainty of Year 2000 readiness
of third parties who are material to our business, such as major
tenants, over whom we have no control with the result that we cannot
ensure its ability to timely and cost-effectively avert or resolve
problems associated with the Year 2000 issue that may affect its
operations and business; and
- Other risks that could adversely affect us or our business detailed
from time to time in reports filed with the SEC including the Annual
Report on Form 10-K for the year ended December 31, 1997.
UNLESS OTHERWISE INDICATED OR UNLESS THE CONTEXT OTHERWISE REQUIRES, ALL
REFERENCES IN THIS PROSPECTUS TO "WE", "US", "OUR" OR THE "COMPANY" MEANS PAN
PACIFIC RETAIL PROPERTIES, INC. AND ITS SUBSIDIARIES.
THE COMPANY
Pan Pacific Retail Properties, Inc., organized in April 1997 as a Maryland
corporation, is a self-administered and self-managed real estate investment
trust ("REIT") engaged in owning, acquiring, managing, leasing and developing
community and neighborhood shopping centers predominantly located in four key
Western U.S. markets: Northern California, Southern California, Nevada and the
Pacific Northwest, each of which the Company believes has strong economic and
demographic characteristics. We operate in a manner intended to qualify as a
REIT pursuant to provisions of the Internal Revenue Code.
As of December 31, 1998, we owned and controlled a portfolio of 54 shopping
center properties, of which 50 are located in the Western United States,
including 12 in Northern California, 9 in Southern California, 7 in Nevada, and
22 in the Pacific Northwest (Washington and Oregon).
Our executive offices are located at 1631 South Melrose Drive, Suite B,
Vista, California 92083 and our telephone number is (760) 727-1002.
DIVIDEND AND DISTRIBUTION POLICY
We intend to make quarterly distributions to our stockholders in amounts
such that at least 95% of all of our taxable income in each year (subject to
certain adjustments) is distributed so as to maintain our qualification as a
REIT under the Internal Revenue Code of 1986, as amended (the "Code"). Taxable
income, if any, not distributed through regular dividends can generally be
distributed annually in a special dividend. All distributions will be made by us
at the discretion of our Board of Directors and will depend on our earnings and
financial condition, the amount of distributions necessary to maintain our REIT
status and such other factors as our Board of Directors may deem relevant from
time to time.
USE OF PROCEEDS
We will receive the net proceeds from any sale of our common stock, par
value $0.01 per share (the "Common Stock"), purchased by The Bank of New York,
as agent (the "Agent") directly from us. We will use these proceeds to acquire
additional properties or repay outstanding loans under our revolving line of
credit and for general corporate purposes. Pending these uses, we may
temporarily invest the net proceeds in short-term investments
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consistent with our investment policies and qualification as a REIT. The precise
amount and timing of the application of the net proceeds will depend upon our
capital requirements and the availability of other funds.
We will not receive any proceeds from purchases of Common Stock by the Agent
in the open market or in privately negotiated transactions.
THE PLAN
The following Plan is set forth in a question and answer format. In addition
to reading this Plan, we encourage you to read and consider the information
contained in the documents identified under the headings "Where You Can Find
More Information" and "Incorporation of Certain Documents by Reference" in this
Prospectus.
1. WHAT IS THE PURPOSE OF THIS PLAN?
The purpose of this Plan is to provide our stockholders and other investors
with a convenient and economical method of purchasing shares of Common Stock
and/or investing all or a portion of their cash dividends in additional shares
of Common Stock.
The Plan also provides us with a means of raising additional capital if we
elect to directly sell newly issued shares of Common Stock.
2. WHAT ARE THE BENEFITS OF THE PLAN?
- Shares of our Common Stock, purchased with reinvested dividends or
through Optional Cash Purchases, can be purchased without brokerage
fees, commission or other charges.
- Participation is voluntary. All or any part of your quarterly stock
dividends may be reinvested.
- Once enrolled, automatic reinvestment of dividends will enable you to
add to your investment in our Company in a timely and systematic fashion
without the need to purchase through a broker.
- In addition to reinvestment of dividends, if you are an existing
stockholder, you may purchase additional shares of Common Stock of not
less than $100 (and not more than $25,000 in each quarterly period
between dividend payment dates ("Quarterly Period")). This feature of
the Plan is called "Optional Cash Purchases." These Optional Cash
Purchases may be made occasionally or at monthly intervals and are
subject to certain restrictions. You may make Optional Cash Purchases
even if dividends on your shares are not being reinvested under the
Plan. Under certain circumstances we may waive the maximum quarterly
amount and permit a larger investment.
- If you are not presently a stockholder of our Company, you may become a
"Participant" (a stockholder who is enrolled in the Plan) by making an
initial cash investment in our Common Stock of not less than $250 (and
not more than $25,000 per Quarterly Period). Under certain circumstances
we may waive the maximum quarterly amount and permit a larger
investment.
- The purchase price for newly issued shares of Common Stock purchased
directly from us either through dividend reinvestment or Optional Cash
Purchases may be issued at a discount from the market price. We will
periodically establish a discount rate ranging from 0% to 5%. The
discount is initially expected to be 2%, but we may adjust that discount
in our discretion at any time. See Question 11.
- You can purchase fractional shares of Common Stock under the Plan. This
means that you can fully invest your dividends and any Optional Cash
Purchases. Dividends will be paid on the fractional shares of
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Common Stock which also may be reinvested in additional shares. The
Agent will calculate to four decimal places the number of full and
fractional shares purchased.
- You may direct the Agent to transfer, at any time and at no cost to
you, all or a portion of your shares in the Plan to a Plan account for
another person. Dividends on the transferred shares will be fully
reinvested unless the Agent is notified otherwise.
- You can avoid the need for safekeeping of certificates for shares of
Common Stock credited to your Plan account and may submit for
safekeeping certificates held by you and registered in your name. You do
not have to worry about the stock certificates for your shares of Common
Stock issued under the Plan being lost or stolen or wonder where they
are located.
- You or any other person who is a holder of record of shares of our
Common Stock may direct the Agent to sell or transfer all or a portion
of your shares held in the Plan.
- You will receive periodic statements reflecting all current activity in
your Plan accounts, including purchases, sales and latest balances, to
simplify your record keeping.
3. WHO WILL ADMINISTER THE PLAN?
The Plan will be administered by the Agent, The Bank of New York, which is
also our transfer agent and registrar. We may designate a successor
administrator as Agent. The Agent acts as agent for Participants, keeps records
of the accounts of Participants, sends regular account statements to
Participants, and performs other duties relating to the Plan. All purchases and
sales of Common Stock on the open market will be done through BNY ESI & Co., a
wholly-owned subsidiary of the Agent. Shares purchased for each Participant
under the Plan will be held by the Agent and may be registered in the name of
the Agent or its nominee on behalf of the Participants, unless and until a
Participant requests that a stock certificate for all or part of such shares be
issued, as more fully described under Question 19 of the Plan entitled "Will
Certificates be Issued for Share Purchases?" The address and telephone number
for the Agent is:
THE BANK OF NEW YORK
DIVIDEND REINVESTMENT DEPARTMENT
P.O. BOX 1958
NEWARK, NEW JERSEY 07101-9717
TELEPHONE NUMBER: (800) 524 - 4458
WEBSITE: HTTP://WWW.STOCK.BANKOFNY.COM
EMAIL: [email protected]
Inquiries should be directed to Investor Relations Department, The Bank of
New York, P.O. Box 10258, Church Street Station, New York, New York 10286-1258.
4. WHO IS ELIGIBLE TO PARTICIPATE?
A "registered holder" (which means a stockholder whose shares of Common
Stock are registered on the stock transfer books of the Company in his or her
name) or a "beneficial owner" (which means a stockholder whose shares of Common
Stock are registered in a name other than his or her name, for example, in the
name of a broker, bank or other nominee) may participate in the Plan. A
registered holder may participate in the Plan directly; a beneficial owner must
either become a registered holder by having his or her shares transferred into
his or her name or by making arrangements with his or her broker, bank or other
nominee to participate in the Plan on the Participant's behalf.
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In addition, if you are an interested investor who is not currently a
stockholder, you may participate in the Plan by making an initial Optional Cash
Purchase in Common Stock of not less than $250 (or more than $25,000 per
Quarterly Period, unless you receive our written permission). We may waive the
maximum quarterly limit. Any such waiver must be in writing. See Question 9,
"Can a Stockholder Request a Waiver of the Purchase Limitations?"
Your right to participate in the Plan is not transferable to another person
apart from your transfer of the underlying shares of Common Stock. WE RESERVE
THE RIGHT TO EXCLUDE FROM PARTICIPATION IN THE OPTIONAL CASH PURCHASE PORTION OF
THE PLAN ANYONE WHO UTILIZES THE PLAN TO ENGAGE IN SHORT-TERM TRADING ACTIVITIES
THAT CAUSE ABERRATIONS IN THE TRADING VOLUME OF OUR COMMON STOCK.
If you reside in a jurisdiction in which your participation in the Plan
would be unlawful, you will not be eligible to participate in the Plan.
5. HOW DOES AN ELIGIBLE HOLDER OF COMMON STOCK OR ANY OTHER INTERESTED INVESTOR
ENROLL IN THE PLAN AND BECOME A PARTICIPANT?
You must complete and sign the Enrollment in Dividend Reinvestment and Stock
Purchase Plan Form (the "Enrollment Form") and return it to the Agent. We have
enclosed an Enrollment Form and postage-paid envelope with the Prospectus for
this purpose. Also, you may obtain an Enrollment Form at any time by requesting
one from the Agent at the address and telephone number set forth above. If you
register shares in more than one name (e.g., joint tenants, trustees), all
registered holders of those shares must sign the Enrollment Form exactly as
their names appear on the account registration.
If your securities are registered in the name of a broker, bank or other
nominee you must contact the broker or nominee and request that they complete an
Enrollment Form on your behalf. If a broker, bank or other nominee holds shares
for beneficial owners through a securities depository, the broker, bank or other
nominee may also be required to provide a Broker and Nominee Form (a "B/N Form")
to the Agent in order to participate in the Optional Cash Purchases portion of
the Plan. B/N Forms may be obtained at any time upon request at the Agent's
address set forth under Question 3 of the Plan.
If you are an interested investor who is not presently a stockholder of the
Company, but would like to become a Participant by making an initial investment
in Common Stock, you may join the Plan by completing an Enrollment Form and
forwarding it, together with your initial investment, to the Agent at the
address on the Enrollment Form.
6. WHAT DOES THE ENROLLMENT FORM PROVIDE?
The Enrollment Form appoints the Agent as your agent for purposes of the
Plan and directs the Agent to apply to the purchase of additional shares of
Common Stock all of the cash dividends on the specified number or percentage of
shares of Common Stock owned by the Participant on the applicable record date
for a dividend and designated by the Participant to be reinvested through the
Plan. The Enrollment Form also directs the Agent to purchase additional shares
of Common Stock with any Optional Cash Purchases that the Participant may elect
to make.
While the Enrollment Form directs the Agent to reinvest cash dividends on
shares enrolled in the Plan ("Full Dividend Reinvestment"), Participants may
elect "Partial Dividend Reinvestment" or "Optional Cash Purchases" only. A
Participant may change the dividend reinvestment option at any time by
submitting a newly executed Enrollment Form to the Agent or by writing to the
Agent. Any change in the number or percentage of shares with respect to which
the Agent is authorized to reinvest dividends must be received by the Agent
prior to the record date for a dividend to permit the new number of shares to
apply to that dividend. FOR EACH METHOD OF DIVIDEND REINVESTMENT, CASH DIVIDENDS
WILL BE REINVESTED ON ALL SHARES OTHER THAN THOSE DESIGNATED FOR PAYMENT OF CASH
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DIVIDENDS IN THE MANNER SPECIFIED ABOVE UNTIL YOU SPECIFY OTHERWISE OR WITHDRAW
FROM THE PLAN ALTOGETHER, OR UNTIL THE PLAN IS TERMINATED.
Cash dividends that are not reinvested will be paid to you.
7. WHEN WILL PARTICIPATION IN THE PLAN BEGIN?
An eligible holder of Common Stock and other interested investors may join
the Plan at any time.
Participation as to dividend reinvestment will commence on the next Dividend
Payment Date after receipt of the Enrollment Form provided it is received by the
Agent on or before the record date for the payment of the dividend. "Dividend
Payment Date" means the date determined by our Board of Directors for the
payment of dividends.
Participation as to Optional Cash Purchases will commence on the Cash
Purchase Investment Date (defined later in this paragraph), provided sufficient
funds to be invested are received one business day immediately preceding the
Cash Purchase Investment Date. Should the funds to be invested arrive after the
day indicated above and before the next succeeding Cash Purchase Investment
Date, those funds will be held without interest until they can be invested on
the next Cash Purchase Investment Date. "Cash Purchase Investment Date" means
the twentieth calendar day of the month unless that day is a Saturday, Sunday or
holiday, in which case the Cash Purchase Investment Date will be the next
business day.
Once enrolled, you will remain enrolled until you discontinue participation
or until we terminate the Plan.
8. HOW MANY SHARES MAY BE PURCHASED BY A PARTICIPANT DURING ANY QUARTERLY
PERIOD?
Reinvested dividends are not subject to any minimum or maximum.
Optional Cash Purchases are subject to a minimum investment of $100 (and a
maximum investment of $25,000 each Quarterly Period).
Initial Optional Cash Purchases by investors that are not yet stockholders
of the Company are subject to a minimum of $250 (and a maximum of $25,000 each
Quarterly Period).
The maximum for all of the above may be waived only pursuant to a request
approved in writing by us in our sole and absolute discretion.
Optional Cash Purchases of less than $100 (or $250 in the case of an initial
Optional Cash Purchase by a non-stockholder) and that portion of any Optional
Cash Purchases that exceeds the maximum of $25,000 per Quarterly Period will be
returned to you without interest.
9. CAN A STOCKHOLDER REQUEST A WAIVER OF THE PURCHASE LIMITATION?
Optional Cash Purchases in excess of $25,000 during a Quarterly Period may
be made only pursuant to a request for waiver ("Request for Waiver") approved in
writing by us in our sole and absolute discretion. A copy of the written
approval must accompany any Optional Cash Purchase submitted to the Agent. A
Request for Waiver should be sent to us by facsimile at (760) 727-1430,
Attention Carol Merriman, by 2:00 p.m. Pacific Standard Time, on the day that is
at least three business days prior to the first day of the applicable Pricing
Period. The Request for Waiver form will be furnished by us or the Agent at the
address and telephone number referenced above. WE HAVE THE SOLE AND ABSOLUTE
DISCRETION TO GRANT ANY APPROVAL FOR OPTIONAL CASH PURCHASES IN EXCESS OF THE
ALLOWABLE MAXIMUM AMOUNT.
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In deciding whether to approve a Request for Waiver, we will consider
relevant factors, including, but not limited to, our need for additional funds,
the attractiveness of obtaining those additional funds through the sale of
Common Stock as compared to other sources of funds, the purchase price likely to
apply to any sale of Common Stock and the aggregate amount of Optional Cash
Purchases in excess of $25,000 for which Requests for Waiver have been submitted
by all Participants. If Requests for Waiver are submitted for any Cash Purchase
Investment Date for an aggregate amount in excess of the amount we are then
willing to accept, we may honor those requests by any method that we determine
to be appropriate. With regard to Optional Cash Purchases made pursuant to a
Request for Waiver, the Plan does not provide for a predetermined maximum limit
on the amount that a Participant may invest or on the number of shares that may
be purchased.
Any person who acquires shares of Common Stock through the Plan and resells
them shortly before or after acquiring them may be considered to be an
underwriter within the meaning of the Securities Act. We expect that certain
persons will acquire shares of Common Stock with our permission in excess of the
$25,000 maximum per Quarterly Period and resell these shares in order to realize
the financial benefit of any discount then being offered under the Plan. We have
no arrangements or understandings, formal or informal, with any person relating
to a distribution of shares to be received pursuant to the Plan by such person.
See "Plan of Distribution and Underwriters."
10. AT WHAT PRICE WILL SHARES BE PURCHASED?
REINVESTED DIVIDENDS. The purchase price for each share of Common Stock
acquired through the Plan as a result of the reinvestment of dividends will be
equal to:
- in the case of newly issued shares of Common Stock, the average of the
high and low sales prices reported by the New York Stock Exchange on
each of the five trading days (the "Pricing Period") immediately
preceding the applicable Dividend Payment Date less a discount rate from
0-5% (currently set at 2%) of such average, or
- in the case of open market or privately negotiated transactions, the
average of the purchase price of all shares purchased by the Agent for
the Plan with reinvested dividends for the applicable Dividend Payment
Date.
OPTIONAL CASH PURCHASES. The price of shares acquired through Optional Cash
Purchases will be equal to:
- in the case of newly issued shares of Common Stock, the average of the
high and low sales prices of the Common Stock reported by the New York
Stock Exchange during the Pricing Period immediately preceding the
applicable Cash Purchase Investment Date less a discount rate from 0-5%
(currently set at 2%) of the average,
- in the case of open market purchases or privately negotiated
transactions, the average of the purchase price of all shares purchased
by the Agent on the applicable Cash Purchase Investment Date.
The purchase price per share of newly-issued Common Stock will be an
average price, in some cases determined from purchases made as many as five
trading days prior to the applicable Cash Purchase Investment Date or Dividend
Payment Date and, therefore, may exceed the price at which shares are trading on
those applicable dates. You will not know the actual number of shares purchased
in any month on your behalf under the Plan until after the date you chose to
reinvest your dividends or invest your cash. However, you will, of course, know
the amount of capital expended.
Notwithstanding any provision to the contrary in the Plan, the amount paid
by a Participant for any share of Common Stock (whether from reinvested
dividends or Optional Cash Purchases, and whether acquired from us, or through
open market or privately negotiated transactions), less the amount of brokerage
commissions and any other
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costs of purchase paid by us, shall not be less than 95% of the average of the
high and low prices reported by the New York Stock Exchange on the applicable
Dividend Payment Date or Cash Purchase Investment Date.
11. HOW AND WHEN WILL WE DETERMINE WHETHER SHARES OF COMMON STOCK WILL BE NEWLY
ISSUED OR PURCHASED IN THE MARKET? HOW AND WHEN WILL WE ESTABLISH A
DISCOUNT?
We may, without prior notice to you, change our determination as to whether
Common Stock will be purchased by the Agent directly from us, in the open market
or in privately negotiated transactions from third parties (although we may not
make this change more than once per quarter) in connection with the purchase of
shares of Common Stock from reinvested dividends or from Optional Cash
Purchases.
We will not offer a discount for Common Stock purchased in the open market
or in privately negotiated transactions.
You may not be able to depend on the availability of a market discount
regarding shares acquired from newly issued Common Stock. While a discount from
market prices of up to 5% may be established from time to time, the granting of
a discount at one time will not insure the availability of a discount or the
same discount at another. At any time, we may, without prior notice to you,
lower or eliminate the discounts.
Because the purchase price of shares of newly-issued Common Stock is
determined over a Pricing Period (discussed above), there can be no assurance
that the purchase price per share, as so discounted, will not be equal to or
greater than the market purchase price of the shares on the first business day
following the applicable Cash Purchase Investment Date or Dividend Payment Date.
12. HOW MANY SHARES ARE BEING SOLD UNDER THE PLAN?
Initially, 750,000 shares of Common Stock are authorized to be issued and
sold under the Plan. Because we presently expect to continue the Plan
indefinitely, we expect to authorize additional shares from time to time as
necessary for purposes of the Plan.
13. WHEN WILL SHARES BE ACQUIRED UNDER THE PLAN?
If we elect to provide shares for the Plan through newly issued stock,
shares will be credited to your account as follows:
- If you are an existing stockholder reinvesting some or all of your
dividends automatically, shares will be issued and credited to your
account on the applicable Dividend Payment Date;
- If you are making Optional Cash Purchases, shares will be issued and
credited to your account on the applicable Cash Purchase Investment
Date.
If we elect to acquire shares for the Plan through the open market or in
privately negotiated transactions, the Agent will effect those purchases as soon
as practicable on the applicable Dividend Payment Date or the applicable Cash
Purchase Investment Date. The date shares will be deemed acquired and credited
to your account will be the Dividend Payment Date or Cash Purchase Investment
Date, as applicable.
DIVIDENDS ARE PAID AS AND WHEN DECLARED BY OUR BOARD OF DIRECTORS. THERE CAN
BE NO ASSURANCE AS TO THE DECLARATION OR PAYMENT OF A DIVIDEND, AND NOTHING
CONTAINED IN THE PLAN OBLIGATES US TO DECLARE OR PAY ANY DIVIDEND ON COMMON
STOCK. THE PLAN DOES NOT REPRESENT A GUARANTEE OF FUTURE DIVIDENDS.
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14. HOW ARE OPTIONAL CASH PURCHASES MADE?
If you are a registered holder you may request an Optional Cash Purchase by
filling out and submitting an Enrollment Form. All Plan Participants are
eligible to request Optional Cash Purchases at any time.
The B/N Form provides the sole means whereby a broker, bank or other nominee
holding shares on behalf of beneficial owners in the name of a securities
depository may request an Optional Cash Purchase on behalf of those beneficial
owners. In that case, the broker, bank or other nominee must use a B/N Form for
transmitting Optional Cash Purchases on behalf of the beneficial owners. A B/N
Form must be delivered to the Agent each time that the broker, bank or other
nominee transmits Optional Cash Purchases on behalf of the beneficial owners.
B/N Forms will be furnished by the Agent upon request.
Other interested investors that are not stockholders of the Company are also
eligible to make an initial investment in Common Stock through an Optional Cash
Purchase by submitting an Enrollment Form.
Optional Cash Purchases of $25,000 or less during a Quarterly Period should
be received by the Agent at least one business day before the applicable Cash
Purchase Investment Date. Optional Cash Purchases greater than $25,000 during a
Quarterly Period and made pursuant to a Request for Waiver should be received by
the Agent three business days before the commencement of the Pricing Period in
order to purchase shares of Common Stock on the next Cash Purchase Investment
Date.
15. WILL WE PAY INTEREST ON FUNDS WE HOLD FOR OPTIONAL CASH PURCHASES PRIOR TO
INVESTMENT?
No interest will be paid on funds held for Optional Cash Purchases prior to
investment. Consequently, we strongly suggest that you deliver funds to be used
for investment in Optional Cash Purchases to the Agent shortly before the
applicable Cash Purchase Investment Date so that they are not held over to the
following Cash Purchase Investment Date. Any questions regarding the applicable
Cash Purchase Investment Dates or the dates as of which funds should be
delivered should be directed to the Agent at the address and telephone number
included in Question 3 above.
You should be aware that since investments under the Plan are made as of
specified dates, you may lose any advantage that otherwise might be available
from being able to select the timing of an investment. Neither we nor the Agent
can assure a profit or protect against a loss on shares of Common Stock
purchased under the Plan. ALL OPTIONAL CASH PURCHASES MAY BE MADE BY CHECK, IN
U.S. FUNDS, PAYABLE TO THE BANK OF NEW YORK AND MAILED TO THE AGENT AT THE
ADDRESS REFERENCED ON THE ENROLLMENT FORM OR YOUR STATEMENT, AS APPLICABLE. WE
SUGGEST THAT YOU INDICATE ON YOUR CHECK THAT THE AMOUNT BEING SUBMITTED IS TO BE
APPLIED TO YOUR PAN PACIFIC RETAIL PROPERTIES, INC. DIVIDEND REINVESTMENT AND
STOCK PURCHASE PLAN ACCOUNT. OPTIONAL CASH PURCHASES MAY ALSO BE MADE BY WIRE
TRANSFER OF FUNDS TO THE AGENT TO THE ACCOUNT REFERENCED ON THE ENROLLMENT FORM.
All Optional Cash Purchases made in excess of Plan limits with our permission
may be made only by wire transfer to the account referenced on the Enrollment
Form. Inquiries regarding other forms of payments and all other written
inquiries should be directed to the Agent at the address referenced herein.
Foreign checks as well as third party checks will be returned to
participants. The Bank of New York reserves the right to sell additional shares
from a Participant's account if the sale of the original shares purchased is
insufficient to satisfy the amount of any returned check.
16. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES FOR REINVESTMENT?
If you reinvest cash dividends you will be treated for federal income tax
purposes as having received a dividend on the Dividend Payment Date. These
dividends may give rise to a liability for the payment of income tax without
providing you with immediate cash to pay the tax when it becomes due. Also, you
will be treated as having
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received a constructive distribution, which may give rise to an additional tax
liability, to the extent that we pay brokerage commissions on your behalf or you
purchase shares at a discount. See "Certain Federal Income Tax Consequences of
Participating in the Plan."
17. WHAT OTHER THINGS SHOULD I CONSIDER WHEN MAKING A DECISION TO PARTICIPATE IN
THE PLAN?
You will have limited control regarding the specific timing of purchases and
sales under the Plan. Because purchases under the Plan will be effected by the
Agent only on the Dividend Payment Date or Cash Purchase Investment Date, you
may be unable to achieve the same level of control over purchase and sale timing
that you might have for investments made outside the Plan. The market price of
the shares of Common Stock may fluctuate between the time of receipt of an
investment instruction and the time at which the shares of Common Stock are
purchased.
No interest will be paid by us or the Agent on dividends or cash funds held
pending reinvestment or investment or to be returned to you.
Your investment in the shares of Common Stock held in your account is no
different than an investment in directly held shares of Common Stock. You bear
the risks of loss and the benefits of gain from market price changes for all of
your shares of Common Stock. NEITHER WE NOR THE AGENT CAN GUARANTEE THAT SHARES
OF COMMON STOCK PURCHASED UNDER THE PLAN WILL, AT ANY PARTICULAR TIME, BE WORTH
MORE OR LESS THAN THEIR PURCHASE PRICE.
18. WHAT IF I HAVE MORE THAN ONE ACCOUNT?
For purposes of the limitations discussed above, we may aggregate all
Optional Cash Purchases for you if you have more than one account which uses the
same social security or taxpayer identification number. If you are unable to
supply a social security or taxpayer identification number, your participation
may be limited by us to only one Plan account. Also for the purpose of these
limitations, all Plan accounts that we believe to be under common control or
management or to have common ultimate beneficial ownership may be aggregated.
Unless we have determined that reinvestment of dividends and Optional Cash
Purchases for each account would be consistent with the purposes of the Plan, we
will have the right to aggregate all of these accounts and to return, without
interest, within thirty-five days of receipt, any amounts in excess of the
investment limitations applicable to a single account received in respect of all
of these accounts.
19. WILL CERTIFICATES BE ISSUED FOR SHARE PURCHASES?
All shares purchased pursuant to the Plan may be held together in the name
of the Agent or its nominee and credited to each individual account in "book
entry" form. This service protects against the loss, theft, or destruction of
certificates evidencing shares. Upon your written request or upon your
withdrawal from the Plan or upon termination of the Plan, the Agent will have
certificates issued and delivered for all full shares credited to your account.
Certificates will be issued only in the same names as those enrolled in the
Plan. There will be a $5.00 fee for each certificate issued. Certificates will
not be issued for fractional shares.
20. MAY I ADD SHARES OF COMMON STOCK TO MY ACCOUNT BY TRANSFERRING STOCK
CERTIFICATES THAT I POSSESS?
Under the Plan you may send to the Agent for safekeeping all Common Stock
certificates which you hold. A fee of $5.00 will be charged for each deposit of
certificates. The safekeeping of shares offers the advantage of protection
against loss, theft or destruction of certificates as well as convenience. All
shares represented by certificates will be kept for safekeeping in "book entry"
form and combined with any full and fractional shares already held by the Plan
for you. To deposit certificates for safekeeping under the Plan, you may send
certificates to the Agent along with the $5.00 fee accompanied by a letter,
expressing your desire to have the certificates deposited. Stock certificates,
applicable fees and instructions as well as all written inquiries about the
safekeeping
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service should be directed to the Agent at the address set forth under Question
3. You may withdraw shares that you deposited for safekeeping by calling the
Agent by telephone or by submitting a written request.
21. WHAT REPORTS WILL BE SENT TO PARTICIPANTS IN THE PLAN?
You will receive from the Agent a detailed statement of your account
following each dividend payment and when there is purchase or sale activity in
your account, unless you participate in the Plan through a broker, bank or
nominee. These detailed statements will show total cash dividends received,
total Optional Cash Purchases made, total shares purchased (including fractional
shares), price paid per share, and total shares held in the Plan. YOU SHOULD
RETAIN THESE STATEMENTS TO DETERMINE THE TAX BASIS FOR SHARES PURCHASED UNDER
THE PLAN.
If the purchase involves dividend reinvestment, then the statement will also
show your total distribution and the amount of your dividend that was reinvested
in shares of Common Stock. In addition, the Agent will send you certain reports
such as a copy of the annual report, proxy statements and Federal income tax
information for reporting distributions.
If you wish to participate in the Plan through a broker, bank or nominee,
you should contact them concerning the receipt of statements.
22. WHAT HAPPENS IF I SELL OR TRANSFER SHARES OF COMMON STOCK OR ACQUIRE
ADDITIONAL SHARES OF STOCK?
You may instruct the Agent to sell some or all of your shares in the Plan.
Instructions can be given by telephone, in writing or by using the form included
with account statements.
The Agent will sell shares through BNY ESI & Co. as soon as practicable
after receipt of a proper notice. Shares to be sold may be commingled with those
of other Participants requesting sale of their shares, and the proceeds to each
Participant will be based on the average price for all shares sold during the
day of sale. You should understand that the price of the Common Stock may go
down as well as up between the date a request to sell is received and the date
the sale is executed. The Plan does not offer the ability for you to specify
either the dates or the prices at which shares are to be sold through the Agent.
If a request to sell shares is received on or after the record date for a
dividend, any cash dividend paid on these shares will be reinvested, if
applicable.
There is a $5.00 administrative charge for selling shares through the Agent
along with brokerage commissions attributable to the sale of your shares. These
charges are normally lower than the cost of executing sales through a brokerage
account.
If you have elected to have dividends automatically reinvested in the Plan
and subsequently sell or transfer all or any part of the shares registered in
your name, automatic reinvestment will continue as long as shares are registered
in your name or held for you by the Agent or until termination of enrollment.
Similarly, if you have elected the full or partial dividend reinvestment option
under the Plan and subsequently acquire additional shares registered in your
name under the Plan, dividends paid on these shares will automatically be
reinvested until termination of enrollment. If, however, you have elected the
Optional Cash Purchases only option and subsequently acquire additional shares
that are registered in your name, dividends paid on these shares will not be
automatically reinvested under the Plan.
If you subsequently sell or transfer a portion of your shares and you have
directed the Agent to reinvest dividends on some of your shares (i.e., Partial
Dividend Reinvestment), your written request should provide new written
instructions to the Agent on whether the Agent should reinvest dividends paid on
the shares remaining in your account. If the Agent does not receive new
instructions, it may, at its discretion, pay cash dividends on all of your
remaining shares.
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23. HOW MAY I TRANSFER ALL OR A PART OF MY SHARES HELD IN THE PLAN TO ANOTHER
PERSON?
You may transfer ownership of all or part of your shares held in the Plan
through gift, private sale or otherwise, by mailing to the Agent at the address
listed above a properly executed stock assignment, along with a letter with
specific instructions regarding the transfer and a Substitute Form W-9
(Certification of Taxpayer Identification Number) completed by the transferee.
Requests for transfer of shares held in the Plan are subject to the same
requirements as the transfer of Common Stock certificates, including the
requirement of a medallion signature guarantee on the stock assignment. The
Agent will provide you with the appropriate forms upon request. If any stock
certificates bearing a restrictive legend are contained in your Plan account,
the Agent will comply with the provisions of the restrictive legend before
effecting a sale or transfer of these restricted shares.
Dividends paid on the transferred shares will be automatically reinvested
unless the Agent is notified otherwise.
24. HOW WILL MY SHARES BE VOTED?
For any meeting of stockholders, you will receive proxy materials in order
to vote all shares held by the Plan for your account. All shares will be voted
as designated by you or may be voted in person at the meeting of stockholders.
If no instructions are indicated on a properly executed and returned proxy card,
a Participant's shares of Common Stock in the Plan account will be voted in
accordance with the recommendations of our management. If no instructions or
executed proxy are received, the shares will not be voted.
25. WHO PAYS THE EXPENSES OF THE PLAN?
Other than brokerage commissions upon sale and selling fees, fees associated
with the issuance of stock certificates and the deposit of certificates, which
will be paid by you, costs of administration of the Plan will be paid by us.
26. WHAT ARE OUR OR THE AGENT'S RESPONSIBILITIES UNDER THE PLAN?
Neither we nor the Agent will be liable for any act done in good faith or
for any good faith omission to act, including, without limitation, the prices at
which shares are purchased for the Participant's account, the times when
purchases are made or fluctuations in the market value of the Common Stock.
Neither we nor the Agent have any duties, responsibilities or liabilities except
as expressly set forth in the Plan or as imposed by applicable laws, including,
without limitation, federal securities laws. YOU SHOULD RECOGNIZE THAT WE CANNOT
ASSURE A PROFIT OR PROTECT AGAINST A LOSS ON THE SHARES PURCHASED BY YOU UNDER
THE PLAN AND WE TAKE NO POSITION ON WHETHER YOU SHOULD PARTICIPATE IN THE PLAN.
27. WHAT HAPPENS IF WE ISSUE A STOCK DIVIDEND, SUBSCRIPTION RIGHTS, DECLARE A
STOCK SPLIT OR MAKE ANY OTHER DISTRIBUTION IN RESPECT OF SHARES OF COMMON
STOCK?
Any stock dividend, stock split or other distribution in respect of shares
of Common Stock that may be declared by us will be automatically credited to
your Plan account. In the event that we make available to the holders of our
Common Stock subscription rights to purchase additional shares of Common Stock
or other securities, the Agent will post these rights to your Plan account. You
may have the Agent sell your rights and invest the net proceeds of the sale to
the purchase of Common Stock with the next monthly Optional Cash Purchase by
notifying the Agent by submitting an updated Enrollment Form. Similarly, you can
request distribution of subscription or other purchase rights directly to
yourself. This will permit you to personally exercise, transfer or sell the
rights on such shares.
28. MAY SHARES IN MY ACCOUNT BE PLEDGED?
No shares credited to your or any Participant's account may be pledged and
any purported pledge will be void. If you wish to pledge shares, those shares
must be withdrawn from the Plan.
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29. MAY THE PLAN BE CHANGED OR TERMINATED?
While the Plan is intended to continue indefinitely, we reserve the right to
amend, modify, suspend or terminate the Plan at any time. You will be notified
in writing of any modifications made to the Plan. Any amendment may include an
appointment by the Agent in its place of a successor agent under the terms and
conditions set forth herein, in which event we are authorized to pay the
successor for the account of each Participant, all cash dividends and
distributions payable on Common Stock held by the Participant under the Plan for
application by the successor as provided herein.
30. HOW MAY PARTICIPANTS WITHDRAW FROM THE PLAN?
You may terminate participation in the Plan at any time by telephone or in
writing to the Agent. After the Agent receives the termination notice, dividends
will be sent to you in the usual manner and no further Optional Cash Purchases
may be made. Notice of termination received by the Agent less than two days
before an investment date may not be processed until after the investment date.
Once termination has been effected, the Agent will issue you a certificate for
all whole shares held under the Plan. Alternatively, you may specify in the
termination notice that some or all of the shares be sold. Any fractional shares
held in your account under the Plan at the time of termination will be converted
to cash at a price equal to the average of the highest and lowest price per
share as reported on that day by the New York Stock Exchange, net of any
brokerage commissions. If you dispose of all shares represented by certificates
registered in your name on our books but do not give notice of termination under
the Plan, the Agent will continue to reinvest dividends on shares held in your
account under the Plan until otherwise directed. If a request is received on or
after the record date for a dividend, any cash dividend paid on that account
will be reinvested for the account. The request will then be processed as soon
as practicable after the dividend is reinvested and the additional shares are
credited to your account. There will be no cost to you with respect to
termination of your reinvestment of dividends through the Plan other than the
applicable sales fees and brokerage commissions with respect to any shares sold
and the fees associated with issuing any stock certificates.
If your Plan account balance falls below one full share, the Agent reserves
the right to liquidate the fraction and remit the proceeds, less any applicable
fees, to you at your address of record and to terminate your participation in
the Plan. We may also terminate the Plan or your participation in the Plan after
written advance notice mailed to you at the address appearing on the Agent's
records. Participants whose participation in the Plan has been terminated will
receive certificates for whole shares held in their accounts and a check for the
cash value of any fractional share held in any Plan account so terminated less
any applicable fees and brokerage commissions.
31. WHEN MAY A STOCKHOLDER REJOIN THE PLAN?
A stockholder may again become a Participant at any time.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATING IN THE PLAN
Dividends paid with respect to Common Stock that a Participant reinvests in
Common Stock that is acquired directly from us will be treated for Federal
income tax purposes as having been received by the Participant in the form of a
taxable stock distribution. In that case, an amount equal to the fair market
value on the date of purchase of the Common Stock acquired with reinvested
dividends will be treated as a dividend to the extent we have current or
accumulated earnings and profits for federal income tax purposes. For federal
income tax purposes, we intend to take the position that the fair market value
of the shares of Common Stock acquired directly from us with reinvested
dividends will be equal to the average of the high and low sales prices of
shares on the related Dividend Payment Date. Alternatively, dividends paid with
respect to Common Stock that a Participant reinvests in Common Stock through
purchases by the Agent in the open market or in privately negotiated
transactions will be treated for federal income tax purposes as having been
received by the Participant in the form of a taxable cash distribution. The
amount of the cash distribution will be treated as a dividend to the extent we
have current or accumulated earnings and profits for federal income tax
purposes. In either case, distributions in excess of our current and accumulated
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earnings and profits will not be taxable to a Participant to the extent that
these distributions do not exceed the adjusted tax basis of the Participant's
shares. To the extent these distributions exceed the adjusted tax basis of a
Participant's shares, they will be included in income as capital gain. In
addition, in the event that we properly designate a part or all of the amount so
distributed as a capital gain dividend, this amount would be treated by the
participant as a capital gain. Depending on the period of time we held the
assets which produced these gains, and on certain designations, if any, which we
may make, these gains may be taxable to non-corporate Participants at a 20% or
25% rate. Participants' statements of account will show the fair market value on
the date of purchase of the Common Stock purchased with reinvested dividends and
a Form 1099-DIV mailed to Participants at year-end will show total dividend
income, the amount of any return of capital distribution and the amount of any
capital gain dividend.
Under the Plan, we will bear any brokerage commissions related to the
acquisition of shares of Common Stock. The Internal Revenue Service has ruled in
private letter rulings that brokerage commissions paid by a corporation with
respect to open market purchases on behalf of participants in a dividend
reinvestment plan were to be treated as constructive distributions to such
participants. These constructive distributions were subject to income tax in the
same manner as distributions and includable in the Participants' cost basis of
the shares purchased. Accordingly, to the extent that we pay brokerage
commissions with respect to any open market or privately negotiated purchases
made by the Agent, we intend to take the position that Participants received
their proportionate amount of commissions as additional distributions. While the
matter is not free from doubt, we intend to take the position that
administrative expenses of the Plan paid by us are not constructive
distributions to Participants.
The tax basis of newly-issued Common Stock purchased directly from us for a
Participant by the reinvestment of dividends will be equal to the fair market
value of the Common Stock on the relevant Dividend Payment Date. The tax basis
of Common Stock purchased in the open market or in privately negotiated
transactions by the reinvestment of dividends will be equal to the amount paid
for the shares, plus the amount of income, if any, recognized by the Participant
as a result of the Company's payment of brokerage commissions on behalf of the
Participant with respect to the purchase. The holding period of Common Stock
acquired under the Plan will begin on the day following the date the Common
Stock was purchased for the Participant's account.
To the extent a Participant acquires shares of Common Stock pursuant to
Optional Cash Purchases at a discount from the fair market value of such shares
on the Cash Purchase Investment Date, the tax treatment of these activities is
unclear. We presently intend to take the position that any such discount does
not constitute a distribution from us to Participants making Optional Cash
Purchases. However, it is possible a Participant will be treated as having
received a distribution from us, upon the purchase of Common Stock pursuant to
Optional Cash Purchases, in an amount equal to the excess, if any, of the fair
market value of the shares on the Cash Purchase Investment Date (plus any
brokerage commissions paid by the Company on behalf of the Participant) over the
amount paid by the Participant for the Optional Cash Purchase. We may take this
position in future reports to Participants or the Internal Revenue Service.
Participants are urged to consult their tax advisors with respect to the tax
treatment of any such actions. Shares of Common Stock acquired pursuant to
Optional Cash Purchases will have a tax basis equal to the amount paid by the
Participant for the Optional Cash Purchase plus the income, if any, recognized
by the Participant upon the acquisition.
A Participant will not realize any gain or loss when the Participant
receives certificates for whole shares of common stock credited to the
Participant's account, either upon the Participant's request for certificates or
upon withdrawal from or termination of any such feature of the Plan. However, a
Participant will recognize gain or loss when whole shares of Common Stock or
rights applicable to Common Stock acquired under the Plan are sold or exchanged.
A Participant will also recognize gain or loss when the Participant receives a
cash payment for a fractional share of Common Stock credited to the
Participant's account upon withdrawal from or termination of the Plan or other
sale of a fractional share. The amount of the gain or loss will be the
difference between the amount received for the Participant's shares or
fractional shares of Common Stock or rights applicable to Common Stock, if any
(net of any costs of sale paid by the Participant), and the adjusted tax basis
thereof.
16
<PAGE> 19
THE FOREGOING SUMMARY OF CERTAIN FEDERAL INCOME TAX CONSIDERATIONS REGARDING
THE PLAN IS BASED ON CURRENT LAW, IS FOR GENERAL INFORMATION ONLY AND IS NOT TAX
ADVICE. THIS DISCUSSION DOES NOT PURPORT TO DEAL WITH ALL ASPECTS OF TAXATION
THAT MAY BE RELEVANT TO PARTICULAR INVESTORS IN LIGHT OF THEIR PERSONAL
INVESTMENT CIRCUMSTANCES, OR TO CERTAIN TYPES OF INVESTORS (INCLUDING INSURANCE
COMPANIES, TAX-EXEMPT ORGANIZATIONS, FINANCIAL INSTITUTIONS OR BROKER DEALERS,
FOREIGN CORPORATIONS AND PERSONS WHO ARE NOT CITIZENS OR RESIDENTS OF THE UNITED
STATES) SUBJECT TO SPECIAL TREATMENT UNDER THE FEDERAL INCOME TAX LAWS. THOSE
CONSIDERING PARTICIPATION IN THE PLAN ARE URGED TO CONSULT WITH THEIR TAX
ADVISORS REGARDING THE SPECIFIC TAX CONSEQUENCES (INCLUDING THE FEDERAL, STATE,
LOCAL AND FOREIGN TAX CONSEQUENCES) THAT MAY RESULT FROM THEIR PARTICIPATION IN
THE PLAN AND OF POTENTIAL CHANGES IN APPLICABLE TAX LAWS. THIS SUMMARY DOES NOT
REFLECT EVERY POSSIBLE OUTCOME THAT COULD RESULT FROM PARTICIPATION IN THE PLAN
AND, THEREFORE, PARTICIPANTS ARE ADVISED TO CONSULT THEIR TAX ADVISORS WITH
RESPECT TO THE TAX CONSEQUENCES APPLICABLE TO THEIR PARTICULAR SITUATION.
RESTRICTIONS ON OWNERSHIP OF SHARES
Because our Company's Board of Directors believes it is essential for our
Company to continue to qualify as a REIT, our Amended and Restated Articles of
Incorporation (the "Charter") contain restrictions on the ownership and transfer
of our Common Stock which are intended to assist us in complying with these
requirements imposed on REITs under the Code.
The Company's Charter places certain restrictions upon the actual and
constructive ownership of shares of Common Stock. With respect to the Common
Stock of the Company, any one person or entity is limited to owning, actually
and constructively, no more than 6.25% of the outstanding Common Stock of the
Company (the "Ownership Limit"). The percentage of ownership is measured by
either the value or absolute number of shares, whichever measurement is more
restrictive. To the extent any transfer of Common Stock, reinvestment of
dividends or Optional Cash Purchase elected by a stockholder would cause the
stockholder or any other person or entity to exceed the Ownership Limit or
otherwise violate the Charter, that transfer or investment will be void AB
INITIO, and the stockholder will be entitled to receive cash dividends (without
interest) in lieu of the reinvestment or to a return of the Optional Cash
Purchase (without interest), as applicable.
PLAN OF DISTRIBUTION AND UNDERWRITERS
Pursuant to the Plan, we may be requested to approve Optional Cash Purchases
in excess of the allowable maximum amount pursuant to Requests for Waiver on
behalf of Participants that may be engaged in the securities business. In
deciding whether to approve such a request, we will consider relevant factors
including, but not limited to, our need for additional funds, the attractiveness
of obtaining such funds by the sale of Common Stock under the Plan in comparison
to other sources of funds, the purchase price likely to apply to any sale of
Common Stock, and the aggregate number of Requests for Waiver that have been
submitted by all Participants. Persons who acquire shares of Common Stock
through the Plan and resell them shortly after acquiring them, including
coverage of short positions, under certain circumstances, may be participating
in a distribution of securities that would require compliance with Regulation M
under the Exchange Act and may be considered to be underwriters within the
meaning of the Securities Act. We will not extend to any such person any rights
or privileges other than those to which it would otherwise be entitled as a
Participant, nor will we enter into any agreement with any such person regarding
that person's purchase of those shares or any resale or distribution thereof. We
may, however, approve requests for Optional Cash Purchases by such persons in
excess of the allowable maximum limit. If requests are submitted for any Cash
Purchase Investment Date for an aggregate amount in excess of the amount the we
are willing to accept, we may honor requests in order of receipt, pro rata or by
any other method which we determine to be appropriate.
EXPERTS
The consolidated financial statements and Schedule III of Pan Pacific Retail
Properties, Inc. as of December 31, 1997 and 1996, and for each of the years in
the three-year period ended December 31, 1997, and the statements of
17
<PAGE> 20
revenue and certain expenses for The Oregon Portfolio, San Dimas Marketplace,
Manteca Marketplace, Pacific Commons Shopping Center and The Mercury Portfolio
for the year ended December 31, 1997, have been incorporated by reference in the
registration statement in reliance upon the reports of KPMG LLP, independent
certified public accountants, incorporated herein by reference, and upon the
authority of said firm as experts in accounting and auditing. The reports on the
statements of revenue and certain expenses referenced above each contain a
paragraph that states that the statement of revenue and certain expenses was
prepared for the purpose of complying with the rules and regulations of the
Securities and Exchange Commission, as described in Note 1 to the statement of
revenue and certain expenses. It is not intended to be a complete presentation
of the respective properties' revenue and expenses.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for us
by Ballard Spahr Andrews & Ingersoll, LLP, Baltimore, Maryland. Latham &
Watkins, Costa Mesa, California, assisted us with the implementation of the
Plan.
COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS
Our obligation to offer, issue or sell our Common Stock hereunder shall be
subject to us obtaining any necessary approval, authorization and consent from
any regulatory authorities having jurisdiction over the issuance and sale of the
Common Stock. We may elect not to offer or sell our Common Stock hereunder to
stockholders residing in any jurisdiction where, in our sole discretion, the
burden or expense of compliance with applicable blue sky or securities laws
makes that offer or sale impracticable or inadvisable.
GOVERNING LAW
This plan is governed by the law of the State of Maryland.
18
<PAGE> 21
PAN PACIFIC RETAIL PROPERTIES, INC. ENROLLMENT FORM FOR
PAN PACIFIC RETAIL PROPERTIES, INC.
COMMON STOCK
DIVIDEND REINVESTMENT AND DIRECT PURCHASE PLAN
------------------------------------------------------------
This form when completed and signed, should be mailed in the
courtesy envelope provided to: The Bank of New York
P.O. Box 1958, Newark, NJ 07101-9717
Is this account for an existing shareholder? YES [ ] NO [ ]
-----------------------------------------------------------------------------
1. ACCOUNT REGISTRATION Complete only ONE section. Print clearly in CAPITAL
LETTERS.
[ ] INDIVIDUAL OR JOINT ACCOUNT
OWNER'S NAME
-----------------------------------------------------------------------------
OWNER'S SOCIAL SECURITY NUMBER OWNER'S DATE OF BIRTH
(used for tax reporting) Month Day Year
-- -- / /
--------- ------ ------------ ------ ------ ------
JOINT OWNER'S NAME
-----------------------------------------------------------------------------
JOINT OWNER'S The account will be registered "Joint
SOCIAL SECURITY NUMBER Tenants with Rights of Survivorship"
(used for tax reporting) unless you check a box below:
[ ] Tenants in [ ] Tenants [ ] by Community
- - common entirety property
------ ---- --------
-----------------------------------------------------------------------------
[ ] GIFT TRANSFER TO A MINOR (UGMA/UTMA)
CUSTODIAN'S NAME
-----------------------------------------------------------------------------
MINOR'S NAME
-----------------------------------------------------------------------------
MINOR'S SOCIAL SECURITY NUMBER MINOR'S DATE OF BIRTH
DONOR'S
(required) Month Day Year STATE
- - / /
------- ----- ------- ----- ---- ----- -----
-----------------------------------------------------------------------------
[ ] TRUST (Please check only one of the [ ] PERSON AS [ ] ORGANIZATION
trustee types) TRUSTEE AS TRUSTEE
TRUSTEE: INDIVIDUAL OR ORGANIZATION NAME
-----------------------------------------------------------------------------
AND CO-TRUSTEE'S NAME, IF APPLICABLE
-----------------------------------------------------------------------------
NAME OF TRUST
-----------------------------------------------------------------------------
FOR THE BENEFIT OF
-----------------------------------------------------------------------------
DATE OF TRUST DONOR'S
TRUST TAXPAYER IDENTIFICATION NUMBER Month Day Year STATE
- / /
------ ---------------------------- ----- ----- ----- -----
-----------------------------------------------------------------------------
[ ] ORGANIZATION OR BUSINESS ENTITY
CHECK ONE: [ ] Corporation [ ] Partnership [ ] Other
NAME OF ENTITY
-----------------------------------------------------------------------------
TAXPAYER IDENTIFICATION NUMBER
-
------- -----------------
<PAGE> 22
2. ADDRESS
MAILING ADDRESS (including apartment or box number)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
CITY STATE ZIP
-
----------------------------------- ----- ------------- --------------
HOME PHONE WORK PHONE
( ) - ( ) -
--- ------- ---------- --- -------- --------------
FOR MAILING ADDRESS OUTSIDE THE U.S.:
COUNTRY OF RESIDENCE PROVINCE ROUTING OR POSTAL CODE
------------------------ -------------------- ------------------------
-----------------------------------------------------------------------------
3. CASH PURCHASE (Make checks payable to The Bank of New York)
[ ] As a CURRENT registered [ ] As a NEW Investor I wish to enroll
shareholder I wish to make an in the Program by making an initial
additional investment. Enclosed is investment for $ _______________.
my check or money order for (Initial investment must be at least
$______________. (Minimum $100 with $250 not to exceed $25,000) AS A NEW
the Maximum not to exceed $25,000 INVESTOR YOU MUST COMPLETE SECTIONS 1,
per quarterly period.) 2, & 8.
-----------------------------------------------------------------------------
4. BANK AUTHORIZATION AGREEMENT
[ ] DIRECT DEPOSIT OF DIVIDENDS
I hereby authorize to have my dividends deposited automatically in my bank
account. (Please complete Section 5.) If this option is not selected, your
dividend check will be automatically mailed to your address.
[ ] AUTOMATIC ADDITIONAL INVESTMENT
I hereby choose to make additional investments in Pan Pacific Retail
Properties, Inc. Common Stock by authorizing automatic monthly debits from my
bank account.
[ ] AUTOMATIC INITIAL INVESTMENT
I hereby choose to initiate my investment in Pan Pacific Retail Properties,
Inc. Common Stock by authorizing automatic monthly debits for a minimum of
one year, from my bank account.
Upon receipt of this form, properly completed, the Administrator will contact
your bank to deduct the amount indicated from your bank account on or about
the ____ of each month. The Administrator will invest in Pan Pacific Retail
Properties, Inc. Common Stock beginning on the next Investment Date. Such
deductions and investments will continue monthly until you notify the
Administrator to change or discontinue them. Should your bank account contain
insufficient funds to cover the authorized deduction, no deduction or
investment will occur. In such event, you may be charged a fee by your bank
for insufficient funds.
PLEASE COMPLETE THE FOLLOWING AND SECTION 5:
I HEREBY AUTHORIZE THE ADMINISTRATOR AND THE FINANCIAL INSTITUTION INDICATED
BELOW TO DEDUCT FROM MY BANK ACCOUNT $__________ PER MONTH ($100 MINIMUM,
$25,000 MAXIMUM) AND APPLY AMOUNTS SO DEDUCTED TO THE PURCHASE OF PAN PACIFIC
RETAIL PROPERTIES, INC. COMMON STOCK UNDER THE ACCOUNT DESIGNATED. (NOTE:
DEDUCTIONS WILL OCCUR ON OR ABOUT THE 19TH OF EACH MONTH.)
<PAGE> 23
5. BANK ACCOUNT INFORMATION (COMPLETE ONLY IF A FEATURE IN SECTION 4 IS
SELECTED)
THIS INFORMATION WILL BE USED FOR [ ] DIRECT DEPOSIT OF DIVIDENDS (Sec.4)
[ ] AUTOMATIC INVESTMENT (Sec.4)
[ ] CHECKING ACCOUNT BANK OR CREDIT UNION'S ABA TRANSIT ROUTING NUMBER
(available from the bank or credit union)
--------------------------------------------------
[ ] SAVINGS ACCOUNT BANK OR CREDIT UNION ACCOUNT NUMBER
--------------------------------------------------
TAPE YOUR VOIDED CHECK OR DEPOSIT SLIP HERE
BANK AND CREDIT UNION ROUTING INFORMATION.
For deposits or withdrawals to your checking account, please tape a voided
check so the Administrator may obtain bank or credit union account information.
For deposits or withdrawals to a savings account, please tape a
preprinted deposit slip. (Do not staple the slips.)
- --------------------------------------------------------------------------------
6. DIVIDEND REINVESTMENT
You may choose to reinvest all or part of the dividends paid on Pan
Pacific Retail Properties, Inc. Common Stock. If neither box is selected,
The Bank of New York will automatically remit any dividends to you.
[ ] Reinvest the dividends on ALL shares.
[ ] I would like a portion of my dividends reinvested. Please reinvest the
dividends on __________percent of my shares. 100% of your dividends will be
reinvested if a percentage is not indicated.
- --------------------------------------------------------------------------------
7. SAFEKEEPING
Common stock certificates deposited for safekeeping in your account must
be in the same registration as your Program account.
[ ] Please accept the enclosed certificate (s) for deposit to my account.
Enclosed are ______________share certificates.
insert number
CERTIFICATE NUMBER NUMBER OF SHARES
---------------------- -----------------------
---------------------- -----------------------
---------------------- -----------------------
---------------------- -----------------------
---------------------- -----------------------
---------------------- -----------------------
T O T A L
-----------------------
<PAGE> 24
8. ACCOUNT AUTHORIZATION SIGNATURE (required)
[ ] REQUEST FOR TAXPAYER IDENTIFICATION NUMBER (SUBSTITUTE FORM W-9)
I am a U.S. citizen or a resident alien. I certify, under penalties of perjury,
that (1) the taxpayer identification number in Section 1 is correct (or I am
waiting for a number to be issued to me) and (cross out the following if not
true) (2) I am not subject to backup withholding because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal Revenue
Service that I am subject to backup withholding as a result of failure to report
all interest of dividends, or (c) the IRS has notified me that I am no longer
subject to backup withholding.
[ ] CERTIFICATE OF FOREIGN STATUS (SUBSTITUTE FORM W-8)
I am an exempt foreign citizen. I certify, under penalties of perjury, that for
dividends, I am not a U.S. citizen or resident alien (or I am filing for a
foreign corporation, partnership, estate, or trust) and I am an exempt foreign
person. I have entered in Section 2 of this enrollment form the country where I
reside permanently for income-tax purposed.
[ ] FOR ORGANIZATIONS AND BUSINESS ENTITIES EXEMPT FROM BACKUP WITHHOLDING
I qualify for exemption and my account will not be subject to tax reporting and
backup withholding.
MY/OUR SIGNATURES (S) BELOW INDICATES I/WE HAVE READ THE PROGRAM BROCHURE AND
AGREE TO THE TERMS THEREIN AND HEREIN.
SIGNATURE OF OWNER DATE (month, day, year)
----------------------------------- ------------------------
SIGNATURE OF JOINT OWNER
----------------------------------- ------------------------
IF YOU NEED ASSISTANCE, PLEASE CALL THE ADMINISTRATOR AT 1-800-524-4458
<PAGE> 25
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14.
The estimated expenses, other than share issuance discounts, brokerage
commissions, and on-going administrative expenses, in connection with this
offering are estimated as follows:
SEC Registration Fee...................... $ 4,155
Blue Sky fees and expense................. $ 2,000
Printing, shipping and filing expenses.... $ 8,000
Legal fees and expenses................... $46,000
Accounting fees and expenses.............. $10,000
Plan agent fees........................... $ 7,500
Listing Fees.............................. $ 3,500
Miscellaneous............................. $ 4,000
-------
$85,155
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The MGCL permits a Maryland corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit or profit in money,
property or services or (b) active and deliberate dishonesty established by a
final judgment as being material to the cause of action. The Charter contains
such a provision which eliminates such liability to the maximum extent permitted
by Maryland law.
The Charter of the Company authorizes it, to the maximum extent permitted by
Maryland law, to obligate itself to indemnify and to pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to (a) any present or
former director or officer or (b) any individual who, while a director of the
Company and at the request of the Company, serves or has served another
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner or
trustee of such corporation, real estate investment trust, partnership, joint
venture, trust, employee benefit plan or other enterprise from and against any
claim or liability to which such person may incur by reason of his or her
statute as a present or former stockholder, director or officer of the Company.
The Bylaws of the Company obligate it, to the maximum extent permitted by
Maryland law, to indemnify and to pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to (a) any present or former
director or officer who is made a party to the proceeding by reason of his
service in that capacity or (b) any individual who, while a director of the
Company and at the request of the Company, serves or has served another
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner or
trustee of such corporation, real estate investment trust, partnership, joint
venture, trust employee benefit plan or other enterprise and who is made party
to the proceeding by reason of his service in that capacity against any claim or
liability to which he may become subject by reason of such service. The Charter
and Bylaws also permit the Company to indemnify and advance expenses to any
person who served a predecessor of the Company in any of the capacities
described above and to any employee or agent of the Company or a predecessor of
the Company.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Company's Charter does not) to indemnify a director or officer who has
been successful, on the merits or otherwise, in the defense of any proceeding to
which he is made party by reason of his service in that capacity. The MGCL
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made party by reason of their service in those other
capacities unless it is established that (a) the act or
II-1
<PAGE> 26
omission of the director or officer was material to the matter giving rise to
the proceeding and (i) was committed in bad faith or (ii) was the result of
active and deliberate dishonesty, (b) the director or officer actually received
an improper personal benefit in money, property or services, or (c) in the case
of any criminal proceeding, the director or officer had reasonable cause to
believe that the act or omission was unlawful. However, a Maryland corporation
may not indemnify for an adverse judgment in a suit by or in the right of the
corporation or for a judgment of liability on the basis that personal benefit
was improperly received, unless in either case a court orders indemnification
and then only for expenses. In addition, the MGCL permits a corporation to
advance reasonable expenses to a director or officer upon the corporation's
receipt of (a) a written affirmation by the director or officer of this good
faith belief that he has met the standard of conduct necessary for
indemnification by the Company as authorized by the Bylaws and (b) a written
undertaking by him or on his behalf to repay the amount paid or reimbursed by
the corporation if it shall ultimately be determined that the standard of
conduct was not met.
The inclusion of the above provisions in the Charter and Bylaws may have the
effect to reducing the likelihood of stockholder derivative suits against
directors and may discourage or deter stockholders or management from bringing a
lawsuit against directors for breach of their duty of care, even though such an
action, if successful, might otherwise have benefited the Company and its
stockholders.
The Company has entered into indemnification agreements with each of its
executive officers and directors. The indemnification agreements require, among
other matters, that the Company indemnify its executive officers and directors
to the fullest extent permitted by law and advance to the executive officers and
directors all related expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted. Under the indemnification
agreements, the Company must also indemnify and advance all expenses incurred by
executive officers and directors seeking to enforce their rights under the
indemnification agreements and may cover executive officers and directors under
the Company's directors' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides greater assurance to directors and executive
officers that indemnification will be available, because, as a contract, it
cannot be modified unilaterally in the future by the Board of Directors or the
stockholders to eliminate the rights it provides.
ITEM 16. EXHIBITS.
See Exhibit Index.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act"):
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and
Exchange Commission (the "Commission") pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering
price set for the in the "Calculation of Registration Fee" table
in the effective registration statement.
II-2
<PAGE> 27
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; provided, however, that the information
required to be included in a post-effective amendment by
paragraphs (a)(1)(i) and (a)(1)(ii) above may be contained in
periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes, that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Vista,
State of California, on the 16th day of February, 1999.
PAN PACIFIC RETAIL PROPERTIES, INC.
By: /s/ Stuart A. Tanz
------------------------------
Stuart A. Tanz
Director, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Stuart A. Tanz and David
L. Adlard, and both or either of them, as his true and lawful attorneys-in-fact
and agents with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration Statement
and any subsequent registration statement thereto pursuant to Rule 462(b) of the
Securities Act, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the foregoing, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys- in-fact and agents, or either of them or their or his
substitutes, may lawfully do or cause to be done by virtue hereof.
II-4
<PAGE> 29
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons acting in the capacities and
on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Stuart A. Tanz Chairman of the Board, President, February 16, 1999
- --------------------------------- Chief, Executive Officer and Director
Stuart A. Tanz (Principal Executive Officer)
/s/ David L. Adlard Executive Vice President, Chief February 16, 1999
- --------------------------------- Financial Officer, Secretary and
David L. Adlard Treasurer (Principal Financial
Officer)
/s/ Melvin S. Adess Director February 16, 1999
- ---------------------------------
Melvin S. Adess
/s/ Bernard M. Feldman Director February 16, 1999
- ---------------------------------
Bernard M. Feldman
/s/ Mark J. Riedy Director February 16, 1999
- ---------------------------------
Mark J. Riedy
/s/ Paul D. Campbell Director February 16, 1999
- ---------------------------------
Paul D. Campbell
/s/ David P. Zimel Director February 16, 1999
- ---------------------------------
David P. Zimel
</TABLE>
II-5
<PAGE> 30
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
3.1 Articles of Amendment and Restatement of the Company (previously filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-11
(Registration No. 333-28715) and incorporated herein by reference)
3.2 Amended and Restated Bylaws of the Company (previously filed as Exhibit
3.2 to the Company's Registration Statement on Form S-11 (Registration
No. 333-28715) and incorporated herein by reference)
4.1 Form of Certificate of Common Stock (previously filed as Exhibit 4.1 to
the Company's Registration Statement on Form S-11 (Registration No.
333-28715) and incorporated herein by reference)
*5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the validity of
the Common Stock being registered.
*23.1 Consent of KPMG LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in Exhibit
5.1).
24.1 Power of Attorney (contained on page II-4).
__________
* Filed herewith
<PAGE> 1
EXHIBIT 5.1
February 18, 1999
Pan Pacific Retail Properties, Inc.
1631-B South Melrose Drive
Vista, California 92083
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have served as Maryland counsel to Pan Pacific Retail Properties,
Inc., a Maryland corporation (the "Company"), in connection with certain
matters of Maryland law arising out of the registration of 750,000 shares (the
"Shares") of common stock, $.01 par value per share, of the Company (the
"Common Stock"), covered by the above-referenced Registration Statement, and
all amendments thereto (the "Registration Statement"), to be filed by the
Company under the Securities Act of 1933, as amended (the "1933 Act"). The
Shares are to be issued from time to time pursuant to the Company's Dividend
Reinvestment and Stock Purchase Plan (the "Plan"). Unless otherwise defined
herein, capitalized terms used herein shall have the meanings assigned to them
in the Registration Statement.
In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement, in the form in which it is to be
transmitted to the Securities and Exchange Commission (the "Commission") under
the 1933 Act;
2. The charter of the Company (the "Charter"), certified as of a
recent date by the State Department of Assessments and Taxation of Maryland
(the "SDAT");
3. The Bylaws of the Company, certified as of the date hereof by an
officer of the Company;
<PAGE> 2
Pan Pacific Retail Properties, Inc.
February 18, 1999
Page 2
4. Resolutions adopted by the Board of Directors of the Company (the
"Resolutions") relating to the issuance of the Shares pursuant to the Plan,
certified as of the date hereof by an officer of the Company;
5. The form of certificate representing a share of Common Stock,
certified as of the date hereof by an officer of the Company;
6. A certificate of the SDAT as to the good standing of the Company,
dated as of a recent date;
7. A certificate executed by an officer of the Company, dated as of the
date hereof; and
8. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so far as
is known to us there are no facts inconsistent with, the following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or any other person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding.
4. All Documents submitted to us as originals are authentic. Any
Documents submitted to us as certified or photostatic copies conform to the
original documents. All signatures on all such Documents are genuine. All
public records reviewed or relied upon by us or on our behalf are true and
complete. All statements and information contained in the Documents are true
and complete. There has been no oral or written modification of or amendment to
any of the Documents, and there has been no waiver of any provision of any of
the Documents, by action or conduct of the parties or otherwise.
<PAGE> 3
Pan Pacific Retail Properties, Inc.
February 18, 1999
Page 3
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under
and by virtue of the laws of the State of Maryland and is in good standing with
the SDAT.
2. Upon the due execution, countersignature and delivery of
certificates representing the Shares, the Shares will be duly authorized and,
when and if issued in accordance with the Charter, the Resolutions and the
Registration Statement (including the Plan), will be (assuming that, upon
issuance, the total number of shares of Common Stock issued and outstanding will
not exceed the total number of shares of Common Stock that the Company is then
authorized to issue) validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the substantive laws of the State of
Maryland and we do not express any opinion herein concerning any other law. We
express no opinion as to the applicability or effect of any federal or state
securities laws, including the securities laws of the State of Maryland, or as
to federal or state laws regarding fraudulent transfers. To the extent that any
matter as to which our opinion is expressed herein would be governed by any
jurisdiction other than the State of Maryland, we do not express any opinion on
such matter.
We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for submission to the
Commission as an exhibit to the Registration Statement and, accordingly, may not
be relied upon by, quoted in any manner to, or delivered to any other person or
entity (other than Latham & Watkins, counsel to the Company) without, in each
instance, our prior written consent.
<PAGE> 4
Pan Pacific Retail Properties, Inc.
February 18, 1999
Page 4
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of our firm therein. In
giving this consent, we do not admit that we are within the category of persons
whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
Ballard Spahr Andrews & Ingersoll LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Pan Pacific Retail Properties, Inc.
We consent to the incorporation by reference of our reports included in the
1997 annual report on Form 10-K and in the current reports on Form 8-K filed on
May 19, 1998 and on Form 8-K/A dated October 9, 1998, and to the references to
our firm under the heading "Experts" in the prospectus. The reports on the
statements of revenue and certain expenses for the Oregon Portfolio, San Dimas
Marketplace, Manteca Marketplace, Pacific Commons Shopping Center and The
Mercury Portfolio each contain a paragraph indicating that the statement of
revenue and certain expenses was prepared for the purpose of complying with the
rules and regulations of the Securities and Exchange Commission, as described in
Note 1 to the statement of revenue and certain expenses. It is not intended to
be a complete presentation of the respective properties' revenue and expenses.
KPMG LLP
San Diego, California
February 16, 1999
