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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 27, 1999
REGISTRATION NO. 333-80339
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
EXCEL LEGACY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 6512 33-0781747
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
16955 VIA DEL CAMPO, SUITE 100
SAN DIEGO, CA 92127
(619) 675-9400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
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GARY B. SABIN COPIES TO:
CHIEF EXECUTIVE OFFICER SCOTT N. WOLFE, ESQ.
EXCEL LEGACY CORPORATION LATHAM & WATKINS
16955 VIA DEL CAMPO, SUITE 100 701 B STREET, SUITE 2100
SAN DIEGO, CA 92127 SAN DIEGO, CALIFORNIA 92101
(619) 675-9400 (619) 236-1234
(NAME, ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 this form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ]
- ---------------
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE(1) PRICE REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------
9.0% Convertible Redeemable Subordinated
Debentures due 2004................... $36,570,658(1) 100% $36,570,658(1) $28,883(2)
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10.0% Senior Redeemable Notes due
2004.................................. $19,947,632(1) 100% $19,947,632(1) (2)
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Common Stock, par value $0.01 per
share................................. (3) (3) (3) (2)(3)
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(1) The 9.0% Convertible Redeemable Subordinated Debentures and 10.0% Senior
Redeemable Notes and cash consideration will be offered in exchange for any
and all shares of common stock of Price Enterprises, Inc. on the terms
described herein.
(2) Previously paid.
(3) Pursuant to Rule 416 under the Securities Act of 1933, the shares of Legacy
common stock being registered hereunder include the number of shares of
Legacy common stock issuable upon conversion of the Legacy debentures plus
such indeterminate number of additional shares as may become issuable upon
conversion of the Legacy debentures as a result of adjustments in the
conversion price thereof. Pursuant to Rule 457(i) under the Securities Act
of 1933, no registration fee is required for the Legacy common stock
issuable upon conversion of the Legacy debentures because no additional
consideration will be required in connection with the issuance of the Legacy
common stock.
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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<PAGE> 2
SUBJECT TO COMPLETION -- DATED JULY 27, 1999
OFFER TO EXCHANGE
$8.50 COMPRISED OF
$[4.25] IN CASH,
$[2.75] IN PRINCIPAL AMOUNT OF 9.0% CONVERTIBLE REDEEMABLE SUBORDINATED
DEBENTURES DUE 2004
AND
$[1.50] IN PRINCIPAL AMOUNT OF 10.0% SENIOR REDEEMABLE NOTES DUE 2004
OF
EXCEL LEGACY CORPORATION
FOR ANY AND ALL SHARES OF COMMON STOCK OF
PRICE ENTERPRISES, INC.
-------------------------
OUR OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME ON ,
1999, UNLESS EXTENDED.
Excel Legacy Corporation is offering to exchange a total of $8.50
consisting of $[4.25] in cash, $[2.75] in principal amount of our 9.0%
Convertible Redeemable Subordinated Debentures due 2004 and $[1.50] in principal
amount of our 10.0% Senior Redeemable Notes due 2004 for each share of common
stock of Price Enterprises, Inc. If all Enterprises' stockholders accept our
offer, in the aggregate we will pay approximately $56.5 million in cash and
issue the principal amount of approximately $36.6 million in Legacy debentures
and approximately $19.9 million in Legacy notes. Enterprises' board of directors
has approved this transaction.
The Enterprises common stock and the Enterprises preferred stock are traded
on the Nasdaq National Market under the symbols "PREN" and "PRENP,"
respectively. On July 20, 1999, the closing price for the Enterprises common
stock was $7.688 and the closing price for the Enterprises preferred stock was
$15.50. Legacy's common stock, into which the Legacy debentures may be
converted, is traded on the American Stock Exchange under the symbol "XLG." On
July 20, 1999, the closing price for the Legacy common stock was $4.438. We
intend to apply to have the Legacy debentures listed on the American Stock
Exchange. The Legacy notes are not listed on a national securities exchange or
the Nasdaq National Market and we do not intend to apply for listing with
respect to the Legacy notes.
The cash, debentures and notes issued in the exchange offer will accrue
interest from August 15, 1999. The Legacy debentures may be converted at the
option of the holder into shares of Legacy common stock at the initial
conversion price of $5.50 per share at any time before the close of business on
the maturity date of the Legacy debentures. The conversion price is subject to
adjustment upon the occurrence of various events affecting the Legacy common
stock.
You have until 5:00 p.m., New York City time, on , 1999 to
accept our offer, unless extended. At that time, our offer and your withdrawal
rights will expire. This prospectus and the enclosed letter of transmittal
describe how to accept our offer.
Stockholders who hold in the aggregate 8,014,970 shares of the Enterprises
common stock, representing approximately 51% of the Enterprises voting power,
have agreed to exchange their shares in our offer. These shares have been placed
in escrow pending the consummation of the exchange offer.
The Enterprises preferred stock will remain outstanding following our
offer. After the exchange, the holders of the Enterprises preferred stock will
be entitled to elect a majority of Enterprises' board of directors and to have
one designee on Legacy's board of directors, until the occurrence of various
events described in this prospectus. Also after the exchange, we may merge
Enterprises with a wholly-owned subsidiary of Legacy. The merger will have no
effect on Enterprises' stockholders who accept our offer. It will affect,
however, Enterprises' stockholders who do not accept our offer. If we proceed
with a merger, we will give those stockholders the identical amount and ratio of
cash, Legacy debentures and Legacy notes for their Enterprises common stock as
is being offered to you.
-------------------------
THE LEGACY DEBENTURES AND THE LEGACY NOTES WE ARE OFFERING INVOLVE A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 18 OF THIS PROSPECTUS FOR A
DISCUSSION OF THE RISKS YOU SHOULD CONSIDER IN CONNECTION WITH OUR OFFER AND AN
INVESTMENT IN THE DEBENTURES AND THE NOTES.
-------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities to be issued in the
exchange offer or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
-------------------------
This prospectus is dated , 1999.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE> 3
SOURCES OF ADDITIONAL INFORMATION
This prospectus incorporates important business and financial information
about Legacy and Enterprises that is not included or delivered with this
document. This information is available without charge to the holders of
Enterprises common stock upon written or oral request.
You may contact the information agent with respect to the exchange offer as
follows:
D.F. King & Co., Inc.
77 Water Street
New York, NY 10005-4496
(800) 659-6590
You may contact Legacy as follows:
Excel Legacy Corporation
16955 Via Del Campo, Suite 100
San Diego, CA 92127
(619) 675-9400
You may contact Enterprises as follows:
Price Enterprises, Inc.
4649 Morena Boulevard
San Diego, California 92117
(619) 581-4679
To obtain timely delivery before the expiration of our offer, you should
request the information no later than , 1999, which is
five business days prior to the expiration of our offer.
You may access documents filed by Legacy and Enterprises with the SEC at
the SEC's website at www.sec.gov. Please refer to "Where You Can Find More
Information" in this prospectus.
<PAGE> 4
TABLE OF CONTENTS
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PAGE
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QUESTIONS AND ANSWERS ABOUT OUR OFFER....................... 1
PROSPECTUS SUMMARY.......................................... 3
Summary of the Exchange Offer............................. 3
Excel Legacy Corporation.................................. 4
Price Enterprises, Inc. .................................. 4
The Exchange Offer........................................ 5
Cash...................................................... 8
Legacy 9.0% Convertible Redeemable Subordinated Debentures
due 2004............................................... 9
Legacy 10.0% Senior Redeemable Notes due 2004............. 10
Benefits to Enterprises' Insiders in the Exchange Offer... 11
Risk Factors.............................................. 11
Summary Selected Financial Data of Legacy................. 13
Summary Selected Financial Data of Enterprises............ 14
Selected Pro Forma Consolidated Condensed Financial
Information............................................ 15
Ratio of Earnings to Fixed Charges........................ 16
Comparative Per Share Data................................ 16
Comparative Per Share Market Information.................. 17
RISK FACTORS................................................ 18
FORWARD-LOOKING STATEMENTS.................................. 31
THE EXCHANGE OFFER.......................................... 32
General................................................... 32
Background of the Exchange Offer.......................... 32
Our Reasons for the Exchange Offer........................ 36
Enterprises' Reasons for the Exchange Offer............... 38
Fairness Opinion.......................................... 40
Exchange Rate............................................. 45
Expiration Date........................................... 45
Exchange of Cash, Debentures and Notes for the Enterprises
Common Stock........................................... 45
Exchange Agent............................................ 47
Guaranteed Delivery Procedures............................ 48
Conditions to the Exchange................................ 48
Termination of the Exchange Offer......................... 50
Withdrawal Rights......................................... 50
Federal Income Tax Consequences........................... 51
Fees and Expenses......................................... 51
Resales of the Legacy Debentures and the Legacy Notes by
Enterprises' Affiliates................................ 52
Regulatory Matters........................................ 52
Effect on Options to Purchase the Enterprises Stock....... 52
Effect on the Enterprises Preferred Stock................. 52
Accounting Treatment...................................... 53
Possible Merger and Dissenting Stockholders Rights........ 53
DESCRIPTION OF THE AGREEMENTS............................... 54
The Stockholders Agreement................................ 54
The Company Agreement..................................... 56
Termination of the Agreements and Liquidated Damages...... 58
DESCRIPTION OF LEGACY CAPITAL STOCK......................... 58
General................................................... 58
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Legacy Common Stock....................................... 59
Legacy Preferred Stock.................................... 59
Registrar and Transfer Agent.............................. 60
DESCRIPTION OF THE LEGACY DEBENTURES AND THE LEGACY NOTES... 60
General................................................... 60
Maturity and Interest..................................... 61
Redemption................................................ 61
Selection and Notice of Redemption........................ 61
Ranking................................................... 62
Conversion................................................ 63
Covenants................................................. 65
Events of Default......................................... 66
Satisfaction and Discharge................................ 68
Modification of the Indentures............................ 70
Governing Law............................................. 71
The Trustee............................................... 71
Definitions............................................... 71
INFORMATION ABOUT LEGACY.................................... 73
General................................................... 73
Our Properties............................................ 73
Our Principal Tenants..................................... 76
Our Employees............................................. 76
Our Headquarters.......................................... 76
Our Directors and Officers................................ 77
INFORMATION ABOUT ENTERPRISES............................... 79
General................................................... 79
Enterprises' Properties................................... 79
Enterprises' Principal Tenants............................ 81
Enterprises' Employees.................................... 81
Enterprises' Headquarters................................. 81
Enterprises' Directors and Officers....................... 82
DIRECTORS AND MANAGEMENT OF ENTERPRISES FOLLOWING THE
EXCHANGE OFFER............................................ 83
BENEFITS TO ENTERPRISES' INSIDERS IN THE EXCHANGE OFFER..... 84
Severance Payments........................................ 84
Stock Options............................................. 85
Indemnification and Directors and Officers' Liability
Insurance.............................................. 87
COMPARISON OF STOCKHOLDER RIGHTS............................ 87
Form of Organization and Purpose.......................... 87
Capitalization............................................ 87
Restrictions on Ownership and Transfer of Stock........... 87
Amendment of Legacy's Charter and Enterprises' Charter.... 88
Stockholder Voting Rights Generally....................... 89
Stockholder Action by Written Consent..................... 90
Special Stockholder Meetings.............................. 90
Inspection Rights......................................... 91
Number and Election of Directors.......................... 91
Removal of Directors...................................... 92
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ii
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Vacancies on the Board of Directors....................... 92
Standard of Conduct....................................... 93
Advance Notice of Director Nominations and of New Business
Proposals.............................................. 93
Limitation of Liability and Indemnification of Directors
and Officers........................................... 94
Declaration of Dividends.................................. 96
Appraisal Rights.......................................... 96
Merger, Consolidation, Share Exchange and Transfer of All
or Substantially All Assets............................ 97
Change in Control Pursuant to Delaware/Maryland Law....... 99
SUMMARY SELECTED FINANCIAL DATA OF LEGACY................... 102
SUMMARY SELECTED FINANCIAL DATA OF ENTERPRISES.............. 103
EXCEL LEGACY CORPORATION UNAUDITED PRO FORMA OPERATING AND
FINANCIAL INFORMATION..................................... 104
PRICE ENTERPRISES, INC. UNAUDITED PRO FORMA OPERATING AND
FINANCIAL INFORMATION..................................... 110
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES............... 115
Treatment of the Exchange Offer........................... 116
Legacy Debentures......................................... 117
Legacy Notes.............................................. 118
Legacy Common Stock....................................... 119
Information Reporting and Backup Withholding.............. 119
Proposed Legislation...................................... 121
LEGAL MATTERS............................................... 121
EXPERTS..................................................... 122
WHERE YOU CAN FIND MORE INFORMATION......................... 123
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iii
<PAGE> 7
QUESTIONS AND ANSWERS ABOUT OUR OFFER
Q1: PLEASE EXPLAIN THE EXCHANGE RATE.
A1: If the exchange occurs, you will receive $[4.25] in cash, $[2.75] in
principal amount of Legacy debentures and $[1.50] in principal amount of
Legacy notes for each share of the Enterprises common stock you choose to
exchange. However, instead of issuing Legacy debentures and notes with a
principal amount of other than $1,000 or an integral multiple of $1,000, we
will pay you cash for amounts that are below a multiple of $1,000.
Example: If you currently own 1,000 shares of the Enterprises common
stock, then after the exchange you will receive $5,500 in cash, $2,000 in
principal amount of Legacy debentures and $1,000 in principal amount of
Legacy notes. Although the exchange rate indicates that you should receive
$4,250 in cash, $2,750 in principal amount of Legacy debentures and $1,500
in principal amount of Legacy notes, we will not be issuing Legacy
debentures or Legacy notes in principal amounts other than $1,000 and
multiple integrals thereof. Accordingly, in this example, $750 otherwise
issuable in the form of a Legacy debenture and $500 otherwise issuable in
the form of a Legacy note would be added to the amount to be paid to you
in cash.
The cash, debentures and notes issued in the exchange offer will accrue
interest from August 15, 1999. The cash will accrue interest at the rate
of 8.0% per annum, the Legacy debentures will accrue interest at the rate
of 9.0% per annum, and the Legacy notes will accrue interest at the rate
of 10.0% per annum.
Q2: WHAT DO I NEED TO DO NOW?
A2: You received a letter of transmittal along with this prospectus. If you
wish to accept our offer, you must complete, sign and date the letter of
transmittal according to the instructions in this prospectus and the letter
of transmittal. You must then mail or deliver the letter of transmittal,
the stock certificates that represent the Enterprises common stock you wish
to exchange, and any other necessary documents to, which is the exchange
agent for our offer. For detailed instructions, see "The Exchange Offer."
If your shares are held by your broker and are not certificated in your
name, you will receive instructions from your broker on how to participate
in our offer. Please contact your broker if you have not yet received
instructions regarding the exchange offer.
Q3: WHEN DO I NEED TO SEND MY LETTER OF TRANSMITTAL AND STOCK CERTIFICATES?
A3: Our offer expires at 5:00 p.m., New York City time, on
, 1999, unless we extend this time, in which case we
will issue a press release. The exchange agent must receive your letter of
transmittal, stock certificates and other necessary documents before this
expiration date. For detailed instructions, see "The Exchange Offer."
Q4: CAN I CHANGE MY MIND AFTER I TENDER MY SHARES OF THE ENTERPRISES COMMON
STOCK?
A4: Yes. You may withdraw tenders of your shares of the Enterprises common
stock any time before the exchange offer expires. If you change your mind
again, you can retender your shares of the Enterprises common stock by
following the tender procedures again prior to the expiration of the
exchange offer. If the exchange is
1
<PAGE> 8
terminated without our acceptance of any shares of the Enterprises common
stock tendered, we will promptly return all shares that you have tendered.
Q5: CAN I TENDER ONLY A PORTION OF MY SHARES OF THE ENTERPRISES COMMON STOCK IN
THE EXCHANGE OFFER?
A5: Yes, you may exchange some or all of your shares of the Enterprises common
stock.
Q6: DO I DO ANYTHING IF I WANT TO RETAIN MY SHARES OF THE ENTERPRISES COMMON
STOCK?
A6: No. If you want to retain your shares of the Enterprises common stock, you
do not need to take any action.
Q7: WHEN WILL I RECEIVE THE CASH, DEBENTURES AND NOTES?
A7: If the exchange occurs, we will send you a check for the cash portion of
our offer and the Legacy debentures and notes to which you will be entitled
promptly after the expiration date.
Q8: WHAT ARE THE TAX CONSEQUENCES OF THE EXCHANGE TO ME?
A8: The exchange of the Enterprises common stock for cash, Legacy debentures
and Legacy notes pursuant to the exchange offer will be a taxable
transaction for United States federal income tax purposes and may also be
taxable under applicable state, local and foreign tax laws. YOU SHOULD
CAREFULLY READ THE SUMMARY OF THE FEDERAL INCOME TAX CONSEQUENCES OF THE
EXCHANGE OFFER, AND OF ACQUIRING, OWNING AND DISPOSING OF THE LEGACY
DEBENTURES AND THE LEGACY NOTES, UNDER "UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES" AND ARE URGED TO CONSULT WITH YOUR OWN TAX ADVISORS AS TO THE
FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES IN YOUR PARTICULAR
CIRCUMSTANCE.
Q9: WHAT IS THE EFFECT OF OUR OFFER ON THE ENTERPRISES PREFERRED STOCK?
A9: The Enterprises preferred stock will remain outstanding and will be
unaffected by the exchange offer except that we have agreed to provide
various protections for the holders of the Enterprises preferred stock
which are described in "The Exchange Offer -- Effect on the Enterprises
Preferred Stock" and "Description of the Agreements -- The Company
Agreement."
Q10: WHAT IS THE EFFECT OF OUR OFFER ON THE ENTERPRISES STOCK OPTIONS?
A10: We have agreed with Enterprises to accelerate the vesting of the
Enterprises stock options and to make cash payments with respect to those
options. For a discussion of the effect of the exchange offer on the
Enterprises stock options, see "The Exchange Offer -- Effect on Options to
Purchase the Enterprises Stock" and "Benefits to Enterprises' Insiders in
the Exchange Offer."
Q11: WHOM SHOULD I CALL WITH QUESTIONS?
A11: If you have any questions about our offer or the exchange, you may call
the information agent, D.F. King & Co., Inc., at (800) 659-6590 to ask any
questions or to request additional documents. You may also call Graham R.
Bullick, Ph.D., our Vice President of Capital Markets and head of our
Investor Relations Department at (619) 675-9400.
2
<PAGE> 9
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information contained elsewhere in this prospectus. You should carefully
consider the factors set forth herein under the caption "Risk Factors" and are
urged to read this prospectus and the other exchange offer documents in their
entirety.
SUMMARY OF THE EXCHANGE OFFER
We entered into two agreements that govern our actions with respect to our
offer to exchange a total of $8.50 consisting of $[4.25] in cash, $[2.75] in
principal amount of our 9.0% Convertible Redeemable Subordinated Debentures due
2004 and $[1.50] in principal amount of our 10.0% Senior Redeemable Notes due
2004 for each share of the Enterprises common stock.
STOCKHOLDERS AGREEMENT
On May 12, 1999, we entered into an agreement with Sol Price, as trustee of
several trusts, several nonprofit foundations and numerous other individuals
known to Sol Price, who executed the agreement in their capacity as stockholders
of Enterprises and/or as trustees of trusts which are stockholders of
Enterprises. Following the execution of the company agreement described below,
all of the directors of Enterprises and some of their family members, the
President and Chief Executive Officer of Enterprises, and numerous other
individuals and entities known to Mr. Price and the directors of Enterprises
executed the agreement in their capacity as stockholders of Enterprises and/or
as trustees of trusts which are stockholders of Enterprises. This first
agreement is referred to in this prospectus as the "stockholders agreement." In
accordance with the terms of the stockholders agreement, we agreed to offer to
all Enterprises' stockholders $8.50 per share for all outstanding shares of the
Enterprises common stock. To facilitate the exchange offer, Mr. Price, as
trustee of several trusts, and other Enterprises' stockholders have deposited
into escrow an aggregate of 8,014,970 shares of the Enterprises common stock,
representing approximately 51% of the Enterprises voting power, and we have
deposited into escrow $7.5 million in cash. If the parties satisfy their
obligations under the stockholders agreement and the company agreement, the
shares held in escrow will be tendered in the exchange offer, and the funds held
in escrow will be released to satisfy a portion of our monetary obligations
under the exchange offer.
COMPANY AGREEMENT
Pursuant to the stockholders agreement, Enterprises' board of directors had
the right to determine whether the transaction would proceed and, if so, whether
the transaction would proceed as an exchange offer for the Enterprises common
stock or a merger with Enterprises. The Enterprises board met on June 2, 1999
and approved the transaction and determined that it would proceed as an exchange
offer. In deciding that the transaction should proceed as an exchange offer for
the Enterprises common stock, Enterprises' board focused mainly on the ability
of each holder of the Enterprises common stock to make his or her own decision
in an exchange offer as to whether to exchange the holder's shares of the
Enterprises common stock for the consideration offered by Legacy or to remain a
stockholder of Enterprises. Enterprises'
3
<PAGE> 10
board also believed that an exchange offer would be completed more quickly than
a merger. Also on June 2, 1999, we entered into an agreement with Enterprises
which is referred to in this prospectus as the "company agreement." Under the
company agreement, Legacy and Enterprises have agreed to take various actions to
facilitate the exchange offer. In addition, after the consummation of the
exchange offer, we have agreed that the holders of the Enterprises preferred
stock will be entitled to elect a majority of Enterprises' board of directors
and to have one designee on Legacy's board of directors, until:
- less than 2,000,000 shares of the Enterprises preferred stock remain
outstanding,
- we make an offer to purchase any and all outstanding shares of the
Enterprises preferred stock at a cash price of $16.00 per share, and
purchase all shares duly tendered and not withdrawn, or
- in other circumstances described in the company agreement.
The company agreement also contains a provision intended to protect the
interests of the holders of the Enterprises preferred stock by creating an
annual reserve of $7.5 million at the Enterprises level which will not be
distributed to Legacy or any other holder of the Enterprises common stock. We
have agreed with Enterprises that the $7.5 million reserve may be used for the
improvement and/or acquisition of properties, the buy-back of the Enterprises
preferred stock or the reduction of Enterprises' debt.
For a more detailed discussion of the provisions of the stockholders
agreement and the company agreement, see "Description of the Agreements."
EXCEL LEGACY CORPORATION
Legacy, a Delaware corporation, was formed on November 17, 1997 as a wholly
owned subsidiary of Excel Realty Trust, Inc., a Maryland corporation and a REIT.
On March 31, 1998, Excel Realty Trust effected a spin-off of our business
through a special dividend of all of our outstanding common stock to the holders
of Excel Realty Trust common stock. Excel Realty Trust effected this spin-off to
allow us to pursue a wider variety of real estate opportunities including
owning, acquiring, developing and managing retail, entertainment, office, hotel
and mixed-use projects and real estate and other operating companies throughout
the United States and Canada.
Our principal executive offices are located at 16955 Via Del Campo, Suite
100, San Diego, California 92127 and our telephone number is (619) 675-9400. For
more details about our business, see "Information About Legacy."
PRICE ENTERPRISES, INC.
Enterprises is a REIT incorporated in the state of Maryland. Its principal
business is to own, acquire, develop, operate, manage and lease real property.
Enterprises was originally incorporated in July 1994 as a Delaware corporation
and began operations as a wholly owned subsidiary of Costco Companies, Inc.,
formerly Price/Costco, Inc. In 1994, Costco spun-off Enterprises and transferred
to Enterprises as part of a voluntary exchange offer substantially all of the
real estate assets which historically formed
4
<PAGE> 11
Costco's non-club real estate business segment, merchandising business entities
and other assets. In June 1997, Enterprises' board of directors determined that
it would be in the best interest of Enterprises and its stockholders to separate
Enterprises' core real estate business from its merchandising businesses. In
August 1997, Enterprises' merchandising businesses, real estate properties held
for sale, and various other assets were spun-off to PriceSmart, Inc. Through a
stock distribution, PriceSmart became a separate public company. Since that
time, Enterprises has engaged in a combination of acquiring, developing, owning,
managing and/or selling real estate assets, primarily shopping centers. The
PriceSmart distribution resulted in Enterprises becoming eligible to elect
federal tax treatment as a REIT, which allows Enterprises to substantially
eliminate its obligation to pay taxes on income.
Enterprises' principal executive offices are located at 4649 Morena
Boulevard, San Diego, California 92117 and its telephone number is (619)
581-4679. For more details about Enterprises' business, see "Information About
Enterprises."
THE EXCHANGE OFFER
TERMS OF OUR OFFER........... We are offering to exchange $8.50 consisting of
$[4.25] in cash, $[2.75] in principal amount of
our 9.0% Convertible Redeemable Subordinated
Debentures due 2004 and $[1.50] in principal
amount of our 10.0% Senior Redeemable Notes due
2004 for each share of the Enterprises common
stock held by you. However, instead of issuing
Legacy debentures and notes with a principal
amount of other than $1,000 or an integral
multiple of $1,000, we will pay you cash for
amounts that are below a multiple of $1,000.
Pursuant to the stockholders agreement, the
cash, debentures and notes issued in the
exchange offer will accrue interest from August
15, 1999. The cash will accrue interest at the
rate of 8.0% per annum, the Legacy debentures
will accrue interest at the rate of 9.0% per
annum, and the Legacy notes will accrue interest
at the rate of 10.0% per annum.
All shares of the Enterprises common stock
properly tendered and not withdrawn will be
exchanged at the exchange rate, on the terms and
subject to the conditions of the exchange offer.
We will promptly return any shares of the
Enterprises common stock if the conditions of
the exchange offer are not met.
EXPIRATION DATE, EXTENSION,
TERMINATION................ You have until 5:00 p.m., New York City time, on
, 1999 to accept our offer, unless
extended. At that time, our offer will expire.
If we extend the expiration date, we will
publicly announce the extension as soon as
practicable after we make
5
<PAGE> 12
the extension and in any event no later than
9:00 a.m. New York City time on the next
business day after the previously scheduled
expiration date. We may also terminate the
exchange offer in the circumstances described in
"The Exchange Offer -- Termination of the
Exchange Offer."
WITHDRAWAL RIGHTS............ You may withdraw tenders of your shares of the
Enterprises common stock at any time before the
exchange offer expires. If you change your mind
again, you may retender your shares of the
Enterprises common stock by following the
exchange offer procedures again prior to the
expiration of the exchange offer.
CONDITIONS TO THE EXCHANGE
OFFER...................... Our offer is conditioned upon 8,000,000 shares
of the Enterprises common stock being tendered
for exchange and not withdrawn and is subject to
other customary conditions. Under the
stockholders agreement, Sol Price, as trustee of
several trusts, and other stockholders of
Enterprises have agreed to exchange their shares
of the Enterprises common stock, which together
aggregate 8,014,970 shares. These shares have
been placed in escrow pending the consummation
of the exchange offer. Although we expect the
minimum number of shares of the Enterprises
common stock to be tendered in the exchange
offer from the escrow described above, it is
very important to us that you tender your
shares. For a discussion of the terms of the
stockholders agreement, see "Description of the
Agreements -- The Stockholders Agreement." For a
discussion of the other conditions to our offer,
see "The Exchange Offer -- Conditions to the
Exchange."
PROCEDURES FOR TENDERING YOUR
SHARES OF THE ENTERPRISES
COMMON STOCK............... If you hold certificates for shares of the
Enterprises common stock, you must complete and
sign the letter of transmittal designating the
number of the Enterprises shares you wish to
tender and return the letter with your stock
certificates and any other documents required by
the letter of transmittal, by registered mail,
return receipt requested, so that it is received
by the exchange agent at one of the addresses
listed in "The Exchange Offer -- The Exchange
Agent" before the expiration of the exchange
offer on , 1999.
6
<PAGE> 13
If you hold shares of the Enterprises common
stock through a broker, you should receive
instructions from your broker on how to
participate. In this situation, you do not need
to complete the letter of transmittal. Please
contact your broker directly if you have not yet
received instructions. Some financial
institutions may also effect tenders by
book-entry transfer through The Depository Trust
Company.
If you hold certificates for shares of the
Enterprises common stock or if you hold the
Enterprises shares through a broker, you may
also comply with the procedures for guaranteed
delivery. See "The Exchange Offer -- Guaranteed
Delivery Procedures."
GUARANTEED DELIVERY
PROCEDURES................. Holders of the Enterprises common stock who wish
to tender their shares and whose shares are not
immediately available or who cannot deliver
their certificates for the Enterprises common
stock, the letter of transmittal or any other
documentation required by the letter of
transmittal to the exchange agent prior to the
expiration date must tender their shares of the
Enterprises common stock according to the
guaranteed delivery procedures described in "The
Exchange Offer -- Guaranteed Delivery
Procedures."
ACCEPTANCE OF THE ENTERPRISES
COMMON STOCK AND DELIVERY
OF CASH, LEGACY DEBENTURES
AND LEGACY NOTES........... Subject to the satisfaction or waiver of the
conditions to the exchange offer, we will accept
for exchange any and all shares of the
Enterprises common stock that are properly
tendered in the exchange offer and not withdrawn
prior to the expiration date. The cash, Legacy
debentures and Legacy notes to be delivered in
exchange for your shares of the Enterprises
common stock will be delivered promptly
following the expiration of our offer.
UNITED STATED FEDERAL INCOME
TAX CONSEQUENCES........... The exchange of the Enterprises common stock for
cash, Legacy debentures and Legacy notes
pursuant to the exchange offer will be a taxable
transaction for United States federal income tax
purposes and may also be taxable under
applicable state, local and foreign tax laws.
YOU SHOULD CAREFULLY READ THE SUMMARY OF THE
FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE
OFFER, AND OF ACQUIRING, OWNING AND DISPOSING OF
THE LEGACY DEBENTURES AND THE LEGACY
7
<PAGE> 14
NOTES, UNDER "UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES" AND ARE URGED TO CONSULT WITH YOUR
OWN TAX ADVISORS AS TO THE FEDERAL, STATE, LOCAL
AND FOREIGN TAX CONSEQUENCES IN YOUR PARTICULAR
CIRCUMSTANCE.
NO APPRAISAL RIGHTS.......... No appraisal rights are available to
stockholders of Enterprises in connection with
the exchange offer.
If the transaction is consummated as planned and
the number of outstanding shares of the
Enterprises common stock is reduced below the
level required for listing by the Nasdaq
National Market, the Enterprises common stock
may be delisted from the Nasdaq National Market.
Under Maryland law, those stockholders who do
not tender their shares of the Enterprises
common stock in the exchange offer may dissent
from any future merger of Enterprises only if
the Enterprises common stock is not listed on
the Nasdaq National Market on the record date
for determining stockholders entitled to vote on
the merger, and they must comply fully with
federal law and Maryland law for their dissent
to be effective.
EXCHANGE AGENT............... EquiServe, L.P. is serving as the exchange agent
in connection with our exchange offer.
INFORMATION AGENT............ D.F. King & Co., Inc. is serving as the
information agent in connection with our
exchange offer.
CASH
CASH OFFERED................. In addition to $[2.75] in principal amount of
Legacy debentures and $[1.50] in principal
amount of Legacy notes, we will pay $[4.25] in
cash for each share of the Enterprises common
stock tendered in the exchange offer. We will
pay the aggregate amount of approximately $56.5
million in cash assuming all outstanding shares
of the Enterprises common stock are exchanged.
INTEREST..................... Pursuant to the stockholders agreement, interest
will begin to accrue on the cash from August 15,
1999 at the rate of 8.0% per annum. The interest
will be paid with the cash portion of the offer
promptly after the expiration date.
8
<PAGE> 15
LEGACY 9.0% CONVERTIBLE REDEEMABLE SUBORDINATED DEBENTURES DUE 2004
SECURITIES OFFERED........... In addition to $[4.25] in cash and $[1.50] in
principal amount of Legacy notes, we will pay
$[2.75] in principal amount of our 9.0%
Convertible Redeemable Subordinated Debentures
due 2004 for each share of the Enterprises
common stock tendered in the exchange offer. We
will not, however, issue debentures in a
principal amount of other than $1,000 or an
integral multiple of $1,000. Instead, we will
pay you cash for amounts that are below a
multiple of $1,000.
We will issue approximately $36.6 million in
aggregate principal amount of Legacy debentures
assuming all outstanding shares of the
Enterprises common stock are exchanged.
MATURITY..................... , 2004.
INTEREST..................... Pursuant to the stockholders agreement, interest
will begin to accrue on the Legacy debentures
from August 15, 1999 at the rate of 9.0% per
annum. Cash interest will be payable on the
Legacy debentures semi-annually in arrears on
and , commencing , 2000.
CONVERSION................... The Legacy debentures may be converted at the
option of the holder into shares of Legacy
common stock at the initial conversion price of
$5.50 per share at any time before the close of
business on the maturity date of the Legacy
debentures. The conversion price is subject to
adjustment upon the occurrence of various events
affecting the Legacy common stock. See
"Description of the Legacy Debentures --
Conversion."
RANKING...................... The Legacy debentures will be unsecured
subordinated obligations and will rank junior in
right of payment to all of our existing and
future indebtedness that is not expressly
subordinated to the debentures. As of March 31,
1999, we had outstanding approximately $99.7
million of senior indebtedness.
OPTIONAL REDEMPTION.......... The Legacy debentures may be redeemed at our
option, in whole or in part, at any time on or
after , 2001, at the redemption price of
100% of the principal amount of the Legacy
debentures, plus accrued and unpaid interest
through the redemption date.
For additional information regarding the Legacy debentures, see
"Description of the Legacy Debentures and the Legacy Notes."
9
<PAGE> 16
LEGACY 10.0% SENIOR REDEEMABLE NOTES DUE 2004
SECURITIES OFFERED........... In addition to $[4.25] in cash and $[2.75] in
principal amount of Legacy debentures, we will
pay $[1.50] in principal amount of our 10.0%
Senior Redeemable Notes due 2004 for each share
of the Enterprises common stock tendered in the
exchange offer. We will not, however, issue
notes in a principal amount of other than $1,000
or an integral multiple of $1,000. Instead, we
will pay you cash for amounts that are below a
multiple of $1,000.
We will issue approximately $19.9 million in
aggregate principal amount of Legacy notes
assuming all outstanding shares of the
Enterprises common stock are exchanged.
MATURITY..................... , 2004.
INTEREST..................... Pursuant to the stockholders agreement, interest
will begin to accrue on the Legacy notes from
August 15, 1999 at the rate of 10.0% per annum.
Cash interest will be payable on the Legacy
notes semi-annually in arrears on and
, commencing , 2000.
RANKING...................... The Legacy notes will be senior obligations of
Legacy, will rank equal in right of payment with
all existing and future senior indebtedness of
Legacy and will rank senior in right of payment
to the Legacy debentures and any future
subordinated indebtedness of Legacy, provided
that the Legacy notes will be effectively
subordinated to our secured indebtedness and the
indebtedness and other liabilities of our
subsidiaries.
As of March 31, 1999, we had approximately $99.7
million in outstanding secured debt that
effectively ranks senior to the Legacy notes,
and no outstanding debt that ranks equal or
junior to the Legacy notes. The Legacy
debentures, however, will rank junior in right
of payment to the Legacy notes.
OPTIONAL REDEMPTION.......... The Legacy notes may be redeemed at our option,
in whole or in part, at any time at the
redemption price of 100% of the principal amount
of the Legacy notes, plus accrued and unpaid
interest through the redemption date.
For additional information regarding the Legacy notes, see "Description of
the Legacy Debentures and the Legacy Notes."
10
<PAGE> 17
BENEFITS TO ENTERPRISES' INSIDERS IN THE EXCHANGE OFFER
In considering whether to exchange your shares of the Enterprises common
stock, you should be aware of the interests that directors, executive officers
and other personnel of Enterprises have in the exchange offer. These include:
- severance payments,
- acceleration of vesting of the Enterprises stock options and cash
payments with respect to those options, and
- continuing indemnification and directors and officers' liability
insurance.
The following table summarizes the aggregate amount of severance payments
and cash payments with respect to options to be made in connection with the
exchange offer:
<TABLE>
<CAPTION>
CASH PAYMENTS WITH
CASH RESPECT TO THE
INSIDERS AND OTHER PERSONNEL OF ENTERPRISES SEVERANCE PAYMENTS ENTERPRISES OPTIONS
- ------------------------------------------- ------------------ -------------------
<S> <C> <C>
Jack McGrory,
President and Chief Executive Officer... $ 360,000 $ 992,582
Gary W. Nielson,
Former Executive Vice President and
Chief Financial Officer................. 210,000 199,500
Joseph R. Satz,
Executive Vice President and
General Counsel......................... 215,000 277,429
All non-employee directors................ -- 329,278
All other personnel....................... 1,313,100 1,342,554
---------- ----------
Total................................ $2,098,100 $3,141,343
========== ==========
</TABLE>
These interests are different from and in addition to your and their
interests as stockholders.
For a more detailed discussion of the interests of Enterprises' directors,
executive officers and other personnel in the exchange offer, see "Benefits to
Enterprises' Insiders in the Exchange Offer."
RISK FACTORS
You should carefully consider all of the information set forth in this
prospectus and, in particular, should evaluate the specific risk factors set
forth under the caption "Risk Factors" for a discussion of some of the risks
involved with our offer and the receipt of the Legacy debentures and the Legacy
notes. These risk factors include the following:
- Our limited operating history makes it difficult to evaluate our
business,
- We may face significant competition from developers, owners and operators
of real estate properties which may inhibit the success of our business,
11
<PAGE> 18
- Our financial performance depends on regional economic conditions since
many of our properties and investments are located in Arizona, California
and Colorado,
- Our use of debt to finance acquisitions and developments could adversely
affect our business,
- We may not realize the expected benefits from the consummation of the
exchange offer, making our future financial performance uncertain,
- The protections in the company agreement for Enterprises' preferred
stockholders limit Enterprises' common stockholders' ability to control
Enterprises and receive dividends,
- There is no established market for the Legacy debentures or the Legacy
notes, and
- The Legacy debentures and the Legacy notes are effectively subordinated
to secured indebtedness and indebtedness of our subsidiaries.
12
<PAGE> 19
SUMMARY SELECTED FINANCIAL DATA OF LEGACY
The selected financial data presented below as of July 31, 1998 and for the
period from November 17, 1997 (inception) to July 31, 1998 have been derived
from the audited financial statements of Legacy. The selected financial data
presented below as of December 31, 1998 and March 31, 1999 and for the five
months ended December 31, 1998 and the three months ended March 31, 1999 have
been derived from the unaudited financial statements of Legacy. The selected
financial data presented below as of July 31, 1997, 1996 and 1995 and for each
of the three years in the period ended July 31, 1997 have been derived from the
audited financial statements of the Excel Legacy Corporation Asset Group. The
selected financial data presented below for the eight months ended March 31,
1998 have been derived from the unaudited condensed financial statements of the
Excel Legacy Asset Group. In the opinion of our management, the unaudited
financial statements have been prepared on the same basis as the audited
financial statements and include all adjustments, which consist only of normal
recurring adjustments, necessary for a fair presentation of the financial
position and the results of operations for these periods. Operating results for
the three month period ended March 31, 1999 are not necessarily indicative of
the results that may be expected for the full year ending December 31, 1999. The
data below should be read in conjunction with our Annual Report on Form 10-K for
the fiscal year ended July 31, 1998, as amended, our Transition Report on Form
10-Q for the five months ended December 31, 1998, and our Quarterly Report on
Form 10-Q for the three months ended March 31, 1999, as amended, each of which
is incorporated herein by reference.
<TABLE>
<CAPTION>
PERIOD FROM
THREE MONTHS FIVE MONTHS INCEPTION EIGHT MONTHS
ENDED ENDED (NOVEMBER 17, ENDED YEAR ENDED JULY 31,
MARCH 31, DECEMBER 31, 1997) TO MARCH 31, ------------------------
1999 1998 JULY 31, 1998 1998 1997 1996 1995
------------ ------------ ------------- ------------ ------ ------ ------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED STATEMENT OF
OPERATIONS DATA:
Total revenue................. $ 9,217 $ 15,010 $ 8,145 $ 3,757 $6,395 $5,032 $5,897
Total operating expenses...... (8,904) (13,754) (5,267) (3,149) (4,565) (4,513) (4,803)
Net income before income
taxes....................... 313 1,256 2,878 2,385) 1,830 519 1,794
Provision of income taxes..... (139) (535) (1,143) 946 (729) (207) (515)
Net income.................... 174 721 1,735 1,419 1,101 312 779
Earnings before depreciation,
amortization and deferred
taxes ("EBDADT")............ 1,405 2,712 3,001 N/A N/A N/A N/A
Earnings before income taxes,
depreciation and
amortization ("EBITDA")..... 3,534 5,819 5,453 N/A N/A N/A N/A
Net income per share:
Basic....................... $ 0.01 $ 0.02 $ 0.11 N/A N/A N/A N/A
Diluted..................... 0.00 0.01 0.07 N/A N/A N/A N/A
Weighted average number of
shares:
Basic....................... 33,458 33,458 15,842 N/A N/A N/A N/A
Diluted..................... 54,747 54,768 25,984 N/A N/A N/A N/A
</TABLE>
<TABLE>
<CAPTION>
AS OF AS OF AS OF AS OF AS OF JULY 31,
MARCH 31, DECEMBER 31, JULY 31, MARCH 31, ---------------------------
1999 1998 1998 1998 1997 1996 1995
--------- ------------ ------------- ------------ ------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED BALANCE SHEET DATA:
Net real estate............... $191,448 $190,878 $175,756 (1) $60,350 $61,048 $56,184
Total assets.................. 270,138 261,296 246,916 (1) 83,687 62,169 59,388
Mortgages and notes payable... 99,694 90,986 72,714 (1) 35,115 36,754 38,224
Stockholders' equity.......... 166,814 166,640 165,919 (1) -- -- --
Investment by Excel Realty
Trust, Inc. ................ -- -- -- (1) 48,344 25,162 20,903
</TABLE>
- -------------------------
(1) Not applicable as assets were spun-off to Legacy at March 31, 1998.
13
<PAGE> 20
SUMMARY SELECTED FINANCIAL DATA OF ENTERPRISES
The selected financial data presented below as of August 31, 1994, 1995,
1996, and 1997 and as of December 31, 1997 and 1998, and for the twelve months
ended August 31, 1994, 1995, 1996, and 1997, the four months ended December 31,
1997 and the twelve months ended December 31, 1998 have been derived from the
audited financial statements of Enterprises. The selected financial data
presented below as of March 31, 1999 and for the three months ended March 31,
1999 have been derived from the unaudited financial statements of Enterprises.
In the opinion of Enterprises' management, the unaudited financial statements
have been prepared on the same basis as the audited financial statements and
include all adjustments, which consist only of normal recurring adjustments,
necessary for a fair presentation of the financial position and the results of
operations for these periods. Operating results for the three month period ended
March 31, 1999 are not necessarily indicative of the results that may be
expected for the full year ending December 31, 1999. The data below should be
read in conjunction with Enterprises' Annual Report on Form 10-K for the year
ended December 31, 1998, as amended, and Enterprises' Quarterly Report on Form
10-Q for the quarter ended March 31, 1999, each of which is incorporated herein
by reference.
<TABLE>
<CAPTION>
FOUR MONTHS
THREE MONTHS ENDED YEAR ENDED AUGUST 31
ENDED YEAR ENDED DECEMBER 31, ---------------------------------------
MARCH 31, 1999 DECEMBER 31, 1998 1997 1997 1996 1995 1994
-------------- ----------------- ------------ ------- ------- -------- --------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED STATEMENT OF
OPERATIONS DATA:
Rental revenues....... $17,427 $62,485 $18,170 $56,838 $56,221 $ 51,897 $ 30,316
Operating income
(loss).............. 9,089 31,393 9,045 22,422 5,829 16,635 (74,711)
Income (loss) from
continuing
operations.......... 7,565 29,429 17,508 19,085 8,340 13,297 (40,596)
Discontinued
operations.......... -- -- -- (4,860) (8,250) (12,751) (883)
Net income............ 7,565 29,429 17,508 14,225 90 546 (41,479)
Dividends paid to
preferred
stockholders........ (8,316) (8,316) -- -- -- -- --
Net income applicable
to common
stockholders........ (751) 21,113 17,508 14,225 90 546 (41,479)
Net income (loss)
per common share
from continuing
operations -- basic... (.06) .97 .74 .82 .36 .53 (1.50)
Cash dividends per
share............... .35 1.40 .35 1.20 -- .08 --
</TABLE>
<TABLE>
<CAPTION>
AS OF
AS OF DECEMBER 31 AS OF AUGUST 31
MARCH 31, ------------------- -----------------------------------------
1999 1998 1997 1997 1996 1995 1994
-------------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED BALANCE SHEET DATA:
Real estate assets, net....... $422,570 $418,507 $353,056 $337,139 $337,098 $330,443 $405,966
Total assets............ 457,779 457,352 408,478 403,757 540,325 555,994 591,511
Long-term debt................ 8,895 8,923 -- -- -- 15,425 --
Stockholders' equity.......... 344,088 344,811 406,624 396,476 532,899 532,085 578,788(1)
Book value per common share... (.70) (.65) 17.13 16.78 22.88 22.90 21.44
</TABLE>
- -------------------------
(1) Amount represents investment by Costco prior to the spin-off of Enterprises.
14
<PAGE> 21
SELECTED PRO FORMA CONSOLIDATED CONDENSED FINANCIAL INFORMATION
In the table below, we provide you with unaudited selected pro forma
consolidated condensed financial information for Legacy as if the exchange offer
had been consummated on January 1, 1998 for income statement purposes and on
March 31, 1999 for balance sheet purposes. Because holders of the Enterprises
preferred stock will be entitled to elect a majority of Enterprises' board of
directors following the consummation of the exchange offer, Enterprises has been
reflected as an equity method investment in the pro forma financial statements.
The pro forma data included herein may not be indicative of the actual
results or financial position had the exchange offer been consummated on the
dates indicated. You should read this information in connection with, and such
information is qualified in its entirety by, the financial statements and
accompanying notes of Legacy and Enterprises incorporated by reference in this
prospectus and the "Unaudited Pro Forma Operating and Financial Information" and
accompanying notes included in this prospectus. For additional information see
"Summary Selected Financial Data of Legacy," "Summary Selected Financial Data of
Enterprises" and "Where You Can Find More Information."
Upon consummation of the exchange offer, the actual financial position and
results of operations of Legacy will differ, perhaps materially, from the pro
forma amounts reflected herein due to a variety of factors, including changes in
operating results between the dates of the pro forma financial information and
the time the exchange offer is consummated, as well as the factors discussed in
"Risk Factors."
<TABLE>
<CAPTION>
THREE MONTHS TWELVE MONTHS
ENDED ENDED
MARCH 31, 1999 DECEMBER 31, 1998
---------------- -------------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C>
UNAUDITED PRO FORMA CONSOLIDATED CONDENSED INCOME
STATEMENT DATA:
Revenues....................................... $ 5,183 $15,832
Loss before income taxes....................... (2,023) (6,643)
Net loss applicable to common shares........... (814) (6,643)
EBDADT......................................... 2,091 2,121
Weighted average basic number of common shares
outstanding................................. 33,458 25,205
Weighted average diluted number of common
shares outstanding.......................... 54,747 41,312
Basic net income (loss) per common share....... $ (0.02) $ (0.26)
Diluted net income (loss) per common share..... (0.01) (0.16)
</TABLE>
<TABLE>
<CAPTION>
MARCH 31,
1999
---------
<S> <C>
UNAUDITED PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
DATA:
Total assets.............................................. $375,300
Mortgages and notes payable (including the Legacy
debentures and the Legacy notes)....................... 205,586
Stockholders' equity...................................... 166,814
</TABLE>
15
<PAGE> 22
RATIO OF EARNINGS TO FIXED CHARGES
Legacy's ratios of earnings to fixed charges are as follows for the periods
indicated:
<TABLE>
<CAPTION>
FROM INCEPTION TO FIVE MONTHS THREE
FISCAL YEAR ENDED MONTHS
ENDED DECEMBER 31, ENDED MARCH 31,
JULY 31, 1998 1998 1999
----------------- ------------ ---------------
<S> <C> <C> <C>
Ratio of earnings to fixed
charges........................... 2.61x 1.47x 1.15x
</TABLE>
There were no preferred stock dividends through March 31, 1999. We have
computed the ratio of earnings to fixed charges by dividing income before income
taxes and minority interests plus fixed charges, excluding capitalized interest,
by fixed charges.
COMPARATIVE PER SHARE DATA
The table below sets forth, for the periods indicated:
- the historical basic and diluted net income and book value per share of
the Legacy common stock in comparison with the pro forma basic and
diluted net income and book value per share after giving effect to the
consummation of the exchange offer,
- the historical basic and diluted net income and book value per share of
the Enterprises common stock, and
- the actual cash dividends per share compared in the case of Legacy with
pro forma cash dividends after giving effect to the consummation of the
exchange offer.
The information presented in this table should be read in conjunction with the
pro forma consolidated condensed financial information and the separate
financial statements of Legacy and Enterprises incorporated by reference in this
prospectus.
<TABLE>
<CAPTION>
AS OF AND FOR THE AS OF AND FOR THE
THREE MONTHS ENDED YEAR ENDED
MARCH 31, 1999 DECEMBER 31, 1998
------------------ -----------------
<S> <C> <C>
Legacy historical
Net income per common share -- basic....... $ 0.01 $ 0.10
Net income per common share -- diluted..... -- 0.06
Cash dividends paid per common share....... -- --
Book value per common share................ 4.99 4.98
Enterprises historical
Net income per common share -- basic....... (0.06) 0.97
Net income per common share -- diluted..... (0.06) 0.96
Cash dividends paid per common share....... -- 1.05
Book value per common share................ (0.70) (0.65)
Unaudited pro forma
Net income per common share -- basic....... (0.02) (0.21)
Net income per common share -- diluted..... (0.01) (0.13)
Cash dividends paid per common share....... -- --
Book value per common share................ 4.99
</TABLE>
16
<PAGE> 23
COMPARATIVE PER SHARE MARKET INFORMATION
The table below sets forth, for the calendar quarters indicated, the
reported high and low sales prices of the Legacy common stock, the Enterprises
common stock and the Enterprises preferred stock. Legacy's common stock was
quoted on the OTC Bulletin Board under the symbol "XLCY" from March 30, 1998 to
November 16, 1998 and has been listed on the American Stock Exchange under the
symbol "XLG" from November 17, 1998 to the present. Legacy's Series B preferred
stock is not listed on any securities exchange. The Enterprises common stock and
the Enterprises preferred stock are listed on the Nasdaq National Market under
the symbols "PREN" and "PRENP," respectively.
<TABLE>
<CAPTION>
LEGACY ENTERPRISES ENTERPRISES
COMMON STOCK COMMON STOCK PREFERRED STOCK(1)
--------------- ----------------- -------------------
HIGH LOW HIGH LOW HIGH LOW
------ ------ ------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
1997
First Quarter................... $ -- $ -- $19.000 $16.750 $ -- $ --
Second Quarter.................. -- -- 19.625 17.375 -- --
Third Quarter................... -- 23.000 17.625 -- --
Fourth Quarter.................. -- -- 19.375 17.125 -- --
1998
First Quarter................... 6.000 4.875 20.250 18.000 -- --
Second Quarter.................. 6.750 4.297 19.500 17.375 -- --
Third Quarter................... 5.000 2.500 19.250 2.250(1) 15.000 12.875
Fourth Quarter.................. 4.000 1.875 6.219 4.250 14.250 13.000
1999
First Quarter................... 4.000 3.063 6.000 4.344 15.125 13.500
Second Quarter.................. 5.688 2.875 8.000 4.875 15.500 14.313
Third Quarter (through July
20)........................... 4.750 4.500 7.813 7.250 16.000 14.875
</TABLE>
- -------------------------
(1) On August 17, 1998, Enterprises distributed one share of its preferred stock
for each outstanding share of its common stock owned of record on June 30,
1998.
Set forth below are the reported high, low and closing sales prices of the
Legacy common stock, the Enterprises common stock and the Enterprises preferred
stock on May 11, 1999, the last trading day prior to the announcement of the
stockholders agreement.
<TABLE>
<CAPTION>
LEGACY ENTERPRISES ENTERPRISES
COMMON STOCK COMMON STOCK PREFERRED STOCK
- ----------------------- ------------------------ ---------------------------
HIGH LOW CLOSE HIGH LOW CLOSE HIGH LOW CLOSE
- ------ ------ ------ ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$4.938 $4.750 $4.875 $7.250 $6.625 $6.750 $15.000 $14.875 $14.875
</TABLE>
Set forth below are the reported high, low and closing sales prices of the
Legacy common stock, the Enterprises common stock and the Enterprises preferred
stock on June 1, 1999, the last trading day prior to the announcement of the
company agreement.
<TABLE>
<CAPTION>
LEGACY ENTERPRISES ENTERPRISES
COMMON STOCK COMMON STOCK PREFERRED STOCK
- ----------------------- ------------------------ ---------------------------
HIGH LOW CLOSE HIGH LOW CLOSE HIGH LOW CLOSE
- ------ ------ ------ ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$5.125 $4.875 $4.875 $7.750 $7.688 $7.750 $15.188 $15.000 $15.188
</TABLE>
17
<PAGE> 24
RISK FACTORS
You should carefully consider all of the information contained in this
prospectus or incorporated in this prospectus by reference and, in particular,
the following risk factors in considering whether or not to tender your shares
of the Enterprises common stock in the exchange offer. Certain statements in
this prospectus that are not historical fact constitute "forward-looking
statements." Such forward-looking statements involve known and unknown risks,
uncertainties and other factors that may cause our actual results to be
materially different from results expressed or implied by such forward-looking
statements. Such risks, uncertainties and other factors include, but are not
limited to, the following factors.
OUR LIMITED OPERATING HISTORY MAKES IT DIFFICULT TO EVALUATE OUR BUSINESS
Legacy was incorporated in November 1997 and became an independent business
in March 1998 after Excel Realty Trust completed a spin-off of our business.
Accordingly, we have a limited operating history on which to base an evaluation
of our business and prospects. You must consider our prospects in light of the
risks and uncertainties encountered by companies in the early stages of
development, particularly companies in the real estate industry.
OUR FINANCIAL PERFORMANCE WILL DEPEND ON SOME EVENTS AND CONDITIONS BEYOND OUR
CONTROL AND MAY BE ADVERSELY AFFECTED DESPITE OUR EFFORTS
Our financial performance depends on factors and conditions which affect
our properties but which are outside of our control. In addition, following the
exchange offer, our financial performance will depend, in significant part, on
the results of Enterprises' operations. The events or conditions that are beyond
our control but nevertheless affect the ability of our properties to generate
revenues in excess of operating expenses include the following:
- changes in the general economic climate,
- changes in local conditions, such as an oversupply of similar properties
or a reduction in demand for properties,
- decreased attractiveness of our properties to potential tenants,
- competition from developers, owners and operators of properties,
- increased operating costs, including insurance premiums and real estate
taxes, due to inflation and other factors which may not necessarily be
offset by increased rents,
- changes in laws and regulations, including tax and environmental laws and
regulations, and agency or court interpretations of these laws and
regulations and the related costs of compliance, and
- changes in interest rate levels and the availability of financing.
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<PAGE> 25
OUR TENANTS MAY FACE FINANCIAL DIFFICULTIES AND BE UNABLE TO PAY RENT WHICH MAY,
IN TURN, CAUSE FINANCIAL DIFFICULTIES FOR US
Our financial position may be materially harmed if any of our major
tenants, including AMC Multi-Cinema, Inc., Wal-Mart Stores, Inc. and Lowe's Home
Centers, Inc., or any other significant tenant experiences financial
difficulties, such as a bankruptcy, insolvency or general downturn in the
business of the tenant. In addition, any failure or delay by any of our tenants
to make rent payments could impair our financial condition and materially harm
our business. As of March 31, 1999, AMC accounted for approximately 14% of our
total revenue, Wal-Mart accounted for approximately 10% of our total revenue and
Lowe's accounted for approximately 3% of our total revenue. Although failure on
the part of a tenant to materially comply with the terms of a lease, including
failure to pay rent, would give us the right to terminate the lease, repossess
the property and enforce the payment obligations under the lease, we would then
be required to find another tenant to lease the property. We cannot assure you
that we would be able to enforce the payment obligations against the defaulting
tenant, find another tenant or, if another tenant were found, that we would be
able to enter into a new lease on favorable terms.
WE MAY FACE SIGNIFICANT COMPETITION FROM DEVELOPERS, OWNERS AND OPERATORS OF
REAL ESTATE PROPERTIES WHICH MAY INHIBIT THE SUCCESS OF OUR BUSINESS
We compete in the acquisition of real estate properties with over 200
publicly-traded REITs as well as other public and private real estate investment
entities, including financial institutions such as mortgage banks and pension
funds, and other institutional investors, as well as individuals. Competition
from these entities may impair our financial condition and materially harm our
business by reducing the number of suitable investment opportunities offered to
us and increasing the bargaining power of prospective sellers of property, which
often increases the price necessary to purchase a property. Many of our
competitors in the real estate sector are significantly larger than us and may
have greater financial resources and more experienced managers than us.
In addition, a large portion of our developed properties are located in
areas where our competitors maintain similar properties. We will need to compete
for tenants based on rental rates, attractiveness and location of properties, as
well as quality of maintenance and management services. Competition from these
and other properties may impair our financial condition and materially harm our
business by:
- interfering with our ability to attract and retain tenants,
- increasing vacancies, which lowers market rental rates and limits our
ability to negotiate favorable rental rates, and
- impairing our ability to minimize operating expenses.
OUR PROPERTY DEVELOPMENT ACTIVITIES MAY BE MORE COSTLY THAN ANTICIPATED AND WE
BEAR THE RISK OF INACCURATE ASSUMPTIONS ABOUT THE COSTS OF AND RETURNS ON THIS
DEVELOPMENT
As part of our growth strategy, we have chosen to develop and renovate a
portion of our properties and intend to continue to do so. In our
decision-making process, we
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<PAGE> 26
typically make assumptions concerning the costs associated with the development
and the projected return on our investment which expose us to the following
risks:
- we may not be able to obtain construction financing on favorable terms,
- occupancy rates and rents at recently completed properties may not be
sufficient for us to achieve our intended return on investment,
- expenses of operating a completed development may be higher than
expected,
- we may be unsuccessful or delayed in obtaining necessary zoning, land
use, building, occupancy, and other governmental permits and regulatory
approvals,
- we may incur construction costs for developing a property which exceed
our estimates due to factors beyond our control, such as weather, labor
conditions or material shortages, and
- we may not be able to obtain long-term financing upon completing
construction of the development.
These risks could result in substantial unanticipated delays or expenses
that could prevent completion of the development or cause us to abandon
development activities which we have already begun to explore. If any of these
events occur, it could materially harm our ability to achieve our projected
yields on properties under development and could materially harm our business.
OUR FINANCIAL PERFORMANCE DEPENDS ON REGIONAL ECONOMIC CONDITIONS SINCE MANY OF
OUR PROPERTIES AND INVESTMENTS ARE LOCATED IN ARIZONA, CALIFORNIA AND COLORADO
Of our 23 properties and real estate-related investments, 13 are located in
three states: six in Arizona, four in Colorado and three in California.
Concentrating most of our properties and real estate-related investments in
these states may expose us to greater economic risks than if our properties and
real estate-related investments were located in several geographic regions. Our
revenue from, and the value of, our properties and investments located in these
states may be affected by a number of factors, including local real estate
conditions, such as an oversupply of or reduced demand for real estate
properties, and the local economic climate. High unemployment, business
downsizing, industry slowdowns, changing demographics, and other factors may
adversely impact any of these local economic climates. A general downturn in the
economy or real estate conditions in Arizona, California or Colorado could
impair our financial condition and materially harm our business. Further, due to
the relatively high cost of real estate in the southwestern United States, the
real estate market in that region may be more sensitive to fluctuations in
interest rates and general economic conditions than other regions of the United
States. We do not have any limitations or targets for the concentration of the
geographic location of our properties and, accordingly, the risks associated
with this geographic concentration will increase if we continue to acquire
properties in Arizona, California and Colorado.
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<PAGE> 27
OUR USE OF DEBT TO FINANCE ACQUISITIONS AND DEVELOPMENT COULD ADVERSELY AFFECT
OUR BUSINESS
We currently have debt and may in the future incur additional debt to
finance our acquisition and development of properties. We also intend to issue
additional debt in connection with our offer in the form of the Legacy
debentures and the Legacy notes. Therefore, we will be exposed to the risks
normally associated with debt financing which may materially harm our business,
including the following:
- our cash flow may be insufficient to meet required payments of principal
and interest,
- payments of principal and interest on borrowings may leave us with
insufficient cash resources to pay operating expenses,
- we may not be able to refinance debt on our properties at maturity, and
- if refinanced, the terms of refinancing may not be as favorable as the
original terms of the debt.
As of March 31, 1999, we had outstanding borrowings of approximately $13.3
million under our credit facility, with total borrowing capacity of $20.0
million, and outstanding mortgage debt of approximately $86.4 million. This
total debt of $99.7 million represented approximately 36.9% of our total assets
at March 31, 1999. All of this debt is senior to the Legacy debentures and the
Legacy notes. After the consummation of the exchange offer, and assuming all
shares of the Enterprises common stock are tendered in the exchange offer and we
borrow the funds necessary for the cash portion of the consideration in the
exchange offer, our total indebtedness will increase to approximately $205.6
million (not taking into account Enterprises' total indebtedness of
approximately $108.9 million), which will represent approximately 54.8% of our
total assets on a pro forma basis. For additional information, please refer to
"Excel Legacy Corporation Unaudited Pro Forma Operating and Financial
Information."
Our fixed charge coverage ratio was 1.17 for the three months ended March
31, 1999. On a pro forma basis, our fixed charge coverage ratio decreases to
1.11. Our interest coverage ratio was 1.68 for the three months ended March 31,
1999. On a pro forma basis, our interest coverage ratio decreases to 1.07.
We may have to refinance the principal due on our debt at maturity,
including the Legacy debentures and the Legacy notes. In addition, we may not be
able to refinance our debt on acceptable terms, or at all. If we are unable to
refinance our debt on acceptable terms, or at all, events or conditions that may
adversely affect our financial condition and materially harm our business
include the following:
- we may need to dispose of one or more of our properties with unfavorable
terms,
- prevailing interest rates or other factors at the time of refinancing
could increase the interest rates at which we borrow and, therefore, our
interest expense, and
21
<PAGE> 28
- if we mortgage property to secure payment of debt and are unable to meet
mortgage payments, the lender could foreclose on the property or appoint
a receiver to receive an assignment of the rent payments under our
leases.
WE MAY NOT REALIZE THE EXPECTED BENEFITS FROM THE CONSUMMATION OF THE EXCHANGE
OFFER, MAKING OUR FUTURE FINANCIAL PERFORMANCE UNCERTAIN
We entered into the stockholders agreement and the company agreement with
the expectation that the exchange offer will result in a number of benefits,
including cost savings, operating efficiencies, revenue enhancements, tax
advantages and other synergies. If these benefits and synergies are not
realized, our financial performance and the performance of Enterprises could be
adversely impacted. After the consummation of the exchange offer, we expect that
some of our executive officers will begin to manage the operations of
Enterprises along with some members of Enterprises' existing operations
management team. We cannot assure you that this integration will be completed
rapidly or that the new management team will be successful in this endeavor.
Further, the process of implementing new management at Enterprises could
negatively affect employee morale and influence the decisions of current and
prospective tenants and business partners as a result of uncertainty over the
operations of Legacy and Enterprises following the exchange offer. The inability
to successfully integrate our operations with those of Enterprises could impair
our financial condition and materially harm our business.
WE FACE RISKS ASSOCIATED WITH OUR EQUITY INVESTMENTS IN AND WITH THIRD PARTIES
BECAUSE OF OUR LACK OF CONTROL OVER THE UNDERLYING REAL ESTATE ASSETS
As part of our growth strategy, we may invest in shares of REITs or other
entities that invest in real estate assets. In these cases, we will be relying
on the assets, investments and management of the REIT or other entity in which
we are investing. These entities and their properties will be exposed to the
risks normally associated with the ownership and operation of real estate.
We also may invest in or with other parties through partnerships and joint
ventures. In these cases we will not be the only entity making decisions
relating to the property, partnership, joint venture or other entity. Risks
associated with investments in partnerships, joint ventures or other entities
include:
- the possibility that our partners might experience serious financial
difficulties or fail to fund their share of required investment
contributions,
- that the partners might have economic or other business interests or
goals which are inconsistent with our business interests or goals, and
- that the partners may take action contrary to our instructions or
requests and adverse to our policies and objectives.
Any substantial loss or action of this nature could potentially harm our
business. In addition, we may in some circumstances be liable for the actions of
our third-party partners or co-venturers.
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<PAGE> 29
WE MAY EXPERIENCE DIFFICULTIES IN INTEGRATING BUSINESSES WE ACQUIRE INTO OUR
BUSINESS
As part of our growth strategy, we have acquired real estate-related
businesses, including Tenant First, Inc., a real estate development company in
San Diego, and may acquire additional real estate-related businesses. If we
acquire another business, including the acquisition of Enterprises, it would
expose us to additional risks. In particular, risks associated with the
acquisition of real estate companies include:
- the difficulty of assimilating and integrating the operations and
personnel of the combined companies,
- the potential disruption of our ongoing business,
- our inability to retain key managerial and other personnel, and
- the potential additional expenses associated with real estate transfer
taxes and property tax assessments, integration costs and unanticipated
liabilities or contingencies.
If we are unable to successfully address any of the foregoing risks, it
could materially harm our business.
RISING INTEREST RATES MAY ADVERSELY AFFECT OUR CASH FLOW
We owe approximately $99.7 million as of March 31, 1999 under our credit
facility and mortgage debt, of which $14.5 million bears interest at variable
rates. Variable rate debt creates higher debt payments if market interest rates
increase. We may incur additional debt in the future that also bears interest at
variable rates. Higher debt payments as a result of an increase in interest
rates could adversely affect our cash flow, cause us to default under some debt
obligations or agreements, and materially harm our business.
BECAUSE WE DO NOT HAVE A POLICY PLACING A LIMIT ON THE AMOUNT OF DEBT THAT WE
MAY INCUR, OUR FUTURE BORROWINGS COULD BE SIGNIFICANT AND MAY ADVERSELY AFFECT
OUR CASH FLOW AND RESULTS OF OPERATIONS
We do not have a policy limiting the amount of debt that we may incur.
Accordingly, our management and board of directors have discretion to increase
the amount of our outstanding debt at any time. We could incur higher levels of
debt, resulting in an increase in our total debt payments, which could adversely
affect our cash flow and materially harm our business. In addition, if we
increase the amount of our debt it may increase the risk of our default on all
of our debt, including the Legacy debentures and the Legacy notes.
WE COULD INCUR SIGNIFICANT COSTS AND EXPENSES RELATED TO ENVIRONMENTAL PROBLEMS
Various federal, state and local laws and regulations require property
owners or operators to pay for the costs of removal or remediation of hazardous
or toxic substances located on a property. Although we are not aware of any
necessary environmental remediation or other environmental liability on our
portfolio of properties, these laws often impose liability without regard to
whether the owner or
23
<PAGE> 30
operator of the property was responsible for or even knew of the presence of the
hazardous substances. The presence of or failure to properly remediate hazardous
or toxic substances may impair our ability to rent, sell or borrow against a
property. These laws and regulations also impose liability on persons who
arrange for the disposal or treatment of hazardous or toxic substances at
another location for the costs of removal or remediation of these hazardous
substances at the disposal or treatment facility. Further, these laws often
impose liability regardless of whether the entity arranging for the disposal
ever owned or operated the disposal facility. Other environmental laws and
regulations impose liability on owners or operators of property for injuries
relating to the release of asbestos-containing materials into the air. As owners
and operators of property and as potential arrangers for hazardous substance
disposal, we may be liable under the laws and regulations for removal or
remediation costs, governmental penalties, property damage, personal injuries
and related expenses. Payment of these costs and expenses could impair our
financial condition and materially harm our business.
WE COULD FACE SIGNIFICANT COSTS OF COMPLIANCE IF WE ARE CONSIDERED AN INVESTMENT
COMPANY UNDER THE INVESTMENT COMPANY ACT
We are not currently registered as an investment company under the
Investment Company Act of 1940, since our management believes that we either are
not within the definition of investment company under the Investment Company Act
or, alternatively, excluded from regulation under the Investment Company Act by
an exemption. If we are deemed to be an investment company under the Investment
Company Act and fail to qualify for an exemption, we would be unable to conduct
our business as currently conducted, which could materially harm our business.
In the future, we intend to conduct our operations in order to avoid
registration under the Investment Company Act. Therefore, the assets that we may
acquire or sell may be limited by the regulations of the Investment Company Act.
THE COSTS OF COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT COULD ADVERSELY
AFFECT OUR BUSINESS
Under the Americans with Disabilities Act of 1990, all public
accommodations and commercial facilities must meet federal requirements relating
to access and use by disabled persons. Compliance with the Americans with
Disabilities Act requirements could involve removal of structural barriers from
disabled persons' entrances on our properties. Other federal, state and local
laws may require modifications to or restrict further renovations of our
properties with these accesses. Although we believe that our properties are
substantially in compliance with present requirements, noncompliance with the
Americans with Disabilities Act or related laws or regulations could result in
the United States government imposing fines or private litigants being awarded
damages against us. If we incur these costs and expenses it could impair our
financial condition.
WE HAVE IMPLEMENTED ANTI-TAKEOVER PROVISIONS THAT COULD PREVENT AN ACQUISITION
OF OUR BUSINESS AT A PREMIUM PRICE
Some of the provisions of our certificate of incorporation and bylaws could
discourage, delay or prevent an acquisition of our business at a premium price
and
24
<PAGE> 31
could make removal of our management more difficult. These provisions could
reduce the opportunities for our stockholders to participate in tender offers,
including tender offers that are priced above the then current market price of
our common stock. Our certificate of incorporation permits our board of
directors to issue shares of preferred stock in one or more series without
stockholder approval. The preferred stock may be issued quickly with terms that
delay or prevent a change in control of our business. In addition, Section 203
of the Delaware General Corporation Law imposes restrictions on mergers and
other business combinations between us and any holder of 15% or more of our
common stock.
THERE IS NO ESTABLISHED MARKET FOR THE LEGACY DEBENTURES OR THE LEGACY NOTES
There is no established trading market for the Legacy debentures or the
Legacy notes. We intend to apply to have the Legacy debentures listed on the
American Stock Exchange, however, we cannot assure you that an active trading
market will develop and be sustained for the Legacy debentures. We do not intend
to apply for listing of the Legacy notes on any securities exchange.
The liquidity of any market for the Legacy debentures or the Legacy notes
will depend upon the number of holders of the debentures or notes, our
performance, the market for similar securities, the interest of securities
dealers in making a market in the debentures or notes and other factors. A
liquid trading market may not develop for the Legacy debentures or the Legacy
notes.
THE PROTECTIONS IN THE COMPANY AGREEMENT FOR ENTERPRISES' PREFERRED STOCKHOLDERS
LIMIT ENTERPRISES' COMMON STOCKHOLDERS' ABILITY TO CONTROL ENTERPRISES AND
RECEIVE DIVIDENDS
We have agreed to protections for the holders of the Enterprises preferred
stock which limit the control over Enterprises by its common stockholders and
the dividends payable to Enterprises' common stockholders. Following the
consummation of the exchange offer, the holders of the Enterprises preferred
stock will be entitled to elect a majority of Enterprises' board of directors
and to have one designee on Legacy's board of directors, until:
- less than 2,000,000 shares of the Enterprises preferred stock remain
outstanding,
- we make an offer to purchase any and all outstanding shares of the
Enterprises preferred stock at a cash price of $16.00 per share, and
purchase all shares duly tendered and not withdrawn, or
- in other circumstances described in the company agreement.
The company agreement also contains a provision intended to protect the
interests of the holders of the Enterprises preferred stock by creating an
annual reserve of $7.5 million at the Enterprises level which will not be
distributed to Legacy or any other holder of the Enterprises common stock. This
reserve will limit our ability and the ability of all other Enterprises' common
stockholders to receive cash distributions from Enterprises for so long as the
Enterprises preferred stock is outstanding. We have agreed with Enterprises that
the $7.5 million reserve may be used for the improvement
25
<PAGE> 32
and/or acquisition of properties, the buy-back of the Enterprises preferred
stock or the reduction of Enterprises' debt.
THE RIGHTS OF ENTERPRISES' STOCKHOLDERS WHO BECOME LEGACY STOCKHOLDERS WILL BE
DIFFERENT UNDER DELAWARE LAW AND LEGACY'S ORGANIZATIONAL DOCUMENTS
Legacy is incorporated under the laws of the state of Delaware, and
Enterprises is incorporated under the laws of the state of Maryland.
Stockholders of Enterprises may become stockholders of Legacy through the
conversion of the Legacy debentures to be received in the exchange offer. As
Legacy stockholders, their rights would be governed by the Delaware General
Corporation Law (DGCL) and Legacy's charter and bylaws, which differ in some
material respects from the Maryland General Corporation Law (MGCL) and
Enterprises' charter and bylaws. For instance, under the DGCL, any action that
may be taken at a meeting of stockholders may be taken without a meeting if a
written consent is signed by stockholders having at least the number of votes
that would have been necessary to authorize or take the action at a meeting. In
contrast, under the MGCL, any action may be taken without a meeting only if a
unanimous written consent is signed by each stockholder entitled to vote on the
matter. See "Comparison of Stockholder Rights" for a more detailed discussion of
the differences that exist between the rights of Legacy's stockholders and
Enterprises' stockholders.
WE MAY EXPERIENCE VOLATILITY IN THE PRICE OF OUR PUBLICLY TRADED SECURITIES
The market price of our common stock has fluctuated in the past and is
likely to continue to fluctuate in the future. In addition, the market prices of
securities of other real estate companies has at times been volatile. Factors
that may affect the market price of the Legacy debentures, the Legacy notes and
our common stock, many of which are beyond our control, include:
- fluctuations in our operating results,
- analysts' reports and projections,
- changes in the market valuations of other real estate companies,
- the extent of institutional investor interest in our business,
- the reputation of real estate companies generally and the attractiveness
of their securities in comparison to the securities of other businesses,
and
- general financial market conditions.
Fluctuations in the market price of our securities may in turn adversely affect
- our ability to complete any targeted acquisitions,
- our access to capital and financing, and
- our ability to attract and retain qualified personnel.
In the past, following periods of volatility in the market price of securities
of a particular company, securities class action litigation against that company
would often result. We may become involved in this type of litigation in the
future. Litigation is often expensive and diverts management's attention and
resources, which could materially harm our business.
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<PAGE> 33
THE LEGACY DEBENTURES RANK JUNIOR TO OUR EXISTING DEBT AND POSSIBLY ALL OF OUR
FUTURE BORROWINGS
The Legacy debentures rank behind all of our existing indebtedness, the
Legacy notes and all of our future borrowings, except:
- future indebtedness that expressly provides that it ranks equal with, or
junior in right of payment to, the Legacy debentures,
- any debt owed by us to any of our subsidiaries,
- liabilities for taxes, and
- our trade payables.
As a result, upon any distribution to our creditors in a bankruptcy, liquidation
or reorganization or similar proceeding relating to Legacy or our property, the
holders of our senior debt will be entitled to be paid in full in cash before
any payment may be made with respect to the Legacy debentures. In addition, all
payments on the Legacy debentures will be blocked for a period of time in the
event of a payment default on senior debt. As of March 31, 1999, we had
approximately $99.7 million of senior indebtedness outstanding. Following the
exchange offer, the Legacy notes will be senior debt in relation to the Legacy
debentures.
In the event of a bankruptcy, liquidation or reorganization or similar
proceeding relating to Legacy, holders of the Legacy debentures will participate
with trade creditors and all other holders of our subordinated indebtedness in
the assets remaining after we have paid all of the senior debt. However, because
the indenture for the Legacy debentures requires that amounts otherwise payable
to holders of the Legacy debentures in a bankruptcy or similar proceeding be
paid to holders of senior debt instead, holders of the Legacy debentures may
receive less, ratably than holders of trade payables in any such proceeding. In
any of these cases, we may not have sufficient funds to pay all of our creditors
and holders of Legacy debentures may receive less, ratably than the holders of
senior debt.
THE LEGACY DEBENTURES AND THE LEGACY NOTES ARE EFFECTIVELY SUBORDINATED TO
SECURED INDEBTEDNESS AND INDEBTEDNESS OF OUR SUBSIDIARIES
The Legacy debentures and the Legacy notes will not be secured by any of
our assets. Therefore, the debentures and the notes will be effectively
subordinated in right of payment to our existing and future secured
indebtedness, to the extent of the value of the assets securing that
indebtedness. As of March 31, 1999, we had outstanding borrowings of
approximately $13.3 million under our credit facility, with total borrowing
capacity of $20.0 million, and outstanding mortgage debt of approximately $86.4
million. This debt is secured and therefore senior to the Legacy debentures and
the Legacy notes.
The Legacy debentures and the Legacy notes also will be effectively
subordinated in right of payment to all existing and future indebtedness and
liabilities of our subsidiaries. In addition, the indentures under which the
Legacy debentures and the Legacy notes will be issued will permit us to incur
additional indebtedness, without restriction. Consequently, in the event of a
bankruptcy, liquidation, dissolution, reorganization or similar proceeding with
respect to our subsidiaries, the holders of any
27
<PAGE> 34
indebtedness of our subsidiaries will be entitled to payment from the assets of
our subsidiaries prior to the holders of any general unsecured obligations of
Legacy, including the Legacy debentures and the Legacy notes.
We conduct a portion of our operations through subsidiaries and, assuming
the exchange offer is consummated, will rely on dividends from Enterprises for a
substantial portion of the funds to pay the principal and interest on the Legacy
debentures and the Legacy notes. The company agreement contains a provision
intended to protect the interests of the holders of the Enterprises preferred
stock by creating an annual reserve of $7.5 million at the Enterprises level
which will not be distributed to Legacy or any other holder of the Enterprises
common stock. This reserve will limit our ability to receive cash distributions
from Enterprises for so long as the Enterprises preferred stock is outstanding.
The holders of the Legacy debentures and the Legacy notes will have no direct
claim against Enterprises or any of our other subsidiaries for payment under the
debentures or the notes. Our subsidiaries are separate and distinct legal
entities and will have no obligation, contingent or otherwise, to pay any
dividend or make any other distribution to Legacy, or otherwise to pay amounts
due with respect to the Legacy debentures or the Legacy notes or to make funds
available for such payments. We must rely on dividends and other payments from
our subsidiaries or must raise funds in a public or private equity or debt
offering or sell assets to generate the funds necessary to meet our obligations,
including the payment of principal and interest on the Legacy debentures and the
Legacy notes. There can be no assurance that we will be able to obtain such
funds on acceptable terms or at all.
WE MAY REDEEM THE LEGACY NOTES AND THE LEGACY DEBENTURES AND CEASE MAKING
INTEREST PAYMENTS TO YOU WHICH COULD RESULT IN YOUR BEING UNABLE TO REINVEST THE
PROCEEDS AT THE SAME INTEREST RATES
If we elect to redeem the Legacy notes or the Legacy debentures in
accordance with the indentures, you will no longer receive interest payments
from us after the redemption. We cannot assure you that you will be able to
reinvest the proceeds of the redemption at the same interest rates payable under
the debentures and the notes. The Legacy notes are redeemable at any time. The
Legacy debentures are not redeemable before , 2001. In
each case, we may redeem the Legacy debentures and/or the Legacy notes at our
option, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption price of 100% of the principal amount being redeemed.
In addition, we must pay all accrued and unpaid interest on the debentures
and/or notes redeemed.
OUR EXECUTIVE OFFICERS AND DIRECTORS HAVE SUBSTANTIAL CONTROL OVER OUR VOTING
STOCK AND CAN MAKE DECISIONS THAT COULD ADVERSELY AFFECT OUR BUSINESS
Our present executive officers and directors and their affiliates
beneficially own approximately 30% of our outstanding common stock. As a result,
these stockholders will continue to significantly influence our management and
affairs and all matters requiring stockholder approval, including the election
of directors and approval of significant corporate transactions, such as a
merger, consolidation or sale of substantially all of our assets. Accordingly,
these stockholders also will be in a position
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<PAGE> 35
to make decisions which could impair our financial condition and materially harm
our business.
THE LOSS OF KEY PERSONNEL COULD HARM OUR BUSINESS
Given the early stage of development of our business, we depend to a large
extent on the performance of our senior management team and other key employees
for strategic business direction and real estate experience. If we lost the
service of any members of our senior management or other key employees it could
materially harm our business. We do not have employment agreements with any of
our senior management or key employees. In addition, we have not obtained
key-man life insurance for any of our senior management or other key employees.
OUR BOARD OF DIRECTORS MAY MAKE CHANGES IN OUR INVESTMENT, FINANCING AND
DISTRIBUTION POLICIES WITHOUT STOCKHOLDER APPROVAL AND IN A MANNER WITH WHICH
YOU MAY NOT AGREE
Our investment, financing, borrowing and distribution policies and our
policies regarding all other activities, growth, debt, capitalization and
operations, will be determined by our board of directors. Although our board of
directors has no present intention to do so, it may amend or revise these
policies at any time without a vote of our stockholders. Our board of directors
may amend these policies in a manner with which you may not agree. A change in
these policies could impair our financial condition and materially harm our
business.
ENTERPRISES' DIRECTORS, OFFICERS AND OTHER PERSONNEL WILL RECEIVE BENEFITS IN
THE EXCHANGE OFFER THAT ARE DIFFERENT FROM BENEFITS TO ENTERPRISES' STOCKHOLDERS
GENERALLY
Stockholders of Enterprises should be aware that Enterprises' directors,
officers and other personnel have interests in, and will receive benefits as a
result of, the exchange offer that are different from the interests of, and
benefits to, stockholders of Enterprises generally.
Enterprises has entered into an employment agreement with Jack McGrory, its
Chief Executive Officer, and a severance agreement with Gary W. Nielson, its
former Chief Financial Officer, that will entitle these individuals to receive
severance payments in connection with the exchange offer. Mr. Nielson received a
severance payment of approximately $210,000 upon the commencement of the
exchange offer. Assuming the exchange offer is consummated in August 1999, Mr.
McGrory will receive a severance payment of approximately $360,000. Enterprises
currently estimates that the aggregate required severance payments to its
directors, officers and other personnel will be approximately $2.1 million,
assuming that all such persons are terminated following the exchange offer and
that the terminations occur in August 1999. In addition, the company agreement
provides for the acceleration of vesting of the Enterprises stock options and
cash payments with respect to the common stock portion of those options. The
aggregate cash option payments to Enterprises' directors, officers and other
personnel due to the exchange offer will total approximately $3.1 million. These
persons also will retain their preferred stock options, approximately 670,500
shares in the aggregate, which will become fully vested and exercisable as a
result of the exchange offer. See "Benefits to Enterprises' Insiders in the
Exchange
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Offer" for a more detailed discussion of the benefits that Enterprises'
directors, officers and other personnel will receive in connection with the
exchange offer.
WE DO NOT ANTICIPATE PAYING ANY DIVIDENDS IN THE FORESEEABLE FUTURE
We presently anticipate that we will retain all available funds for use in
the operation and expansion of our business and do not anticipate paying any
dividends in the foreseeable future. Any future payment of dividends to our
stockholders will depend on decisions that will be made by our board of
directors and will depend on then existing conditions, including our financial
condition, contractual restrictions, capital requirements and business
prospects.
YEAR 2000 PROBLEMS COULD DISRUPT OUR OPERATIONS
The Year 2000 problem is the result of computer software and embedded chips
using a two-digit format, as opposed to four digits, to indicate the year.
Computer systems may be unable to interpret dates beyond the year 1999, which
could cause a system failure or other computer errors. The failure to correct a
material Year 2000 problem could result in an interruption in, or a failure of,
normal business activities or operations. To the extent our software
applications contain source codes that are unable to appropriately interpret the
upcoming calendar year 2000, some level of modification, or even possibly
replacement of these applications may be necessary.
We have made an assessment of the impact of the Year 2000 issue on our
internal operations and have developed a plan to bring our computer systems into
compliance before the end of 1999. This plan addresses the modification or
replacement of applications and operating systems to achieve timely Year 2000
compliance and also includes communication and analysis with outside vendors and
other third parties with whom we interface electronically. We do not believe
that the impact of any Year 2000 issues will impair our financial condition or
materially harm our business. However, if modifications and conversions are not
made or completed in a timely manner by either third parties or us, the Year
2000 issue could materially harm our business. To date, we have incurred minimal
expenses related to Year 2000 compliance. We expect to incur approximately
$75,000 of total expenses related to Year 2000 compliance. Since we have adopted
a plan to address Year 2000 issues, we have not developed a comprehensive
contingency plan for dealing with the most reasonably likely worst case
scenario. However, if we identify significant risks in the future or are unable
to meet our anticipated schedule for completion of our Year 2000 compliance, we
will develop contingency plans to the extent necessary at that time.
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FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference,
contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934,
particularly under the headings "Information About Legacy," "Information About
Enterprises," and "Directors and Management of Enterprises Following the
Exchange Offer." These statements are generally indicated by words or phrases
such as "believe," "may," "will," "anticipate," "estimate," "plan," "project,"
"continue," "expect," "intend" and similar words or phrases. We have based these
forward-looking statements on our current expectations and projections about
future events. These forward-looking statements are subject to risks,
uncertainties, and assumptions about us, including factors discussed in our
filings with the SEC and the following:
- the effect of economic, credit and capital market conditions in general
and on real estate companies in particular,
- our ability to compete effectively,
- our ability to acquire or develop properties and the risk that potential
acquisitions or developments may not perform in accordance with
expectations,
- fluctuations in our operating results,
- government approvals, actions and initiatives, including the need for
compliance with environmental requirements and the Americans with
Disabilities Act,
- additions or departures of key personnel, and
- other risk factors described under "Risk Factors" in this prospectus.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information or future events. In light of
these risks and uncertainties, the forward-looking events and circumstances
discussed in this prospectus may not occur and actual results could differ
materially from those anticipated or implied in the forward-looking statements.
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THE EXCHANGE OFFER
GENERAL
We are offering to exchange a total of $8.50 consisting of $[4.25] in cash,
$[2.75] in principal amount of our 9.0% Convertible Redeemable Subordinated
Debentures due 2004 and $[1.50] in principal amount of our 10.0% Senior
Redeemable Notes due 2004 for each share of the Enterprises common stock. If all
Enterprises' stockholders accept our offer, in the aggregate we will pay
approximately $56.5 million in cash and issue the principal amount of
approximately $36.6 million in Legacy debentures and approximately $19.9 million
in Legacy notes. Enterprises' board of directors has approved this transaction.
The exchange offer is open to all holders of the Enterprises common stock.
We are sending this prospectus and related exchange offer documents to persons
who held the Enterprises common stock at the close of business on
, 1999. On that date, there were shares
of the Enterprises common stock outstanding, which were held of record by
approximately stockholders. We will also furnish this prospectus and related
exchange offer documents to brokers, banks and similar persons whose names or
the names of whose nominees appear on Enterprises' stockholder list or, if
applicable, who are listed as participants in a clearing agency's security
position listing for subsequent transmittal to beneficial owners of the
Enterprises common stock.
BACKGROUND OF THE EXCHANGE OFFER
The information in this section regarding the deliberations of Enterprises'
board of directors and the actions of Enterprises' management and legal and
financial advisors is based on information furnished by Enterprises to Legacy.
From January to March 1999, Gary Sabin, in his capacity as President of New
Plan Excel Realty Trust, Inc., held numerous discussions with Jack McGrory,
President and Chief Executive Officer of Enterprises, and Sol Price, founder and
a major stockholder of Enterprises, regarding a possible business combination of
New Plan Excel and Enterprises. These discussions culminated in New Plan Excel
formally rejecting the proposed terms of the combination over a series of
meetings during March and April 1999.
Although New Plan Excel rejected the proposed business combination with
Enterprises, Mr. Sabin, who is also our Chairman, President and Chief Executive
Officer, remained interested in pursuing it on behalf of Legacy. Legacy
routinely considers acquisitions and business combinations as possible methods
of enhancing stockholder value.
Mr. Sabin and other executives of Legacy, who also served as executives of
New Plan Excel at the time, were very familiar with the business, properties and
financial condition of Enterprises, as they had conducted a due diligence
investigation of Enterprises in connection with New Plan Excel's consideration
of a possible business combination. In the course of this investigation, Legacy
personnel reviewed documentation and conducted discussions with Enterprises'
management and other representatives concerning Enterprises' business,
properties and financial condition. Legacy personnel also visited many of
Enterprises' properties.
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Under an intercompany agreement between Legacy and New Plan Excel, which
was entered into in March 1998 in connection with the spin-off of Legacy from
Excel Realty Trust, Inc. (predecessor to New Plan Excel), New Plan Excel had a
right of first refusal with respect to some types of business opportunities
presented to the parties, such as the proposed business combination with
Enterprises. After New Plan Excel determined not to pursue the opportunity,
Legacy was entitled to pursue it; provided that the combination did not involve
terms that were more favorable to Legacy in any material respect than the terms
considered by New Plan Excel, and that a binding agreement was executed within
one year. The intercompany agreement has since been terminated pursuant to a
separation agreement between Legacy and New Plan Excel described below.
During this period Enterprises and its representatives had discussions with
other parties regarding a potential acquisition of Enterprises. While
Enterprises signed confidentiality agreements with some of these parties, none
developed into a firm offer for the Enterprises common or preferred stock.
On April 1, 1999, Gary Sabin, Richard Muir, Executive Vice President of
Legacy, Eric Ottesen, Senior Vice President and General Counsel of Legacy, and
Graham Bullick, Senior Vice President -- Capital Markets of Legacy, met with
Jack McGrory at Legacy's offices in San Diego. At this meeting, the parties
discussed various issues concerning the structure, pricing and timing of a
possible business combination of Legacy and Enterprises. A variety of structures
were considered, including a tender offer, an exchange offer and a merger, with
a preliminary indication of price at $8.50 per share of the Enterprises common
stock. This price was based on negotiations between the parties as to the
appropriate premium above the market price of the Enterprises common stock and
the fair market value of Enterprises' properties.
From April 2 through April 14, 1999, the parties held numerous conference
calls to further discuss the structure, pricing and timing of the proposed
combination, and to review draft term sheets prepared by Legacy's outside legal
counsel. Sol Price participated in some of these discussions.
On April 15, 1999, Gary Sabin, Richard Muir and Kelly Burt, Executive Vice
President -- Development of Legacy, met with Sol Price and Jack McGrory at Mr.
Price's offices in San Diego. At this meeting, the parties discussed the terms
and consideration of a possible business combination with an agreement among
Legacy, Sol Price, as trustee of several trusts, and other holders of the
Enterprises common stock whereby Mr. Price, as trustee, and the other holders of
the Enterprises common stock would agree to tender or vote their shares, as the
case may be, subject to Enterprises' board of directors subsequently approving
the transaction and determining whether the transaction would proceed as an
exchange offer or merger in which Legacy would offer the same consideration to
all Enterprises' stockholders. The parties contemplated that, following the
approval by Enterprises' board of directors, the transaction would proceed with
an agreement between Legacy and Enterprises. The price of the transaction was
tentatively set at $8.50 per share of the Enterprises common stock, but the
structure, and the form of consideration, were not finally determined and no
agreement was reached.
From April 16 through May 2, 1999, the parties held numerous conference
calls to further discuss the structure, terms and consideration of the proposed
combination,
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and to review draft term sheets prepared by Legacy's outside legal counsel.
During this period, the parties agreed that the consideration would include some
combination of cash, convertible subordinated debentures or senior notes issued
by Legacy.
On April 21, 1999, Legacy entered into a separation agreement with New Plan
Excel, pursuant to which the parties agreed, among other things, to modify the
terms of some of their existing agreements, including the termination of the
intercompany agreement described above. The separation agreement expressly
provided that New Plan Excel would not raise any objection to Legacy entering
into an agreement with Enterprises. The separation agreement enabled Gary Sabin
and the other Legacy executives to devote their full-time attention to Legacy.
On May 3, 1999, Mr. Price's legal counsel prepared a draft of the
stockholders agreement based on the foregoing discussions, and the parties met
at the offices of Legacy's outside legal counsel to negotiate the draft.
From May 4 through May 10, 1999, the parties held numerous discussions to
further negotiate the terms of the proposed stockholders agreement, and to
prepare and negotiate the related exhibits and schedules. Most of the
discussions were held by conference call, with one in-person meeting held on May
7, 1999 at the offices of Legacy's outside legal counsel. During this period,
the parties agreed that the transaction between Legacy and Enterprises'
stockholders who are parties to the stockholders agreement would be subject to
cancellation unless the board of directors of Enterprises approved the
transaction in the period following the execution of the stockholders agreement,
and Enterprises signed the company agreement by which Enterprises would agree to
facilitate the transaction and approve Legacy's acquisition of the Enterprises
common stock. In addition, during this period, the parties agreed that Legacy
would have the option to pay the $8.50 per share consideration in all cash or in
a combination of at least $4.25 in cash, at least $2.75 in Legacy debentures,
and $1.50 in whatever combination Legacy may choose of cash, debentures or
senior notes. This ratio of cash, debentures and notes was based on negotiations
between the parties, with Mr. Price interested in Enterprises' stockholders
receiving at least 50% of the consideration in cash and a significant portion in
convertible securities that would provide Enterprises' stockholders with the
opportunity to participate in any upside potential of the Legacy common stock,
and Legacy interested in maintaining maximum flexibility with respect to paying
the consideration in all cash and minimizing the potential dilution to the
Legacy common stock inherent in issuing convertible securities. The parties
agreed that the conversion price of the Legacy debentures would be $5.50 per
share, based on negotiations as to the appropriate premium above the market
price of Legacy common stock and above the $5.00 per share price at which Legacy
had previously issued its Series A preferred stock.
On May 11, 1999, Gary Sabin, Sol Price and Jack McGrory met at the offices
of Legacy's outside legal counsel to finalize the terms of the stockholders
agreement and the related exhibits and schedules.
Also on May 11, 1999, the board of directors of Legacy held a special
telephonic meeting to consider the stockholders agreement. At this meeting, our
board reviewed the terms of the stockholders agreement with Legacy's management
and internal legal counsel. Based on such discussions, our board unanimously
approved the stockholders agreement and the transactions contemplated thereby.
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On May 12, 1999, Gary Sabin and Sol Price met at Mr. Price's offices and
signed the stockholders agreement. Later that day, Legacy issued a press release
announcing the execution of the stockholders agreement.
On May 18, 1999, Valuation Research Corporation delivered its written
opinion to Enterprises' board of directors that, as of such date, the
consideration to be received by the holders of the Enterprises common stock
pursuant to the exchange offer is fair, from a financial point of view, to such
holders. A copy of the opinion is attached hereto as Annex C.
On May 21, 1999, Sol Price and the other Enterprises' stockholders who
signed the stockholders agreement deposited certificates representing 4,464,382
shares of the Enterprises common stock into escrow pursuant to the stockholders
agreement. On the same day, Legacy deposited $1.0 million in cash into escrow
pursuant to the stockholders agreement.
On June 1, 1999, the board of directors of Legacy held a special telephonic
meeting to consider the company agreement. At this meeting, our board reviewed
the company agreement with Legacy's management and Legacy's internal and outside
legal counsel. Our board heard presentations by its outside legal counsel with
respect to the terms of the proposed business combination and the duties of the
board in considering such a transaction. Based on such discussions and
presentations, the board of directors of Legacy unanimously approved the company
agreement and the transactions contemplated thereby.
On June 2, 1999, the board of directors of Enterprises held a special
meeting to consider the company agreement. At this meeting, Enterprises' board
reviewed the company agreement with Enterprises' management, Enterprises'
internal and outside legal counsel, Enterprises' auditors and representatives of
Valuation Research Corporation. Enterprises originally retained Valuation
Research Corporation to render a fairness opinion in connection with the
proposed New Plan Excel/Enterprises transaction, but when that transaction was
not consummated, Enterprises retained Valuation Research Corporation to render a
fairness opinion in connection with this transaction. Enterprises' board heard
presentations by its management and outside legal counsel with respect to the
terms of the proposed business combination and the duties of the board in
considering such a transaction. Enterprises' board also heard presentations by
its auditors with respect to the tax and accounting implications of the
transaction and by Valuation Research Corporation with respect to the financial
terms of the proposed combination.
At the conclusion of its presentation, Valuation Research Corporation
delivered its oral opinion to Enterprises' board that, as of May 18, 1999, the
consideration to be received by the holders of the Enterprises common stock
pursuant to the exchange offer is fair, from a financial point of view, to such
holders.
Based on such discussions, presentations and opinion, the board of
directors of Enterprises unanimously approved the company agreement and the
transactions contemplated thereby and determined that the business combination
should take the form of the exchange offer. Although Enterprises' board
considered the conclusions set forth in the fairness opinion in deciding to
approve the exchange offer, it was advised by its counsel that it did not need
to specifically adopt such conclusions and did not in fact do so. In deciding
that the transaction should proceed as an exchange offer for the
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Enterprises common stock, Enterprises' board focused mainly on the ability of
each holder of the Enterprises common stock to make his or her own decision in
an exchange offer as to whether to exchange the holder's shares of the
Enterprises common stock for the consideration offered by Legacy or to remain a
stockholder of Enterprises. Enterprises' board also believed that an exchange
offer would be completed more quickly than a merger.
Also on June 2, 1999, Legacy and Enterprises signed the company agreement
and issued a joint press release announcing the execution of the company
agreement. In addition, Legacy agreed by separate letter to take some
affirmative actions to preserve Enterprises' status as a REIT in consideration
of the approval by Enterprises of Legacy's acquisition of the Enterprises common
stock.
On June 3, 1999, Legacy deposited an additional $6.5 million in cash into
escrow pursuant to the stockholders agreement, so that the aggregate amount of
funds in escrow totaled $7.5 million.
On June 4, 1999, some of Enterprises' stockholders who signed the
stockholders agreement deposited certificates representing 3,550,588 additional
shares of the Enterprises common stock into escrow pursuant to the stockholders
agreement, so that the aggregate number of shares in escrow totaled 8,014,970
shares of the Enterprises common stock, representing approximately 51% of the
Enterprises voting power.
[On , 1999, the pricing committee of the board of
directors of Legacy held a special meeting at which it determined that the
consideration in the exchange offer would consist of $ per share in cash,
$ per share in principal amount of Legacy debentures and $ per share in
principal amount of Legacy notes.]
OUR REASONS FOR THE EXCHANGE OFFER
Legacy's board of directors believes that the terms of the exchange offer
are fair to and in the best interests of Legacy and its stockholders. In
reaching its conclusion to approve the stockholders agreement, the company
agreement and the exchange offer, our board consulted with management, as well
as our legal and financial advisors, and considered the following factors, each
of which had a positive effect on the board's determination:
- The exchange offer will be an effective way of implementing and
accelerating our growth strategy consistent with our business goals.
- The exchange offer will enable us to significantly expand the size and
geographic diversity of our property portfolio, thereby reducing the
potential adverse impact on the overall portfolio of fluctuations in
local economies.
- The exchange offer will enable us to use Enterprises as a vehicle to
acquire traditional, fully-developed properties, such as shopping
centers, while continuing to acquire non-traditional properties, such as
those requiring significant restructuring or redevelopment, through
Legacy.
- The exchange offer will enable us to place some of our completed
development projects into a REIT to take advantage of preferred tax
treatment.
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- Our management believes that Enterprises' properties are generally well-
maintained with strong credit quality tenants, providing us with a solid
base from which to grow.
- Our management believes that the increased size of our portfolio as a
result of the exchange offer may provide us with greater liquidity,
including expanded access to the capital markets at a reduced cost,
enabling us to improve our results of operations and financial position.
- The exchange offer will enable us to leverage our investment in the
Enterprises common stock by virtue of the outstanding Enterprises
preferred stock.
- The exchange offer will provide us with opportunities for economies of
scale and operating efficiencies, primarily in terms of the integration
of property management and back office facilities.
- The exchange offer will provide us with opportunities for cost savings by
eliminating the management time and effort required to acquire a
substantial number of properties on an individual basis.
- The exchange offer's payment terms will provide us with the flexibility
to effectuate the offer through the issuance, at our election, of all
cash or some combination of cash and debt securities.
- The exchange offer is likely to be completed in a timely manner,
particularly in light of the large percentage of the Enterprises common
stock held in escrow.
- The company agreement entitles us, upon a material breach by Enterprises,
either to acquire the shares of the Enterprises common stock held in
escrow by completing the exchange offer, or to liquidated damages in the
amount of $7.5 million.
Our board of directors also considered potentially negative factors that
could arise or do arise from the proposed transaction, including the following:
- We will likely incur significant costs of up to $8.0 million in
connection with completing the exchange offer, and the exchange offer
will require substantial management time and effort to effectuate the
transaction and integrate the businesses of Legacy and Enterprises.
- The company agreement entitles Enterprises, upon a material breach by us,
to liquidated damages in the amount of $7.5 million plus interest.
- The company agreement imposes significant conditions and restrictions on
our ability to control Enterprises, entitling the holders of the
Enterprises preferred stock to elect a majority of Enterprises' board of
directors and creating an annual reserve of $7.5 million at the
Enterprises level which will not be distributed to Legacy or any other
holder of the Enterprises common stock.
- We face a significant risk that the anticipated benefits of the exchange
offer might not be fully realized.
The foregoing discussion of the information and factors considered by
Legacy's board of directors is not intended to be exhaustive but is believed to
include all material factors considered by Legacy's board. In reaching its
determination to approve
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the stockholders agreement, the company agreement and the exchange offer, our
board concluded that the potential benefits of the exchange offer outweighed the
potential risks, but did not, in view of the wide variety of information and
factors considered, assign any relative or specific weights to the foregoing
factors, and individual directors may have given differing weights to different
factors. Although directors, executive officers and other personnel of
Enterprises have interests in the exchange offer, as described under "Benefits
to Enterprises' Insiders in the Exchange Offer," our board did not consider the
potential benefits to be received by these individuals as a factor in reaching
its decision to approve the stockholders agreement, the company agreement and
the exchange offer.
ENTERPRISES' REASONS FOR THE EXCHANGE OFFER
Enterprises' board of directors thought about a number of factors in
approving the company agreement and the offer from Legacy. Those factors can be
separated into four categories:
- factors relating to the timing -- that is, is this a reasonable time to
sell Enterprises?
- factors relating to price -- is this a fair price at which to sell?
- factors relating to Legacy -- if the time and price are appropriate, is
there anything about Legacy, or the nature of the consideration, that
would suggest Legacy was not an appropriate buyer? and
- factors relating to the Enterprises preferred stock -- are adequate
protections for the preferred stock possible?
Timing. Enterprises' board concluded that this is a sensible time for a
transaction like this. Enterprises' board currently sees an uncertain economic
climate. Current nominal interest rates seem to be relatively low by recent
historical standards. If inflationary fears or other factors were to lead to
increases in interest rates, the value of Enterprises' properties would decline.
If the economy were to perform poorly, as a general matter, that would affect
the financial health of Enterprises. The growth of "e-commerce," or other
changes in consumer shopping patterns, could adversely affect the kind of "big
box retail" operations that comprise most of Enterprises' tenants, and
therefore, could adversely affect Enterprises. Enterprises was also finding it
increasingly difficult to identify opportunities for real property acquisitions
at competitive prices. In addition, the increasing competition between national
and regional retailers has resulted in some of Enterprises' tenants being forced
into bankruptcy, and may continue to do so.
Some, or even all, of these uncertainties might not actually develop in
such a way as to hurt the business of Enterprises. Enterprises' board considered
the possibility that some of these uncertainties might in fact develop in such a
way as to make the business of Enterprises more valuable. In particular, the
longer nominal interest rates continue to remain relatively low and the economy
continues its current performance, all other things being equal, the more
valuable the business of Enterprises might become. Enterprises' board ultimately
concluded, however, that the very existence of these uncertainties indicated
that the timing of a transaction like the offer discussed in these materials was
reasonable.
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Enterprises' board also believes that a larger operation than Enterprises
would see some operating efficiencies. Having the real estate, tax, financial,
legal and other skills necessary for Enterprises' operations involves a
significant level of essentially fixed costs. Once such a team is assembled,
efficiencies can be achieved by using it to manage a larger portfolio of
properties. Enterprises' board did not, however, want to increase the size of
Enterprises and increase the management responsibilities of Enterprises' current
management team. Among other things, a REIT is required to distribute
substantially all of its income. As a result, a REIT can only increase the
number of properties it manages by taking on additional debt, issuing new
securities, or engaging in "like kind" exchanges of existing properties for a
number of other properties. Enterprises' board did not find any of these
possibilities attractive.
Price. Once Enterprises' board concluded that it was a reasonable time for
a transaction of this nature, the next question was price. Various individuals
made several possible acquirers aware of Enterprises' potential interest in a
sale, and Enterprises engaged in informal discussions with several potential
acquirers. None of those entities indicated that they would pay as much as $8.50
per share of the Enterprises common stock, and, except for the discussions with
New Plan Excel described above under "-- Background of the Exchange Offer," none
of the discussions between those entities and Enterprises materialized into an
offer to acquire Enterprises.
Further, objective criteria provided support for the fairness of the price
of $8.50 per share. Such price reflects a premium of 46.23% over the closing
price of the Enterprises common stock on the Nasdaq National Market on April 30,
1999.
Enterprises' board also considered the fact that no one approached
Enterprises to discuss or propose a competing offer from the time of the
announcement of the stockholders agreement on May 12, 1999 through the meeting
of Enterprises' board on June 2. If a competing offer had been made during that
period, Enterprises could have accepted it without any obligations to Legacy at
all.
In order to validate these conclusions further, Enterprises' board retained
Valuation Research Corporation to evaluate the transaction from a financial
point of view. That firm issued an opinion that Enterprises' board viewed as
favorable, a copy of which is attached as Annex C. (You should read that opinion
in its entirety to understand its limitations, the assumptions on which it is
based, and its conclusions.)
In reaching its conclusions, Enterprises' board also considered that a
portion of Legacy's purchase price might be paid in debt instruments, which
might be valued in the market at less than their par value. A lower valuation,
of course, would mean that the effective purchase price was less than $8.50 per
share. If the Legacy debentures or the Legacy notes traded at 90% of par, for
example, the initial effective purchase price would be approximately $8.08 per
share. Enterprises' board also considered that declines in market interest rates
and, with respect to the Legacy debentures, the convertibility feature, could
cause the Legacy debentures and the Legacy notes to trade at a price higher than
100% of par.
Legacy. Enterprises' board also considered Legacy and its management. In
particular, the board considered the risks described under the caption "Risk
Factors" contained elsewhere in this prospectus. After considering these risks
and the other information about Legacy that appears in this prospectus and
related materials,
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Enterprises' board was comfortable establishing a relationship with Legacy. You
should study this prospectus and related materials and make your own conclusions
as to whether to accept the offer, and as to whether to retain an interest in
Legacy's securities. From the perspective of Enterprises' board, there was a
realistic possibility that the convertibility feature of the convertible debt
could provide stockholders with some of the upside potential currently
associated with their investment. However, Enterprises' board cannot provide you
with any assurances on these questions and you should reach your own
conclusions.
Preferred Stock. After going through this analysis, Enterprises' board
thought it also important to retain reasonable protections for the holders of
the Enterprises preferred stock. Legacy agreed to various protections, including
proposed charter amendments giving holders of the Enterprises preferred stock
(excluding Legacy if it buys of the Enterprises preferred stock) the right to
elect a majority of Enterprises' directors even if Legacy owns 100% of the
Enterprises common stock and any shares of the Enterprises preferred stock.
These protections are explained in greater detail elsewhere in this prospectus,
particularly in "-- Effect on Enterprises Preferred Stock" and "Description of
the Agreements -- The Company Agreement." Naturally, Enterprises' board cannot
be sure that the provisions will be effective in providing protection for
holders of the Enterprises preferred stock, and the holders will have to decide
for themselves whether it is desirable to maintain their interest rather than
selling all or part of it.
Enterprises' board also considered that stockholders holding over 51% of
the Enterprises voting power, and over 60% of the Enterprises common stock, had
expressed satisfaction with the proposal of Legacy, and had placed, or indicated
a willingness to place, their Enterprises common stock in escrow with
instructions to accept the offer.
Based on all of the foregoing, Enterprises' board determined that the
potential negative factors described in this section were outweighed by the
potential benefits of the transaction to the stockholders of Enterprises and
voted unanimously to approve the exchange offer.
Although directors, executive officers and other personnel of Enterprises
have interests in the exchange offer, as described under "Benefits to
Enterprises' Insiders in the Exchange Offer," Enterprises' board did not
consider the potential benefits to be received by these individuals as a factor
in reaching its decision to approve the exchange offer.
FAIRNESS OPINION
Enterprises' board of directors retained Valuation Research Corporation to
render an opinion with respect to the fairness, from a financial point of view,
of the consideration to be paid to the holders of the Enterprises common stock
in our offer. The consideration in our offer was determined through arm's-length
negotiations between Legacy and Enterprises.
Since its founding in 1975, Valuation Research Corporation has provided
valuation services to clients throughout the United States, including Fortune
500 companies, as well as internationally through its affiliation with various
valuation companies across Europe and South America. The financial group
activities of
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Valuation Research Corporation include financial advisory services, asset and
securities valuations, industry and company research and analysis, litigation
support and expert testimony. Valuation Research Corporation is regularly
engaged in the valuation of businesses and their securities in connection with
mergers, acquisitions and reorganizations and for estate, tax, corporate and
other purposes.
Valuation Research Corporation was initially retained by Enterprises in
connection with Enterprises' initial discussions with New Plan Excel, but when
that transaction was not consummated, Enterprises retained Valuation Research
Corporation to render its opinion as to whether the consideration to be paid by
Legacy to the holders of the Enterprises common stock in the exchange offer is
fair, from a financial point of view, to the holders of the Enterprises common
stock. Valuation Research Corporation was selected because of its experience and
expertise. Prior to the engagements, neither Valuation Research Corporation nor
any affiliate of Valuation Research Corporation had performed any investment
banking or other financial services for or had any other material relationship
with Legacy or Enterprises. Valuation Research Corporation did not receive any
instructions from Enterprises, Legacy or any affiliate of Enterprises or Legacy
with respect to the fairness opinion other than the direction from Enterprises
to determine whether the consideration to be paid to the holders of the
Enterprises common stock in our offer is fair from a financial point of view.
Valuation Research Corporation delivered to Enterprises' board of directors
its written opinion dated May 18, 1999 to the effect that, as of such date and
based upon and subject to various considerations set forth in the opinion and
such other factors as Valuation Research Corporation deemed relevant, the
consideration to be paid by Legacy to the holders of the Enterprises common
stock is fair from a financial point of view. Although we do not currently
anticipate that the fairness opinion will be updated, if a material amendment to
the stockholders agreement or the company agreement is made, Enterprises will
consider the merits of obtaining a revised fairness opinion from Valuation
Research Corporation at that time.
THE COMPLETE TEXT OF VALUATION RESEARCH CORPORATION'S OPINION, INCLUDING
EXHIBITS A AND B DELIVERED THEREWITH, IS ATTACHED HERETO AS ANNEX C AND THE
SUMMARY OF THE OPINION SET FORTH BELOW IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO THE OPINION. STOCKHOLDERS OF ENTERPRISES ARE URGED TO READ THE OPINION
CAREFULLY AND IN ITS ENTIRETY FOR A DESCRIPTION OF THE PROCEDURES FOLLOWED, THE
FACTORS CONSIDERED AND THE ASSUMPTIONS MADE BY VALUATION RESEARCH CORPORATION.
VALUATION RESEARCH CORPORATION'S OPINION TO ENTERPRISES' BOARD OF DIRECTORS
ADDRESSES ONLY THE FAIRNESS FROM A FINANCIAL POINT OF VIEW OF THE CONSIDERATION
TO BE PAID, AND DOES NOT CONSTITUTE A RECOMMENDATION TO YOU AS TO WHETHER YOU
SHOULD EXCHANGE YOUR SHARES OF THE ENTERPRISES COMMON STOCK.
In connection with rendering its opinion, Valuation Research Corporation:
- reviewed the stockholders agreement and the company agreement,
- reviewed and analyzed publicly available business and financial
information of Enterprises and Legacy for recent years and interim
periods to date, including, but not limited to:
- Legacy's Annual Report on Form 10-K for the fiscal year ended July
31, 1998
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- Legacy's Transition Report on Form 10-Q for the transition period
from August 1, 1998 to December 31, 1998,
- Enterprises' Transition Report on Form 10-K for the transition period
from September 1, 1997 to December 31, 1997, and
- Enterprises' Annual Report on Form 10-K for the fiscal year ended
December 31, 1998,
- reviewed and analyzed internal financial and operating information,
including financial forecasts, analyses and projections prepared by
management of Enterprises and Legacy,
- conducted discussions with members of the senior management of
Enterprises with respect to the business and prospects of Enterprises,
- reviewed and considered financial and stock market data relating to
Enterprises, and compared that data with similar data for other publicly
traded companies that Valuation Research Corporation believed may be
relevant, and
- reviewed the financial terms, to the extent publicly available, of
transactions that Valuation Research Corporation believed may be
relevant.
In addition, Valuation Research Corporation conducted such other analyses
and examinations and considered such other financial, economic and market
criteria as it deemed necessary in arriving at its opinion.
In rendering its opinion, Valuation Research Corporation assumed and
relied, without independent verification, upon the accuracy and completeness of
all financial and other information and data publicly available or furnished to
or otherwise reviewed by or discussed with Valuation Research Corporation. With
respect to financial forecasts and other information and data provided to or
otherwise reviewed by or discussed with Valuation Research Corporation, it was
advised by Enterprises' management that those forecasts and other information
and data were reasonably prepared on bases reflecting the best currently
available estimates and judgments of management as to the future financial
performance of Enterprises. Valuation Research Corporation did not make and was
not provided with an independent evaluation or appraisal of the assets or
liabilities (contingent or otherwise) of Enterprises nor did Valuation Research
Corporation make any physical inspection of the properties or assets of
Enterprises. Valuation Research Corporation's opinion is based upon the
conditions as they existed as of the date of its opinion and can be evaluated on
that date only.
The fairness opinion of Valuation Research Corporation was only one of many
factors considered by Enterprises' board of directors in determining to approve
the exchange offer.
The following paragraphs briefly summarize the quantitative analyses
performed by Valuation Research Corporation in arriving at its opinion dated May
18, 1999 presented to Enterprises' board of directors.
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Comparable Companies Analysis. Valuation Research Corporation compared
selected publicly-available historical and projected stock market data and
financial results for Enterprises to the corresponding data of the following
companies:
- Burnham Pacific Properties, Inc.,
- Developers Diversified Realty Corp.,
- JDN Realty Corporation,
- Kimco Realty Corporation, and
- Weingarten Realty Investors (collectively, the Comparable Companies).
Such data included, among other things, multiples of current stock price to 1998
funds from operations per share (FFO) and projected 1999 FFO. FFO is defined as
net income plus depreciation and amortization, excluding gains on sales of
property, non-recurring charges, and other extraordinary items. All of the
trading multiples of the Comparable Companies were based on closing stock prices
as of April 30, 1999 and all FFO per share estimates were based on projections
published, in the case of the Comparable Companies, by First Call and, in the
case of Enterprises, projections provided by management. Accordingly, such
estimated projections may or may not prove to be accurate.
Comparable Transactions Analysis. Valuation Research Corporation also
analyzed publicly available information for five selected acquisition and merger
transactions between REITs deemed by Valuation Research Corporation to be
reasonably similar to the exchange offer. In examining these transactions,
Valuation Research Corporation analyzed various financial parameters of the
acquired company relative to the consideration offered. Combinations between
REITs compared included:
- Kimco Realty Corporation and The Price REIT, Inc.,
- Simon DeBartolo Group, Inc. and Corporate Property Investors,
- Prime Retail, Inc. and Horizon Group, Inc.,
- Excel Realty Trust and New Plan Excel, and
- Santa Anita Realty Enterprises and Meditrust (collectively, the
Comparable Transactions).
None of the companies or acquired entities utilized in the above Comparable
Companies analysis and Comparable Transactions analysis for comparative purposes
is, of course, identical to Enterprises. Accordingly, a complete analysis of the
results of the foregoing calculations cannot be limited to a quantitative review
of such results and involves complex considerations and judgments concerning
differences in financial and operating characteristics of the Comparable
Companies and the acquired entities and other factors that could affect the
value of the Comparable Companies and acquired entities as well as that of
Enterprises.
Discounted Cash Flow Analysis. Valuation Research Corporation performed a
discounted cash flow analysis of the projected cash flow of Enterprises for
calendar years 1999 through 2003, based in part on internal estimates provided
by management. The stand-alone discounted cash flow analysis of Enterprises was
determined by adding the present value of projected free cash flows over the
five-year period from 1999 to
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2003 and the present value of the estimated terminal value of Enterprises in
year 2003 and subtracting the value of any long-term debt and preferred stock of
Enterprises. The estimated terminal value was calculated based on a perpetuity
formula assuming a 2.0% growth rate. The cash flows and terminal values of
Enterprises were discounted to present value using a discount rate of 10.0%.
Historical Trading Price Analysis. Valuation Research Corporation also
examined the history of the trading prices and volume for the shares of the
Enterprises common stock. This examination showed that during the period from
April 30, 1998 to April 30, 1999, the Enterprises common stock traded in the
range of $4.35 to $5.81 per share.
Average Transaction Premium Analysis. Valuation Research Corporation
reviewed mergers and acquisitions in the real estate industry utilizing publicly
available data to derive an average premium paid over the public trading prices
per share five days prior to the announcement of such transactions in 1997.
Valuation Research Corporation noted that the reasons for, and circumstances
surrounding, each of the transactions analyzed were diverse and that premiums
fluctuate among different industry sectors based on perceived growth, synergies,
strategic value and the type of consideration utilized in the transaction. The
analysis indicated that the average premium paid over trading prices was 22.5%
in 1997.
REIT Unsecured Debt and Preferred Stock Issues Analysis. Valuation
Research Corporation reviewed recently issued unsecured debt and preferred
stocks in the U.S. REIT industry. This examination showed that U.S. REIT
unsecured debt issues with a rating of between Baa1/BBB+ to Baa3/BBB- had a
coupon rate range of 6.7% to 7.75%. Also, newly issued U.S. REIT preferred
stocks with a rating of between ba2/BB+ to baa2/BBB+ had a coupon in the range
of 8.25% to 9.5% and a corresponding yield range of 8.29% to 9.49%.
Valuation Research Corporation observed that the Legacy debentures and the
Legacy notes offer a coupon rate at the high end of the above described
unsecured debt issues and preferred stocks. Valuation Research Corporation also
noted that the Legacy debentures offer the holders the potential to benefit from
any potential appreciation in Legacy's equity market value.
Valuation Research Corporation assigned equal weight to each of the
analyses described above in reaching its conclusions. Valuation Research
Corporation believes that its analysis in the summary set forth above must be
considered as a whole. None of the factors discussed above or in the fairness
opinion itself failed to support the conclusion of the fairness opinion that the
transaction is fair from a financial point of view. Selecting portions of this
analysis, without considering all of the analysis, would create an incomplete
view of the process underlying Valuation Research Corporation's opinion. In
performing its analysis, Valuation Research Corporation made numerous
assumptions with respect to industry performance, general business and economic
conditions and other matters, many of which are beyond the control of
Enterprises and Legacy. The analysis performed by Valuation Research Corporation
is not necessarily indicative of actual values or actual future results, both of
which may be significantly more or less favorable than suggested by the
analysis.
Pursuant to the terms of Valuation Research Corporation's engagement,
Enterprises has agreed to pay Valuation Research Corporation for its financial
advisory
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services in connection with the exchange offer a fee of $70,000. Enterprises has
also agreed to reimburse Valuation Research Corporation for its reasonable
out-of-pocket expenses incurred in performing its services. In addition,
Enterprises has agreed to pay a fee of $25,000 to Valuation Research Corporation
for its work in connection with Enterprises' discussions with New Plan Excel.
EXCHANGE RATE
We will pay $[4.25] in cash and issue the principal amount of $[2.75] in
Legacy debentures and $[1.50] in Legacy notes in exchange for each share of the
Enterprises common stock tendered in the exchange offer. However, instead of
issuing Legacy debentures and notes with a principal amount of other than $1,000
or an integral multiple of $1,000, we will pay you cash for amounts that are
below a multiple of $1,000. For example, if you tender 1,000 shares of the
Enterprises common stock in our offer, we will pay to you $5,500 in cash and
issue to you the principal amount of $2,000 in Legacy debentures and $1,000 in
Legacy notes. Although the exchange rate indicates that you should receive
$4,250 in cash, $2,750 in principal amount of Legacy debentures and $1,500 in
principal amount of Legacy notes, we will not be issuing Legacy debentures or
Legacy notes in principal amounts other than $1,000 and multiple integrals
thereof. Accordingly, in this example, $750 otherwise issuable in the form of a
Legacy debenture and $500 otherwise issuable in the form of a Legacy note would
be added to the amount to be paid to you in cash.
Pursuant to the stockholders agreement, the cash, debentures and notes
issued in the exchange offer will accrue interest from August 15, 1999. The cash
will accrue interest at the rate of 8.0% per annum, the Legacy debentures will
accrue interest at the rate of 9.0% per annum, and the Legacy notes will accrue
interest at the rate of 10.0% per annum. The interest on the cash will be paid
with the cash portion of the offer promptly after the expiration date. The
interest on the Legacy debentures and the Legacy notes will be paid on their
regular interest payment dates.
EXPIRATION DATE
You have until 5:00 p.m., New York City time, on ,
1999 to accept our offer, unless extended. At that time, our offer will expire.
If we extend the expiration date, we will publicly announce the extension as
soon as practicable after we make the extension, and in any event no later than
9:00 a.m. New York City time on the next business day after the previously
scheduled expiration date. Without limiting the manner in which we may choose to
make a public announcement, we will not have any obligation to publish or
communicate the public announcement other than by making a release to the Dow
Jones News Services.
EXCHANGE OF CASH, DEBENTURES AND NOTES FOR THE ENTERPRISES COMMON STOCK
If you deliver a properly completed and executed letter of transmittal,
which you received along with this prospectus, and stock certificates
representing your shares of the Enterprises common stock prior to the expiration
date to the exchange agent at its address, then you will have accepted the
exchange offer as to the number of shares reflected on the stock certificates
delivered.
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Except as provided below, all signatures on a letter of transmittal must be
guaranteed by a member firm of a registered national securities exchange or of
the National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or an "eligible
guarantor institution" within the meaning of Rule 17Ad-15 under the Securities
Exchange Act of 1934, which is a member of one of the recognized signature
guarantee programs identified in the letter of transmittal (each such
institution is referred to in this prospectus as an "eligible institution").
Signatures on a letter of transmittal need not be guaranteed if:
- the letter of transmittal is signed by the registered holder of the
shares of the Enterprises common stock tendered therewith and the
registered holder has not completed the box entitled "Special Exchange
Instructions" on the letter of transmittal, or
- the shares of the Enterprises common stock tendered therewith are for the
account of an eligible institution.
YOU MUST CHOOSE HOW TO DELIVER THE LETTER OF TRANSMITTAL, STOCK
CERTIFICATES AND OTHER NECESSARY DOCUMENTS TO THE EXCHANGE AGENT, AND YOU BEAR
THE RISK OF HOW YOU MAKE THIS DELIVERY. WE RECOMMEND THAT YOU USE AN OVERNIGHT
OR HAND DELIVERY SERVICE RATHER THAN A MAIL SERVICE. IN ALL CASES, YOU SHOULD
ALLOW SUFFICIENT TIME TO ASSURE TIMELY DELIVERY. YOU SHOULD SEND THE LETTER OF
TRANSMITTAL, STOCK CERTIFICATES AND OTHER NECESSARY DOCUMENTS TO THE EXCHANGE
AGENT AT THE ADDRESS PROVIDED IN THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL.
If you want us to issue the Legacy debentures or the Legacy notes in a name
other than the name in which your Enterprises stock certificates are registered,
you must properly endorse or otherwise place in proper form for transfer your
stock certificates so surrendered, and the person requesting this exchange must
pay to Legacy or the exchange agent any applicable transfer or other taxes
required due to the issuance of this certificate. If your Enterprises stock
certificates are registered in the name of your broker, dealer, commercial bank,
trust company, or other nominee and you wish to tender your shares, you should
contact the registered holder promptly and instruct the registered holder to
tender on your behalf. If your stock certificates are registered in the name of
the registered holder and you wish to tender on your own behalf, you must,
before completing and executing the letter of transmittal and delivering the
letter of transmittal, stock certificates, and other necessary documents, either
arrange to register your shares in your name or obtain a properly completed
stock power from the registered holder.
If the letter of transmittal is signed by a person other than the
registered holder of any of the Enterprises common stock listed therein, the
stock certificates reflecting ownership of this Enterprises common stock must be
endorsed or accompanied by appropriate stock powers that authorize this person
to tender the Enterprises common stock on behalf of the registered holder, in
either case signed as the name of the registered holder or holders appears on
these stock certificates.
If the letter of transmittal, any stock certificates representing the
Enterprises common stock tendered, or any stock powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of a
corporation, or others acting in a fiduciary or representative capacity, these
persons should so indicate when signing
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and, unless waived by us, submit with the letter of transmittal evidence
satisfactory to us of their authority to so act.
After the expiration date the exchange agent will send us written notice of
the amount of the outstanding Enterprises common stock validly tendered in the
exchange offer. Promptly after we receive this notice, if all the conditions to
the offer are satisfied or waived, then we will exchange each validly tendered
share of the Enterprises common stock for cash, Legacy debentures and Legacy
notes at the exchange rate described above. We then will deliver by registered
mail checks, Legacy debentures and Legacy notes representing the Enterprises
common stock that has been tendered.
All questions as to the validity, form, eligibility, acceptance and
withdrawal of the tendered shares of the Enterprises common stock will be
determined by us in our sole discretion, and our determination will be final and
binding. We reserve the absolute right to reject any and all shares of the
Enterprises common stock not properly tendered or any shares of the Enterprises
common stock our acceptance of which would, in the opinion of our counsel, be
unlawful. We reserve the absolute right to waive any irregularities or
conditions of tenders as to particular shares of the Enterprises common stock.
Unless waived by us, any defects or irregularities in connection with tenders of
shares of the Enterprises common stock must be cured within the time we
determine. Neither we, the exchange agent nor any other person shall be under
any duty to give notification of defects or irregularities with respect to
tenders of shares of the Enterprises common stock or withdrawal of shares nor
shall any of them incur any liability for failure to give any notification.
Tenders of shares of the Enterprises common stock will not be deemed to have
been made until such defects or irregularities have been cured or waived. As
soon as practicable following the expiration date, the exchange agent will
return without cost any stock certificates representing the Enterprises common
stock that were not properly tendered and as to which defects or irregularities
have not been cured or waived to the tendering holder of these stock
certificates, unless otherwise provided in the letter of transmittal.
If any of the stock certificates representing your Enterprises common stock
have been mutilated, lost, stolen or destroyed, you should contact the exchange
agent at the address below for further instruction.
EXCHANGE AGENT
EquiServe, L.P. has been appointed as exchange agent of the exchange offer.
Questions and requests for assistance, requests for additional copies of this
prospectus or of the letter of transmittal and requests for notice of guaranteed
delivery (see below) should be directed to the exchange agent addressed as
follows:
<TABLE>
<S> <C> <C>
By Registered or By Hand Delivery: By Overnight Delivery:
Certified Mail: BankBoston, N.A. BankBoston, N.A.
BankBoston, N.A. c/o S.T.A.R.S. c/o EquiServe Limited
c/o EquiServe Limited 100 William Street, Galleria Partnership
Partnership New York, N.Y. 10038 150 Royall Street
P.O. Box 8029 Canton, MA 02021
Boston, MA 02266-8029 Attn: Corporate Actions
Attn: Corporate Actions Department
Department
</TABLE>
Confirm by Telephone: (800) 730-6001
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GUARANTEED DELIVERY PROCEDURES
Enterprises' stockholders who wish to tender their shares of the
Enterprises common stock and whose stock certificates representing the
Enterprises common stock are not immediately available or who cannot deliver the
letter of transmittal, their stock certificates, or any other required documents
to the exchange agent prior to the expiration date, may effect a tender if:
- the tender is made through an eligible institution,
- prior to the expiration date, the exchange agent receives from this
eligible institution a properly completed and duly executed notice of
guaranteed delivery, which you received along with this prospectus, that:
- sets forth the name and address of the holder of the Enterprises
common stock, the certificate number or numbers of the Enterprises
common stock, and the number of shares of the Enterprises common
stock tendered,
- states that the tender is being made thereby, and
- guarantees that, within three business days after the expiration
date, the letter of transmittal, the stock certificates representing
the Enterprises common stock to be tendered in proper form for
transfer, and any other necessary documents will be deposited by the
eligible institution with the exchange agent, and
- a properly completed and executed letter of transmittal, together with
the stock certificates representing all the tendered Enterprises common
stock in proper form for transfer, and all other necessary documents are
received by the exchange agent within three business days after the
expiration date.
CONDITIONS TO THE EXCHANGE
Our offer is conditioned upon 8,000,000 shares of the Enterprises common
stock being tendered for exchange and not withdrawn prior to the expiration date
for the exchange offer. Under the stockholders agreement, Sol Price, as trustee
of several trusts, and other stockholders of Enterprises have agreed to exchange
their shares of the Enterprises common stock, which together aggregate 8,014,970
shares. These shares have been placed in escrow pending the consummation of the
exchange offer. Although we expect the minimum number of shares of the
Enterprises common stock to be tendered in the exchange offer from the escrow
described above, it is very important to us that you tender your shares.
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In addition, regardless of whether 8,000,000 shares of the Enterprises
common stock are tendered in the exchange offer, we will be under no obligation
to accept the shares if prior to the expiration date any of the following occur:
- any court or other governmental entity shall have issued an order, decree
or ruling or taken any other action, which order, decree, ruling or other
action Legacy and Enterprises shall have used all reasonable efforts to
resist, resolve or lift, as applicable:
- seeking to restrain, enjoin or otherwise prohibit the transactions
contemplated by the stockholders agreement,
- seeking to prohibit or restrict the ownership or operation by Legacy
of any material portion of Enterprises' business or assets,
- making the acquisition of, or exchange for, some or all of the shares
of the Enterprises common stock illegal, or
- imposing material limitations on the ability of Legacy effectively to
acquire or to hold or to exercise full rights of ownership of the
Enterprises common stock,
- any authorizations, consents, orders or approvals of, or declarations or
filings with, any governmental entity which, if not obtained in
connection with the consummation of the transactions contemplated by the
stockholders agreement, could reasonably be expected to have a material
adverse effect on the business, assets, results of operations or
condition of Enterprises, including without limitation the effectiveness
of any applicable registration statement or proxy materials, shall not
have been obtained, declared, filed or have occurred, as the case may be,
- (1) any general suspension of trading in, or limitation on prices for,
the Enterprises common stock on the Nasdaq National Market, (2) a
declaration of a banking moratorium or any general suspension of payments
in respect of banks in the United States or (3) in the case of any of the
foregoing events described in clauses (1) and (2) existing at the time of
the commencement of our offer, a material acceleration or worsening
thereof,
- Enterprises commences a case under any chapter of Title XI of the United
States Code, which is the federal bankruptcy law, or any similar law or
regulation; or a petition under any chapter of Title XI of the United
States Code or any similar law or regulation shall have been filed
against Enterprises which is not dismissed within three business days,
- any change, development, effect or circumstance shall have occurred or be
threatened with respect to Enterprises' major tenant, Costco Companies,
Inc., formerly Price/Costco, Inc., that would reasonably be expected to
have a material adverse effect on the business, assets, results of
operations or condition of Enterprises, or
- the stockholders agreement among Legacy, Sol Price, as trustee of several
trusts, and other stockholders of Enterprises shall have been terminated
pursuant to its terms.
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TERMINATION OF THE EXCHANGE OFFER
Our exchange offer, as well as the stockholders agreement and the company
agreement, may be terminated at any time prior to the expiration date if:
- the parties to the agreements agree to the termination,
- any party materially breaches its obligations under the agreements,
- we do not consummate the exchange offer by , 1999,
other than as a result of any conditions to the exchange offer not being
satisfied, or
- any conditions to the exchange offer are not satisfied by December 1,
1999 due to no fault of the parties.
If the agreements terminate under the second point above, the breaching
party is obligated to pay the nonbreaching party liquidated damages in the
amount of $7.5 million (or $7.5 million plus interest in the case of a material
breach by Legacy); provided that, in the case of a material breach by
Enterprises, we may elect, in lieu of the liquidated damages, to consummate the
exchange offer and obtain the shares held in escrow and all other shares
tendered in the offer. If the agreements terminate under the third point above,
we are obligated to pay Enterprises liquidated damages in the amount of $7.5
million plus interest. If the agreements terminate under the first or fourth
point above, the escrow will be terminated, all items held in the escrow will be
returned to the parties who deposited them, and none of the parties generally
will have any further obligations thereunder. The amount payable by Legacy to
Enterprises is subject to increase based on the timing of the termination as
described in "Description of the Agreements -- The Stockholders Agreement."
If the exchange offer is terminated without our acceptance of any shares of
the Enterprises common stock tendered, we will promptly return all shares
tendered to the appropriate Enterprises' stockholders.
WITHDRAWAL RIGHTS
You may withdraw tenders of your shares of the Enterprises common stock at
any time before the exchange offer expires. If you change your mind again, you
may retender your shares of the Enterprises common stock by following the
exchange offer procedures again prior to the expiration of the exchange offer.
For a withdrawal to be effective, a written notice of withdrawal must be
received by the exchange agent at one of its addresses set forth in the section
of this prospectus titled "-- The Exchange Agent." The notice of withdrawal
must:
- specify the name of the person having tendered the shares of the
Enterprises common stock to be withdrawn,
- identify the number of shares of the Enterprises common stock to be
withdrawn, and
- specify the name in which physical share certificates representing the
Enterprises common stock are registered, if different from that of the
withdrawing holder.
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If certificates for the Enterprises common stock have been delivered or
otherwise identified to the exchange agent, then, before the release of such
certificates, the withdrawing holder must also submit the serial numbers of the
particular certificates to be withdrawn and a signed notice of withdrawal with
signatures guaranteed by an eligible institution unless such holder is an
eligible institution. See "-- Exchange of Cash, Debentures and Notes for the
Enterprises Common Stock" for a description of the entities that qualify as
eligible institutions.
Any shares of the Enterprises common stock withdrawn will be deemed not to
have been validly tendered for exchange for purposes of our offer. Any shares
which have been tendered for exchange but which are not exchanged for any reason
will be promptly returned to the holder who tendered the shares. Properly
withdrawn shares may be retendered by following one of the procedures described
in this prospectus and the letter of transmittal.
Except as otherwise provided above, any tender of shares of the Enterprises
common stock made under the exchange offer is irrevocable.
FEDERAL INCOME TAX CONSEQUENCES
The exchange of the Enterprises common stock for cash, Legacy debentures
and Legacy notes pursuant to the exchange offer will be a taxable transaction
for United States federal income tax purposes and may also be taxable under
applicable state, local and foreign tax laws. YOU SHOULD CAREFULLY READ THE
SUMMARY OF THE FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OFFER, AND OF
ACQUIRING, OWNING AND DISPOSING OF THE LEGACY DEBENTURES AND THE LEGACY NOTES,
UNDER "UNITED STATES FEDERAL INCOME TAX CONSEQUENCES" AND ARE URGED TO CONSULT
WITH YOUR OWN TAX ADVISORS AS TO THE FEDERAL, STATE, LOCAL AND FOREIGN TAX
CONSEQUENCES IN YOUR PARTICULAR CIRCUMSTANCE.
FEES AND EXPENSES
We will bear the expenses of soliciting tenders. The principal solicitation
is being made by mail; however, additional solicitation may be made by
telegraph, telephone or in person by our officers and regular employees and the
officers and regular employees of our affiliates.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or others soliciting
acceptances of the exchange offer. We, however, will pay the exchange agent
reasonable and customary fees for its services and will reimburse it for its
reasonable out-of-pocket expenses in connection therewith.
We will pay the cash expenses to be incurred in connection with the
exchange offer, which are estimated in the aggregate to be approximately $8.0
million. Such expenses include registration fees, fees and expenses of the
exchange agent for our offer and the trustee under the indentures for the Legacy
debentures and the Legacy notes, accounting and legal fees, printing costs,
severance payments to Enterprises' employees and payments with respect to the
Enterprises stock options, among others.
We will pay all transfer taxes, if any, applicable to the exchange of cash,
Legacy debentures and Legacy notes for the Enterprises common stock pursuant to
the exchange. If, however, a transfer tax is imposed for any reason other than
the
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exchange of cash, Legacy debentures and Legacy notes for the Enterprises common
stock pursuant to the exchange, then the amount of any transfer taxes will be
payable by the tendering stockholder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted with the letter of
transmittal, the amount of such transfer taxes will be billed directly to the
Enterprises' stockholder.
RESALES OF THE LEGACY DEBENTURES AND THE LEGACY NOTES BY ENTERPRISES' AFFILIATES
Although we will register with the SEC under the Securities Act of 1933 the
Legacy debentures and the Legacy notes to be issued to Enterprises' stockholders
in the exchange offer, affiliates of Enterprises must comply with the provisions
of Rule 145 under the Securities Act of 1933. Enterprises' affiliates include
any person who, directly or indirectly, controls, or is controlled by, or is
under common control with Enterprises. Rule 145(d) requires that each person
deemed to be an affiliate of Enterprises must resell his Legacy debentures and
Legacy notes pursuant to the requirements of Rule 144 under the Securities Act
of 1933 if the Legacy debentures or the Legacy notes are sold within the first
year after the receipt thereof. After the first anniversary of our issuance of
the Legacy debentures and the Legacy notes, if this person is not an affiliate
of Legacy and Legacy is current in the filing of its periodic securities law
reports, this person may freely resell his Legacy debentures and Legacy notes
received in the exchange offer without limitation. After the second anniversary
of our issuance of the Legacy debentures and the Legacy notes, if this person is
not an affiliate of Legacy at the time of sale and has not been so for at least
three months prior to the sale, this person may freely resell his Legacy
debentures and Legacy notes without limitation, regardless of the status of our
periodic securities law reports.
REGULATORY MATTERS
We believe that the exchange offer may be consummated without notification
being given or information being furnished to the Federal Trade Commission or
the Antitrust Division of the Department of Justice pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and that no
waiting period requirements under the Hart-Scott-Rodino Act are applicable to
our offer.
EFFECT ON OPTIONS TO PURCHASE THE ENTERPRISES STOCK
Our offer does not apply to options to purchase the Enterprises stock.
However, we have agreed with Enterprises in the company agreement to accelerate
the vesting of the Enterprises stock options and to make cash payments with
respect to those options. For a discussion of the effect of our offer on the
Enterprises options, see "Benefits to Enterprises' Insiders in the Exchange
Offer."
EFFECT ON THE ENTERPRISES PREFERRED STOCK
Our offer does not apply to the the Enterprises preferred stock, which will
remain outstanding following the exchange offer. We have agreed in the company
agreement that after the consummation of the exchange offer, the holders of the
Enterprises
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preferred stock will be entitled to elect a majority of Enterprises' board of
directors and to have one designee on Legacy's board of directors, until:
- less than 2,000,000 shares of the Enterprises preferred stock remain
outstanding,
- we make an offer to purchase any and all outstanding shares of the
Enterprises preferred stock at a cash price of $16.00 per share, and
purchase all shares duly tendered and not withdrawn, or
- in other circumstances described in the company agreement.
In addition, Legacy has agreed by separate letter to take some affirmative
actions to preserve Enterprises' status as a REIT in consideration of the
approval by Enterprises of Legacy's acquisition of the Enterprises common stock.
ACCOUNTING TREATMENT
For accounting purposes, neither Legacy nor Enterprises will recognize a
gain or loss as a result of the exchange offer. Enterprises will, however,
expense its costs related to the exchange offer. We will account for our
purchase of the Enterprises common stock under the equity method. Pursuant to
the equity method, we will report our investment as a one-line item on our
balance sheet and our equity in the earnings or loss of Enterprises as a
one-line item on our statement of income. We will not consolidate the accounts
of Enterprises because the holders of the Enterprises preferred stock will be
entitled to elect a majority of Enterprises' board of directors following the
consummation of the exchange offer. However, if one of the conditions occurs
which terminates the right of the holders of the Enterprises preferred stock to
elect a majority of Enterprises' board, we may be able to consolidate the
accounts of Enterprises at that time.
POSSIBLE MERGER AND DISSENTING STOCKHOLDERS RIGHTS
After the exchange, we may merge Enterprises with a wholly-owned subsidiary
of Legacy. Whether we decide to proceed with a merger depends upon a number of
factors which cannot be ascertained at the present time. These factors include
the number of shares which are tendered in our offer, the relative
attractiveness of completing the merger compared to investing our resources in
other investments, and the availability of financing to fund the cash portion of
the consideration required to effect the merger. The merger will have no effect
on Enterprises' stockholders who accept our offer. It will affect, however,
Enterprises' stockholders who do not accept our offer. If we proceed with a
merger, we will give those stockholders the identical amount and ratio of cash,
Legacy debentures and Legacy notes for their shares of the Enterprises common
stock as is being offered to you. If the transaction is consummated as planned
and the number of outstanding shares of the Enterprises common stock is reduced
below the level required for listing by the Nasdaq National Market, the
Enterprises common stock may be delisted from the Nasdaq National Market. Under
Maryland law, those stockholders who do not tender their shares of the
Enterprises common stock in the exchange offer may dissent from any future
merger of Enterprises only if the Enterprises common stock is not listed on the
Nasdaq National Market on the record date for determining stockholders entitled
to vote on
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the merger, and they must comply fully with federal law and Maryland law for
their dissent to be effective.
DESCRIPTION OF THE AGREEMENTS
The following is a brief summary of the material provisions of the
stockholders agreement and the company agreement. Copies of the agreements are
included as Annex A and Annex B, respectively, and are incorporated herein by
reference. This summary does not purport to be complete and is qualified in its
entirety by reference to the stockholders agreement and the company agreement.
All Enterprises' stockholders are urged to read the stockholders agreement and
the company agreement in their entirety.
THE STOCKHOLDERS AGREEMENT
We entered into two agreements that govern our actions with respect to our
offer to exchange cash, Legacy debentures and Legacy notes for your shares of
the Enterprises common stock. The first agreement, which is referred to in this
prospectus as the "stockholders agreement," was entered into with Sol Price, as
trustee of several trusts, several nonprofit foundations and numerous other
individuals known to Sol Price, who executed the agreement in their capacity as
stockholders of Enterprises and/or as trustees of trusts which are stockholders
of Enterprises. Following the execution of the company agreement, all of the
directors of Enterprises and some of their family members, the President and
Chief Executive Officer of Enterprises, and numerous other individuals and
entities known to Mr. Price and the directors of Enterprises executed the
agreement in their capacity as stockholders of Enterprises and/or as trustees of
trusts which are stockholders of Enterprises.
Under the terms of the stockholders agreement, we agreed to pay $8.50 per
share for the Enterprises common stock, comprised, at our election, of $8.50 in
cash or:
- at least $4.25 in cash,
- at least $2.75 in principal amount of the Legacy debentures, and
- $1.50 per share in whatever combination we may choose of cash, Legacy
debentures or Legacy notes.
We ultimately decided to make our offer to you at the exchange rate of
$[4.25] in cash, $[2.75] in principal amount of Legacy debentures and $[1.50] in
principal amount of Legacy notes for each share of the Enterprises common stock.
Pursuant to the stockholders agreement, the cash, debentures and notes
issued in the exchange offer will accrue interest from August 15, 1999. The cash
will accrue interest at the rate of 8.0% per annum, the Legacy debentures will
accrue interest at the rate of 9.0% per annum, and the Legacy notes will accrue
interest at the rate of 10.0% per annum.
The stockholders agreement sets forth the conditions to which our offer is
subject. For a discussion of those conditions, see "The Exchange
Offer -- Conditions to the Exchange." For a discussion of the terms of the
Legacy debentures and the Legacy notes, see "Description of the Legacy
Debentures and the Legacy Notes."
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Pursuant to the stockholders agreement, on May 21, 1999, Sol Price, as
trustee of several trusts, and the other stockholders of Enterprises who are
parties to the stockholders agreement deposited an aggregate of 4,464,382 shares
of the Enterprises common stock, representing approximately 28.5% of the
Enterprises voting power, into escrow, and we deposited into escrow the sum of
$1.0 million. The stockholders agreement granted Enterprises' board of directors
the right to determine whether the transaction would proceed, and if so, whether
the transaction would proceed as an exchange offer for the Enterprises common
stock or a merger with Enterprises. If the transaction did not proceed as a
result of Enterprises or Enterprises' stockholders abandoning the transaction,
we would have been entitled to liquidated damages in the amount of $1.0 million
payable by Sol Price individually. Likewise, if the transaction did not proceed
as a result of Legacy abandoning the transaction, Enterprises' stockholders who
are parties to the stockholders agreement would have been entitled to liquidated
damages in the amount of $1.0 million plus interest. For a description of the
liquidated damages provisions which now apply, see "-- Termination of the
Agreements and Liquidated Damages."
Enterprises' board met on June 2, 1999 and approved the transaction, and
determined that the transaction would proceed as an exchange offer. In deciding
that the transaction should proceed as an exchange offer for the Enterprises
common stock, Enterprises' board focused mainly on the ability of each holder of
the Enterprises common stock to make his or her own decision in an exchange
offer as to whether to exchange the holder's shares of the Enterprises common
stock for the consideration offered by Legacy or to remain a stockholder of
Enterprises. Enterprises' board also believed that an exchange offer would be
completed more quickly than a merger. On June 4, 1999, some of Enterprises'
stockholders who signed the stockholders agreement deposited additional shares
of the Enterprises common stock into escrow so that the aggregate number of
shares held in escrow would be 8,014,970, which represents approximately 51% of
the Enterprises voting power. At the same time, we deposited an additional $6.5
million into escrow so that a total of $7.5 million in cash would be held in
escrow. Pursuant to the stockholders agreement, the shares held in escrow will
be tendered in the exchange offer, and the funds held in escrow will be released
to satisfy a portion of our monetary obligations under the exchange offer.
We agreed to deposit an additional $1.0 million in cash into escrow on each
of September 1, 1999, October 1, 1999 and November 1, 1999 if, as to each such
date, the exchange offer has not been consummated. Upon consummation of the
exchange offer, these funds, if so deposited, will be released to satisfy a
portion of our monetary obligations under the exchange offer. If the exchange
offer is terminated in such a manner as to require us to pay liquidated damages
to Enterprises as described below, these funds will be added to the amount
payable by Legacy to Enterprises thereby bringing the total liquidated damages
to as much as $10.5 million.
Mr. Price, as trustee of several trusts, and the other stockholders of
Enterprises who are parties to the stockholders agreement agreed not to sell or
otherwise transfer their shares of the Enterprises common stock until the
exchange offer is consummated or otherwise terminated, and to vote their shares
of the Enterprises common stock and preferred stock against any proposal by a
third party (other than Legacy) to acquire more than 25% of the voting power of
Enterprises or all or substantially all of the assets of Enterprises.
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THE COMPANY AGREEMENT
On June 2, 1999, following the approval of the exchange offer by our board
of directors and Enterprises' board of directors, we entered into an agreement
with Enterprises which requires Enterprises to take actions to facilitate the
transaction, including cooperating with us with respect to the preparation and
filing of this prospectus and related exchange offer documents. This second
agreement is referred to in this prospectus as the "company agreement."
Pursuant to the company agreement, Enterprises or Enterprises' board of
directors, as applicable, is obligated to:
- not take any action to revoke, modify or otherwise alter its approval of
the exchange offer,
- permit Gary B. Sabin, Chairman, President and Chief Executive Officer of
Legacy, and Richard B. Muir, Executive Vice President and Director of
Legacy, to attend all meetings of Enterprises' board of directors (other
than those relating to the exchange offer or any competing transaction)
in a non-voting observer capacity until the consummation of the exchange
offer, at which time the directors of Enterprises will cause Messrs.
Sabin and Muir or two other designees of Legacy to be appointed to the
board of directors of Enterprises,
- appoint Mr. Sabin as Chief Executive Officer of Enterprises effective
upon consummation of the exchange offer,
- act only in the ordinary course of business until consummation of the
exchange offer, and
- cooperate with Legacy with respect to the exchange offer documents and
use all reasonable efforts to satisfy the conditions to the exchange
offer.
Pursuant to the company agreement, Legacy is obligated, after the
consummation of the exchange offer, to cause the holders of the Enterprises
preferred stock to be entitled under Enterprises' charter documents to elect a
majority of Enterprises' board of directors and to have one designee on Legacy's
board of directors, until such time as:
- less than 2,000,000 shares of the Enterprises preferred stock remain
outstanding,
- we make an offer to purchase any and all outstanding shares of the
Enterprises preferred stock at a cash price of $16.00 per share, and
purchase all shares duly tendered and not withdrawn, or
- the directors of Enterprises (a) issue or agree to issue any equity
securities or securities convertible or exchangeable into or exercisable
for equity securities, in any case without unanimous approval of
Enterprises' board, or (b) fail in any fiscal year to declare or pay
dividends on the Enterprises common stock as and when requested by Legacy
(1) to distribute 100% of Enterprises' taxable income for such fiscal
year or otherwise to maintain Enterprises' status as a REIT, or (2) in an
amount equal to the excess, if any, of (x)(A) funds from operations less
rent smoothing for such fiscal year, minus (B) the amount
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required to pay dividends on the Enterprises preferred stock for such
fiscal year, over (y) $7.5 million.
The third point above is intended to protect the interests of the holders
of the Enterprises preferred stock by creating an annual reserve of $7.5 million
at the Enterprises level which will not be distributed to Legacy or any other
holder of the Enterprises common stock. This reserve will limit our ability to
receive cash distributions from Enterprises for so long as the Enterprises
preferred stock is outstanding. We have agreed with Enterprises that the $7.5
million reserve may be used for the improvement and/or acquisition of
properties, the buy-back of the Enterprises preferred stock or the reduction of
Enterprises' debt.
Pursuant to the company agreement, Legacy is also obligated to:
- not cause a change of control of Enterprises including by a change of
control of Legacy itself:
- prior to the consummation of the exchange offer, without the consent
of Sol Price, or
- after the consummation of the exchange offer, without either offering
to purchase all shares of the Enterprises preferred stock or
obtaining the approval of a majority of the Enterprises preferred
stock unless a higher percentage is required by Enterprises' charter
or Maryland law. For purposes of this provision, a "change of
control" is deemed to have occurred at such time as:
- any person or group of related persons for purposes of Section
13(d) of the Securities Exchange Act of 1934 other than Legacy
becomes the beneficial owner of 50% or more of the total voting
power of Enterprises or Legacy,
- any merger or consolidation of Enterprises or Legacy is
consummated in which Enterprises or Legacy, as the case may be,
is not the continuing or surviving corporation or pursuant to
which the common stock of Enterprises or Legacy would be
converted into cash, securities or other property, other than a
merger or consolidation in which the holders of the common stock
of Enterprises or Legacy outstanding immediately prior to the
merger or consolidation hold at least a majority of the common
stock of the surviving corporation immediately after such merger
or consolidation, or
- the directors of Legacy on the date of the company agreement or
persons nominated for election by such directors no longer
constitute a majority of Legacy's board of directors,
- after the consummation of the exchange offer, cause Enterprises to
pay all severance obligations owing to Enterprises employees, and to
accelerate the vesting of all stock options held by Enterprises'
employees and directors and to make cash payments with respect to
those options (see "Benefits to Enterprises' Insiders in the Exchange
Offer" for a detailed description of these payments),
- after the consummation of the exchange offer, cause Enterprises to
maintain directors and officers' liability insurance insuring all
persons who
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are or were directors or officers of Enterprises in an amount not
less than that in effect on April 30, 1999, for a period of at least
three years following the consummation of the exchange, and cause
Enterprises to indemnify each such person against all liability
relating to their actions as directors or officers of Enterprises,
and
- until such time as there are no shares of the Enterprises preferred
stock outstanding, not take any action that would cause Enterprises
to fail to qualify as a REIT.
In addition, Legacy has agreed by separate letter to take some affirmative
actions to preserve Enterprises' status as a REIT in consideration of the
approval by Enterprises of Legacy's acquisition of the Enterprises common stock.
TERMINATION OF THE AGREEMENTS AND LIQUIDATED DAMAGES
The stockholders agreement and the company agreement, as well as our
exchange offer, may be terminated if:
- the parties to the agreements agree to the termination,
- any party materially breaches its obligations under the agreements,
- we do not consummate the exchange offer by , 1999,
other than as a result of any conditions to the exchange offer not being
satisfied, or
- any conditions to the exchange offer are not satisfied by December 1,
1999 due to no fault of the parties.
If the agreements terminate under the second point above, the breaching
party is obligated to pay the nonbreaching party liquidated damages in the
amount of $7.5 million (or $7.5 million plus interest in the case of a material
breach by Legacy); provided that, in the case of a material breach by
Enterprises, we may elect, in lieu of the liquidated damages, to consummate the
exchange offer and obtain the shares held in escrow and all other shares
tendered in the offer. If the agreements terminate under the third point above,
we are obligated to pay Enterprises liquidated damages in the amount of $7.5
million plus interest. If the agreements terminate under the first or fourth
point above, the escrow will be terminated, all items held in the escrow will be
returned to the parties who deposited them, and none of the parties generally
will have any further obligations thereunder. The amount payable by Legacy to
Enterprises is subject to increase based on the timing of the termination as
described in "-- Description of the Stockholders Agreement."
If the exchange offer is terminated without our acceptance of any shares of
the Enterprises common stock tendered, we will promptly return all shares
tendered to the appropriate stockholders of Enterprises.
DESCRIPTION OF LEGACY CAPITAL STOCK
GENERAL
Legacy's authorized capital stock consists of 150,000,000 shares of common
stock and 50,000,000 shares of preferred stock. A certificate of designation
classifies 25,000,000 shares of our preferred stock as Series B preferred stock.
At March 31,
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1999, we had outstanding approximately 32,607,704 shares of common stock and
21,281,000 shares of Series B preferred stock. As of March 31, 1999, 3,932,000
shares of Legacy common stock were reserved for issuance upon exercise of
outstanding options.
LEGACY COMMON STOCK
Voting Rights. Each holder of Legacy common stock is entitled to one vote
for each share registered in his name on the books of Legacy on all matters
submitted to a vote of stockholders. Except as otherwise provided by law, the
holders of Legacy common stock vote as one class. The shares of common stock do
not have cumulative voting rights. As a result, subject to the voting rights, if
any, of the holders of any shares of preferred stock which may at the time be
outstanding, the holders of common stock entitled to exercise more than 50% of
the voting rights in an election of directors will be able to elect 100% of the
directors to be elected if they choose to do so. In such event, the holders of
the remaining shares of common stock voting for the election of directors will
not be able to elect any persons to our board of directors. Our charter and our
amended and restated bylaws contain provisions that could have an anti-takeover
effect.
Dividend Rights. Subject to the rights of the holders of any shares of
Legacy preferred stock which may at the time be outstanding, holders of Legacy
common stock will be entitled to such dividends as our board of directors may
declare out of funds legally available therefor. Because portions of our
operations may be conducted through subsidiaries, our cash flow and consequent
ability to pay dividends on the common stock may be dependent to some degree
upon the earnings of such subsidiaries and on dividends and other payments
therefrom.
Liquidation Rights and Other Provisions. Subject to the prior rights of
creditors and the holders of any Legacy preferred stock which may be outstanding
from time to time, the holders of Legacy common stock are entitled in the event
of liquidation, dissolution or winding up to share pro rata in the distribution
of all remaining assets.
Legacy common stock is not liable for any calls or assessments and is not
convertible into any other securities. In addition, there are no redemption or
sinking fund provisions applicable to the common stock.
LEGACY PREFERRED STOCK
Under Legacy's charter, our board of directors is authorized generally
without stockholder approval to issue shares of preferred stock from time to
time, in one or more classes or series. Prior to the issuance of shares of each
series, the board of directors is required by the DGCL and Legacy's charter to
adopt resolutions and file a certificate of designation with the Delaware
Secretary of State. The certificate of designation fixes for each class or
series the designations, powers, preferences, rights, qualifications,
limitations and restrictions, including the following:
- the number of shares constituting each class or series,
- voting rights,
- rights and terms of redemption, including sinking fund provisions,
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- dividend rights and rates,
- dissolution,
- terms concerning the distribution of assets,
- conversion or exchange terms,
- redemption prices, and
- liquidation preferences.
Holders of our Series B preferred stock are entitled to receive, when, as
and if declared by the board of directors, cumulative cash dividends payable in
an amount per share equal to the cash dividends, if any, on the shares of common
stock into which our shares of Series B preferred stock are convertible. Holders
of the Series B preferred stock are also entitled to a liquidation preference of
$5.00 per share, plus a premium of 7.0% per annum, in the event of our
liquidation, dissolution or other winding up of our affairs. The shares of
Series B preferred stock are convertible into our common stock at our option or
at the option of the holders at any time, on a one-for-one basis, subject to
adjustments.
REGISTRAR AND TRANSFER AGENT
BankBoston, N.A. is the registrar and transfer agent for our common stock
and Series B preferred stock.
DESCRIPTION OF THE LEGACY DEBENTURES AND THE LEGACY NOTES
GENERAL
We will issue the Legacy debentures and the Legacy notes under separate
indentures between us and , as trustee. The following is a
summary of the material provisions of the indentures. It does not include all of
the provisions of the indentures. We urge you to read the indentures because
they define your rights. The terms of the Legacy debentures and the Legacy notes
include those stated in the indentures and those made part of the indentures by
reference to the Trust Indenture Act (the TIA) as in effect on the date of the
indentures. Copies of the indentures have been filed as exhibits with the
registration statement of which this prospectus is a part and may be obtained
from us or the information agent. You can find definitions of some of the terms
used in the following summary under "-- Definitions."
The Legacy debentures and the Legacy notes will be unsecured obligations of
Legacy. Because the Legacy debentures and the Legacy notes will not be secured
by any of our assets, the debentures and the notes will be effectively
subordinated in right of payment to our existing and future secured
indebtedness, to the extent of the value of the assets securing that
indebtedness, and effectively subordinated in right of payment to all of the
indebtedness and other liabilities of our subsidiaries.
The Legacy debentures will rank subordinate in right of payment to all of
our senior debt. The Legacy notes will be senior obligations of Legacy, will
rank equal in right of payment with all existing and future senior indebtedness
of Legacy and will rank senior in right of payment to the Legacy debentures and
any future subordinated
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indebtedness of Legacy. However, the Legacy notes will be effectively
subordinated to our secured indebtedness and the indebtedness and other
liabilities of our subsidiaries.
The indentures will permit the incurrence of additional debt, including
secured debt, by us and our subsidiaries, without restriction.
We will issue the Legacy debentures and the Legacy notes in fully
registered form in denominations of $1,000 and integral multiples of $1,000. The
trustee will initially act as paying agent, conversion agent and registrar. The
debentures and notes may be presented for registration of transfer and exchange
at the offices of the registrar. We may change any paying agent, conversion
agent and registrar without notice to holders of the Legacy debentures or the
Legacy notes. We will pay principal, and premium, if any, on the Legacy
debentures and the Legacy notes at the trustee's corporate office in New York,
New York. At our option, interest also may be paid by mailing a check to the
holder's registered address.
MATURITY AND INTEREST
The Legacy debentures and the Legacy notes will mature on
, 2004. The Legacy debentures accrue interest at the rate
of 9.0% per annum from August 15, 1999 and the Legacy notes accrue interest at
the rate of 10.0% per annum from August 15, 1999. Interest on the debentures and
the notes will be payable semiannually in cash on each and
, commencing on , 2000.
We will make interest payments to the persons who are registered holders of
the Legacy debentures and the Legacy notes at the close of business on
and immediately preceding the applicable
interest payment date.
Neither the Legacy debentures nor the Legacy notes contain any mandatory
sinking fund.
REDEMPTION
The Legacy debentures are not redeemable before ,
2001. The Legacy notes are redeemable at any time. In each case, we may redeem
the Legacy debentures and/or the Legacy notes at our option, in whole or in
part, upon not less than 30 nor more than 60 days' notice. Any redemption will
be at the price of 100% of the principal amount being redeemed. In addition, we
must pay all accrued and unpaid interest on the debentures and/or notes
redeemed.
SELECTION AND NOTICE OF REDEMPTION
In the event that we choose to redeem less than all of the Legacy
debentures or less than all of the Legacy notes, selection of the debentures or
notes for redemption will be made by the trustee either:
- on a pro rata basis,
- by lot, or
- in compliance with the requirements of the principal national securities
exchange, if any, on which the Legacy debentures or the Legacy notes are
listed, as the trustee shall deem fair and appropriate.
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No Legacy debentures or Legacy notes of a principal amount of $1,000 or
less may be redeemed in part.
We will send notice of redemption by first-class mail at least 30 but not
more than 60 days before the redemption date to each holder of Legacy debentures
or Legacy notes to be redeemed at its registered address. On and after the
redemption date, interest will cease to accrue on the Legacy debentures and the
Legacy notes called for redemption as long as we have deposited with the paying
agent funds in satisfaction of the redemption price. The trustee will initially
serve as the paying agent.
RANKING
Legacy Debentures. The payment of all obligations on the Legacy debentures
is subordinated in right of payment to the prior payment in full in cash or cash
equivalents of all obligations on our senior debt, including the Legacy notes.
The Legacy debentures also will be effectively subordinated in right of payment
to our secured indebtedness and the indebtedness and other liabilities of our
subsidiaries.
In the event of any distribution to our creditors in a liquidation or
dissolution of Legacy, or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to us or our property, the holders
of senior debt will be entitled to receive payment in full in cash of all
obligations due in respect of senior debt, including interest after the
commencement of any bankruptcy or similar proceeding whether or not the interest
is an allowed claim in the proceeding, before the holders of Legacy debentures
will be entitled to receive any payment with respect to the Legacy debentures.
We also may not make any payment in respect of the Legacy debentures if:
- a payment default on senior debt occurs and is continuing, or
- any other default occurs and is continuing on senior debt that permits
holders of the senior debt to accelerate its maturity and the trustee
receives a notice of such default (a payment blockage notice) from the
representative of any senior debt.
Payments on the Legacy debentures may and will be resumed in the case of a
payment default, upon the date on which the default is cured or waived, or, if
the default is not the subject of judicial proceedings, upon the date that is
120 days after notice is given. No new payment blockage notice with respect to
the same issue of senior debt may be delivered unless and until nine months have
elapsed since the effectiveness of the immediately prior payment blockage
notice.
We must promptly notify holders of senior debt if payment of the Legacy
debentures is accelerated because of an event of default.
As a result of the subordination provisions described above, in the event
of a bankruptcy, liquidation or reorganization of Legacy, holders of the Legacy
debentures may recover less ratably than our creditors who are holders of senior
debt. For a description of some of the implications of these subordination
provisions, see "Risk Factors -- The Legacy debentures rank junior to our
existing debt and possibly all of our future borrowings."
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As of March 31, 1999, we had:
- approximately $99.7 million in outstanding debt that ranks senior to the
Legacy debentures,
- no debt that ranks equal to the Legacy debentures, and
- no debt that ranks junior to the Legacy debentures.
The Legacy notes will rank senior to the Legacy debentures and,
accordingly, after the consummation of the exchange offer and assuming all
shares of the Enterprises common stock are tendered and we borrow the funds
necessary for the cash portion of the consideration in the exchange offer, we
will have approximately $184.1 million in senior debt outstanding not taking
into account Enterprises' total indebtedness of approximately $108.9 million.
The indenture for the Legacy debentures will permit the incurrence of
additional debt without restriction.
Legacy Notes. The Legacy notes will be senior obligations of Legacy, will
rank equal in right of payment to all existing and future senior indebtedness of
Legacy and will rank senior in right of payment to the Legacy debentures and any
future subordinated indebtedness of Legacy. However, the Legacy notes will be
effectively subordinated to our secured indebtedness and the indebtedness and
other liabilities of our subsidiaries. For a discussion of the effective
subordination of the Legacy notes in relation to our secured indebtedness and
the indebtedness and other liabilities of our subsidiaries, see "Risk
Factors -- The Legacy debentures and the Legacy notes are effectively
subordinated to secured indebtedness and indebtedness of our subsidiaries."
As of March 31, 1999, we had:
- approximately $99.7 million in outstanding secured debt under our
existing credit facility and other mortgage debt that effectively ranks
senior to the Legacy notes,
- no debt that ranks equal to the Legacy notes, and
- no debt that ranks junior to the Legacy notes.
After the consummation of the exchange offer and assuming all shares of the
Enterprises common stock are tendered and we borrow the funds necessary for the
cash portion of the consideration in the exchange offer, we will have
approximately $184.1 million in senior debt outstanding not taking into account
Enterprises' total indebtedness of approximately $108.9 million. In addition,
the Legacy debentures will rank junior to the Legacy notes and, accordingly, we
will have approximately $19.9 million in subordinated debt after the
consummation of the exchange offer.
The indenture for the Legacy notes will permit the incurrence of additional
debt, including secured debt, by us and our subsidiaries, without restriction.
CONVERSION
Legacy Debentures. The holders of Legacy debentures will be entitled at
any time prior to the final maturity date of the debentures, subject to prior
redemption, to convert any Legacy debentures into Legacy common stock at the
conversion price of
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$5.50 per share, subject to adjustment as described below. Any conversion of
Legacy debentures must be made in denominations of $1,000 or multiples thereof.
Except as described below, no payment or other adjustment will be made on
conversion of any Legacy debentures for interest accrued thereon or for
dividends on any Legacy common stock issued. However, interest will be paid on
any interest payment date with respect to Legacy debentures surrendered for
conversion after a record date for the payment of interest. We are not required
to issue fractional shares of common stock upon conversion of Legacy debentures
and, in lieu thereof, will pay a cash adjustment based upon the market price of
the Legacy common stock on the last business day prior to the date of
conversion. In the case of Legacy debentures called for redemption, conversion
rights will expire at the close of business on the day fixed for redemption
unless we default in the payment of the redemption price.
The initial conversion price of $5.50 per share of Legacy common stock is
subject to antidilution adjustment. The conversion price adjustments in the
indenture for the Legacy debentures are designed to preserve the economic
benefit to the holder of a Legacy debenture of the $5.50 conversion price if we,
for example, issue a stock dividend or sell our common stock at a price
significantly below the current market price. Some types of conversion price
adjustments could dilute the ownership interest of the holders of our common
stock as a result of both the initial dilutive transaction and the impact of the
antidilution provisions of the Legacy debentures that are triggered by the
transaction. The conversion price adjustments apply to the following events
which may affect the Legacy common stock:
- the issuance of Legacy common stock as a dividend or distribution on
Legacy common stock,
- subdivisions and combinations of Legacy common stock,
- the issuance to all holders of Legacy common stock of rights or warrants
to purchase Legacy common stock,
- the distribution to all holders of Legacy common stock of capital stock
(other than Legacy common stock), or evidences of indebtedness of Legacy
or of assets, and
- the issuance of shares of Legacy common stock for a consideration per
share less than 95% of the current market price per share of the Legacy
common stock, or the issuance of securities convertible into Legacy
common stock at a conversion price less than 95% of the current market
price per share of the Legacy common stock, subject in each case to
exceptions.
In the case of any reclassification of Legacy common stock, or a
consolidation, merger or combination involving Legacy or a sale to another
person of substantially all of the assets of Legacy, in each case as a result of
which holders of Legacy common stock shall be entitled to receive stock, other
securities or other assets such as cash with respect to or in exchange for
Legacy common stock, the holders of the Legacy debentures then outstanding will
generally be entitled thereafter to convert the Legacy debentures into the kind
and amount of shares of stock, other securities or other assets which they would
have owned or been entitled to receive had they been common stockholders at the
time of the event.
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In the event of a taxable distribution to the holders of Legacy common
stock or in other circumstances requiring conversion price adjustments, the
holders of Legacy debentures may, in some circumstances, be deemed to have
received a distribution subject to United States federal income tax as a
dividend; in certain other circumstances, the absence of such an adjustment may
result in a taxable dividend to the holders of Legacy common stock.
We may from time to time and to the extent permitted by law reduce the
conversion price by any amount for any period of at least 20 days, in which case
we will give at least 15 days' notice of such reduction, if our board of
directors has made a determination that a reduction would be in the best
interests of Legacy, which determination shall be conclusive. We may, at our
option, make reductions in the conversion price, in addition to those set forth
above, as our board deems advisable to avoid or diminish any income tax to
holders of Legacy common stock resulting from any dividend or distribution of
stock or rights to acquire stock or from any event treated as such for income
tax purposes.
No adjustment in the conversion price will be required unless such
adjustment would require a change of at least 1% in the conversion price then in
effect. However, any adjustment that would otherwise be required to be made
shall be carried forward and taken into account in any subsequent adjustment. In
addition, no adjustment in the conversion price will be required as a result of
the actions listed above if all holders of Legacy debentures are entitled to
participate in the transaction on a basis and with notice that our board of
directors determines to be fair and appropriate. Except as stated above, the
conversion price will not be adjusted for the issuance of Legacy common stock,
any securities convertible into or exchangeable for Legacy common stock or any
securities carrying the right to purchase any of the foregoing.
Legacy Notes. The Legacy notes are not convertible.
COVENANTS
The indentures contain the following covenants:
Merger, Consolidation and Sale of Assets. We will not consolidate or merge
with or into any person, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of our assets to any person unless either:
- Legacy is the surviving or continuing corporation, or
- the person, if other than Legacy, formed by or surviving the
consolidation or merger, or to which the sale, assignment, transfer,
lease, conveyance or other disposition is made:
- is a corporation organized and validly existing under the laws of the
United States or any state thereof or the District of Columbia,
- expressly assumes, by supplemental indenture in form and substance
satisfactory to the trustee the due and punctual payment of the
principal of and interest on all of the Legacy debentures and the
Legacy notes and the performance of every covenant of the debentures,
the notes and the applicable indenture on the part of Legacy to be
performed or observed, and
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- immediately after the transaction no default of event of default
under the applicable indenture exists.
The indentures provide that upon any consolidation, combination or merger
or any transfer of all or substantially all of our assets in accordance with the
foregoing, in which we are not the continuing corporation, the successor person
formed by such consolidation or into which we are merged or to which such
conveyance, lease or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, Legacy under the indentures, the
Legacy debentures and the Legacy notes with the same effect as if the surviving
entity had been named as such and that, in the event of a conveyance, lease or
transfer, the conveyor, lessor or transferor will be released from the
provisions of the indentures.
Reports to Holders. The indentures provide that, whether or not required
by the rules and regulations of the SEC, so long as any Legacy debentures or any
Legacy notes are outstanding, we will furnish to the holders of Legacy
debentures and Legacy notes copies of all annual reports and other information,
documents, and other reports (or copies of any of the foregoing as the SEC may
by rules and regulations prescribe) which we are required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, within
15 days after the filing of the report with the SEC.
Compliance Certificate. The indentures provide that we will deliver to the
trustee, within 90 days after the end of each fiscal year, an officers'
certificate stating that a review of our activities and the activities of our
subsidiaries during the preceding fiscal year has been made under the
supervision of the signing officer with a view to determining whether we have
fulfilled our obligations under, and complied with the covenants and conditions
contained in, the indentures. The compliance certificate must also state that,
to the best of the knowledge of the officer of Legacy providing the certificate,
we are not in default in the performance or observance of any of the provisions
of the indentures and that no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on
the Legacy debentures or the Legacy notes are prohibited. Alternatively, the
officer must describe in the certificate all defaults or events of default of
which the officer may have knowledge.
No Financial Covenants or Restrictions on Payments or Incurrence of
Debt. The indentures do not contain any financial covenants or any restrictions
on our payment of dividends, repurchase of securities or incurrence of
additional indebtedness.
EVENTS OF DEFAULT
The following events are defined in the indentures as "events of default"
with respect to the Legacy debentures and the Legacy notes:
- we fail to pay interest on any Legacy debentures or Legacy notes, as
applicable, when the interest becomes due and payable and the default
continues for a period of 30 days, whether or not, in the case of the
Legacy debentures, such payment shall be prohibited by the subordination
provisions of the indenture for the Legacy debentures,
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- we fail to pay the principal on any Legacy debentures or Legacy notes, as
applicable, when such principal becomes due and payable at maturity, upon
redemption or otherwise, whether or not, in the case of the Legacy
debentures, such payment shall be prohibited by the subordination
provisions of the indenture for the Legacy debentures,
- we fail to comply with any of our other agreements or covenants contained
in the indentures which default continues for a period of 30 days after
we receive written notice specifying the default and demanding that such
default be remedied from the trustee or the holders of at least 25% of
the outstanding principal amount of the Legacy debentures or the Legacy
notes, as applicable,
- an event of default occurs under any mortgage, indenture or instrument
under which we may incur additional indebtedness, if:
- after giving effect to any applicable grace periods and any
extensions of the grace periods, the principal amount of any
indebtedness of Legacy, or the acceleration of the final stated
maturity of any such indebtedness, which acceleration remains uncured
or unrescinded or as a result of the event of default, the maturity
of the indebtedness has been accelerated prior to its expressed
maturity, and
- the aggregate principal amount of such indebtedness, together with
the principal amount of any other such indebtedness in default for
failure to pay principal at final maturity or which has been
accelerated, aggregates $1.0 million or more,
- one or more judgments in an aggregate amount in excess of $500,000 shall
have been rendered against Legacy or any of our subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period of 30 days
after such judgment or judgments become final and non-appealable, or
- events of bankruptcy affecting Legacy or any of our material
subsidiaries.
If an event of default, other than an event of default as a result of
events of bankruptcy affecting Legacy or any of our material subsidiaries, shall
occur and be continuing, the trustee or the holders of at least 25% in principal
amount of outstanding Legacy debentures or Legacy notes, as applicable, may
declare the principal of and accrued interest on all the Legacy debentures or
the Legacy notes, as applicable, to be due and payable by notice in writing to
Legacy and the trustee. The notice must specify the event of default and that it
is a "notice of acceleration." Upon delivery of the notice, the principal of and
accrued interest on all the Legacy debentures or the Legacy notes, as
applicable, will become immediately due and payable.
The indentures provide that, at any time after a notice of acceleration
with respect to the Legacy debentures or the Legacy notes, the holders of a
majority in principal
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amount of the Legacy debentures or the Legacy notes, as applicable, may rescind
and cancel the declaration of default and its consequences:
- if the rescission would not conflict with any judgment or decree,
- if all existing events of default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
the acceleration, and
- the trustee receives an officers' certificate from us that the rescission
would not conflict with any judgment or decree and the event of default
has been cured or waived.
No rescission shall affect any subsequent default or impair any right consequent
thereto.
The holders of a majority in principal amount of the Legacy debentures or
the Legacy notes, as applicable, may waive any existing default or event of
default under the indentures, and its consequences, except a default in the
payment of the principal of or interest on any Legacy debentures or Legacy
notes.
Holders of the Legacy debentures or the Legacy notes may not enforce the
indentures, the Legacy debentures or the Legacy notes except as provided in the
indentures and under the TIA. Subject to the provisions of the indentures
relating to the duties of the trustee, the trustee is under no obligation to
exercise any of its rights or powers under the indentures at the request, order
or direction of any of the holders, unless such holders have offered to the
trustee reasonable indemnity. Subject to all provisions of the indentures and
applicable law, the holders of a majority in aggregate principal amount of the
then outstanding Legacy debentures or the Legacy notes, as applicable, have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust or power conferred on
the trustee.
Under the indentures, we are required to provide an officers' certificate
to the trustee promptly upon any such officer obtaining knowledge of any default
or event of default that has occurred and, if applicable, describe the default
or event of default and its current status. We must provide the certificate at
least annually whether or not we know of any default or event of default.
SATISFACTION AND DISCHARGE
The indentures will be discharged and will cease to be of further effect,
except as to the rights, powers, trust, duties and immunities of the trustee and
our obligations in connection therewith and the repayment of excess funds held
by the trustee to us, as expressly provided for in the indentures:
- as to all outstanding Legacy debentures when all the Legacy debentures
theretofore authenticated and delivered have been delivered to the
trustee for cancellation, or
- as to all outstanding Legacy notes when all the Legacy notes theretofore
authenticated and delivered have been delivered to the trustee for
cancellation.
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In addition, we may, at our option and at any time, elect to have our
obligations discharged with respect to the outstanding Legacy debentures or
Legacy notes (a defeasance). A defeasance means that we shall be deemed to have
paid and discharged the entire indebtedness represented by the outstanding
Legacy debentures or Legacy notes, as applicable, except for:
- the rights of holders to convert the Legacy debentures into our common
stock in accordance with the terms of the debentures and the indenture
for the Legacy debentures,
- the rights of holders to receive payments in respect of the principal of
and interest on the Legacy debentures or the Legacy notes when such
payments are due,
- our obligations with respect to the Legacy debentures or the Legacy notes
concerning issuing temporary debentures or notes, registration of
debentures or notes, mutilated, destroyed, lost or stolen debentures or
notes and the maintenance of an office or agency for payments, and
- the rights, powers, trust, duties and immunities of the trustee and our
obligations in connection therewith.
In order to exercise a defeasance under the indentures:
- we must irrevocably deposit with the trustee for the benefit of the
holders cash, non-callable U.S. government obligations, or a combination
thereof, in such amounts, which in the opinion of a nationally recognized
firm of independent public accountants, will be sufficient to pay the
principal of and interest on the Legacy debentures or the Legacy notes,
as applicable, on the stated date for payment thereof or on the
redemption date without investment or reinvestment of interest or
proceeds on those funds, as the case may be,
- we must deliver to the trustee an opinion of counsel confirming that:
- we have received from, or there has been published by the Internal
Revenue Service a ruling, or
- since the date of the applicable indenture, there has been a change
in the applicable federal income tax law,
in either case to the effect that the holders will not recognize
income, gain or loss for federal income tax purposes as a result of the
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred,
- no default or event of default shall have occurred and be continuing on
the date of the deposit, after giving effect to the deposit, or insofar
as events of default from bankruptcy or insolvency events are concerned,
at any time in the period ending on the 91st day after the date of
deposit,
- the defeasance shall not result in a breach or violation of, or
constitute a default under any agreement or instrument to which we or any
of our subsidiaries is bound,
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- we must deliver to the trustee an opinion of counsel to the effect that:
- the trust funds will not be subject to any rights of holders of
senior debt, including, without limitation, those arising under the
applicable indenture,
- after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally,
and
- neither the applicable trust nor the trustee will be required to
register as an investment company under the Investment Company Act of
1940, as amended, as a result of the defeasance,
- we must deliver to the trustee an officers' certificate stating that the
deposit was not made by us with the intent of preferring the holders over
any of our other creditors or with the intent of defeating, hindering,
delaying or defrauding any of our other creditors or others, and
- we must deliver to the trustee an officers' certificate stating that all
conditions precedent provided for or relating to the defeasance have been
complied with.
The trustee will acknowledge the satisfaction and discharge of the
applicable indenture if we have delivered to the trustee the deposits indicated
above and satisfied each of the conditions listed above.
MODIFICATION OF THE INDENTURES
From time to time, Legacy and the trustee, without the consent of the
holders, may amend the indentures for specified purposes, including:
- curing ambiguities, defects or inconsistencies,
- to permit the consolidation, merger, or sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of our
properties or assets in accordance with the terms of the indentures,
- to adjust the conversion price of the Legacy debentures for our common
stock for certain distributions from Legacy to all holders of our common
stock, and
- any change that does not, in the opinion of the trustee, adversely affect
the rights of any of the holders.
Other modifications and amendments of the indentures may be made with the
consent of the holders of a majority in principal amount of the then outstanding
Legacy debentures or Legacy notes, as applicable. However, without the consent
of each holder affected by an amendment of the indentures, no amendment may:
- reduce the amount of Legacy debentures or Legacy notes whose holders must
consent to an amendment,
- reduce the rate of or change the time for payment of interest,
- reduce the principal of or change the fixed maturity date, or alter the
redemption provisions,
- provide for the payment of principal or interest in money other than
currency of the United States,
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- make any change in the provisions of the indentures protecting the right
of each holder to receive payment of principal or interest on or after
the due date thereof or to bring suit to enforce such payment, or
permitting holders of a majority in principal amount of Legacy debentures
or Legacy notes, as applicable, to waive defaults or events of default,
- make any change that adversely affects the rights of holders of Legacy
debentures to convert the debentures, or
- modify or change any provision of the indentures or the related
definitions affecting the subordination, seniority or other ranking of
the Legacy debentures or the Legacy notes, in a manner which adversely
affects the holders.
No modification of the indenture for the Legacy debentures may adversely
affect the rights of the holders of senior debt unless the holders of the issue
of senior debt that is affected have consented to the change.
GOVERNING LAW
The Legacy debentures, the Legacy notes and the indentures will be governed
by the laws of the state of New York.
THE TRUSTEE
The indentures provide that, except during the continuance of an event of
default, the trustee will perform only the duties as are specifically set forth
in the indentures. During the existence of an event of default, the trustee will
exercise the rights and powers vested in it by the indentures, and use the same
degree of care and skill in its exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
The indentures and the provisions of the TIA contain limitations on the
rights of the trustee, should it become a creditor of Legacy, to obtain payments
of claims from Legacy or to realize on property received in respect of any such
claim as security or otherwise. Subject to the TIA, the trustee will be
permitted to engage in other transactions; provided that if the trustee acquires
any conflicting interest as described in the TIA, it must eliminate the conflict
or resign.
DEFINITIONS
Set forth below is a summary of some of the defined terms used in the
indentures and in the above description of the indentures. Reference is made to
the indentures for the full definition of all terms, as well as any other terms
used herein for which no definition is provided.
"debt" of any person means any indebtedness, contingent or in respect of
borrowed money, or evidenced by bonds, notes, debentures or similar instruments
or letters of credit, or representing the balance deferred and unpaid of the
purchase price of any property or interest therein, except any such balance that
constitutes a trade payable, if and to the extent such indebtedness would appear
as a liability upon a balance sheet of such person prepared on a consolidated
basis in accordance with generally accepted accounting principles.
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"material subsidiary," means any subsidiary of Legacy which is a
"significant subsidiary" as defined in Rule 1-02(v) of Regulation S-X under the
Securities Act of 1933 and the Securities Exchange Act of 1934, and any other
subsidiary of Legacy which is material to the business, earnings, prospects,
assets or condition, financial or otherwise, of Legacy and our subsidiaries
taken as a whole.
"person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"senior debt," with respect to the Legacy debentures means all debt
created, incurred, assumed or guaranteed by Legacy, unless the instrument under
which such debt is created, incurred, assumed or guaranteed expressly provides
that such debt is not senior or superior in right of payment to the Legacy
debentures. Notwithstanding anything to the contrary in the foregoing, senior
debt shall not include:
- any debt of Legacy to any of its subsidiaries,
- any liability for federal, state, local or other taxes owed or owing by
Legacy,
- any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities), or
- any obligations with respect to any capital stock.
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INFORMATION ABOUT LEGACY
GENERAL
Legacy, a Delaware corporation, was formed on November 17, 1997 as a wholly
owned subsidiary of Excel Realty Trust, Inc., a Maryland corporation and a real
estate investment trust. On March 31, 1998, Excel Realty Trust effected a
spin-off of our business through a special dividend of all of our outstanding
common stock to the holders of Excel Realty Trust common stock. Excel Realty
Trust effected this spin-off to allow us to pursue a wider variety of real
estate opportunities including owning, acquiring, developing and managing
retail, entertainment, office, hotel and mixed-use projects and real estate and
other operating companies throughout the United States and Canada.
In connection with this spin-off, Excel Realty Trust transferred real
properties, notes receivable and related assets and liabilities to us. In
addition to operating assets obtained from the spin-off, we intend to pursue
signature real estate projects that have unique locations, concepts or
significant entry barriers associated with them, including:
- developing mixed-use development and entertainment projects that have the
potential for substantial capital gains but which may take several years
to fully develop,
- investing in properties requiring significant restructuring or
redevelopment to create substantial value, such as changing the use,
tenant mix or focus of a property,
- acquiring single tenant properties that can be highly leveraged with
fixed-rate debt that amortizes over the term of the tenant leases,
- acquiring debt or stock of real estate and other operating companies,
including defaulted debt at a discount to the value of the underlying
asset securing the debt,
- acquiring office and industrial sites and properties where aggressive
management and re-development may add significant value, and
- acquiring and developing hotel and hospitality projects in unique
locations.
OUR PROPERTIES
At March 31, 1999, our business consisted of the following portfolio of
real properties, notes receivable, and investments in real estate-related
ventures:
- ten single tenant retail properties located in Colorado, Illinois,
Indiana (3), Michigan, Ohio, Pennsylvania, Texas and Wisconsin, eight of
which are leased to Wal-Mart Stores, Inc. and two of which are leased to
Lowe's Home Centers, Inc.,
- five properties located in Arizona ranging from retail, office and
restaurant space in Scottsdale to a hotel property near the Grand Canyon,
- three properties located in Colorado, two of which are leased to AMC
Multi-Cinema, Inc. and contain 24-screen movie theaters and one of which
is vacant
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land located at the base of Telluride mountain being considered for
condominium development,
- three properties located in California ranging from a shopping center in
Palm Springs to land in San Diego under construction for office
development,
- four notes receivable relating to real estate projects in Arizona and
California with an aggregate outstanding balance of approximately $23.2
million as of March 31, 1999, and
- ownership interests in a number of real estate-related ventures,
including:
- a 65% ownership interest in a joint venture which owns and operates a
hotel, dinner theater and retail shop located near the Grand Canyon
in northern Arizona,
- a 50% ownership interest in a development company which owns Newport
Centre, a retail and office facility located in Winnipeg, Canada,
- a 23.7% ownership interest in a development company which owns land
in Indianapolis, Indiana, and
- an 80% ownership interest (subject to reduction to 50% based on
performance measures) in a full-service car wash company which owns
or leases 19 car wash properties in and around Phoenix, Arizona and
San Antonio, Texas. In March 1999, we entered into an agreement to
sell substantially all of the assets of the car wash company. The
sale is subject to the receipt of a variety of approvals and other
customary closing conditions.
The following table describes our portfolio of real estate properties as of
March 31, 1999. Amounts shown for annual minimum rents are based on executed
leases at March 31, 1999. We made no allowances for contractually-based delays
to the commencement of rental payments. Due to the nature of real estate
investments, our actual rental income may differ from amounts shown in the table
below.
<TABLE>
<CAPTION>
TENANTS GLA (SQ FT) ANNUAL RENT
------------------ -------------- --------------
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C> <C>
Arizona
Scottsdale Galleria............ (1) 520.5 (1)
Scottsdale City Centre......... various 64.3 $ 824.8
Scottsdale Land................ (2) (2) (2)
Brio Land...................... Roaring Forks 3.7 104.3
Restaurant
Grand Hotel.................... (3) (3) (3)
Millennia Car Wash............. (4) (4) (4)
California
Desert Fashion Plaza........... Saks Fifth 283.9 566.6
Avenue/various
Rancho Bernardo................ (5) (5) (5)
San Diego...................... (6) (6) (6)
</TABLE>
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<TABLE>
<CAPTION>
TENANTS GLA (SQ FT) ANNUAL RENT
------------------ -------------- --------------
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C> <C>
Colorado
Brighton(7).................... Wal-Mart 94.2 343.0
Highlands Ranch................ AMC 110.0 2,413.0
Telluride...................... (8) (8) (8)
Westminster.................... AMC 110.0 2,520.0
Illinois
Orland Hills(7)................ Wal-Mart 114.5 824.1
Indiana
Decatur(7)..................... Wal-Mart 72.2 324.3
Terre Haute(7)................. Lowe's 104.2 557.8
Wabash(7)...................... Wal-Mart 93.5 374.6
Michigan
Big Rapids(7).................. Wal-Mart 91.4 337.6
Ohio
Middletown(7).................. Lowe's 126.4 650.0
Pennsylvania
Wyomissing(7).................. Wal-Mart 115.1 679.7
Texas
Temple(7)...................... Wal-Mart 110.6 629.8
Wisconsin
Berlin(7)...................... Wal-Mart 59.1 218.0
Winnipeg, Canada
Newport Centre(9).............. Bank of 156.9 936.0
Montreal/various
------- ---------
Total.................. 2,230.5 $12,303.6
======= =========
</TABLE>
- -------------------------
(1) Property is currently being redeveloped.
(2) Property consists of vacant land adjacent to the Scottsdale Galleria and the
Brio Land.
(3) Legacy holds a 65% ownership interest in Grand Tusayan LLC which owns and
operates a 120-room hotel and restaurant.
(4) Legacy holds an 80% ownership interest in Millennia which owns or leases 19
car wash properties in and around Phoenix, Arizona and San Antonio, Texas.
Legacy's ownership interest is subject to reduction to 50% based on
performance measures. Legacy has entered into an agreement to sell
substantially all of the assets of Millennia.
(5) Property consists of land currently under development as an office building.
(6) Property consists of vacant land currently held for sale.
(7) Single tenant property acquired from Excel Realty Trust in connection with
the spin-off of Legacy.
(8) Property consists of vacant land being considered for condominium
development.
(9) Property is owned by a Nova Scotia company of which Legacy holds a 50%
ownership interest.
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OUR PRINCIPAL TENANTS
Our three largest tenants accounted for approximately 27% of our total
annualized rental revenues as of March 31, 1999. We show certain information
about these tenants in the following table (dollars in thousands):
<TABLE>
<CAPTION>
PERCENT OF
NUMBER AREA UNDER ANNUAL TOTAL ANNUAL
TENANT OF LEASES LEASE (SQ FT) RENT REVENUES
------ --------- -------------- -------------- ------------
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C> <C> <C>
AMC......................... 2 220.0 $4,933.0 14%
Wal-Mart.................... 8 750.6 3,731.1 10
Lowe's...................... 2 230.6 1,207.8 3
--- ------- -------- ---
12 1,201.2 $9,871.9 27%
=== ======= ======== ===
</TABLE>
As of March 31, 1999, AMC was our largest tenant in terms of total
revenues. AMC's parent corporation, AMC Entertainment, Inc., has guaranteed the
leases under which AMC is the tenant, which guarantee will remain in place for
the full term of the leases. AMC Entertainment is a motion picture exhibitor and
operates approximately 240 theaters. AMC Entertainment is listed on the American
Stock Exchange and, as of December 1998, had credit ratings of B- from Standard
& Poor's Corporation and B3 from Moody's Investors Service, Inc.
As of March 31, 1999, Wal-Mart was our second largest tenant in terms of
total revenues and leased more individual properties from us than any other
tenant. Wal-Mart is the nation's largest retailer and operates approximately
2,000 discount department stores and over 400 warehouse clubs. Wal-Mart is
listed on the New York Stock Exchange and, as of December 1998, had credit
ratings of AA from Standard & Poor's and AA2 from Moody's.
As of March 31, 1999, Lowe's was our third largest tenant in terms of total
revenues. Lowe's is owned by Lowe's Companies, Inc., the nation's second largest
home improvement retailer with over 400 stores. Lowe's Companies is listed on
the New York Stock Exchange and, as of December 1998, had credit ratings of A
from Standard & Poor's and A2 from Moody's.
AMC Entertainment, Wal-Mart and Lowe's are publicly-traded companies
subject to the reporting requirements of the Securities Exchange Act of 1934,
and financial and other information regarding these companies is on file with
the SEC.
OUR EMPLOYEES
As of March 31, 1999, we had approximately 735 employees, including the
employees of our subsidiaries.
OUR HEADQUARTERS
Our principal executive offices are located at 16955 Via Del Campo, Suite
100, San Diego, California 92127 and our telephone number is (619) 675-9400.
76
<PAGE> 83
OUR DIRECTORS AND OFFICERS
The table below indicates the name, position with Legacy and ages of our
directors, executive officers and other key employees as of July 1, 1999.
<TABLE>
<CAPTION>
NAME POSITION WITH LEGACY AGE
---- -------------------- ---
<S> <C> <C>
Gary B. Sabin.............. Chairman, President and Chief Executive 45
Officer
Richard B. Muir............ Director, Executive Vice President and 43
Secretary
Kelly D. Burt.............. Director, Executive Vice 41
President -- Development
Richard J. Nordlund........ Director 53
Robert E. Parsons, Jr...... Director 43
Robert S. Talbott.......... Director 45
John H. Wilmot............. Director 55
Emmett R. Albergotti....... Senior Vice President -- Retail Development 56
Graham R. Bullick, Ph.D.... Senior Vice President -- Capital Markets 48
Mark T. Burton............. Senior Vice President -- Acquisitions 38
S. Eric Ottesen............ Senior Vice President, General Counsel and 43
Assistant Secretary
James Y. Nakagawa.......... Chief Financial Officer 33
</TABLE>
Gary B. Sabin has served as Chairman of the Board of Directors, President
and Chief Executive Officer since our formation. Mr. Sabin served as Director
and President of New Plan Excel from September 1998 to April 1999 and as
Chairman, President and Chief Executive Officer of Excel Realty Trust from
January 1989 to September 1998. In addition, Mr. Sabin has served as Chief
Executive Officer of various companies since his founding of Excel Realty
Trust's predecessor company and its affiliates starting in 1977. He has been
active for over 20 years in diverse aspects of the real estate industry,
including the evaluation and negotiation of real estate acquisitions,
management, financing and dispositions.
Richard B. Muir has served as Director, Executive Vice President and
Secretary since our formation. Mr. Muir served as a Director, Executive Vice
President and Co-Chief Operating Officer of New Plan Excel from September 1998
to April 1999 and served as Director, Executive Vice President and Secretary of
Excel Realty Trust from January 1989 to September 1998. In addition, Mr. Muir
served as an officer and director of various affiliates of Excel Realty Trust
since 1978, primarily in administrative and executive capacities, including
direct involvement in and supervision of asset acquisitions, management,
financing and dispositions.
Kelly D. Burt has served as Director and Executive Vice
President -- Development since May 1998. From 1992 to May 1998, Mr. Burt served
as President and founder of TenantFirst, a real estate development company in
San Diego, California that was acquired by us in May 1998. From 1984 to 1992,
Mr. Burt was an Industrial/ Office Partner at the San Diego division of Trammell
Crow Company, a real estate development company headquartered in Dallas, Texas.
Richard J. Nordlund has served as a Director since our formation and as
President of RJN Management, a real estate firm in Santa Barbara, California,
since 1985. From 1978 through 1988, Mr. Nordlund served as President of First
Corporate Services, an investment banking firm in Minneapolis, Minnesota. He is
also associated with Miller & Schroeder Financial, Inc. Mr. Nordlund's business
experience includes 28 years in the investment banking and mortgage banking
industries.
77
<PAGE> 84
Robert E. Parsons, Jr. has served as a Director since our formation. He
served as a Director of Excel Realty Trust and then New Plan Excel from January
1989 to April 1999. Mr. Parsons is presently Executive Vice President and Chief
Financial Officer of Host Marriott Corporation, a company he joined in 1981. He
also serves as a director and officer of several Host Marriott subsidiaries, and
as a Director of Merrill Financial Corporation, a privately-held real estate
company.
Robert S. Talbott has served as a Director since our formation. Mr. Talbott
is an attorney and has served as President of Holrob Investments, LLC, a company
engaged in the acquisition, development, management and leasing of real
property, since 1997. From 1985 through 1997, Mr. Talbott served as Executive
Vice President and President of Horne Properties, Inc., where he was involved in
the acquisition and development of over 100 shopping centers. He also serves as
a member of the Public Building Authority of Knoxville, Tennessee, as a member
of the Knoxville Industrial Development Board, as a Director of the Knoxville
Chamber of Commerce and as Chairman of the St. Mary's Foundation.
John H. Wilmot has served as a Director since our formation. He served as a
Director of Excel Realty Trust and then New Plan Excel from 1989 to April 1999.
Mr. Wilmot, individually and through his wholly-owned corporations, develops and
manages real property, including office buildings, shopping centers and
residential projects primarily in the Phoenix/Scottsdale area, and has been
active in such business since 1976.
Emmett R. Albergotti has served as Senior Vice President -- Retail
Development since August 1998. From 1993 to August 1998, Mr. Albergotti served
as Senior Vice President of AMC Realty, Inc., the real estate arm of AMC
Entertainment, Inc., for which he oversaw the acquisition and development of new
theater locations throughout the western United States.
Graham R. Bullick, Ph.D., has served as Senior Vice President -- Capital
Markets since our formation. Mr. Bullick served as Senior Vice
President -- Capital Markets of Excel Realty Trust and then New Plan Excel from
January 1991 to April 1999. Previously, Mr. Bullick was associated with Excel
Realty Trust as a Director from 1991 to 1992. From 1985 to 1991, Mr. Bullick
served as Vice President and Chief Operations Officer for a real estate
investment firm, where his responsibilities included acquisition and financing
of investment real estate projects.
Mark T. Burton has served as Senior Vice President -- Acquisitions since
our formation and held the same position with Excel Realty Trust and then New
Plan Excel from October 1995 to April 1999. Mr. Burton also served as a Vice
President of Excel Realty Trust from January 1989 to October 1995. Mr. Burton
was associated with Excel Realty Trust and its affiliates beginning in 1983,
primarily in the evaluation and selection of property acquisitions.
S. Eric Ottesen has served as Senior Vice President, General Counsel and
Assistant Secretary since our formation. Mr. Ottesen served as Senior Vice
President -- Legal Affairs and Secretary of New Plan Excel from September 1998
to April 1999. Mr. Ottesen served as Senior Vice President, General Counsel and
Assistant Secretary of Excel Realty Trust from September 1996 to September 1998.
From 1987 to 1995, Mr. Ottesen was a senior partner in a San Diego law firm.
78
<PAGE> 85
James Y. Nakagawa has served as Chief Financial Officer since October 1998.
From March 1998 to October 1998, Mr. Nakagawa served as Controller of Legacy.
Mr. Nakagawa served as Controller of Excel Realty Trust and then New Plan Excel
from September 1994 to April 1999. Prior to joining New Plan Excel, Mr. Nakagawa
was a manager at Coopers & Lybrand LLP. Mr. Nakagawa is a certified public
accountant.
INFORMATION ABOUT ENTERPRISES
GENERAL
Enterprises is a REIT incorporated in the state of Maryland. Its principal
business is to own, acquire, develop, operate, manage and lease real property.
Enterprises was originally incorporated in July 1994 as a Delaware corporation
and began operations as a wholly owned subsidiary of Costco Companies, Inc.,
formerly Price/Costco, Inc. In 1994, Costco spun-off Enterprises and transferred
to Enterprises as part of a voluntary exchange offer substantially all of the
real estate assets which historically formed Costco's non-club real estate
business segment, merchandising business entities and other assets.
In June 1997, Enterprises' board of directors determined that it would be
in the best interest of Enterprises and its stockholders to separate
Enterprises' core real estate business from its merchandising businesses.
Accordingly, Enterprises' board approved a spin-off transaction in which
Enterprises would continue to conduct its real estate business consisting of an
initial asset base of 27 retail properties and $40 million of cash following the
spin-off. In August 1997, Enterprises' merchandising businesses, real estate
properties held for sale, and various other assets were spun-off to PriceSmart.
Through a stock distribution, PriceSmart became a separate public company. Since
that time, Enterprises has engaged in a combination of acquiring, developing,
owning, managing and/or selling real estate assets, primarily shopping centers.
The PriceSmart distribution resulted in Enterprises becoming eligible to elect
federal tax treatment as a REIT, which allows Enterprises to substantially
eliminate its obligation to pay taxes on income.
ENTERPRISES' PROPERTIES
At March 31, 1999, Enterprises owned 31 commercial real estate properties
and held one property with a 21-year ground lease. These properties encompass
approximately 4.4 million square feet of GLA and were 94% leased at March 31,
1999. The five largest
properties include approximately 1.7 million square feet of GLA that generate
annual minimum rent of approximately $25.6 million, based on leases existing as
of March 31, 1999.
Included in the properties Enterprises owned at March 31, 1999 are four
self storage facilities. Two of these facilities, San Diego, California and
Azusa, California, are located on the same sites as Enterprises' commercial
properties. The other two self storage facilities are stand-alone properties. At
March 31, 1999, these facilities had approximately 400,000 square feet of GLA
and were 84% occupied.
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<PAGE> 86
The following table describes Enterprises' portfolio of real estate
properties as of March 31, 1999. Amounts shown for annual minimum rents are
based on executed leases at March 31, 1999. Enterprises made no allowances for
contractually-based delays to the commencement of rental payments. Due to the
nature of real estate investments, Enterprises' actual rental income may differ
from amounts shown in the table below. Self storage properties as of March 31,
1999 are shown separately from Enterprises' commercial portfolio.
<TABLE>
<CAPTION>
NUMBER PERCENT ANNUAL
COMMERCIAL PROPERTIES OF TENANTS GLA (SQ FT) LEASED RENT
--------------------- ---------- -------------- ------- --------------
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C> <C> <C>
Westbury, NY....................... 8 398.6 100% $ 7,651.4
Pentagon City, VA.................. 12 336.8 100 6,566.1
Sacramento/Bradshaw, CA............ 2 296.9 100 4,407.7
Wayne, NJ(1)....................... 5 348.1 89 4,258.5
Philadelphia, PA................... 16 304.4 89 2,733.5
Dallas, TX(2)...................... 5 177.5 93 2,623.2
San Diego, CA(3)................... 3 443.2 100 2,282.5
Signal Hill, CA.................... 14 154.8 100 2,190.9
Roseville, CA...................... 9 189.6 90 2,008.4
Fountain Valley, CA................ 15 119.0 92 1,680.7
Moorestown, NJ (leased land)....... 3 172.6 100 1,632.9
Glen Burnie, MD.................... 11 130.6 98 1,501.4
Seekonk, MA........................ 9 213.1 48 1,337.2
San Diego/Rancho San Diego, CA..... 16 93.7 97 1,104.5
Inglewood, CA...................... 1 119.9 100 847.0
San Diego/Carmel Mountain, CA...... 5 35.0 90 797.7
Northridge, CA..................... 2 22.0 100 734.0
Buffalo, NY(2)..................... 1 115.4 100 733.3
New Britain, CT.................... 1 112.4 100 671.1
San Juan Capistrano, CA............ 6 56.4 100 589.9
Smithtown, NY...................... 1 55.6 100 500.7
Sacramento/Stockton, CA............ 2 49.8 100 470.2
Hampton, VA........................ 2 45.6 100 445.2
Redwood City, CA................... 2 49.4 100 376.6
Azusa, CA(3)....................... 3 206.6 100 360.5
Tucson, AZ......................... 9 40.1 100 293.8
Denver/Littleton, CO............... 1 26.4 100 216.1
Denver/Aurora, CO.................. 1 7.3 100 164.3
San Diego/Southeast, CA............ 2 8.9 100 148.1
Chula Vista/Rancho del Rey, CA..... 1 3.2 100 75.0
--- ------- --- ---------
Total Commercial
Properties............ 168 4,332.9 94% $49,402.4
=== ======= === =========
</TABLE>
- -------------------------
(1) Includes 37,000 sq. ft. of vacant storage space.
(2) Property was sold in April 1999.
(3) Price Self Storage is also located at this property.
80
<PAGE> 87
<TABLE>
<CAPTION>
SELF STORAGE PROPERTIES GLA (SQ FT) PERCENT LEASED
----------------------- -------------- --------------
(IN THOUSANDS)
<S> <C> <C>
San Diego/Murphy Canyon, CA....................... 197.9 99%
San Diego, CA..................................... 89.9(1) 99
Azusa, CA......................................... 85.2(1)(2) 38
Solana Beach, CA.................................. 8.0(3) 21
----- --
Total Self Storage Properties........... 381.0 84%
===== ==
</TABLE>
- -------------------------
(1) GLA of facility is also included in GLA for the commercial property listed
above.
(2) Opened during the first quarter of 1999.
(3) Opened a portion of the facility during the first quarter of 1999.
ENTERPRISES' PRINCIPAL TENANTS
Enterprises' eight largest tenants accounted for approximately 44% of its
total GLA and approximately 51% of its total annualized rental revenues as of
March 31, 1999. The table below presents certain information about these
tenants:
<TABLE>
<CAPTION>
PERCENT PERCENT OF
NUMBER AREA UNDER OF GLA ANNUAL TOTAL
TENANT OF LEASES LEASE (SQ FT) UNDER LEASE RENT ANNUAL RENT
------ --------- -------------- ----------- -------------- -----------
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Costco............... 4 618.2 15.0% $ 8,307.9 16.8%
The Sports
Authority.......... 8 341.2 8.3 4,333.5 8.8
The Home Depot....... 2 214.2 5.2 2,550.7 5.2
AT&T Wireless........ 1 156.6 3.8 2,240.0 4.5
Level One
Communications..... 1 140.4 3.4 2,167.7 4.4
Kmart................ 1 110.0 2.7 2,027.2 4.1
Marshalls............ 2 87.9 2.1 1,826.3 3.7
PETsMART............. 6 155.8 3.8 1,603.4 3.2
-- ------- ---- --------- ----
25 1,824.3 44.3% $25,056.7 50.7%
== ======= ==== ========= ====
</TABLE>
ENTERPRISES' EMPLOYEES
Enterprises had 50 employees as of March 31, 1999 including 15 responsible
for property management, 19 employed in finance and administration and 16
employed in the self storage business.
ENTERPRISES' HEADQUARTERS
Enterprises' principal executive offices are located at 4649 Morena
Boulevard, San Diego, California 92117 and its telephone number is (619)
581-4679.
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<PAGE> 88
ENTERPRISES' DIRECTORS AND OFFICERS
The table below indicates the name, position with Enterprises and ages of
its directors, executive officers and other key employees as of July 1, 1999.
<TABLE>
<CAPTION>
NAME POSITION WITH ENTERPRISES AGE
---- ------------------------- ---
<S> <C> <C>
Robert E. Price................ Chairman of the Board 56
Jack McGrory................... President, Chief Executive Officer and Director 49
Paul A. Peterson............... Vice Chairman of the Board 71
Murray L. Galinson............. Director 62
James F. Cahill................ Director 44
Anne L. Evans.................. Director 66
Joseph R. Satz................. Executive Vice President, General Counsel and 57
Secretary
Kathleen M. Hillan............. Senior Vice President -- Finance 40
</TABLE>
Robert E. Price has been Chairman of the Board of Enterprises since July
28, 1994. Mr. Price was President and Chief Executive Officer of Enterprises
from July 28, 1994 to August 29, 1997. Mr. Price was Chairman of the Board of
Price/ Costco, Inc. from October 1993 to December 1994. From 1976 to October
1993, he was Chief Executive Officer and a Director of The Price Company. Mr.
Price served as Chairman of the Board of The Price Company from January 1989 to
October 1993, and as its President from 1976 until December 1990. In addition to
his role in Enterprises, Mr. Price serves as Chairman of the Board of
PriceSmart, Inc.
Jack McGrory became a Director of Enterprises on August 29, 1997. Mr.
McGrory also became the President and Chief Executive Officer of Enterprises on
September 2, 1997. Prior to September 2, 1997, Mr. McGrory served as City
Manager of the City of San Diego from March 1991 through August 1997.
Paul A. Peterson is a lawyer and is a senior member of the law firm of
Peterson & Price in San Diego. He was a Director of Price/Costco, Inc. from
October 1993 until December 1994. From 1976 to October 1993, he was Secretary
and, except for a period of eleven months in 1982, a Director of The Price
Company. Mr. Peterson served as Vice Chairman of the Board of The Price Company
from November 1991 to October 1993. Mr. Peterson has served as a Director of
Enterprises since July 28, 1994.
Murray L. Galinson has been Chairman of the Board of San Diego National
Bank and SDNB Financial Corp. since May 1996 and a Director of both entities
since their inception in 1981. In addition, Mr. Galinson was Chief Executive
Officer of both entities from September 1984 until September 1997. Mr. Galinson
served as President of both entities from September 1984 until May 1996. Mr.
Galinson has served as a Director of Enterprises since August 28, 1994.
James F. Cahill has been Executive Vice President of Price Entities since
January 1987. In this position he has been responsible for the oversight and
investment activities of the financial portfolio of Sol Price, founder of The
Price Company, and related entities. He was a Director of Neighborhood National
Bank, located in San Diego, from 1992 through January 1998. Prior to his current
position, Mr. Cahill was employed at The Price Company for ten years with his
last position being Vice
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<PAGE> 89
President of Operations. Mr. Cahill became a Director of Enterprises on August
29, 1997.
Anne L. Evans has been the Chairman of Evans Hotels since April 1984. Ms.
Evans also served as its President from April 1984 until March 1993. She served
as a member of the Board of Directors of the Los Angeles Branch of the Federal
Reserve Bank of San Francisco from October 1992 through December 1998 and was
the Chairman during 1997 and 1998. Ms. Evans became a Director of Enterprises on
October 16, 1997.
Joseph R. Satz has been Executive Vice President of Enterprises since
October 16, 1997. He became the Secretary and General Counsel of Enterprises on
September 16, 1997. Mr. Satz held the position of Vice President and Counsel of
Enterprises from August 1994 until he assumed his current positions. Mr. Satz
has provided legal counsel for The Price Company and Price/Costco, Inc. since
1983.
Kathleen M. Hillan became Enterprises' Senior Vice President -- Finance on
October 16, 1997. Ms. Hillan was Corporate Controller of Enterprises from August
1994 until she assumed her current position. Ms. Hillan was International
Finance Manager of The Price Company from 1992 until August 1994.
DIRECTORS AND MANAGEMENT OF ENTERPRISES
FOLLOWING THE EXCHANGE OFFER
If the exchange offer is consummated as planned, Enterprises' board of
directors will be reduced from six to five members, and will be comprised of the
following persons or their designees:
- Gary B. Sabin, Chairman, President and Chief Executive Officer of Legacy,
- Richard B. Muir, Executive Vice President and Director of Legacy,
- Jack McGrory, currently President, Chief Executive Officer and Director
of Enterprises,
- James F. Cahill, currently Director of Enterprises, and
- ____________ .
For additional information regarding the persons listed above, see "Information
About Legacy -- Our Directors and Officers" and "Information About
Enterprises -- Enterprises' Directors and Officers."
In addition, the company agreement requires that Mr. Sabin be appointed as
Chief Executive Officer of Enterprises effective upon the consummation of the
exchange offer. Although neither the company agreement nor the stockholders
agreement specifies who will manage Enterprises under Mr. Sabin's direction, we
currently expect that the officers of Legacy will be appointed as officers of
Enterprises in their current positions, and that the property management and
other operational personnel of Enterprises will continue to serve in their
current positions with Enterprises. As noted in "Description of the
Agreements -- The Company Agreement," we are obligated to continue to operate
Enterprises as a REIT so long as any shares of Enterprises preferred stock
remain outstanding.
83
<PAGE> 90
BENEFITS TO ENTERPRISES' INSIDERS IN THE EXCHANGE OFFER
In considering whether to exchange your shares of the Enterprises common
stock, you should be aware of the interests that directors, executive officers
and other personnel of Enterprises have in the exchange offer. These include:
- severance payments,
- acceleration of vesting of the Enterprises stock options and cash
payments with respect to those options, and
- continuing indemnification and directors and officers' liability
insurance.
These interests are different from and in addition to your and their
interests as stockholders. Enterprises' board did not consider the potential
benefits to be received by these individuals as a factor in reaching its
decision to approve the exchange offer.
SEVERANCE PAYMENTS
We agreed with Enterprises in the company agreement that the consummation
of the exchange offer will be treated as a "change of control" for purposes of
Enterprises' employee benefit plans, and each employment, severance or similar
agreement applicable to Enterprises' personnel or any of its subsidiaries. We
agreed that Enterprises may terminate specified personnel prior to the
consummation of the exchange offer with our consent, and that such personnel
will be entitled to severance payments as if they had been employed at the time
of the "change of control." We also agreed to provide Enterprises with the
necessary funds to pay its severance obligations which may arise as a result of
the exchange offer.
In addition, we agreed that all of Enterprises' personnel, upon the
consummation of the exchange offer, will in general receive credit with respect
to each employee benefit plan, program, policy or arrangement of Enterprises or
Legacy for service with Enterprises or any of its subsidiaries or predecessor
companies, including The Price Company and Costco Companies, Inc., for purposes
of determining eligibility to participate, vesting and entitlement to benefits.
Jack McGrory, Chief Executive Officer. Jack McGrory became Chief Executive
Officer of Enterprises on September 2, 1997. Mr. McGrory entered into an
employment agreement with Enterprises on June 18, 1997 for a term of three years
commencing September 2, 1997, as amended on August 27, 1997 and again on
February 2, 1999. Under the employment agreement, following the consummation of
the exchange offer, Mr. McGrory will be entitled to the continuation of his base
salary for the remainder of the term of the agreement payable in conformity with
Enterprises' normal payroll period. Assuming the exchange offer is consummated
in August 1999, Mr. McGrory will be entitled to receive approximately $360,000
in the form of severance payments including bonus amounts.
Gary W. Nielson, Executive Vice President and Chief Financial
Officer. Gary W. Nielson became Executive Vice President and Chief Financial
Officer of Enterprises on February 2, 1998. Mr. Nielson entered into an
employment agreement with Enterprises for a term of two years commencing
February 2, 1998. Under the
84
<PAGE> 91
employment agreement, following the consummation of the exchange offer, Mr.
Nielson would have been entitled to the greater of:
- the continuation of his base salary for the remainder of the term of the
agreement payable in conformity with Enterprises' normal payroll period,
or
- $175,000.
Mr. Nielson resigned from Enterprises in May 1999 and, with our consent,
received approximately $210,000 in the form of severance payments including
bonus amounts in connection with the commencement of the exchange offer.
Other Executive Officers and Personnel of Enterprises. The company
agreement provides that other executive officers and personnel of Enterprises
who are:
- not offered employment by Enterprises or Legacy on substantially similar
terms to their employment with Enterprises at the time that the exchange
offer is consummated, or
- terminated by Enterprises or Legacy within one year following the
consummation of the exchange offer,
will be entitled to receive severance benefits equal to one month's base pay for
each year of service to Enterprises, its predecessors or its subsidiaries (with
a minimum of four months' and a maximum of one year's base pay and subject to
adjustment to include bonus amounts in some cases).
The following table sets forth the approximate severance payments to be
made to each of Enterprises' directors and executive officers, and, as a group,
the other personnel of Enterprises assuming that all directors, executive
officers and other personnel of Enterprises will be terminated following the
exchange offer and the terminations occur in August 1999.
<TABLE>
<CAPTION>
NAME TOTAL SEVERANCE PAYMENT
---- -----------------------
<S> <C>
Jack McGrory.............................. $ 360,000
Gary W. Nielson........................... 210,000
Joseph R. Satz............................ 215,000
All other Enterprises' personnel.......... 1,313,100
----------
Total........................... $2,098,100
</TABLE>
STOCK OPTIONS
We agreed with Enterprises in the company agreement to cause all options to
purchase the Enterprises common stock and the Enterprises preferred stock to
become fully vested and exercisable upon the consummation of the exchange offer.
Enterprises has granted to some of its employees options to purchase only
common stock. After the consummation of the exchange offer, all options to
purchase the Enterprises common stock will be canceled, and Enterprises will pay
to each holder in cash:
- the excess, if any, of $8.50 over the applicable exercise price,
- multiplied by the number of shares of the Enterprises common stock
subject to the applicable option.
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<PAGE> 92
Enterprises has also granted to some of its directors, executive officers
and employees options to purchase both common stock and preferred stock. After
the consummation of the exchange offer, each outstanding option which represents
the right to purchase a share of both the Enterprises common stock and the
Enterprises preferred stock will be modified so that the holder will:
- be paid by Enterprises an amount in cash determined by multiplying:
- the excess, if any, of $8.50 over an amount equal to 22.7% of the
applicable exercise price of such option (rounded to the nearest
whole cent), by
- the number of shares of the Enterprises common stock subject to the
option, and
- receive a replacement option to purchase shares of the Enterprises
preferred stock, exercisable on the same terms and conditions as the
surrendered option to purchase the same number of shares of the
Enterprises preferred stock at an exercise price equal to 77.3% of the
applicable exercise price of the option (rounded to the nearest whole
cent); except that the option received in exchange will be fully
exercisable and vested and will not expire for a period ending upon the
earlier of:
- two years following the consummation of the exchange offer or such
longer period as may be applicable to holders who remain employed by
us or Enterprises after the exchange offer, or
- such time as no shares of the Enterprises preferred stock remain
outstanding, at which time the option will represent the right to
receive the redemption price for the Enterprises preferred stock.
Although Enterprises will make the payments to the holders of the
Enterprises options as described above, we agreed in the company agreement to
provide Enterprises with the necessary funds to make those payments.
The following table sets forth, as of March 31, 1999, the number of options
to purchase shares of the Enterprises common stock and the Enterprises preferred
stock held by the directors and current and former executive officers of
Enterprises and, as a group, the other employees of Enterprises. The table also
indicates the effect of the exchange offer on those options.
<TABLE>
<CAPTION>
ENTERPRISES
ENTERPRISES WEIGHTED ENTERPRISES WEIGHTED PREFERRED
COMMON AVERAGE PREFERRED AVERAGE CASH PROCEEDS STOCK SUBJECT TO
STOCK SUBJECT EXERCISE STOCK SUBJECT EXERCISE AFTER OPTIONS AFTER
NAME TO OPTIONS PRICE TO OPTIONS PRICE EXCHANGE OFFER EXCHANGE OFFER
---- ------------- -------- ------------- -------- -------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Jack McGrory......... 236,329 $4.30 236,329 $14.66 $ 992,582 236,329
Paul A. Peterson..... 26,716 2.57 26,716 8.76 158,426 26,716
Murray L. Galinson... 12,358 2.57 12,358 8.76 73,283 12,358
James F. Cahill...... 12,358 4.06 12,358 13.84 54,870 12,358
Anne L. Evans........ 10,000 4.23 10,000 14.40 42,700 10,000
Gary W. Nielson...... 50,000 4.51 50,000 15.37 199,500 50,000
Joseph R. Satz....... 54,244 3.39 54,244 11.53 277,429 54,244
All other
employees.......... 278,498 3.68 268,498 12.31 1,342,554 268,498
------- ----- ------- ------ ---------- -------
Total....... 680,503 $3.88 670,503 $13.16 $3,141,344 670,503
======= ===== ======= ====== ========== =======
</TABLE>
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INDEMNIFICATION AND DIRECTORS AND OFFICERS' LIABILITY INSURANCE
We agreed with Enterprises in the company agreement to cause Enterprises to
maintain directors and officers' liability insurance insuring all persons who
are or were directors or officers of Enterprises in an amount not less than that
in effect on April 30, 1999, for a period of at least three years following the
consummation of the exchange offer, and to cause Enterprises to indemnify each
such person against all liability relating to their actions as directors or
officers of Enterprises.
COMPARISON OF STOCKHOLDER RIGHTS
The rights of our stockholders are currently governed by the DGCL, our
charter and our bylaws. Stockholders of Enterprises may become stockholders of
Legacy, through the conversion of the Legacy debentures to be received in the
exchange offer. The following discussion compares existing rights of
stockholders of Enterprises with those of stockholders of Legacy. This summary
of comparative rights of Legacy's and Enterprises' stockholders may not be
complete and is subject to and qualified in its entirety by reference to the
MGCL, the DGCL, Legacy's charter, Legacy's bylaws, Enterprises' charter and
Enterprises' bylaws.
FORM OF ORGANIZATION AND PURPOSE
Legacy. Legacy is a Delaware corporation. Pursuant to Legacy's charter,
Legacy is authorized to engage in any lawful acts or activities for which
corporations may be organized under the DGCL, subject to the terms and
conditions set forth in the Intercompany Agreement by and between Legacy and
Excel Realty Trust, for so long as the Intercompany Agreement is in effect. The
Intercompany Agreement was terminated in all material respects on April 21,
1999.
Enterprises. Enterprises is a Maryland corporation. Pursuant to
Enterprises' charter, Enterprises is authorized to engage in any lawful act or
activity for which corporations may be organized under the MGCL.
CAPITALIZATION
Legacy. Legacy's charter authorizes a total of 200,000,000 shares of stock
consisting of 150,000,000 shares of Legacy common stock and 50,000,000 shares of
Legacy preferred stock. A certificate of designation classifies 25,000,000
shares of our preferred stock as Series B preferred stock. At March 31, 1999,
32,607,704 shares of the Legacy common stock and 21,281,000 shares of the Series
B preferred stock were issued and outstanding.
Enterprises. Enterprises' charter authorizes a total number of 100,000,000
shares of stock, consisting of 74,000,000 shares of Enterprises common stock and
26,000,000 shares of the Enterprises preferred stock. At March 31, 1999,
13,298,421 shares of the Enterprises common stock and 23,758,801 shares of the
Enterprises preferred stock were issued and outstanding.
RESTRICTIONS ON OWNERSHIP AND TRANSFER OF STOCK
Legacy. Although permitted by the DGCL, neither Legacy's charter nor
Legacy bylaws's provide for restrictions on the transfer of Legacy securities.
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In addition, under the DGCL no restriction is binding with respect to
securities issued prior to adoption of the restriction unless the holders of the
securities are parties to an agreement or voted in favor of the restriction. A
restriction on the transfer of securities of a corporation is permitted under
the DGCL if, among other things, it prohibits the transfer of the restricted
securities to designated persons or classes of persons, and the designation is
not manifestly unreasonable. Any other lawful restriction on the transfer of
securities also is permitted under the DGCL. The DGCL expressly provides that
any restriction on the transfer of shares imposed for the purpose of maintaining
a tax advantage to the corporation is conclusively presumed to be for a
reasonable purpose.
Enterprises. As permitted by the MGCL, for purposes of maintaining
Enterprises' REIT status under the Code, Enterprises' charter provides that,
subject to some exceptions, no person or persons acting as a group may:
- beneficially own, or be deemed to own by virtue of the attribution
provisions of the Code, more than 5% (by number or value, whichever is
more restrictive) of the outstanding stock of Enterprises, or
- constructively own, or be deemed to own by virtue of the attribution
provisions of the Code, more than 9.8% (by number or value, whichever is
more restrictive) of the outstanding stock of Enterprises.
Enterprises' board of directors may, however, in its sole discretion,
exempt a person or persons from the above ownership limits, provided that the
procedures set forth in Enterprises' charter are complied with and Enterprises'
board of directors has determined that the exemption will not cause Enterprises
to fail to qualify as a REIT. Enterprises' board of directors has waived the
above ownership limits with respect to the Price family and affiliated entities,
and with respect to Legacy.
Enterprises' charter further prohibits, without exception:
- any person from actually or constructively owning shares of stock of
Enterprises that would result in Enterprises being "closely held" under
Section 856(h) of the Code or otherwise cause Enterprises to fail to
qualify as a REIT, and
- any person from transferring shares of stock of Enterprises if such
transfer would result in all classes and series of stock of Enterprises
being owned by fewer than 100 persons.
AMENDMENT OF LEGACY'S CHARTER AND ENTERPRISES' CHARTER
Legacy. Under the DGCL, a corporation's certificate of incorporation may
be amended if the amendment is approved by the board of directors, by a majority
of the outstanding stock entitled to vote on the amendment, and by a majority of
the outstanding stock of each class entitled to vote on the amendment. Under the
DGCL, the holders of the outstanding shares of a class are entitled to vote as a
separate class on a proposed amendment, whether or not entitled to vote thereon
by the certificate of incorporation, that would increase or decrease the
aggregate number of authorized shares of that class, increase or decrease the
par value of the shares of that class or alter or change the powers, preferences
or special rights of the shares of that class so as to affect them adversely. If
any proposed amendment would adversely affect one or more series by altering or
changing the powers, preferences or special rights of the
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series, but would not so affect the entire class, then only the shares of the
series so affected by the amendment is entitled to vote as a separate class on
the amendment. Legacy's charter provides that Legacy reserves the right to
amend, alter, change or repeal any provision of Legacy's charter in the manner
prescribed by statute and that all rights granted to Legacy stockholders in
Legacy's charter are granted subject to such reservation.
Enterprises. Under the MGCL, in order to amend the charter, the board of
directors must adopt a resolution setting forth and declaring advisable the
proposed amendment and direct that the proposed amendment be submitted to
stockholders for their consideration either at an annual or special meeting of
stockholders. The proposed amendment must then be approved by the affirmative
vote of two-thirds of all the stockholder votes entitled to be cast on the
matter, unless a greater or lesser proportion of votes (but not less than a
majority of all votes entitled to be cast) is specified in the charter.
Enterprises' charter provides that any action, which would include an amendment
to Enterprises' charter, shall be valid and effective if authorized by the
affirmative vote of the holders of a majority of the total number of shares
entitled to vote thereon, rather than two-thirds as otherwise provided for under
the MGCL.
STOCKHOLDER VOTING RIGHTS GENERALLY
Legacy. Under the DGCL, unless otherwise provided in the certificate of
incorporation and subject to certain provisions of the DGCL, each stockholder is
entitled to one vote for each share of capital stock held by him. Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize others
to act for him by proxy, but no proxy may be voted or acted upon after three
years from its date, unless the proxy specifically provides for its
effectiveness for a longer period. The DGCL further provides that in all matters
other than the election of directors, the affirmative vote of the majority of
shares present in person or represented by proxy at a duly held meeting at which
a quorum is present is deemed to be the act of the stockholders, unless the
DGCL, the certificate of incorporation or the bylaws specify a different voting
requirement. Where a separate vote by a class or classes is required, a majority
of the outstanding shares of such class or classes, present in person or
represented by proxy, constitutes a quorum entitled to take action with respect
to that vote on that matter, and the affirmative vote of the majority of shares
of the class or classes present in person or represented by proxy at the meeting
is the act of that class. The holders of the Legacy Series B preferred stock are
entitled to one vote per share, voting together with the holders of the Legacy
common stock, on all matters that the holders of the Legacy common stock are
entitled to vote on.
Enterprises. Under the MGCL, unless the charter provides for a greater or
lesser number of votes per share or limits or denies voting rights, each
outstanding share of common stock is entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. A stockholder may vote the
stock the stockholder owns either in person or by proxy. A proxy is not valid
for more than eleven months after its date, unless it provides otherwise. Unless
the MGCL or charter specify a different voting requirement, a majority of all
the votes cast at a duly held meeting at which a quorum is present and entitled
to vote on the subject matter is deemed to be the act of the
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stockholders. Additionally, unless the MGCL or charter provide otherwise, if two
or more classes of stock are entitled to vote separately on any matter for which
the MGCL requires approval by two-thirds of all the votes entitled to be cast,
the matter must be approved by two-thirds of all the votes of each class. The
holders of the Enterprises preferred stock are entitled to 1/10 of one vote per
share, voting together with the holders of the Enterprises common stock on all
matters that the holders of the Enterprises common stock are entitled to vote
on. As permitted by the MGCL, Enterprises' charter provides that any action
which would otherwise require a greater proportion is valid and effective if
authorized by the affirmative vote of a majority of the holders of shares
entitled to vote on the action.
STOCKHOLDER ACTION BY WRITTEN CONSENT
Legacy. Under the DGCL, unless otherwise provided in a corporation's
certificate of incorporation, any action that may be taken at any annual or
special meeting of stockholders may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action, is
signed by stockholders having at least that number of votes that would have been
necessary to authorize or take the action at a meeting at which all shares
entitled to vote were present and voted.
Enterprises. Under the MGCL, any action required or permitted to be taken
at a meeting of stockholders may be taken without a meeting if the following are
filed with the records of stockholder meetings:
- an unanimous written consent which sets forth the action and is signed by
each stockholder entitled to vote on the matter, and
- a written waiver of any right to dissent signed by each stockholder
entitled to notice of the meeting but not entitled to vote at it.
SPECIAL STOCKHOLDER MEETINGS
Legacy. Legacys' bylaws provide that special meetings of stockholders of
the corporation may be called by:
- the chairman,
- the vice chairman,
- the president,
- any vice president,
- the secretary,
- any assistant secretary,
- at the written request of a majority of the entire board of directors, or
- at the written request of stockholders owning a majority of the capital
stock of Legacy and entitled to vote.
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Enterprises. Enterprises' bylaws provide that special meetings of the
stockholders may be called by:
- the chairman of the board,
- the president,
- a majority of the board of directors by vote at a meeting or in writing,
or
- the secretary at the written request of stockholders entitled to cast at
least a majority of the votes entitled to be cast at the meeting.
INSPECTION RIGHTS
Legacy. A stockholder of a Delaware corporation may inspect the
stockholder list and any stockholder making a written demand may inspect any
other corporate books and records for any purpose reasonably related to such
person's interest as a stockholder.
Enterprises. One or more persons who have been holders of record for more
than six months of at least 5% of the outstanding stock of any class of a
Maryland corporation are entitled to inspect and copy the corporation's books of
account and stock ledger and receive a written statement of the corporation's
affairs and a verified list of stockholders.
NUMBER AND ELECTION OF DIRECTORS
Legacy. The minimum number of directors of a Delaware corporation is one.
The DGCL provides that the number of directors shall be fixed by, or in the
manner provided in, the bylaws, unless the certificate of incorporation fixes
the number of directors, in which case the number of directors may be changed
only by amendment of the certificate of incorporation. In addition, the DGCL
permits, but does not require, a classified board of directors, with staggered
terms under which one-half or one-third of the directors are elected for terms
of two or three years, respectively. Directors of a Delaware corporation are
elected by a plurality vote of the shares present in person or represented by
proxy at a stockholders meeting and entitled to vote on the election of
directors. Legacy's bylaws provide that Legacy's board of directors determines
the number of directors comprising the board of directors, but that there must
not be less than three directors. The current number of directors is seven.
Enterprises. The minimum number of directors of a Maryland corporation
having three or more stockholders is three. The number of directors is provided
by the charter until changed by the bylaws. The bylaws may both alter the number
of directors set by the charter, and authorize a majority of the entire board of
directors to alter within specified limits the number of directors set by the
charter or the bylaws, but the action may not affect the tenure of office of any
director.
In addition, the MGCL permits, but does not require, the board of directors
to be classified. If the directors are divided into classes, the term of office
may be provided in the bylaws, except that the term of office of a director may
not be longer than five years or, except in the case of an initial or substitute
director, shorter than the period between annual meetings. The term of office of
at least one class must expire
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each year. Each share of stock may be voted for as many individuals as there are
directors to be elected and for whose election the share is entitled to be
voted. Unless the charter or bylaws provide otherwise, a plurality of all the
votes cast at a meeting at which a quorum is present is sufficient to elect a
director.
Enterprises' charter provides that the number of directors shall be six,
which number may be increased or decreased in accordance with Enterprises'
bylaws, provided that the total number of directors may not be less than the
minimum number permitted by the MGCL. Pursuant to Enterprises' bylaws, the
number of directors is fixed by Enterprises' board of directors within the
limits set forth in Enterprises' charter, provided that there may not be more
than 25 directors.
REMOVAL OF DIRECTORS
Legacy. A director of a Delaware corporation may be removed with or
without cause by the holders of a majority of shares then entitled to vote at an
election of directors, provided, that:
- when a corporation has a classified board of directors, a director may be
removed only for cause, unless the certificate of incorporation provides
otherwise,
- if a corporation has cumulative voting for the election of directors and
less than the entire board is to be removed, no director may be removed
without cause if the votes cast against his removal would be sufficient
to elect him if then cumulatively voted at an election of the entire
board of directors, or, if there is more than one class of directors, at
an election of the class of directors of which he is a member, and
- whenever the stockholders of any class or series are entitled to elect
one or more directors by the certificate of incorporation, a director
elected by a class or series may be removed by the affirmative vote of a
majority of all the votes of that class or series and not the vote of the
outstanding shares as a whole.
Enterprises. Enterprises' charter provides that, subject to the rights of
one or more classes or series of preferred stock to remove one or more director,
any director or the entire board of directors may be removed only for cause and
only by the affirmative vote of stockholders holding at least a majority of all
the votes entitled to be cast in the election of directors.
VACANCIES ON THE BOARD OF DIRECTORS
Legacy. As permitted by the DGCL, Legacy's bylaws provide that vacancies
and newly created directorships resulting from any increase in the authorized
number of directors elected by all of the stockholders having the right to vote
as a single class may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. However, if the
certificate of incorporation directs that a particular class is to elect a
director, the vacancy may be filled only by the other directors elected by that
class. If, at the time of filling any vacancy or newly created directorship, the
directors then in office constitute less than a majority of the whole board as
constituted immediately prior to the increase, the Delaware Court of Chancery
may, upon application of stockholders holding at least ten percent of the
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total number of shares outstanding having the right to vote for such directors,
order an election to be held to fill the vacancy or newly created directorship
or to replace the director chosen by the directors then in office. Under the
DGCL, unless otherwise provided in the certificate of incorporation or bylaws,
when one or more directors resigns from the board, effective at a future date, a
majority of the directors then in office, including those who have resigned,
have the power to fill the vacancy or vacancies, with that vote to take effect
when such resignation or resignations becomes effective, and each director so
chosen shall hold office as provided in the DGCL for the filling of other
vacancies.
Enterprises. Enterprises' bylaws provide that subject to the rights of the
holders of any class of stock separately entitled to elect one or more
directors, the stockholders may elect a successor to fill a vacancy on
Enterprises' board of directors resulting from the removal of a director.
Subject to the rights of the holders of any class of stock separately entitled
to elect one or more directors, a majority of the remaining directors, whether
or not sufficient to constitute a quorum, may fill a vacancy which results from
any cause, except that a vacancy which results from an increase in the number of
directors may be filled by a majority of the entire board of directors.
STANDARD OF CONDUCT
Legacy. Under Delaware law, the standards of conduct for directors have
developed through written opinions of the Delaware courts in cases decided by
them. Generally, directors of Delaware corporations are subject to a duty of
loyalty and a duty of care. The duty of loyalty has been said to require
directors to refrain from self-dealing and the duty of care requires directors
to use that amount of care which ordinarily careful and prudent persons would
use in similar circumstances. Gross negligence has been established as the test
for breach of the standard for the duty of care in the process of
decision-making by directors of Delaware corporations.
Enterprises. The standards of conduct for directors of Maryland
corporations are governed by the MGCL. Section 2-405.1 of the MGCL requires that
a director of a Maryland corporation perform his duties:
- in good faith,
- in a manner he reasonably believes to be in the best interests of the
corporation, and
- with the care of an ordinarily prudent person in a like position would
use under similar circumstances.
ADVANCE NOTICE OF DIRECTOR NOMINATIONS AND OF NEW BUSINESS PROPOSALS
Legacy. Legacy's bylaws do not provide for advance notice of director
nominations or new business proposals.
Enterprises. Enterprises' bylaws provide that with respect to an annual
meeting of stockholders, nominations of persons for election to Enterprises'
board of directors and the proposal of business to be considered by stockholders
may be made only:
- pursuant to Enterprises' notice of meeting,
- by or at the direction of the board of directors, or
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- by a stockholder who was a stockholder of record both at the time of
giving notice provided for in Enterprises' bylaws and at the time of the
annual meeting, and who is entitled to vote at the meeting and has
complied with the advance notice procedures set forth in Enterprises'
bylaws.
The advance notice provisions contained in Enterprises' bylaws generally
require that stockholders deliver nominations and new business proposals to
Enterprises' secretary not later than the close of business on the 60th day nor
earlier than the close of business on the 90th day before the date on which
Enterprises first mailed its proxy materials for the prior year's annual meeting
of stockholders.
LIMITATION OF LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS
Legacy. Under the DGCL, directors may be indemnified for liabilities
incurred in connection with specified actions (other than any action brought by
or in the right of the corporation), if they acted in good faith and in a manner
they reasonably believed to be in and not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. The same standard of
conduct is applicable for indemnification in the case of derivative actions
brought by or in the right of the corporation, except that in such cases the
DGCL authorizes indemnification only for expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such cases. Moreover,
the DGCL requires court approval before there can be any such indemnification
where the person seeking indemnification has been found liable to the
corporation in a derivative action. To the extent that a present or former
director or officer has been successful in defense of any action, suit or
proceeding, the DGCL provides for indemnification for expenses (including
attorneys' fees). The DGCL states expressly that the indemnification provided by
or granted pursuant to the DGCL is not deemed exclusive of any non-statutory
indemnification rights existing under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
Legacy's charter and bylaws provide that every director, officer and
employee of Legacy shall be indemnified against all expenses and liabilities,
including counsel fees, reasonably incurred by or imposed upon him by reason of
his being or having been a director, officer or employee of Legacy.
Under Legacy's charter, no director shall be liable to Legacy or its
stockholders for monetary damages, for breach of fiduciary duty as a director,
except for liability:
- for any breach of the director's duty of loyalty to the corporation or
its stockholders,
- for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law,
- under section 174 of the DGCL (concerning unlawful payment of dividend or
unlawful stock purchase or redemption), or
- for any transaction from which the directors derived an improper personal
benefit.
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Enterprises. Unless a corporation's charter provides otherwise, which
Enterprises' charter does not, the MGCL requires a corporation 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 a party by reason of his service
in that capacity. The MGCL permits a corporation to advance reasonable expenses
to a director or officer. A corporation may 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 a party by reason of their service
in those or other capacities.
The MGCL does not permit a corporation to indemnify its present and former
directors and officers if it is established that:
- the act or omission of the director or officer was material to the matter
giving rise to the proceeding and was committed in bad faith or was the
result of active and deliberate dishonesty,
- the director or officer actually received an improper personal benefit in
money, property or services, or
- in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful.
Under the MGCL, a Maryland corporation generally may not indemnify for an
adverse judgment in a suit by or in the right of the corporation. Also, a
Maryland corporation generally may not indemnify for a judgment of liability on
the basis that personal benefit was improperly received. In either of these
cases, a Maryland corporation may indemnify for expenses only if a court so
orders. Enterprises' charter obligates Enterprises to indemnify its directors
and officers, whether serving Enterprises or at its request any other entity, to
the full extent required or permitted by the MGCL, including the advancement of
expenses under the procedures and to the full extent permitted by law, and other
employees and agents to such extent as authorized by its board of directors and
bylaws and as may be permitted by law. Enterprises' bylaws specify the
procedures for indemnification and advancement of expenses.
The MGCL permits a Maryland corporation to include in its charter a
provision eliminating the liability of its directors and officers to the
corporation and its stockholders for money damages. However, a Maryland
corporation may not eliminate liability resulting from actual receipt of an
improper benefit or profit in money, property or services. Also, liability
resulting from active and deliberate dishonesty may not be eliminated if a final
judgment establishes that the dishonesty is material to the cause of action.
Enterprises' charter contains a provision which eliminates liability of
directors and officers to the maximum extent permitted by the MGCL.
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DECLARATION OF DIVIDENDS
Legacy. Under the DGCL, a corporation is permitted to declare and pay
dividends out of surplus (as defined in the DGCL) or, if there is no surplus,
out of net profits for the fiscal year in which the dividend is declared and/or
for the preceding fiscal year as long as the amount of capital of the
corporation following the declaration and payment of the dividend is not less
than the aggregate amount of the capital represented by the issued and
outstanding stock of all classes having a preference upon the distribution of
assets. Dividends may be paid in cash, property or shares of a corporation's
capital stock. In addition, the DGCL generally provides that a corporation may
redeem or repurchase its shares only if such redemption or repurchase would not
impair the capital of the corporation.
Enterprises. Under the MGCL, if authorized by its board of directors, a
Maryland corporation may declare and pay dividends subject to any restriction in
its charter unless, after giving effect to the dividend:
- the corporation would not be able to pay indebtedness of the corporation
as the indebtedness becomes due in the usual course of business, or
- the corporation's total assets would be less than the sum of the
corporation's total liabilities plus, unless the charter permits
otherwise, the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential
rights upon dissolution of the stockholders whose preferential rights on
dissolution are superior to those receiving the dividend.
APPRAISAL RIGHTS
Legacy. Under the DGCL, the right to receive the fair value of dissenting
shares is made available to stockholders of a constituent corporation in a
merger or consolidation effected under the DGCL. Dissenters' rights of appraisal
are not available for the shares of any class or series of stock, if the stock,
or depository receipts in respect thereof, were at the record date fixed to
determine stockholders entitled to receive notice and vote on such transaction,
either:
- listed on a national securities exchange or designated as a national
market system security on an interdealer quotation system by the National
Association of Security Dealers, Inc., or
- held of record by more than 2,000 holders.
Further, no appraisal rights are available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require for its
approval the vote of the stockholders of the surviving corporation as provided
by the DGCL. Notwithstanding the foregoing, unless limited or held of record by
more than 2,000 persons, appraisal rights under the DGCL are available for the
shares of any class or series of stock of a corporation if the holders thereof
are required by the terms of an agreement of merger or consolidation pursuant to
the DGCL to accept for such stock anything except:
- shares of stock of the corporation surviving or resulting from such
merger or consolidation, or depository receipts in respect thereof,
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- shares of stock of any other corporation, or depository receipts in
respect thereof, which shares of stock or depository receipts in respect
thereof will be either listed on a national securities exchange or
designated as a national market system security on an interdealer
quotation system by the National Association of Securities Dealers, Inc.,
or held of record by more than 2,000 holders,
- cash in lieu of fractional shares, or
- any combination of the shares of stock, depository receipts and cash in
lieu of such fractional shares.
Enterprises. Under the MGCL, a stockholder of a Maryland corporation has
the right to demand and receive payment of the fair value of the stockholder's
stock from the corporation if the corporation consolidates or merges with
another corporation, the corporation sells all of its assets or, if not
permitted by its charter, the Corporation amends it charter to substantially
affect the Stockholders' contract rights, unless:
- the stock is listed on a national securities exchange or is designated as
a national market system security on an interdealer quotation system by
the National Association of Securities Dealers, Inc., or
- the stock is that of the successor in a merger, unless
- the merger alters the contract rights of the stock as expressly set
forth in the charter, and the charter does not reserve the right to
do so, or
- the stock is to be changed or converted in whole or in part in the
merger into something other than either stock in the successor or
cash, scrip, or other rights or interests arising out of the
provisions for the treatment of fractional shares of stock in the
successor.
MERGER, CONSOLIDATION, SHARE EXCHANGE AND TRANSFER OF ALL OR SUBSTANTIALLY ALL
ASSETS
Legacy. Under the DGCL, the principal terms of a merger or consolidation
generally require the approval of the stockholders of each of the constituent
corporations. Unless otherwise required in a corporation's certificate of
incorporation, the DGCL does not require a stockholder vote of the surviving
corporation in a merger if:
- the agreement of merger does not amend in any respect the certificate of
incorporation of the corporation,
- each share of stock of the corporation outstanding immediately prior to
the effective date of the merger is to be an identical outstanding or
treasury share of the surviving corporation after the effective date of
the merger, and
- either no shares of common stock of the surviving corporation and no
shares, securities or obligations convertible into common stock are to be
issued or delivered under the plan of merger, or the number of authorized
unissued shares or the treasury shares of common stock of the surviving
corporation to be issued or delivered under the plan of merger, plus
those initially issuable upon conversion of any other shares, securities
or obligations to be issued or
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delivered under the plan, do not exceed 20% of the number of shares of
common stock outstanding immediately prior to the effective date of the
merger, or
- the merger is of a subsidiary into a parent, provided the parent owns at
least 90% of the subsidiary.
When a stockholder vote is required under the DGCL to approve a merger or
consolidation, unless the certificate of incorporation provides otherwise (which
Legacy's charter does not), the affirmative vote of a majority of the
outstanding stock entitled to vote on the merger or consolidation shall be
required to approve the merger or consolidation. If multiple classes of stock
are entitled to vote on the merger or consolidation as separate classes, then a
majority of each class entitled to vote to approve the merger or consolidation,
voting separately as a class, shall be required to approve the merger or
consolidation.
The board of directors or governing body of a Delaware corporation may take
action to sell, lease or exchange all or substantially all of the property and
assets of the corporation, including the corporation's goodwill and corporate
franchises, upon such terms and conditions and for such consideration, which may
consist of money or other property, including shares of stock or other
securities of any other corporation as it deems expedient and for the best
interests of the corporation, when authorized by the holders of a majority of
the outstanding stock of the corporation entitled to vote on the matter.
Enterprises. The MGCL generally provides that mergers, consolidations,
share exchanges or transfers of assets must first be advised by a majority of
the board of directors and thereafter approved by stockholders by the
affirmative vote of two-thirds of all the votes entitled to be cast on the
matter, unless the charter provides for a greater or lesser stockholder vote,
but not less than a majority of the number of votes entitled to be cast on the
matter. However, some mergers may be accomplished without a vote of
stockholders. For example, no stockholder vote is required for a merger of a
subsidiary of a Maryland corporation into its parent, provided the parent owns
at least 90% of the subsidiary. In addition, a merger need not be approved by
stockholders of a Maryland successor corporation if the merger does not
reclassify or change the outstanding shares or otherwise amend the charter, and
the number of shares to be issued or delivered in the merger is not more than
20% of the number of its shares of the same class or series outstanding
immediately before the merger becomes effective. A share exchange need be
approved by a Maryland successor only by its board of directors and by any other
action required by its charter. Enterprises' charter requires that any merger,
consolidation, share exchange or transfer of assets requiring stockholder
approval be approved by a majority vote of all votes entitled to be cast on the
matter.
98
<PAGE> 105
CHANGE IN CONTROL PURSUANT TO DELAWARE/MARYLAND LAW
Legacy. Section 203 of the DGCL provides that, subject to exceptions
specified therein, a corporation will not engage in any business combination
with any "interested stockholder" for a three-year period following the time
that such stockholder becomes an interested stockholder unless:
- prior to such time the board of directors of the corporation approved
either the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder,
- upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time
the transaction commenced (excluding for purposes of determining the
number of shares outstanding those shares owned by persons who are
directors and also officers, and employee stock plans in which employee
participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange
offer), or
- at or subsequent to such time the business combination is approved by the
board of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at
least 66 2/3% of the outstanding voting stock which is not owned by the
interested stockholder.
Except as specified in Section 203 of the DGCL, an interested stockholder
is defined to include any person that:
- is the owner of 15% or more of the outstanding voting stock of the
corporation,
- is an affiliate or associate of the corporation and was the owner of 15%
or more of the outstanding voting stock of the corporation at any time
within the 3-year period immediately prior to the date on which it is
sought to be determined whether such person is an interested stockholder,
or
- the affiliates and associates of such person.
Section 203(b)(4) of the DGCL exempts from the restrictions in Section 203
a corporation that does not have a class of voting stock that is:
- listed on a national securities exchange,
- authorized for quotation on The Nasdaq Stock Market,
- held of record by more than 2,000 stockholders, unless any of the
foregoing results from action taken, directly or indirectly, by an
interested stockholder or from a transaction in which a person becomes an
interested stockholder.
Enterprises. Under the MGCL, "business combinations" between a Maryland
corporation and an interested stockholder or an affiliate of an interested
stockholder are prohibited for five years after the most recent date on which
the interested stockholder becomes an interested stockholder. These business
combinations include a merger, consolidation, share exchange, or, in
circumstances specified in the statute, an
99
<PAGE> 106
asset transfer or issuance or reclassification of equity securities. An
interested stockholder generally includes:
- any person who beneficially owns 10% or more of the voting power of the
corporation's shares, or
- an affiliate of the corporation who, at any time within the two-year
period prior to the date in question, was the beneficial owner of 10% or
more of the voting power of the then outstanding voting stock of the
corporation.
After the five-year prohibition, any business combination between the
Maryland corporation and an interested stockholder generally must be recommended
by the board of directors of the corporation and approved by two super-majority
stockholder votes, unless, among other conditions, the holders of common stock
receive a minimum price, as defined by the MGCL, for their shares and the
consideration is received in cash or in the same form as previously paid by the
interested stockholder for its common stock. None of these provisions of the
MGCL will apply, however, to business combinations that are approved or exempted
by the board of directors of the corporation prior to the time that the
interested stockholder becomes an interested stockholder.
Also under the MGCL, "control shares" of a Maryland corporation acquired in
a "control share acquisition" have no voting rights except to the extent
approved by a vote of two-thirds of the votes entitled to be cast on the matter.
Shares of stock owned by the acquiror, by officers or by directors who are
employees of the corporation are excluded from shares entitled to vote on the
matter. "Control shares" are voting shares of stock which, if aggregated with
all other shares of stock owned by the acquiror or shares of stock for which the
acquiror is able to exercise or direct the exercise of voting power except
solely by virtue of a revocable proxy, would entitle the acquiror to exercise
voting power in electing directors within one of the following ranges of voting
power:
- one-fifth or more but less than one-third,
- one-third or more but less than a majority, or
- a majority or more of all voting power.
Control shares do not include shares the acquiring person is then entitled
to vote as a result of having previously obtained stockholder approval. Except
as otherwise specified in the statute, a "control share acquisition" means the
acquisition of control shares.
Once a person who has made or proposes to make a control share acquisition
has undertaken to pay expenses and satisfied other conditions, the person may
compel the board of directors to call a special meeting of stockholders to be
held within 50 days of demand to consider the voting rights of the shares. If no
request for a meeting is made the corporation may itself present the question at
any stockholders meeting.
If voting rights are not approved at the meeting or if the acquiring person
does not deliver an acquiring person statement as required by the statute, then,
subject to the conditions and limitations in the statute, the corporation may
redeem any or all of the control shares for fair value, except for control
shares for which voting rights previously have been approved. Fair value is
determined without regard to the absence
100
<PAGE> 107
of voting rights for control shares, as of the date of the last control share
acquisition or of any meeting of stockholders at which the voting rights of
control shares are considered and not approved. If voting rights for control
shares are approved at a stockholders meeting and the acquiror becomes entitled
to vote a majority of the shares entitled to vote, all other stockholders may
exercise appraisal rights. The fair value of the shares as determined for
purposes of these appraisal rights may not be less than the highest price per
share paid in the control share acquisition. Some of the limitations and
restrictions otherwise applicable to the exercise of dissenters' rights do not
apply in the context of a control share acquisition.
The control share acquisition statute does not apply to shares acquired in
a merger, consolidation or share exchange if the corporation is a party to the
transaction or to acquisitions approved or exempted by the charter or bylaws of
the corporation.
Pursuant to the MGCL, Enterprises' board of directors has adopted a
resolution providing that the "business combination" provisions of Maryland law
shall not apply to any "business combination" with Enterprises. Enterprises'
bylaws contain a provision exempting from the control share acquisition statute
any and all acquisitions by any person of shares of stock of Enterprises. There
can be no assurance, however, that Enterprises' board of directors will not
rescind the resolution or amend the bylaws in the future to provide that the
"business combination" and "control share acquisition" provisions of the MGCL
apply to Enterprises, except that Enterprises' board has irrevocably exempted
Legacy from the operation and effect of the business combination provisions of
the MGCL.
101
<PAGE> 108
SUMMARY SELECTED FINANCIAL DATA OF LEGACY
The selected financial data presented below as of July 31, 1998 and for the
period from November 17, 1997 (inception) to July 31, 1998 have been derived
from the audited financial statements of Legacy. The selected financial data
presented below as of December 31, 1998 and March 31, 1999 and for the five
months ended December 31, 1998 and the three months ended March 31, 1999 have
been derived from the unaudited financial statements of Legacy. The selected
financial data presented below as of July 31, 1997, 1996 and 1995 and for each
of the three years in the period ended July 31, 1997 have been derived from the
audited financial statements of the Excel Legacy Corporation Asset Group. The
selected financial data presented below for the eight months ended March 31,
1998 have been derived from the unaudited condensed financial statements of the
Excel Legacy Asset Group. In the opinion of our management, the unaudited
financial statements have been prepared on the same basis as the audited
financial statements and include all adjustments, which consist only of normal
recurring adjustments, necessary for a fair presentation of the financial
position and the results of operations for these periods. Operating results for
the three month period ended March 31, 1999 are not necessarily indicative of
the results that may be expected for the full year ending December 31, 1999. The
data below should be read in conjunction with our Annual Report on Form 10-K for
the fiscal year ended July 31, 1998, as amended, our Transition Report on Form
10-Q for the five months ended December 31, 1998, and our Quarterly Report on
Form 10-Q for the three months ended March 31, 1999, as amended, each of which
is incorporated herein by reference.
<TABLE>
<CAPTION>
PERIOD FROM
THREE MONTHS FIVE MONTHS INCEPTION EIGHT MONTHS
ENDED ENDED (NOVEMBER 17, ENDED YEAR ENDED JULY 31,
MARCH 31, DECEMBER 31, 1997) TO MARCH 31, ------------------------
1999 1998 JULY 31, 1998 1998 1997 1996 1995
------------ ------------ ------------- ------------ ------ ------ ------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED STATEMENT OF
OPERATIONS DATA:
Total revenue................. $ 9,217 $ 15,010 $ 8,145 $ 3,757 $6,395 $5,032 $5,897
Total operating expenses...... (8,904) (13,754) (5,267) (3,149) (4,565) (4,513) (4,803)
Net income before income
taxes....................... 313 1,256 2,878 2,385) 1,830 519 1,794
Provision of income taxes..... (139) (535) (1,143) 946 (729) (207) (515)
Net income.................... 174 721 1,735 1,419 1,101 312 779
Earnings before depreciation,
amortization and deferred
taxes ("EBDADT")............ 1,405 2,712 3,001 N/A N/A N/A N/A
Earnings before income taxes,
depreciation and
amortization ("EBITDA")..... 3,534 5,819 5,453 N/A N/A N/A N/A
Net income per share:
Basic....................... $ 0.01 $ 0.02 $ 0.11 N/A N/A N/A N/A
Diluted..................... 0.00 0.01 0.07 N/A N/A N/A N/A
Weighted average number of
shares:
Basic....................... 33,458 33,458 15,842 N/A N/A N/A N/A
Diluted..................... 54,747 54,768 25,984 N/A N/A N/A N/A
</TABLE>
<TABLE>
<CAPTION>
AS OF AS OF AS OF AS OF AS OF JULY 31,
MARCH 31, DECEMBER 31, JULY 31, MARCH 31, ---------------------------
1999 1998 1998 1998 1997 1996 1995
--------- ------------ ------------- ------------ ------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED BALANCE SHEET DATA:
Net real estate............... $191,448 $190,878 $175,756 (1) $60,350 $61,048 $56,184
Total assets.................. 270,138 261,296 246,916 (1) 83,687 62,169 59,388
Mortgages and notes payable... 99,694 90,986 72,714 (1) 35,115 36,754 38,224
Stockholders' equity.......... 166,814 166,640 165,919 (1) -- -- --
Investment by Excel Realty
Trust....................... -- -- -- (1) 48,344 25,162 20,903
</TABLE>
- -------------------------
(1) Not applicable as assets were spun-off to Legacy at March 31, 1998.
102
<PAGE> 109
SUMMARY SELECTED FINANCIAL DATA OF ENTERPRISES
The selected financial data presented below as of August 31, 1994, 1995,
1996, and 1997 and as of December 31, 1997 and 1998, and for the twelve months
ended August 31, 1994, 1995, 1996, and 1997, the four months ended December 31,
1997 and the twelve months ended December 31, 1998 have been derived from the
audited financial statements of Enterprises. The selected financial data
presented below as of March 31, 1999 and for the three months ended March 31,
1999 have been derived from the unaudited financial statements of Enterprises.
In the opinion of Enterprises' management, the unaudited financial statements
have been prepared on the same basis as the audited financial statements and
include all adjustments, which consist only of normal recurring adjustments,
necessary for a fair presentation of the financial position and the results of
operations for these periods. Operating results for the three month period ended
March 31, 1999 are not necessarily indicative of the results that may be
expected for the full year ending December 31, 1999. The data below should be
read in conjunction with Enterprises' Annual Report on Form 10-K for the year
ended December 31, 1998, as amended, and Enterprises' Quarterly Report on Form
10-Q for the quarter ended March 31, 1999, each of which is incorporated herein
by reference.
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED AUGUST 31
ENDED YEAR ENDED FOUR MONTHS ENDED -------------------------------------
MARCH 31, 1999 DECEMBER 31, 1998 DECEMBER 31, 1997 1997 1996 1995 1994
-------------- ----------------- ----------------- ------- ------- ------- -------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED STATEMENT OF
OPERATIONS DATA:
Rental revenues........... $17,427 $62,485 $18,170 $56,838 $56,221 $51,897 $30,316
Operating income (loss)... 9,089 31,393 9,045 22,422 5,829 16,635 (74,711)
Income (loss) from
continuing operations... 7,565 29,429 17,508 19,085 8,340 13,297 (40,596)
Discontinued operations... -- -- -- (4,860) (8,250) (12,751) (883)
Net income................ 7,565 29,429 17,508 14,225 90 546 (41,479)
Dividends paid to
preferred
stockholders............ (8,316) (8,316) -- -- -- -- --
Net income applicable to
common stockholders..... (751) 21,113 17,508 14,225 90 546 (41,479)
Net income (loss) per
common share from
continuing
operations -- basic..... (.06) .97 .74 .82 .36 .53 (1.50)
Cash dividends per
share................... .35 1.40 .35 1.20 -- .08 --
</TABLE>
<TABLE>
<CAPTION>
AS OF
DECEMBER 31 AS OF AUGUST 31
AS OF ------------------- -------------------------------------------
MARCH 31, 1999 1998 1997 1997 1996 1995 1994
-------------- -------- -------- -------- -------- -------- ----------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED BALANCE SHEET DATA
Real estate assets, net............... $422,570 $418,507 $353,056 $337,139 $337,098 $330,443 $ 405,966
Total assets.................... 457,779 457,352 408,478 403,757 540,325 555,994 591,511
Long-term debt........................ 8,895 8,923 -- -- -- 15,425 --
Stockholders' equity.................. 344,088 344,811 406,624 396,476 532,899 532,085 578,788(1)
Book value per common share........... (.70) (.65) 17.13 16.78 22.88 22.90 21.44
</TABLE>
- -------------------------
(1) Amount represents investment by Costco prior to the spin-off of Enterprises.
103
<PAGE> 110
EXCEL LEGACY CORPORATION
UNAUDITED PRO FORMA OPERATING AND FINANCIAL INFORMATION
The following tables set forth summary consolidated pro forma operating and
financial information of Legacy for the three months ended March 31, 1999 and
the twelve months ended December 31, 1998 as if the exchange offer had been
consummated on March 31, 1999 for balance sheet data and January 1, 1998 for
income statement data.
The pro forma data included herein may not be indicative of the actual
results or financial position had the exchange offer been consummated on the
dates indicated. You should read this information in connection with, and such
information is qualified in its entirety by, the financial statements and
accompanying notes of Legacy and Enterprises incorporated by reference in this
prospectus. For additional information see "Summary Selected Financial Data of
Legacy," "Summary Selected Financial Data of Enterprises" and "Where You Can
Find More Information."
Upon consummation of the exchange offer, the actual financial position and
results of operations of Legacy will differ, perhaps materially, from the pro
forma amounts reflected herein due to a variety of factors, including changes in
operating results between the dates of the pro forma financial information and
the time the exchange offer is consummated, as well as the factors discussed in
"Risk Factors."
104
<PAGE> 111
EXCEL LEGACY CORPORATION
PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
PRO
HISTORICAL PRO FORMA FORMA
MARCH 31, 1999 ADJUSTMENTS TOTALS
-------------- ----------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
ASSETS
Real estate, net...................... $191,448 $(30,058)(2C) $161,390
Cash.................................. 1,775 (618)(2C) 1,157
Accounts receivable, net.............. 169 (47)(2C) 122
Notes receivable...................... 23,239 -- 23,239
Investment in Enterprises............. -- 121,000 (2B) 121,000
Investment in partnerships............ 12,829 19,837 (2C) 32,666
Interest receivable................... 6,187 -- 6,187
Pre-development costs................. 19,302 (1,000)(2C) 18,302
Other assets.......................... 9,043 (3,952)(2C) 5,091
Deferred tax asset.................... 6,146 -- 6,146
-------- -------- --------
Total assets................ $270,138 $105,162 $375,300
======== ======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Mortgages and notes payable
(including Legacy debentures and
Legacy notes).................... $ 99,694 $121,000 (2B) $205,586
(15,108)(2C)
Accounts payable, accrued expenses
and other liabilities............ 2,782 (730)(2C) 2,052
-------- -------- --------
Total liabilities........... 102,476 105,162 207,638
Minority interests.................... 848 -- 848
Stockholders' Equity:
Preferred stock..................... 213 -- 213
Common stock........................ 335 -- 335
Additional paid-in capital.......... 174,508 -- 174,508
Retained earnings................... 2,630 -- 2,630
Notes receivable from affiliates for
common shares.................... (10,872) -- (10,872)
-------- -------- --------
Total stockholders'
equity................... 166,814 -- 166,814
-------- -------- --------
Total liabilities and
stockholders' equity..... $270,138 $105,162 $375,300
======== ======== ========
</TABLE>
See accompanying notes to unaudited pro forma consolidated condensed financial
statements.
105
<PAGE> 112
EXCEL LEGACY CORPORATION
PRO FORMA CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS TWELVE MONTHS
HISTORICAL ENDED HISTORICAL ENDED
THREE MONTHS MARCH 31, TWELVE MONTHS DECEMBER 31,
ENDED 1999 ENDED 1998
MARCH 31, PRO FORMA PRO FORMA DECEMBER 31, PRO FORMA PRO FORMA
1999 ADJUSTMENTS RESULTS 1998 ADJUSTMENTS RESULTS
------------ ----------- ------------ ------------- ----------- -------------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Rental....................... $ 3,312 $ -- $ 3,312 $ 9,932 $ -- $ 9,932
Operating income............. 4,896 (4,275)(3C) 622 9,402 (7,756)(3C) 1,646
Interest income and other
revenues................... 1,009 -- 1,009 3,821 (15) 3,807
Equity income from investment
in Enterprises............. -- 240 (3B) 240 -- 447 (3B) 447
------- ------- ------- ------- ------- -------
Total revenue.......... 9,217 (4,035) 5,183 23,155 7,324 15,832
------- ------- ------- ------- ------- -------
Operating expenses:
Interest..................... 2,025 2,774 (3A) 4,379 4,163 11,090 (3A) 14,905
(419)(3C) (348)(3C)
Depreciation and
amortization............... 1,196 (334)(3C) 862 2,975 (550)(3C) 2,425
Property operating
expenses................... 482 -- 482 2,561 -- 2,561
Operating expenses........... 2,511 (1,809)(3C) 702 5,783 (4,745)(3C) 1,038
General and administrative... 2,690 (1,909)(3C) 781 3,539 (1,993)(3C) 1,546
------- ------- ------- ------- ------- -------
8,904 (1,699) 7,206 19,021 3,454 22,475
------- ------- ------- ------- ------- -------
Income (loss) before income
taxes........................ 313 (2,337) (2,023) 4,134 (10,778) (6,643)
Provision (benefit) for income
taxes........................ 139 (1,348) (1,204) 1,678 (1,678) --
------- ------- ------- ------- ------- -------
Net income (loss) applicable to
common shares................ $ 174 $ (989) $ (814) $ 2,456 $(9,100) $(6,644)
======= ======= ======= ======= ======= =======
Earnings before depreciation
amortization and deferred
taxes(4)..................... $ 1,405 $ 635 $ 2,091 $ 5,713 $(3,593) $ 2,121
======= ======= ======= ======= ======= =======
Basic net income (loss) per
common share................. 0.01 -- (0.02) 0.10 -- (0.26)
Diluted net income (loss) per
common share................. 0.00 -- (0.01) 0.06 -- (0.16)
Weighted average basic number
of common shares
outstanding.................. 33,458 -- 33,458 25,205 -- 25,205
Weighted average diluted number
of common shares
outstanding.................. 54,747 -- 54,747 41,312 -- 41,312
</TABLE>
See accompanying notes to unaudited pro forma consolidated condensed financial
statements.
106
<PAGE> 113
EXCEL LEGACY CORPORATION
NOTES AND MANAGEMENT'S ASSUMPTIONS TO
PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
1. SUMMARY OF ACCOUNTING TREATMENT
For accounting purposes, neither Legacy nor Enterprises will recognize a
gain or loss as a result of the exchange offer. Enterprises will, however,
expense its costs related to the exchange offer. We will account for our
purchase of the Enterprises common stock under the equity method. Pursuant to
the equity method, we will report our investment as a one-line item on our
balance sheet and our equity in the earnings or loss of Enterprises as a
one-line item on our statement of income. We will not consolidate the accounts
of Enterprises because the holders of the Enterprises preferred stock will be
entitled to elect a majority of Enterprises' board of directors following the
consummation of the exchange offer. However, if one of the conditions occurs
which terminates the right of the holders of the Enterprises preferred stock to
elect a majority of Enterprises' board, we may be able to consolidate the
accounts of Enterprises at that time.
The historical results of Enterprises have been adjusted to reflect pro
forma results of the application of purchase accounting. Our equity earnings in
Enterprises reflect Enterprises' pro forma results of operations.
2. ADJUSTMENTS TO PRO FORMA CONSOLIDATED BALANCE SHEET
(A) Certain reclassifications have been made to our historical balance
sheets to conform to the desired pro forma condensed balance sheet presentation.
The funds used to acquire the shares of the Enterprises common stock have been
assumed to come from new debt issuances.
(B) Represents the estimated assumed purchase price of shares of the
Enterprises common stock as follows (in thousands, except per share amounts):
<TABLE>
<CAPTION>
SHARES VALUE PER TOTAL
OUTSTANDING SHARE CONSIDERATION
----------- --------- -------------
<S> <C> <C> <C>
Enterprises common stock.............. 13,298 $8.50 $113,033
Estimated transaction costs........... 7,967
--------
$121,000
========
</TABLE>
Estimated fees and expenses related to the transaction are as follows (in
thousands):
<TABLE>
<S> <C>
Severance of Enterprises' personnel(1)...................... $2,098
Exercise and payment of stock options....................... 3,141
Accounting and legal........................................ 200
Other costs................................................. 2,528
------
$7,967
======
</TABLE>
- -------------------------
(1) Assumes that all personnel will be terminated following the exchange offer,
which is not presently intended.
107
<PAGE> 114
The purchase price of shares of the Enterprises common stock is assumed to
be provided by the following sources (in thousands):
<TABLE>
<S> <C>
9.0% Convertible Redeemable Subordinated Debentures due 2004
described herein.......................................... $ 36,571
10.0% Senior Redeemable Notes due 2004 described herein..... 19,948
Other debt assumed to be issued to provide funds for the
transaction
(see footnote 3).......................................... 64,481
--------
$121,000
========
</TABLE>
(C) Certain adjustments have been made to our historical balance sheet to
reflect the sale of existing Millennia assets.
3. ADJUSTMENTS TO PRO FORMA CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(A) Certain reclassifications have been made to our historical balance
sheets to conform to the desired pro forma condensed balance sheet presentation.
The funds used to acquire the shares of the Enterprises common stock have been
assumed to come from various new debt issuances with approximately $19.9 million
bearing an average interest rate of 10.0% per annum and approximately $101.1
million bearing an average interest rate of 9.0% per annum.
(B) Below is a reconciliation of our pro forma equity income from our
investment in Enterprises (in thousands):
<TABLE>
<S> <C>
THREE MONTHS ENDED MARCH 31, 1999:
Net loss applicable to common stockholders.................. $ (751)
Adjustment to depreciation(1)............................... 867
Adjustment to amortization(2)............................... 183
Decrease in estimated general and administrative costs(3)... 516
Effect of sale of two properties in April, 1999(4).......... (575)
-------
Equity income from investment in Enterprises................ $ 240
=======
TWELVE MONTHS ENDED DECEMBER 31, 1998:
Net income applicable to common stockholders................ $21,113
Pro forma effect of preferred distributions................. (24,948)
Adjustment to depreciation(1)............................... 2,859
Adjustment to amortization(2)............................... 717
Decrease in estimated general and administrative costs(3)... 1,922
Effect of sale of two properties in April, 1999(4).......... (1,216)
-------
Equity income from investment in Enterprises................ $ 447
=======
</TABLE>
- -------------------------
(1) In accordance with the purchase method of accounting, the purchase
price of the Enterprises common stock has been allocated among the
assets and liabilities of Enterprises based upon respective fair
values. As such, the basis in Enterprises' real estate has been
changed. Accordingly, the depreciation lives used for depreciation has
been changed from 25 years to 40 years in accordance with Legacy's
accounting policy.
108
<PAGE> 115
(2) In accordance with the purchase method of accounting, deferred leasing
costs, which were being amortized over the life of related tenant
leases, were written off.
(3) The decrease in general and administrative costs reflects: (a)
Enterprises' salaries and related expenses from personnel, including
senior management, who will be severed upon consummation of the
transaction; (b) Enterprises' actual corporate expenses that are not
expected to be incurred subsequent to the exchange offer as
Enterprises' offices will be consolidated with Legacy's offices.
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED
MARCH 31, 1999 DECEMBER 31, 1998
------------------ -----------------
<S> <C> <C>
Salaries related to senior
management and other personnel
to be severed................. $345 $1,349
Corporate expenses not expected
to be incurred due to
consolidation of offices...... 171 573
Decrease in estimated general
and administrative expenses... $516 $1,922
==== ======
</TABLE>
(4) Due to the sale of the Dallas, Texas and Buffalo, New York properties
in April 1999, net income is reduced by the operating income derived
from those properties during the period.
(C) Certain adjustments have been made to adjust our historical operating
results to reflect the sale of existing Millennia assets.
4. EARNINGS BEFORE DEPRECIATION, AMORTIZATION AND DEFERRED TAXES
We calculate Earnings Before Depreciation, Amortization and Deferred Taxes
("EBDADT") as net income, plus depreciation and amortization on real estate and
real estate related assets (including depreciation and amortization of
Enterprises), amortized leasing commission costs and certain non-recurring
items. EBDADT does not represent cash flows from operations as defined by
generally accepted accounting principles, and may not be comparable to other
similarly titled measures of other companies. We believe, however, that to
facilitate a clear understanding of our operating results, EBDADT should be
examined in conjunction with our net income as reductions for certain items are
not meaningful in evaluating income-producing real estate.
109
<PAGE> 116
PRICE ENTERPRISES, INC.
UNAUDITED PRO FORMA OPERATING AND FINANCIAL INFORMATION
The following tables set forth summary pro forma operating and financial
information of Enterprises for the three months ended March 31, 1999 and the
twelve months ended December 31, 1998 as if the exchange offer had been
consummated on March 31, 1999 for balance sheet data and January 1, 1998 for
income statement data.
The pro forma data included herein may not be indicative of the actual
results or financial position had the exchange offer been consummated on the
dates indicated. You should read this information in connection with, and such
information is qualified in its entirety by, the financial statements and
accompanying notes of Enterprises incorporated by reference in this prospectus.
For additional information see "Summary Selected Financial Data of Legacy,"
"Summary Selected Financial Data of Enterprises" and "Where You Can Find More
Information."
Upon consummation of the exchange offer, the actual financial position and
results of operations of Legacy will differ, perhaps materially, from the pro
forma amounts reflected herein due to a variety of factors, including changes in
operating results between the dates of the pro forma financial information and
the time the exchange offer is consummated, as well as the factors discussed in
"Risk Factors."
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PRICE ENTERPRISES, INC.
PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
(UNAUDITED)
<TABLE>
<CAPTION>
HISTORICAL PRO FORMA PRO FORMA
MARCH 31, 1999 ADJUSTMENTS TOTALS
-------------- ----------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
ASSETS
Real estate, net..................... $422,570 $150,139 (2B) $572,709
Investment in joint venture.......... 4,210 -- 4,210
Cash................................. 338 -- 338
Accounts receivable, Net............. 1,721 -- 1,721
Deferred rents....................... 15,580 (15,580)(2C) --
Deferred leasing costs, net.......... 4,243 (4,243)(2C) --
Prepaid expenses and other assets.... 1,377 -- 1,377
Income taxes receivable.............. 7,740 -- 7,740
-------- -------- --------
Total assets................. $457,779 $130,316 $588,095
======== ======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities
Lines of credit and note
payable......................... $108,895 -- $108,895
Accounts payable and other
liabilities..................... 4,796 -- 4,796
-------- -------- --------
Total liabilities............ 113,691 -- 113,691
Stockholders' Equity
Preferred stock...................... 353,404 353,404
Common stock......................... 1 120,999 (2D) 121,000
Additional paid-in capital........... 957 (957) --
Accumulated deficit.................. (10,274) 10,274 --
-------- -------- --------
Total stockholders' equity... 344,088 130,316 474,404
-------- -------- --------
Total liabilities and
stockholders' equity...... $457,779 $130,316 $588,095
======== ======== ========
</TABLE>
See accompanying notes to unaudited pro forma consolidated condensed financial
statements.
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PRICE ENTERPRISES, INC.
PRO FORMA CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
HISTORICAL PRO FORMA HISTORICAL PRO FORMA
THREE MONTHS THREE MONTHS TWELVE MONTHS TWELVE MONTHS
ENDED PRO FORMA ENDED ENDED PRO FORMA ENDED
MARCH 31, 1999 ADJUSTMENTS MARCH 31, 1999 DECEMBER 31, 1998 ADJUSTMENTS DECEMBER 31, 1998
-------------- ----------- -------------- ----------------- ----------- -----------------
<S> <C> <C> <C> <C> <C> <C>
Rental revenues...... $17,427 $(1,350)(3A) $16,077 62,485 (3,680)(3A) 58,805
Operating expenses:
Depreciation and
amortization..... 3,274 (1,259)(3B)(3C) 2,015 12,471 (5,159)(3B)(3C) 7,312
Property operating
expenses......... 4,295 (566)(3C) 3,729 15,641 (881)(3C) 14,760
General and
administrative... 769 (516)(3D) 253 2,980 (1,922)(3D) 1,058
------- ------- ------- ------- -------- --------
Total
operating
expenses... 8,338 (2,341) 5,997 31,092 (7,962) 23,130
Operating
income......... 9,089 991 10,080 31,393 4,282 35,675
------- ------- ------- ------- -------- --------
Interest expense,
net................ (1,524) -- (1,524) (1,964) -- (1,964)
------- ------- ------- ------- -------- --------
Net income....... 7,565 991 8,556 29,429 4,282 33,711
------- ------- ------- ------- -------- --------
Dividends paid to
preferred
stockholders....... (8,316) -- (8,316) (8,316) (24,948)(3E) (33,264)
------- ------- ------- ------- -------- --------
Net income (loss)
applicable to
common
stockholders....... $ (751) $ 991 $ 240 $21,113 $(20,666) $ 447
======= ======= ======= ======= ======== ========
</TABLE>
See accompanying notes to unaudited pro forma consolidated condensed financial
statements.
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<PAGE> 119
PRICE ENTERPRISES, INC.
NOTES AND MANAGEMENT'S ASSUMPTIONS TO
PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
1. SUMMARY OF ACCOUNTING TREATMENT
For accounting purposes, neither Legacy nor Enterprises will recognize a
gain or loss as a result of the exchange offer. Enterprises will expense its
costs related to the exchange offer. Legacy will account for its investment in
Enterprises under the equity method.
The historical results of Enterprises have been adjusted to reflect the pro
forma results of the application of purchase accounting. In accordance with
purchase accounting, the cost basis of Legacy's investment in the common stock
of Enterprises has been allocated among Enterprises' assets and liabilities to
adjust them to fair value at the time of the consummation of the exchange offer.
The pro forma balance sheet and income statement have also been adjusted to
exclude two properties that Enterprises sold subsequent to March 31, 1999.
2. PRO FORMA ADJUSTMENTS TO CONSOLIDATED CONDENSED BALANCE SHEET
(A) Certain reclassifications have been made to Enterprises' historical
balance sheet to conform to the desired pro forma condensed balance sheet
presentation.
(B) Real estate, net
<TABLE>
<S> <C>
Fair value adjustments to land and buildings......... $ 89,833
Elimination of accumulated depreciation.............. 60,306
--------
$150,139
========
</TABLE>
(C) Deferred rents and deferred leasing costs have been adjusted to zero in
accordance with the application of purchase accounting.
(D) Represents Legacy's estimated investment or purchase price of the
common stock of Enterprises as follows:
<TABLE>
<CAPTION>
SHARES VALUE PER TOTAL
OUTSTANDING SHARE CONSIDERATION
----------- --------- -------------
<S> <C> <C> <C>
Enterprises common
stock................... 13,298 $8.50 $113,033
Estimated transaction costs......................... 7,967
--------
$121,000
========
</TABLE>
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Estimated fees and expenses related to the transaction are as follows (in
thousands):
<TABLE>
<S> <C>
Severance of Enterprises' personnel(1)................. $2,098
Exercise and payment of stock options.................. 3,141
Accounting and legal................................... 200
Other.................................................. 2,528
------
$7,967
======
</TABLE>
- -------------------------
(1) Assumes that all personnel will be terminated following the exchange offer,
which is not presently intended.
3. PRO FORMA ADJUSTMENTS TO CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(A) Rental revenues have been adjusted to exclude rental revenue from two
properties that were sold subsequent to March 31, 1999.
(B) Depreciation and amortization have been adjusted to eliminate the
historical amounts of approximately $3,274,000 and $12,471,000 for the three and
twelve months ended March 31, 1999 and December 31, 1998, respectively. The pro
forma depreciation and amortization amounts reflect the new basis of the
properties following consummation of the exchange offer and the adoption of
Legacy's accounting policy of depreciating properties over an estimated useful
life of 40 years rather than 25 years currently being used by Enterprises.
(C) Property operating expenses and depreciation and amortization have been
adjusted to reflect the pro forma effect of no longer operating the two
properties that Enterprises sold subsequent to March 31, 1999.
(D) General and administrative expenses have been adjusted to reflect the
following pro forma effects of the consummation of the exchange offer:
<TABLE>
<CAPTION>
THREE MONTHS TWELVE MONTHS
ENDED ENDED
MARCH 31, 1999 DECEMBER 31, 1998
-------------- -----------------
<S> <C> <C>
Salaries related to senior
management and other
personnel to be severed..... $345 $1,349
Corporate expenses not
expected to be incurred due
to consolidation of
offices..................... 171 573
---- ------
Decrease in estimated general
and administrative
expenses.................... $516 $1,922
==== ======
</TABLE>
(E) Preferred stock dividends were paid for one quarter during 1998. The
pro forma results for the twelve months ended December 31, 1998 have been
adjusted to reflect four quarterly dividends to the preferred stockholders.
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UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following summary describes the principal United States federal income
tax consequences to United States Holders, as defined below, of:
- an exchange of the Enterprises common stock in the exchange offer, and
- the acquisition, ownership and disposition of Legacy debentures, Legacy
notes and Legacy common stock.
The discussion is limited to holders of the Enterprises common stock
participating in the exchange offer, and does not address subsequent holders of
Legacy debentures, Legacy notes or Legacy common stock. Those stockholders who
do not participate in the exchange should not incur any United States federal
income tax liability from the exchange.
This summary is based upon the Internal Revenue Code of 1986, as amended
(the Code), existing United States Treasury Regulations promulgated thereunder,
published rulings, administrative pronouncements and judicial decisions, all as
in effect as of the date hereof and all of which are subject to changes which
could affect the tax consequences described herein, possibly on a retroactive
basis. The information set forth below, to the extent it constitutes matters of
law, summaries of legal matters, or legal conclusions, is the opinion of Latham
& Watkins, our tax counsel, as to the material United States federal income tax
consequences of the acquisition, ownership and disposition of Legacy debentures,
Legacy notes and Legacy common stock.
This summary addresses only Enterprises common stock transferred pursuant
to the exchange offer, Legacy debentures and Legacy notes received pursuant to
the exchange offer, and Legacy common stock received upon conversion of the
Legacy debentures held as capital assets. It does not address all of the tax
consequences that may be relevant to particular stockholders in light of their
personal circumstances, or to some types of stockholders such as:
- some types of financial institutions,
- dealers or traders in securities or commodities,
- insurance companies,
- "S" corporations,
- expatriates,
- Non-United States Holders, as defined below,
- tax-exempt organizations,
- persons who are subject to alternative minimum tax, or
- persons who hold stock or the Legacy debentures or Legacy notes as a
position in a "straddle" or as part of a "hedging" or "conversion"
transaction or that have a functional currency other than the United
States dollar.
This summary may not be applicable with respect to stock or debentures or notes
acquired as compensation, including the Enterprises common stock acquired upon
the exercise of stock options or which were or are subject to forfeiture
restrictions. This summary also does not address the state, local or foreign tax
consequences of
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<PAGE> 122
participating in the exchange offer or acquiring, owning and disposing of Legacy
debentures, Legacy notes, or Legacy common stock.
As used in the discussion below, the term "earnings and profits" refers to
our current or accumulated earnings and profits as determined under the Code.
There is no assurance that we will have earnings and profits for any particular
taxable year.
YOU ARE URGED TO CONSULT YOUR TAX ADVISOR AS TO THE PARTICULAR CONSEQUENCES
TO YOUR PARTICIPATION IN THE EXCHANGE OFFER AND THE ACQUISITION, OWNERSHIP AND
DISPOSITION OF LEGACY DEBENTURES, LEGACY NOTES, OR LEGACY COMMON STOCK.
A "United States Holder" is a holder of the Enterprises common stock, or
Legacy debentures, Legacy notes, or Legacy common stock, that for United States
federal income tax purposes is:
- a citizen or resident of the United States,
- a corporation or partnership created or organized in or under the laws of
the United States or any state or division thereof, including the
District of Columbia,
- an estate the income of which is subject to United States federal income
taxation regardless of its source, or
- a trust (1) the administration over which a United States court can
exercise primary supervision and (2) all of the substantial decisions of
which one or more United States persons have the authority to control and
other types of trusts considered United States Holders for federal income
tax purposes.
A "Non-United States Holder" is a holder of the Enterprises common stock,
or Legacy debentures, Legacy notes, or Legacy common stock, other than a United
States Holder.
TREATMENT OF THE EXCHANGE OFFER
An exchange of the Enterprises common stock for cash, Legacy debentures and
Legacy notes in the exchange offer by a United States Holder will be a taxable
transaction for United States federal income tax purposes and may also be a
taxable transaction under applicable state, local or foreign tax laws. In
general, for United States federal income tax purposes, each stockholder will
recognize gain or loss equal to the difference between:
- the amount of cash and the issue price of any Legacy debentures and
Legacy notes received and
- the stockholder's adjusted tax basis in the Enterprises common stock
exchanged therefor.
Assuming the Enterprises common stock constitutes a capital asset in the
hands of the stockholder, such gain or loss will be capital gain or loss. The
issue price of Legacy debentures and Legacy notes will be determined as follows.
If Legacy debentures or Legacy notes, as the case may be, are traded or deemed
traded on an established securities market on or at any time during the 60-day
period ending 30 days after the exchange date, the issue price of Legacy
debentures or Legacy notes, as the case may be, will be their fair market value
determined as of the exchange date.
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<PAGE> 123
Subject to certain limitations, Legacy debentures or Legacy notes will be deemed
so traded if, among other things, price quotations are readily available from
dealers, brokers or traders. If Legacy debentures or Legacy notes, as the case
may be, are not deemed traded under these rules, then the issue price of Legacy
debentures or Legacy notes, as the case may be, will be, assuming the
Enterprises common stock is publicly traded or deemed publicly traded within the
period described above, the fair market value of the Enterprises common stock
for which Legacy debentures or Legacy notes, as the case may be, are exchanged.
If neither Legacy debentures or Legacy notes, as the case may be, nor the
Enterprises common stock, are deemed traded, the issue price of Legacy
debentures or Legacy notes, as the case may be, will be their principal amount.
LEGACY DEBENTURES
Interest. Stated interest on the Legacy debentures will generally be
includible in a United States Holder's gross income and taxable as ordinary
income for United States federal income tax purposes at the time it is paid or
accrued, in accordance with the United States Holder's regular method of
accounting for federal income tax purposes.
Original Issue Discount. If the stated principal amount of a Legacy
debenture exceeds the issue price of the Legacy debenture, as determined above,
by more than a statutorily determined de minimis amount, a United States Holder
will be required to include the amount of such excess as income over the term of
the Legacy debenture under a constant yield method. Such excess amount is
referred to below as original issue discount, or OID.
Adjustments to Conversion Ratio. If at any time we make a distribution of
cash or property to holders of Legacy common stock that would be taxable to such
stockholders as a dividend for United States federal income tax purposes and, in
accordance with the terms of the Legacy debentures, the conversion price or
conversion ratio of the Legacy debentures is adjusted, such adjustment will
likely be deemed to be the payment of a constructive distribution to holders of
the Legacy debentures -- resulting in ordinary income, subject to a possible
dividends received deduction in the case of corporate holders -- to the extent
of our current or accumulated earnings and profits, even though such holders
receive no cash. An adjustment to the conversion price made pursuant to a bona
fide reasonable adjustment formula which has the effect of preventing the
dilution of the interest of the holders of the Legacy debentures and which is
not made to compensate them for taxable distributions of cash or property on any
of the outstanding Legacy common stock or any convertible securities, generally
will not result in constructive distribution. For example, a decrease in the
conversion price in the event of distributions of indebtedness or assets of
Legacy will generally result in a deemed distribution to holders of the Legacy
debentures, but a decrease in the event of stock dividends or the distribution
of rights to subscribe for Legacy common stock ordinarily would not.
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<PAGE> 124
Sale, Exchange, Redemption or Retirement of a Legacy Debenture. Except as
provided below under "-- Conversion of Legacy Debentures into Legacy Common
Stock," each United States Holder generally will recognize gain or loss upon the
sale, exchange, redemption, retirement or other taxable disposition of Legacy
debentures measured by the difference, if any, between:
- the amount of cash and the fair market value of any property
received -- except to the extent that such cash or other property is
attributable to the payment of accrued interest not previously included
in income, which amount will be taxable as ordinary income, and
- such holder's adjusted tax basis in the Legacy debentures.
The initial basis in a Legacy debenture will be equal to its issue price,
as determined above. If a Legacy debenture is issued with more than a de minimis
amount of OID, its basis would be increased by the amount of accrued OID and
decreased by the amount of any payment on the Legacy debenture other than
payment of stated interest. Except as noted immediately above, any such gain or
loss recognized on the sale, exchange, redemption, retirement or other taxable
disposition of Legacy debentures will be capital gain or loss.
Conversion of Legacy Debentures into Legacy Common Stock. A United States
Holder generally will not recognize any income, gain or loss upon conversion of
a Legacy debenture into Legacy common stock except to the extent the Legacy
common stock is considered attributable to accrued interest not previously
included in income (which is taxable as ordinary income) or with respect to cash
received in lieu of a fractional share of Legacy common stock. The adjusted
basis of shares of Legacy common stock received on conversion will generally
equal the adjusted basis of the Legacy debentures converted, reduced by the
portion of adjusted basis allocated to any fractional share of Legacy common
stock exchanged for cash, and the holding period of the Legacy common stock
received on conversion will generally include the period during which the
converted Legacy debentures were held. However, a United States Holder's tax
basis in shares of Legacy common stock considered attributable to accrued
interest as described above generally will equal the amount of such accrued
interest included in income, and the holding period for such shares will begin
as of the date of conversion.
LEGACY NOTES
Interest. Stated interest on the Legacy notes will generally be includible
in a United States Holder's gross income and taxable as ordinary income for
United States federal income tax purposes at the time it is paid or accrued, in
accordance with the United States Holder's regular method of accounting for
federal income tax purposes.
Original Issue Discount. If the stated principal amount of a Legacy note
exceeds its issue price, as determined above, by more than a statutorily defined
de minimis amount, a United States Holder will be required to include the amount
of such OID as income over the term of the Legacy note under a constant yield
method.
Sale, Exchange, Redemption or Retirement of a Legacy Note. Each United
States Holder generally will recognize gain or loss upon the sale, exchange,
redemption,
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<PAGE> 125
retirement or other taxable disposition of Legacy notes measured by the
difference, if any, between:
- the amount of cash and the fair market value of any property
received -- except to the extent that such cash or other property is
attributable to the payment of accrued interest not previously included
in income, which amount will be taxable as ordinary income, and
- such holder's adjusted tax basis in the Legacy notes.
The initial basis in a Legacy note will be equal to its issue price, as
determined above. If a Legacy note is issued with more than a de minimis amount
of OID, its basis would be increased by the amount of accrued OID and decreased
by the amount of any payment on the Legacy note other than payment of stated
interest. Except as noted immediately above, any such gain or loss recognized on
the sale, exchange, redemption, retirement or other taxable disposition of
Legacy notes will be capital gain or loss.
LEGACY COMMON STOCK
Cash Distributions. The amount of any cash distribution with respect to
Legacy common stock will be treated as a dividend, taxable as ordinary income to
the recipient thereof, to the extent of our current or accumulated earnings and
profits as determined under United States federal income tax principles. To the
extent that the amount of such distribution exceeds our current and accumulated
earnings and profits, the excess first will be treated as a return of capital
that will reduce the holder's tax basis in the Legacy common stock. Any
remaining amount after the holder's basis has been reduced to zero will be
taxable as capital gain.
Dividends received by corporate stockholders will be eligible for the 70%
dividends-received deduction under section 243 of the Code, subject to various
exceptions and limitations contained in the Code. U.S. corporate stockholders
should note, however, that there can be no assurance that distributions with
respect to Legacy common stock will not exceed the amount of our current or
accumulated earnings and profits. Accordingly, there can be no assurance that
the dividends-received deduction will apply to distributions on the Legacy
common stock. Corporate holders should consult their tax advisors as to the
availability and the limitations relating to the dividends-received deduction.
CORPORATE STOCKHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS WITH
RESPECT TO THE POSSIBLE APPLICATION OF SECTION 1059 TO THE OWNERSHIP AND
DISPOSITION OF THEIR COMMON STOCK.
Sale or Disposition. A sale or other disposition of Legacy common stock
will normally be a taxable event. Upon such a taxable sale or other disposition,
a stockholder will generally recognize capital gain or loss equal to the
difference between the amount of cash and the fair market value of property
received by the holder for the Legacy common stock and the holder's adjusted tax
basis in those shares.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Under section 3406 of the Code and applicable Treasury regulations, a
holder of the Enterprises common stock participating in the exchange, Legacy
debentures,
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Legacy notes, or Legacy common stock, as the case may be, may be subject to
backup withholding at the rate of 31% with respect to "reportable payments"
unless the holder (1) is a corporation or comes within other exempt categories
and, when required, demonstrates this fact, or (2) provides a taxpayer
identification number, certifies as to no loss of exemption from backup
withholding, and otherwise complies with applicable requirements of the backup
withholding rules. "Reportable payments" include:
- dividend payments,
- interest payments,
- under some circumstances, principal payments on the Legacy debentures or
Legacy notes,
- the gross proceeds payable pursuant to the exchange offer -- i.e., cash
and any Legacy debentures and Legacy notes, and
- the proceeds of a taxable sale or exchange of the Legacy debentures,
Legacy notes, or Legacy common stock, as the case may be.
The payor will be required to deduct and withhold the prescribed amounts
if:
- the payee fails to furnish a taxpayer identification number (TIN) to the
payor in the manner required by the Code and applicable Treasury
regulations,
- the Internal Revenue Service (IRS) notifies the payor that the TIN
furnished by the payee is incorrect,
- there has been a "notified payee underreporting" described in section
3406(c) of the Code, or
- there has been a failure of the payee to certify under penalty of perjury
that the payee is not subject to withholding under section 3406(a)(1)(C)
of the Code.
In such event, we will be required to withhold an amount equal to 31% from
any dividend payment made with respect to the holder's Legacy common stock, any
interest payment made with respect to the holder's Legacy debentures or Legacy
notes, the gross proceeds payable to the holder pursuant to the exchange offer,
any payment of proceeds to the holder of a taxable sale or exchange of the
Legacy debentures, Legacy notes, or Legacy common stock, or any other
"reportable payments." Amounts paid as backup withholding do not constitute an
additional tax and will be credited against the holder's United States federal
income tax liabilities, so long as the required information is provided to the
IRS. We will report to persons transferring the Enterprises common stock
pursuant to the exchange offer, to the holders of the Legacy debentures, Legacy
notes, or Legacy common stock and to the IRS the amount of any "reportable
payments" for each calendar year and the amount of tax withheld, if any, with
respect to payment on the securities. A person transferring the Enterprises
common stock pursuant to the exchange offer, and a holder of Legacy debentures,
Legacy notes, or Legacy common stock who does not provide us with his or her
correct taxpayer identification number may be subject to penalties imposed by
the IRS.
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PROPOSED LEGISLATION
Enterprises elected to be taxed as a REIT under Sections 856 through 860 of
the Code commencing with the short taxable year from September 1, 1997 to
December 31, 1997. Under current law, the consummation of the exchange offer or
the merger should not adversely affect Enterprises' REIT status. After
consummation of the exchange offer, and, if applicable, the merger, Enterprises
intends to continue to operate in a manner so as to qualify for taxation as a
REIT under the Code.
Enterprises' qualification and taxation as a REIT depends on Enterprises'
ability to meet various qualification tests imposed under the Code. One of these
qualification tests (the Five or Fewer Rule) requires that no more than 50% of
the value of the REIT's outstanding shares can be owned directly or indirectly,
applying various ownership attribution rules, by five or fewer individuals at
any time during the last half of a REIT's taxable year. Under existing law,
because of various ownership attribution rules, a corporation, such as Legacy,
could own more than 50% of the total value of a REIT's outstanding shares
without causing the REIT to fail to satisfy the Five or Fewer Rule. The initial
draft of the Financial Freedom Act of 1999 proposed by House Ways and Means
Committee Chairman Bill Archer contains a provision which, if enacted in its
present form, would add an additional requirement that would prohibit any person
or entity from controlling a REIT (i.e., owning stock possessing 50% or more of
the total combined voting power of all classes of voting stock of a REIT or 50%
or more of the total value of shares of all classes of stock of a REIT).
The Financial Freedom Act, if enacted in its current form, would apply to
taxable years ending after July 12, 1999, but would not apply to a REIT which
(1) as of July 12, 1999, is already controlled by a person or entity and (2) has
significant business assets or activities as of such date. If the Financial
Freedom Act were enacted in its current form, it would apply to Enterprises. If
(1) this legislation or similar legislation were enacted and applied to
Enterprises and (2) the exchange offer were consummated, Enterprises may not
qualify as a REIT if Legacy would be considered to own 50% or more of the total
voting power of Enterprises' stock. It is presently uncertain whether any such
legislation will be enacted, or if enacted, what the terms of such legislation
including its effective date, will be.
THE FOREGOING DISCUSSION IS INCLUDED FOR GENERAL INFORMATION ONLY.
ACCORDINGLY, EACH PROSPECTIVE PURCHASER IS URGED TO CONSULT WITH HIS TAX ADVISOR
WITH RESPECT TO THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE
EXCHANGE OFFER AND THE OWNERSHIP AND DISPOSITION OF LEGACY DEBENTURES, LEGACY
NOTES AND LEGACY COMMON STOCK, INCLUDING THE APPLICATION AND EFFECT OF THE LAWS
OF ANY STATE, LOCAL, FOREIGN, OR OTHER TAXING JURISDICTION.
LEGAL MATTERS
The validity of the Legacy debentures and the Legacy notes offered hereby
and the Legacy common stock into which the Legacy debentures may be converted
will be passed upon for Legacy by Latham & Watkins, San Diego, California.
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EXPERTS
The financial statements and schedules of Legacy and Excel Legacy
Corporation Asset Group incorporated in this prospectus by reference to Legacy's
Annual Report on Form 10-K/A for the period from inception (November 17, 1997)
to July 31, 1998, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The consolidated financial statements and schedule of Enterprises appearing
in Enterprises' Annual Report on Form 10-K for the year ended December 31, 1998,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
consolidated financial statements and schedule are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION
Legacy and Enterprises are subject to the informational requirements of the
Securities Exchange Act of 1934, and file annual, quarterly and special reports,
proxy statements and other information with the SEC. You may read and copy any
reports, proxy statements and other information we and Enterprises file at the
SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549
and at the SEC's regional offices at Seven World Trade Center, 13th Floor, New
York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Please call the SEC at 1-800-SEC-0300 for further
information on the public reference rooms. You may also access filed documents
at the SEC's web site at www.sec.gov.
This prospectus incorporates important business and financial information
about Legacy and Enterprises that is not included in or delivered with this
prospectus. We have filed a registration statement on Form S-4 and related
exhibits with the SEC under the Securities Act of 1933. The registration
statement contains additional information about Legacy and Enterprises and the
securities offered hereby. You may inspect the registration statement and
exhibits without charge and obtain copies from the SEC at prescribed rates at
the locations above.
The SEC allows us to incorporate by reference the information we and
Enterprises file with it, which means that we can disclose important information
to you by referring to those documents. The information incorporated by
reference is an important part of this prospectus, and information that we and
Enterprises file later with the SEC will automatically update and supersede this
information. We incorporate by reference the following documents which we and
Enterprises have filed with the SEC:
LEGACY'S SEC FILINGS (FILE NO. 0-23503):
- Our Annual Report on Form 10-K for the fiscal year ended July 31, 1998
and Amendment No. 1 thereto on Form 10-K/A,
- Our Quarterly Report on Form 10-Q for the quarter ended October 31, 1998,
- Our Transition Report on Form 10-Q for the transition period from August
1, 1998 to December 31, 1998,
- Our Quarterly Report on Form 10-Q for the quarter ended March 31, 1999
and Amendment No. 1 thereto on Form 10-Q/A,
- Our Current Reports on Form 8-K filed with the SEC on December 18, 1998,
May 14, 1999 and June 4, 1999,
- The description of our common stock contained in our Registration
Statement on Form 8-A filed with the SEC on November 13, 1998, and
- All documents filed by us with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus and before the termination of this offering.
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ENTERPRISES' SEC FILINGS (FILE NO. 0-20449):
- Enterprises' Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 and Amendment No. 1 thereto on Form 10-K/A,
- Enterprises' Quarterly Report on Form 10-Q for the quarter ended March
31, 1999,
- Enterprises' Current Report on Form 8-K filed with the SEC on June 4,
1999, and
- All documents filed by Enterprises with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date
of this prospectus and before the termination of this offering.
The information incorporated by reference is deemed to be part of this
prospectus. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus will be deemed modified, superseded
or replaced for purposes of this prospectus to the extent that a statement
contained herein or in any subsequently filed document that also is or is deemed
to be incorporated by reference herein modifies, supersedes or replaces such
statement. Any statement so modified, superseded or replaced will not be deemed,
except as so modified, superseded or replaced, to constitute a part of this
prospectus.
Legacy has supplied all information contained or incorporated by reference
in this prospectus relating to Legacy, and Enterprises has supplied all such
information relating to Enterprises.
If you are stockholder of Enterprises, you may have already received some
of the documents incorporated by reference, but you can obtain any of them
through the information agent, Legacy, Enterprises or the SEC. Documents
incorporated by reference are available from the information agent, Legacy or
Enterprises without charge, excluding all exhibits unless we have specifically
incorporated by reference an exhibit in this prospectus. Enterprises'
stockholders may obtain documents incorporated by reference in this prospectus
by requesting them in writing or by telephone from the appropriate party at the
following addresses:
<TABLE>
<S> <C>
Excel Legacy Corporation Price Enterprises, Inc.
16955 Via Del Campo, Suite 100 4649 Morena Boulevard
San Diego, CA 92127 San Diego, California 92117
(619) 675-9400 (619) 581-4679
</TABLE>
You may also contact the information agent for the exchange offer at the
following address:
D.F. King & Co., Inc.
77 Water Street
New York, NY 10005-4496
(800) 659-6590
To obtain timely delivery before the expiration of our offer, you should
request the information no later than , 1999, which is
five business days prior to the expiration of our offer.
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You should rely only on the information incorporated by reference or
provided in this prospectus and any supplement. We have not authorized anyone
else to provide you with different information. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of
any date other than the dates on the front of these documents.
We have not authorized anyone to give you any information or to make any
representations about the transactions we discuss in this prospectus other than
those contained herein. If you are given any information or representations
about these matters that is not discussed, you should not rely on that
information. This prospectus is not an offer to sell or a solicitation of an
offer to buy securities anywhere or to anyone where or to whom we are not
permitted to offer or sell securities under applicable law. The delivery of this
prospectus offered hereby does not, under any circumstances, mean that there has
not been a change in our affairs since the date hereof. It also does not mean
that the information in this prospectus is correct after this date.
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ANNEX A
THE STOCKHOLDERS AGREEMENT
AGREEMENT
PARTIES:
A. Excel Legacy Corporation, a Delaware corporation ("Legacy").
B. Certain shareholders of Price Enterprises, Inc. ("PREN"), a Maryland
corporation qualified as a Real Estate Investment Trust for federal income tax
purposes, who sign copies of this Agreement on or about the Board Approval Date
(Item 2), including Sol Price ("Price"), a Trustee of significant holders of
Common Stock ("Common Stock") and Preferred Stock ("Preferred Stock") of PREN.
(Each such shareholder, including Price, is referred to as a "Selling
Shareholder" and, at any point in time, all such persons who have then signed
substantially identical agreements, together with Price, are referred to
collectively as the "Selling Shareholders.")
AGREEMENT, subject to all of the terms and conditions below:
1. Each Selling Shareholder agrees to deposit into an escrow (the "Escrow")
his, her or its shares of PREN Common Stock in order to facilitate a transaction
with Legacy in which Legacy will seek to acquire all shares of PREN Common Stock
for $8.50 per share, comprised, at Legacy's election, of (i) $8.50 in cash or
(ii) (A) at least $4.25 in cash, (B) at least $2.75 per share in principal
amount of a Legacy 9% Convertible (at $5.50 per share) Subordinated Debenture
("Debenture"), issued pursuant to an indenture in the form attached as Exhibit A
hereto, with such changes as may be acceptable to a majority in interest of the
Selling Shareholders ("Majority of the Selling Shareholders"), with their
interests for such purposes being determined solely by the number of shares of
PREN Common Stock deposited by them into Escrow, and to Legacy and such changes
as may be required by the trustee under such indenture, and (C) $1.50 per share
in whatever combination Legacy may choose of cash, Debentures, and 10% Senior
Notes ("Notes") due October 31, 2004, issued at par, with a mandatory sinking
fund of 20% per year at the end of each of the first four years after issuance
(with credit given for open market purchases), a prepayment option by Legacy at
par plus accrued interest at any time, and customary protections for noteholders
reasonably acceptable to a Majority of the Selling Shareholders, but no more
stringent than the terms of bank indebtedness of Legacy at the time. The
Debentures and Notes (if any) shall be issued in denominations of $1,000 and
integral multiples thereof. Legacy shall deliver checks for the current market
value of any fractional shares in accordance with the Indenture. The transaction
in which Legacy will seek to acquire all of the Common Stock of PREN will be at
the option of the PREN Board of Directors to be exercised on the Board Approval
Date, either (A) a merger between PREN and a newly-formed wholly owned
subsidiary of Legacy or (B) a tender offer or exchange offer, in either case
with the consideration above being paid or offered for each share of PREN Common
Stock. Legacy shall elect the form of consideration prior to the distribution of
the applicable offer to purchase or proxy materials to PREN's shareholders.
2. 4,000,000 shares of PREN Common Stock shall be deposited by the Selling
Shareholders in the Escrow, which will be held by an escrow agent pursuant to an
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escrow agreement (the "Escrow Agreement") containing the provisions described
herein and such other provisions as may be required by the escrow agent, within
5 business days after this Agreement has been signed by Price on behalf of
certain Selling Shareholders and by Legacy. On the date following the date on
which the Board of Directors of PREN determines whether to approve the
transactions contemplated hereby, which approval date, if any, shall in no event
be later than June 2, 1999 (the "Board Approval Date"), there shall be deposited
(if the Board does approve) into Escrow at least 4,000,000 additional shares of
PREN Common Stock, and there shall be issued a joint press release with respect
to the Board's approval. Each Selling Shareholder hereby represents that all
shares of PREN Common Stock deposited into Escrow by such Selling Shareholder
are, or on the date of such deposit will be, owned free and clear of all liens,
charges, encumbrances and restrictions of any kind. Price shall give Legacy 48
hours notice of the expected Board Approval Date, and if no such notice is
given, Legacy shall treat June 2, 1999 as the Board Approval Date.
3. Legacy agrees to deposit into Escrow (A) $1,000,000 in cash within 24 hours
after the first share deposit referred to in Item 2 above, (B) an additional
$6,500,000 in cash by the close of business on the first business day following
the Board Approval Date, and (C) an additional $1,000,000 in cash on each of
September 1, October 1 and November 1, 1999 if, as to each such date, the
Closing has not occurred. Neither the PREN Common Stock nor the cash shall be
released from Escrow until the Closing (Item 4), except that, pursuant to the
terms of the Escrow Agreement, the shares of PREN Common Stock shall be properly
tendered prior to the Closing in the Offer described in Item 4 below, or voted
in favor of the Merger described in Item 4 below, and the cash shall be provided
to Legacy at the Closing for purposes of making a portion of the cash payments
required.
4. The Escrow shall close (the "Closing"), with the PREN Common Stock delivered
to Legacy and the cash delivered to the Selling Shareholders (or their
designees) in accordance with the Escrow Agreement, when (A) Legacy shall have
offered to purchase all outstanding shares of PREN Common Stock (including the
shares held in Escrow) subject only to the Offer Conditions (Item 6B), and shall
have purchased all shares tendered and not withdrawn (the "Offer"), or (B) PREN
shall have merged with a wholly owned subsidiary of Legacy, subject only to the
Merger Conditions (Item 6B) (the "Merger"), in either case with all Common Stock
of PREN being offered or receiving the consideration specified in Item 1 above.
Alternatively, the Escrow shall close, and all items held in the Escrow shall be
returned to the party or parties who deposited them (except for cash used for
damage payments in Item 7 below or Item 5 of the PREN Agreement (as defined in
Item 8B below)), when August 31, 1999 occurs (if the Escrow has not already
closed under the first sentence in this Item 4), or when Legacy and a Majority
of the Selling Shareholders agree and so instruct the escrow agent, or as
provided in Item 7 or 9. Provided, that (i) the August 31, 1999 date shall be
extended by the period, if any, by which the time between the filing by Legacy
of documents with the Securities and Exchange Commission for the registration of
the Offer or the proxy materials for the Merger and the first date on which the
Offer can be commenced within the meaning of Rule 14d-2 under the Securities
Exchange Act of 1934, or the proxy materials may be mailed, as applicable,
exceeds 30 days, but not beyond December 1, 1999, and (ii) in any event,
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interest shall accrue on the cash, Debentures and Notes, if applicable, issued
in the Offer or Merger from August 15, 1999. The cash shall accrue interest at
the rate of 8% per annum from August 15, 1999. If the Escrow terminates under
Item 7, 9 or 11 below or under Item 3 or 5 of the PREN Agreement, earnings on
the cash held in Escrow shall be distributed together with the cash on which it
accrues to the party entitled to receive the cash. If the Offer or Merger is
consummated, earnings on the cash held in Escrow shall be distributed to Legacy
for purposes of making a portion of the cash payments required.
5. Each Selling Shareholder agrees and commits that, from the date hereof
through the Closing, such Selling Shareholder (i) shall not, directly or
indirectly, sell, offer to sell, grant any option for the sale of or otherwise
transfer or dispose of, or enter into any agreement to sell, any PREN Common
Stock owned beneficially or otherwise by such Selling Shareholder, and (ii)
shall vote (or cause to be voted) all Common Stock and Preferred Stock of PREN
owned beneficially or otherwise by such Selling Shareholder in favor of the
Merger and related matters (if applicable), and against any Company Takeover
Proposal or any other action or agreement which would impede, interfere with or
prevent the transactions contemplated hereby. For purposes hereof, "Company
Takeover Proposal" means any proposal by a third party (other than Legacy) to
acquire, directly or indirectly, including pursuant to a tender offer, exchange
offer, merger or similar transaction, more than 25% of the voting power of PREN,
or all or substantially all of the assets of PREN. In addition, each Selling
Shareholder agrees to comply with any applicable requirements of Rule 145 under
the Securities Act of 1933 in connection with any resales of the Debentures and
Notes.
6. Legacy further agrees and commits that:
A. At or as promptly as practicable after the Closing, Legacy shall cause
to be taken all actions reasonably necessary to cause the Preferred
Stock of PREN to be entitled under PREN's charter documents (including
those of any successor to PREN by merger, etc.) to elect a majority of
the Directors of PREN (which majority shall mean that the holders of
PREN Preferred Stock have one more designee than Legacy); provided
that such right shall terminate upon the earliest to occur of the
following (the "Preferred Termination"): (i) less than 2,000,000
shares of PREN Preferred Stock (adjusted for stock splits, dividends,
reverse splits, etc.) shall remain outstanding, (ii) Legacy shall have
made an offer to purchase any and all outstanding shares of PREN
Preferred Stock at a cash price of $16 per share, and shall have
purchased all shares duly tendered and not withdrawn, or (iii) the
Directors of PREN shall have (a) issued or agreed to issue any equity
securities or securities convertible or exchangeable into or
exercisable for equity securities, in any case without unanimous Board
approval, or (b) failed in any fiscal year to declare or pay dividends
on the PREN Common Stock as and when requested by Legacy (1) to
distribute 100% of PREN's taxable income for such fiscal year or
otherwise to maintain PREN's status as a REIT, or (2) in an amount
equal to the excess, if any, of (x)(A) funds from operations less rent
smoothing for such fiscal year, minus (B) the amount required to pay
dividends on the PREN Preferred Stock for such fiscal year, over (y)
$7,500,000. Pending the effectuation of such corporate action, Legacy
agrees for the benefit of the holders of
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PREN Preferred Stock to vote in favor of the election of Jack McGrory,
Simon Lorne and James Cahill (or their designees) as Directors of PREN
and to vote against any increase in the size of the PREN Board beyond
five members. Following the Closing until the Preferred Termination,
neither Legacy nor any subsidiary or affiliate of Legacy which
acquires shares of PREN Preferred Stock shall be entitled to vote such
shares in any election of Directors of PREN.
B. Legacy shall commence taking all actions reasonably necessary to make
the Offer or to effect the Merger (as applicable) to acquire all
outstanding shares of PREN Common Stock (including those shares held
in Escrow) for the consideration specified in Item 1 above, subject in
the case of the Offer only to the conditions specified on Exhibit B
hereto (the "Offer Conditions"), and in the case of the Merger only to
the conditions specified on Exhibit B hereto (other than the Minimum
Condition) and other customary conditions to a merger, including the
approval of PREN's shareholders and the filing of applicable merger
documents (the "Merger Conditions"). In the case of the Offer, Legacy
shall purchase all shares duly tendered and not withdrawn.
C. Legacy shall use all reasonable efforts to satisfy the Offer
Conditions or the Merger Conditions (as applicable). Legacy agrees
that it will proceed in good faith as expeditiously as possible to
complete requisite governmental reviews, to obtain any requisite
approvals and otherwise to consummate the transactions contemplated
hereby, and neither Legacy nor its counsel will engage in any
communications with third parties (including governmental offices and
agencies) without the direct participation of PREN and its counsel.
D. Legacy shall not take any action to cause a direct or indirect Change
of Control of PREN (including by Change of Control of Legacy itself)
(i) after the date hereof and prior to the Closing without the consent
of Price, or (ii) after the Closing, without either offering to
purchase all shares of PREN Preferred Stock or obtaining the approval
of a majority of such shares (unless a higher percentage is required
by PREN's charter or Maryland law). For purposes of this provision, a
"Change of Control" will be deemed to have occurred at such time as
(a) any person or group of related persons for purposes of Section
13(d) of the Securities Exchange Act of 1934 (other than Legacy)
becomes the beneficial owner of 50% or more of the total voting power
of PREN or Legacy, (b) there shall be consummated any merger or
consolidation of PREN or Legacy in which PREN or Legacy, as the case
may be, is not the continuing or surviving corporation or pursuant to
which the Common Stock of PREN or Legacy would be converted into cash,
securities or other property, other than a merger or consolidation in
which the holders of the Common Stock of PREN or Legacy outstanding
immediately prior to the merger or consolidation hold at least a
majority of the Common Stock of the surviving corporation immediately
after such merger or consolidation, or (c) the directors of Legacy on
the date hereof (or persons nominated for election by such directors)
shall no longer constitute a majority of the Board of Directors of
Legacy.
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E. Following the Closing until the Preferred Termination, Legacy shall
take all actions in its power to ensure that at least one
representative of the interests of the PREN Preferred Stock, as
designated by a majority in interest of the Selling Shareholders who
hold PREN Preferred Stock, is serving as a director of Legacy.
F. Legacy shall cause any and all Debentures and Notes to be registered
under the Securities Act of 1933, and to maintain such registration,
in each case if and as necessary to make all such Debentures and Notes
freely transferable.
G. Within 10 days after the Closing, Legacy shall use all reasonable
efforts to cause PREN to pay all options held by employees and
directors of PREN, and severance payments for employees of PREN, as
described on Exhibit B and Schedule B-2 to the PREN Agreement. With
Legacy's prior written consent, which consent shall not be
unreasonably withheld, PREN may terminate certain employees prior to
the Closing and pay such employees the severance payments described on
Exhibit B and Schedule B-2 to the PREN Agreement. Upon the Closing,
Legacy shall provide PREN with the funds to cover all payments under
such exhibit and schedule.
H. Legacy shall cause PREN to maintain Officers' and Directors' Errors and
Omissions Insurance insuring all persons who are or were officers or
directors of PREN in an amount not less than that in effect on April
30, 1999, for a period of at least 3 years following the Closing, and
thereafter as long as necessary (if at all) to ensure the continuation
of protection with respect to any and all claims made prior to the end
of that period, and shall, and shall cause PREN to, hold harmless and
indemnify each such person against all expense, loss and liability
(including costs of defense and investigation) relating to their
actions as such officers or directors of PREN, except, as to any such
person, as to any matter as to which it is finally judicially
determined that indemnification is not permitted for such person by
Maryland law under the applicable circumstances.
I. In any merger between PREN and a subsidiary of Legacy pursuant to
which shares of PREN Common Stock are converted into cash or into
securities other than Common Stock of Legacy or of the surviving
corporation, Legacy will make appropriate provisions such that the
cash and other assets of PREN will not be depleted in any material
respect, and the liabilities of PREN will not be increased in any
material respect, as a result of such transaction.
J. Until such time as there are no shares of PREN Preferred Stock
outstanding, Legacy shall not take any action that would cause PREN to
fail to qualify as a REIT.
7. If Legacy abandons the transaction prior to the Board Approval Date or is
unwilling to execute the PREN Agreement, Legacy shall pay the total sum of
$1,000,000 (together with earnings thereon) as liquidated damages, with such sum
being apportioned among the Selling Shareholders and PREN as Price may direct.
Additionally, upon notice to the escrow agent in accordance with the Escrow
Agreement of Legacy's having so abandoned the transaction or having not executed
the PREN Agreement, the Escrow shall be terminated, the initial $1,000,000
deposited by Legacy (together with earnings thereon) shall be distributed as
provided in this
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Item 7, and any and all other shares and other items held in the Escrow shall be
returned to the parties who originally deposited them. The parties expressly
recognize that in the event of any failure of condition referenced above,
measuring monetary damages would be extremely difficult or impracticable to
ascertain because of the nature of the assets of PREN. The payment of $1,000,000
(together with earnings thereon) as described above in this Item 7 is not
intended as a forfeiture or penalty within the meaning of California Civil Code
sec.sec. 3275 or 3369 but is intended to constitute liquidated damages, and
shall be the sole and exclusive remedy of the Selling Shareholders and PREN. If
Legacy breaches Item 6 above after it and PREN have executed the PREN Agreement,
the sole redress of the Selling Shareholders and PREN shall be pursuant to Item
5 of the PREN Agreement.
8. Price agrees that if any of the following conditions are not met, the
provisions of Item 9 shall immediately take effect:
A. The number of shares of PREN Common Stock held in Escrow shall
represent at least 51% of the general voting power of PREN on June 10,
1999.
B. On the Board Approval Date, the Directors of PREN shall have (i) taken
such actions as may be necessary to approve Legacy (insofar as
restrictions in PREN's charter documents are concerned) to acquire up
to 100% of the PREN Common Stock and to confirm that the transactions
contemplated hereby are exempt from the operation of any applicable
anti-takeover statute under the Maryland General Corporation Law, which
actions shall state that they are irrevocable, and (ii) duly executed
and delivered the Agreement attached as Exhibit C hereto (the "PREN
Agreement").
9. The following liquidated damages provision shall apply if the Selling
Shareholders abandon the transaction on or prior to the Board Approval Date, or
the Directors of PREN do not take the actions specified in Item 8B above. In
either such case, Price shall pay or cause to be paid to Legacy the total sum of
$1,000,000 as liquidated damages. Additionally, upon notice to the escrow agent
in accordance with the Escrow Agreement of the Selling Shareholders' having so
abandoned the transaction or the PREN Directors having not taken such actions,
the Escrow shall be terminated, the initial $1,000,000 (together with earnings
thereon) shall be returned to Legacy, and any and all other shares and other
items held in the Escrow shall be returned to the parties who originally
deposited them. The parties expressly recognize that in the event of any failure
of condition referenced above, measuring monetary damages would be extremely
difficult or impracticable to ascertain because of the nature of the assets of
PREN. The payment of $1,000,000 as described above in this Item 9 is not
intended as a forfeiture or penalty within the meaning of California Civil Code
sec.sec. 3275 or 3369 but is intended to constitute liquidated damages, and
shall be the sole and exclusive remedy of Legacy.
10. If the events described in Items 8A and 8B above occur as described, the
liquidated damages provision set forth in Item 9 shall no longer be applicable
after the Board Approval Date and Legacy's rights and remedies shall then be as
specified in this Item 10 and in the PREN Agreement. In such case, each Selling
Shareholder, by signing a copy of this Agreement, agrees that he, she or it
shall, from and after the Board Approval Date, not take any action (litigation
or otherwise) to contest or
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challenge in any way the validity or irrevocability of the actions referred to
in Item 8B(i) above; provided that, in the case of any Selling Shareholder who
is a Director of PREN, nothing contained herein shall be construed to limit or
otherwise affect such Selling Shareholder's ability to act in his capacity as a
PREN Director. Each Selling Shareholder shall vigorously defend against any
litigation or other claim brought by a third party to contest or challenge in
any way such actions.
11. If the Offer Conditions or the Merger Conditions (as applicable) have not
been satisfied by December 1, 1999 (unless extended pursuant to Item 5 of the
PREN Agreement) due to no fault of the parties hereto, Legacy or a Majority of
the Selling Shareholders may terminate this Agreement upon written notice to the
other party. Upon any such termination, the Escrow shall close, and except as
otherwise provided in Item 5 of the PREN Agreement, all items held in the Escrow
shall be returned to the party or parties who deposited them, and none of the
parties hereto shall have any further obligation or liability hereunder.
12. Any action permitted or authorized by or for the Selling Shareholders, or
any notice to be given by or on behalf of the Selling Shareholders, shall be
deemed for all purposes to have been duly permitted, authorized or given if it
has been permitted, authorized or given by a Majority of the Selling
Shareholders.
13. This Agreement (including the exhibits hereto and all copies executed by
different Selling Shareholders) constitutes one entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof, and is intended to be fully
binding and enforceable as of the date provided below. This Agreement may be
executed in counterparts. This Agreement shall be governed and construed in
accordance with the laws of the State of California, without regard to the laws
that might be applicable under conflicts of laws principles. This Agreement
shall not be altered or otherwise amended except pursuant to an instrument in
writing signed by Legacy and a Majority of the Selling Shareholders; provided
that any party to this Agreement may waive in writing any obligation owed to it
by any other party under this Agreement. In the event of any action brought to
enforce or interpret any part of this Agreement, the prevailing party shall be
entitled to recover attorneys' fees, as well as all other costs and expenses of
bringing such action as an element of damages.
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Dated: May 12, 1999
<TABLE>
<S> <C>
SELLING SHAREHOLDERS EXCEL LEGACY CORPORATION
By: /s/ SOL PRICE By: /s/ GARY B. SABIN
- -------------------------------------- --------------------------------------
Sol Price, Trustee Name: Gary B. Sabin
Price Family Charitable Trust Title: President and
UTD 03/13/84 Chief Executive Officer
Number of Shares of
Common Stock: 2,213,129
By: /s/ SOL PRICE
----------------------------------
Sol Price, Trustee
Price Charitable Remainder Trust
UTD 01/10/83
Number of Shares of
Common Stock: 308,490
By: /s/ SOL PRICE
----------------------------------
Sol Price, Trustee
Marion Brodie Trust
UTD 04/23/96
Number of Shares of
Common Stock: 34,950
</TABLE>
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ANNEX B
THE COMPANY AGREEMENT
AGREEMENT
This Agreement is entered into as of June 2, 1999 by and between Excel
Legacy Corporation, a Delaware corporation ("Legacy"), and Price Enterprises,
Inc., a Maryland corporation ("PREN").
RECITALS
A. Legacy and certain shareholders of PREN (the "Selling Shareholders") have
entered into an Agreement dated May 12, 1999 (the "Shareholders Agreement").
B. As a condition precedent to Legacy's commitments under the Shareholders
Agreement, Legacy has required that PREN enter into this Agreement pursuant to
which PREN is agreeing to take certain actions, subject to the terms and
conditions set forth herein.
AGREEMENT
The parties to this Agreement, intending to be legally bound, hereby agree
as follows:
1. Capitalized terms used and not otherwise defined in this Agreement shall
have the meanings assigned to them in the Shareholders Agreement.
2. PREN agrees that if any of the following events do not occur as described,
the provisions of Item 3 below shall immediately take effect:
A. On the Board Approval Date, the Directors of PREN shall have taken such
actions as may be necessary (i) to approve the taking of all actions
described on Exhibit A hereto without any further Board approval, (ii)
to provide for the treatment of PREN options as described on Exhibit B
hereto, and (iii) to appoint Gary Sabin as Chief Executive Officer of
PREN. All such approvals and other actions shall be effective as of the
Closing and shall state that they are irrevocable.
B. PREN shall not take any action (i) to revoke, modify or otherwise
alter in any way the approvals and other actions referred to in Item
2A above or Item 8B of the Shareholders Agreement, or (ii) to contest
or challenge in any way (through litigation or otherwise) the validity
or irrevocability of the approvals and other actions referred to in
Item 2A above or Item 8B of the Shareholders Agreement. PREN shall
vigorously defend against any litigation or other claim brought by a
third party to contest or challenge in any way such approvals or other
actions.
C. The Directors of PREN shall permit Gary Sabin and Richard Muir (or two
other designees of Legacy) to attend all meetings of the Board of
Directors of PREN (other than those relating to the transactions
contemplated hereby or relating to any Company Takeover Proposal) in a
non-voting observer capacity until the Closing, at which time the
Directors of PREN shall cause Messrs. Sabin and Muir (or two other
designees of Legacy) to be appointed
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or elected as members of the Board of Directors of PREN. Legacy's Board
observer rights shall terminate if this Agreement terminates.
D. PREN shall cooperate with Legacy and use all reasonable efforts to take
or cause to be taken all actions necessary with respect to the
preparation and filing of the Offer documents or Merger documents (as
applicable), including all actions required pursuant to Section 14 of
the Securities Exchange Act of 1934 (but shall not be required to
execute any agreements or to make any representations or warranties,
other than as required by applicable rules and regulations of the
Securities and Exchange Commission, Nasdaq or any lenders of PREN in
order to consummate the transactions contemplated by this Agreement or
the Shareholders Agreement). In the case of the Merger, PREN shall take
or cause to be taken all actions necessary to duly call and hold a
meeting of the PREN shareholders to consider the Merger and related
matters.
E. Except in relation to the matters described in this Agreement or the
Shareholders Agreement, the Directors of PREN shall act only in the
ordinary course of business until the Closing. Without limiting the
generality of the foregoing, PREN shall not, without the prior written
consent of Legacy, incur material debt, or issue or agree to issue any
equity securities or securities convertible or exchangeable into or
exercisable for equity securities, or pay any dividend other than
regularly scheduled dividends on the PREN Preferred Stock, or take any
action that would cause PREN to fail to qualify as a REIT.
F. PREN shall use all reasonable efforts to satisfy the Offer Conditions
or the Merger Conditions (as applicable). PREN agrees that it will
proceed in good faith as expeditiously as possible to complete
requisite governmental reviews, to obtain any requisite approvals and
otherwise to consummate the transactions contemplated by this
Agreement and the Shareholders Agreement, and neither PREN nor its
counsel will engage in any communications with third parties
(including governmental offices and agencies) without the direct
participation of Legacy and its counsel.
3. If any of the events described in Item 2 do not occur as described, Legacy
shall be entitled, at its election, either to (i)(A) acquire the shares of PREN
Common Stock held in Escrow by consummating the Offer with the consideration
specified in Item 1 of the Shareholders Agreement and having such shares
tendered in accordance with the Escrow Agreement, and (B) any and all equitable
remedies necessary to ensure PREN's compliance with this Agreement, or (ii)
liquidated damages in the amount of $7,500,000. Additionally, in the case of
clause (ii) above, upon notice to the escrow agent in accordance with the Escrow
Agreement of PREN's having breached this Agreement, the Escrow shall be
terminated, the initial $7,500,000 (together with earnings thereon) shall be
returned to Legacy, and any and all other shares and other items held in the
Escrow shall be returned to the parties who originally deposited them. The
parties expressly recognize that in the event of any failure of condition
referenced above, measuring monetary damages would be extremely difficult or
impracticable to ascertain because of the nature of the assets of PREN. The
payment of $7,500,000 as described above in this Item 3 is not intended as a
forfeiture or
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penalty within the meaning of California Civil Code sec.sec. 3275 or 3369 but is
intended to constitute liquidated damages, and shall be the sole and exclusive
remedy of Legacy.
4. Legacy agrees and commits that:
A. At or as promptly as practicable after the Closing, Legacy shall cause
to be taken all actions reasonably necessary to cause the Preferred
Stock of PREN to be entitled under PREN's charter documents (including
those of any successor to PREN by merger, etc.) to elect a majority of
the Directors of PREN (which majority shall mean that the holders of
PREN Preferred Stock have one more designee than Legacy); provided
that such right shall terminate upon the earliest to occur of the
following (the "Preferred Termination"): (i) less than 2,000,000
shares of PREN Preferred Stock (adjusted for stock splits, dividends,
reverse splits, etc.) shall remain outstanding, (ii) Legacy shall have
made an offer to purchase any and all outstanding shares of PREN
Preferred Stock at a cash price of $16 per share, and shall have
purchased all shares duly tendered and not withdrawn, or (iii) the
Directors of PREN shall have (a) issued or agreed to issue any equity
securities or securities convertible or exchangeable into or
exercisable for equity securities, in any case without unanimous Board
approval, or (b) failed in any fiscal year to declare or pay dividends
on the PREN Common Stock as and when requested by Legacy (1) to
distribute 100% of PREN's taxable income for such fiscal year or
otherwise to maintain PREN's status as a REIT, or (2) in an amount
equal to the excess, if any, of (x)(A) funds from operations less rent
smoothing for such fiscal year, minus (B) the amount required to pay
dividends on the PREN Preferred Stock for such fiscal year, over (y)
$7,500,000. Pending the effectuation of such corporate action, Legacy
agrees for the benefit of the holders of PREN Preferred Stock to vote
in favor of the election of Jack McGrory, Simon Lorne and James Cahill
(or their designees) as Directors of PREN and to vote against any
increase in the size of the PREN Board beyond five members. Following
the Closing until the Preferred Termination, neither Legacy nor any
subsidiary or affiliate of Legacy which acquires shares of PREN
Preferred Stock shall be entitled to vote such shares in any election
of Directors of PREN.
B. Legacy shall commence taking all actions reasonably necessary to make
the Offer or to effect the Merger (as applicable) to acquire all
outstanding shares of PREN Common Stock (including those shares held
in Escrow) for the consideration specified in Item 1 of the
Shareholders Agreement, subject in the case of the Offer only to the
Offer Conditions, and in the case of the Merger only to the Merger
Conditions. In the case of the Offer, Legacy shall purchase all shares
duly tendered and not withdrawn.
C. Legacy shall use all reasonable efforts to satisfy the Offer
Conditions or the Merger Conditions (as applicable). Legacy agrees
that it will proceed in good faith as expeditiously as possible to
complete requisite governmental reviews, to obtain any requisite
approvals and otherwise to consummate the transactions contemplated
hereby, and neither Legacy nor its counsel will engage in
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any communications with third parties (including governmental offices
and agencies) without the direct participation of PREN and its
counsel.
D. Legacy shall not take any action to cause a direct or indirect Change
of Control of PREN (including by Change of Control of Legacy itself)
(i) after the date hereof and prior to the Closing without the consent
of Price, or (ii) after the Closing, without either offering to
purchase all shares of PREN Preferred Stock or obtaining the approval
of a majority of such shares (unless a higher percentage is required by
PREN's charter or Maryland law). For purposes of this provision, a
"Change of Control" will be deemed to have occurred at such time as (a)
any person or group of related persons for purposes of Section 13(d) of
the Securities Exchange Act of 1934 (other than Legacy) becomes the
beneficial owner of 50% or more of the total voting power of PREN or
Legacy, (b) there shall be consummated any merger or consolidation of
PREN or Legacy in which PREN or Legacy, as the case may be, is not the
continuing or surviving corporation or pursuant to which the Common
Stock of PREN or Legacy would be converted into cash, securities or
other property, other than a merger or consolidation in which the
holders of the Common Stock of PREN or Legacy outstanding immediately
prior to the merger or consolidation hold at least a majority of the
Common Stock of the surviving corporation immediately after such merger
or consolidation, or (c) the directors of Legacy on the date hereof (or
persons nominated for election by such directors) shall no longer
constitute a majority of the Board of Directors of Legacy.
E. Following the Closing until the Preferred Termination, Legacy shall
take all actions in its power to ensure that at least one
representative of the interests of the PREN Preferred Stock, as
designated by a majority in interest of the Selling Shareholders who
hold PREN Preferred Stock, is serving as a director of Legacy.
F. Legacy shall cause any and all Debentures and Notes to be registered
under the Securities Act of 1933, and to maintain such registration,
in each case if and as necessary to make all such Debentures and Notes
freely transferable.
G. Within 10 days after the Closing, Legacy shall use all reasonable
efforts to cause PREN to pay all options held by employees and
directors of PREN, and severance payments for employees of PREN, as
described on Exhibit B and Schedule B-2 hereto. With Legacy's prior
written consent, which consent shall not be unreasonably withheld, PREN
may terminate certain employees prior to the Closing and pay such
employees the severance payments described on Exhibit B and Schedule
B-2 hereto. Upon the Closing, Legacy shall provide PREN with the funds
to cover all payments under such exhibit and schedule.
H. Legacy shall cause PREN to maintain Officers' and Directors' Errors and
Omissions Insurance insuring all persons who are or were officers or
directors of PREN in an amount not less than that in effect on April
30, 1999, for a period of at least 3 years following the Closing, and
thereafter as long as necessary (if at all) to ensure the continuation
of protection with respect to any and all claims made prior to the end
of that period, and shall, and shall
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cause PREN to, hold harmless and indemnify each such person against all
expense, loss and liability (including costs of defense and
investigation) relating to their actions as such officers or directors
of PREN, except, as to any such person, as to any matter as to which it
is finally judicially determined that indemnification is not permitted
for such person by Maryland law under the applicable circumstances.
I. In any merger between PREN and a subsidiary of Legacy pursuant to
which shares of PREN Common Stock are converted into cash or into
securities other than Common Stock of Legacy or of the surviving
corporation, Legacy will make appropriate provisions such that the
cash and other assets of PREN will not be depleted in any material
respect, and the liabilities of PREN will not be increased in any
material respect, as a result of such transaction.
J. Until such time as there are no shares of PREN Preferred Stock
outstanding, Legacy shall not take any action that would cause PREN to
fail to qualify as a REIT.
5. If Legacy materially fails to do anything it has agreed to do in this
Agreement or the Shareholders Agreement or does anything material it has agreed
not to do, or if the Escrow terminates because of the passage of time as
provided in Item 4 of the Shareholders Agreement, Legacy shall pay the total sum
of $7,500,000 (or such larger sum as may be held in Escrow at such time)
(together with earnings thereon) as liquidated damages, with such sum being
apportioned among PREN and the Selling Shareholders as PREN may direct.
Notwithstanding the foregoing, Legacy shall not be obligated to pay such
liquidated damages in the case of the passage of time provided in Item 4 of the
Shareholders Agreement if such passage of time occurs as a result of (i) any
failure of the condition set forth in paragraph (a) of the Offer Conditions or
Merger Conditions (as applicable) which results, directly or indirectly, from
any litigation or other claim or action commenced by or on behalf of, or based
on or relating to, PREN or any of its officers, directors, employees, agents,
shareholders or affiliates, (ii) any failure of the condition set forth in
paragraph (c) of the Offer Conditions or Merger Conditions (as applicable)
(provided that Legacy shall be obligated, for purposes of this Item 5 only, to
consummate the Offer or Merger (as applicable) within three business days
following the satisfaction of such condition), or (iii) any failure of the
conditions set forth in paragraph (d), (e) or (f) of the Offer Conditions or
Merger Conditions (as applicable). Additionally, upon notice to the escrow agent
in accordance with the Escrow Agreement of Legacy's having so breached this
Agreement, or of the passage of time, the Escrow shall be terminated, the
initial $7,500,000 deposited by Legacy (or such larger sum as may be deposited
by Legacy pursuant to Item 3 of the Shareholders Agreement) (together with
earnings thereon) shall be distributed as provided in this Item 5, and any and
all other shares and other items held in the Escrow shall be returned to the
parties who originally deposited them. The parties expressly recognize that in
the event of any failure of condition referenced above, measuring monetary
damages would be extremely difficult or impracticable to ascertain because of
the nature of the assets of PREN. The payment of $7,500,000 (or such larger sum
as may be held in Escrow) (together with earnings thereon) as described above in
this Item 5 is not intended as a forfeiture or penalty within the meaning of
California Civil Code sec.sec. 3275 or 3369 but is intended to
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constitute liquidated damages, and shall be the sole and exclusive remedy of the
Selling Shareholders and PREN.
6. This Agreement shall automatically terminate and be of no further force or
effect upon the termination of the Shareholders Agreement in accordance with its
terms. Upon any such termination, none of the parties hereto shall have any
further obligation or liability hereunder.
7. This Agreement and the Shareholders Agreement (including the exhibits hereto
and thereto) constitute the entire agreement and supersede all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof, and are intended to be fully binding and enforceable
as of the dates provided. This Agreement may be executed in counterparts. This
Agreement shall be governed and construed in accordance with the laws of the
State of California, without regard to the laws that might be applicable under
conflicts of laws principles. This Agreement shall not be altered or otherwise
amended except pursuant to an instrument in writing signed by Legacy and PREN;
provided that any party to this Agreement may waive in writing any obligation
owed to it by any other party under this Agreement. In the event of any action
brought to enforce or interpret any part of this Agreement, the prevailing party
shall be entitled to recover attorneys' fees, as well as all other costs and
expenses of bringing such action as an element of damages.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto as of the date set forth above.
<TABLE>
<S> <C>
Price Enterprises, Inc. Excel Legacy Corporation
By: /s/ JACK MCGRORY By: /s/ GARY B. SABIN
------------------------------------------- -------------------------------------------
Name: Jack McGrory Name: Gary B. Sabin
Title: President and Chief Executive Officer Title: President and Chief Executive Officer
</TABLE>
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ANNEX C
FAIRNESS OPINION
[VALUATION RESEARCH CORPORATION LETTERHEAD]
May 18, 1999
The Board of Directors
Price Enterprises, Inc.
4649 Morena Blvd
San Diego, CA 92117
Members of the Board:
You have requested our opinion as to the fairness, from a financial point
of view, to the holders of the Shares of common stock, $0.0001 par value per
share (the "Shares"), of Price Enterprises, Inc. (the "Company" or "Price") of
the consideration to be received by such holders pursuant to the terms of the
Agreement (the "Agreement") dated as of May 12, 1999, among Excel Legacy
Corporation, a Delaware corporation ("Legacy"), and certain shareholders of
Price Enterprises, Inc., a Maryland corporation (the "Company") including Sol
Price, a Trustee of significant holders of Price Shares and Preferred Stock.
As more fully described in the Agreement, Price's Board of Directors will
have the option to determine how Legacy will acquire all of the common stock of
Price as either (a) a merger between Price and a newly-formed wholly owned
subsidiary of Legacy or (b) a tender offer or exchange offer (the
"Transaction"). Under the terms of the Agreement, Legacy will offer to acquire
all shares of Price Common Stock for $8.50 per share, comprised, at Legacy's
election, of (i) $8.50 in cash or (ii)(a) at least $4.25 in cash, (b) at least
$2.75 in principal amount of Legacy's 9.0% Convertible Subordinated Debentures
due 2004 (the "Debentures"), which will be convertible into shares of Legacy
Common Stock at $5.50 per share, and (c) $1.50 per share in whatever combination
Legacy may choose of cash, Debentures, and Legacy's 10% Senior Notes (the
"Notes") due October 31, 2004, issued at par, with a mandatory sinking fund of
20.0% per year at the end of each of the first four years after issuance.
In connection with rendering our opinion, we have: (i) reviewed the
Agreement dated as of May 12, 1999; (ii) reviewed and analyzed certain publicly
available business and financial information of the Company and Legacy for
recent years and interim periods to date; (iii) reviewed and analyzed certain
internal financial and operating information, including financial forecasts,
analysis and projections prepared by management of the Company and Legacy; (iv)
conducted discussions with members of the senior management of the Company with
respect to the business and prospects of the Company; (v) reviewed and
considered certain financial and stock market data relating to the Company, and
we have compared that data with similar data for certain other publicly traded
companies that we believe may be relevant; and (vi) reviewed the financial
terms, to the extent publicly available, of certain comparable transactions. In
addition, we have conducted such other analyses and examinations and considered
such other financial, economic and market criteria as we have deemed necessary
in arriving at our opinion.
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In rendering our opinion, we have assumed and relied, without independent
verification, upon the accuracy and completeness of all financial and other
information and data publicly available or furnished to or otherwise reviewed by
or discussed with us. With respect to financial forecasts and other information
and data provided to or otherwise reviewed by or discussed with us, we have been
advised by the management of the Company that such forecasts and other
information and data were reasonably prepared on bases reflecting the best
currently available estimates and judgements of management as to the future
financial performance of the Company. We have not made or been provided with an
independent evaluation or appraisal of the assets or liabilities (contingent or
otherwise) of the Company nor have we made any physical inspection of the
properties or assets of the Company. Further, our opinion is based upon the
conditions as they exist and can be evaluated on the date hereof only.
Valuation Research Corporation has been engaged to render a fairness
opinion to Price Enterprises, Inc. in connection with the proposed Transaction
and will receive a fee for such a service.
Our opinion expressed herein is provided for the information of the Board
of Directors of Price in its evaluation of the proposed Transaction, and our
opinion is not intended to be or does not constitute a recommendation to any
stockholder as to whether or not such stockholder should tender or exchange
shares of Price's common stock or alternatively how such stockholder should vote
on the merger between Price and a newly-formed wholly owned subsidiary of
Legacy, depending on whichever option Price's Board of Directors chooses. This
letter may not be used by any person or for any purpose other than specified
herein or otherwise reproduced, disseminated, quoted or referred to at any time,
in any manner or for any purpose, without the prior written consent and approval
of Valuation Research Corporation. Notwithstanding the above restriction, this
letter may be disclosed in its entirety in any proxy statement or information
statement relating to the proposed Transaction sent to the Company's
shareholders.
Based upon and subject to the foregoing, our work as described above and
other factors we deemed relevant, we are of the opinion that, as of the date
hereof, the consideration to be received by the holders of Price's common stock
in the Transaction is fair, from a financial point of view, to such holders.
Very truly yours,
VALUATION RESEARCH CORPORATION
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EXHIBIT A
GENERAL LIMITING CONDITIONS AND ASSUMPTIONS
In accordance with recognized professional standards as generally practiced
in the valuation industry, the fee for these services is not contingent upon the
conclusions of value contained herein. Valuation Research Corporation
(Valuation) has determined to the best of its knowledge and in good faith that
neither it nor any of its agents or employees have a material financial interest
in the Buyer or the Seller.
Neither Valuation, nor its agents or employees assume any responsibility
for matters legal in nature, nor do they render any opinion as to any title to,
or legal status of, property which may be involved, both real and personal,
tangible and intangible, which title is assumed to be good and marketable. Any
and all property is analyzed as if it is free and clear of any and all liens or
encumbrances except those created in the transaction or otherwise described in
the applicable documents or notified to Valuation, and that all relevant
agreements are valid and enforceable.
Valuation assumes that all laws, statutes, ordinances, or other
regulations, or regulations of any governmental authority relevant to and in
connection with this engagement are complied with unless express written
noncompliance is brought to the attention of Valuation and is stated and defined
by those relied on by Valuation, including Price Enterprises, Inc. and its
management.
Valuation has relied on certain information furnished by others, including
but not limited to the Company without further check or verification. Valuation
believes such information to be reliable as to accuracy and completeness but
offers no warranty or representation to that effect. Such information generally
includes, but is not limited to, financial analyses and forecasts; historical,
pro forma, audited, and unaudited financial statements; management analyses;
transaction models; and various other documents some of which we have received
in draft form only and which we assume will be substantially similar form at the
time of close with no material effect as relates to our work or conclusions.
In some instances, public information and statistical information has been
obtained from sources Valuation has accepted as being reliable; however,
Valuation makes no representation as to the accuracy or completeness of such
information and has accepted the information without further verification.
Neither all nor any part of the contents of this opinion (especially any
conclusions as to value, the identity or any appraiser or appraisers, or the
firm with which such appraisers are connected, or any reference to any of their
professional designations) may be disseminated to the public through advertising
media, public relations, new media, sales media, mail, direct transmittal, or
any other public means of communication, without the prior written consent and
approval of Valuation Research Corporation, excluding bankruptcy, insolvency or
similar judicial proceedings, written notice of which must be provided
immediately to Valuation Research.
Any further consultation, testimony, attendance, or research in reference
to the present engagement beyond this opinions expressed herein as of the date
of valuation are subject to agreement by Valuation in specific written
agreements between the parties.
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The opinion expressed by Valuation results from the development and
analysis of several valuation indications arrived at through the use of
generally accepted valuation procedures. These procedures included projected
income analysis, market comparable analysis, comparable transactions analysis
and premium paid analysis. The projected income analysis utilized cash flow
projections discounted to present value. The discount rate selected was based on
risk and return requirements deemed appropriate by Valuation. The market
comparable analysis compared stock prices and various financial ratios of
publicly-traded companies reasonably similar to Price Enterprises, Inc.
Material changes in the industry or in market conditions which might affect
Price Enterprises, Inc's business from and after the effective date of the
proposed transaction which are not reasonably foreseeable are not taken into
account.
Our opinion is necessarily based on economic, market, financial and other
conditions as of the date herein. While various judgements and estimates which
we consider reasonable and appropriate under the circumstances were made by
Valuation in the determination of value, no assurance can be given by Valuation
that the sale price which might subsequently be realized in any future
transaction, if and when effected, will be at the value presented in our
analysis.
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EXHIBIT B
The following is a summary of the financial analyses Valuation Research
Corporation ("VRC") utilized in connection with providing its written opinion to
the Board of Directors.
Comparable Companies Analysis: Valuation Research Corporation ("VRC")
compared selected publicly-available historical and projected stock market data
and financial results for Price Enterprises, Inc to the corresponding data of
the following companies: Burnham Pacific Properties, Inc., Developers
Diversified Realty Corp., JDN Realty Corporation, Kimco Realty Corporation, and
Weingarten Realty Investors ("Comparable Companies"). Such data included, among
other things, multiples of current stock price to 1998 funds from operations per
share ("1998 FFO") (defined as net income plus depreciation and amortization,
excluding gains on sales of property, non-recurring charges, and other
extraordinary items) and projected 1999 funds from operations per share ("1999
Projected FFO"). All of the trading multiples of the Comparable Companies were
based on closing stock prices as of April 30, 1999 and all FFO per share
estimates were based on projections published, in the case of the Comparable
Companies, by First Call and, in the case of Price, projections provided by
management. Accordingly, such estimated projections may or may not prove to be
accurate.
Comparable Transactions Analysis: Valuation Research Corporation also
analyzed publicly available information for five selected acquisition and merger
transactions between REITs deemed by VRC to be reasonably similar to the Merger.
In examining these transactions, VRC analyzed certain financial parameters of
the acquired company relative to the consideration offered. Combinations between
REITs compared included: (i) Kimco Realty Corporation and The Price REIT, Inc.,
(ii) Simon DeBartolo Group, Inc and Corporate Property Investors, (iii) Prime
Retail, Inc and Horizon Group, Inc., (iv) Excel Realty Trust, Inc., and New Plan
Realty Trust and (v) Santa Anita Realty Enterprises and Meditrust (the
"Comparable Transactions").
None of the companies or acquired entities utilized in the above comparable
companies analysis and comparable transactions analysis for comparative purposes
is, of course, identical to Price. Accordingly, a complete analysis of the
results of the foregoing calculations cannot be limited to a quantitative review
of such results and involves complex considerations and judgment concerning
differences in financial and operating characteristics of the Comparable
Companies and the acquired entities and other factors that could affect the
value of the Comparable Companies and acquired entities as well as that of
Price.
Discounted Cash Flow Analysis: VRC performed a discounted cash flow
analysis of the projected cash flow of Price Enterprises, Inc for calendar years
1999 through 2003, based in part on internal estimates provided by management.
The stand-alone discounted cash flow analysis of Price was determined by (i)
adding (a) the present value of projected free cash flows over the five-year
period from 1999 to 2003 and (b) the present value of the estimated terminal
value of Price in year 2003 and (ii) subtracting the value of any long-term debt
and preferred stock of Price. The estimated terminal value was calculated based
on a perpetuity formula assuming a
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2.0% growth rate. The cash flows and terminal values of Price were discounted to
present value using a discount rate of 10.0%.
Premiums Paid Analysis: VRC also examined the history of the trading
prices and volume for the shares of Price common stock. This examination showed
that during April 30, 1998 and April 30, 1999, Price's common stock traded in
the range of $4.35 and $5.81 per share.
Average Transaction Premium Analysis: VRC reviewed mergers and
acquisitions in the real estate industry utilizing publicly available data to
derive an average premium paid over the public trading prices per share five
days prior to the announcement of such transactions in 1997. VRC noted that the
reasons for, and circumstances surrounding, each of the transactions analyzed
were diverse and that premiums fluctuate among different industry sectors based
on perceived growth, synergies, strategic value and the type of consideration
utilized in the transaction. The analysis indicated that the average premium
paid over trading prices was 22.5% in 1997. It is worth noting that based on the
offer price of $8.50, Price is receiving a premium of 46.3% over its closing
price as of April 30, 1999.
U.S. REIT Unsecured Debt and Preferred Stock Issues Analysis: VRC reviewed
recently issued unsecured debt and preferred stocks in the U.S. REIT industry.
This examination showed that U.S. REIT unsecured debt issues with a rating of
between Baa1/BBB+ to Baa3/BBB- had a coupon rate range of 6.7% to 7.75%. Also,
newly issued U.S. REIT Preferred Stocks with a rating of between ba2/BB+ to
baa2/BBB+ had a coupon in the range of 8.25% to 9.5% and a corresponding yield
range of 8.29% and 9.49%.
Both the Legacy's 10.0% Senior Notes and the 9.0% Legacy's Convertible
Subordinated Notes offer a coupon rate at the high end of the above described
unsecured debt issues and preferred stocks. Furthermore, the 9.0% Legacy's
Convertible Subordinated Notes offer the holders the potential to benefit from
any potential appreciation in Legacy's equity market value.
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WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR OTHER PERSON TO GIVE ANY
INFORMATION OR REPRESENT ANYTHING TO YOU OTHER THAN THE INFORMATION CONTAINED IN
THIS PROSPECTUS. YOU MUST NOT RELY ON UNAUTHORIZED INFORMATION OR
REPRESENTATIONS.
THIS PROSPECTUS DOES NOT OFFER TO SELL OR ASK FOR OFFERS TO BUY ANY OF THE
SECURITIES IN ANY JURISDICTION WHERE IT IS UNLAWFUL, WHERE THE PERSON MAKING THE
OFFER IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON WHO CAN NOT LEGALLY BE OFFERED
THE SECURITIES.
THE INFORMATION IN THIS PROSPECTUS IS CURRENT ONLY AS OF THE DATE ON ITS
COVER, AND MAY CHANGE AFTER THAT DATE. FOR ANY TIME AFTER THE COVER DATE OF THIS
PROSPECTUS, WE DO NOT REPRESENT THAT OUR AFFAIRS ARE THE SAME AS DESCRIBED OR
THAT THE INFORMATION IN THIS PROSPECTUS IS CORRECT -- NOR DO WE IMPLY THOSE
THINGS BY DELIVERING THIS PROSPECTUS OR SELLING SECURITIES TO YOU.
-------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Questions and Answers About Our Offer...... 1
Prospectus Summary......................... 3
Risk Factors............................... 18
Forward-Looking Statements................. 31
The Exchange Offer......................... 32
Description of the Agreements.............. 54
Description of Legacy Capital Stock........ 58
Description of the Legacy Debentures
and the Legacy Notes..................... 60
Information About Legacy................... 73
Information About Enterprises.............. 79
Directors and Management of Enterprises
Following the Exchange Offer............. 83
Benefits to Enterprises' Insiders in the
Exchange Offer........................... 84
Comparison of Stockholder Rights........... 87
Summary Selected Financial Data of
Legacy................................... 102
Summary Selected Financial Data of
Enterprises.............................. 103
Excel Legacy Corporation Unaudited Pro
Forma Operating and Financial
Information.............................. 104
Price Enterprises, Inc. Unaudited Pro Forma
Operating and Financial Information...... 110
United States Federal Income Tax
Consequences............................. 115
Legal Matters.............................. 121
Experts.................................... 122
Where You Can Find More Information........ 123
</TABLE>
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EXCEL LEGACY CORPORATION
OFFER TO EXCHANGE
$8.50 COMPRISED OF
$[4.25] IN CASH,
$[2.75] IN PRINCIPAL AMOUNT OF
9.0% CONVERTIBLE REDEEMABLE SUBORDINATED
DEBENTURES DUE 2004
AND
$[1.50] IN PRINCIPAL AMOUNT OF
10.0% SENIOR REDEEMABLE NOTES DUE 2004
OF
EXCEL LEGACY CORPORATION
FOR
ANY AND ALL SHARES OF COMMON STOCK
OF PRICE ENTERPRISES, INC.
--------------------
PROSPECTUS
--------------------
, 1999
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<PAGE> 153
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Articles Eighth and Ninth of the Amended and Restated Certificate of
Incorporation (the "Company Certificate") of Excel Legacy Corporation (the
"Company") and Article VIII of the Amended and Restated Bylaws of Company (the
"Company Bylaws," with Articles Eighth and Ninth of the Company Certificate and
Article VIII of the Company Bylaws hereinafter referred to as the "Director
Liability and Indemnification Provisions") limit the personal liability of the
Company's directors to the Company or its stockholders for monetary damages for
breach of fiduciary duty.
The Director Liability and Indemnification Provisions define and clarify
the rights of certain individuals, including the Company's directors and
officers, to indemnification by the Company in the event of personal liability
or expenses incurred by them as a result of certain litigation against them.
Such provisions are consistent with Section 102(b)(7) of the DGCL, which is
designed, among other things, to encourage qualified individuals to serve as
directors of Delaware corporations by permitting Delaware corporations to
include in their articles or certificates of incorporation a provision limiting
or eliminating directors' liability for monetary damages and with other existing
DGCL provisions permitting indemnification of certain individuals, including
directors and officers. The limitations of liability in the Director Liability
and Indemnification Provisions may not affect claims arising under the federal
securities laws.
In performing their duties, directors of a Delaware corporation are
obligated as fiduciaries to exercise their business judgment and act in what
they reasonably determine in good faith, after appropriate consideration, to be
the best interests of the corporation and its stockholders. Decisions made on
that basis are protected by the "business judgment rule." The business judgment
rule is designed to protect directors from personal liability to the corporation
or its stockholders when business decisions are subsequently challenged.
However, the expense of defending lawsuits, the frequency with which unwarranted
litigation is brought against directors and the inevitable uncertainties with
respect to the outcome of applying the business judgment rule to particular
facts and circumstances mean that, as a practical matter, directors and officers
of a corporation rely on indemnity from, and insurance procured by, the
corporation they serve as a financial backstop in the event of such expenses or
unforeseen liability. The Delaware legislature has recognized that adequate
insurance and indemnity provisions are often a condition of an individual's
willingness to serve as director of a Delaware corporation. The DGCL has for
some time specifically permitted corporations to provide indemnity and procure
insurance for its directors and officers.
Set forth below is a description of the Director Liability and
Indemnification Provisions. Such description is intended as a summary only and
is qualified in its entirety by reference to the Company Certificate and the
Company Bylaws.
Elimination of Liability in Certain Circumstances. Article Ninth of the
Company Certificate protects directors against monetary damages for breaches of
their fiduciary
II-1
<PAGE> 154
duty of care, except as set forth below. Under the DGCL, absent Article Ninth
directors could generally be held liable for gross negligence for decisions made
in the performance of their duty of care but not for simple negligence. Article
Ninth eliminates director liability for negligence in the performance of their
duties, including gross negligence. Directors remain liable for breaches of
their duty of loyalty to the Company and its stockholders, as well as acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law and transactions from which a director derives improper
personal benefit. Article Ninth does not eliminate director liability under
Section 174 of the DGCL, which makes directors personally liable for unlawful
dividends or unlawful stock repurchases or redemptions and expressly sets forth
a negligence standard with respect to such liability.
While Article Ninth provides directors with protection from awards of
monetary damages for breaches of the duty of care, it does not eliminate the
directors' duty of care. Accordingly, Article Ninth will have no effect on the
availability of equitable remedies such as an injunction or rescission based
upon a director's breach of the duty of care. The provisions of Article Ninth
which eliminate liability as described above will apply to officers of the
Company only if they are directors of the Company and are acting in their
capacity as directors, and will not apply to officers of the Company who are not
directors. The elimination of liability of directors for monetary damages in the
circumstances described above may deter persons from bringing third-party or
derivative actions against directors to the extent such actions seek monetary
damages.
Indemnification and Insurance. Under Section 145 of the DGCL, directors
and officers as well as other employees and individuals may be indemnified
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation -- a "derivative action") if they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with defense or settlement of such an action, and the
DGCL requires court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the Company.
Article VIII of the Company Bylaws provides that all directors and officers
of the Company are entitled to indemnification as set forth in the Company
Certificate.
Article Eighth of the Company Certificate provides that each person who was
or is made a party to, or is involved in any action, suit or proceeding by
reason of the fact that he is or was a director, officer of employee of the
Company will be indemnified by the Company against all expenses and liabilities,
including counsel fees, paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. Article
Eighth also provides that the right of indemnification shall be in
II-2
<PAGE> 155
addition to and not exclusive of all other right to which such director, officer
or employee may be entitled.
Policies of insurance may be obtained and maintained by the Company under
which its directors and officers will be insured against certain expenses in
connection with the defense of, and certain liabilities which might be imposed
as a result of, actions, suits or proceedings to which they are parties by
reason of being or having been such directors or officers.
The Company has entered into indemnification agreements with its executive
officers and directors pursuant to which the Company has agreed to indemnify
these officers and directors exclusive of any other rights of indemnification or
advancement of expenses pursuant to the DGCL, the Company Certificate and the
Company Bylaws.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
A list of exhibits filed with this registration statement on Form S-4 is
described on the Exhibit Index and is incorporated herein by reference.
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described under Item 20 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
(c) The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into this prospectus pursuant to
Items 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means.
II-3
<PAGE> 156
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding to
the request.
(d) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(e) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the SEC under Section 305(b)(2) of the Act.
II-4
<PAGE> 157
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 1 to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of San Diego, State of California, on July 27, 1999.
EXCEL LEGACY CORPORATION
By: /s/ RICHARD B. MUIR
-----------------------------------
Richard B. Muir
Executive Vice President and
Secretary
Pursuant to the requirements of the Securities Act, this Amendment No. 1 to
the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
GARY B. SABIN* Chairman, President and July 27, 1999
- ------------------------------------------------ Chief Executive Officer
Gary B. Sabin (Principal Executive
Officer)
/s/ RICHARD B. MUIR Director, Executive Vice July 27, 1999
- ------------------------------------------------ President and Secretary
Richard B. Muir
KELLY D. BURT* Director and Executive July 27, 1999
- ------------------------------------------------ Vice
Kelly D. Burt President -- Development
JAMES Y. NAKAGAWA* Chief Financial Officer July 27, 1999
- ------------------------------------------------ (Principal Financial and
James Y. Nakagawa Accounting Officer)
RICHARD J. NORDLUND* Director July 27, 1999
- ------------------------------------------------
Richard J. Nordlund
ROBERT E. PARSONS, JR.* Director July 27, 1999
- ------------------------------------------------
Robert E. Parsons, Jr.
ROBERT S. TALBOTT* Director July 27, 1999
- ------------------------------------------------
Robert S. Talbott
JOHN H. WILMOT* Director July 27, 1999
- ------------------------------------------------
John H. Wilmot
By: /s/ RICHARD B. MUIR*
----------------------------------------------
Richard B. Muir
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 158
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
3.1 Amended and Restated Certificate of Incorporation of Excel
Legacy Corporation, incorporated by reference to Exhibit 3.1
to Excel Legacy Corporation's Registration Statement on Form
S-11 as filed with the SEC on June 11, 1998 (File No.
333-55715).
3.2 Amended and Restated Bylaws of Excel Legacy Corporation,
incorporated by reference to Exhibit 3.2 to Excel Legacy
Corporation's Registration Statement on Form S-11 as filed
with the SEC on June 11, 1998 (File No. 333-55715).
4.1 Form of Common Stock Certificate, incorporated by reference
to Exhibit 4.1 to Excel Legacy Corporation's Registration
Statement on Form 10 as filed with the SEC on December 12,
1998 (File No. 0-23503).
4.2 Form of Indenture for 9.0% Convertible Redeemable
Subordinated Debentures due 2004.(3)
4.3 Form of Indenture for 10.0% Senior Redeemable Notes due
2004.(3)
5.1 Opinion of Latham & Watkins.(2)
8.1 Opinion of Latham & Watkins regarding certain tax
matters.(2)
10.1 Agreement dated as of May 12, 1999 by and among Excel Legacy
Corporation and the other individuals and entities listed on
the signature pages thereto (filed as Annex A to the
Prospectus included in this Registration Statement).
10.2 Agreement dated as of June 2, 1999 between Excel Legacy
Corporation and Price Enterprises, Inc. (filed as Annex B to
the Prospectus included in this Registration Statement).
10.3 Letter dated June 2, 1999 from Excel Legacy Corporation to
Price Enterprises, Inc. regarding the status of Price
Enterprises, Inc. as a REIT.(1)
23.1 Consent of Latham & Watkins (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.(2)
23.3 Consent of Ernst & Young LLP.(2)
23.4 Consent of Valuation Research Corporation.(2)
24.1 Powers of Attorney.(1)
25.1 Statement of Eligibility of Trustee on Form T-1.(3)
</TABLE>
- -------------------------
(1) Previously filed
(2) Filed herewith.
(3) To be filed by amendment.
<PAGE> 1
EXHIBIT 5.1
[LATHAM & WATKINS LETTERHEAD]
July 27, 1999
Excel Legacy Corporation
16955 Via Del Campo, Suite 100
San Diego, CA 92127
Re: Registration Statement on Form S-4 (File No. 333-80339);
9.0% Convertible Subordinated Debentures and 10.0% Senior
Notes
Ladies and Gentlemen:
In connection with the registration of (i) 9.0% Convertible
Subordinated Debentures due 2004 (the "Debentures") of Excel Legacy Corporation,
a Delaware corporation (the "Company"), and (ii) 10.0% Senior Notes due 2004
(the "Notes," and together with the Debentures, the "Securities") by the
Company, under the Securities Act of 1933, as amended (the "Act"), pursuant to a
Registration Statement on Form S-4 filed with the Securities and Exchange
Commission (the "Commission") on June 9, 1999 (File No. 333-80339), as amended
by Amendment No. 1 filed with the Commission on July 27, 1999 (collectively, the
"Registration Statement"), you have requested our opinion with respect to the
matters set forth below.
The Debentures will be issued pursuant to an indenture, the form
of which is attached as an exhibit to the Registration Statement, by and among
the Company and a trustee to be named (the "Trustee"), as the same may be
amended or supplemented from time to time (the "First Indenture"). The Notes
will be issued pursuant to an indenture, the form of which is attached as an
exhibit to the Registration Statement, by and among the Company and the Trustee,
as the same may be amended or supplemented from time to time (the "Second
Indenture," and together with the First Indenture, the "Indentures").
<PAGE> 2
LATHAM & WATKINS
Excel Legacy Corporation
July 27, 1999
Page 2
In our capacity as your counsel in connection with such
registration, we are familiar with the proceedings taken by the Company in
connection with the authorization and issuance of the Securities. In addition,
we have made such legal and factual examinations and inquiries, including an
examination of originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and instruments, as we have
deemed necessary or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us
as copies.
We are opining herein as to the effect on the subject transaction
only of the federal laws of the United States, the internal laws of the State of
New York, and the General Corporation Law of the State of Delaware, including
statutory and reported decisional law thereunder, and we express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of any
other jurisdiction or, in the case of Delaware, any other laws, or as to any
matters of municipal law or the laws of any other local agencies within any
state.
Subject to the foregoing and the other matters set forth herein,
it is our opinion that as of the date hereof:
(1) Subject to the due execution and delivery of the Indentures by the
Company, the Securities have been duly authorized by all necessary corporate
action of the Company, and when executed, authenticated and delivered by or on
behalf of the Company against payment therefor in accordance with the terms of
the First Indenture or the Second Indenture, as applicable, will constitute
legally valid and binding obligations of the Company.
(2) The shares of Common Stock issuable upon conversion of the
Debentures have been duly authorized, and when issued upon conversion of the
Debentures in accordance with the terms of the First Indenture, will be validly
issued, fully paid and nonassessable.
The opinions set forth in paragraph 1 are subject to the
following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors, (ii) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or law, and the discretion of the court
before which any proceeding therefor may be brought and (iii) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy. We express no opinion concerning the enforceability of the waiver
of rights or defenses contained in Section 4.04 of each of the Indentures.
<PAGE> 3
LATHAM & WATKINS
Excel Legacy Corporation
July 27, 1999
Page 3
To the extent that the obligations of the Company under each of
the Indentures may be dependent upon such matters, we assume for purposes of
this opinion that the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Trustee is
duly qualified to engage in the activities contemplated by each of the
Indentures; that each of the Indentures has been duly authorized, executed and
delivered by the Trustee and constitutes the legally valid, binding and
enforceable obligation of the Trustee enforceable against the Trustee in
accordance with its terms; that the Trustee is in compliance, generally and with
respect to acting as a trustee under each of the Indentures, with all applicable
laws and regulations; and that the Trustee has the requisite organizational and
legal power and authority to perform its obligations under each of the
Indentures.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm contained under the
heading "Legal Matters."
Very truly yours,
LATHAM & WATKINS
<PAGE> 1
EXHIBIT 8.1
[LATHAM & WATKINS LETTERHEAD]
July 27, 1999
Excel Legacy Corporation
16955 Via Del Campo, Suite 100
San Diego, California 92127
Re: Excel Legacy Corporation
Ladies and Gentlemen:
We have acted as special tax counsel to Excel Legacy Corporation, a
Delaware corporation (the "Company"), in connection with the registration of (i)
9.0% Convertible Subordinated Debentures due 2004 of the Company (the
"Debentures"), (ii) 10.0% Senior Notes due 2004 of the Company (the "Notes"),
and (iii) Common Stock, par value $0.01 per share, of the Company issuable upon
conversion of the Debentures (the "Common Stock"), pursuant to a Registration
Statement on Form S-4 under the Securities Act of 1933, as amended, filed with
the Securities and Exchange Commission on June 9, 1999 (File No. 333-80339) (as
amended, and together with the information incorporated by reference or deemed
included therein, the "Registration Statement"). In accordance with the terms of
the Stockholders Agreement (as defined in the Registration Statement), the
Company agreed to offer (the "Exchange Offer") to all holders of Common Stock of
Price Enterprises, Inc., a Maryland corporation ("PEI"), $8.50 per share for all
outstanding shares of PEI Common Stock, comprised of $4.25 in cash, $2.75 in
principal amount of the Debentures, and $1.50 in principal amount of the Notes.
You have requested our opinion concerning certain of the material United
States federal income tax consequences in connection with the Exchange Offer.
In formulating our opinion, we examined such documents as we deemed
appropriate, including (i) the Registration Statement, (ii) the Stockholders
Agreement, (iii) the Company's charter and
<PAGE> 2
LATHAM & WATKINS
Excel Legacy Corporation
July 27, 1999
Page 2
bylaws, and (iv) such other records, certificates and documents as we have
deemed necessary or appropriate for purposes of rendering the opinion set forth
herein. In addition, we have obtained such additional information as we deemed
relevant and necessary through consultation with various officers and
representatives of the Company. This opinion is based on various statements of
fact and assumptions, including the statements of fact and representations set
forth in the Registration Statement. The opinions expressed herein are
conditioned on the initial and continuing accuracy of the facts, information,
statements and representations set forth in the documents and filings referred
to herein.
As special tax counsel, we have made such legal and factual examinations
and inquiries, including an examination of originals or copies certified or
otherwise identified to our satisfaction of such documents, corporate records
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion. For purposes of this opinion, we have not made an independent
investigation or audit of the facts set forth in the above referenced documents.
In our examination, we have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures thereon, the
legal capacity of natural persons executing such documents and the conformity to
authentic original documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction only
of the federal income tax laws of the United States, and we express no opinion
with respect to the applicability thereto, or the effect thereon, of other
federal laws, the laws of any other jurisdiction or as to any matters of
municipal law or the laws of any other local agencies within any state. We
express no opinion as to (i) whether PEI was organized in conformity with the
requirements for qualification and taxation as a real estate investment trust
under the Internal Revenue Code of 1986, as amended (the "Code"), (ii) whether
PEI's method of operation has enabled PEI to meet the requirements for
qualification and taxation as a real estate investment trust under the Code, or
(iii) the effect of the Exchange Offer on PEI's status as a real estate
investment trust.
Based on such facts, assumptions and representations and subject to the
limitations set forth herein and in the Registration Statement, it is our
opinion that the statements in the Registration Statement set forth under the
caption "United States Federal Income Tax Consequences," to the extent such
statements constitute matters of law, summaries of legal matters or legal
conclusions, are the material United States federal income tax consequences
relevant to the Exchange Offer and the acquisition, ownership and disposition of
the Debentures, Notes and Common Stock by United States Holders (as defined in
the "United States Federal Income Tax Consequences" portion of the Registration
Statement).
No opinion is expressed as to any matter not discussed herein. This
opinion is based on various statutory provisions, regulations promulgated
thereunder and interpretations thereof by the Internal Revenue Service and the
courts having jurisdiction over such matters, all of which are subject to change
either prospectively or retroactively. Any such change may affect the
conclusions stated
<PAGE> 3
LATHAM & WATKINS
Excel Legacy Corporation
July 27, 1999
Page 3
herein. Also, any variation or difference in the facts, information, statements
and representations from those set forth in the statements of fact and
representations set forth in the Registration Statement may affect the
conclusions stated herein.
This opinion is rendered only to you and is solely for your use in
connection with the Registration Statement. This opinion may not be relied upon
by you for any other purpose, or furnished to, quoted to, or relied upon by any
other person, firm or corporation for any purpose, without our prior written
consent. This opinion speaks only as of the date hereof and we have no
responsibility or obligation to update this opinion, to consider its
applicability or correctness to other than its addressees, or to take into
account changes in law, facts or any other development of which we may later
become aware.
We hereby consent to being named as counsel to the Company in the
Registration Statement, to the references in the Registration Statement to our
firm and to the inclusion of a copy of this opinion letter as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended.
Very truly yours,
LATHAM & WATKINS
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-4 of our report dated October 22, 1998 relating to the
consolidated financial statements and financial statement schedules of Excel
Legacy Corporation, which appear in Excel Legacy Corporation's annual report on
Form 10-K/A for the period from inception (November 17, 1997) to July 31, 1998.
We also consent to the incorporation by reference in this Registration Statement
on Form S-4 of our report dated November 24, 1997 relating to the combined
financial statements of Excel Legacy Asset Group, which appear in Excel Legacy
Corporation's annual report on Form 10-K/A for the period from inception
(November 17, 1997) to July 31, 1998. We also consent to the reference to us
under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
San Diego, California
July 26, 1999
<PAGE> 1
Exhibit 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4, No. 333-80339) and related Prospectus of Excel
Legacy Corporation for the registration of certain securities and to the
incorporation by reference therein of our reports (a) dated January 19, 1999
(except for Note 12, as to which the date is January 22, 1999), with respect to
the consolidated financial statements and schedule of Price Enterprises, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
and (b) dated June 24, 1998 with respect to the statements of revenue over
specific operating expenses of the Sacramento Office Complex of Price
Enterprises, Inc. included in its Current Report on Amendment No. 1 to Form 8-K
dated May 1, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Diego, California
July 20, 1999
<PAGE> 1
Exhibit 23.4
CONSENT OF VALUATION RESEARCH CORPORATION
We hereby consent to the use of our opinion letter dated May 18, 1999,
including Exhibits A and B, to the Board of Directors of Price Enterprises, Inc.
included as Annex C to the Prospectus which forms a part of the Registration
Statement on Form S-4 relating to the exchange offer by Excel Legacy Corporation
for any and all shares of common stock of Price Enterprises, Inc., and to the
references to such opinion in such Prospectus under the captions "The Exchange
Offer--Background of the Exchange Offer," The Exchange Offer--Enterprises'
Reasons for the Exchange Offer" and "The Exchange Offer--Fairness Opinion." In
giving such consent, we do not admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder, nor do we thereby admit that we are experts with respect to any part
of such Registration Statement within the meaning of the term "experts" as used
in the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
VALUATION RESEARCH CORPORATION
/s/ Dennis C. Valerio
-------------------------------
Dennis C. Valerio
President
Los Angeles, California
July 26, 1999
