<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 8, 1997 (July 3, 1997)
SIMON DeBARTOLO GROUP, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 1-12618 35-1901999
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
115 WEST WASHINGTON STREET
INDIANAPOLIS, INDIANA 46204
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number, including area code: (317) 636-1600
NOT APPLICABLE
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
Simon DeBartolo Group, Inc., a Maryland corporation (the "Company"), is
filing this Current Report on Form 8-K in connection with the issuance of
3,000,000 shares of its 7.89% Series C Cumulative Step-Up Premium Rate Preferred
Stock, par value $0.0001 per share (the "Series C Preferred Stock"). The Series
C Preferred Stock was registered as part of the Company's Registration Statement
on Form S-3 (File No. 333-11431), which was declared effective by the Securities
and Exchange Commission on September 20, 1996. On July 3, 1997, the Company
entered into a Terms Agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Underwriter") covering the sale by the Company of the Series
C Preferred Stock.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits:
The exhibits listed below relate to the Registration Statement (No. 333-11431)
on Form S-3 of the Company and are filed herewith for incorporation by reference
in such Registration Statement.
<TABLE>
<CAPTION>
Exhibit Number
(Referenced to Item 601
of Regulation S-K) Description of Exhibit
------------------ ----------------------
<S> <C>
1.1 Terms Agreement, dated July 3, 1997
4.1 Articles Supplementary to the Amended and
Restated Articles of Incorporation of the
Company with respect to the Series C Preferred
Stock
4.2 Form of Stock Certificate for the Series C
Preferred Stock
5 Opinion of Piper & Marbury L.L.P., Maryland
counsel to the Company, as to the legality of the
Series C Preferred Stock
8 Opinion of Baker & Daniels, counsel to the
Company, as to certain federal tax matters
</TABLE>
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: July 8, 1997
SIMON DeBARTOLO GROUP, INC.
By: /s/ Richard S. Sokolov
--------------------------------------
Richard S. Sokolov, President
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1.1 Terms Agreement, dated July 3, 1997
4.1 Articles Supplementary to the Amended and Restated Articles of
Incorporation of the Company with respect to the Series C
Preferred Stock
4.2 Form of Stock Certificate for the Series C Preferred Stock
5 Opinion of Piper & Marbury L.L.P., Maryland counsel to the
Company, as to the legality of the Series C Preferred Stock
8 Opinion of Baker & Daniels, counsel to the Company, as to
certain federal tax matters
</TABLE>
<PAGE> 1
EXHIBIT 1.1
SIMON DeBARTOLO GROUP, INC.
(a Maryland corporation)
3,000,000 Shares
Step-Up Premium Rate(SM) Preferred Stock ("SUPeR(SM) Preferred Stock")
Series C
TERMS AGREEMENT
July 3, 1997
To: Simon DeBartolo Group, Inc.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We understand that Simon DeBartolo Group, Inc., a
Maryland corporation (the "Company"), proposes to issue and sell 3,000,000
shares of its 7.89% Series C Cumulative SUPeR(SM) Preferred Stock, par value
$0.0001 per share (the "Series C SUPeR Preferred Stock") (such Series C SUPeR
Preferred Stock being hereinafter referred to as the "Initial Underwritten
Securities"). Subject to the terms and conditions set forth or incorporated by
reference herein, we offer to purchase, 3,000,000 shares of Series C SUPeR
Preferred Stock at the purchase price set forth below.
<PAGE> 2
The Underwritten Securities shall have the following terms:
<TABLE>
<S> <C>
Title: 7.89% Series C Cumulative SUPeR Preferred Stock (par value
$.0001 per share) (Liquidation Preference Equivalent to $50 per
share).
Rank: The Series C SUPeR Preferred Stock will rank pari passu with any other preferred shares
and will rank senior to the Common Stock of the Company and any other shares of the
Company ranking junior to the Series C SUPeR Preferred Stock.
Anticipated Ratings: BBB by Standard & Poor's; baa2 by Moody's; BBB by Fitch.
Number of shares: 3,000,000 shares.
Number of Option
Underwritten Securities: None.
Dividend Rate: 7.89% of the liquidation preference per share of Series C SUPeR Preferred Stock
per annum from July 9, 1997 to and including September 30, 2012; thereafter, beginning
October 1, 2012, at 9.89% of the liquidation preference per share of Series C SUPeR
Preferred Stock.
Dividend payment dates: March 31, June 30, September 30, and December 31 (or, if not a
business day, then the immediately succeeding business day),
commencing on September 30, 1997.
Stated value: $50
Liquidation preference
per share: $50
Redemption provisions: The Series C SUPeR Preferred Shares are not redeemable prior to
September 30, 2007. On and after September 30, 2007, the Series C
SUPeR Preferred Shares will be redeemable for cash at the option of the
Company, in whole or in part, at $50.00 per share, plus distributions
accrued and unpaid to the redemption date. The redemption price (other
than the portion thereof consisting of accrued and unpaid distributions) is
payable solely out of the sale proceeds of other capital shares of the
Company which may include other series of preferred shares, and from no
other source.
Sinking fund
requirements: N/A.
Conversion provisions: The Series C SUPeR Preferred Shares are not convertible or exchangeable
for any other property or securities of the Company.
Voting rights: If distributions on the Series C SUPeR Preferred Shares are in
arrears for six or more quarterly periods, whether or not
consecutive, holders of the Underwritten Securities (voting
separately as a class with all other series of preferred shares upon
which like voting rights have been conferred and are exercisable)
will be entitled to vote for the election of two additional Directors
to serve on the Board of Directors of the Company until all
distribution arrearage are paid.
Listing requirements: NYSE.
Black-out provisions: N/A.
Initial public offering price
per share: $50 plus accrued dividends, if any, from the date of original issue.
Purchase price per share: $48.75.
Other terms and conditions: N/A.
Closing date and location: 10:00 A.M., New York City time, July 9, 1997 at the offices of Rogers &
Wells, 200 Park Avenue, New York, New York 10166.
</TABLE>
<PAGE> 3
All of the provisions contained in the document attached as Annex I
hereto entitled "SIMON DeBARTOLO GROUP, INC.--Common Stock, Warrants to Purchase
Common Stock, Preferred Stock, Warrants to Purchase Preferred Stock and
Depositary Shares--Underwriting Agreement" are hereby incorporated by reference
in their entirety herein and shall be deemed to be a part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Terms defined in such document are used herein as therein defined.
<PAGE> 4
Please accept this offer no later than 12:00 o'clock P.M. (New York City
time) on July 3, 1997 by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
--------------------------------------
Name: Martin J. Cicco
Title: Authorized Signatory
Accepted:
SIMON DeBARTOLO GROUP, INC.
By: /s/ David Simon
-------------------------------------
Name: David Simon
Title:Chief Executive Officer
<PAGE> 1
EXHIBIT 4.1
SIMON DeBARTOLO GROUP, INC.
ARTICLES SUPPLEMENTARY
SIMON DeBARTOLO GROUP, INC., a Maryland corporation, having its
principal office in Baltimore City, Maryland (the "Corporation"), hereby
certifies to the Maryland State Department of Assessment and Taxation that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article SIXTH of the Charter of the Corporation,
the Board of Directors has duly reclassified 3,000,000 shares of the Common
Stock (par value $.0001 per share) ("Common Stock") of the Corporation into
3,000,000 shares of a class designated as 7.89% Series C Cumulative Step-Up
Premium Rate Preferred Stock (par value $.0001 per share) of the Corporation
("Series C Preferred Stock") and has provided for the issuance of such shares.
SECOND: The reclassification increases the number of shares
classified as Series C Preferred Stock from no shares immediately prior to the
reclassification to 3,000,000 shares immediately after the reclassification. The
reclassification decreases the number of shares classified as Common Stock from
374,796,000 shares immediately prior to the reclassification to 371,796,000
shares immediately after the reclassification.
THIRD: The following is a description of the Series C Preferred
Stock of the Corporation. The paragraph cross references in the description of
the Series C Preferred Stock of the Corporation are consistent with it becoming
paragraph (c-4) of Article SIXTH of the Charter of the Corporation. Capitalized
terms used and not otherwise defined herein shall have the meanings given them
in the Charter of the Corporation.
(c-4) Subject in all cases to the provisions of Article NINTH of
the Charter of the Corporation with respect to Excess Stock, the following is a
description of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of Series C Preferred Stock of the Corporation:
(1) The designation of the Series C Preferred Stock described in
Article FIRST of the related Articles Supplementary shall be "7.89%
Series C Cumulative Step-Up Premium Rate Preferred Stock (par value
$.0001 per share)." The number of shares of Series C Preferred Stock to
be authorized shall be 3,000,000.
(2) All shares of Series C Preferred Stock redeemed, purchased,
exchanged, unissued (after the initial issuance) or otherwise acquired by
the Corporation shall be restored to the status of authorized but
unissued shares of Series C Preferred Stock and thereafter may be
reclassified and issued, but not as Series C Preferred Stock.
<PAGE> 2
(3) The Series C Preferred Stock shall, with respect to dividend
rights, rights upon liquidation, winding up or dissolution, and
redemption rights, rank (A) junior to any other class or series of
preferred stock hereafter duly established by the Board of Directors of
the Corporation, the terms of which shall specifically provide that such
series shall rank prior to the Series C Preferred Stock as to the payment
of dividends, distribution of assets upon liquidation and redemption
rights (the "Senior Preferred Stock"), (B) pari passu with the Series A
Preferred Stock and Series B Preferred Stock of the Corporation, par
value $.0001 per share, and any other class or series of preferred stock
hereafter duly established by the Board of Directors of the Corporation,
the terms of which shall specifically provide that such class or series
shall rank pari passu with the Series C Preferred Stock as to the payment
of dividends, distribution of assets upon liquidation and redemption
rights (the "Parity Preferred Stock") and (C) prior to any other class or
series of preferred stock or other class or series of capital stock of or
other equity interests in the Corporation, including, without limitation,
all classes of the common stock of the Corporation, whether now existing
or hereafter created (all of such classes or series of capital stock and
other equity interests of the Corporation, including, without limitation,
the Common Stock, the Class B Common Stock and the Class C Common Stock
of the Corporation are collectively referred to herein as the "Junior
Stock").
(4) (A) Subject to the rights of series of Preferred Stock which
may from time to time come into existence, holders of the then
outstanding Series C Preferred Stock shall be entitled to receive, when
and as declared by the Board of Directors, out of funds legally available
for the payment of dividends, cumulative preferential cash dividends at
the rate of $3.945 per annum per share through September 30, 2012 and at
the rate of $4.945 per annum per share thereafter. Such dividends shall
accrue and be cumulative from the date of original issue and shall be
payable in equal amounts quarterly in arrears on the last day of March,
June, September and December or, if not a business day, the next
succeeding business day (each, a "Distribution Payment Date"). The first
dividend, which will be paid on September 30, 1997, will be for less than
a full quarter. Such first dividend and any dividend distribution payable
on Series C Preferred Stock for any partial distribution period will be
computed on the basis of a 360-day year consisting of twelve 30-day
months. Distributions will be payable to holders of record as they appear
in the share record books of the Corporation at the close of business on
the applicable record date, which shall be on the first day of the
calendar month in which the applicable Distribution Payment Date falls
(without giving effect to any extension to the next succeeding business
day) on or on such other date designated by the Board of Directors of the
Corporation for the payment of distributions that is not more than 30 nor
less than 10 days prior to such Distribution Payment Date (each, a
"Distribution Record Date").
(B) Dividends on Series C Preferred Stock will accrue and be
cumulative whether or not the Corporation has earnings, whether or not
there are funds legally available for the payment of such distributions
and whether or not such distributions are earned, declared or authorized.
No interest, or sum of money in lieu of interest, shall be payable in
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respect of any distribution payment or payments on Series C Preferred
Stock which may be in arrears. Dividends paid on the Series C Preferred
Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
per share basis among all such shares at the time outstanding.
(C) If, for any taxable year, the Corporation elects to
designate as "capital gain distributions" (as defined in Section 857 of
the Internal Revenue Code of 1986, as amended, or any successor revenue
code or section (the "Code")) any portion (the "Capital Gains Amount") of
the total distributions (as determined for federal income tax purposes)
paid or made available for the year to holders of all classes of capital
stock (the "Total Distributions"), then the portion of the Capital Gains
Amount that shall be allocable to holders of Series C Preferred Stock
shall be in the same percentage that the total distributions paid or made
available to the holders of Series C Preferred Stock for the year bears
to the Total Distributions.
(D) If any shares of Series C Preferred Stock are
outstanding, no distributions shall be declared or paid or set apart for
payment on any shares of any other series of Preferred Stock of the
Corporation ranking, as to distributions, on a parity with or junior to
Series C Preferred Stock for any period unless full cumulative
distributions have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such
payments on shares of Series C Preferred Stock for all past distribution
periods and the then current distribution period. When distributions are
not paid in full (or a sum sufficient for such full payment is not set
apart) upon the shares of Series C Preferred Stock and the shares of any
other series of Preferred Stock ranking on a parity as to distributions
with shares of Series C Preferred Stock, all distributions declared upon
shares of Series C Preferred Stock and any other series of Preferred
Stock ranking on a parity as to distributions with Series C Preferred
Stock shall be declared pro rata so that the amount of distributions
declared per share on Series C Preferred Stock and such other series of
Preferred Stock shall in all cases bear to each other the same ratio that
accrued distributions per share on Series C Preferred Stock and such
other series of Preferred Stock bear to each other.
(E) Except as provided in subparagraph (c-4) (4) (D) of
Article SIXTH, unless full cumulative distributions on shares of Series C
Preferred Stock have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for
payment for all past distribution periods and the then current
distribution period, no distributions (other than in shares of Common
Stock or other capital stock ranking junior to Series C Preferred Stock
as to distributions and upon liquidation) shall be declared or paid or
set aside for payment or other distribution shall be declared or made
upon the shares of Common Stock or other capital stock of the Corporation
ranking junior to or on a parity with Series C Preferred Stock as to
distributions or upon liquidation, nor shall any shares of Common Stock
or any other capital stock of the Corporation ranking junior to or on a
parity with Series C Preferred Stock as to distributions or upon
liquidation be redeemed,
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<PAGE> 4
purchased or otherwise acquired for any consideration (or any moneys be
paid to or made available for a sinking fund for the redemption of any
such capital stock) by the Corporation (except by conversion into or
exchange for other capital stock of the Corporation ranking junior to
Series C Preferred Stock as to distributions and amounts upon
liquidation).
(F) Any distribution payment made on shares of Series C
Preferred Stock shall first be credited against the earliest accrued but
unpaid distribution due with respect to shares of Series C Preferred
Stock which remain payable.
(G) No distributions on the Series C Preferred Stock shall be
authorized by the Board of Directors of the Corporation or be paid or set
apart for payment by the Corporation at such time as the terms and
provisions of any agreement of the Corporation, including any agreement
relating to its indebtedness, prohibits such authorization, payment or
setting apart for payment or provides that such authorization, payment or
setting apart for payment would constitute a breach thereof or a default
thereunder if such authorization or payment shall be restricted or
prohibited by law.
(H) Except as provided in this subparagraph (c-4) (4), the
Series C Preferred Stock shall not be entitled to participate in the
earnings or assets of the Corporation.
(5) (A) Subject to the rights of series of Preferred Stock which
may from time to time come into existence, upon any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, then, before any distribution or payment shall be made to
the holders of any Junior Stock, the holders of shares of Series C
Preferred Stock shall be entitled to receive out of assets of the
Corporation legally available for distribution to stockholders,
liquidation distributions in the amount of the liquidation preference of
$50.00 per share in cash or property having a fair market value as
determined by the Board of Directors valued at $50.00 per share, plus an
amount equal to all distributions accrued and unpaid at the date of such
liquidation, dissolution or winding up. After payment of the full amount
of the liquidating distributions to which they are entitled, the holders
of shares of Series C Preferred Stock will have no right or claim to any
of the remaining assets of the Corporation. In the event that, upon any
such voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation, the available assets of the Corporation
are insufficient to pay the amount of the liquidation distributions on
all outstanding shares of Series C Preferred Stock and the corresponding
amounts payable on all shares of Parity Preferred Stock, then the holders
of shares of Series C Preferred Stock and Parity Preferred Stock shall
share ratably in any such distribution of assets in proportion to the
full liquidating distributions to which they would otherwise be
respectively entitled.
(B) A consolidation or merger of the Corporation with or into
any other entity or entities, or a sale, lease, transfer, conveyance or
disposition of all or substantially all of the assets of the Corporation
or a statutory share exchange in which stockholders of
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<PAGE> 5
the Corporation may participate, shall not be deemed to be a liquidation,
dissolution or winding up of the affairs of the Corporation within the
meaning of this subparagraph (c-4) (5) of Article SIXTH.
(6) (A) Shares of Series C Preferred Stock are not redeemable prior
to September 30, 2007. On and after September 30, 2007, the Corporation
at its option upon not less than 30 nor more than 60 days' written
notice, may redeem outstanding shares of Series C Preferred Stock, in
whole or in part, at any time or from time to time, for cash at a
redemption price of $50.00 per share, plus an amount equal to all
distributions accrued and unpaid thereon to the date fixed for
redemption, without interest to the extent the Corporation will have
funds legally available therefor. The redemption price of shares of
Series C Preferred Stock (other than the portion thereof consisting of
accrued and unpaid distributions) is payable solely out of proceeds from
the sale of other capital stock of the Corporation, which may include
Common Stock, Preferred Stock, depositary shares, interests,
participations or other ownership interests in the Corporation however
designated, and any rights (other than debt securities converted into or
exchangeable for capital stock), warrants or options to purchase any
thereof, and not from any other source. Holders of shares of Series C
Preferred Stock to be redeemed shall surrender such shares of Series C
Preferred Stock at the place designated in such notice and shall be
entitled to the redemption price and any accrued and unpaid distributions
payable upon such redemption following such surrender. If fewer than all
of the outstanding shares of Series C Preferred Stock are to be redeemed,
the number of shares to be redeemed will be determined by the Corporation
and such shares may be redeemed pro rata from the holders of record of
such shares in proportion to the number of such shares held by such
holders (with adjustments to avoid redemption of fractional shares) or by
lot in a manner determined by the Corporation.
(B) Unless full cumulative distributions on all shares of
Series C Preferred Stock and Parity Stock shall have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for payment for all past distribution
periods and the then current distribution period, no shares of Series C
Preferred Stock or Parity Stock shall be redeemed unless all outstanding
shares of Series C Preferred Stock and Parity Preferred Stock are
simultaneously redeemed; provided, however, that the foregoing shall not
prevent the purchase or acquisition of shares of Series C Preferred Stock
or Parity Stock pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding shares of Series C Preferred Stock or
Parity Preferred Stock, as the case may be. Furthermore, unless full
cumulative distributions on all outstanding shares of Series C Preferred
Stock and Parity Preferred Stock have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment
thereof set apart for payment for all past distribution periods and the
then current distribution period, the Corporation shall not purchase or
otherwise acquire directly or indirectly any shares of Series C Preferred
Stock or Parity Preferred Stock (except by conversion into or exchange
for shares of capital stock of the Corporation ranking junior to Series C
Preferred Stock and Parity Preferred Stock as to distributions and upon
liquidation).
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<PAGE> 6
(C) Notice of redemption will be given by publication in a
newspaper of general circulation in the City of New York, such
publication to be made once a week for two successive weeks commencing
not less than 30 nor more than 60 days prior to the redemption date. A
similar notice will be mailed, postage prepaid, at least 30 days but not
more than 90 days before the redemption date, to each holder of record of
shares of Series C Preferred Stock at the address shown on the share
transfer books of the Corporation. Each notice shall state: (i) the
redemption date; (ii) the number of shares of Series C Preferred Stock to
be redeemed; (iii) the redemption price per share; (iv) the place or
places where certificates for shares of Series C Preferred Stock are to
be surrendered for payment of the redemption price; and (v) that
distributions on shares of Series C Preferred Stock will cease to accrue
on such redemption date. No failure to give such notice or any defect
thereto or in the mailing thereof shall affect the validity of the
proceeding for the redemption of any Series C Preferred Stock except as
to the holder to whom notice was defective or not given. If fewer than
all shares of Series C Preferred Stock are to be redeemed, the notice
mailed to each such holder thereof shall also specify the number of
shares of Series C Preferred Stock to be redeemed from each such holder.
If notice of redemption of any shares of Series C Preferred Stock has
been given and if the funds necessary for such redemption have been set
aside by the Corporation in trust for the benefit of the holders of
shares of Series C Preferred Stock so called for redemption, then from
and after the redemption date, distributions will cease to accrue on such
shares of Series C Preferred Stock, such shares of Series C Preferred
Stock shall no longer be deemed outstanding and all rights of the holders
of such shares will terminate, except the right to receive the redemption
price.
(D) The holders of shares of Series C Preferred Stock at the
close of business on a Distribution Record Date will be entitled to
receive the distribution payable with respect to such shares of Series C
Preferred Stock on the corresponding Distribution Payment Date
notwithstanding the redemption thereof between such Distribution Record
Date and the corresponding Distribution Payment Date or the Corporation's
default in the payment of the distribution due. Except as provided above,
the Corporation will make no payment or allowance for unpaid
distributions, whether or not in arrears, on shares of Series C Preferred
Stock which have been called for redemption.
(E) Series C Preferred Stock have no stated maturity and will
not be subject to any sinking fund or mandatory redemption, except as
provided in Article NINTH of the Charter of the Corporation.
(7) (A) Except as indicated in this subparagraph (c-4) (7) of
Article SIXTH, except as may be required by applicable law, or, at any
time Series C Preferred Stock are listed on a securities exchange, as may
be required by the rules of such exchange, the holders of shares of
Series C Preferred Stock will have no voting rights.
(B) If six quarterly distributions (whether or not
consecutive) payable on shares of Series C Preferred Stock are in
arrears, whether or not earned or declared, the
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<PAGE> 7
number of directors then constituting the Board of Directors of the
Corporation will be increased by two (except as provided in the proviso
to paragraph (c) to Article SEVENTH of the Charter), and the holders of
shares of Series C Preferred Stock, voting together as a class with the
holders of shares of any other series of Preferred Stock upon which like
voting rights have been conferred and are exercisable (any such other
series, the "Voting Preferred Stock"), will have the right to elect two
directors to serve on the Corporation's Board of Directors at any annual
meeting of stockholders or a special meeting of the holders of Series C
Preferred Stock and such other Voting Preferred Stock called by the
holders of record of at least 10% of any series of Preferred Stock so in
arrears (unless such request is received less than 90 days before the
date fixed for the next annual or specific meeting of the stockholders),
until all such distributions have been declared and paid or set aside for
payment. The term of office of all directors so elected will terminate
with the termination of such voting rights.
(C) The approval of two-thirds of the outstanding Series C
Preferred Stock voting as a single class is required in order to (i)
amend, alter or repeal any provision of the relevant Articles
Supplementary or Charter, whether by merger, consolidation or otherwise
(an "Event") so as to materially and adversely affect the rights,
preferences, privileges or voting power of the holders of shares of
Series C Preferred Stock, provided, however, an Event will not be deemed
to materially and adversely affect such rights, preferences, privileges
or voting powers of the Series C Preferred Stock, in each such case,
where each share of Series C Preferred Stock remains outstanding without
a material change to its terms and rights or is converted into or
exchanged for preferred stock of the surviving entity having preferences,
conversion and other rights, privileges, voting powers, restrictions,
limitations as to distributions, qualifications and terms or conditions
of redemption thereof identical to that of a share of Series C Preferred
Stock, or (ii) authorize, reclassify, create, or increase the authorized
or issued amount of any class or series of stock having rights senior to
Series C Preferred Stock with respect to the payment of distributions or
amounts upon liquidation, dissolution or winding up of the affairs of the
Corporation or to create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase such shares.
However, the Corporation may create additional classes of Parity
Preferred Stock and Junior Stock, increase the authorized number of
shares of Parity Preferred Stock and Junior Stock and issue additional
series of Parity Preferred Stock and Junior Stock without the consent of
any holder of Series C Preferred Stock or Voting Preferred Stock.
(D) Except as otherwise provided above and as required by
law, or, at any time Series C Preferred Stock are listed on a securities
exchange, as may be required by the rules of such exchange, the holders
of Series C Preferred Stock are not entitled to vote on any merger or
consolidation involving the Corporation, on any share exchange or on a
sale of all or substantially all of the assets of the Corporation.
(E) In any matter in which the Series C Preferred Stock are
entitled to vote (as provided in this subparagraph (c-4) (7), as may be
required by law or as required by the
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<PAGE> 8
rules of any securities exchange on which the Series C Preferred Stock
are listed, including any action by written consent, each share of Series
C Preferred Stock shall be entitled to one vote.
(8) The shares of Series C Preferred Stock are not convertible into
or exchangeable for any other property or securities of the Corporation,
except that each share of Series C Preferred Stock is convertible into
Excess Stock as provided in Article NINTH of the Charter of the
Corporation.
IN WITNESS WHEREOF, SIMON DeBARTOLO GROUP, INC. has caused these
Articles Supplementary to be signed in its name and on its behalf by its
President and witnessed by its Secretary on July 7, 1997.
WITNESS: SIMON DeBARTOLO GROUP, INC.
/s/ James M. Barkley By: /s/ Richard S. Sokolov
- ------------------------- ----------------------------
James M. Barkley Richard S. Sokolov
Secretary President
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<PAGE> 9
THE UNDERSIGNED, President of SIMON DeBARTOLO GROUP, INC., who
executed on behalf of the Corporation the Articles Supplementary of which this
certificate is made a part, hereby acknowledges in the name and on behalf of
said Corporation the foregoing Articles Supplementary to be the corporate act of
said Corporation and hereby certifies that the matters and facts set forth
herein with respect to the authorization and approval thereof are true in all
material respects under the penalties of perjury.
/s/ Richard S. Sokolov
-------------------------------
Richard S. Sokolov
-17-
<PAGE> 1
EXHIBIT 4.2
SERIES C SERIES C
PREFERRED STOCK PREFERRED STOCK
NUMBER SHARES
C____________ ____________
SIMON DeBARTOLO GROUP, INC.
SEE REVERSE FOR CERTAIN DEFINITIONS
AND A STATEMENT AS TO THE RIGHTS,
PREFERENCES, PRIVILEGES AND
RESTRICTIONS OF SHARES
CUSIP NO. 828781 30 2
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NONASSESSABLE SHARES OF THE 7.89% SERIES C CUMULATIVE STEP-UP
PREMIUM RATE PREFERRED STOCK, PAR VALUE $.0001 PER SHARE (THE "SERIES C
PREFERRED STOCK") OF
SIMON DeBARTOLO GROUP, INC.
transferable only on the books of the Corporation by the holder hereof in person
or by Attorney upon surrender of this Certificate properly endorsed. The
Secretary of the Corporation will furnish without charge to any holder, upon
written request to its office at National City Center, 115 West Washington
Street, Suite 15 East, Indianapolis, IN 46204 (telephone number (317) 636-1600),
a full statement of the designations, relative rights, preferences, liabilities,
or variations thereof (and the authority of the Board of Directors to determine
such matters) applicable to each class or series within a class of the
Corporation's capital stock.
Transfer of this Certificate and the Shares represented hereby are subject
to the restrictions described on the reverse side hereof.
In Witness Whereof, the Corporation has caused this Certificate to be
signed by its duly authorized officers.
Dated:
Authorized Signature
/s/ James M. Barkley /s/ David Simon
SECRETARY CHIEF EXECUTIVE OFFICER
-18-
<PAGE> 2
Countersigned and Registered:
First Chicago Trust Company of New York
Transfer Agent and Registrar
The shares of Capital Stock represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's maintenance of its
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended from time to time (the "Code"). Transfers in contravention of
such restrictions shall be void ab initio. Unless excepted by the Board of
Directors of the Corporation, no person may (1) Beneficially Own or
Constructively Own shares of Capital Stock in excess of 6% (other than members
of the Simon Family Group, whose relevant percentage is 24%) of the value of any
class of outstanding Capital Stock of the Corporation, or any combination
thereof, determined as provided in the Corporation's Charter, as the same may be
amended from time to time (the "Charter"), and computed with regard to all
outstanding shares of Capital Stock and, to the extent provided by the Code, all
shares of Capital Stock issuable under existing Options and Exchange Rights that
have not been exercised; or (2) Beneficially Own Capital Stock which would
result in the Corporation being "closely held" under Section 856(h) of the Code.
Unless so excepted, any acquisition of Capital Stock and continued holding of
ownership constitutes a continuous representation of compliance with the above
limitations, and any Person who attempts to Beneficially Own or Constructively
Own shares of Capital Stock in excess of the above limitations has an
affirmative obligation to notify the Corporation immediately upon such attempt.
If the restrictions on transfer are violated, the transfer will be void ab
initio and the shares of Capital Stock represented hereby will be automatically
converted into shares of Excess Stock and will be transferred to the Trustee to
be held in trust for the benefit of one or more Qualified Charitable
Organizations, whereupon such Person shall forfeit all rights and interests in
such Excess Stock. In addition, certain Beneficial Owners or Constructive Owners
must give written notice as to certain information on demand and on an annual
basis. All capitalized terms in this legend have the meanings defined in the
Charter. The Corporation will mail without charge to any requesting stockholder
a copy of the Charter, including the express terms of each class and series of
the authorized capital stock of the Corporation, within five days after receipt
of a written request therefor.
The Corporation will furnish to any stockholder on request and without
charge a full statement of the designations and any preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption of the stock of each
class which the Corporation is authorized to issue, of the differences in the
relative rights and preferences between the shares of each series of a preferred
or special class in series which the Corporation is authorized to issue, to the
extent they have been set, and of the authority of the Board of Directors to set
the relative rights and preferences of subsequent series of a preferred or
special class of stock. Such request may be made to the secretary of the
Corporation or to its transfer agent.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
-19-
<PAGE> 3
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _____Custodian_____
TEN ENT-- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with rights of under Uniform Gifts to Minors
survivorship and not as tenants Act ___________
in common (State)
NIF TRF MIN ACT -- ________Custodian
(until age ____) __________
(Minor)
under Uniform Transfers to Minors
Act ___________ (State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, __________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
___________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
____________________________________________________________________Shares
of the preferred stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
____________________________________________________________________ Attorney to
transfer the said stock on the books of the within named Corporation with full
power of substitution in the premises.
Dated ____________________
_____________________________________
_____________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT
ASSIGNMENT MUST CORRESPOND WITH THE
NAME(S) AS WRITTEN UPON THE FACE OF THE
-20-
<PAGE> 4
CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER
Signature(s) Guaranteed
By ____________________________________________
THE SIGNATURE(S) SHOULD BE BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE
17Ad-15.
-21-
<PAGE> 1
EXHIBIT 5
PIPER & MARBURY L.L.P.
CHARLES CENTER SOUTH
36 SOUTH CHARLES STREET WASHINGTON
BALTIMORE, MARYLAND 21201-3010 NEW YORK
410-539-2530 PHILADELPHIA
FAX: 410-539-0489 EASTON, MD
July 8, 1997
Simon DeBartolo Group, Inc.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special Maryland counsel to Simon DeBartolo Group,
Inc., a Maryland corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), pursuant
to a Registration Statement on Form S-3 (File No. 333-11431) (the "Registration
Statement") filed with the Securities and Exchange Commission (the
"Commission"), of up to $750,000,000 aggregate offering price of Common Stock,
Preferred Stock, Depository Shares and/or Warrants. Pursuant to the Charter of
the Company an aggregate of 3,000,000 shares have been classified as 7.89%
Series C Cumulative Step-Up Premium Rate Preferred Stock (the "Shares"), par
value $.0001 per share, for sale by the Company under the Registration
Statement. This opinion is being provided at your request in connection with the
Registration Statement.
In rendering the opinion expressed herein, we have examined the
Registration Statement (and all amendments and supplements thereto), the
Current Report on Form 8-K of the Company relating to the Shares (the "Current
Report"), the Charter and By-Laws of the Company, minutes of the proceedings of
the Company's Board of Directors authorizing the issuance of the Shares, and
such other documents as we have considered necessary. We have also examined a
Certificate of Secretary of the Company dated July 8, 1997 (the "Certificate").
In rendering our opinion, we are relying as to factual matters on the
Certificate and have made no independent investigation or inquiries as to the
matters set forth therein.
In such examination of the aforesaid documents, we have assumed,
without independent investigation, the genuineness of all signatures, the legal
capacity of all individuals who have executed any of the aforesaid documents,
the authenticity of all documents submitted to us as
<PAGE> 2
Piper & Marbury L.L.P.
Simon DeBartolo Group, Inc.
July 8, 1997
Page 2
originals, the conformity with originals of all documents submitted to us as
copies (and the authenticity of the originals of such copies), and that all
public records reviewed are accurate and complete. As to factual matters
(including, without limitation, the shares of capital stock of the Company
outstanding or reserved for issuance, outstanding convertible and exchangeable
securities of the Company, and outstanding options, rights, or warrants to
purchase securities of the Company) we have relied on the Certificate of the
Secretary and have not independently verified the matters stated therein.
Based upon the foregoing, we are of the opinion and so advise you that
upon the issuance and delivery of the Shares in accordance with the terms set
forth in the Registration Statement, the Shares will have been duly and validly
authorized and will be legally issued and fully-paid and non-assessable.
The opinion expressed herein is solely for the use of the Company in
connection with the Registration Statement. This opinion may not be relied on by
any other person or in any other connection without our prior written approval.
This opinion is limited to the matters set forth herein, and no other opinion
should be inferred beyond the matters expressly stated.
We hereby consent to the filing of this opinion as an exhibit to the
Current Report and to the reference to us under the heading "Legal Matters" in
the Prospectus and the Prospectus Supplement included in the Registration
Statement. In giving our consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Piper & Marbury L.L.P.
<PAGE> 1
EXHIBIT 8
July 7, 1997
Simon DeBartolo Group, Inc.
115 West Washington Street
Indianapolis, Indiana 46204
Re: 7.89% Series C Cumulative Step-Up
Premium Rate Preferred Stock
Ladies and Gentlemen:
We have acted as counsel for Simon DeBartolo Group, Inc., a Maryland
corporation (the "Company"), in connection with the issuance and sale by the
Company of 3,000,000 shares of the Company's 7.89% Series C Cumulative Step-Up
Premium Rate Preferred Stock (the "Series C Preferred Stock"), including the
preparation and/or review of:
(a) The Registration Statement on Form S-3, Registration No.
333-11431, of the Company (the "Registration Statement"), and the
Prospectus constituting a part thereof, dated September 20, 1996, relating
to the issuance from time to time of up to $750,000,000 aggregate
principal amount of Common Stock, Preferred Stock, Depository Shares and
Warrants of the Company pursuant to Rule 415 promulgated under the
Securities Act of 1933, as amended (the "1933 Act");
(b) The Prospectus Supplement, dated July 3, 1997, to the
above-mentioned Prospectus relating to the Series C Preferred Stock and
filed with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424 promulgated under the 1933 Act (the "Prospectus
Supplement").
You have requested our opinion regarding certain federal income tax
matters in connection with the offering of the Series C Preferred Stock. The
terms of the Series C Preferred Stock are described in the Prospectus
Supplement.
We are of the opinion that the information set forth in the
Prospectus Supplement under the caption "CERTAIN UNITED STATES FEDERAL INCOME
TAX CONSIDERATIONS" is an accurate summary of the United States federal income
tax consequences purported to be described therein, all based on laws,
regulations, rulings and decisions in effect on the date hereof.
<PAGE> 2
Simon DeBartolo Group, Inc. -24- July 7, 1997
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus Supplement. 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 1933 Act or the rules or regulations of the Commission
thereunder.
Yours very truly,
/s/ Baker & Daniels
