<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): September 17, 1997 (September
16, 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)
<PAGE> 2
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 public offering of
up to 5,000,000 shares of its Common Stock, par value $.0001 per share (the
"Common Stock") at a public offering price of $33.25 per share. The Common 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 September 16, 1997, the Company entered
into a Terms Agreement with Morgan Stanley & Co. Incorporated with respect to
the offering.
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.
Exhibit Number
(Referenced to Item 601
of Regulation S-K) Description of Exhibit
1 Terms Agreement, dated September 16, 1997
5 Opinion of Piper & Marbury L.L.P., Maryland
counsel to the Company, as to the legality of
the Common Stock
8 Opinion of Baker & Daniels, counsel to the
Company, as to certain federal tax matters
23.1 Consent of Piper & Marbury L.L.P. (included in
its opinion filed as Exhibit 5)
23.2 Consent of Baker & Daniels (included in its
opinion filed as Exhibit 8)
-2-
<PAGE> 3
SIGNATURES
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: September 17, 1997
SIMON DeBARTOLO GROUP, INC.
By: /s/ James M. Barkley
Title: Secretary
-3-
<PAGE> 1
EXHIBIT 1
SIMON DEBARTOLO GROUP, INC.
(a Maryland corporation)
4,500,000 Shares
Common Stock
TERMS AGREEMENT
September 16, 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 4,500,000 shares of its common
stock, par value $0.0001 per share (the "Common Stock") (Common Stock being
hereinafter referred to as the "Initial Underwritten Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, the
underwriter named below (the "Underwriter") offers to purchase the Initial
Underwritten Securities set forth below opposite its name at the purchase
price set forth below, and the Option Underwritten Securities (as defined in
the Underwriting Agreement referred to below) set forth below, to the extent
any are purchased.
<PAGE> 2
<TABLE>
<CAPTION>
Number of Underwritten
Underwriter Securities
- ----------- ----------------------
<S> <C>
Morgan Stanley & Co. Incorporated. 4,500,000
---------
Total 4,500,000
</TABLE>
<PAGE> 3
The Underwritten Securities shall have the following terms:
Title: Common Stock
Number of shares: 4,500,000 shares
Number of Option Underwritten
Securities: 500,000
Purchase price per share: $32.62
Listing requirements: NYSE
Black-out provisions: N/A
Lock-up provisions: During the period of thirty
(30) days from the Closing Date, the Company will not, without the prior
written consent of the Underwriter, directly or indirectly, offer to sell,
sell, issue, distribute, or otherwise dispose of, any of its equity securities,
or any security convertible into or exchangeable into or exercisable for any of
its equity securities, or register for sale under the Securities Act of 1933,
as amended, any of its equity securities, except for (i) the issuance of shares
of Common Stock upon the exercise of options or grant of restricted shares of
Common Stock under the Company's stock option plans, (ii) the exchange of Units
for Common Stock, (iii) the issuance of shares of Common Stock in connection
with the acquisition of the Retail Property Trust by the Operating Partnership
and (iv) the conversion or redemption of the Company's Series A Preferred
Stock.
Other terms and conditions: N/A
Closing date and location: September 19, 1997 at the
offices of Rogers & Wells, 200 Park Avenue, New York, New York 10166.
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 5:00 P.M. (New York City Time)
on September 16, 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,
MORGAN STANLEY & CO. INCORPORATED
By: /s/ William H. Wright
-----------------------------------
Name: William H. Wright
Title: Principal
Accepted:
SIMON DEBARTOLO GROUP, INC.
By: /s/ James M. Barkley
-----------------------------------
Name: James M. Barkley
Title: Chief Executive Officer
<PAGE> 1
EXHIBIT 5
[PIPER & MARBURY L.L.P. LETTERHEAD]
September 17, 1997
Simon DeBartolo Group, Inc.
115 West Washington Street
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We have acted as 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) of the Company (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 Terms
Agreement (the "Agreement") dated as of September 16, 1997, by and between the
Company and Morgan Stanley & Co. Incorporated, the Company proposes to issue and
sell under the Registration Statement, up to 5,000,000 shares of Common Stock,
par value $.0001 per share, of the Company (the "Shares").
In our capacity as Maryland counsel to the Company, we have examined
the Agreement, the Registration Statement, 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 the date hereof (the "Certificate"). In such examination, 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 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 we have relied on the
Certificate and have not independently verified the matters stated therein.
Based upon the foregoing and having regard for such legal
considerations as we deem relevant, 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 Prospectus and the Prospectus Supplement that are a part of the
Registration Statement and the Agreement, the Shares will have been duly and
validly authorized and will be validly issued, fully paid, and non-assessable.
<PAGE> 2
Piper & Marbury
L.L.P.
Simon DeBartolo Group, Inc.
September 17, 1997
Page 2
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
Form 8-K of the Company to be filed on the date hereof. 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
[BAKER & DANIELS LETTERHEAD]
September 17, 1997
Simon DeBartolo Group, Inc.
National City Center
Suite 15 East
115 West Washington Street
Indianapolis, Indiana 46204
Ladies and Gentlemen:
You have asked our opinion concerning the federal income tax matters
pertaining to Simon DeBartolo Group, Inc. (the "Company") in connection with the
issuance and sale by the Company of up to 5,000,000 shares of the Company's
Common Stock, par value $0.0001 per share (the "Common Stock").
In connection with the opinions expressed herein, we have reviewed: (i)
the Registration Statement on Form S-3, Registration No. 333-11431 (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 public offering price 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"); and (ii) the
Prospectus Supplement dated September 16, 1997, relating to an offering of
Common Stock as filed pursuant to Rule 424 promulgated under the 1933 Act (the
"Prospectus Supplement"). All capitalized terms used herein and not otherwise
defined have the meanings given them in the Registration Statement.
We have also examined and, with your consent, relied upon the
following: (i) the Fifth Amended and Restated Agreement of Limited Partnership
of Simon DeBartolo Group, L.P. (the "Operating Partnership"); (ii) the Third
Amended and Restated Agreement of Limited Partnership of Simon Property Group,
L.P.; (iii) the opinions of Willkie Farr & Gallagher, dated as of August 9,
1996, addressed to Simon Property Group, Inc., the former name of the Company;
and (iv) such other documents, records and instruments as we have deemed
necessary in order to enable us to render the opinions expressed herein.
<PAGE> 2
Simon DeBartolo Group, Inc. -2- September 17, 1997
In our examination of documents, we have assumed, with your consent,
(i) that all documents submitted to us are authentic originals, or if submitted
as photocopies, that they faithfully reproduce the originals thereof; (ii) that
all such documents have been or will be duly executed to the extent required;
(iii) that all representations and statements set forth in such documents are
true and correct; (iv) that any representation or statement made as a belief or
made "to the knowledge of," or similarly qualified is correct and accurate
without such qualification; (v) that all obligations imposed by any such
documents on the parties thereto have been or will be performed or satisfied in
accordance with their terms; and (vi) that the Company, the Subsidiary, the
Operating Partnership, the Management Companies and the Subsidiary Partnerships
at all times will be organized and operated in accordance with the terms of such
documents. We have further assumed that, except for any exceptions set forth in
the representation letter described in the following paragraph, the statements
and descriptions of the Company's, the Subsidiary's, the Operating
Partnership's, the Management Companies' and the Subsidiary Partnerships'
businesses, properties, and intended activities as described in the Registration
Statement and the documents incorporated therein by reference are accurate and
complete and that all actions contemplated therein with respect to the
organization of each of the Company and the Subsidiary as a REIT have been or
will be completed in a timely fashion.
In addition, we have assumed, as indicated in the Prospectus
Supplement, that, in the event that the Operating Partnership acquires more than
10% of the outstanding voting securities of RPT, RPT will then be qualified for
taxation as a REIT under the Code.
For purposes of rendering the opinions expressed herein, we also have
assumed, with your consent, the accuracy of the representations contained in the
letter from the Company to us of even date herewith. These representations
relate to the classification and operation of each of the Company and the
Subsidiary as a REIT and the organization and operation of the Operating
Partnership, the Subsidiary Partnerships and the Management Companies.
Based upon and subject to the foregoing, we are of the opinion that:
1. Commencing with the taxable year ended December 31, 1994 and ending
on the Merger Date, the Company (as Simon Property Group, Inc.) has been
organized and has operated in a manner so as to qualify for taxation as a REIT
under the Code.
2. Commencing with the Merger Date, the proposed methods of operation
of the Company (as Simon DeBartolo Group, Inc.) and the Subsidiary have been
organized and have operated in a manner as described in the Registration
Statement and as represented by the Company so as to enable the Company and the
Subsidiary so as to remain qualified.
3. The information in the Prospectus under the caption "Federal Income
Tax Considerations" and as modified or supplemented in the Prospectus Supplement
under the caption "Certain Federal Income Tax Consequences" fairly summarizes
the federal income tax considerations that are likely to be material to a holder
of the Common Stock.
<PAGE> 3
Simon DeBartolo Group, Inc. -3- September 17, 1997
This opinion is given as of the date hereof and 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. Further, any variation or difference in the facts from those set
forth in the Registration Statement may affect the conclusions stated herein.
Moreover, each of the Company's and the Subsidiary's qualification and taxation
as a REIT depends upon its ability to meet, through actual annual operating
results, requirements under the Code regarding income, distributions and
diversity of stock ownership. Because each of the Company's and the Subsidiary's
satisfaction of these requirements will depend upon future events, no assurance
can be given that the actual results of its operations for any one taxable year
will satisfy the tests necessary to qualify as or be taxed as a REIT under the
Code.
This opinion is furnished to you solely for use in connection with the
Registration Statement. We hereby consent to the filing of this opinion as
Exhibit 8 to the Registration Statement and to the us of our name under the
caption "Certain Federal Income Tax Consequences" in the Prospectus Supplement
which is a part of the Registration Statement. In giving this consent we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the 1933 Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
We express no opinions as to any federal income tax issue or other
matter except those set forth or confirmed above.
Very truly yours,
/s/ BAKER & DANIELS
