<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
WESTFIELD AMERICA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
MISSOURI 43-0758627
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
11601 WILSHIRE BOULEVARD IRV HEPNER, SECRETARY
12TH FLOOR 11601 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90025 12TH FLOOR
(310) 478-4456 LOS ANGELES, CALIFORNIA 90025
(Address, including zip code, and telephone number, including (310) 478-4456
area code, of registrant's principal executive offices) (Name, address, including zip code,
and telephone number, including area code, of agent for
service)
</TABLE>
------------------------
Please send copies of all communications to:
<TABLE>
<S> <C>
BARRY MILLS, ESQ. GREGG A. NOEL, ESQ.
DEBEVOISE & PLIMPTON SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
875 THIRD AVENUE 300 SOUTH GRAND AVENUE
NEW YORK, NY 10022 LOS ANGELES, CALIFORNIA 90071
(212) 909- 6000 (213) 687-5000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective depending upon
market conditions and other factors.
------------------------------
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM
AGGREGATE MAXIMUM AMOUNT
TITLE OF EACH CLASS AMOUNT TO OFFERING AGGREGATE OFREGISTRATION
OF SECURITIES TO BE REGISTERED BE REGISTERED PRICE PER UNIT(7) OFFERING PRICE FEE(1)
<S> <C> <C> <C> <C>
Preferred Stock, $1.00 par value (2)
Common Stock, $0.01 par value (2)...........
Depositary Shares(5)........................
Warrants(6).................................
Total....................................... $600,000,000 100% $600,000,000 (3)(4) $177,000
</TABLE>
(1) Calculated pursuant to Rule 457(o) of the Securities Exchange Act of 1933 as
amended.
(2) Also includes such indeterminate shares of Preferred Stock and Common Stock
as may be issued upon conversion of or exchange for any Preferred Stock that
provides for conversion or exchange into other Securities.
(3) Such amount represents, the aggregate liquidation preference of any
Preferred Stock, the aggregate amount used when computing the registration
fee pursuant to Rule 457(c) for any Common Stock, the aggregate issue price
of any Warrants and the aggregate exercise price of any Securities issuable
upon the exercise of Warrants.
(4) No separate consideration will be received for the Preferred Stock, Common
Stock or the Depositary Shares issuable upon conversion of or in exchange
for Preferred Stock.
(5) Such indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event the Registrant
elects to offer to the public fractional interests in shares of the
Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons purchasing such fractional interests and shares
of Preferred Stock will be issued to the Depositary under the Deposit
Agreement. No separate consideration will be received for the Depositary
Shares.
(6) Warrants may be sold separately or with Preferred Stock or Common Stock.
(7) The proposed maximum offering price per unit (a) has been omitted pursuant
to Instruction II.D. of Form S-3 and (b) will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder.
------------------------------
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>
EXPLANATORY NOTE
This Registration Statement relates to securities which may be offered from
time to time by Westfield America, Inc. (the "Company"). This Registration
Statement contains a form of basic prospectus which will be used in connection
with an offering of securities by the Company. The specific terms of the
securities to be offered will be set forth in a Prospectus Supplement relating
to such securities.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 19, 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
$600,000,000
WESTFIELD AMERICA, INC.
PREFERRED STOCK, COMMON STOCK,
DEPOSITARY SHARES AND WARRANTS
---------------------
Westfield America, Inc. (the "Company") may offer from time to time in one
or more series, together or separately, its (i) shares of its preferred stock,
$1.00 par value per share (the "Preferred Stock"), which may be issued in the
form of Depositary Shares (as defined herein) evidenced by Depositary Receipts
(as defined herein), (ii) shares of its common stock, $.01 par value per share
(the "Common Stock"), and (iii) warrants to purchase securities of the Company
as shall be designated by the Company at the time of the offering (the
"Warrants"), in amounts, at prices and on terms to be determined at the time of
offering. The Preferred Stock, Common Stock and Warrants are collectively called
the "Securities."
The Securities offered pursuant to this Prospectus may be issued in one or
more series and/or issuances and will be limited to U.S.$600,000,000 aggregate
public offering price (or, its equivalent based on the exchange rate at the time
of sale). Certain specific terms of the particular Securities in respect of
which this Prospectus is being delivered are set forth in the accompanying
Prospectus Supplement (the "Prospectus Supplement"), including, where
applicable, (i) in the case of Preferred Stock, the specific designation, the
stated value and liquidation preference per share, the aggregate number of
shares offered, any dividend rights (including the method of calculating payment
of dividends), the date or dates on which dividends will accrue, any redemption,
voting and other rights, any terms for conversion or exchange into other
Securities or property, the initial public offering price and other specific
terms and any other terms not set forth herein, (ii) in the case of Warrants,
the number and terms thereof, the duration, purchase price, exercise price and
detachability of such Warrants and a description of the securities for which
each Warrant is exercisable, (iii) in the case of Depositary Shares, the
fractional share of Preferred Stock represented by each such Depositary Share,
and (iv) in the case of Common Stock, the aggregate number of shares offered,
the initial public offering price, the methods of distribution and other special
terms. In addition, specific terms may include limitations on direct or
beneficial ownership and restrictions on transfer of the securities, in each
case as may be appropriate to assist in maintaining the status of the Company as
a real estate investment trust ("REIT") for federal income tax purposes.
The applicable Prospectus Supplement also will contain information, where
applicable, about certain U.S. federal income tax considerations relating to,
and any listing on a securities exchange of, the Securities covered by such
Prospectus Supplement, not contained in this Prospectus.
The Company's Common Stock is listed on the New York Stock Exchange ("NYSE")
under the trading symbol "WEA." Any Common Stock sold pursuant to a Prospectus
Supplement will be listed on such exchange, subject to official notice of
issuance.
The Company may sell the Securities to or through underwriters, through
dealers or agents, directly to purchasers or through a combination of such
methods. See "Plan of Distribution." The accompanying Prospectus Supplement sets
forth the names of any underwriters, dealers or agents, if any, involved in the
sale of the Securities in respect of which this Prospectus is being delivered
and any applicable purchase price, fee, commission or discount arrangements with
them. The Prospectus Supplement will state whether the Securities will be listed
on any national securities exchange. If the Securities are not listed on any
national securities exchange, there can be no assurance that there will be a
secondary market for any such Securities. No Securities may be sold by the
Company through agents, underwriters or dealers without delivery of a Prospectus
Supplement describing the method and terms of the offering of such Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1998.
<PAGE>
Certain persons participating in an offering of Securities may engage in
transactions that stabilize, maintain, or otherwise affect the price of the
Securities. Such transactions may include stabilizing, the purchase of
Securities to cover syndicate short positions and the imposition of penalty
bids. For a description of those activities, see "Underwriting" in the
accompanying Prospectus Supplement.
No dealer, salesperson or other person has been authorized to give any
information or make any representations, other than those contained or
incorporated by reference in this Prospectus and the applicable Prospectus
Supplement, and, if given or made, such information or representations must not
be relied upon as having been authorized by the Company or any agent,
underwriter or dealer. This Prospectus and the applicable Prospectus Supplement
do not constitute an offer of any securities other than those to which they
relate, or an offer to sell or a solicitation of an offer to buy those to which
they relate in any jurisdiction to any person to whom it is unlawful to make
such offer or solicitation in such jurisdiction. The delivery of this Prospectus
and/or the applicable Prospectus Supplement at any time does not imply that the
information herein or therein is correct as of any time subsequent to the date
thereof.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Prospectus
Available Information..................................................................................... i
Incorporation of Certain Documents by Reference........................................................... ii
The Company............................................................................................... 1
Use of Proceeds........................................................................................... 1
Ratio of Earnings to Combined Fixed Charges............................................................... 2
Description of Capital Stock.............................................................................. 2
Description of Warrants................................................................................... 12
Certain Provisions of the Company's Articles of Incorporation and By-laws and of Missouri Law............. 12
Federal Income Tax Considerations......................................................................... 17
Plan of Distribution...................................................................................... 28
Legal Matters............................................................................................. 30
Experts................................................................................................... 30
</TABLE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information, as well as the Registration Statement and the
exhibits and schedules thereto, can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and at the regional offices of the
Commission located at 7 World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can also be obtained at prescribed rates by
writing to the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549. Information on the operation of
the Public Reference Section of the Commission may be obtained by calling the
Commission at 1-800-SEC-0330. The Commission also maintains a site on the world
wide web at http://www.sec.gov that contains reports, proxy and information
statements and other information filed electronically by the Company. In
addition, such reports, proxy statements and other information may be inspected
at the offices of the NYSE, 20 Broad Street, New York, New York 10005, upon
which the Common Stock of the Company is traded.
The Company has filed a registration statement on Form S-3 (together with
all amendments and exhibits, the "Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act") with respect to the Securities
offered hereby. This Prospectus and any accompanying Prospectus Supplement do
not contain all of the information set forth in the Registration Statement,
certain parts of
i
<PAGE>
which are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the
Securities offered hereby, reference is made to the Registration Statement and
the exhibits and the financial statements, notes and schedules filed as a part
thereof or incorporated by reference therein, which may be inspected at the
public reference facilities of the Commission, at the addresses set forth above.
Statements made in this Prospectus and any Prospectus Supplement concerning the
contents of any documents referred to herein or therein are not necessarily
complete, and in each instance are qualified in all respects by reference to the
copy of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to
the Exchange Act are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the calendar quarter
ended March 31, 1998;
(3) The Company's Proxy Statement, dated March 27, 1998, relating to the
Annual Meeting of Shareholders held on April 30, 1998.
(4) The Company's Current Report on Form 8-K, dated April 6, 1998; and
(5) The Company's Current Report on Form 8-K, dated May 4, 1998.
The Company's Exchange Act filing number is 1-12923.
All other documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering of the Securities shall
hereby be deemed to be incorporated by reference into this Prospectus and to be
a part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein or in
any accompanying Prospectus Supplement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement or
this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, on written or
oral request of such person, a copy of any or all of the foregoing documents
incorporated by reference into this Prospectus (without exhibits and schedules
to such documents other than exhibits and schedules specifically incorporated by
reference into such documents). Requests for such copies should be directed to:
Irv Hepner, Secretary, at Westfield America, Inc., 11601 Wilshire Boulevard,
12th Floor, Los Angeles, California 90025; telephone number (310) 478-4456.
FORWARD-LOOKING STATEMENTS
This Prospectus, including the documents incorporated by reference herein,
contains forward-looking statements which reflect the Company's views at the
time the statements were made with respect to future events and financial
performance. These forward-looking statements are subject to certain risks and
uncertainties, including the matters described in the documents incorporated by
reference herein and in any Prospectus Supplement, which could cause actual
results to differ materially from historical results or those anticipated. The
words "believes," "expects," "anticipates," "intends," "plans," "estimates" and
similar expressions identify forward-looking statements, which speak only as of
the dates on which they were made. The Company undertakes no obligation to
publicly update or revise any forward-looking statements, whether as a result of
new information, future events, or otherwise. Readers are cautioned not to place
undue reliance on these forward-looking statements.
ii
<PAGE>
THE COMPANY
The Company, a Missouri corporation, formerly known as CenterMark
Properties, Inc., was incorporated in 1924 and has been engaged for over 40
years in owning, operating, leasing, developing, redeveloping and acquiring
regional and super-regional shopping centers and power centers located primarily
in major metropolitan areas in the United States.
The Company owns interests in a portfolio of 16 super-regional shopping
centers and six regional shopping centers (together, the "Regional Centers"),
three power centers (the "Power Centers" and, collectively with the Regional
Centers, the "Centers"), 12 separate department store properties which are net
leased under financing leases to the May Department Stores Company and are not
located at the Centers, and certain other real estate investments. The Centers
are located in seven states in the east coast, midwest and west coast regions of
the United States.
The Company is organized and operated as a real estate investment trust, or
REIT, under the Internal Revenue Code of 1986, as amended ("Code"). In order to
satisfy the provisions of the Code applicable to REITs, the Company must
distribute to its shareholders at least 95% of its REIT taxable income and meet
certain other requirements. The Company will make, at a minimum, distributions
to its shareholders sufficient to satisfy the REIT provisions under the Code.
The Company has engaged a property management company (the "Manager"), asset
management company (the "Advisor") and development company (the "Developer") to
provide property management, advisory and development services to the Company
under agreements that have an initial term of three years and are renewable
annually thereafter. Each of the Manager, Advisor and Developer is an affiliate
of Westfield Holdings Limited, an Australian public company ("Westfield
Holdings") and a principal shareholder of the Company.
The Common Stock is listed on the NYSE under the trading symbol "WEA." The
principal executive offices of the Company are located at 11601 Wilshire
Boulevard, Los Angeles, California 90025; the telephone number is (310)
478-4456.
USE OF PROCEEDS
Except as set forth in a Prospectus Supplement, the Company intends to use
the net proceeds from the sale of the Securities for general corporate purposes,
including, without limitation, working capital, capital expenditures,
investments in or loans to subsidiaries, the repayment or refinancing of debt,
possible future business acquisitions, the satisfaction of other obligations or
for such other purposes as may be specified in the applicable Prospectus
Supplement.
<PAGE>
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges and ratio of earnings to combined fixed charges and preferred stock
dividends for the periods indicated:
<TABLE>
<CAPTION>
FOR THE THREE YEAR ENDED PERIOD FEBRUARY
MONTHS ENDED DECEMBER 31, 12, 1994
----------------- ----------------------------------- THROUGH
MARCH 31, MARCH 31, DECEMBER 31,
1998 1997, 1997 1996 1995 1994
----------------- ------------- --------- --------- --------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges........................... 1.73 1.82 1.92 1.77 2.25 2.89
Ratio of Earnings to Combined Fixed
Charges........................... 1.53 1.59 1.61 1.60 2.25 2.89
<CAPTION>
YEAR ENDED
DECEMBER 31,
1993
---------------
<S> <C>
Ratio of Earnings to Fixed
Charges........................... 3.47
Ratio of Earnings to Combined Fixed
Charges........................... 3.47
</TABLE>
For purposes of calculating the ratios of earnings to fixed charges and
combined fixed charges, earnings consist of income before minority interest,
income taxes, fixed charges (excluding capitalized interest and preferred stock
dividends) and includes distributed operating income from unconsolidated real
estate partnerships instead of income from unconsolidated real estate
partnerships. Fixed charges consist of interest expense, whether expensed or
capitalized, and amortization of debt expense. Combined fixed charges, consists
of fixed charges and dividends on preferred stock.
DESCRIPTION OF CAPITAL STOCK
The following summaries of certain provisions of the Company's Third
Restated Articles of Incorporation (the "Articles") and Second Amended and
Restated By-Laws (the "By-Laws") do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, the Articles, By-Laws,
provisions of the General Business and Corporation Law of Missouri ("GBCL") and
the certificate of designation which will be filed with the Commission in
connection with any offering of Preferred Stock.
AUTHORIZED AND OUTSTANDING CAPITAL STOCK
The authorized capital stock of the Company consists of (i) two hundred
(200) shares of non-voting senior preferred stock, par value $1.00 per share
(the "Senior Preferred Shares"), of which two (2) shares are currently
outstanding, (ii) five million (5,000,000) shares of preferred stock, par value
$1.00 per share (the "Preferred Stock"), of which nine hundred forty thousand
(940,000) shares are designated Series A cumulative redeemable preferred stock
(the "Series A Preferred Shares"), and of which nine hundred forty thousand
(940,000) are currently outstanding, and of which 400,000 shares are designated
Series B preferred stock (the "Series B Preferred Shares") and of which 270,000
are outstanding, (iii) 200,000,000 shares of common stock, par value $.01 per
share (the "Common Stock"), of which 73,329,535 are currently outstanding, and
(iv) 205,000,000 shares of excess stock, par value $.01 per share, of which none
are currently outstanding (the "Excess Shares"). Excess Shares, if any, that are
exchanged pursuant to the Articles (i) for Common Stock, are sometimes referred
to herein as "Excess Common Shares" and, together with the Common Stock, the
"Common Shares" and (ii) for Preferred Stock, are sometimes referred to herein
as "Excess Preferred Shares" and together with the Preferred Stock, as
"Preferred Shares."
SENIOR PREFERRED SHARES
The holders of Senior Preferred Shares are entitled to receive, when and as
declared by the Board of Directors, but only out of funds legally available
therefor, cash dividends at the annual rate of $35.00 per share, and no more,
payable quarterly. No dividend will be paid on any Preferred Shares or Common
Shares unless the full dividend has been paid on Senior Preferred Shares. In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, the holders of Senior
2
<PAGE>
Preferred Shares are entitled, before any distribution or payment is made to the
holders of any Preferred Stock or Common Shares, to be paid in full an amount
equal to $550.00 per share, together with the full dividend thereon for the then
current quarterly-yearly dividend period. The Company, at the option of the
Board of Directors, may redeem in whole, but not in part, the Senior Preferred
Shares at the time outstanding at any time from and after February 20, 1999,
upon notice, at a redemption price for each Senior Preferred Share equal to
$550.00, together with the full dividend thereon for the then current
quarterly-yearly dividend period. Except as required by applicable law, the
holders of Senior Preferred Shares have no voting rights in the Company.
PREFERRED SHARES
Preferred Shares may be issued, from time to time, in one or more series as
authorized by the Board of Directors. Prior to issuance of a series, the Board
of Directors by resolution shall designate that series to distinguish it from
other series and classes of stock of the Company, shall specify the number of
shares to be included in the series, and shall fix the terms, rights,
restrictions and qualifications of the shares of the series, including any
preferences, voting powers, dividend rights and redemption, sinking fund and
conversion rights. Subject to the express terms of any other series of Preferred
Shares outstanding at the time, the Board of Directors may increase or decrease
the number of shares or alter the designation or classify or reclassify any
unissued shares of a particular series of Preferred Shares by fixing or altering
in any one or more respects from time to time before issuing the shares any
terms, rights, restrictions and qualifications of the shares.
SERIES A PREFERRED SHARES
The holders of Series A Preferred Shares are entitled to receive, when and
as declared by the Board of Directors, but only out of funds legally available
therefor, per share cumulative cash dividends equal to the greater of (i) $8.50
per annum and (ii) an amount currently equal to 6.2461 times the dollar amount
declared on Common Shares for such period, subject to certain adjustments.
Holders of Series A Preferred Shares are entitled to dividends before dividends
can be distributed to holders of Common Shares. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Company, the holders of Series A Preferred Shares are entitled, before any
distribution or payment is made to the holders of any Common Shares, to be paid
in full an amount per share equal to $100.00, together with all accrued and
unpaid dividends through the end date of the calendar quarter most recently
completed prior to the date of liquidation, dissolution or winding up of the
affairs of the Company plus $2.125 times a fraction equal to the actual number
of days elapsed from the end date of the calendar quarter most recently
completed to the relevant liquidation date over 90 days. From and after July 1,
2003, the Company, at the option of the Board of Directors, with approval of a
majority of the independent directors, may redeem in whole, or in part, the
outstanding Series A Preferred Shares at a redemption price of $100.00 per
share, together with all accrued and unpaid dividends through the end date of
the calendar quarter most recently completed prior to the redemption date plus
$2.125 times a fraction equal to the actual number of days elapsed from the end
date of the calendar quarter most recently completed to the relevant redemption
date over 90 days, plus a right to receive on the payment date for the next
quarterly dividend declared on the Common Shares an amount equal to the
proportionate additional amount, if any, of dividends the holder of such Series
A Preferred Share would have been entitled to receive had such share been held
on the record date for such Common Shares dividend.
The holders of Series A Preferred Shares have no voting rights in the
Company except: (i) in the event that the Board of Directors does not declare a
dividend payable to holders of Series A Preferred Shares or any series of
Preferred Stock authorized with the consent of the holders of Series A Preferred
Shares ranking PARI PASSU with the Series A Preferred Shares ("Ranking Preferred
Shares") for four quarterly dividend periods, the number of directors
constituting the Board of Directors shall, without further action, be increased
by one and the holders of a majority of the Series A Preferred Shares together
with all series
3
<PAGE>
of Ranking Preferred Shares shall have the exclusive right to elect one director
to fill such newly created directorship until such time as all such dividends in
arrears are made current and paid in full, at which time the director so elected
shall cease to be a director, and the number of directors constituting the Board
of Directors shall be reduced by one, (ii) a majority vote of the holders of
Series A Preferred Shares voting together as a class is required to approve any
amendment to the Articles that materially and adversely affects their rights,
PROVIDED, that (x) except where a unanimous vote is required under clause (y)
below, where the amendment adversely affects the rights of any series of Ranking
Preferred Shares, then such amendment shall be approved by the vote of the
Series A Preferred Shares and the Ranking Preferred Shares affected thereby
voting together as a class and (y) the unanimous approval of the holders of
Series A Preferred Shares is required for any amendment to the Articles that
would decrease the rate or change the time of payment of any dividend or
distribution on the Series A Preferred Shares, decrease the amount payable upon
redemption of the Series A Preferred Shares or upon liquidation of the Company,
advance the date on which the Series A Preferred Shares may be redeemed by the
Company or amend the number of shares of Series A Preferred Shares required to
effect amendments to the Articles, (iii) the affirmative vote of the holders of
a majority of the Series A Preferred Shares and any series of Ranking Preferred
Shares affected thereby voting together as a class is required to approve any
merger or consolidation of the Company and another entity in which the Company
is not the surviving corporation and each holder of the Series A Preferred
Shares and such Ranking Preferred Shares do not receive shares of the surviving
corporation with substantially similar rights, preferences and powers in the
surviving corporation as such Ranking Preferred Shares have with respect to the
Company, (iv) the affirmative vote of the holders of a majority of the Series A
Preferred Shares and the Ranking Preferred Shares voting together as a class is
required to approve any voluntary action by the Board of Directors intended to
cause the Company to cease to have the status as a REIT and (v) as otherwise
required by applicable law.
SERIES B PREFERRED SHARES
The holders of Series B Preferred Shares have the same rights as the holders
of Series A Preferred Shares and the terms of the Series B Preferred Shares are
substantially the same as those of the Series A Preferred Shares, except that
the amount of cumulative cash distributions is equal to the greater of (i) $8.50
per annum and (ii) an amount equal to the product of (x) 6.67 and (y) the dollar
amount declared on the Common Shares for the applicable period, subject to
certain adjustments.
OTHER SERIES OF PREFERRED STOCK
The particular terms of any series of Preferred Stock offered hereby will be
set forth in the Prospectus Supplement relating thereto. The rights,
preferences, privileges and restrictions, including dividend rights, voting
rights, terms of redemption, retirement and sinking fund provisions and
liquidation preferences, if any, of the Preferred Stock of each series, along
with any limitations on direct or beneficial ownership and restrictions on
transfer, in each case as may be appropriate to preserve the status of the
Company as a REIT, will be fixed or designated pursuant to a certificate of
designation adopted by the Board of Directors or a duly authorized committee
thereof. The terms, if any, on which shares of any series of Preferred Stock are
convertible or exchangeable into Common Stock will also be set forth in the
Prospectus Supplement relating thereto. Such terms may include provisions for
conversion or exchange, either mandatory, at the option of the holder, or at the
option of the Company, in which case the number of shares of Common Stock to be
received by the holders of Preferred Stock would be calculated as of a time and
in the manner stated in the applicable Prospectus Supplement. The description of
the terms of a particular series of Preferred Stock that will be set forth in
the applicable Prospectus Supplement does not purport to be complete and is
qualified in its entirety by reference to the certificate of designation
relating to such series.
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DEPOSITARY SHARES
GENERAL
The Company may, at its option, elect to offer receipts for fractional
interests ("Depositary Shares") in Preferred Stock, rather than full shares of
Preferred Stock. In such event, receipts ("Depositary Receipts") for Depositary
Shares, each of which will represent a fraction (to be set forth in the
Prospectus Supplement relating to a particular series of Preferred Stock) of a
share of a particular series of Preferred Stock, will be issued as described
below. The Company has no outstanding Depositary Shares.
The shares of any series of Preferred Stock represented by Depositary Shares
will be deposited under a Deposit Agreement (the "Deposit Agreement") between
the Company and a depositary to be named by the Company in a Prospectus
Supplement (the "Depositary"). Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share will be entitled, in proportion to the
applicable fraction of a share of Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Preferred Stock represented
thereby (including dividend, voting, redemption, subscription and liquidation
rights). The following summary of certain provisions of the Deposit Agreement
does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, all the provisions of the Deposit Agreement, including
the definitions therein of certain terms. Whenever particular sections of the
Deposit Agreement are referred to, it is intended that such sections shall be
incorporated herein by reference. Copies of the forms of Deposit Agreement and
Depositary Receipt are filed as exhibits to the Registration Statement of which
this Prospectus is a part, and the following summary is qualified in its
entirety by reference to such exhibits.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares in
an equitable manner, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may sell such property and
distribute the net proceeds from such sale to such holders. The amount
distributed in any of the foregoing cases may be reduced by any amounts required
to be withheld by the Company or the Depositary on account of taxes.
No distribution will be made in respect of any Depositary Share to the
extent that it represents any Preferred Stock converted into Excess Shares.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of Depositary Receipts at a designated office of the
Depositary, the owner of the Depositary Shares evidenced thereby will be
entitled to delivery at such office of certificates evidencing Preferred Stock
(but only in whole shares of Preferred Stock) represented by such Depositary
Shares. If the Depositary Receipts delivered by the holder evidence a number of
Depositary Shares in excess of the number of whole shares of Preferred Stock to
be withdrawn, the Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of Preferred Stock represented by Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the proceeds received
by the Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Stock held by the Depositary. The redemption price per
Depositary Share will be equal to the applicable fraction of the redemption
price per share
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payable with respect to such series of the Preferred Stock. Whenever the Company
redeems shares of Preferred Stock held by the Depositary, the Depositary will
redeem as of the same redemption date the number of Depositary Shares
representing shares of Preferred Stock so redeemed. If fewer than all the
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will
be selected by lot, pro rata or by any other equitable method as may be
determined by the Depositary.
From and after the date fixed for redemption, all dividends in respect of
the shares of a class or series of Preferred Stock so called for redemption will
cease to accrue, the Depositary Shares so called for redemption will no longer
be deemed to be outstanding and all rights of the holders of the Depositary
Receipts evidencing the Depositary Shares so called for redemption will cease,
except the right to receive any moneys payable upon such redemption and any
money or other property to which the holders of such Depositary Receipts were
entitled upon such redemption upon surrender thereof to the Depositary.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the amount of the Preferred Stock represented
by such holder's Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the amount of the Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holder of Depositary Shares representing
such Preferred Stock.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the Company
whether voluntary or involuntary, the holders of each Depositary Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depositary Share evidenced by such Depositary
Receipt as set forth in the applicable Prospectus Supplement.
CONVERSION
The Depositary Shares, as such, will not be convertible into Common Stock or
any other securities or property of the Company. Nevertheless, if so specified
in the applicable Prospectus Supplement relating to an offering of Depositary
Shares, the Depositary Receipts may be surrendered by holders thereof to the
applicable Depositary with written instructions to the Depositary to instruct
the Company to cause conversion of a class or series of Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipts into
whole shares of Common Stock, other shares of a class or series of Preferred
Stock (including shares in excess of the Ownership Limit) of the Company or
other shares of stock, and the Company has agreed that upon receipt of such
instructions and any amounts payable in respect thereof, it will cause the
conversion thereof utilizing the same procedures as those provided for delivery
of Preferred Stock to effect such conversion. If the Depositary Shares evidenced
by a Depositary Receipt are to be converted in part only, a Depositary Receipt
or Receipts will be issued upon conversion, and if such conversion will result
in a fractional share being issued, an amount will be paid in cash by the
Company equal to the value of the fractional interest based upon the closing
price of the Common Stock on the last business day prior to the conversion.
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AMENDMENT AND TERMINATION OF A DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing Depositary Shares which represent
the Preferred Stock and any provision of the Deposit Agreement may at any time
be amended by agreement between the Company and the Depositary. However, any
amendment that materially and adversely alters the rights of the holders of
Depositary Receipts or that would be materially and adversely inconsistent with
the rights granted to the holders of the related Preferred Stock will not be
effective unless such amendment has been approved by the existing holders of at
least a majority of the applicable Depositary Shares evidenced by the applicable
Depositary Receipts then outstanding. No amendment shall impair the right,
subject to certain anticipated exceptions in the Deposit Agreements, of any
holder of Depositary Receipts to surrender any Depositary Receipt with
instructions to deliver to the holder the related class or series of Preferred
Stock and all money and other property, if any, represented thereby, except in
order to comply with law. Every holder of an outstanding Depositary Receipt at
the time any such amendment becomes effective shall be deemed, by continuing to
hold such Depositary Receipt, to consent and agree to such amendment and to be
bound by the applicable Deposit Agreement as amended thereby.
The Deposit Agreement may be terminated by the Company upon not less than 30
days' prior written notice to the Depositary if (i) such termination is
necessary to preserve the Company's status as a REIT or (ii) a majority of each
series or class of Preferred Stock subject to such Deposit Agreement consents to
such termination, whereupon the Depositary will deliver or make available to
each holder of Depositary Receipts, upon surrender of the Depositary Receipts
held by such holder, such number of whole or fractional shares of each Preferred
Stock as are represented by the Depositary Shares evidenced by such Depositary
Receipts together with any other property held by Depositary with respect to
such Depositary Receipts. The Company has agreed that if the Deposit Agreement
is terminated to preserve the Company's status as a REIT, then the Company will
use its best efforts to list each class or series of Preferred Stock issued upon
surrender of the related Depositary Shares. In addition, the Deposit Agreement
will automatically terminate if (i) all outstanding Depositary Shares shall have
been redeemed, (ii) there shall have been a final distribution in respect of
each class or series of Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distribution to the holders of the Depositary Receipts evidencing the Depositary
Shares representing such class or series of Preferred Stock or (iii) each share
of the related Preferred Stock shall have been converted into stock of the
Company not so represented by Depositary Shares.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointments. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of the
Preferred Stock and issuance of Depositary Receipts, all withdrawals of shares
of Preferred Stock by owners of the Depositary Shares and any redemption of the
Preferred Stock. Holders of Depositary Receipts will pay other transfer and
other taxes and governmental charges and such other charges as they are
expressly provided in the Deposit Agreement to be for their accounts.
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MISCELLANEOUS
The Depositary will forward all reports and communications from the Company
which are delivered to the Depositary and which the Company is required or
otherwise determines to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Company will be liable under the Deposit
Agreement to holders of Depositary Receipts other than for its gross negligence,
willful misconduct or bad faith. Neither the Company nor the Depositary will be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished.
The Company and the Depositary may rely upon written advice of counsel or
accountants, or upon information provided by persons presenting Preferred Stock
for deposit, holders of Depositary Receipts or other persons believed to be
competent and on documents believed to be genuine.
In the event a Depositary shall receive conflicting claims, requests or
instructions from any holders of Depositary Receipts, on the one hand, and the
Company, on the other hand, the Depositary shall be entitled to act on such
claims, requests or instructions received from the Company.
COMMON STOCK
DISTRIBUTION RIGHTS
The holders of Common Shares are entitled to receive such distributions as
may be declared by the Board of Directors out of funds legally available
therefor. In order to qualify as a REIT, the Company is required to distribute
at least 95% of its taxable income. Under the Articles, holders of the Senior
Preferred Shares and Preferred Shares have a preference with respect to
dividends relative to the holders of Common Shares. The Company expects that
regular quarterly distributions of the Company will be declared for the
three-month periods ending March 31, June 30, September 30 and December 31 each
year. All distributions are at the discretion of the Board of Directors and
depend on the actual Funds from Operations, the Company's financial condition,
the annual distribution requirements under the REIT Requirements and such other
factors as the Board of Directors deems relevant and are subject to the prior
payment of preferred stock dividends.
LIQUIDATION RIGHTS
In the event of liquidation, dissolution, winding up of, or any distribution
of the assets of the Company, each holder of Common Shares is entitled to
receive ratably with each holder of Common Shares, in that portion of the assets
of the Company available for distribution to holders of Common Shares as the
number of Common Shares held by such holder bears to the total number of Common
Shares then outstanding.
VOTING RIGHTS
At all meetings of the shareholders of the Company, each holder of Common
Stock is entitled to one vote for each share of Common Stock entitled to vote at
such meeting. The affirmative vote of a majority of the holders of Common Stock
voting together as a class is required to approve: (1) an election to change the
Company's status as a REIT and (2) other matters as required by applicable law.
With respect to Excess Common Shares, the Trustee of any Excess Common Shares is
entitled to vote such shares.
ELECTION AND REMOVAL OF DIRECTORS
The Board of Directors is divided into three classes with the terms of
office of directors of each class ending in different years. The Class I, II and
III directors are to serve until the Annual Meeting of Shareholders in 2001,
1999 and 2000, respectively, or until their successors are elected. Following
the initial terms, the directors will serve three-year terms, or until their
successors are elected.
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Directors are elected by a plurality of the Common Shares entitled to vote
on the election of directors represented in person or by proxy at a meeting at
which a quorum is present, subject to any rights of holders of the Preferred
Stock to elect directors. There are no cumulative voting rights. Directors may
be removed from office only for cause and with the vote of 66 2/3% of the
outstanding Common Shares then entitled to vote for the election of directors.
PREEMPTIVE RIGHTS
No holder of Common Shares is entitled as a matter of right to subscribe for
or purchase, or have any preemptive right with respect to, any part of any new
or additional issue of stock of any class whatsoever, or of securities
convertible into any stock of any class whatsoever, whether now or hereafter
authorized and whether issued for cash or other consideration or by way of
dividend.
REDEMPTION RIGHTS
No holder of Common Shares is entitled to redemption rights.
SHAREHOLDER LIABILITY
Under Missouri corporate law, no shareholder of the Company is personally
liable for any obligation of the Company solely as a result of its status as a
shareholder.
OUTSTANDING WARRANTS
The Company currently has two outstanding warrants. In 1996, the Company
issued to Westfield America Trust, an Australian public property trust
("Westfield America Trust"), a warrant entitling it to purchase at any time and
from time to time in whole or in part, 6,246,096 shares of Common Stock at an
exercise price of $16.01 per share, subject to adjustment in certain events.
This warrant expires in July 2016. In May 1997, the Company issued to Westfield
America Trust a warrant entitling it to purchase at any time and from time to
time, in whole or in part, 2,089,552 shares of Common Stock at an exercise price
of $15.00 per share, subject to adjustment in certain events. This warrant
expires in May 2017.
RESTRICTIONS ON OWNERSHIP AND TRANSFER
In order for the Company to qualify as a REIT under the Code, not more than
50% in value of its outstanding capital stock may be owned, directly or
indirectly, by or for five or fewer individuals, including certain entities (as
set forth in the Code and referred to herein as "Individuals") during the last
half of a taxable year, and the shares of capital stock must be beneficially
owned by 100 or more persons during at least 335 days of a taxable year of 12
months, or during a proportionate part of a shorter taxable year. Because the
Board of Directors believes that it is essential for the Company to continue to
qualify as a REIT, the Board of Directors has adopted, and the shareholders have
approved, provisions of the Articles restricting the acquisition and ownership,
directly and indirectly, of shares of the Company's capital stock.
The Company's Articles provide, subject to certain exceptions specified
therein, that no Individual may own, or be deemed to own by virtue of various
attribution and constructive ownership provisions of the Code, more than 5.5%
(except for Frank P. Lowy and the members of his family who are prohibited from
owning, directly or indirectly, more than 26.0%) of the outstanding shares of
capital stock of the Company, as measured by value (the "Ownership Limit"). The
Articles authorize the Board of Directors to increase the Ownership Limit on a
case-by-case basis if evidence satisfactory to the Board of Directors, based
upon the advice of the Company's tax counsel or other evidence or undertakings
acceptable to it, is presented that such ownership will not then or in the
future jeopardize the Company's status as a REIT. As a condition of such
increase, the Board of Directors in its discretion may require opinions of
counsel satisfactory to it, and/or undertakings from the applicant with respect
to preserving the REIT status of the Company. The restrictions on ownership will
not apply if the holders of the Company's capital stock
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determine that it is no longer in the best interest of the Company to attempt to
qualify, or to continue to qualify, as a REIT by resolution duly adopted by a
majority of the holders of each of the Common Stock and the Preferred Stock.
If shares of capital stock in violation of the Ownership Limit or shares of
capital stock which would cause the Company to be beneficially owned by less
than 100 persons, or which would result in it being "closely held" within the
meaning of Section 856(h) of the Code, or which would otherwise result in the
Company failing to qualify as a REIT, are issued or transferred to any person or
Individual, such issuance or transfer will be null and void to the intended
transferee, and the intended transferee would acquire no rights to the capital
stock. If, notwithstanding the preceding sentence, shares of capital stock are
transferred in violation of the rules set forth therein or the Ownership Limit,
such shares will automatically be converted into Excess Shares and transferred
to one or more trusts for the benefit of a designated charitable organization,
and if required by the Articles, such other charitable organizations as may be
designated from time to time by the Board of Directors (each a "Charitable
Trust"). In addition, if any other event occurs which would result in any person
or Individual directly or indirectly holding shares of capital stock in
violation of the Ownership Limit, then shares of capital stock directly or
indirectly held by such person or Individual will be transferred to a Charitable
Trust to the extent of such excess. Shares transferred to a Charitable Trust
will remain outstanding, and the trustee of the trust will have all voting and
dividend rights pertaining to such shares. Dividends made after violation of the
Ownership Limit but prior to discovery of such violation shall be returned to
the Company and thereafter turned over to the trustee of the Charitable Trust.
The trustee of such trust shall transfer such shares to a person whose ownership
of such shares does not violate the Ownership Limit or other applicable
limitations. Upon a sale of such shares by the trustee, the interest of the
charitable beneficiary will terminate, the Excess Shares will automatically be
converted into shares of capital stock of the same type and class as the shares
from which they were converted, and the sales proceeds would be paid, first, to
the original intended transferee, to the extent of the lesser of (a) such
transferee's original purchase price (or the original market value of such
shares if originally transferred to such person without having given value for
such shares) and (b) the price received by the trustee. Any remaining proceeds
will be paid to the charitable beneficiary. In addition, the Company may, for a
90-day period, designate the person to whom the trustee will sell the capital
stock held in the Charitable Trust. The 90-day period commences on the date of
the transfer in violation of the foregoing provisions that gave rise to the
issuance of Excess Shares, or the date that the Company first becomes aware of
such transfer, whichever is later.
All certificates representing shares of Common Stock bear a legend referring
to the restrictions described above, as follows:
The Common Shares represented by this certificate are subject to
restrictions on ownership and 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. No Individual may Beneficially
Own Shares in excess of the then applicable Ownership Limit, which may
decrease or increase from time to time, unless such Individual is an
Existing Holder. In general, any Individual who attempts to Beneficially Own
Shares in excess of the Ownership Limit must immediately notify the
Corporation. All capitalized terms used in this legend have the meanings set
forth in the Articles of Incorporation, a copy of which, including the
restrictions on ownership and transfer, will be sent without charge to each
shareholder who so requests. If the restrictions on ownership and transfer
are violated, the Common Shares represented hereby may be automatically
exchanged for Excess Shares and deemed transferred to a Special Trust as
provided in the Articles of Incorporation.
Each shareholder shall upon demand be required to disclose to the Company in
writing such information with respect to the direct, indirect and constructive
ownership of shares as the Board of Directors deems necessary to comply with the
provisions of the Code applicable to a REIT or to comply with the requirements
of any taxing authority or governmental agency.
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The ownership limitations may have the effect of precluding acquisition of
control of the Company by a third party so long as the Board of Directors and
the shareholders determine that maintenance of REIT status is in the best
interests of the Company.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is American Stock
Transfer & Trust Company.
LISTING
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol "WEA."
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DESCRIPTION OF WARRANTS
The Company may issue warrants (the "Warrants"), including Warrants to
purchase Preferred Stock or Common Stock. Warrants may be issued independently
or together with any such securities of the Company and may be attached to or
separate from such securities of the Company. The Warrants are to be issued
under warrant agreements (each a "Warrant Agreement") to be entered into between
the Company and a warrant agent (the "Warrant Agent"), all as shall be set forth
in the Prospectus Supplement relating to Warrants being offered pursuant
thereto. The description of the terms of the Warrants that are set forth below
and that will be set forth in the applicable Prospectus Supplement do not
purport to be complete and are qualified in their entirety by reference to the
Warrant Agreement and warrant certificate relating to such Warrants.
The applicable Prospectus Supplement will describe the following terms of
any such other Warrants in respect of which this Prospectus is being delivered:
(i) the title of such Warrants; (ii) the securities (which may include Preferred
Stock or Common Stock) for which such Warrants are exercisable; (iii) the price
or prices at which such Warrants will be issued; (iv) if applicable, the
designation and terms of the Preferred Stock or Common Stock with which such
Warrants are issued, and the number of such Warrants issued with each such share
of Preferred Stock or Common Stock; (v) if applicable, the date on and after
which such Warrants and the related Preferred Stock or Common Stock will be
separately transferable; (vi) if applicable, a discussion of material United
States Federal income tax considerations; and (vii) any other terms of such
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Warrants. The applicable Prospectus Supplement will also
set forth (a) the amount of securities called for by such Warrants, and if
applicable, the amount of Warrants outstanding, and (b) information relating to
provisions, if any, for a change in the exercise price or the expiration date of
such Warrants and the kind, frequency and timing of any notice to be given.
Prior to the exercise of their Warrants for shares of Preferred Stock or Common
Stock, holders of such Warrants will not have any rights of holders of the
Preferred Stock or Common Stock purchasable upon such exercise and will not be
entitled to dividend payments, if any, or voting rights of the Preferred Stock
or Common Stock purchasable upon such exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase for cash or other
consideration such principal amount or such number of securities of the Company
at such exercise price as shall in each case be set forth in, or be determinable
as set forth in, the Prospectus Supplement relating to the Warrants offered
thereby. Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby at any time up to the close of business
on the expiration date set forth in such Prospectus Supplement. After the close
of business on the expiration date (or such later expiration date as may be
extended by the Company), unexercised Warrants will become void.
Upon receipt of payment and the warrant certificate properly completed and
duly executed at the corporate trust office of the Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, the Company will, as
soon as practicable, forward the securities purchasable upon such exercise. If
less than all of the Warrants represented by such warrant certificate are
exercised, a new warrant certificate will be issued for the remaining Warrants.
CERTAIN PROVISIONS OF THE COMPANY'S
ARTICLES OF INCORPORATION AND BY-LAWS AND OF MISSOURI LAW
Certain provisions of the Articles and By-Laws and the GBCL, as well as the
substantial influence of the Westfield America Trust and Westfield Holdings,
both principal shareholders of the Company, may delay or make more difficult
unsolicited acquisitions or changes in control of the Company. It is believed
that such provisions will enable the Company to develop its business in a manner
that will foster its long-term growth without disruption caused by the threat of
a takeover not deemed by its Board of Directors to
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be in the best interests of the Company and its shareholders. Such provisions
could have the effect of discouraging third parties from making proposals
involving an unsolicited acquisition or change of control of the Company,
although such proposals, if made, might be considered desirable by the holders
of the Securities. Such provisions may also have the effect of making it more
difficult for third parties to cause the replacement of the current management
of the Company without the concurrence of the Board of Directors. These
provisions include, among others, (i) the Ownership Limit, (ii) the availability
of capital stock for issuance from time to time at the discretion of the Board
of Directors, (iii) a classified board of directors, (iv) the inability of the
shareholders to take action by written consent, (v) prohibitions against
shareholders calling a special meeting of shareholders, (vi) requirements for
advance notice for raising business or making nominations at shareholders'
meetings, and (vii) additional requirements for certain business combination
transactions. The descriptions set forth herein of such provisions do not
purport to be complete and are qualified in their entirety by reference to the
Articles and By-Laws which have been filed as exhibits to the Registration
Statement of which this Prospectus is a part, and to the provisions of the GBCL.
OWNERSHIP LIMIT
The Articles contain the Ownership Limit which may discourage a change in
control of the Company, and may also deter tender offers for Common Stock that
might otherwise be advantageous to holders of the Common Stock. The Ownership
Limit may limit the opportunities of holders to receive a premium for their
Common Stock that might otherwise exist if an investor were attempting to
assemble a block of shares or otherwise effect a change in control of the
Company.
ADDITIONAL CLASSES AND SERIES OF PREFERRED STOCK
The Board of Directors is authorized to issue additional authorized but
unissued shares of Common Stock and to establish one or more series of Preferred
Stock and establish the number of shares to be included in the series and the
terms of such series, including any preferences, voting powers, dividend rights
and redemption, sinking fund and conversion rights, and issue such Common Stock
and Preferred Stock, without any further vote or action by the shareholders,
unless such action is required by applicable law or the rules of any stock
exchange or automated quotation system on which the Company's securities are
listed. The issuance of additional capital stock may have the effect of
delaying, deferring or preventing a change in control of the Company. The
issuance of additional series of Preferred Stock with voting or conversion
rights may adversely affect the voting power of the holders of Common Stock. The
ability of the Board of Directors to issue additional capital stock, while
providing flexibility in connection with possible acquisitions and other
corporate purposes, could have the effect of making it more difficult for a
third party to acquire, or of discouraging a third party from acquiring, a
majority of the outstanding voting stock of the Company.
SIZE OF BOARD, ELECTION OF DIRECTORS, CLASSIFIED BOARD, REMOVAL OF DIRECTORS AND
FILLING VACANCIES
The Articles and By-Laws provide that the Board of Directors be divided into
three classes as nearly equal in number as possible, with directors having
three-year terms of office that expire at different times in annual succession.
The Articles provide that directors may not be removed from office prior to the
expiration of their term without cause and the vote of 66 2/3% of the
outstanding Common Shares. A classified board makes it more difficult for
shareholders to change a majority of the directors.
The By-Laws limit the total number of directors to 14 and provide that newly
created directorships resulting from any increase in the authorized number of
directors (or any vacancy) may be filled by a vote of a majority of directors
then in office. Accordingly, the Board of Directors may be able to prevent any
shareholder from obtaining majority representation on the Board of Directors by
increasing the size of the board and filling the newly created directorships
with its own nominees.
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LIMITATIONS ON SHAREHOLDER ACTION BY WRITTEN CONSENT; ABILITY TO CALL SPECIAL
MEETINGS
As required by the GBCL, the Articles and the By-Laws provide that an action
by written consent of shareholders in lieu of a meeting must be unanimous. The
By-Laws provide that, unless otherwise prescribed by statute or the Articles,
special meetings of the shareholders can be called only by the Chairman of the
Board of Directors, any President of the Company or by resolution of the Board
of Directors. Further more, as required by the GBCL, the By-laws provide that
only such business as is specified in the notice of any such special meeting of
shareholders may come before such meeting.
These revisions may have an adverse effect on the ability of shareholders to
influence the governance of the Company and the possibility of shareholders
receiving a premium above market price for their securities from a potential
acquiror who is unfriendly to management.
ADVANCE NOTICE FOR RAISING BUSINESS OR MAKING NOMINATIONS AT MEETINGS
The By-Laws establish an advance notice procedure for shareholder proposals
to be brought before an annual meeting of shareholders and for nominations by
shareholders of candidates for election as directors at an annual or special
meeting at which directors are to be elected. Only such business may be
conducted at an annual meeting of shareholders as has been brought before the
meeting by, or at the direction of, the Board of Directors, or by a shareholder
who has given to the Secretary of the Company timely written notice, in proper
form, of the shareholder's intention to bring that business before the meeting.
The Chairman of such meeting will have the authority to make such
determinations. Only persons who are nominated by, or at the direction of, the
Board of Directors, or who are nominated by a shareholder who has given timely
written notice, in proper form, to the Secretary of the Company prior to a
meeting at which directors are to be elected will be eligible for election as
directors of the Company.
To be timely, notice of business to be brought before an annual meeting or
nominations of candidates for election as directors at an annual meeting is
required to be received by the Secretary of the Company not less than 60 nor
more than 90 days in advance of the meeting (or, in the event that less than 70
days' notice or prior public disclosure of the date of the meeting is given or
made to shareholders, not later than 10 days after the first public notice or
disclosure of the date of such annual meeting).
The notice of any nomination for election as a director is required to set
forth the name and address of the shareholder who intends to make the nomination
and of the person or persons to be nominated, the age and the principal
occupation or employment of each nominee, the class and number of shares
beneficially owned by such shareholder and by each nominee, such other
information regarding each nominee proposed by such shareholder required to be
included in a proxy statement filed pursuant to the proxy rules of the
Commission, and the consent of each nominee to be named as a nominee who would
serve as a director if so elected.
BUSINESS COMBINATION AND CONTROL SHARE ACQUISITION STATUTES AND RELATED
PROVISIONS
The Company is subject to the GBCL which contains certain provisions which
may be deemed to have an anti-takeover effect. Such provisions include
Missouri's Business Combination Statute and the control share acquisition
statute.
The Missouri Business Combination Statute prohibits certain transactions
between corporations subject to the statute and certain shareholders of such
corporations. In particular, the statute restricts certain "Business
Combinations" between a corporation and an "Interested Shareholder" or
affiliates of the Interested Shareholder unless certain conditions are met. A
"Business Combination" includes a merger or consolidation, certain sales,
leases, exchanges, pledges and similar dispositions of corporate assets or stock
and certain reclassifications and recapitalizations. An "Interested Shareholder"
includes any person or entity which beneficially owns or controls 20% or more of
the outstanding voting shares of the corporation.
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During the five-year restricted period after a person or entity becomes an
Interested Shareholder, no Business Combination may occur unless such Business
Combination or the transaction in which the person or entity become an
Interested Shareholder (the "Acquisition Transaction") was approved by the board
of directors of the corporation on or before the date of the Acquisition
Transaction. Business Combinations may occur after the five-year period
following the Acquisition Transaction only if: (i) prior to the Acquisition
Transaction, the board of directors approved the Acquisition Transaction or
approved the Business Combination in question; (ii) the holders of a majority of
the outstanding voting stock, other than stock owned by the Interested
Shareholder, approve the Business Combination; or (iii) the Business Combination
satisfies certain detailed fairness and procedural requirements.
The statute applies only to Missouri corporations which have either their
principal place of business or substantial assets in Missouri. In addition, the
corporation must have at least 100 shareholders, and (i) more than 10% of the
shareholders must be resident in Missouri, (ii) more than 10% of the outstanding
shares must be owned by Missouri residents, or (iii) more than 10,000
shareholders must be residents in Missouri (certain shares, such as shares held
by nominees, are disregarded in applying these tests).
The GBCL exempts from the statute: (i) corporations not having a class of
voting stock registered under Section 12 of the Exchange Act; (ii) corporations
which adopt provisions in their articles of incorporation or by-laws expressly
electing not to be covered by the statute; and (iii) certain circumstances in
which a shareholder inadvertently becomes an Interested Shareholder. The
Company's Articles and By-Laws do not contain an election to "opt out" of the
Missouri Business Combination Statute.
Because the Missouri Business Combination Statute may not apply to the
Company, the Articles will contain a similar provision which will provide that,
during the five-year restricted period after a person or entity becomes an
Interested Shareholder, no Business Combination may occur unless such Business
Combination or the transaction in which the person or entity becomes an
Interested Shareholder was approved by the Board of Directors on or before the
date of the Acquisition Transaction or such person or entity was an Interested
Shareholder on the date the provision was adopted by the shareholders of the
Company. Business Combinations may occur after the five-year period following
the Acquisition Transaction only if (i) prior to the Acquisition Transaction,
the board of directors approved the Acquisition Transaction or approved the
Business Combination in question; (ii) the holders of a majority of the
outstanding voting stock, other than stock owned by the Interested Shareholder,
approve the Business Combination; or (iii) the Business Combination satisfies
certain detailed fairness and procedural requirements.
This provision may make it more difficult for a 20% beneficial owner to
effect transactions with the Company and may encourage persons interested in
acquiring the Company to negotiate in advance with the Board of Directors prior
to acquiring a 20% interest. It is possible that such a provision could make it
more difficult to accomplish a transaction which shareholders may otherwise deem
to be in their best interest.
The GBCL also contains a "Control Share Acquisition Statute" which may,
under some circum stances, limit the voting rights of certain shareholders. The
statute provides that an "Acquiring Person" who after any acquisition of shares
of certain publicly traded Missouri corporations has the voting power, when
added in all shares of the corporation previously owned or controlled by the
Acquiring Person, to exercise or direct the exercise of: (i) 20% but less than
33 1/3%, (ii) 33 1/3% or more but less than a majority or (iii) a majority, of
the voting power of outstanding stock of such corporation, will lose the right
to vote some or all of such shares unless the shareholder approval for the
purchase of the "Control Shares" is obtained. To obtain such approval, certain
disclosure requirements must be met and the retention or restoration of voting
rights approved by both: (i) a majority of the outstanding voting stock, and
(ii) a majority of the outstanding voting stock after exclusion of "Interested
Shares." Interested Shares are defined as shares owned by the Acquiring Person,
by directors who are also employees, and by officers of
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the corporation. Shareholders are given dissenters' rights with respect to the
vote on Control Share Acquisitions and may demand payment of the fair value of
their shares.
Certain acquisitions of shares are deemed not to constitute Control Share
Acquisitions, including good faith gifts, transfers pursuant to wills, purchases
pursuant to an issuance by the corporation, mergers involving the corporation
which satisfy the other requirements of the GBCL, transactions with a person who
owned a majority of the voting power of the corporation within the prior year or
purchases from a person who has previously satisfied the provisions of the
Control Share Acquisition Statute so long as the transaction does not result in
the purchasing party having voting power after the purchase in a percentage
range (such ranges are as set forth in the immediately preceding paragraph)
beyond the range for which the selling party previously satisfied the provisions
of the statute. The statute applies only to Missouri corporations which satisfy
requirements as to their place of business or assets and the residence of the
shareholders similar to those applicable to the Business Combination Statute, as
described above. Additionally, a corporation may exempt itself from application
of the statute by inserting a provision in its articles of incorporation or
by-laws expressly electing not to be covered by the statute. The Company's
Articles and By-Laws do not contain an election to "opt out" of the Control
Share Acquisition Statute.
TERMINATION OF REIT STATUS
The Articles permit the directors, with the approval of a majority of each
of the holders of the Common Stock and the Preferred Stock (and with respect to
the Excess Shares, the trustee of the Excess Common Shares and the Excess
Preferred Shares), to terminate the status of the Company as a REIT under the
Code at any time.
LIMITATION ON LIABILITY OF DIRECTORS; INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Articles limit the liability of directors of the Company, in their
capacity as such, whether to the Company, its shareholders or otherwise, to the
fullest extent permitted by Missouri law.
The Articles also contain provisions indemnifying the Company's directors
and officers to the maximum extent permitted by Missouri law. Section 355.1 of
the GBCL provides that the Company may indemnify its directors, officers,
employees and agents in any action, suit or proceeding other than an action by
or in the right of the Company, against expenses (including attorneys' fees),
judgments, fines and settlement amounts actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner that such person reasonably believed to be in or
not opposed to the best interests of the Company and, with respect to any
criminal action, had no reasonable cause to believe his conduct was unlawful.
Section 355.2 of the GBCL provides that the Company may indemnify any such
person in any action or suit by or in the right of the Company against expenses
(including attorneys' fees) and settlement amounts actually and reasonably
incurred by him in connection with the defense or settlement of the action or
suit if such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Company, except that such
person may not be indemnified in respect of any matter in which such person has
been adjudged liable for negligence or misconduct in the performance of his duty
to the Company, unless authorized by the court. Section 355.1 of the GBCL
provides that the Company shall indemnify any such person against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the action, suit or proceeding if such person has been
successful in defending such action, suit or proceeding and if such action, suit
or proceeding is one for which the Company may indemnify him under Section 355.1
or 355.2. Section 355.7 of the GBCL provides that the Company shall have the
power to give any further indemnity to any such person, in addition to the
indemnity otherwise authorized under Section 355, provided such further
indemnity is either (i) authorized, directed or provided for in the Articles or
any duly adopted amendment thereof or (ii) is authorized, directed or provided
for in any By-Law or agreement of the Company which has been adopted by a vote
of the shareholders of the Company, provided that no such
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indemnity shall indemnify any person from or on account of any conduct of such
person which was finally adjudged to have been knowingly fraudulent or
deliberately dishonest or to constitute willful misconduct.
FEDERAL INCOME TAX CONSIDERATIONS
THE FOLLOWING SUMMARY OF MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
REGARDING AN INVESTMENT IN THE SECURITIES IS BASED ON CURRENT LAW, IS FOR
GENERAL INFORMATION ONLY AND IS NOT TAX ADVICE. THIS DISCUSSION DOES NOT PURPORT
TO DEAL WITH ALL ASPECTS OF TAXATION THAT MAY BE RELEVANT TO PARTICULAR
INVESTORS IN LIGHT OF THEIR PERSONAL INVESTMENT OR TAX CIRCUMSTANCES, OR, EXCEPT
TO THE EXTENT DISCUSSED UNDER "--TAXATION OF TAX-EXEMPT SHAREHOLDERS" AND
"--TAXATION OF FOREIGN SHAREHOLDERS," TO CERTAIN TYPES OF INVESTORS (INCLUDING
INSURANCE COMPANIES, TAX-EXEMPT ORGANIZATIONS, FINANCIAL INSTITUTIONS OR
BROKER-DEALERS, FOREIGN CORPORATIONS AND PERSONS WHO ARE NOT CITIZENS OR
RESIDENTS OF THE UNITED STATES) THAT ARE SUBJECT TO SPECIAL TREATMENT UNDER THE
FEDERAL INCOME TAX LAWS NOR DOES IT GIVE A DETAILED DISCUSSION OF ANY STATE,
LOCAL OR FOREIGN TAX CONSIDERATIONS.
EACH PROSPECTIVE PURCHASER SHOULD CONSULT WITH ITS TAX ADVISOR REGARDING THE
SPECIFIC TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND SALE OF THE SECURITIES
AND OF THE COMPANY'S ELECTION TO BE TAXED AS A REAL ESTATE INVESTMENT TRUST,
INCLUDING THE FEDERAL, STATE, LOCAL, AND FOREIGN INCOME AND OTHER TAX
CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP, SALE AND ELECTION, AND OF POTENTIAL
CHANGES IN APPLICABLE TAX LAWS.
TAXATION OF THE COMPANY
GENERAL
The REIT provisions of the Code are highly technical and complex. The
following sets forth the material aspects of the provisions of the Code that
govern the Federal income tax treatment of a REIT and its shareholders. This
summary is based on, and qualified in its entirety by, current U.S. law,
including the applicable Code provisions, rules and regulations promulgated
thereunder, and administrative and judicial interpretations thereof, all of
which are subject to change which may apply retroactively.
OPINION OF COUNSEL
The Company elected to be taxed as a REIT under the Code, commencing with
its taxable year ending December 31, 1994, and the Company intends to continue
to operate in a manner consistent with such election and all rules with which a
REIT must comply. Skadden, Arps, Slate, Meagher & Flom LLP. has issued its
opinion that, commencing with the Company's taxable year ended December 31,
1994, the Company was organized in conformity with the requirements for
qualification as a REIT, and its planned method of operation, and its actual
method of operation from February 12, 1994, will enable it to meet the
requirements for qualification and taxation as a REIT under the Code.
The foregoing opinion is based and conditioned upon certain assumptions and
representations made by the Company as of the date thereof regarding factual
matters. The opinion is expressed as of the date thereof, and Skadden, Arps,
Slate, Meagher & Flom LLP will have no obligation to advise holders of the
Securities of any subsequent change in the matters stated, represented or
assumed or any subsequent change in the applicable law. Moreover, such
qualification and taxation as a REIT depends upon the Company having met and
continuing to meet through, among other things, actual annual operating results,
distribution levels and diversity of stock ownership, the various qualification
tests imposed under the Code as discussed below, the results of which will not
be reviewed by Skadden, Arps, Slate, Meagher & Flom LLP. Accordingly, no
assurance can be given that the actual results of the Company's operations for
any particular taxable year have satisfied or will satisfy such requirements.
See "--Failure to Qualify." An opinion of counsel is not binding on the IRS, and
no assurance can be given that the IRS will not challenge the Company's
eligibility for taxation as a REIT.
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TAXATION OF THE COMPANY
If the Company continues to qualify for taxation as a REIT, it generally
will not be subject to Federal corporate income tax on its net income that is
currently distributed to shareholders. This treatment substantially eliminates
the "double taxation" (at the corporate and shareholder levels) that generally
results from investment in a corporation. However, the Company will be subject
to Federal income tax as follows: First, the Company will be taxed at regular
corporate rates on any undistributed REIT taxable income, including
undistributed net capital gains. Second, under certain circumstances, the
Company may be subject to the "alternative minimum tax" on its items of tax
preference. Third, if the Company has net income from prohibited transactions
(which are, in general, certain sales or other dispositions of property, other
than certain foreclosure property, held primarily for sale to customers in the
ordinary course of business), such net income will be subject to a 100% tax.
Fourth, if the Company should fail to satisfy the 75% gross income test or the
95% gross income test (as discussed below), but has nonetheless maintained its
qualification as a REIT because certain other requirements have been met, it
will be subject to a 100% tax on an amount equal to (i) the gross income
attributable to the greater of the amount by which the Company fails the 75% or
95% test multiplied by (ii) a fraction intended to reflect the Company's
profitability. Fifth, if the Company should fail to distribute during each
calendar year at least the sum of (i) 85% of its REIT ordinary income for such
year, (ii) 95% of its REIT capital gain net income for such year (other than
certain long-term capital gain net income which the Company elects to retain and
pay tax on), and (iii) any undistributed taxable income from prior periods, the
Company would be subjected to a 4% excise tax on the excess of such required
distribution over the amounts actually distributed. Sixth, if during the
ten-year period beginning on the first day of the first taxable year for which
the Company qualified as a REIT (the "Recognition Period"), the Company
recognizes gain on the disposition of any property (including any partnership
interest) held by the Company or any partnership in which an interest was held
as of the beginning of such Recognition Period, then, to the extent of the
excess of (i) the fair market value of such property as of the beginning of such
Recognition Period over (ii) the adjusted tax basis of the Company or the
partnerships in such property as of the beginning of such Recognition Period
(the "Built-in Gain"), such gain will be subject to tax at the highest corporate
tax rate pursuant to IRS regulations that have not yet been promulgated.
Seventh, if the Company acquires any asset from a C corporation (I.E., generally
a corporation subject to full corporate level tax) in a transaction in which the
adjusted tax basis of the asset in the hands of the Company is determined by
reference to the adjusted tax basis of the asset (or any other property) in the
hands of the C corporation, and the Company recognizes gain on the disposition
of such asset during the Recognition Period beginning on the date on which such
asset was acquired by the Company, then, to the extent of the Built-in Gain,
such gains will be subject to tax at the highest regular corporate tax rate
pursuant to IRS regulations that have not yet been promulgated. The results
described above with respect to the recognition of Built-in Gain upon the
acquisition of assets from a C corporation assume that the Company will make an
election pursuant to IRS Notice 88-19 and that the availability or nature of
such election is not modified as proposed in President Clinton's 1999 Federal
Budget Proposal. In addition, the Company could also be subject to tax in
certain situations and on certain transactions not presently contemplated.
REQUIREMENTS FOR QUALIFICATION
The Code defines a REIT as a corporation, trust or association (i) that is
managed by one or more trustees or directors; (ii) the beneficial ownership of
which is evidenced by transferable shares, or by transferable certificates of
beneficial interest; (iii) which would be taxable as a domestic corporation, but
for the special Code provisions applicable to REITs; (iv) that is neither a
financial institution nor an insurance company subject to certain provisions of
the Code; (v) the beneficial ownership of which is held by 100 or more persons;
(vi) in which not more than 50% in value of the outstanding stock is owned,
directly or indirectly, by five or fewer individuals (as defined in the Code to
include certain entities); (vii) that makes an election to be a REIT (or has
made such election for a previous taxable year) and satisfies all relevant
filing and other administrative requirements established by the IRS that must be
met
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in order to elect and maintain REIT status; (viii) that uses a calendar year for
Federal income tax purposes and complies with the record keeping requirements of
the Code and Treasury Regulations promulgated thereunder; and (ix) which meets
certain other tests described below (including with respect to the nature of its
income and assets). The Code provides that conditions (i) through (iv) must be
met during the entire taxable year, that condition (v) must be met during at
least 335 days of a taxable year of 12 months, or during a proportionate part of
a taxable year of less than 12 months, and that condition (vi) must be met
during the last half of each taxable year. The Company believes that it
satisfies all of the conditions set forth above. In order to comply with the
share ownership tests described in conditions (v) and (vi) above, the Articles
provide certain restrictions on the transfer of its capital stock to prevent
concentration of stock ownership. These restrictions may not ensure that the
Company will, in all cases, be able to satisfy the share ownership tests set
forth above. If a REIT complies with all the requirements for ascertaining the
ownership of its outstanding stock in a taxable year and does not know or have
reason to know that it violated the share ownership tests set forth above, the
REIT will be deemed to have complied with such tests for such taxable year.
To monitor the Company's compliance with the share ownership requirements,
the Company is required to maintain records regarding the actual ownership of
its shares. To do so, the Company must demand written statements each year from
the record holders of certain percentages of its stock in which
the record holders are to disclose the actual owners of the shares (I.E., the
persons required to include in gross income the REIT dividends). A list of those
persons failing or refusing to comply with this demand must be maintained as
part of the Company's records. A shareholder who fails or refuses to comply with
the demand must submit a statement with its U.S. Federal income tax return
disclosing the actual ownership of the shares and certain other information.
OWNERSHIP OF PARTNERSHIP INTERESTS
In the case of a REIT that is a partner in a partnership, regulations
provide that the REIT is deemed to own its proportionate share of the
partnership's assets and to earn its proportionate share of the partnership's
income. In addition, the assets and gross income of the partnership retain the
same character in the hands of the REIT for purposes of the gross income and
asset tests applicable to REITs as described below. Thus, the Company's
proportionate share of the assets, liabilities and items of income of the
partnership will be treated as assets, liabilities and items of income of the
Company for purposes of applying the REIT requirements described herein. A
summary of certain rules governing the Federal income taxation of partnerships
and their partners is provided below in "--Tax Aspects of the Company's
Investments in Partnerships."
INCOME TESTS
In order to maintain qualification as a REIT, the Company annually must
satisfy two gross income requirements. First, at least 75% of the Company's
gross income (excluding gross income from "prohibited transactions," I.E.,
certain sales of property held primarily for sale to customers in the ordinary
course of business) for each taxable year must be derived directly or indirectly
from investments relating to real property or mortgages on real property
(including "rents from real property" and interest on obligations secured by
mortgages on real property or on interest in real property, and dividends or
other distributions on a gain from the sale of stock in other REITs) or from
certain types of temporary investments. Second, at least 95% of the Company's
gross income (excluding gross income from prohibited transactions) for each
taxable year must be derived from such real property investments, and from other
dividends, interest and gain from the sale or disposition of stock or securities
(or from any combination of the foregoing). Income earned on liability hedges
against the Company's indebtedness, such as option, futures, and forward
contracts will qualify for the 95% test (but not the 75% test). In certain
cases, Treasury Regulations treat a variable rate and/or foreign currency debt
instrument and a liability and/or currency hedge as a synthetic debt instrument
for all purposes of the Code. If a hedge entered into by the Company is subject
to these
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Treasury Regulations, income earned on the hedge will operate to reduce its
interest expense, and, therefore such income will not affect the Company's
compliance with either the 75% or 95% tests.
Rents received by the Company from the tenants of real property directly,
through partnerships in which it has a direct or indirect ownership interest
(collectively, the "Partnerships"), or through its wholly-owned subsidiary
corporations ("qualified REIT subsidiaries," as described below) will qualify as
"rents from real property" in satisfying the gross income requirements described
above, only if several conditions are met, including the following. If rent
attributable to personal property leased in connection with a lease of real
property is greater than 15% of the total rent received under the lease, then
the portion of rent attributable to such personal property will not qualify as
"rents from real property." Moreover, for rents received to qualify as "rents
from real property," the REIT generally must not operate or manage the property
or furnish or render services to the tenants of such property, other than
through an "independent contractor" from which the REIT derives no revenue.
However, the Company (or its affiliates) are permitted to, and do directly
perform services that are "usually or customarily rendered" in connection with
the rental of space for occupancy only and are not otherwise considered rendered
to the occupant of the property. In addition, the Company (or its affiliates)
may provide non-customary services to tenants of its properties without
disqualifying all of the rent from the property if the payment for such services
does not exceed 1% of the total gross income from the property. For purposes of
this test, the income received from such non-customary services is deemed to be
at least 150% of the direct cost of providing the services. Because certain
properties are managed by third parties, the ability to treat amounts from such
property as "rents from real property" will be dependent on the actions of
others and will not be within the control of the Company. In addition, the
Company generally may not and will not charge rent that is based in whole or in
part on the income or profits of any person (except by reason of being based on
a percentage of the tenant's gross receipts or sales). Finally, rents derived
from tenants that are at least 10% owned, directly or constructively, by the
Company do not qualify as "rents from real property" for purposes of the gross
income requirements. While the Company regularly attempts to monitor such
requirements, no assurance can be given that the Company will not realize income
that does not qualify as "rents from real property," and that such amounts, when
combined with other nonqualifying income, may exceed 5% of the Company's taxable
income and thus disqualify the Company as a REIT.
The Company has derived and continues to derive income from certain sources
that are not described above and that generally do not constitute qualifying
income for purposes of the gross income requirements. While no assurance can be
given that the IRS would not successfully assert otherwise, the Company believes
that the aggregate amount of such income in any taxable year will not exceed the
limits on nonqualifying income under the gross income tests.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for such year
if it is entitled to relief under certain provisions of the Code. These relief
provisions will be generally available if the Company's failure to meet such
tests was due to reasonable cause and not due to willful neglect, the Company
attaches a schedule of the sources of its income to its return, and any
incorrect information on the schedule was not due to fraud with intent to evade
tax. It is not possible, however, to state whether in all circumstances the
Company would be entitled to the benefit of these relief provisions. If these
relief provisions are inapplicable to a particular set of circumstances
involving the Company, the Company will not qualify as a REIT. As discussed
above, even where these relief provisions apply, a tax is imposed with respect
to the excess of the actual amount of non-qualifying income over the amount
permitted under the gross income tests.
ASSET TESTS
The Company, at the close of each quarter of its taxable year, must also
satisfy three tests relating to the nature of its assets. First, at least 75% of
the value of the Company's total assets must be represented by real estate
assets (including its allocable share of real estate assets held by the
Partnerships), stock in other REITs, stock or debt instruments held for not more
than one year purchased with the proceeds of a
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stock offering or long-term (at least five years) debt offering of the Company,
cash, cash items and U.S. government securities. Second, not more than 25% of
the Company's total assets may be represented by securities other than those in
the 75% asset class. Third, of the investments not included in the 75% asset
class, the value of any one issuer's securities owned by the Company may not
exceed 5% of the value of the Company's total assets, and the Company may not
own more than 10% of any one issuer's outstanding voting securities.
The Company's indirect interests in certain of the Partnerships and certain
properties are held through wholly-owned corporate subsidiaries of the Company
organized and operated as "qualified REIT subsidiaries" within the meaning of
the Code. Qualified REIT subsidiaries are not treated as separate entities from
their parent REIT for Federal income tax purposes. Instead, all assets,
liabilities and items of income, deduction and credit of each qualified REIT
subsidiary are treated as assets, liabilities and items of the Company. Each
qualified REIT subsidiary therefore will not be subject to Federal corporate
income taxation, although it may be subject to state or local taxation.
In addition, the Company's ownership of stock of each qualified REIT
subsidiary and its interest in the Partnerships do not violate either the 5%
value restriction or the restriction against ownership of more than 10% of the
voting securities of any issuer. Similarly, the ownership by the Company of any
other REIT will not violate these restrictions.
If the Company should fail to satisfy the asset test at the end of a
calendar quarter, such a failure would not cause it to lose its REIT status if
(i) it satisfied the asset tests at the close of the preceding calendar quarter
and (ii) the discrepancy between the value of the Company's assets and the asset
test requirements arose from changes in the market value of its assets and was
not wholly or partly caused by the acquisition of one or more non-qualifying
assets. If the condition described in clause (ii) of the preceding sentence were
not satisfied, the Company still could avoid disqualification by eliminating any
discrepancy within 30 days after the close of the calendar quarter in which it
arose.
ANNUAL DISTRIBUTION REQUIREMENTS
In order to qualify as a REIT, the Company is required to distribute
dividends (other than capital gain dividends) to its shareholders in an amount
at least equal to (i) the sum of (a) 95% of the Company's "REIT taxable income"
(computed without regard to the dividends paid deduction and the Company's net
capital gain) and (b) 95% of the net income (after tax), if any, from
foreclosure property, minus (ii) the sum of certain items of noncash income.
Such distributions must be paid in the taxable year to which they relate, or in
the following taxable year if declared before the Company timely files its tax
return for such year and if paid with or before the first regular dividend
payment after such declaration. To the extent that the Company does not
distribute all of its net capital gain or distributes at least 95%, but less
than 100%, of its "REIT taxable income," as adjusted, it will be subject to tax
thereon at the capital gains or ordinary corporate tax rates, as the case may
be. Furthermore, if the Company should fail to distribute during each calendar
year at least the sum of (i) 85% of its REIT ordinary income for such year, (ii)
95% of its REIT capital gain income for such year (other than certain long-term
capital gains income which the Company elects to retain and pay tax on), and
(iii) any undistributed taxable income from prior periods, the Company would be
subject to a 4% excise tax on the excess of such required distribution over the
amounts actually distributed. The Company believes that it has made, and intends
to make, timely distributions sufficient to satisfy this annual distribution
requirement.
It is possible that the Company, from time to time, may not have sufficient
cash or other liquid assets to meet the 95% distribution requirement due to
timing differences between (i) the actual receipt of income and actual payment
of deductible expenses and (ii) the inclusion of such income and deduction of
such expenses in arriving at the Company's REIT taxable income. In the event
that such timing differences occur, in order to meet the 95% distribution
requirement, the Company may find it necessary to arrange
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for short-term, or possibly long-term, borrowings (on terms that may not be
favorable to the Company) or to pay dividends in the form of taxable
distributions of property.
Under certain circumstances, the Code permits the Company to rectify a
failure to meet the distribution requirement for a year by paying "deficiency
dividends" to shareholders in a later year, which may be included in the
Company's deduction for dividends paid for the earlier year. Thus, the Company
may avoid being taxed on amounts distributed as deficiency dividends. The
Company would, however, be required to pay interest based on the amount of any
deduction taken for deficiency dividends.
ABSENCE OF EARNINGS AND PROFITS
The Code provides that, in the case of a corporation such as the Company
that was formerly a taxable C corporation and in the case of a corporation that
is acquired by the Company, the Company may qualify as a REIT for a taxable year
only if, as of the close of the such year, it has no "earnings and profits"
accumulated in any non-REIT year. The Company and its former owners retained
independent certified public accountants to determine the Company's earnings and
profits as of February 11, 1994 (and December 31, 1994) for purposes of the
distribution requirement. The determination by the independent certified public
accountants was based upon the Company's tax returns as filed with the IRS and
other assumptions and qualifications set forth in the reports issued by such
accountants.
Any adjustments to the Company's taxable income for taxable years ending on
or before the effective date of its REIT election, including as a result of an
examination of its returns by the IRS, could affect the calculation of its
earnings and profits as of the appropriate measurement date. Furthermore, the
determination of earnings and profits requires the resolution of certain
technical tax issues with respect to which there is no authority directly on
point and, consequently, the proper treatment of these issues for earnings and
profits purposes is not free from doubt. There can be no assurance that the IRS
will not examine the tax returns of the Company for prior years and propose
adjustments to increase its taxable income. In this regard, the IRS can consider
all taxable years of a corporation as open for review for purposes of
determining the amount of such earnings and profits. The Company also believes
it has satisfied this requirement with respect to each corporation that has been
acquired.
FAILURE TO QUALIFY
If the Company fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to shareholders in any year in which the
Company fails to qualify will not be deductible by the Company nor will they be
required to be made. In such event, to the extent of current and accumulated
earnings and profits, all distributions to shareholders will be taxable as
ordinary income, and, subject to certain limitations of the Code, corporate
distributees may be eligible for the dividends received deduction. Unless
entitled to relief under specific statutory provisions, the Company will also be
disqualified from taxation as a REIT for the four taxable years following the
year during which qualification was lost. It is not possible to state whether in
all circumstances the Company would be entitled to such statutory relief. In
addition, a recent Federal budget proposal contains language which, if enacted
in its present form, would result in the immediate taxation of all gain inherent
in a C corporation's assets upon an election by the corporation to become a
REIT, and thus would effectively preclude the Company from re- electing REIT
status following a termination of its REIT qualification.
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TAX ASPECTS OF THE COMPANY'S INVESTMENTS IN PARTNERSHIPS
GENERAL
Certain of the Company's investments are held indirectly through
partnerships. In general, partner ships are "pass-through" entities that are not
subject to Federal income tax. Rather, partners are allocated their
proportionate shares of the items of income, gain, loss, deduction and credit of
a partnership, and are potentially subject to tax thereon, without regard to
whether the partners receive a distribution from the partnership. The Company
will include in its income its proportionate share of the foregoing partnership
items for purposes of the various REIT income tests and in the computation of
its REIT taxable income.
Moreover, for purposes of the REIT asset tests, the Company will include its
proportionate share of assets held by such partnerships. See "--Taxation of the
Company --Ownership of Partnership Interests."
ENTITY CLASSIFICATION
The Company's direct and indirect investment in partnerships involves
special tax considerations, including the possibility of a challenge by the IRS
of the status of any of the partnerships as a partnership (as opposed to an
association taxable as a corporation) for Federal income tax purposes. If
certain of these entities were treated as an association for Federal income tax
purposes, it would be taxable as a corporation and therefore subject to an
entity-level tax on its income. In such a situation, the character of the
Company's assets and items of gross income would change, which could preclude
the Company from satisfying the asset tests and/or the income tests (see
"--Taxation of the Company --Asset Tests" and "-- Taxation of the Company
- --Income Tests"), and in turn could prevent the Company from qualifying as a
REIT. See "--Taxation of the Company --Failure to Qualify" above for a
discussion of the effect of the Company's failure to meet such tests for a
taxable year. In addition, any change in the status of any of the partnerships
for tax purposes might be treated as a taxable event, in which case the Company
might incur a tax liability without any related cash distributions.
TAX ALLOCATIONS WITH RESPECT TO THE PROPERTIES
Pursuant to the Code and the regulations thereunder, income, gain, loss and
deduction attributable to appreciated or depreciated property that is
contributed to a partnership in exchange for an interest in the partnership must
be allocated in a manner such that the contributing partner is charged with, or
benefits from, respectively, the unrealized gain or unrealized loss associated
with the property at the time of the contribution. The amount of such unrealized
gain or unrealized loss is generally equal to the difference between the fair
market value of contributed property at the time of contribution, and the
adjusted tax basis of such property at the time of contribution (a "Book-Tax
Difference"). Such allocations are solely for Federal income tax purposes and do
not affect the book capital accounts or other economic or legal arrangements
among the partners. Where a partner contributes cash to a partnership that holds
appreciated property, the Treasury regulations provide for a similar allocation
of such items to the other partners. These rules would apply to the contribution
by the Company to an existing partnership of the cash proceeds received in any
offerings of its stock.
In general, certain partners may be allocated lower amounts of depreciation
deductions for tax purposes and increased taxable income and gain on sale of
contributed property by the partnership. This will tend to eliminate the
Book-Tax Difference over the life of the partnership. However, the special
allocations do not always entirely rectify the Book-Tax Difference on an annual
basis or with respect to a specific taxable transaction such as a sale. Thus,
the carryover basis of contributed properties in the hands of a partnership may
cause the Company to be allocated lower depreciation and other deductions, and
possibly greater amounts of taxable income in the event of a sale of such
contributed assets in excess of the economic or book income allocated to it as a
result of such sale. This may cause the Company to recognize taxable income in
excess of cash proceeds, which might adversely affect the Company's ability to
comply
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with the REIT distribution requirements. See "-- Taxation of the Company --
Annual Distribution Requirements."
With respect to any property purchased or to be purchased by any of the
partnerships (other than through the issuance of partnership units), such
property will initially have a tax basis equal to its fair market value and the
special allocation provisions described above will not apply.
SALE OF THE PROPERTIES
The Company's share of any gain realized by any partnership, in which it
holds a direct or indirect interest, on the sale of any property held as
inventory or primarily for sale to customers in the ordinary course of business
will be treated as income from a prohibited transaction that is subject to a
100% penalty tax. See "--Requirements for Qualification --Income Tests." Such
prohibited transaction income may also have an adverse effect on the Company's
ability to satisfy the income tests for status as a REIT. Under existing law,
whether property is held as inventory or primarily for sale to customers in the
ordinary course of a partnership's trade or business is a question of fact that
depends on all the facts and circumstances with respect to the particular
transaction. The Company intends to hold its interests in the subject
partnerships, and such partnerships intend to hold their properties for
investment with a view to long-term appreciation, to engage in the business of
acquiring, developing, owning, and operating the properties and to make such
occasional sales of the properties, including peripheral land, as are consistent
with the Company's investment objectives. Accordingly, the Company believes that
its interests in the subject partnerships, and such partnerships' interests in
the properties will not be treated as inventory or as property held primarily
for sale to customers in the ordinary course of a trade or business.
TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
As long as the Company qualifies as a REIT, distributions made to the
Company's taxable domestic shareholders out of current or accumulated earnings
and profits (and not designated as capital gain dividends or retained net
long-term capital gains) will be taken into account by them as ordinary income
and will not be eligible for the dividends received deduction for corporations.
Distributions that are designated as capital gain dividends will be taxed as
long-term capital gain (to the extent that they do not exceed the Company's
actual net capital gain for the taxable year) without regard to the period for
which the shareholder has held its stock. Pursuant to recently enacted
legislation, in the case of a shareholder who is an individual, an estate or a
trust, long-term capital gains and losses are separated into three tax rate
groups: a 20% group, a 25% group and a 28% group and subject to tax at the rate
effective for each group. The Company intends to designate capital gain
dividends, if any, as 20% rate gain distributions, 25% rate gain distributions
or 28% rate distributions and detail such designations in a manner intended to
comply with applicable requirements. If the Company elects to retain their share
of capital gains rather than distribute them, a shareholder will be deemed to
receive a capital gain dividend equal to the amount of such retained net
long-term capital gains. A shareholder will be allowed a credit against its
Federal income tax liability for its proportionate share of tax paid by the
Company on retained capital gains. Such gains are subject to apportionment among
the three tax rate groups as set forth above. Corporate shareholders may be
required to treat up to 20% of certain capital gain dividends as ordinary
income.
Distributions in excess of current and accumulated earnings and profits will
not be taxable to a shareholder to the extent that they do not exceed the
adjusted tax basis of the shareholder's shares, but rather will reduce the
adjusted tax basis of such shares. To the extent that such distributions exceed
the adjusted tax basis of a shareholder's shares, they will be included in
income as long-term capital gain (or short-term capital gain if the shares have
been held for one year or less) provided that the shares are a capital asset in
the hands of the shareholder. In addition, any dividend declared by the Company
in October, November or December of any year and payable to a shareholder of
record on a specified date in any such month shall be treated as both paid by
the Company and received by the shareholder on December 31 of such year,
provided that the dividend is actually paid by the Company during January of
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the following calendar year. Shareholders may not include in their individual
income tax returns any net operating losses or capital losses of the Company.
In general, any loss upon a sale or exchange of shares by a shareholder who
has held such shares for six months or less (after applying certain holding
period rules) will be treated as a long-term capital loss to the extent that
distributions from the Company are required to be treated by such shareholder as
long-term capital gain.
TAXATION OF TAX-EXEMPT SHAREHOLDERS
Based upon a published ruling by the IRS, distributions by the Company to a
shareholder that is a tax-exempt entity will not constitute "unrelated business
taxable income" ("UBTI"), provided that the tax-exempt entity has not financed
the acquisition of its shares with "acquisition indebtedness" within the meaning
of the Code and the shares are not otherwise used in an unrelated trade or
business of the tax-exempt entity.
Notwithstanding the preceding paragraph, however, a portion of the dividends
paid by the Company may be treated as UBTI to certain U.S. private pension
trusts if the Company is treated as a "pension-held REIT" The Company is not,
and does not expect to become, a "pension-held REIT." If the Company were to
become a pension-held REIT, these rules generally would only apply to certain
U.S. pension trusts that hold more than 10% of the Company's stock.
TAXATION OF FOREIGN SHAREHOLDERS
The following is a discussion of certain anticipated U.S. Federal income and
estate tax consequences of the ownership and disposition of the Company's stock
applicable to Non-U.S. Holders of such stock. A "Non-U.S. Holder" is any person
other than (i) a citizen or resident of the United States, (ii) a corporation or
partnership created or organized in the United States or under the laws of the
United States or of any state thereof, (iii) an estate or trust whose income is
includable in gross income for U.S. Federal income tax purposes regardless of
its source, or (iv) a trust if a United States court is able to exercise primary
supervision over the administration of such trust and one or more United States
fiduciaries have the authority to control all substantial decisions of such
trust. The discussion is based on current law and is for general information
only. The discussion addresses only certain and not all aspects of U.S. Federal
income and estate taxation.
ORDINARY DIVIDENDS
The portion of dividends received by Non-U.S. Holders payable out of the
Company's earnings and profits which are not attributable to capital gains of
the Company and which are not effectively connected with a U.S. trade or
business of the Non-U.S. Holder will be subject to U.S. withholding tax at the
rate of 30% (or lower rate, if so provided by an applicable income tax treaty).
In general, Non-U.S. Holders will not be considered engaged in a U.S. trade or
business solely as a result of their ownership of stock of the Company. In cases
where the dividend income from a Non-U.S. Holder's investment in stock of the
Company is (or is treated as) effectively connected with the Non-U.S. Holder's
conduct of a U.S. trade or business, the Non- U.S. Holder generally will be
subject to U.S. tax at graduated rates, in the same manner as U.S. shareholders
are taxed with respect to such dividends (and may also be subject to the 30%
branch profits tax in the case of a Non-U.S. Holder that is a foreign
corporation).
NON-DIVIDEND DISTRIBUTIONS
Distributions by the Company to a Non-U.S. Holder who holds 5% or less of
the Common Stock (after application of certain constructive ownership rules)
which are not dividends out of the earnings and profits of the Company will not
be subject to U.S. income or withholding tax. If it cannot be determined at the
time a distribution is made whether or not such distribution will be in excess
of current and
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accumulated earnings and profits, the distribution will be subject to
withholding at the rate applicable to dividends. However, the Non-U.S. Holder
may seek a refund of such amounts from the IRS if it is subsequently determined
that such distribution was, in fact, in excess of current and accumulated
earnings and profits of the Company.
CAPITAL GAIN DIVIDENDS
Under the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA"), a
distribution made by the Company to a Non-U.S. Holder, to the extent
attributable to gains from dispositions of United States Real Property Interests
("USRPIs") such as the properties beneficially owned by the Company ("USRPI
Capital Gains"), will be considered to be income effectively connected with a
U.S. trade or business of the Non-U.S. Holder and subject to U.S. income tax at
the rate applicable to U.S. individuals or corporations, without regard to
whether such distribution is designated as a capital gain dividend. In addition,
the Company will be required to withhold tax equal to 35% of the amount of
dividends to the extent such dividends constitute USRPI Capital Gains.
Distributions subject to FIRPTA may also be subject to a 30% branch profits tax
in the hands of a foreign corporate shareholder that is not entitled to treaty
exemption.
DISPOSITION OF STOCK OF THE COMPANY
Unless the Company's stock constitutes a USRPI, a sale of such stock by a
Non-U.S. Holder generally will not be subject to U.S. taxation under FIRPTA. The
stock will not constitute a USRPI if the Company is a "domestically controlled
REIT" A domestically controlled REIT is a REIT in which, at all times during a
specified testing period, less than 50% in value of its shares is held directly
or indirectly by Non U.S. Holders. The Company is not a domestically controlled
REIT. A Non-U.S. Holder's sale of stock generally nevertheless will not be
subject to tax under FIRPTA as a sale of a USRPI provided that (i) the stock is
"regularly traded" (as defined by applicable Treasury regulations) on an
established securities market (e.g., the NYSE, on which the regularly traded
Common Stock will be listed) and (ii) the selling Non-U.S. Holder (after
application of certain constructive ownership rules) held 5% or less of the
Company's outstanding stock or the regularly traded class at all times during a
specified testing period.
If gain on the sale of stock of the Company were subject to taxation under
FIRPTA, the Non-U.S. Holder would be subject to the same treatment as a U.S.
shareholder with respect to such gain (subject to applicable alternative minimum
tax and a special alternative minimum tax in the case of nonresident alien
individuals) and the purchaser of the stock could be required to withhold 10% of
the purchase price and remit such amount to the IRS.
Capital gains not subject to FIRPTA will nonetheless be taxable in the
United States to a Non-U.S. Holder in two cases: (i) if the Non-U.S. Holder's
investment in the stock of the Company is effectively connected with a U.S.
trade or business conducted by such Non-U.S. holder, the Non-U.S. Holder will be
subject to the same treatment as a U.S. shareholder with respect to such gain,
or (ii) if the Non-U.S. Holder is a nonresident alien individual who was present
in the United States for 183 days or more during the taxable year and has a "tax
home" in the United States, the nonresident alien individual will be subject to
a 30% tax on the individual's capital gain.
ESTATE TAX
Stock of the Company owned or treated as owned by an individual who is not a
citizen or resident (as specially defined for U.S. Federal estate tax purposes)
of the United States at the time of death will be includable in the individual's
gross estate for U.S. Federal estate tax purposes, unless an applicable estate
tax treaty provides otherwise. Such individual's estate may be subject to U.S.
Federal estate tax on the property includable in the estate for U.S. Federal
estate tax purposes.
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INFORMATION REPORTING AND BACKUP WITHHOLDING
U.S. SHAREHOLDERS
The Company will report to the U.S. Shareholders and the IRS the amount of
distributions paid during each calendar year and the amount of tax withheld, if
any. Under the backup withholding rules, a U.S. Shareholder may be subject to
backup withholding at the rate of 31% with respect to distributions paid unless
such holder (i) is a corporation or comes within certain other exempt categories
and, when required, demonstrates this fact, or (ii) 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. A U.S. Shareholder that does not provide the Company with his
correct taxpayer identification number may also be subject to penalties imposed
by the IRS. Any amount paid as backup withholding will be creditable against the
U.S. Shareholder's income tax liability. In addition, the Company may be
required to withhold a portion of capital gain distributions to any U.S.
Shareholders who fail to certify their nonforeign status to the Company. See
"Federal Income Tax Considerations--Taxation of Foreign Shareholders."
FOREIGN SHAREHOLDERS
The Company must report annually to the IRS and to each Non-U.S. Holder the
amount of dividends (including any capital gain dividends) paid to, and the tax
withheld with respect to, such Non-U.S. Holder. These reporting requirements
apply regardless of whether withholding was reduced or eliminated by an
applicable tax treaty. Copies of these returns may also be made available under
the provisions of a specific treaty or agreement with the tax authorities in the
country in which the Non-U.S. Holder resides.
U.S. backup withholding (which generally is imposed at the rate of 31% on
certain payments to persons that fail to furnish the information required under
the U.S. information reporting requirements) and information reporting generally
will not apply to dividends (including any capital gain dividends) paid on stock
of the Company to a Non-U.S. Holder at an address outside the United States.
The payment of the proceeds from the disposition of stock of the Company to
or through a U.S. office of a broker will be subject to information reporting
and backup withholding unless the owner, under penalties of perjury, certifies,
among other things, its status as a Non-U.S. Holder, or otherwise establishes an
exemption. The payment of the proceeds from the disposition of stock to or
through a non-U.S. office of a non-U.S. broker generally will not be subject to
backup withholding and information reporting.
Backup withholding is not an additional tax. Any amounts withheld under the
backup withholding rules will be refunded or credited against the Non-U.S.
Holder's U.S. Federal income tax liability, provided that the required
information is furnished to the IRS.
The IRS has issued final Treasury Regulations regarding the backup
withholding rules as applied to Non-U.S. Holders. Those final Treasury
Regulations alter the current system of backup withholding compliance and will
be effective for payments made after December 31, 1999. Prospective purchasers
should consult their tax advisors regarding the application of the final
Treasury Regulations and the potential effect on their ownership of Common
Stock.
OTHER TAX CONSEQUENCES
POSSIBLE LEGISLATIVE OR OTHER ACTIONS AFFECTING TAX CONSEQUENCES
Prospective investors should recognize that the present Federal income tax
treatment of an investment in the Company may be modified by legislative,
judicial or administrative action at any time, and that any such action may
affect investments and commitments previously made. The rules dealing with
Federal income taxation are constantly under review by persons involved in the
legislative process and by the IRS
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and the U.S. Treasury Department, resulting in revisions of regulations and
revised interpretations of established concepts as well as statutory changes.
Revisions in Federal tax laws and interpretations thereof could adversely affect
the tax consequences of an investment in the Company. For example, a recent
Federal budget proposal contains language which, if enacted in it, present form,
would result in the immediate taxation of all gain inherent in a C corporation's
assets upon an election by the corporation to become a REIT, and thus would
effectively preclude the Company from re-electing REIT status following a
termination of its REIT qualification.
STATE AND LOCAL TAXES
The Company and its shareholders may be subject to state or local income and
other taxation in various state or local jurisdictions, including those in which
it or they transact business or reside. The state and local tax treatment of the
Company and its shareholders may not conform to the Federal income tax
consequences discussed above. Consequently, prospective shareholders should
consult their own tax advisors regarding the effect of state and local tax laws
on an investment in the Company.
PLAN OF DISTRIBUTION
The Company may sell any of the Securities being offered hereby in any one
or more of the following ways from time to time: (i) through agents; (ii) to or
through underwriters; (iii) through dealers; and (iv) directly to purchasers, or
through a combination of such methods.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
Sales of Common Stock offered hereby may be effected from time to time in
one or more transactions on the NYSE or in negotiated transactions or a
combination of such methods of sale, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at other negotiated
prices.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent involved in the offer or sale of the
Securities in respect of which this Prospectus is delivered will be named, and
any commissions payable by the Company to such agent will be set forth, in the
applicable Prospectus Supplement. Unless otherwise indicated in such Prospectus
Supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its appointment. Any such agent may be deemed to be an
underwriter, as that term is defined in the Securities Act, of the Securities so
offered and sold.
If Securities are sold by means of an underwritten offering, the Company
will execute an underwriting agreement with an underwriter or underwriters at
the time an agreement for such sale is reached, and the names of the specific
managing underwriter or underwriters, as well as any other underwriters, the
respective amounts underwritten and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in the applicable Prospectus Supplement which
will be used by the underwriters to make resales of the Securities in respect of
which this Prospectus is being delivered to the public. If underwriters are
utilized in the sale of any Securities in respect of which this Prospectus is
being delivered, such Securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriters at the time of sale. Securities may be
offered to the public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more underwriters. If any
underwriter or underwriters are utilized in the sale of the Securities, unless
otherwise indicated in the applicable Prospectus Supplement, the underwriting
agreement will provide that the obligations of the
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underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of Securities will be obligated to purchase
all such Offered Securities if any are purchased.
In connection with offers of Depositary Shares, Preferred Stock, Warrants or
Common Stock, the Company may grant to the underwriters options to purchase
additional shares of Depositary Shares, Preferred Stock or Common Stock, as the
case may be, to cover over-allotments, if any, at the initial public offering
price (with additional underwriting commissions or discounts), as may be set
forth in the Prospectus Supplement relating thereto. If the Company grants any
over-allotment option, the terms of such over-allotment option will be set forth
in the Prospectus Supplement for such Depositary Shares, Preferred Stock or
Common Stock.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer as principal. The dealer may then resell such Securities to the public at
varying prices to be determined by such dealer at the time of resale. Any such
dealer may be deemed to be an underwriter, as such term is defined in the
Securities Act, of the Securities so offered and sold. The name of the dealer
and the terms of the transaction will be set forth in the Prospectus Supplement
relating thereto.
Offers to purchase Securities may be solicited directly by the Company and
the sale thereof may be made by the Company directly to institutional investors
or others, including to affiliates and other shareholders of the Company, who
may be deemed to be underwriters within the meaning of the Securities Act with
respect to any resale thereof. The terms of any such sales will be described in
the Prospectus Supplement relating thereto.
Securities may also be offered and sold, if so indicated in the applicable
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("Remarketing Firms"), acting as principals for their own
accounts or as agents for the Company. Any Remarketing Firm will be identified
and the terms of its agreement, if any, with the Company and its compensation
will be described in the applicable Prospectus Supplement. Remarketing Firms may
be deemed to be underwriters, as that term is defined in the Securities Act, in
connection with the Securities remarketed thereby.
If so indicated in the applicable Prospectus Supplement, the Company may
authorize agents and underwriters to solicit offers by certain institutions to
purchase Securities from the Company at the public offering price set forth in
the applicable Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on the date or dates stated in the applicable
Prospectus Supplement. Such delayed delivery contracts will be subject to only
those conditions set forth in the applicable Prospectus Supplement. A commission
indicated in the applicable Prospectus Supplement will be paid to underwriters
and agents soliciting purchases of Securities pursuant to delayed delivery
contracts accepted by the Company.
Agents, underwriters, dealers and Remarketing Firms may be entitled under
relevant agreements with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which such agents, underwriters, dealers
and Remarketing Firms may be required to make in respect thereof.
Each series of Securities will be a new issue and, other than the Common
Stock which is listed on the NYSE, will have no established trading market. The
Company may elect to list any series of Securities on an exchange, and in the
case of the Common Stock, on any additional exchange, but, unless otherwise
specified in the applicable Prospectus Supplement, the Company shall not be
obligated to do so. Therefore, no assurance can be given as to the liquidity of
the trading market for any of the Securities.
Agents, underwriters, dealers, and Remarketing Firms may be customers of,
engage in transactions with, or perform services for, the Company and its
subsidiaries in the ordinary course of business.
29
<PAGE>
LEGAL MATTERS
Unless otherwise specified in a Prospectus Supplement relating to particular
Securities, the validity under Missouri law of the Securities offered hereby
will be passed upon for the Company by Husch & Eppenberger, LLC, Kansas City,
Missouri, on behalf of the Company, and certain tax matters will be passed upon
for the Company by Skadden, Arps, Slate, Meagher & Flom, LLC, Los Angeles,
California.
EXPERTS
The consolidated financial statements and schedules are incorporated in this
Prospectus by reference from the Company's Annual Report on Form 10-K for the
year ended December 31, 1997. The consolidated financial statements and
schedules for the years ended December 31, 1997 and December 31, 1996 have been
audited by Ernst & Young, independent auditors, and for the year ended December
31, 1995 by Coopers & Lybrand L.L.P., independent auditors, as stated in their
reports, which are incorporated herein by reference. Such consolidated financial
statements and schedules have been so incorporated in reliance upon the reports
of such firms given upon their authority as experts in accounting and auditing.
30
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses (other than underwriting
discounts, concessions and commissions) expected to be incurred in connection
with the issuance and distribution of securities being registered. Except for
the Securities and Exchange Commission filing fee, all amounts shown below are
estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee..................................... $ 177,000
Blue Sky Fees and Expenses (including counsel's fees)............................. 30,500
Legal Fees and Expenses........................................................... 250,000
Accounting Fees and Expenses...................................................... 15,500
New York Stock Exchange Listing Fees.............................................. *
Printing and Engraving Expenses................................................... 100,000
Miscellaneous..................................................................... *
Total......................................................................... $
</TABLE>
- ------------------------
* To be filed by amendment.
The Company will bear all of the foregoing expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has obtained, and pays the cost of, directors' and officers'
liability insurance coverage in the amount of $25.0 million (subject to a
retention of "deductible" of $250,000). Directors' and officers' insurance
insures (i) the directors and officers of the Company from any claim arising out
of an alleged wrongful act by the directors and officers of the Company in their
respective capacities as directors and officers of the Company, and (ii) the
Company to the extent that the Company has indemnified the directors and
officers for such loss. The Articles provide for indemnification to the full
extent permitted by Missouri law.
Section 351.355(1) of the Revised Statutes of Missouri provides that a
corporation may indemnify a director, officer, employee or agent of the
corporation in any action, suit or proceeding other than an action by or in the
right of the corporation, against expenses (including attorney's fees),
judgments, fines and settlement amounts 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 corporation and, with respect to any criminal action, had no reasonable
cause to believe his conduct was unlawful.
Section 351.355(2) provides that the corporation may indemnify any such
person in any action or suit by or in the right of the corporation against
expenses (including attorney's fees) and settlement amounts actually and
reasonably incurred by him in connection with the defense or settlement of the
action or suit 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 corporation, except that he
may not be indemnified in respect of any matter in which he has been adjudged
liable for negligence or misconduct in the performance of his duty to the
corporation, unless authorized by the court.
Section 351.355(3) provides that a corporation shall indemnify any such
person against expenses (including attorney's fees) actually and reasonably
incurred by him in connection with the action, suit or pro ceeding if he has
been successful in defense of such action, suit or proceeding, and if such
action, suit or proceeding is one for which the corporation may indemnify him
under Section 351.355(1) or (2). Section
II-1
<PAGE>
351.355(7) provides that a corporation shall have the power to give any further
indemnity to any such person, in addition to the indemnity otherwise authorized
under Section 351.355, provided such further indemnity is either (i) authorized,
directed or provided for in the articles of incorporation of the corporation or
any duly adopted amendment thereof or (ii) is authorized, directed or provided
for in any by-law or agreement of the corporation which has been adopted by a
vote of the shareholders of the corporation, provided that no such indemnity
shall indemnify any person from or on account of such person's conduct which was
finally adjudged to have been knowingly fraudulent, deliberately dishonest or
willful misconduct.
The Articles of Incorporation of the Company contain provisions indemnifying
its directors and officers to the extent authorized specifically by Sections
351.355(1), (2), (3) and (7).
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act of 1933 and is therefore
unenforceable.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
ITEM 16. EXHIBITS.
- --------- -----------------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement.*
4.1 Third Restated Articles of Incorporation of the Company, incorporated herein by reference to Exhibit 3.1 to
the Company Form 10-Q for the quarterly period ended June 30, 1997.
4.2 Second Amended and Restated By-Laws of the Company, incorporated herein by reference to Exhibit 3.3 to the
Company Form 10-Q for the quarterly period ended June 30, 1997.
4.3 Specimen certificate representing Common Stock incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-11 (File No. 333-2231).
4.4 Certificate of Designation for Series B Preferred Shares, incorporated by reference to the Company's Form
10-Q for the quarterly period ended June 30, 1997.
4.5 Form of Warrant.**
4.6 Form of Warrant Agreement.**
4.7 Form of Deposit Agreement.**
4.8 Form of the Depositary Receipt.**
5.1 Opinion of Husch & Eppenberger, as to legality of the Securities.
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding tax matters.*
12.1 Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Husch & Eppenberger, LLP (included in Exhibit 5.1).
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 8.1).*
24.1 Powers of Attorney.
</TABLE>
- ------------------------
* To be filed by amendment.
** The form or forms of Warrant, Warrant Agreement, Deposit Agreement and
Depositary Receipt with respect to each particular offering of Warrants or
Depositary Receipts will be filed as an exhibit to a report of Form 8-K and
incorporated herein by reference.
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in this registration statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post- effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act 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.
(c) 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 foregoing provisions, 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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question
II-3
<PAGE>
whether such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on May 19, 1998.
WESTFIELD AMERICA, INC.
(Registrant)
By: /s/ PETER S. LOWY
-----------------------------------------
(Peter S. Lowy,
Director and Co-President)
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities indicated on the 19th of May, 1998.
* Director and Chairman of
- ------------------------------ the Board
Frank P. Lowy
/s/ PETER S. LOWY Director and Co-President
- ------------------------------ (Principal Executive
Peter S. Lowy Officer)
/s/ RICHARD E. GREEN Co-President (Principal
- ------------------------------ Executive Officer)
Richard E. Green
Chief Financial Officer and
/s/ MARK A. STEFANEK Treasurer (Principal
- ------------------------------ Financial and Accounting
Mark A. Stefanek Officer)
* Director
- ------------------------------
Roy L. Furman
* Director
- ------------------------------
Frederick G. Hilmer
* Director
- ------------------------------
David P. Lowy
* Director
- ------------------------------
Herman Huizinga
* Director
- ------------------------------
Bernard Marcus
* Director
- ------------------------------
Larry A. Silverstein
* Director
- ------------------------------
Francis T. Vincent
* Director
- ------------------------------
George Weissman
By: /s/ PETER S. LOWY
-----------------------------------------
Peter S. Lowy,
Attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE NO.
- ----------- ---------------------------------------------------------------------------------------------- -----------
<C> <S> <C>
1.1 Form of Underwriting Agreement.*
4.1 Third Restated Articles of Incorporation of the Company, incorporated herein by reference to
Exhibit 3.1 to the Company Form 10-Q for the quarterly period ended June 30, 1997.
4.2 Second Amended and Restated By-Laws of the Company, incorporated herein by reference to
Exhibit 3.3 to the Company Form 10-Q for the quarterly period ended June 30, 1997.
4.3 Specimen certificate representing Common Stock incorporated by reference to Exhibit 4.1 of the
Company's Registration Statement on Form S-11 (File No. 333-2231).
4.4 Certificate of Designation for Series B Preferred Shares, incorporated by reference to the
Company's Form 10-Q for the quarterly period ended June 30, 1997.
4.5 Form of Warrant.**
4.6 Form of Warrant Agreement.**
4.7 Form of Deposit Agreement.**
4.8 Form of the Depositary Receipt.**
5.1 Opinion of Husch & Eppenberger, as to legality of the Securities.
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding tax matters.*
12.1 Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Husch & Eppenberger (included in Exhibit 5.1).
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 8.1).*
24.1 Power of Attorney.
</TABLE>
- ------------------------
* To be filed by amendment.
** The form or forms of Warrant, Warrant Agreement, Deposit Agreement and
Depositary Receipt with respect to each particular offering of Warrants or
Depositary Receipts will be filed as an exhibit to a report of Form 8-K and
incorporated herein by reference.
<PAGE>
Exhibit 5.1
May 19, 1998
Westfield America, Inc.
11601 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90025
Westfield America, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special Missouri counsel to Westfield America, Inc., a
Missouri corporation (the "Company"), in connection with the filing with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), of the Company's Registration Statement on Form
S-3, filed as of the date of this letter (the "Registration Statement"), and the
prospectus included therein (the "Prospectus"), relating to the proposed
issuance of (i) shares of preferred stock of the Company, $1.00 par value per
share (the "Preferred Stock"), which may be issued in fractional interests of
shares of preferred stock in the form of depository shares and evidenced by
depository receipts pursuant to the Registration Statement, (ii) shares of
common stock of the Company, par value $.01 per share (the "Common Stock"), and
(iii) warrants to purchase securities of the Company as shall be designated by
the Company at the time of the offering (the "Warrants"), in amounts, at prices
and on terms to be determined at the time of offering. The Preferred Stock, the
Common Stock and the Warrants are collectively called the "Securities."
This Opinion Letter is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991) as in effect on the date hereof. As a consequence this
Opinion Letter is subject to a number of qualifications, exceptions,
definitions, limitations on coverage, and other limitations, all as more
particularly described in the Accord, and this Opinion Letter should be read in
conjunction therewith. The law covered by the opinions expressed herein is
limited to the Law of the State of Missouri.
Based on the foregoing, we are of the following opinion:
<PAGE>
Westfield America, Inc.
May 19, 1998
1. The Company is validly existing as a corporation in good
standing under the laws of the State of Missouri.
2. When (i) the terms of the Preferred Stock and of its issuance
and sale have been duly established in conformity with the Company's
Third Restated Articles of Incorporation and Second Amended and
Restated By-laws and authorized by all necessary corporate action of
the Company, (ii) a Certificate of Designation fixing and determining
the terms of the Preferred Stock has been filed with the Secretary of
State of the State of Missouri and (iii) the shares of Preferred Stock
have been duly executed, issued and delivered as contemplated by each
of the Registration Statement, the Prospectus and any prospectus
supplement relating thereto and paid for with the consideration fixed
therefor by the Board of Directors or a duly authorized committee
thereof (and being no less than the par value of the Preferred Stock),
and, if issued upon the exercise of any Warrants, as contemplated by
the terms thereof and of the Warrant Agreement relating thereto,
assuming that the terms of such Preferred Stock are in compliance with
then applicable law and that the Company has reserved for issuance the
requisite number of shares of Preferred Stock, the Preferred Stock will
be duly authorized, validly issued, fully paid and nonassessable.
3. When (i) the terms of the issuance and sale of the Common
Stock have been duly authorized by all necessary corporate action of
the Company and (ii) the shares of Common Stock have been duly
executed, issued and delivered as contemplated by each of the
Registration Statement, the Prospectus and any prospectus supplement
relating thereto and paid for with the consideration fixed therefor by
the Board of Directors or a duly authorized committee thereof (and
being no less than the par value of the Common Stock), and if issued
upon the exercise of any Warrants, as contemplated by the terms thereof
and of the Warrant Agreement relating thereto, assuming that the
Company has reserved for issuance the requisite number of shares of
Common Stock, the Common Stock will be duly authorized, validly issued,
fully paid and nonassessable.
4. When (i) the issuance, execution and delivery by the Company
of any of the Warrants shall have been duly authorized by all necessary
corporate action of the Company, (ii) the Warrant Agreement relating
thereto shall have been executed and delivered by the respective
parties thereto and (iii) such Warrants
2
<PAGE>
Westfield America, Inc.
May 19, 1998
shall have been duly executed and delivered by the Company,
countersigned by the Warrant Agent and sold as contemplated by each of
the Registration Statement, the Prospectus, any prospectus supplement
or supplements relating to such Warrants and the Warrant Agreement
relating thereto, assuming that the terms of such Warrants are in
compliance with then applicable law, including that the total
consideration for the acquisition of the Warrants and the exercise of
any right to acquire the securities of the Company set forth in the
Warrants shall in no event be less than the par value of such
securities, such Warrants will be validly issued and will be
enforceable against the Company in accordance with their terms.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
The opinions expressed in this letter are solely for the use and
benefit of you and your shareholders and Debevoise & Plimpton, which firm is
hereby expressly authorized to rely upon the opinions stated (subject to the
assumptions and qualifications herein stated) in rendering their opinion to the
Company in connection with the Registration Statement.
Sincerely,
HUSCH & EPPENBERGER, LLC
By: /s/ Stanley C. Johnston
----------------------------------
Stanley C. Johnston, a Member
3
<PAGE>
EXHIBIT 12.1
WESTFIELD AMERICA, INC.
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
MARCH 31, 1998
(AMOUNTS IN THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
FOR THE FOR THE PERIOD FROM
THREE MONTHS THREE MONTHS FEBRUARY 12,
ENDED ENDED YEAR ENDED DECEMBER 31, 1994 THROUGH
MARCH 31, MARCH 31, ------------------------------------------- DECEMBER 31,
1998 1997 1997 1996 1995 1994 (1)
------------- ------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Income before income taxes.......... $ 12,551 $ 7,964 $ 46,865 $ 24,696 $ 21,846 $ 15,241
Add: Minority Interest in
consolidated real estate
partnerships.................. 980 218 2,478 1,063 --
Equity in (income) losses of
unconsolidated real estate
partnerships.................. (487) (1,375) (3,887) (3,707) (4,412) 386
Distributions from
unconsolidated real estate
partnerships.................. 1,952 4,441 10,013 11,430 17,611 29,961
Interest expense............... 20,291 12,860 57,472 40,233 27,916 24,156
Less: Gain on sale of properties and
partnership interest.......... (2,566)
------------- ------------- ------------- ------------- ------------- -------------
Total Earnings Available to Cover
Fixed Charges and Combined Fixed
Charges........................... $ 35,287 $ 24,108 $ 112,941 $ 73,715 $ 62,961 $ 69,744
Total Fixed Charges-Interest
Expense and capitalized
interest.......................... $ 20,409 $ 13,211 $ 58,876 $ 41,736 $ 27,968 $ 24,156
Total Preferred Stock Dividends..... 2,723 1,998 11,428 4,264 3 --
------------- ------------- ------------- ------------- ------------- -------------
Total Combined Fixed Charges........ $ 23,132 $ 15,209 $ 70,304 $ 46,000 $ 27,971 $ 24,156
Ratio of Earnings to Fixed
Charges........................... 1.73 1.82 1.92 1.77 2.25 2.89
------------- ------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- ------------- -------------
Ratio of Earnings to Combined Fixed
Charges........................... 1.53 1.59 1.61 1.60 2.25 2.89
------------- ------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- ------------- -------------
Supplemental Disclosure of Ratio of
Funds from Operations (FFO) to
Combined Fixed Charges:...........
FFO................................. $ 31,558 $ 22,459 $ 111,271 $ 75,842 $ 65,792 $ 53,315
Interest expense.................... 20,291 12,860 57,472 40,233 27,916 24,156
------------- ------------- ------------- ------------- ------------- -------------
Adjusted FFO available to cover
fixed charges and combined fixed
charges........................... 51,849 35,319 168,743 116,075 93,708 77,471
------------- ------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- ------------- -------------
Total Fixed Charges-interest expense
and capitalized interest.......... 20,409 13,211 58,876 41,736 27,968 24,156
Total Preferred Stock Dividends..... 2,723 1,998 11,428 4,264 3 --
------------- ------------- ------------- ------------- ------------- -------------
Total Combined Fixed Charges........ 23,132 15,209 70,304 46,000 27,971 24,156
------------- ------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- ------------- -------------
Ratio of FFO to Fixed Charges....... 2.54 2.67 2.87 2.78 3.35 3.21
------------- ------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- ------------- -------------
Ratio of FFO to Combined Fixed
Charges........................... 2.24 2.32 2.40 2.52 3.35 3.21
------------- ------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- ------------- -------------
<CAPTION>
YEAR ENDED
DECEMBER 31,
1993
-------------
<S> <C>
Income before income taxes.......... $ 19,720
Add: Minority Interest in
consolidated real estate
partnerships.................. --
Equity in (income) losses of
unconsolidated real estate
partnerships.................. 3,177
Distributions from
unconsolidated real estate
partnerships.................. 4,804
Interest expense............... 7,160
Less: Gain on sale of properties and
partnership interest..........
-------------
Total Earnings Available to Cover
Fixed Charges and Combined Fixed
Charges........................... $ 32,295
Total Fixed Charges-Interest
Expense and capitalized
interest.......................... $ 9,311
Total Preferred Stock Dividends..... --
-------------
Total Combined Fixed Charges........ $ 9,311
Ratio of Earnings to Fixed
Charges........................... 3.47
-------------
-------------
Ratio of Earnings to Combined Fixed
Charges........................... 3.47
-------------
-------------
Supplemental Disclosure of Ratio of
Funds from Operations (FFO) to
Combined Fixed Charges:...........
FFO................................. $ 60,472
Interest expense.................... 7,160
-------------
Adjusted FFO available to cover
fixed charges and combined fixed
charges........................... 67,632
-------------
-------------
Total Fixed Charges-interest expense
and capitalized interest.......... 9,311
Total Preferred Stock Dividends..... --
-------------
Total Combined Fixed Charges........ 9,311
-------------
-------------
Ratio of FFO to Fixed Charges....... 7.26
-------------
-------------
Ratio of FFO to Combined Fixed
Charges........................... 7.26
-------------
-------------
</TABLE>
- ------------------------
(1) The computation for the forty-two days ended February 11, 1994 is not
meaningful.
<PAGE>
Exhibit 23.1
Consent of Ernst & Young LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3, No. 333- ) and related Prospectus of
Westfield America, Inc. for the registration of common stock, preferred
stock, depositary shares and warrants for the purchase of its preferred stock
and common stock, and to the incorporation by reference therein of our report
dated January 19, 1998, with respect to the consolidated financial statements
and schedule of Westfield America, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Los Angeles, California
May 18, 1998
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-3 of our report, dated February 13, 1996, except for information as
to earnings per share, distributions per share and average shares
outstanding, for which the date is March 3, 1997, on our audit of the
consolidated financial statements of Westfield America, Inc., formerly known
as CenterMark Properties, Inc., as of and for the year ended December 31,
1995, which report is included in the Annual Report on Form 10-K. We also
consent to the reference to our Firm under the caption "Experts."
Coopers & Lybrand L.L.P.
Los Angeles, California
May 18, 1998
<PAGE>
Exhibit 24.1
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada, Mexico and any
other foreign jurisdiction; and the undersigned does hereby ratify and
<PAGE>
confirm as his/her own acts and deeds all that such attorneys-in-fact and
agents, and each of them, shall do or cause to be done by virtue hereof. Each
one of such attorneys-in-fact and agents shall have, and may exercise, all of
the powers hereby conferred.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this power of attorney this 14th day of May, 1998.
/s/ Peter S. Lowy
-----------------
Peter S. Lowy
3
<PAGE>
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada,
<PAGE>
Mexico and any other foreign jurisdiction; and the undersigned does hereby
ratify and confirm as his/her own acts and deeds all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise, all
of the powers hereby conferred.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this power of attorney this 14th day of May, 1998.
/s/ Frank P. Lowy
-----------------
Frank P. Lowy
3
<PAGE>
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada,
<PAGE>
Mexico and any other foreign jurisdiction; and the undersigned does hereby
ratify and confirm as his/her own acts and deeds all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise, all
of the powers hereby conferred.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this power of attorney this 7th day of May, 1998.
/s/ Francis T. Vincent
----------------------
Francis T. Vincent
3
<PAGE>
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada,
<PAGE>
Mexico and any other foreign jurisdiction; and the undersigned does hereby
ratify and confirm as his/her own acts and deeds all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise, all
of the powers hereby conferred.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this power of attorney this 9th day of May, 1998.
/s/ David P. Lowy
-----------------
David P. Lowy
3
<PAGE>
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada,
<PAGE>
Mexico and any other foreign jurisdiction; and the undersigned does hereby
ratify and confirm as his/her own acts and deeds all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise, all
of the powers hereby conferred.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 8th day of May, 1998.
/s/ Larry A. Silverstein
------------------------
Larry A. Silverstein
3
<PAGE>
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada,
<PAGE>
Mexico and any other foreign jurisdiction; and the undersigned does hereby
ratify and confirm as his/her own acts and deeds all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise, all
of the powers hereby conferred.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 8th day of May, 1998.
/s/ Bernard Marcus
------------------
Bernard Marcus
3
<PAGE>
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada,
<PAGE>
Mexico and any other foreign jurisdiction; and the undersigned does hereby
ratify and confirm as his/her own acts and deeds all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise, all
of the powers hereby conferred.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 14 day of May, 1998.
/s/ Roy Furman
--------------
Roy Furman
3
<PAGE>
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada,
<PAGE>
Mexico and any other foreign jurisdiction; and the undersigned does hereby
ratify and confirm as his/her own acts and deeds all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise, all
of the powers hereby conferred.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 6th day of May, 1998.
/s/ George Weissman
-------------------
George Weissman
3
<PAGE>
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada,
<PAGE>
Mexico and any other foreign jurisdiction; and the undersigned does hereby
ratify and confirm as his/her own acts and deeds all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise, all
of the powers hereby conferred.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 6th day of May, 1998.
/s/ Richard E. Green
--------------------
Richard E. Green
3
<PAGE>
WESTFIELD AMERICA, INC.
POWER OF ATTORNEY
The undersigned, a Director of Westfield America, Inc., a
Missouri corporation (the "Corporation"), does hereby constitute and appoint
Peter S. Lowy, Richard E. Green, Mark A. Stefanek and Irv Hepner, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution, to execute and deliver in his name and on his behalf:
(a) one or more Registration Statements of the
Corporation on Form S-3 or any other appropriate form proposed
to be filed with the Securities and Exchange Commission (the
"SEC") (including without limitation Registration Statements
filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, or any successor thereto) for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), (i) the Corporation's debt securities (the
"Debt Securities") which may take the form of senior debt
securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any
combination thereof, (ii) shares of the Corporation's
preferred stock, par value $1.00 per share (the "Preferred
Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii)
shares of the Corporation's common stock, $.01 par value per
share (the "Common Stock"), and (iv) warrants (the "Warrants")
to purchase the Debt Securities, Preferred Stock (and
depositary shares), Common Stock and other of its securities
(the Debt Securities, the Preferred Stock, the Common Stock
and Warrants being herein collectively referred to as the
"Securities"), in an aggregate amount not to exceed U.S. $1
billion (in the case of Debt Securities, the principal amount
or its equivalent (based on the applicable exchange rate at
the time of issue), if issued with principal amounts
denominated in one or more foreign currencies (or currency
units), or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S. $1
billion to the Corporation) or such additional amounts as
shall be approved by resolution of the Board of Directors of
the Company; and
(b) any and all supplements and amendments
(including, without limitation, post-effective amendments and
prospectus supplements) to such Registration Statements;
and any and all other documents and instruments in connection with the issuance
of the Securities which such attorneys-in-fact and agents, or any one of them,
deem necessary or advisable to enable the Corporation to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and the securities laws of Canada,
<PAGE>
Mexico and any other foreign jurisdiction; and the undersigned does hereby
ratify and confirm as his/her own acts and deeds all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
Each one of such attorneys-in-fact and agents shall have, and may exercise, all
of the powers hereby conferred.
2
<PAGE>
done by virtue hereof. Each one of such attorneys-in-fact and agents shall have,
and may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power
of attorney this 15th day of May, 1998.
/s/ Frederick G. Hilmer
-----------------------
Frederick G. Hilmer
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