SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities
Exchange Act of 1934
Filed by the registrant |X|
Filed by a party other than the registrant |_|
Check the appropriate box:
|X| Preliminary proxy statement
|_| Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
|_| Definitive proxy statement
|_| Definitive additional materials
|_| Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
WESTFIELD AMERICA, INC.
(Name of Registrant as Specified in Its Charter)
- ----------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of filing fee (Check the appropriate box):
|X| No fee required.
|_| Fee computed on table below per Exchange Act Rules 14a-6(i)(1)
and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the
amount on which the filing fee is calculated and state how it
was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
|_| Fee paid previously with preliminary materials.
|_| Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the form or schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
March __, 1999
Dear Shareholder:
On behalf of the Board of Directors, I cordially invite you to
attend our Annual Meeting of Shareholders to be held at 2:00 p.m. on
Thursday, April 29, 1999, at the Four Seasons Hotel, 57 East 57th Street,
New York, New York.
We have enclosed with this letter a notice of meeting, proxy
statement, proxy card and return envelope. We have also enclosed your 1998
Annual Report.
Your vote is important. Whether or not you plan to attend, please
date and sign the enclosed proxy card and return it in the envelope
provided. If you plan to attend the meeting, you may vote in person.
I look forward to your participation.
Sincerely,
Frank P. Lowy
Chairman of the Board
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To the Shareholders of
WESTFIELD AMERICA, INC.
The Annual Meeting of Shareholders of WESTFIELD AMERICA, INC. will
be held on Thursday, April 29, 1999, at the Four Seasons Hotel, 57 East
57th Street, New York, New York at 2:00 p.m., to consider and take action
on the following:
1. To elect three directors;
2. To approve an amendment to Westfield America's Series
C Certificate of Designation so that the holders of
Westfield America's Series C, C-1 and C-2 Preferred
Shares will vote together as a single class;
3. To approve the issuance of Westfield America's common
stock upon conversion of Westfield America's Series D
Preferred Shares if then held by a substantial
security holder of Westfield America or other
restricted holder under the New York Stock Exchange
rules;
4. To approve the issuance of Westfield America's common
stock upon conversion of Westfield America's Series
D-1 Preferred Shares if then held by a substantial
security holder of Westfield America or other
restricted holder under the New York Stock Exchange
rules;
5. To approve the issuance of Westfield America's common
stock to an affiliate of Westfield America under a
subscription agreement previously entered into;
6. To ratify the appointment of Ernst & Young LLP as
Westfield America's independent auditors for the 1999
fiscal year; and
7. To transact any other business that may properly be
brought before the Annual Meeting.
Holders of record of Westfield America's common stock are entitled
to vote on all of the proposals. Holders of record of Westfield America's
Series C Preferred Shares are entitled to vote on Proposals 2, 4 and 5.
Holders of record of Westfield America's Series C-1 Preferred Shares and
Series C-2 Preferred Shares are entitled to vote on Proposal 5. Only
holders of record at the close of business on March 10, 1999, will be
entitled to vote at the annual meeting or any adjournment of the annual
meeting.
Whether or not you plan to attend the annual meeting, please date,
sign and complete the enclosed proxy and return it promptly in the envelope
provided. It is important that your shares be represented at the annual
meeting, and your promptness will assist us to prepare for the annual
meeting and to avoid the cost of a follow-up mailing. If you receive more
than one proxy card because you own shares registered in different names or
at different addresses, each proxy card should be completed and returned.
By Order of the Board of Directors
IRV HEPNER
Secretary
Dated: March __, 1999
WESTFIELD AMERICA, INC.
11601 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90025
-----------
PROXY STATEMENT
-----------
GENERAL INFORMATION
Annual Meeting
The annual meeting will be on April 29, 1999 at 2:00 p.m. at the
Four Seasons Hotel, 57 East 57th Street, New York, New York.
Record Date
The record date is March 10, 1999. If you were a shareholder at
that time, you may vote at the annual meeting. Holders of record of shares
of Westfield America's common stock, par value $.01 per share (the "Common
Shares") are entitled to vote on all of the proposals. Holders of record of
shares of Westfield America's Series C Cumulative Convertible Redeemable
Preferred Stock (the "Series C Preferred Shares") are entitled to vote on
Proposals 2, 4 and 5. Holders of record of shares of Westfield America's
Series C-1 Cumulative Convertible Redeemable Preferred Stock (the "Series
C-1 Preferred Shares") and Series C-2 Cumulative Convertible Redeemable
Preferred Stock (the "Series C-2 Preferred Shares") are entitled to vote on
Proposal 5. At the close of business on March 10, 1999 Westfield America
had:
o 73,337,691 of Westfield America's Common Shares issued and outstanding,
each entitled to one vote;
o 416,667 Series C Preferred Shares issued and outstanding, each
entitled to one vote with respect to Proposal 2 (voting as its own
class), each entitled to ten votes with respect to Proposal 4
(voting as a single class with the Common Shares) and each entitled
to ten votes with respect to Proposal 5 (voting as a single class
with the Common Shares);
o 138,889 Series C-1 Preferred Shares, each entitled to ten votes
with respect to Proposal 5 (voting as a single class with the
Common Shares); and
o 138,889 Series C-2 Preferred Shares, each entitled to ten votes
with respect to Proposal 5 (voting as a single class with the
Common Shares).
First Mailing Date
This Proxy Statement, the Notice of Annual Meeting of Shareholders
and the accompanying proxy card are being mailed to shareholders on or
about March , 1999.
Proxy Solicitation
This proxy is being solicited by Westfield America's board of
directors. Westfield America pays for the cost of soliciting the proxies.
In addition to soliciting proxies by mail, directors and officers of
Westfield America may solicit proxies by telephone or otherwise. Westfield
America reimburses brokerage firms and others for their expenses in sending
proxies and proxy materials to shareholders.
Quorum Requirement
A quorum of shareholders is necessary to have a valid meeting. The
presence, in person or by proxy, of a majority of the shares entitled to
vote at the annual meeting will constitute a quorum for the annual meeting.
Abstentions and broker non-votes are counted as present for establishing a
quorum. A broker non-vote occurs when a broker votes on some matters on the
proxy card but not on others because the broker does not have the authority
to do so.
Information About Voting
Shareholders can vote on matters presented at the annual meeting
either by returning a completed proxy to Westfield America or by voting in
person at the annual meeting. All proxies will be voted in accordance with
the instructions specified. If you return your proxy, but do not indicate
how you wish to vote regarding a proposal, the persons named as proxies on
the accompanying proxy card will vote:
o FOR the election of the three directors;
o FOR an amendment to Westfield America's Series C Certificate of
Designation so that the holders of the Series C Preferred Shares,
Series C-1 Preferred Shares and Series C-2 Preferred Shares will
vote together as a single class;
o FOR the issuance of Common Shares upon conversion of Westfield
America's Series D Cumulative Convertible Redeemable Preferred
Stock (the "Series D Preferred Shares") if then held by a
substantial security holder of Westfield America or other
restricted holder under the New York Stock
Exchange rules;
o FOR the issuance of Common Shares upon conversion of Westfield
America's Series D-1 Cumulative Convertible Redeemable Preferred
Stock (the "Series D-1 Preferred Shares") if then held by a
substantial security holder of Westfield America or other
restricted holder under the New
York Stock Exchange rules;
o FOR the issuance of Common Shares to an affiliate of Westfield America
under a subscription agreement previously entered into; and
o FOR the appointment of Ernst & Young LLP as Westfield America's
independent auditors for the 1999 fiscal year.
Management does not know of any other matters to be presented for action at
the annual meeting. However, if any other matter properly comes before the
annual meeting, the proxies will vote on such matter in their discretion.
Revoking Your Proxy
You can revoke your proxy before it is voted at the meeting by
sending a signed revocation letter or a new proxy, dated later than the
first proxy, to Irv Hepner, Westfield America's Secretary. You can also
revoke your proxy at the annual meeting, if you attend the annual meeting
and ask that it be revoked.
Information About Westfield America, Inc.
The principal executive offices of Westfield America, Inc. are
located at 11601 Wilshire Boulevard, Los Angeles, California 90025
(telephone - (310) 478-4456).
ELECTION OF DIRECTORS
(PROPOSAL 1)
Board Structure
Westfield America currently has ten directors. The ten directors
are divided into three classes.
The Election
Three of the four directors whose regular terms of office expire at
the 1999 annual meeting have been nominated for reelection to Westfield
America's board of directors to hold office until 2002. Information about
these directors is given below. If elected, each director would serve a
term of three years and until his successor is elected and qualified. One
of the four directors whose regular term of office expires at the 1999
annual meeting is not standing for reelection. Accordingly, the number of
directors of Westfield America will be reduced from ten to nine. The other
directors are not up for election this year and will continue in office for
the remainder of their terms.
You may specify on your proxy card whether your shares should be
voted for all, some, or none of the nominees for director. To be elected, a
nominee must receive the affirmative vote of a majority of the Common
Shares cast for the nominee, provided that all shares cast for the nominee
represent a majority of the Common Shares entitled to vote for the nominee.
Abstentions will effectively count as a vote AGAINST the nominees listed
below and broker non-votes will count as a vote FOR the nominees listed
below.
The board of directors has no reason to believe that any of the
listed nominees will not serve if elected. If, however, any nominee cannot
or will not serve as a director, the persons named on your proxy card may
vote for a substitute nominee designated by the board of directors unless
you withhold authority for them to vote for a substitute.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR
EACH OF THE NOMINEES LISTED BELOW
NOMINEES FOR ELECTION AS DIRECTORS TO HOLD OFFICE
UNTIL THE 2002 ANNUAL MEETING
Name Age Principal Occupation and Other Information
- ---- --- ------------------------------------------
David H. Lowy 44 David H. Lowy was appointed a director of
Westfield America in 1996. Mr. Lowy joined
Westfield Holdings Limited in 1977, has
served as a Managing Director of Westfield
Holdings since 1987, and a director of
Westfield Holdings since 1982. He worked for
Westfield Holdings in the United States from
1977 to 1981. He holds a Bachelor of Commerce
degree from the University of New South
Wales. He is a member of the Business Council
of Australia, a member of the Royal Alexandra
Children's Hospital Fund Executive Committee
and a Founding Governor and director of Air
Services Australia Limited and the Australian
Naval Aviation Museum. David H. Lowy is a son
of Frank P. Lowy, Chairman of Westfield
America and a brother of Peter S. Lowy, a
director of Westfield America.
Herman Huizinga 65 Herman Huizinga was appointed a director of
Westfield America. in May 1997. Between 1986
and 1997, Mr. Huizinga was a member of the
Executive Board of ING Group, a major
international banking and insurance group,
headquartered in the Netherlands. He is a
former executive director of Mercantile
Mutual (Group) of Australia (a subsidiary of
ING). He serves on the boards of Eye Hospital
Rotterdam (chairman 1987-1997), "Mandeville"
(Erasmus University Award Committee, chairman
1996-1997), Club Rotterdam (chairman
1995-1996), and Industrial Tunnel Methodology
in Rotterdam.
Bernard Marcus 69 Bernard Marcus was appointed a director of
Westfield America in September 1997. He is a
co-founder of The Home Depot, Inc., and is
currently its Chairman of the board of
directors and has been for over 10 years. He
is also a member of the board of directors of
National Services Industries, Inc., the New
York Stock Exchange and DBT Online.
The names of the remaining directors of Westfield America whose terms
of office will continue after the 1999 annual meeting and certain
information about them, are set forth below.
DIRECTORS WHOSE TERMS OF OFFICE
WILL EXPIRE AT THE 2001 ANNUAL MEETING
Name Age Principal Occupation and Other Information
- ---- --- ------------------------------------------
Roy L. Furman 59 Roy L. Furman was appointed a director of
Westfield America in 1996. Mr. Furman is
Chairman and Chief Executive Officer of
Livent Inc., a company that specializes in
theatrical productions which he joined in
April 1998. In 1973, Mr. Furman co- founded
Furman Selz, an investment banking firm, for
which he served at various times as Chief
Executive Officer, President and Vice
Chairman until April 1998. Mr. Furman
currently serves as a Vice Chairman of
Lincoln Center for the Performing Arts,
Chairman of The Film Society of Lincoln
Center, and Vice President of the New York
City Opera. Mr. Furman is a graduate of
Brooklyn College and Harvard Law School.
Frederick G. Hilmer, 54 Frederick G. Hilmer was appointed a director of
AO Westfield America in 1996. Mr. Hilmer holds a
degree in Law from the University of Sydney,
a Master in Law from the University of
Pennsylvania and an MBA from the Wharton
School of Finance. In November 1998, he was
appointed Chief Executive Officer of John
Fairfax Holdings Limited. Between 1989 and
prior to his appointment in 1998, he was
Professor of Management at the University of
New South Wales, Chairman of Pacific Power,
Chairman of the Advisory Board of Fujitsu
Australia Ltd. and a director of a number of
major Australian companies, including John
Fairfax Holdings Limited and Westfield
Holdings. Prior to 1989 he spent 19 years
with McKinsey & Company.
Peter S. Lowy 40 Peter S. Lowy was appointed a director of
Westfield America in 1994. Mr. Lowy was an
Executive Vice President of Westfield America
from 1994 until March 1997 and is currently a
Co-President of Westfield America. He has
been responsible for Westfield Holdings' U.S.
operations since 1990 after nearly a decade
with Westfield Holdings and its affiliates in
Sydney. He was appointed a director of
Westfield Holdings in 1987 and a Managing
Director in 1997. Prior to joining Westfield
Holdings, he worked in investment banking in
New York and London. He holds a Bachelor of
Commerce degree from the University of New
South Wales. Peter S. Lowy is a son of Frank
P. Lowy, Chairman of Westfield America and a
brother of David H. Lowy, a director of
Westfield America.
DIRECTORS WHOSE TERMS OF OFFICE
WILL EXPIRE AT THE 2000 ANNUAL MEETING
Name Age Principal Occupation and Other Information
- ---- --- ------------------------------------------
Frank P. Lowy, AO 68 Frank P. Lowy was appointed a director of
Westfield America in 1994. and has been
Chairman of Westfield America since 1994. He
is Chairman of the board of directors and
co-founder of Westfield Holdings. He is a
Member of the Board of the Reserve Bank of
Australia, former President of the Board of
Trustees of the Art Gallery of New South
Wales and a director of the Daily Mail and
General Trust plc (U.K.). Frank P. Lowy is
the father of David H. Lowy and Peter S.
Lowy, both directors of Westfield America.
Francis T. Vincent, Jr. 60 Francis T. Vincent, Jr. was appointed a
director of Westfield America in May 1997.
Mr. Vincent served as the eighth Commissioner
of Major League Baseball from September 13,
1989 to September 7, 1992. Since 1992, Mr.
Vincent has served on a variety of corporate
boards. Prior to 1989, Mr. Vincent was
President and Chief Executive Officer of
Columbia Pictures Industries, Inc., Chairman
and Chief Executive Officer of Coca Cola
Company Entertainment Business Sector and
Executive Vice President of the Coca-Cola
Company. Mr. Vincent also served as Associate
Director of the Division of Corporation
Finance of the U.S. Securities and Exchange
Commission. Mr. Vincent received his law
degree from Yale Law School in 1963 and is a
member of the Bar in New York, Connecticut
and the District of Columbia. Mr. Vincent is
a member of the boards of directors of Time
Warner, Inc., General Cigar Holdings and
Oakwood Homes Corporation.
Larry A. Silverstein 67 Larry A. Silverstein was appointed a director
of Westfield America in May 1997. Since 1979,
Mr. Silverstein has been President of
Silverstein Properties, Inc., a
Manhattan-based real estate investment and
development firm which owns interests in and
operates over 10 million square feet of
office space. Mr. Silverstein is a member of
the New York Bar, and Governor of the Real
Estate Board of New York, having served as
its Chairman. He is a trustee of New York
University and is the founder and Chairman
Emeritus of the New York University Real
Estate Institute. He is Chairman of the
Realty Foundation, Vice Chairman of the South
Street Seaport Museum, and board member of
the Museum of Jewish Heritage.
BOARD MEETINGS AND COMMITTEES
Westfield America's board of directors met five times and took
action by unanimous written consent twelve times in 1998. Except for David
H. Lowy, all directors attended 75% or more of the meetings of the board of
directors and each committee on which they served.
The Audit Committee
The Audit Committee of Westfield America's board of directors makes
recommendations concerning the engagement of independent public
accountants, reviews with the independent public accountants the plans and
results of the audit engagement, approves professional services provided by
the independent public accountants, reviews the independence of the
independent public accountants, considers the range of audit and non-audit
fees and reviews the adequacy of Westfield America's internal accounting
controls. The current members of the Audit Committee are Messrs. Herman
Huizinga and Francis T. Vincent, Jr. The Audit Committee met twice in 1998.
The Nominating Committee
The Nominating Committee makes recommendations to Westfield
America's board of directors for the election of directors of Westfield
America. The current members of the Nominating Committee are Messrs. Frank
P. Lowy, Roy L. Furman and Larry A. Silverstein. The Nominating Committee
took action by unanimous written consent once in 1998. The Nominating
Committee will consider nominees recommended by shareholders.
Recommendations should be submitted to the Secretary of Westfield America.
The Executive Committee
The Executive Committee has all powers to act on behalf of
Westfield America's board of directors on all matters that may properly be
considered by the board of directors except for such matters as are
required to be approved by the independent directors or except as
prohibited by Westfield America's By-Laws. The current members of the
Executive Committee are Messrs. Peter S. Lowy, David H. Lowy and Francis T.
Vincent, Jr. The Executive Committee met once and took action by unanimous
written consent twenty-two times in 1998.
No Compensation Committee
Subsidiaries of Westfield Holdings provide management, advisory and
development services to Westfield America. Westfield America has no
employees. Westfield America's board of directors, therefore, does not have
a compensation committee or other committee performing a similar function.
COMPENSATION OF DIRECTORS
Directors who are not officers of Westfield America or employees of
Westfield Holdings receive from Westfield America an annual fee of $40,000,
payable one-half in cash and one-half in Common Shares and reimbursement of
expenses incurred in attending meetings and as a result of other work
performed for Westfield America.
LEGAL PROCEEDINGS
Roy L. Furman was appointed a director of Westfield America in
1996. Mr. Furman is currently Chairman and Chief-Executive Officer of
Livent Inc., a company that specializes in theatrical productions which he
joined in April 1998. On November 18, 1998, Livent and its United
States-based subsidiaries filed voluntary petitions for relief under
Chapter 11 of title 11 of the United States Code. On November 19, 1998,
Livent filed a proceeding under the Creditor's Companies Adjustment Act of
Canada. In August 1998, Livent's current management, including Mr. Furman,
discovered certain accounting irregularities which prompted its board of
directors to initiate an internal investigation. The investigation overseen
by the audit committee uncovered possible widespread fraud perpetrated by
certain former members of Livent's senior management. The cumulative
negative effect of the fraud on shareholder equity as of March 31, 1998 is
estimated to be in excess of $98 million (Canadian).
EXECUTIVE OFFICERS
Set forth below is the name and business experience of each of the
executive officers of Westfield America as of March 10, 1999, to the extent
not provided above.
Name Age Position and Background
- ---- --- -----------------------
Richard E. Green 56 Richard E. Green was appointed an associate
director of Westfield America in May 1997.
Mr. Green was President of Westfield America
from 1994 until March 1997, and is currently
a Co- President of Westfield America. From
1980 to 1988 and from 1993 to the present he
has held the position of President of
Westfield Holdings' U.S. operations. From
1993 to the present, Mr. Green has been
President of Westfield Corporation, Inc. From
1968 to 1980 he was employed by Westfield
America, which was then owned by the May
Company, and attained the title of Executive
Vice President. He is a Past Trustee of the
International Council of Shopping Centers.
Mr. Green holds a Bachelor of Accounting and
Finance from San Jose State University.
Roger D. Burghdorf 51 Roger D. Burghdorf was appointed a Senior
Executive Vice President of Leasing and
Center Management of Westfield America in
1996 and became an Executive Vice President
of Westfield America in 1997. From 1989 to
1994, Mr. Burghdorf was Executive
Vice-President and Director of Leasing at
Westfield America. He is responsible for all
leasing and management services for Westfield
America's shopping centers throughout the
United States.
Randall J. Smith 49 Randall Smith has served as an Executive Vice
President of Westfield America since 1997.
With over 20 years of experience in the
field, Mr. Smith was Vice President at
Westfield America for nine years, before
joining Westfield Holdings in 1994. Mr. Smith
has a Bachelor of Arts in art and
architecture and a Master in Business
Administration in Marketing from Miami
University. He is a member of the
International Council of Shopping Center's
Research Advisory Task Force.
Mark A. Stefanek 44 Mark Stefanek was appointed Senior Vice
President and Chief Financial Officer of
Westfield America in 1995 and became Chief
Financial Officer and Treasurer in 1997. He
began his career at Arthur Andersen. He holds
a Bachelor of Business
Administration-Accounting from the University
of Notre Dame and is a certified public
accountant. From 1985 to 1991 he was Chief
Financial Officer of Western Development
Corporation and for three years before that
he was with Cadillac Fairview Urban
Development, Inc. From 1991 to 1994 he served
as Vice President, Finance and Administration
for Disney Development Company.
Dimitri Vazelakis 45 Dimitri Vazelakis became Senior Executive
Vice President of Westfield America in 1995.
In 1997, Mr. Vazelakis was appointed Executed
Vice President of Westfield America. He holds
a Bachelor of Science in Civil Engineering
and a Masters in Business Administration and
Finance from New South Wales Institute of
Technology. Mr. Vazelakis joined Westfield
Holdings in 1972, came to Westfield Holdings'
U.S. operations in 1986 and in 1989 he began
heading activities in development, design and
construction activities. Between 1979 and
1986, he worked with Westfield Holdings in
Australia, attaining the position of Deputy
General Manager of Design and Construction.
Mr. Vazelakis is a member of the board of
directors of Marks Vazelakis, Inc.
Irv Hepner 48 Irv Hepner was appointed Secretary of
Westfield America in 1997 and designated an
executive officer of Westfield America in
1998. He holds a Bachelor of Arts degree in
architecture from Yale College and a Juris
Doctor from Benjamin N. Cardozo School of
Law. From 1994 until his appointment as
Secretary of Westfield America, Mr. Hepner
was a partner in the firm of Loeb & Loeb LLP
in New York City. Prior to that, from 1983 to
1993, he was first an associate and then a
partner with the firm of Mayer, Brown & Platt
in New York City, and was previously
associated with Willkie Farr & Gallagher from
1982 to 1983 and Debevoise & Plimpton from
1979 to 1982.
EXECUTIVE COMPENSATION
Westfield America has no employees and none of the executive
officers named above receives any compensation for services rendered to
Westfield America. Westfield America does not have any retirement,
incentive, bonus, stock based or other employee benefit plans. All of
Westfield America's executive officers are compensated by Westfield
Holdings or its subsidiaries.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Frank P. Lowy, Chairman of Westfield America and Chairman of
Westfield Holdings serves on the Compensation Committee of Westfield
Holdings.
PERFORMANCE COMPARISON
STOCK PRICE PERFORMANCE GRAPH
The following graph shows the monthly percentage change in
cumulative total shareholder return on Westfield America's Common Shares
from May 16, 1997, the date on which the Common Shares began trading on the
New York Stock Exchange through December 31, 1998. The graph also shows the
cumulative total return of the Standard & Poor's 500 Composite Index and
the NAREIT Equity Retail Return Index during that period. The graph assumes
$100 was invested on May 16, 1997 in each of Westfield America's Common
Shares and the Standard & Poor's 500 Composite Index and on May 30, 1997 in
the NAREIT Equity Retail Return Index (that Index not being available until
May 30, 1997) and assumes the reinvestment of all dividends. Westfield
America has selected the NAREIT Equity Retail Return Index because it
believes that it offers shareholders the best basis for assessing total
shareholder return on the Common Shares and comparing it to the results of
comparable retail real estate investment trusts. The comparisons in this
table are required by the Securities and Exchange Commission and are not
intended to forecast or be indicative of possible future performance of
Westfield America's Common Shares.
EDGAR REPRESENTATION OF DATA POINTS USED IN PRINTED GRAPHIC
WESTFIELD AMERICA NAREIT EQUITY RETAIL INDEX S&P 500
16-May-97 $100.00 $100.00
30-May-97 101.67 $103.55 100.84
30-Jun-97 112.50 107.91 105.36
31-Jul-97 113.99 109.73 113.74
29-Aug-97 112.73 109.08 107.37
30-Sep-97 114.19 114.33 113.25
31-Oct-97 116.76 112.99 109.47
28-Nov-97 114.62 114.85 114.53
31-Dec-97 119.13 117.63 116.50
30-Jan-98 124.82 118.96 117.79
27-Feb-98 125.26 118.77 126.28
31-Mar-98 126.00 122.02 132.75
30-Apr-98 125.10 119.63 134.09
29-May-98 125.10 119.92 131.78
30-Jun-98 133.90 120.10 137.13
31-Jul-98 128.43 115.41 135.67
31-Aug-98 115.68 106.03 116.06
30-Sep-98 127.38 113.15 123.49
31-Oct-98 127.84 112.74 133.54
30-Nov-98 130.16 113.23 141.63
31-Dec-98 130.08 111.82 149.79
SECURITIES BENEFICIALLY OWNED BY
PRINCIPAL SHAREHOLDERS AND MANAGEMENT
The following table lists the beneficial ownership of Westfield
America's Common Shares as of March 10, 1999 for Westfield America's
directors, executive officers and holders of more than 5% of Westfield
America's outstanding Common Shares. "Beneficial Ownership" includes shares
a director, officer or 5% shareholder has the power to vote or transfer and
stock options and warrants that are exercisable currently or within 60
days. Unless otherwise indicated, the business address of each beneficial
owner is c/o Westfield America, Inc., 11601 Wilshire Boulevard, Los
Angeles, California 90025.
<TABLE>
<CAPTION>
Name and Address Percent of
- ---------------- Number of Outstanding
Common Shares Common Shares
Beneficially Beneficially
Owned Owned
------------- --------------
<S> <C> <C>
Perpetual Trustee
Company Limited,
as Trustee for Westfield America Trust........... 49,453,758(1) 60.6%(1)
The National Manager
Property Trusts
Perpetual Trustees of Australia
Limited
Level 7
1 Castlereagh Street
Sydney, Australia
Westfield Holdings Limited; Westfield
American Investments Pty Limited;
Westfield America Management Limited
c/o Westfield Holdings Limited
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
and
Westfield Corporation, Inc....................... 63,519,830(2)(3) 77.8%(2)(3)
Cordera Holding Pty. Limited; Frank P.
Lowy; David H. Lowy, Steven M. Lowy
c/o Westfield Holdings Limited
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
and
Peter S. Lowy.................................... 64,119,830(3) 78.5%(3)
Security Capital Preferred Growth
Incorporated
11 South LaSalle Street, 2nd Floor
Chicago, Illinois 60603....................... 6,944,450(4) 8.7%
Roy L. Furman.................................... 31,155 *
Frederick G. Hilmer.............................. 17,155 *
Bernard Marcus................................... 11,226 *
Larry A. Silverstein............................. 13,155(5) *
Francis T. Vincent, Jr........................... 11,155 *
George Weissman.................................. 11,155 *
Richard E. Green................................. 200,000 *
Herman Huizinga.................................. 3,395 *
Randall J. Smith................................. 5,000 *
Mark A. Stefanek................................. 26,000 *
Roger D. Burghdorf............................... 100 *
Dimitri Vazelakis................................ 2,500 *
Irv Hepner....................................... 1,000 *
All directors and executive officers as 64,452,826(3) 78.9%(3)
a group ([15] persons)........................
</TABLE>
- ---------------
* Less than 1%.
(1) A report on Schedule 13D, dated May 30, 1997, disclosed that this
figure includes 8,335,648 shares issuable upon exercise of
outstanding warrants to purchase Common Shares. All of the Common
Shares and warrants are held by Perpetual Trustee Company Limited
as Trustee of Westfield America Trust (the "Trustee"), an
Australian public property trust. Except with respect to the
election of directors, the Trustee has the power to vote
18,515,336.5 (22,683,160.5 assuming exercise of the outstanding
warrants) of such Common Shares in its absolute discretion.
Westfield America Management Limited, a subsidiary of Westfield
Holdings and manager of Westfield America Trust, directs the vote
of the remaining Common Shares held by the Trustee. The Trustee may
only vote its Common Shares for the election of directors as
approved by the holders of units of Westfield America Trust. If
Proposal 3 and Proposal 4 are approved, as described below, the
Trustee will beneficially own 55,009,318 Common Shares, or 63.1% of
the outstanding Common Shares and except with respect to the
election of directors, the Trustee will have the power to direct
the vote of 26,849, 830.5 Common Shares if the outstanding warrants
are exercised and the Series D and D-1 Preferred Shares are
converted to Common Shares. The Trustee disclaims beneficial
ownership of such shares. References to beneficial ownership are
made herein solely with respect to U.S. securities laws and are not
intended to refer or apply in any respect to Australian legal
matters.
(2) 14,066,072 of the Common Shares are held by wholly-owned
subsidiaries of Westfield Holdings. The balance represents Common
Shares held in the name of the Trustee. Solely for purposes of U.S.
securities laws, Westfield Holdings may be deemed to have
beneficial ownership of the shares owned by the Trustee because a
subsidiary of Westfield Holdings manages Westfield America Trust.
The manager of Westfield America Trust has the power to direct the
vote of 22,602,773.5 of such shares (26,770,597.5 assuming exercise
of the outstanding warrants held by Westfield America Trust), other
than for the election of directors. The manager of Westfield
America Trust has no pecuniary interest in such shares although
Westfield Holdings has a pecuniary interest in 23.8% of the shares
held by Westfield America Trust because it owns units of Westfield
America Trust. The manager of Westfield America Trust and the
Trustee of Westfield America Trust share the investment power over
such shares. See footnote (1) above. If Proposal 3 and Proposal 4
are approved, as described below, the wholly-owned subsidiaries of
Westfield Holdings will beneficially own 71,853,170 Common Shares,
or 79.8% of the outstanding Common Shares and the manager of
Westfield America Trust will have the power to direct the vote of
28,159,487.5 Common Shares held by the Trustee, other than for the
election of directors, if the outstanding warrants are exercised
and the Series D and D-1 Preferred Shares are converted to Common
Shares. References to beneficial ownership are made herein solely
with respect to U.S. securities laws and are not intended to refer
or apply in any respect to Australian legal matters.
(3) Cordera Holding Pty. Limited and Messrs. Frank, David, Steven and
Peter Lowy may be deemed to beneficially own approximately 35% of
the outstanding ordinary shares of Westfield Holdings and, as such,
Messrs. Frank, David, Steven and Peter Lowy may be deemed solely
for purposes of U.S. securities laws to beneficially own the
63,519,830 Common Shares indicated as owned and deemed beneficially
owned by Westfield Holdings as set forth in footnote (2) above. If
Proposal 3 and Proposal 4 are approved, as described below, Messrs.
Frank, David, Steven and Peter Lowy may be deemed solely for
purposes of U.S. securities laws to beneficially own 72,453,170
Common Shares and 80.5% of the outstanding Common Shares. Messrs.
Frank, David, Steven and Peter Lowy disclaim beneficial ownership
of such securities. References to beneficial ownership are made
herein solely with respect to U.S. securities laws and are not
intended to refer or apply in any respect to Australian legal
matters. See "Directors."
(4) Pursuant to the Schedule 13G filed on February 12, 1999 with the
Securities and Exchange Commission, 4,166,670 shares, 1,388,890
shares and 1,388,890 shares represent Common Shares that are
issuable by Westfield America upon the conversion of 416,667 Series
C Preferred Shares, 138,889 Series C-1 Preferred Shares and 138,889
Series C-2 Preferred Shares, respectively. Each Series C Preferred
Share, Series C-1 Preferred Share and Series C-2 Preferred Share is
currently convertible into 10 Common Shares.
(5) 12,000 of the Common Shares are owned by Mr. Silverstein's wife.
Mr. Silverstein disclaims beneficial ownership of such Common
Shares.
Except as set forth above, no director or executive officer of
Westfield America owns Common Shares.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
TRANSACTIONS WITH WESTFIELD HOLDINGS LIMITED
Advisory, Management and Development Services to Westfield America, Inc.
Westfield America has no employees and relies on subsidiaries of
Westfield Holdings for the management of Westfield America and its
properties. These services are provided under a series of agreements
between Westfield America and subsidiaries of Westfield Holdings.
Westfield America's board of directors monitors the performance
under the advisory, management and development agreements with Westfield
Holdings. These financial arrangements and any other transactions in which
Westfield Holdings has a material interest must be approved by the
independent directors and, in certain instances, the Trustee. Independent
directors are those members of Westfield America's board of directors who:
o are not, and have not for the last 12 months been, directors, officers
or employees of Westfield Holdings or Westfield America Trust;
o are not affiliates of Westfield Holdings or Westfield America Trust or
officers or employees of such affiliates;
o are not members of the immediate family of any natural person described
in the two clauses immediately above; and
o are free from any relationship that would interfere with the exercise
of independent judgment as a director.
The independent directors may seek the advice of independent experts in
carrying out their duties. The agreements were negotiated by Westfield
America and Westfield Holdings. Westfield America believes that, although
these agreements were negotiated between associated parties, they reflect
market terms.
Westfield U.S. Advisory, L.P. and the Advisory Agreement
Services Provided
Westfield U.S. Advisory, L.P., a Delaware limited partnership
wholly owned by Westfield Corporation, Inc., a wholly owned subsidiary of
Westfield Holdings, provides a variety of asset management and investment
services for Westfield America.
The Advisory Fee
Under an advisory agreement, dated as of July 1, 1996, as amended
in May 1997 at the time of Westfield America's initial public offering,
Westfield U.S. Advisory, L.P. receives an annual fee equal to the lesser of
25% of Funds from Operation in excess of the Advisory F.F.O. Amount and
0.55% of the "Net Equity Value" of Westfield America's assets.
As of today, the "Advisory F.F.O. Amount" is $142.2 million. The
"Advisory F.F.O. Amount" will be increased whenever Westfield America
issues additional Common Shares by adding the "F.F.O. Adjustment Factor" to
the then applicable Advisory F.F.O. Amount. The "F.F.O. Adjustment Factor"
is 103% (or 100% in the case of Common Shares issued under any dividend
reinvestment plan) multiplied by:
o a fraction the numerator of which is the aggregate "Funds From
Operations Available for Common Shares" of Westfield America for each
of the four full calendar quarters immediately preceding the date of the
issuance and the denominator of which is the aggregate number of Common
Shares (on a fully diluted basis as required by Generally Accepted
Accounting Principles ("GAAP")) of Westfield America then outstanding
immediately prior to the date of the issuance, multiplied by
o the number of additional Common Shares issued (on a fully diluted basis
as required by GAAP).
"Funds From Operations Available for Common Shares" means Funds From
Operations less dividends paid or accrued on the preferred shares during
the applicable four full calendar quarter period. "Funds From Operations"
means net income (loss) (computed in accordance with GAAP), excluding gains
(or losses) from debt restructuring and sales of property, plus real estate
related depreciation and amortization and after adjustments for
unconsolidated partnerships and joint ventures.
The advisory fee is payable quarterly on the last business day of
each calendar quarter based on the annual budget for Funds From Operations
for Westfield America and is subject to year end adjustment based on actual
Funds From Operations for the year. "Net Equity Value" will be based on
shareholders' equity as reflected in Westfield America's most recent
quarterly financial statements, as adjusted to reflect the most recent
appraised value of Westfield America's properties (which appraisals are
performed on a rolling three-year basis).
Westfield America paid an advisory fee of $6,140,000 for the fiscal
year ended December 31, 1998.
Term and Termination
The advisory agreement has an initial term of three years ending
May 21, 2000 followed by automatic one-year renewals. After the initial
three-year term, the performance of Westfield U.S. Advisory, L.P. will be
reviewed annually. The advisory agreement may be terminated annually if the
Trustee (so long as Westfield America Trust owns at least 10% of the
outstanding capital stock of Westfield America) and at least 75% of the
independent directors agree that the performance of Westfield U.S.
Advisory, L.P. is unsatisfactory and materially detrimental to Westfield
America or that the compensation payable to Westfield U.S. Advisory, L.P.
is not fair. Westfield U.S. Advisory, L.P., however, can prevent a
compensation termination by accepting a mutually acceptable reduction of
its fees. In addition, the advisory agreement may be terminated at any
time, for cause, which is defined as fraud, misappropriation of funds or
willful violation of the advisory agreement or if an event of default has
occurred and is continuing under the Garden State Plaza loan (as described
below).
Westfield U.S. Advisory, L.P. can terminate the advisory agreement, if
Westfield U.S. Advisory, L.P. notifies Westfield America that advisory
services shall cease to be one of the major business undertakings of
Westfield Holdings in the United States, except that the advisory agreement
will continue for a period of 180 days thereafter so long as Westfield
America is reasonably satisfied with Westfield U.S. Advisory, L.P.'s
ability to provide the required services during such period.
Officers
The principal executive officers of the general partner of Westfield
U.S. Advisory, L.P. are Richard E. Green and Peter S. Lowy, the
Co-Presidents of Westfield America.
Westfield Management Company and the Management Agreements
Services Provided
Westfield Management Company, a Delaware partnership wholly owned
by Westfield Holdings, manages all of Westfield America's shopping centers.
Management Fees
For each of the wholly owned shopping centers, Westfield Management
Company receives a property management fee from Westfield America equal to
5% of all minimum, fixed and percentage rents received by Westfield America
with respect to the wholly owned shopping centers, a lease preparation fee
of $750 per executed lease, and a tenant plan review fee of $1,000 per
executed lease. For the properties not wholly owned by Westfield America,
the fees payable to Westfield Management Company are based on the terms of
joint venture agreements between Westfield America and its joint venture
partners, but Westfield America's share thereof is subject to adjustment so
that the aggregate fees payable by Westfield America with respect to such
properties are the same as payable with respect to the wholly owned
shopping centers. Fees incurred for the year ended December 31, 1998 to
Westfield Management Company under these agreements totaled 10.9 million.
In addition to the management fees, Westfield Management Company was
reimbursed for recoverable operating costs, including mall related payroll
costs totaling $17.5 million for the year ended December 31, 1998.
Term and Termination
Each management agreement has an initial three-year term, ending
May 21, 2000, followed by automatic one-year renewals. After the initial
three-year term, Westfield Management Company's performance will be
reviewed annually. The management agreements may be terminated annually, if
the Trustee (so long as Westfield America Trust owns at least 10% of the
outstanding capital stock of Westfield America) and at least 75% of the
independent directors agree that Westfield Management Company's performance
is unsatisfactory and materially detrimental to Westfield America or that
the compensation paid to Westfield Management Company is not fair.
Westfield Management Company, however, can prevent a compensation
termination by accepting a mutually acceptable reduction of its fees. In
addition, each of the management agreements may be terminated at any time
for cause, which is defined as fraud, misappropriation of funds or willful
violation of the respective management agreements or if an event of default
has occurred and is continuing under the Garden State Plaza loan (as
described below).
In a separate letter agreement, Westfield America and Westfield
Management Company also agreed that so long as Westfield Management Company
is managing the centers under the management agreements, Westfield
Management Company will manage all wholly-owned properties acquired by
Westfield America in the future and that Westfield America will use its
reasonable efforts to have Westfield Management Company appointed as the
manager with respect to any future joint venture properties controlled by
Westfield America.
Westfield Management Company can terminate the management
agreements if Westfield Management Company notifies Westfield America that
management of regional shopping centers shall cease to be one of the
principal business undertakings of Westfield Holdings in the United States,
except that the management agreements will continue for a period of 180
days thereafter so long as Westfield America is reasonably satisfied with
Westfield Management Company's ability to provide the required services
during such period.
Officers
The principal executive officers of the general partner of
Westfield Management Company are Richard E. Green and Peter S. Lowy, the
Co-Presidents of Westfield America.
Westfield Corporation, Inc. and the Development Agreement
Services Provided
Westfield Corporation, Inc., a Delaware corporation wholly-owned by
Westfield Holdings, has entered into a master development framework
agreement with Westfield America under which Westfield America granted
Westfield Corporation, Inc. the exclusive right to carry out expansion,
redevelopment and related work on Westfield America's wholly owned shopping
centers and agreed to attempt to have Westfield Corporation, Inc. to be
hired to carry out similar activities for the jointly owned shopping
centers.
Development Fees
Under the master development framework agreement, dated July 1,
1996, Westfield Corporation, Inc. is reimbursed for pre-development costs,
subject to the work being performed in accordance with an annual plan or
redevelopment budget previously approved by Westfield America's board of
directors. If Westfield America in its sole discretion (based on
feasibility and other appropriate studies) decides to proceed with a
particular development, Westfield Corporation, Inc. provides the necessary
development services pursuant to a separate development agreement to be
entered into by the parties. Westfield Corporation, Inc. provides:
o such development services for a fixed fee equal to 5% of the final
gross project price;
o architectural, design and engineering services for a fixed fee equal
to 10% of the construction costs; and
o other related services in consideration of agreed fees.
The construction portion of the development project is performed on a fixed
price basis. The master development framework agreement provides that
Westfield America may engage an independent representative to advise
Westfield America with respect to the proposed fixed price and the
construction schedule. If Westfield America desires to engage such an
independent representative, Westfield America shall consult with Westfield
Holdings in good faith as to the selection of the independent
representative. If Westfield America and Westfield Corporation, Inc. cannot
agree as to the fixed price or the construction schedule for the project,
and the parties' respective independent representatives cannot negotiate a
resolution, an independent expert will determine the appropriate price and
construction schedule. Westfield Corporation, Inc. may then either accept
the independent expert's proposal or agree to perform the work on a "cost
plus" basis in which case Westfield Corporation, Inc. will:
o be paid for the actual cost of performing the services plus a
percentage of those costs as agreed between Westfield America and
Westfield Corporation, Inc.; and
o Westfield America may designate the schedule, but Westfield
Corporation, Inc. will not be liable if the construction schedule
is not achieved.
Westfield America has no obligation to proceed with any development
project. The decisions to proceed with a development project and the fixed
price and construction schedule with respect to such a project requires the
approval of at least 75% of the independent directors. Reimbursements and
fees incurred for the year ended December 31, 1998 to Westfield
Corporation, Inc. under these agreements totaled $51.2 million.
Term and Termination
The master development framework agreement may be terminated by
Westfield America by agreement of at least 75% of the independent directors
and the Trustee (so long as Westfield America Trust owns at least 10% of
the outstanding capital stock of Westfield America) if the advisory
agreement and the management agreements have been terminated in accordance
with their terms. In such event, Westfield Corporation, Inc. and Westfield
America will remain bound by the master development framework agreement for
the remaining term with respect to any development projects for which
Westfield Corporation, Inc. has commenced to provide substantial
predevelopment services to Westfield America. In addition, the master
development framework agreement or any individual development agreement may
be terminated at any time for cause, which is defined as fraud,
misappropriation of funds or willful violation of the master development
framework agreement or the individual development agreement or if an event
of default has occurred and is continuing under the Garden State Plaza loan
(as described below).
Westfield Corporation, Inc. can terminate the master development
framework agreement if Westfield Corporation, Inc. notifies Westfield
America that property development services shall cease to be one of the
principal business undertakings of Westfield Holdings in the United States,
except that the master development framework agreement will continue for a
period of 180 days thereafter so long as Westfield America is reasonably
satisfied with Westfield Corporation, Inc.'s ability to provide the
required services during such period and except that any such termination
shall not affect any individual development agreement previously entered
into by Westfield Corporation, Inc. and Westfield America.
Officers
The principal executive officers of Westfield Corporation, Inc. are
Richard E. Green and Peter S. Lowy, the Co-Presidents of Westfield America.
Management of Westfield America, Inc.
All of the officers of Westfield America are employed by Westfield
Holdings and receive compensation and fringe benefits from Westfield
Holdings and not from Westfield America. Several of the officers serve as
directors of Westfield Holdings and certain of such officers and associates
beneficially own shares of Westfield Holdings and units of Westfield
America Trust. See "Securities Beneficially Owned by Principal Shareholders
and Management." As a result of such employment and interests, the officers
of Westfield America receive an indirect benefit from the advisory,
management and development arrangements described above.
Garden State Plaza Option
In July 1996, Westfield America acquired from Westfield Holdings an
option to acquire at fair market value the stock of Westland Realty, Inc.,
the holder of an indirect 50% interest in Garden State Plaza located in
Paramus, New Jersey.
The Garden State Plaza option is exercisable following the
completion of an independent valuation of the property to determine its
fair market value. The valuation procedure may be commenced by Westfield
America upon the earliest to occur of:
o any time after completion and stabilization of the recent expansion
of the property, defined to mean the leasing of 95% of the mall
gross leasable area for the expansion; and
o any time after the date which is 18 months after completion of the
recent expansion of the property.
In any event, the valuation procedure described above must commence by
January 3, 2000.
The valuation is to be performed by an independent appraiser approved by
Westfield America and Westfield Holdings within 30 days after Westfield
America elects to commence the valuation procedure. The purchase price
under the Garden State Plaza option is equal to 50% of such fair market
valuation, subject to adjustment for the mortgage debt of Garden State
Plaza, the Garden State Plaza loan (as described below) and the amount by
which current assets exceed current liabilities. The Garden State Plaza
option must be exercised within 120 days after delivery of the
determination of the fair market value of the property. Westfield America
believes that the conditions to the exercise of the Garden State Plaza
option will first be satisfied in the summer of 1999 based on the right to
exercise 18 months after substantial completion; however, the option may
first be exercised at an earlier date if the property is 95% leased.
Westfield America's board of directors (including at least 75% of the
independent directors) will determine whether the exercise of the Garden
State Plaza option is in the best interests of Westfield America. If the
purchase price exceeds $55 million (net of the $145 million Garden State
Plaza loan described below), the exercise of the Garden State Plaza option
will be subject to an affirmative vote of a majority of the holders of
Common Shares voting at a meeting on such issue other than Westfield
Holdings and its affiliates (including Westfield America Trust) and
interests associated with the Lowy family. The purchase price shall be
payable by the delivery of Common Shares, valued at the average of the
closing sale price for the Common Shares on the 20 trading days prior to
the date the option is exercised.
The Garden State Plaza Loan
In May 1997, Westfield America acquired a substantial economic
interest in the revenues to be received from Garden State Plaza by making a
$145 million participating secured loan to the subsidiaries of Westfield
Holdings which own the indirect 50% interest in Garden State Plaza. This
non-recourse loan bears interest at a fixed annual rate of 8.5% per annum,
and is secured by a pledge of Westfield Holdings' 50% partnership interest
in the limited partnership which owns Garden State Plaza. Westfield America
also receives participating interest based on 80% of the borrowers' share
of the adjusted cash flow (after payment of the fixed interest and after
calculating Westfield Holdings' share of cash flow from Garden State Plaza
as if the mortgage loan encumbering such property had a fixed interest rate
of 7.25% per annum) from Garden State Plaza subject to an aggregate limit
for fixed interest and participating interest in an amount equal to 11% per
annum. The loan will mature on May 21, 2007, may be prepaid with a yield
maintenance premium (based on the payment of the maximum amount of
participating interest) after the expiration of the Garden State Plaza
option in connection with the sale of Garden State Plaza (or Westfield
Holdings' interest therein) to an unaffiliated third party and may not
otherwise be prepaid for five years. If an event of default shall occur
under the Garden State Plaza loan, Westfield America will be entitled to a
yield maintenance premium (based on the payment of the maximum amount of
participating interest) and will have the right to terminate the management
agreements, the advisory agreement and the master development framework
agreement. In May 1997, the board of directors of Westfield Holdings
represented that it will not prepay the Garden State Plaza loan for seven
years except under the circumstances described above and with the required
yield maintenance premium. Westfield America received $14.7 million in
interest from the Garden State Plaza loan for the year ended December 31,
1998.
The other 50% interest in Garden State Plaza is owned by affiliates
of Rodamco North America B.V., a Netherlands corporation unaffiliated with
Westfield America.
Westfield Holdings Warrants
In May 1997, Westfield America purchased from Westfield Holdings
for $15.3 million, non-transferable warrants to acquire 49 million ordinary
shares of Westfield Holdings. In April 1998, with the consent of Westfield
Holdings, Westfield America exercised the warrants prior to their stated
exercise date of May 21, 2000, by electing to receive the profit element of
the warrants. Westfield Holdings elected to pay the profit element of the
warrants by issuing to Westfield America 20,339,066 ordinary shares of
Westfield Holdings. These shares were then sold by Westfield America to
unaffiliated purchasers for $99,670,000.
The terms of the warrants were negotiated between associated
parties and there can be no assurance that either the price or the terms of
the warrants were fair.
Registration Rights Agreement
Pursuant to a registration rights agreement, after May 21, 2000,
Westfield Holdings and its subsidiaries will have demand registration
rights that would require Westfield America to promptly effect the
registration of their shares held prior to Westfield America's initial
public offering. Westfield Holdings currently has demand registration
rights for its other Common Shares. In addition, Westfield America has
agreed that, upon the request of Westfield Holdings, it will use its
reasonable efforts to have a shelf registration statement filed after May
21, 2000 (after May 21, 1998 for any shares not held prior to consummation
of Westfield America's initial public offering) and declared and kept
continuously effective, pursuant to which Westfield Holdings and its
subsidiaries will be able to sell Common Shares in ordinary course
brokerage or dealer transactions. However, these rights allow Westfield
America to postpone the filing of a demand registration statement (and an
amendment or supplement to a shelf registration statement or to suspend the
use of any previously filed registration statement for a reasonable period
of time (not to exceed 60 days) if the board of directors determines in
good faith that it would be significantly disadvantageous to Westfield
America and its shareholders for such a registration statement (or
amendment or supplement) to be filed on or before the date filing otherwise
would be required. In addition, if Westfield America proposes to register
any of its Common Shares, either for its own account or for the account of
other shareholders, Westfield America is required, with certain exceptions,
to provide the parties to the registration rights agreement with notice of
the registration and to include in such registration all of the Common
Shares requested to be included by such persons.
TRANSACTIONS WITH WESTFIELD AMERICA TRUST
Westfield America Trust is an Australian public property trust
which was established pursuant to a Trust Deed, dated March 28, 1996, as
amended, to acquire a majority interest in Westfield America. Westfield
America Trust is managed by Westfield America Management Limited, a
wholly-owned subsidiary of Westfield Holdings. Units of Westfield America
Trust are traded on the Australian Stock Exchange.
The trustee of Westfield America Trust is Perpetual Trustee Company
Limited which is Australia's largest independent trustee organization and
has extensive experience in acting as trustee of unit trusts, including
listed property trusts. Although under the Trust Deed, the Trustee and
Westfield Holdings of Westfield America Trust have the power to make other
investments, Westfield America Trust has informed Westfield America that it
presently intends only to invest in Westfield America.
The Trustee generally votes the Common Shares held by Westfield
America Trust, as directed by the manager of Westfield America Trust, with
certain exceptions. As long as Westfield Holdings owns Common Shares and
Westfield America Trust and Westfield Holdings together hold more than 50%
of the outstanding Common Shares of Westfield America, the Trustee has the
power to vote in its absolute discretion the number of Common Shares held
by Westfield America Trust equal to the difference between the number of
Common Shares held by Westfield America Trust and Westfield Holdings and
50% of the outstanding Common Shares. Any additional shares held by
Westfield America Trust will be voted by the Trustee as directed by the
manager of Westfield America Trust.
Under current Australian law, the Trustee must solicit approval of
Westfield America Trust unitholders before voting in the election of
directors with respect to shares of other corporations held by Westfield
America Trust. For this purpose, a general meeting of Westfield America
Trust unitholders must be convened with each Westfield America Trust
unitholder having one vote for each unit held. The Trustee votes all Common
Shares as a block in the manner approved by a majority of the units voting
on the matter at such meeting of unitholders. The Trustee has called a
meeting of Westfield America Trust unitholders to obtain approval for
voting for the election of Westfield America's directors.
In May 1998, Westfield America entered into a stock subscription
agreement with Westfield America Trust. Subject to the shareholder approval
that is being requested pursuant to this Proxy Statement, Westfield America
has the right to sell, and Westfield America Trust has the obligation to
purchase, $A465 million (approximately $US292.0 million as of December 31,
1998) of Westfield America's Common Shares in three equal installments at a
5% discount to the then prevailing market price of Westfield America's
Common Shares at June 2001, 2002 and 2003.
On August 12, 1998, Westfield America issued in a private placement
416,667 Series D Preferred Shares to Westfield America Trust, and 277,778
Series D Preferred Shares to Westfield American Investments Pty Limited, a
subsidiary of Westfield Holdings in exchange for gross proceeds of
$75,000,060 and $50,000,040, respectively. On December 22, 1998, Westfield
America issued 138,889 Series D-1 Preferred Shares to Westfield America
Trust in exchange for gross proceeds of $25,000,020. Each of the Series D
Certificate of Designation and the Series D-1 Certificate of Designation
allows conversion by Westfield America Trust or Westfield American
Investments Pty Limited, at any time (subject to the shareholder approval
that is being requested pursuant to this Proxy Statement), of each Series D
Preferred Share and each Series D-1 Preferred Share into 10 Common Shares,
subject to adjustment as described in Exhibit B to this Proxy Statement.
At March 10, 1999, Westfield Holdings owns an approximately 23.8%
equity interest in Westfield America Trust on a fully diluted basis.
APPROVAL OF AMENDMENT TO WESTFIELD AMERICA'S
SERIES C CERTIFICATE OF DESIGNATION SO THAT
THE HOLDERS OF WESTFIELD AMERICA'S SERIES C,
C-1 AND C-2 PREFERRED SHARES WILL VOTE TOGETHER
AS A SINGLE CLASS
(PROPOSAL 2)
On August 12, 1998, Westfield America issued to Security Capital
Preferred Growth Incorporated in a private placement, 416,667 Series C
Preferred Shares, par value $1.00 per share and liquidation value $180 per
share, in exchange for gross proceeds of $75,000,060. On December 24, 1998,
Westfield America issued to Security Capital in a private placement,
138,889 Series C-1 Preferred Shares, par value $1.00 per share and
liquidation value $180 per share, in exchange for gross proceeds of
$25,000,020. On December 29, 1998, Westfield America issued to Security
Capital in a private placement, 138,889 shares of Series C-2 Preferred
Shares, par value $1.00 per share and liquidation value $180 per share, in
exchange for gross proceeds of $25,000,020. Each Series C Preferred Share,
Series C-1 Preferred Share and Series C-2 Preferred Share is currently
convertible into 10 Common Shares, subject to adjustment.
In January 1999, the board of directors of Westfield America
approved and adopted a resolution approving an amendment to Section 11(a)
to Westfield America's Certificate of Designation setting forth "Resolution
of the Board of Directors of Westfield America, Inc. Designating Series C
Preferred Shares and Fixing Preferences and Rights thereof" (the "Series C
Certificate of Designation") so that the holders of Westfield America's
Series C Preferred Shares, Series C-1 Preferred Shares and Series C-2
Preferred Shares will vote together as a single class. The proposed
amendment provides that:
o if Westfield America does not pay a full distribution to the holders
of Series C Preferred Shares, the holders of Series C-1 Preferred
Shares or the holders of Series C-2 Preferred Shares for two
consecutive quarterly distribution periods, then there shall be two
additional members on Westfield America's board of directors, and the
holders of the Series C Preferred Shares, the holders of the Series
C-1 Preferred Shares and the holders of the Series C-2 Preferred
Shares, voting together as a single class, shall have the exclusive
right to elect those two additional directors; and
o if Westfield America does not pay a distribution of at least $0.32 per
share, adjusted for stock splits or similar matters that affect
conversion rates, to holders of Westfield America's Common Shares for
two consecutive quarterly distribution periods, then there shall be
one additional member on Westfield America's board of directors, and
the holders of the Series C Preferred Shares, the holders of the
Series C-1 Preferred Shares and the holders of the Series C-2
Preferred Shares, voting together as a single class, shall have the
exclusive right to elect that additional director. For a description
of events that affect conversion rates, see Exhibit B to this Proxy
Statement.
Once all distributions in arrears are made current and paid in full, and
once Westfield America has paid distributions on its Common Shares of at
least $0.32 per share, then the directors elected by the holders of the
Series C Preferred Shares, the holders of the Series C-1 Preferred Shares
and the holders of the Series C-2 Preferred Shares shall cease to be
directors and the number of directors shall be reduced accordingly. A copy
of the proposed amendment to Section 11(a) of the Series C Certificate of
Designation, marked to show the changes covered by this Proposal 2, is
attached to this Proxy Statement as Exhibit A.
The affirmative vote of a majority of the Common Shares cast,
provided that all shares cast represent a majority of the Common Shares
entitled to vote on Proposal 2, and the affirmative vote of a majority of
the Series C Preferred Shares, is required for approval of this Proposal.
Abstentions will effectively count as a vote AGAINST this Proposal and
broker non-votes will count as a vote FOR this Proposal.
The purpose of the proposed amendment to the Series C Certificate
of Designation is to allow the holders of the Series C Preferred Shares,
the holders of the Series C-1 Preferred Shares and the holders of the
Series C-2 Preferred Shares, in the situations described above, to vote
together as a single class.
The effect of the proposed amendment is to decrease the number of
directors that the holders of the Series C Preferred Shares, the holders of
the Series C-1 Preferred Shares and the holders of the Series C-2 Preferred
Shares, in the aggregate, in the situations described above, may elect. In
the absence of adopting the proposed amendment, the holders of the Series C
Preferred Shares will vote separately from the holders of the Series C-1
Preferred Shares and Series C-2 Preferred Shares for the election of
directors if the situations described above occur, and consequently,
holders of the Series C, C-1 and C-2 Preferred Shares would be entitled to
elect more directors in the aggregate than they would be entitled to elect
if the proposed amendment were adopted.
As of March 10, 1999, there were 416,667 Series C Preferred Shares
outstanding, all of which are currently held by Security Capital.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR
THE APPROVAL AND RATIFICATION OF THE AMENDMENT
TO THE SERIES C CERTIFICATE OF DESIGNATION
APPROVAL OF THE ISSUANCE OF COMMON SHARES UPON
CONVERSION OF WESTFIELD AMERICA'S SERIES D PREFERRED SHARES
IF THEN HELD BY A SUBSTANTIAL SECURITY HOLDER OF
WESTFIELD AMERICA OR OTHER RESTRICTED HOLDER UNDER
THE NEW YORK STOCK EXCHANGE RULES
(PROPOSAL 3)
On August 12, 1998, Westfield America issued, pursuant to a private
placement, 416,667 shares of Series D Preferred Shares, par value $1.00 per
share and liquidation value $180 per share, to Westfield America Trust,
Westfield America's largest shareholder and an affiliate of Westfield
America and 277,778 shares of Series D Preferred Shares to Westfield
American Investments Pty Limited, a subsidiary of Westfield Holdings in
exchange for gross proceeds of $75,000,060 and $50,000,040, respectively.
The proceeds of such sales were used in part to fund the acquisition of a
portfolio of properties from TrizecHahn Centers, Inc.
A description of the Series D Preferred Shares is attached to this
Proxy Statement as Exhibit B.
Westfield America's Certificate of Designation setting forth
"Resolution of the Board of Directors of Westfield America, Inc.
Designating Series D Preferred Shares and Fixing Preferences and Rights
Thereof" (the "Series D Certificate of Designation") provides that, in the
event that the holders of Common Shares as a whole reject this proposal,
then from and after August 12, 2000, the Series D Preferred Shares are
redeemable, at the option of the holder, for cash at a price equal to 18
times the current market price of the Common Shares, plus all accumulated,
accrued and unpaid dividends, whether or not declared, if any, to the date
of repurchase or the date payment is made available. In addition, the
Series D Certificate of Designation provides that the Series D Preferred
Shares will be convertible into Common Shares upon the transfer of the
Series D Preferred Shares to a person to whom Westfield America is
permitted to issue Common Shares without shareholder approval, in
accordance with the rules of the New York Stock Exchange.
Pursuant to Rule 312 of the New York Stock Exchange, shareholder
approval is required before the Series D Preferred Shares are convertible
by Westfield America Trust or Westfield American Investments Pty Limited
into Common Shares because each of Westfield America Trust and Westfield
American Investments Pty Limited could be considered a "substantial
security holder" of Westfield America. Rule 312 of the New York Stock
Exchange also requires shareholder approval prior to the Series D Preferred
Shares being convertible into Common Shares when Series D Preferred Shares
are held by a director, officer or substantial security holder of Westfield
America (a "Related Party"), a subsidiary, affiliate or other
closely-related person of a Related Party or any company or entity in which
a Related Party has a substantial direct or indirect interest. A person
owning an interest consisting of less than either 5% of the number of
shares of common stock or 5% of the voting power outstanding of a company
or entity is not considered a "substantial security holder".
If Proposal 3 is approved by the shareholders, the convertibility
of the Series D Preferred Shares would no longer be subject to shareholder
approval under Rule 312 of the New York Stock Exchange rules. The
affirmative vote of a majority of the Common Shares cast is required for
approval of this Proposal, provided that all shares cast represent a
majority of the Common Shares entitled to vote on Proposal 3. Abstentions
will effectively count as a vote AGAINST this Proposal and broker non-votes
will count as a vote FOR this Proposal.
The purpose of Proposal 3 is to facilitate the listing of the
Common Shares, into which the Series D Preferred Shares are convertible, on
the New York Stock Exchange and to prevent the redemption of the Series D
Preferred Shares, at the option of the holder, from occurring (as described
above). If Proposal 3 is approved, the Series D Preferred Shares would be
convertible into Common Shares, and upon conversion would permit the
holders thereof to vote on all matters on which the holders of Common
Shares are entitled to vote. Consequently, upon the occurrence of the
conversion, the voting rights of the current holders of Common Shares would
be diluted.
As of March 10, 1999, there were 694,445 Series D Preferred Shares
outstanding.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
FOR THE ISSUANCE OF COMMON SHARES UPON
THE CONVERSION OF SERIES D PREFERRED SHARES
IF THEN HELD BY A SUBSTANTIAL SECURITY HOLDER OF
WESTFIELD AMERICA OR OTHER RESTRICTED HOLDER UNDER
THE NEW YORK STOCK EXCHANGE RULES
APPROVAL OF THE ISSUANCE OF COMMON SHARES UPON CONVERSION
OF WESTFIELD AMERICA'S SERIES D-1 PREFERRED SHARES IF
THEN HELD BY A SUBSTANTIAL SECURITY HOLDER OF
WESTFIELD AMERICA OR OTHER RESTRICTED HOLDER
UNDER THE NEW YORK STOCK EXCHANGE RULES
(PROPOSAL 4)
On December 22, 1998, Westfield America issued, pursuant to a
private placement, 138,889 Series D-1 Preferred Shares, par value $1.00 per
share and liquidation value $180 per share, to Westfield America Trust in
exchange for gross proceeds of $25,000,020. The proceeds of such sale were
used in part to acquire assets and in part to pay down indebtedness of
Westfield America.
A description of the Series D-1 Preferred Shares is attached to
this Proxy Statement as Exhibit B.
Westfield America's Certificate of Designation setting forth
"Resolution of the Board of Directors of Westfield America, Inc.
Designating Series D-1 Preferred Shares and Fixing Preferences and Rights
Thereof" (the "Series D-1 Certificate of Designation") provides that, in
the event that the holders of Common Shares as a whole reject this
proposal, then from and after December 24, 2000, the Series D-1 Preferred
Shares are redeemable, at the option of the holder, for cash at a price
equal to 18 times the current market price of the Common Shares, plus all
accumulated, accrued and unpaid dividends, whether or not declared, if any,
to the date of repurchase or the date payment is made available. In
addition, the Series D-1 Certificate of Designation also provides that the
Series D-1 Preferred Shares will be convertible into Common Shares upon the
transfer of the Series D-1 Preferred Shares to a person to whom Westfield
America is permitted to issue Common Shares without shareholder approval,
in accordance with the rules of the New York Stock Exchange.
Pursuant to Rule 312 of the New York Stock Exchange, shareholder
approval is required before the Series D-1 Preferred Shares are convertible
by Westfield America Trust into Common Shares because Westfield America
Trust could be considered a "substantial security holder" of Westfield
America. Rule 312 of the New York Stock Exchange also requires shareholder
approval prior to the Series D-1 Preferred Shares being convertible into
Common Shares when Series D-1 Preferred Shares are held by a director,
officer or substantial security holder of Westfield America (a "Related
Party"), a subsidiary, affiliate or other closely-related person of a
Related Party or any company or entity in which a Related Party has a
substantial direct or indirect interest. A person owning an interest
consisting of less than either 5% of the number of shares of common stock
or 5% of the voting power outstanding of a company or entity is not
considered a "substantial security holder".
If Proposal 4 is approved by the shareholders, the convertibility
of the Series D-1 Preferred Shares would no longer be subject to
shareholder approval under Rule 312 of the New York Stock Exchange rules.
The affirmative vote of a majority of the Common Shares and Series C
Preferred Shares cast is required for approval of this Proposal, provided
that all shares cast represent a majority of the Common Shares and Series C
Preferred Shares entitled to vote on Proposal 4. Abstentions will
effectively count as a vote AGAINST this Proposal and broker non-votes will
count as a vote FOR this Proposal.
For purposes of voting with respect to this Proposal, each Series C
Preferred Share will equal ten Common Shares (the number of Common Shares
that each Series C Preferred Share is convertible into). Security Capital,
as holder of all of the issued and outstanding Series C Preferred Shares,
has agreed to vote all of its Series C Preferred Shares in favor of this
Proposal.
The purpose of Proposal 4 is to facilitate the listing of the
Common Shares, into which the Series D-1 Preferred Shares are convertible,
on the New York Stock Exchange and to prevent the redemption of the Series
D-1 Preferred Shares, at the option of the holder, from occurring (as
described above). If Proposal 4 is approved, the Series D-1 Preferred
Shares would be convertible into Common Shares, and upon conversion would
permit the holders thereof to vote on all matters on which the holders of
Common Shares are entitled to vote. Consequently, upon the occurrence of
the conversion, the voting rights of the current holders of Common Shares
would be diluted.
As of March 10, 1999, there were 138,889 Series D-1 Preferred
Shares outstanding.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR
THE ISSUANCE OF COMMON SHARES UPON THE CONVERSION
OF SERIES D-1 PREFERRED SHARES IF THEN HELD BY
A SUBSTANTIAL SECURITY HOLDER OF WESTFIELD AMERICA OR
OTHER RESTRICTED HOLDER UNDER THE NEW YORK
STOCK EXCHANGE RULES
APPROVAL OF THE ISSUANCE OF COMMON SHARES TO AN AFFILIATE OF WESTFIELD
AMERICA UNDER A SUBSCRIPTION AGREEMENT PREVIOUSLY ENTERED INTO
(PROPOSAL 5)
On May 29, 1998, Westfield America entered into a stock
subscription agreement with Westfield America Trust. Subject to shareholder
approval (as described below), Westfield America has the right to sell, and
Westfield America Trust has the obligation to purchase, $A465 million
(approximately $US292.0 million as of December 31, 1998) of Common Shares
in three equal installments at a 5% discount to the then prevailing market
price of the Common Shares at June 2001, 2002 and 2003. In lieu of issuing
Common Shares at each installment date, Westfield America has the option to
pay the 5% discount in cash or in Common Shares. The proceeds of said
agreement, should Westfield America elect to sell the Common Shares, would
be used for general business purposes including, without limitation,
funding future acquisitions of property.
In January 1999, the board of directors of Westfield America
approved and adopted a resolution approving the form, terms and provisions
of the stock subscription agreement.
The affirmative vote of a majority of:
o the Common Shares and Series C Preferred Shares cast, provided that
all shares cast represent a majority of the Common Shares and
Series C Preferred Shares entitled to vote on Proposal 5;
o the Common Shares and Series C-1 Preferred Shares cast, provided
that all shares cast represent a majority of the Common Shares and
Series C-1 Preferred Shares entitled to vote on Proposal 5; and
o the Common Shares and Series C-2 Preferred Shares cast, provided
that all shares cast represent a majority of the Common Shares and
Series C-2 Preferred Shares entitled to vote on Proposal 5,
is required for approval of this Proposal. Abstentions will effectively
count as a vote AGAINST this proposal and broker non-votes will count as a
vote FOR this proposal.
For purposes of voting with respect to this Proposal, each Series C
Preferred Share, Series C-1 Preferred Share and Series C-2 Preferred Share
will equal ten Common Shares (the number of shares that each share of
Series C Preferred Share, Series C-1 Preferred Share and Series C-2
Preferred Share is convertible into).
The purpose of Proposal 5 is to facilitate the sale of $A465
million (approximately $US292.0 million as of December 31, 1998) of Common
Shares which Westfield America may use for general corporate purposes
including possible future acquisitions of property. The effect of
shareholder approval of Proposal 5 would be that Westfield America would
have the ability to raise $A465 million (approximately $US292.0 million as
of December 31, 1998) in additional capital and additional Common Shares
will be issued and would permit the holders thereof to vote on all matters
on which the current holders of Common Shares are entitled to vote.
Consequently, the voting rights of the current holders of Common Shares
would be diluted. In addition, the economic rights of the current holders
of Common Shares would be diluted as a result of the 5% discount at which
the Common Shares can be purchased.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR
THE ISSUANCE OF COMMON SHARES TO AN AFFILIATE OF WESTFIELD AMERICA
UNDER A SUBSCRIPTION AGREEMENT PREVIOUSLY ENTERED INTO
APPROVAL AND RATIFICATION OF INDEPENDENT AUDITORS
(PROPOSAL 6)
The board of directors of Westfield America has selected Ernst &
Young LLP as Westfield America's independent auditors for the fiscal year
ending December 31, 1999. Ernst & Young LLP have audited Westfield
America's financial statements since 1996. Representatives of Ernst & Young
LLP are expected to be present at the meeting and will be afforded the
opportunity to make a statement if they desire to do so, and such
representatives are expected to be available to respond to appropriate
questions.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR
THE APPROVAL AND RATIFICATION OF THE APPOINTMENT OF
ERNST & YOUNG LLP AS WESTFIELD AMERICA'S INDEPENDENT
AUDITORS FOR THE FISCAL YEAR ENDING DECEMBER 31, 1999.
OTHER BUSINESS
As of the date of this Proxy Statement, Westfield America knows of
no business that will be presented for consideration at the annual meeting
other than that which has been referred to above. As to other business, if
any, that may come before the annual meeting, it is intended that proxies
in the enclosed form will be voted in accordance with the judgment of the
proxy holder.
SHAREHOLDER PROPOSALS
Any proposal of a shareholder intended to be presented at Westfield
America's 2000 Annual Meeting of Shareholders must be received by the
Secretary of Westfield America by November 30, 1999 for inclusion in the
notice of meeting and proxy statement relating to Westfield America's 2000
Annual Meeting of Shareholders. The proposal must comply in all respects
with the rules and regulations of the Securities and Exchange Commission
and the By-Laws of Westfield America.
Pursuant to Westfield America's By-Laws, as amended, shareholder
proposals submitted to Westfield America for consideration at Westfield
America's 2000 Annual Meeting of Shareholders outside the processes of Rule
14a-8 (i.e., the procedures for placing a shareholder's proposal in
Westfield America's proxy materials) will be considered untimely if
received by Westfield America before December 31, 1999 or after January 30,
2000. Accordingly, the proxy with respect to Westfield America's 2000
Annual Meeting of Shareholders will confer discretionary authority to vote
on any shareholder proposals received by Westfield America after January
30, 2000.
ANNUAL REPORT
A copy of Westfield America's Annual Report for the fiscal year
ended December 31, 1998, including financial statements audited by Ernst &
Young LLP, independent accountants, and their report thereon dated January
25, 1998, accompanies this Proxy Statement. IN ADDITION, A COPY OF
WESTFIELD AMERICA'S ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER
31, 1998, WILL BE SENT TO ANY SHAREHOLDER, WITHOUT CHARGE, UPON WRITTEN
REQUEST TO IRV HEPNER, SECRETARY, WESTFIELD AMERICA, INC., 11601 WILSHIRE
BOULEVARD, LOS ANGELES, CALIFORNIA 90025.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Based on a review of reports filed by Westfield America's
directors, executive officers and beneficial holders of 10% or more of
Westfield America's outstanding shares, all filings required by Section
16(a) of the Securities and Exchange Act of 1934, as amended, were timely,
except that the following persons or entities filed a Form 4 approximately
two days late:(i) Westfield Holdings Limited, (ii) Westfield America
Management Limited, (iii) Westfield Corporation, Inc., and (iv) Westfield
American Investments Pty. Limited.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following document filed by Westfield America with the
Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934, as amended, is incorporated herein by reference:
Westfield America's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
By Order of the Board of Directors
Irv Hepner
Secretary
Dated: March __, 1999
Los Angeles, California
EXHIBIT A
PROPOSED AMENDMENT TO
SERIES C CERTIFICATE OF DESIGNATION
Section 11. Voting. (a) Except as expressly provided in this
Certificate of Designation, the holders of Series C Equity Shares shall
have no voting rights. If and whenever (i) for two consecutive quarterly
Dividend Periods the Corporation fails to pay dividends on the Series C
Equity Shares, the Series C-l Equity Shares (as defined in the
Corporation's Certificate of Designation authorizing the Series C-1 Equity
Shares) or the Series C-2 Equity Shares (as defined in the Corporation's
Certificate of Designation authorizing the Series C-2 Equity Shares) (which
shall, with respect to any such quarterly dividend, mean that any such
dividend has not been paid in full), then the number of directors then
constituting the Board of Directors shall be increased by two and the
holders of Series C Equity Shares, the Series C-1 Equity Shares and the
Series C-2 Equity Shares, voting together as a single class, shall be
entitled to elect the two additional directors to serve on the Board of
Directors or (ii) for two consecutive quarterly Dividend Periods the
Corporation fails to pay dividends on the Common Shares in an amount per
share at least equal to $0.32 (subject to adjustment consistent with any
adjustment of the Conversion Price pursuant to Section 6(a) of this
Article), then the number of directors then constituting the Board of
Directors shall be increased by one and the holders of Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares,
voting together as a single class, shall be entitled to elect the one
additional director to serve on the Board of Directors, in either case, at
any annual meeting of shareholders or special meeting held in place
thereof, or at a special meeting of the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares
called as hereinafter provided; provided, however, that except as set forth
below, the holders of the Series C Equity Shares, the Series C-1 Equity
Shares and the Series C-2 Equity Shares shall not have the right to elect
more than two directors. If other than through the operation of this
Section 11(a) or pursuant to the provisions of the Articles of
Incorporation relating to the Corporation's Series A and B Preferred Shares
(but only with respect to one director elected by the holders of the Series
A and B Preferred Shares), the Board of Directors shall be increased at any
time to more than ten directors, then, upon the occurrence or continuance
of any of the events described in this Section 11(a), the Board of
Directors shall be increased by such number of additional directors, and
the holders of the Series C Equity Shares, the Series C-l Equity Shares and
the Series C-2 Equity Shares, voting together as a single class, shall be
entitled to elect such number of additional directors, as shall be
necessary to maintain the ratio of directors elected by the holders of the
Series C Equity Shares, the Series C-1 Equity Shares and the Series C-2
Equity Shares to the directors otherwise elected, as nearly as possible
(rounding to the next larger whole number), equal to the ratio that would
have existed if the holders of the Series C Equity Shares, the Series C-l
Equity Shares and the Series C-2 Equity Shares were able to elect the full
number of directors then permitted to be elected by them under this Section
11(a) and the directors otherwise elected numbered only ten. Whenever, as
the case may be, (i) all dividends in arrears on the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares then
outstanding shall have been paid and the Corporation has paid dividends
thereon for two consecutive quarters and (ii) the Corporation has paid
dividends on the Common Shares in an amount per share at least equal to
$0.32 (subject to adjustment consistent with any adjustment of the
Conversion Price pursuant to Section 6(a) of this Article) for two
consecutive quarters, then the right of the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares to
elect such additional directors shall cease (but subject always to the same
provision for the vesting of such voting rights in the case of any similar
future arrearage in quarterly dividends), and the terms of office of all
persons elected as Directors by the holders of the Series C Equity Shares,
the Series C-1 Equity Shares and the Series C-2 Equity Shares shall
forthwith terminate and the number of the Board of Directors shall be
reduced accordingly. At any time after such voting power shall have been so
vested in the holders of Series C Equity Shares, the Series C-1 Equity
Shares and the Series C-2 Equity Shares, the Secretary of the Corporation
may, and upon the written request of any holders of 5% of the outstanding
Series C Equity Shares, the Series C-1 Equity Shares and the Series C-2
Equity Shares (addressed to the Secretary at the principal office of the
Corporation) shall call a special meeting of the holders of the Series C
Equity Shares, the Series C-1 Equity Shares and the Series C-2 Equity
Shares for the election of the Directors to be elected by them as herein
provided, such call to be made by notice similar to that provided in the
By-Laws of the Corporation for a special meeting of the shareholders or as
required by law. If any such special meeting required to be called as above
provided shall not be called by the Secretary within 20 days after receipt
of any such request, then any holder of Series C Equity Shares, Series C-1
Equity Shares or the Series C-2 Equity Shares may call such meeting, upon
the notice above provided, and for that purpose shall have access to the
records of the Corporation. The directors elected at any such special
meeting shall hold office until the next annual meeting of the shareholders
or special meeting held in lieu thereof if such office shall not have
previously terminated as above provided. If any vacancy shall occur among
the Directors elected by the holders of the Series C Equity Shares, the
Series C-1 Equity Shares and the Series C-2 Equity Shares a successor shall
be elected by the Board of Directors, upon the nomination of the
then-remaining Director elected by the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares or
the successor of such remaining Director (or, if there are then no such
Directors or Director elected by the holders of Series C Equity Shares, the
Series C- 1 Equity Shares and the Series C-2 Equity Shares, such Director
shall be elected by the holders of the Series C Equity Shares, the Series
C-1 Equity Shares and the Series C-2 Equity Shares as described above), to
serve until the next annual meeting of the shareholders or special meeting
held in place thereof if the term of such director shall not have
previously terminated as provided above.
EXHIBIT B
DESCRIPTION OF SERIES D PREFERRED SHARES
AND SERIES D-1 PREFERRED SHARES
The holders of Series D Preferred Shares and the holders of Series D-1
Preferred Shares each are entitled to receive, when and as declared by
Westfield America's board of directors, cumulative dividends per share
equal to the greater of:
o $15.30 per year; and
o an amount currently equal to 10.0 times the dividend declared on
Common Shares for such period, adjusted for events that affect the
conversion rate as described below, if such funds are legally
available.
In addition, if Westfield America does not have earnings at least 40%
greater than its consolidated fixed charges, Westfield America must pay a
dividend 20% greater than that Westfield America would normally be required
to pay. Holders of Series D Preferred Shares and holders of Series D-1
Preferred Shares are entitled to dividends before Westfield America can
distribute dividends to holders of Common Shares.
Upon Westfield America's liquidation, dissolution or winding up, the
holders of Series D Preferred Shares and the holders of Series D-1
Preferred Shares are entitled to be paid in full an amount equal to the sum
of $180.00 per share and all accrued and unpaid dividends through the date
of liquidation.
After August 12, 2008 Westfield America may, at the option of its
board of directors, with the approval by a majority of independent
directors, redeem, in whole, or in part, the outstanding Series D Preferred
Shares and outstanding Series D-1 Preferred Shares at a redemption price
equal to the sum of $180.00 per share and all accrued and unpaid dividends
through the call date specified in the notice to holders regarding the
redemption.
If there is a change in control of Westfield America, the holders of
the Series D Preferred Shares and Series D-1 Preferred Shares can require
Westfield America, if Westfield America has funds legally available to do
so, to redeem their Series D Preferred Shares or Series D-1 Preferred
Shares at a cost of $189.00, plus accrued and unpaid dividends, if any, to
the date that Westfield America repurchases the shares. For purposes of the
Series D Preferred Shares and Series D-1 Preferred Shares, a change in
control of Westfield America may occur in several circumstances, including
upon the first acquisition, directly or indirectly, by any individual or
entity or group (as such term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") of beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act, except that
such individual or entity shall be deemed to have beneficial ownership of
all shares that any such individual or entity has the right to acquire,
whether such right is exercisable immediately or only after passage of
time) of more than 25% of Westfield America's or Westfield America Trust's
outstanding equity securities with voting power, under ordinary
circumstances, to elect directors of Westfield America.
Also, Westfield America has agreed that so long as Westfield American
Investments Pty Limited or Westfield America Trust holds any of the Series
D Preferred Shares or Series D-1 Preferred Shares, if Westfield America
fails to continue to be taxed as a REIT, Westfield American Investments Pty
Limited or Westfield America Trust will have the right to require Westfield
America, if Westfield America has funds legally available to do so, to
repurchase any or all of the Series D Preferred Shares or Series D-1
Preferred Shares held by Westfield American Investments Pty Limited or
Westfield America Trust at a repurchase price of $207.00 per share, payable
in cash plus accrued and unpaid dividends whether or not declared, if any,
to the date of repurchase or the date payment is made available.
In addition, after August 12, 2008, the holders of the Series D
Preferred Shares and the holders of Series D-1 Preferred Shares have the
right to require Westfield America to redeem their Series D Preferred
Shares or Series D-1 Preferred Shares either for cash or for Common Shares,
at the option of Westfield America, as long as the current market price of
the Common Shares is less than $18.00, adjusted for events that affect the
conversion rate as described below.
The holders of Series D Preferred Shares and Series D-1 Preferred
Shares do not have any voting rights, other than as required by law,
except:
o a majority of the holders of the Series D Preferred Shares, voting
together as a class, and a majority of the holders of the Series D-1
Preferred Shares, voting together as a class, must approve any amendment,
alteration or repeal of the Articles of Incorporation, or the Series D
Certificate of Designation or Series D-1 Certificate of Designation, as
applicable, that materially and adversely affects their voting powers,
rights or preferences, with the exception that the holders of the Series D
Preferred Shares and Series D-1 Preferred Shares will not be entitled to
vote on such a matter if Westfield America redeems the Series D Preferred
Shares or Series D-1 Preferred Shares, as applicable, before any
amendment, alteration or repeal is to take effect; and
o a majority of the holders of the Series D Preferred Shares, voting
together as a class, and a majority of the holders of the Series D-1
Preferred shares, voting together as a single class, must approve any
merger or consolidation if Westfield America does not survive such merger
or consolidation and the holders of the Series D Preferred Shares and the
holders of Series D-1 Preferred Shares do not receive shares of the
surviving corporation with substantially similar rights, preferences and
powers in the surviving corporation as their Series D Preferred Shares and
Series D-1 Preferred Shares, as applicable, with the exception that the
holders of Series D Preferred Shares and the holders of Series D-1
Preferred Shares will not be entitled to vote on such a matter if
Westfield America redeems the Series D Preferred Shares and Series D-1
Preferred Shares, as applicable, prior to such a merger or consolidation.
The Series D Certificate of Designation and the Series D-1 Certificate
of Designation allow conversion by Westfield America Trust and Westfield
American Investments Pty., Limited at any time (subject to shareholder
approval as described below), of each Series D Preferred Share and each
Series D-1 Preferred Share into 10 Common Shares, as applicable, subject to
adjustment in certain events, generally including:
o the issuance of Common Shares as a dividend or a distribution on the
Common Shares;
o certain subdivisions and combinations of Westfield America's Common
Shares;
o the issuance of any shares of stock by reclassification of Westfield
America's Common Shares;
o the issuance to all holders of Westfield America's Common Shares of
certain rights, options or warrants entitling them to subscribe for or
purchase Common Shares at a price per share less than 95% (100% if a
stand-by underwriter is used and charges Westfield America a
commission) of the fair market value per Common Share on the record
date for determination of shareholders entitled to receive such
rights, options or warrants;
o the distribution to all holders of Westfield America's Common Shares
of any of Westfield America's securities (other than Common Shares) or
evidence of Westfield America's indebtedness or assets (excluding
cumulative cash dividends or distributions paid on the Common Shares
after December 31, 1997 which are not in excess of a certain amount);
and
o payment to holders of Common Shares in connection with a tender or
exchange offer by us or any of Westfield America's subsidiaries or
controlled affiliates (which does not include open market repurchases by
Westfield America) for all or any portion of the Common Shares for the
amount that the value of any consideration per Common Share has a fair
market value (as determined in good faith by Westfield America's board of
directors) that exceeds the current market price per Common Share on the
trading day next succeeding the last date on which tenders or exchanges
may be made in accordance with such tender or exchange offer.
If any transaction shall occur, generally including:
o any merger or consolidation;
o statutory share exchange;
o self tender offer for 40% or more of Westfield America's Common Shares;
o sale of all or substantially all of Westfield America's assets; or
o recapitalization of Westfield America's Common Shares (other than the
issuance of Common Shares as a dividend or a distribution on the
Common Shares, certain subdivisions and combinations of Westfield
America's Common Shares or the issuance of any shares of stock by
reclassification of Westfield America's Common Shares)) in which
substantially all of the Common Shares are converted into the right to
receive different securities, cash or other property,
then each Series D Preferred Share and each Series D-1 Preferred Share that
is not redeemed or converted into the right to receive different
securities, cash or other property prior to such transaction shall be
convertible into the kind and amount of the different securities, cash or
other property that would have been receivable upon the consummation of
such transaction by a holder of that number of Common Shares issuable upon
conversion of such Series D Preferred Share or Series D-1 Preferred Share
immediately prior to such transaction.
APPENDIX A
WESTFIELD AMERICA, INC.
Proxy For Annual Meeting Of Shareholders April 29, 1999
The undersigned hereby appoints Peter S. Lowy, Richard E. Green, Mark
A. Stefanek and Irv Hepner as Proxies, each with the power to appoint his
substitute, and hereby authorizes them, to represent and vote, as
designated on the reverse, all shares of common stock, par value $.01 per
share, of Westfield America held of record by the undersigned on March 10,
1999, at the Annual Meeting of Shareholders to be held on April 29, 1999 or
any adjournment thereof.
(To be Signed on Reverse Side.)
Please date, sign and mail your
proxy card back as soon as possible!
Annual meeting of shareholders
WESTFIELD AMERICA, INC.
April 29, 1999
Please Detach and Mail in the Envelope Provided
[X] Please mark your votes as in this example.
WITHHOLD AUTHORITY
to vote for all
FOR nominees listed at right Nominees:
1. ELECTION [ ] [ ] David H. Lowy
OF Herman Huizinga
DIRECTORS Bernard Marcus
FOR all nominees listed (except as marked to the contrary below)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
2. Proposal to amend Westfield America's Series C Certificate of
Designation so that the holders of the Series C, C-1 and C-2 Preferred
Shares will vote together as a single class.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
3. Proposal to approve the issuance of Westfield America's common stock
upon conversion of Westfield America's Series D Preferred Shares if
then held by a substantial security holder of Westfield America or
other restricted security holder under the New York Stock Exchange
Rules.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
4. Proposal to approve the issuance of Westfield America's common stock
upon conversion of Westfield America's Series D-1 Preferred Shares if
then held by a substantial security holder of Westfield America or
other restricted security holder under the New York Stock Exchange
Rules.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
5. Proposal to approve the issuance of Westfield America's common stock
to an affiliate of Westfield America under a subscription agreement
previously entered into.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
6. Proposal to ratify the selection of Ernst & Young LLP to serve as
Westfield America's independent accountants for fiscal 1999.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
7. In their discretion upon such other business as may properly come
before the Annual Meeting or any postponement or adjournment thereof.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. THIS PROXY
WILL BE VOTED AS DIRECTED. IN THE ABSENCE OF DIRECTION, THIS PROXY WILL BE
VOTED FOR THE THREE NOMINEES FOR ELECTION, AND FOR PROPOSALS 2, 3, 4, 5, 6
AND 7.
Sign, Date and Return the Proxy Card Promptly Using the Enclosed Envelope.
Signatures ________________________________________________________________
_____________________________________________________ Date _______________
NOTE: Please sign exactly as names appear on stock certificate (as indicated
hereon).
WESTFIELD AMERICA, INC.
Proxy For Annual Meeting Of Shareholders April 29, 1999
The undersigned hereby appoints Peter S. Lowy, Richard E. Green, Mark
A. Stefanek and Irv Hepner as Proxies, each with the power to appoint his
substitute, and hereby authorizes them, to represent and vote, as
designated on the reverse, all shares of Series C Cumulative Convertible
Redeemable Preferred Stock of Westfield America held of record by the
undersigned on March 10, 1999, at the Annual Meeting of Shareholders to be
held on April 29, 1999 or any adjournment thereof.
(To be Signed on Reverse Side.)
Please date, sign and mail your
proxy card back as soon as possible!
Annual meeting of shareholders
WESTFIELD AMERICA, INC.
April 29, 1999
Please Detach and Mail in the Envelope Provided
[X] Please mark your votes as in this example.
2. Proposal to amend Westfield America's Series C Certificate of
Designation so that the holders of Westfield America's Series C, C-1
and C-2 Preferred Shares will vote together as a single class.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
4. Proposal to approve the issuance of Westfield America's common stock
upon conversion of Westfield America's Series D-1 Preferred Shares if
then held by a substantial security holder of Westfield America or
other restricted security holder under the New York Stock Exchange
rules.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
5. Proposal to approve the issuance of Westfield America's common stock
to an affiliate of Westfield America under a subscription agreement
previously entered into.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
7. In their discretion upon such other business as may properly come
before the Annual Meeting or any postponement or adjournment thereof.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. THIS PROXY WILL
BE VOTED AS DIRECTED. IN THE ABSENCE OF DIRECTION, THIS PROXY WILL BE VOTED
FOR PROPOSALS 2, 4, 5 and 7.
Sign, Date and Return the Proxy Card Promptly Using the Enclosed Envelope.
Signatures __________________________________________________________________
_____________________________________________________ Date ________________
NOTE: Please sign exactly as names appear on stock certificate (as indicated
hereon).
WESTFIELD AMERICA, INC.
Proxy For Annual Meeting Of Shareholders April 29, 1999
The undersigned hereby appoints Peter S. Lowy, Richard E. Green, Mark
A. Stefanek and Irv Hepner as Proxies, each with the power to appoint his
substitute, and hereby authorizes them, to represent and vote, as
designated on the reverse, all shares of Series C-1 Cumulative Convertible
Redeemable Preferred Stock of Westfield America held of record by the
undersigned on March 10, 1999, at the Annual Meeting of Shareholders to be
held on April 29, 1999 or any adjournment thereof.
(To be Signed on Reverse Side.)
Please date, sign and mail your
proxy card back as soon as possible!
Annual meeting of shareholders
WESTFIELD AMERICA, INC.
April 29, 1999
Please Detach and Mail in the Envelope Provided
[X] Please mark your votes as in this example.
5. Proposal to approve the issuance of Westfield America's common stock
to an affiliate of Westfield America under a subscription agreement
previously entered into.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
7. In their discretion upon such other business as may properly come
before the Annual Meeting or any postponement or adjournment thereof.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. THIS PROXY WILL
BE VOTED AS DIRECTED. IN THE ABSENCE OF DIRECTION, THIS PROXY WILL BE VOTED
FOR PROPOSALS 5 AND 7.
Sign, Date and Return the Proxy Card Promptly Using the Enclosed Envelope.
Signatures __________________________________________________________________
_____________________________________________________ Date ________________
NOTE: Please sign exactly as names appear on stock certificate (as indicated
hereon).
WESTFIELD AMERICA, INC.
Proxy For Annual Meeting Of Shareholders April 29, 1999
The undersigned hereby appoints Peter S. Lowy, Richard E. Green, Mark
A. Stefanek and Irv Hepner as Proxies, each with the power to appoint his
substitute, and hereby authorizes them, to represent and vote, as
designated on the reverse, all shares of Series C-2 Cumulative Convertible
Redeemable Preferred Stock of Westfield America held of record by the
undersigned on March 10, 1999, at the Annual Meeting of Shareholders to be
held on April 29, 1999 or any adjournment thereof.
(To be Signed on Reverse Side.)
Please date, sign and mail your
proxy card back as soon as possible!
Annual meeting of shareholders
WESTFIELD AMERICA, INC.
April 29, 1999
Please Detach and Mail in the Envelope Provided
[X] Please mark your votes as in this example.
5. Proposal to approve the issuance of Westfield America common stock to
an affiliate of Westfield America under a subscription agreement
previously entered into.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
7. In their discretion upon such other business as may properly come
before the Annual Meeting or any postponement or adjournment thereof.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. THIS PROXY WILL
BE VOTED AS DIRECTED. IN THE ABSENCE OF DIRECTION, THIS PROXY WILL BE VOTED
FOR PROPOSALS 5 AND 7.
Sign, Date and Return the Proxy Card Promptly Using the Enclosed Envelope.
Signatures __________________________________________________________________
______________________________________________________ Date ________________
NOTE: Please sign exactly as names appear on stock certificate (as indicated
hereon).
