AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 22, 2000
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:
[COMPANY LOGO]
April 7, 2000
Dear Shareholder:
On behalf of the Board of Directors, I cordially invite you to
attend our Annual Meeting of Shareholders to be held at 11:30 a.m. on
Monday, May 8, 2000 at The Peninsula Hotel, 700 Fifth Avenue, 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 1999
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 AC
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 Monday, May 8, 2000, at The Peninsula Hotel, 700 Fifth Avenue,
New York, New York at 11:30 a.m., to consider and take action on the
following:
1. To elect three directors;
2. To approve the issuance of Westfield America's common stock
upon conversion of Westfield America's Series E Preferred
Shares if then held by a substantial security holder of
Westfield America or other restricted holder under the New
York Stock Exchange rules;
3. To approve the issuance of a warrant to purchase Westfield
America's common stock to a substantial security holder of
Westfield America or other restricted holder under the New
York Stock Exchange rules;
4. To ratify the appointment of Ernst & Young LLP as Westfield
America's independent auditors for the 2000 fiscal year; and
5. 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, Series C-1 Preferred Shares and Series C-2
Preferred Shares are entitled to vote on Proposals 2 and 3. Only holders of
record at the close of business on March 22, 2000, 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: April 7, 2000
WESTFIELD AMERICA, INC.
11601 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90025
-----------------------------
PROXY STATEMENT
-----------------------------
GENERAL INFORMATION
ANNUAL MEETING
The annual meeting will be on May 8, 2000 at 11:30 a.m. at The
Peninsula Hotel, 700 Fifth Avenue, New York, New York.
RECORD DATE
The record date is March 22, 2000. 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"), 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 Proposals 2 and 3.
At the close of business on March 22, 2000 Westfield America had:
o 73,346,541 Common Shares issued and outstanding, each
entitled to one vote;
o 416,667 Series C Preferred Shares issued and outstanding,
each entitled to ten votes with respect to Proposals 2 and 3
(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 Proposals 2 and 3 (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 Proposals 2 and 3 (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 April 7, 2000.
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 the issuance of Common Shares upon conversion of
Westfield America's Series E Cumulative Convertible
Redeemable Preferred Stock (the "Series E 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 a warrant to purchase Common Shares to a
substantial security holder of Westfield America or other
restricted holder under the New York Stock Exchange rules;
o FOR the appointment of Ernst & Young LLP as Westfield
America's independent auditors for the 2000 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 nine directors. The nine directors
are divided into three classes.
THE ELECTION
The three directors whose regular terms of office expire at the
2000 annual meeting have been nominated for reelection to Westfield
America's board of directors to hold office until 2003. 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. The
other directors are not up for election this year and are expected to
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.
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.
<TABLE>
<CAPTION>
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR
EACH OF THE NOMINEES LISTED BELOW
NOMINEES FOR ELECTION AS DIRECTORS TO HOLD OFFICE
UNTIL THE 2003 ANNUAL MEETING
NAME AGE PRINCIPAL OCCUPATION AND OTHER INFORMATION
- - ---- --- ------------------------------------------
<S> <C>
Frank P. Lowy, AC.................. 69 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 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............. 61 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. and
Oakwood Homes Corporation.
Larry A. Silverstein............... 68 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 a 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 a board member of the
Museum of Jewish Heritage.
The names of the remaining directors of Westfield America whose
terms of office will continue after the 2000 annual meeting and certain
information about them, are set forth below.
DIRECTORS WHOSE TERMS OF OFFICE WILL EXPIRE
AT THE 2002 ANNUAL MEETING
NAME AGE PRINCIPAL OCCUPATION AND OTHER INFORMATION
- - ---- --- ------------------------------------------
David H. Lowy...................... 45 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 Presidents
Council of the New Children's Hospital, Westmead
and a Founding Governor of 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.................... 66 Herman Huizinga was appointed a director of
Westfield America in 1997. Between 1986 and 1997,
he was a member of the Executive Board of ING
Group, a major international banking and insurance
group, headquartered in the Netherlands. He served
on many boards of subsidiaries of ING, including as
Executive Director of Mercantile Mutual (Group)
Australia from 1982 to 1986. He serves on the
boards of Eye Hospital Rotterdam (Chairman 1987-
1997) and Industrial Tunnel Methodology (ITM) in
Rotterdam. He has served on a variety of boards in
the Netherlands, including Club Rotterdam
(Chairman 1995-1997) , "Mandeville" (Erasmus
University Award Committee, Chairman 1996-
1997) and Rotterdam Philharmonic Orchestra.
Bernard Marcus..................... 70 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 boards of
directors of National Services Industries, Inc. and
DBT Online.
DIRECTORS WHOSE TERMS OF OFFICE
WILL EXPIRE AT THE 2001 ANNUAL MEETING
NAME AGE PRINCIPAL OCCUPATION AND OTHER INFORMATION
- - ---- --- ------------------------------------------
Roy L. Furman...................... 60 Roy L. Furman was appointed a director of Westfield
America in 1996. Since July 1999, Mr. Furman has
served as Vice Chairman of ING Barings, a securities
brokerage firm. Mr. Furman was Chairman and Chief
Executive Officer of Livent Inc. from April 1998
until June 1999. 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 Emeritus of The Film Society of Lincoln
Center, Vice President of the New York City Opera
and is a member of the board of the Broadway
Television Network. Mr. Furman is a graduate of
Brooklyn College and Harvard Law School.
Frederick G. Hilmer, AO............ 55 Frederick G. Hilmer was appointed a director of
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. He is Deputy Chairman of Westfield
Holdings Limited. Between 1989 and 1998, he was
Professor of Management at the Australian Graduate
School of Management in the University of New
South Wales. He has served as deputy chairman and
director of a number of major Australian companies.
Prior to 1989 he spent 19 years with McKinsey &
Company.
Peter S. Lowy...................... 41 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.
</TABLE>
BOARD MEETINGS AND COMMITTEES
Westfield America's board of directors met four times and took
action by unanimous written consent nine times in 1999. 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 Herman Huizinga,
Francis T. Vincent, Jr. and Roy L. Furman. The Audit Committee met three
times and took action by unanimous written consent once in 1999.
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 Frank P. Lowy,
Roy L. Furman and Larry A. Silverstein. The Nominating Committee took
action by unanimous written consent once in 1999. 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 law or by Westfield America's By-Laws. The current members of
the Executive Committee are Peter S. Lowy, David H. Lowy and Francis T.
Vincent, Jr. The Executive Committee took action by unanimous written
consent seven times in 1999.
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. From April 1998 until June 1999, Mr. Furman was Chairman and
Chief-Executive Officer of Livent Inc., a company that specializes in
theatrical productions. 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 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.
EXECUTIVE OFFICERS
Set forth below is the name and business experience of each of the
executive officers of Westfield America as of March 22, 2000, to the extent
not provided above.
<TABLE>
<CAPTION>
Name Age Position and Background
- - ---- --- -----------------------
<S> <C>
Richard E. Green................... 57 Richard E. Green was appointed Co-President of
Westfield America in May 1997. Mr. Green was
President of Westfield America from 1994 until May
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................. 52 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................... 50 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.
Mark A. Stefanek................... 45 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 holds a Bachelor of Business Administration-
Accounting from the University of Notre Dame, is a
certified public accountant and spent the first seven years
of his career at Arthur Andersen. From 1985 to 1991 he
was Chief Financial Officer of Western Development
Corporation and for the three previous years 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.................. 46 Dimitri Vazelakis became Senior Executive Vice
President of Westfield America in 1995. In 1997, Mr.
Vazelakis was appointed Executive 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......................... 49 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.
</TABLE>
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 yearly 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, 1999. 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 S&P 500 NAREIT EQUITY RETAIL INDEX
16-May-97(1) $100.00 $100.00 $100.00
31-Dec-97 117.18 116.81 114.78
31-Dec-98 128.69 149.91 109.10
31-Dec-99 102.67 181.22 96.26
(1) May 30, 1997 for the NAREIT Equity Retail Index
SECURITIES BENEFICIALLY OWNED BY
PRINCIPAL SHAREHOLDERS AND MANAGEMENT
The following table lists the beneficial ownership of Westfield
America's Common Shares as of March 22, 2000 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>
PERCENT OF
NUMBER OF OUTSTANDING
COMMON SHARES COMMON SHARES
BENEFICIALLY BENEFICIALLY
NAME AND ADDRESS OWNED OWNED
- - ---------------- ------- ------
<S> <C> <C>
Westfield America Trust............................... 56,371,118(1) 64.6%(1)
c/o Perpetual Trustee Company Limited
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............................ 73,218,970(2)(3) 81.3%(2)(3)
Cordera Holdings Pty. Limited; PM Capital Absolute
Performance Fund; 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......................................... 73,893,770(3) 82.1%(3)
Security Capital Preferred Growth Incorporated........ 6,944,450(4) 8.6%
11 South LaSalle Street, 2nd Floor
Chicago, Illinois 60603
Roy L. Furman......................................... 62,396 *
Frederick G. Hilmer................................... 18,396 *
Bernard Marcus........................................ 12,630 *
Larry A. Silverstein.................................. 14,396(5) *
Francis T. Vincent, Jr................................ 52,396 *
Richard E. Green...................................... 252,000 *
Herman Huizinga....................................... 4,636 *
Randall J. Smith...................................... 7,000 *
Mark A. Stefanek...................................... 29,295 *
Roger D. Burghdorf.................................... 200 *
Dimitri Vazelakis..................................... 2,500 *
Irv Hepner............................................ 3,900 *
All directors and executive officers as a group (16
persons).............................................. 74,353,515(3) 82.6%(3)
- - ------------------------
* Less than 1%.
</TABLE>
(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 Custodian of the assets of Westfield America Trust (the
"Custodian"), an Australian public property trust. As of April 3,
2000, Westfield America Trust will be a "single responsible entity"
trust. Westfield America Management Limited, a subsidiary of
Westfield Holdings, will be the Responsible Entity of Westfield
America Trust. As of April 3, 2000, Westfield America Management
will direct the vote, in its absolute discretion, of all Common
Shares held by the Custodian for the benefit of the Westfield
America Trust. Accordingly, Westfield America Management will have
the power to direct the vote, in its absolute discretion, of
42,479,910 Common Shares (50,815,558 Common Shares assuming
exercise of the outstanding warrants and 56,371,118 Common Shares
assuming conversion of 416,667 shares of Series D Cumulative
Convertible Redeemable Preferred Stock (the "Series D Preferred
Shares") and 138,889 shares of Series D-1 Cumulative Convertible
Redeemable Preferred Stock (the "Series D-1 Preferred Shares") held
by Westfield America Trust and conversion of 277,778 Series D
Preferred Shares held by Westfield American Investments, Pty.
Limited, a wholly-owned subsidiary of Westfield Holdings (each
Series D Preferred Share and Series D-1 Preferred Share is
currently convertible into ten Common Shares)). If Proposal 2 is
approved, as described below, Westfield America Trust will
beneficially own 61,148,898 Common Shares, or 66.5% of the
outstanding Common Shares, and Westfield America Management will
have the power, in its absolute discretion, to direct the vote of all
of such Common Shares. If Proposal 3 is approved, as described
below, Westfield America Trust will beneficially own 63,988,898
Common Shares, or 67.5% of the outstanding Common Shares, and
Westfield America Management will have the power, in its absolute
discretion, to direct the vote of all of such Common Shares.
Westfield America Management and the Custodian disclaim 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) 16,847,852 of the Common Shares are held by wholly-owned subsidiaries
of Westfield Holdings. This figure includes 277,778 Series D Preferred
Shares held by Westfield American Investments. The balance
represents Common Shares held in the name of the Custodian for the
benefit of Westfield America Trust. Solely for purposes of U.S.
securities laws, Westfield Holdings may be deemed to have
beneficial ownership of the shares owned by the Custodian because
its subsidiary, Westfield America Management, is the Responsible
Entity of Westfield America Trust. As described in footnote (1)
above, Westfield America Management has the power, in its absolute
discretion, to direct the vote of all Common Shares held by the
Custodian for the benefit of Westfield America Trust. Westfield
America Management has no pecuniary interest in such shares
although Westfield Holdings has a pecuniary interest in 22.2% of
the shares held by Westfield America Trust because it owns units of
Westfield America Trust. If Proposal 2 is approved, as described
below, Westfield Holdings will beneficially own 77,996,750 Common
Shares, or 82.3% of the outstanding Common Shares and Westfield
America Management will have the power, in its absolute discretion,
to direct the vote of 61,148,898 Common Shares held by the
Custodian for the benefit of Westfield America Trust, if the
outstanding warrants are exercised and the Series D, D-1 and E
Preferred Shares are converted to Common Shares. If Proposal 3 is
approved, as described below, Westfield Holdings will beneficially
own 80,836,750 Common Shares or 82.8% of the outstanding Common
Shares and Westfield America Management will have the power, in its
absolute discretion, to direct the vote of 63,988,898 Common Shares
held by the Custodian for the benefit of Westfield America Trust,
if the outstanding warrants and the 2000 Warrant are exercised and
the Series D, D-1 and E 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 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,
Frank, David, Steven and Peter Lowy may be deemed solely for
purposes of U.S. securities laws to beneficially own the 73,218,970
Common Shares indicated as owned and deemed beneficially owned by
Westfield Holdings as set forth in footnote (2) above. If Proposal
2 is approved, as described below, Frank, David, Steven and Peter
Lowy may be deemed solely for purposes of U.S. securities laws to
beneficially own 78,671,550 Common Shares and 83.0% of the
outstanding Common Shares. If Proposal 3 is approved, as described
below, Frank, David, Steven and Peter Lowy may be deemed solely for
purposes of United States securities laws to beneficially own
81,511,550 Common Shares or 83.5% of the outstanding Common Shares.
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 $152.8 million. The
"Advisory F.F.O. Amount" will be increased whenever Westfield America
issues additional equity 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" 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) 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).
"Funds From Operations" means net income (loss) (computed in accordance
with Generally Accepted Accounting Principles, 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" is 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 $9.8 million for the
fiscal year ended December 31, 1999.
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 CORPORATION AND THE MANAGEMENT AGREEMENTS
Services Provided
Westfield Corporation manages all of Westfield America's shopping
centers.
Management Fees
For each of the wholly-owned shopping centers, Westfield
Corporation 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 $819 per executed lease, and a tenant plan review fee of
$1,092 per executed lease. For the properties not wholly-owned by
Westfield America, the fees payable to Westfield Corporation 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, 1999 to Westfield Corporation under these agreements totaled $10.2
million. In addition to the management fees, Westfield Corporation was
reimbursed for recoverable operating costs, including mall related payroll
costs totaling $21.3 million for the year ended December 31, 1999.
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 Corporation'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 Corporation's performance is
unsatisfactory and materially detrimental to Westfield America or that the
compensation paid to Westfield Corporation is not fair. Westfield
Corporation, 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).
Westfield America has also agreed that so long as Westfield
Corporation is managing the centers under the management agreements,
Westfield Corporation 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 Corporation appointed as the manager
with respect to any future joint venture properties controlled by Westfield
America.
Westfield Corporation can terminate the management agreements if
Westfield Corporation 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
Corporation's ability to provide the required services during such period.
Officers
The principal executive officers of Westfield Corporation are
Richard E. Green and Peter S. Lowy, the Co-Presidents of Westfield America.
WESTFIELD CORPORATION AND THE DEVELOPMENT AGREEMENT
Services Provided
Westfield Corporation has entered into a master development
framework agreement with Westfield America under which Westfield America
granted Westfield Corporation 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 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 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 provides the necessary
development services pursuant to a separate development agreement to be
entered into by the parties. Westfield Corporation 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 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 may then either accept the
independent expert's proposal or agree to perform the work on a "cost plus"
basis.
Westfield America has no obligation to proceed with any development
project. The decision 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, 1999 to Westfield Corporation
under these agreements totaled $93.1 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 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 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 can terminate the master development
framework agreement if Westfield Corporation 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'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 and Westfield America.
Officers
The principal executive officers of Westfield Corporation 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 its subsidiaries 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.
THE GARDEN STATE PLAZA OPTION AND RELATED MATTERS
Garden State Plaza is a super-regional mall located in Paramus, New
Jersey. The center is currently owned by a partnership in which affiliates
of Westfield Holdings own a 50% interest (including the interest of the
managing general partner), with the remaining 50% owned by affiliates of
Rodamco North America N.V., a Netherlands corporation unaffiliated with
Westfield America. Garden State Plaza has a gross leaseable area of
approximately two million square feet, and is anchored by five department
stores: Macy's, Nordstrom, JC Penney, Neiman Marcus and Lord & Taylor. The
center is generally regarded as one of the most successful shopping centers
on the East Coast, with specialty store sales of approximately $500 per
square foot in 1999 (Westfield America's portfolio averaged $344 per square
foot in specialty store sales during the same period).
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 (the "Garden State Plaza Loan") to
the subsidiaries of Westfield Holdings that own the indirect 50% interest
in Garden State Plaza. The Garden State Plaza Loan is non-recourse, 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 that owns Garden State Plaza. Westfield America also receives
participating interest based on 80% of the borrowers' share of the adjusted
cash flow from Garden State Plaza (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 the property had a fixed interest
rate of 7.25% per annum), subject to an aggregate limit for fixed interest
and participating interest in an amount equal to 11% per annum. The Garden
State Plaza 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 (described below) and may not otherwise be prepaid for five years.
If an event of default occurs 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. Westfield America received
$15,950,000 in interest from the Garden State Plaza Loan for the year ended
December 31, 1999.
THE 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 (through two subsidiary corporations) of a 50% partnership
interest in Garden State Plaza.
The Garden State Plaza option was to be exercisable following the
completion of an independent valuation of the property to determine its
fair market value. If exercised, the purchase price under the Garden State
Plaza option was to be 50% of the 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 of
the partnership exceeded its current liabilities. If the net purchase price
exceeded $55 million, the exercise of the Garden State Plaza option
required the affirmative vote of a majority of the holders of Common Shares
voting at a meeting on that issue, other than Westfield Holdings and its
affiliates (including Westfield America Trust) and interests associated
with the Lowy family. The purchase price was to 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 option exercise date.
Westfield America's board of directors believes that the
acquisition of Westfield Holdings' interest in Garden State Plaza is in the
long-term best interests of Westfield America and should be effected.
However, the board concluded that exercise of the Garden State Plaza Option
under current circumstances would not be in the best interests of Westfield
America. Westfield Holdings and Westfield America have negotiated an
agreement in principle, subject to necessary approvals, as to an
alternative means (the "New Garden State Acquisition Plan"), described in
greater detail below, for the acquisition by Westfield America of the
Westfield Holdings interest in Garden State Plaza. Westfield America's
board of directors has unanimously approved the acquisition of Westfield
Holdings interest in Garden State Plaza under the terms of the New Garden
State Acquisition Plan.
NEW GARDEN STATE ACQUISITION PLAN
Under the New Garden State Acquisition Plan, Westfield America will
acquire Westfield Holdings' interest in Garden State Plaza through
Westfield America's operating partnership, in exchange for the issuance of
Series F Partnership Units. Following the acquisition, Garden State Plaza
will continue to be managed under the terms of a management agreement
between the Garden State Plaza partnership and an affiliate of Westfield
Holdings. The management agreement is on terms substantially similar to
those of Westfield America's existing management agreements with affiliates
of Westfield Holdings. Westfield America will also grant to a subsidiary of
Westfield Holdings a right (subject to limitations) to require Westfield
America to purchase the stock of Westland Realty, Inc., which is the owner
of all of the stock of two subsidiaries that currently are the holders of
the 50% interest in the partnership that owns Garden State Plaza. The
acquisition transaction and the put right are discussed in greater detail
below.
Based on an independent valuation, Westfield America and Westfield
Holdings have agreed that the net value of a 50% interest in Garden State
Plaza is $52,483,000, after taking into account the Garden State Plaza Loan
and the mortgage loan encumbering Garden State Plaza, with the mortgage
loan being "marked to market" by reference to interest rates prevailing on
February 29, 2000. No more than 55,000 Series F Preferred Shares may be
issued in respect of the put right unless approved by a majority of the
shareholders of Westfield America voting at a meeting (other than Westfield
Holdings and its affiliates and interests associated with the Lowy family).
Issuance of Series F Partnership Units by the Operating Partnership
Instead of issuing Common Shares, the New Garden State Acquisition
Plan permits Westfield America to acquire the interest in Garden State
Plaza through Westfield America's operating partnership (the "Operating
Partnership"), in exchange for the issuance of 52,483 Series F Partnership
Cumulative Preferred Units in the Operating Partnership (the "Series F
Partnership Units"). The Operating Partnership is the partnership through
which Westfield America owns substantially all of its assets. As of March
22, 2000, Westfield America had a 97.8% capital interest in the Operating
Partnership, with unaffiliated interests owning the remaining 2.2% capital
interest. Each Series F Partnership Unit will have a liquidation preference
of $1,000 and will be entitled to annual distributions equal to the greater
of $85.00 and 51.4933 (calculated using a Common Share value of $19.42, and
subject to adjustment for stock splits and other similar matters)
multiplied by the dividend paid in the same period on a Common Share. The
Series F Partnership Units will be entitled to the payment of quarterly
distributions before distributions are made to the holders of any other
interests in the Operating Partnership, including Westfield America, and on
a pari passu basis with other preferred interests in the Operating
Partnership that are not explicitly made junior in right of distribution to
the Series F Partnership Units.
The holders of the Series F Partnership Units will have the right
at any time after the first anniversary of the issuance of the Series F
Partnership Units to cause the Operating Partnership to redeem each Series
F Partnership Unit for $1,000 in cash, plus any accrued and unpaid
distributions, subject to Westfield America's right to acquire the redeemed
Series F Partnership Units for an equivalent number of Series F Preferred
Shares of Westfield America (the terms of which are similar to the Series F
Partnership Units and are described below). In addition, the Series F
Partnership Units will be redeeemable at the option of the Operating
Partnership at any time after the twentieth anniversary of the issuance of
the Series F Partnership Units for $1,000 in cash, plus any accrued and
unpaid distributions. In the event of a liquidation, dissolution or winding
up of the Operating Partnership, each Series F Partnership Unit will carry
a right to participate in the capital of the Operating Partnership in the
amount of $1,000, plus all accrued and unpaid distributions. Any rights of
the holders of Series F Partnership Units upon liquidation, dissolution or
winding up of the Operating Partnership will rank senior to the holders of
any common partnership units, common investor unit rights or any other
units in the Operating Partnership that by their terms rank junior to the
Series F Partnership Units. Finally, the Series F Partnership Units will
have only those voting and consent rights granted to other holders of units
in the Operating Partnership, such as voting rights in respect of proposals
for any material adverse amendment of the rights attached to the Series F
Partnership Units. The Series F Partnership Units will not have any rights
to vote at any of Westfield America's meetings.
Possible Issuance of Series F Preferred Shares
In order to provide for the possible redemption of the Series F
Partnership Units, Westfield America's board of directors has authorized
for possible future issuance Series F Cumulative Redeemable Preferred Stock
(the "Series F Preferred Shares"). Each share of Series F Preferred Shares
will have a liquidation preference of $1,000 and will be entitled to annual
dividends equal to the greater of $85.00 and 51.4933 (subject to adjustment
for stock splits and other similar matters) multiplied by the dividend paid
in the same period on a Common Share. The Series F Preferred Shares will be
entitled to the payment of quarterly dividends on a pari passu basis with
all other series of preferred stock of Westfield America that are not
explicitly made junior in right of payment and before dividends are paid to
the holders of Common Shares. The Series F Preferred Shares will have the
right to vote with the Common Shares, with each share of the Series F
Preferred Shares being entitled to 51.4933 votes (subject to adjustment).
The Series F Preferred Shares may be redeemed by Westfield America at any
time after the twentieth anniversary of the issuance of the Series F
Preferred Shares being redeemed, at a redemption price of $1,000 per share
together with all accrued and unpaid dividends through the date of
redemption. In the event of a liquidation, dissolution or winding up of
Westfield America, each Series F Preferred Share will carry a right to
participate in the capital of Westfield America in the amount of $1,000,
plus all accrued and unpaid distributions. Any rights of the holders of
Series F Preferred Shares upon liquidation, dissolution or winding up of
Westfield America will rank senior to the holders of Common Shares, but
behind all creditors of Westfield America and pari passu with the holders
of other equity securities in Westfield America (unless the terms of those
equity securities provide otherwise).
The Westfield Capital Put Right
Westfield America has agreed to issue to Westfield Capital
Corporation Finance Pty. Limited, a subsidiary of Westfield Holdings, a put
agreement under which Westfield Capital will have the right to require
Westfield America to purchase the stock of Westland Realty Inc., which is
the owner of all of the stock of two subsidiaries that currently are the
holders of the 50% interest in the partnership that owns Garden State
Plaza. The purchase price to be received by Westfield Capital upon the
exercise of the put right is 98% of the fair market value of Westland
Realty, with the purchase price to be paid in Series F Preferred Shares. At
the time the right is exercised, both the value of Westland Realty and the
value of the Series F Preferred Shares will be established by independent
valuation. The put right will be exercisable at any time after the second
anniversary and up to the tenth anniversary of its issuance, and cannot be
exercised if there are any assets of Westland Realty that, in the opinion
of Westfield America, could cause Westland Realty to fail to qualify as a
real estate investment trust. In connection with certain assets of Westland
Realty that Westfield America may elect not to retain, Westfield America
will be entitled to a reduction in the consideration to be paid equal to
the anticipated costs of disposition of the assets (including tax
liabilities). If the put right is exercised, to the extent that the assets
of Westland Realty include Series F Partnership Units, the effect to
Westfield America will be the exchange of 98 Series F Preferred Shares for
each 100 Series F Partnership Units then held by Westland Realty. No more than
55,000 Series F Preferred Shares may be issued in respect of the put right
unless approved by a majority of the shareholders of Westfield America voting
at a meeting (other than Westfield Holdings and its affiliates and interests
associated with the Lowy family).
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 the Westfield America Common Shares held by them 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 Common Shares acquired
after Westfield America's initial public offering) and declared and kept
continuously effective. 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.
As of April 3, 2000, pursuant to the Managed Investments Act
enacted by the Australian legislature, Westfield America Trust will
eliminate its bifurcated trustee/manager structure and appoint a single
entity responsible for all aspects of Westfield America Trust. Westfield
America Management will be the Responsible Entity of Westfield America
Trust. Perpetual Trustee Company Limited, the former trustee of Westfield
America Trust, will continue to act as custodian of the assets of Westfield
America Trust. Although under the Trust Deed, Westfield America Management
will have the power to cause Westfield America Trust to make other
investments, Westfield America Trust has informed Westfield America that it
presently intends only to invest in Westfield America. As of April 3, 2000,
Westfield America Management will direct the vote of the Common Shares held
by Westfield America Trust in its absolute discretion.
In May 1998, Westfield America entered into a stock subscription
agreement with Westfield America Trust. Westfield America has the right to
sell, and Westfield America Trust has the obligation to purchase, $A465
million in aggregate ($US 303,877,000 as of December 31, 1999) of Westfield
America's Common Shares in equal amounts in June 2001, 2002 and 2003.
On August 16, 1999, Westfield America issued in a private placement
477,778 Series E Preferred Shares to Westfield America Trust in exchange
for gross proceeds of $86,000,040. The Series E Certificate of Designation
allows conversion by Westfield America Trust at any time (subject to the
shareholder approval that is being requested pursuant to this Proxy
Statement), of each Series E Preferred Share into 10 Common Shares, subject
to adjustment as described in Exhibit A to this Proxy Statement.
At March 22, 2000, Westfield Holdings owns an approximately 22.2%
equity interest in Westfield America Trust on a fully diluted basis.
THE 2000 WARRANT
Westfield America has agreed in principle, subject to the approval
of the holders of Common Shares, to issue a warrant (the "2000 Warrant") to
Westfield America Trust for the purchase of Common Shares. The
consideration to be paid for the 2000 Warrant is $1.86 million, which
amount was calculated by an independent valuation firm. Under the terms of
the 2000 Warrant, the holder will be entitled to purchase 2,840,000 Common
Shares, adjusted for stock splits and other similar matters, at a price of
$19.42 per Common Share. The 2000 Warrant may be exercised at any time from
the date of issuance of the 2000 Warrant until the twenty-fifth anniversary
of the date of issuance.
At a meeting of the members of Westfield America Trust to be
held on May 4, 2000, approval will be sought for the purchase by Westfield
America Trust of the 2000 Warrant. If that approval is not obtained, the 2000
Warrant will not be issued.
APPROVAL OF THE ISSUANCE OF COMMON SHARES UPON
CONVERSION OF WESTFIELD AMERICA'S SERIES E 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 2)
On August 16, 1999, Westfield America issued, pursuant to a private
placement, 477,778 Series E 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 in
exchange for gross proceeds of $86,000,040. The proceeds of such sales were
used in part to fund the acquisition of Palm Desert Town Center in Palm
Desert, California from The TrizecHahn Corporation.
A description of the Series E Preferred Shares is attached to this
Proxy Statement as Exhibit A.
Pursuant to Rule 312 of the New York Stock Exchange, shareholder
approval is required before the Series E 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 requires shareholder
approval prior to the Series E Preferred Shares being convertible into
Common Shares when Series E 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 2 is approved by the shareholders, the convertibility
of the Series E Preferred Shares would no longer be subject to shareholder
approval under Rule 312 of the New York Stock Exchange rules.
Westfield America's Certificate of Designation setting forth
"Resolution of the Board of Directors of Westfield America, Inc.
Designating Series E Preferred Shares and Fixing Preferences and Rights
Thereof" (the "Series E 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 16, 2001, the Series E Preferred Shares are
redeemable, at the option of the holder, for cash at a price equal to 10
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 E Certificate of Designation provides that the Series E Preferred
Shares will be convertible into Common Shares upon the transfer of the
Series E 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.
The affirmative vote of a majority of the following is required for
approval of this Proposal:
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 2;
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 2; 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 2,
Abstentions and broker non-votes will effectively count as a vote
AGAINST 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 Series C
Preferred Share, Series C-1 Preferred Share and Series C-2 Preferred Share
is convertible into).
The purpose of Proposal 2 is to facilitate the listing of the
Common Shares, into which the Series E Preferred Shares are convertible, on
the New York Stock Exchange and to prevent the redemption of the Series E
Preferred Shares, at the option of the holder, from occurring on or after
August 16, 2001 (as described above). If Proposal 2 is approved, the Series
E 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 22, 2000, there were 477,778 Series E Preferred Shares
outstanding.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
FOR THE ISSUANCE OF COMMON SHARES UPON
THE CONVERSION OF SERIES E 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 A WARRANT TO PURCHASE COMMON SHARES TO
AN AFFILIATE OF WESTFIELD AMERICA
(PROPOSAL 3)
Westfield America would like to issue the 2000 Warrant to Westfield
America Trust. The 2000 Warrant would give Westfield America Trust the
right to purchase 2,840,000 Common Shares, as may be adjusted for stock
splits, capital reconstructions or similar matters, at an exercise price of
$19.42 per Common Share. Westfield America proposes, subject to shareholder
approval (as described below), to sell the 2000 Warrant to Westfield
America Trust for a purchase price of $1,860,000. The proceeds of the sale
of the 2000 Warrant and any resultant exercises would be used for general
business purposes. The 2000 Warrant would be exercisable from and after the
date of issuance up until the twenty-fifth anniversary of the date of
issuance.
Pursuant to Rule 312 of the New York Stock Exchange, shareholder
approval is required before the 2000 Warrant is issued to Westfield America
Trust because Westfield America Trust could be considered a "substantial
security holder" of Westfield America. Rule 312 of the New York Stock
Exchange requires shareholder approval prior to the issuance of the 2000
Warrant to 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 purchase of
Common Shares upon exercise of the 2000 Warrant would not be subject to
shareholder approval.
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 3;
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 3; 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 3,
is required for approval of this Proposal. Abstentions and broker
non-votes will effectively count as a vote AGAINST 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 3 is to facilitate the sale of the 2000
Warrant to purchase 2,840,000 Common Shares, as may be adjusted for stock
splits, capital reconstructions or similar matters, the proceeds from the
sale of the 2000 Warrant and any exercise thereof may be used by Westfield
America for general business purposes. The effect of shareholder approval
of Proposal 3 would be that Westfield America would have the ability to
raise up to $55,152,800 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.
As of March 22, 2000, Westfield America Trust has two currently
outstanding warrants to purchase Common Shares. One warrant entitles
Westfield America Trust to purchase up to 6,246,096 Common Shares from time
to time prior to July 1, 2016 for $16.01 per share in cash, as may be
adjusted for stock splits, capital reconstructions or similar matters. The
other warrant entitles Westfield America Trust to purchase up to 2,089,552
Common Shares from time to time prior to May 21, 2017 for $15.00 per share
in cash, as may be adjusted for stock splits, capital reconstructions or
similar matters.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR
THE ISSUANCE OF THE 2000 WARRANT TO PURCHASE
COMMON SHARES TO AN AFFILIATE OF WESTFIELD AMERICA
APPROVAL AND RATIFICATION OF INDEPENDENT AUDITORS
(PROPOSAL 4)
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, 2000. 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, 2000.
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 2001 Annual Meeting of Shareholders must be received by the
Secretary of Westfield America by December 9, 2000 for inclusion in the
notice of meeting and proxy statement relating to Westfield America's 2001
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 2001 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 January 9, 2001 or after February 8,
2001. Accordingly, the proxy with respect to Westfield America's 2001
Annual Meeting of Shareholders will confer discretionary authority to vote
on any shareholder proposals received by Westfield America after January 9,
2001.
ANNUAL REPORT
A copy of Westfield America's Annual Report for the fiscal year
ended December 31, 1999, including financial statements audited by Ernst &
Young LLP independent accountants, and their report thereon dated January
26, 2000, accompanies this Proxy Statement. IN ADDITION, A COPY OF
WESTFIELD AMERICA'S ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER
31, 1999, 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: (i) Westfield America Trust,
Westfield Holdings, Frank P. Lowy, David H. Lowy, Peter S. Lowy, Steven M.
Lowy and Cordera Holdings Pty. Limited failed to report on a timely basis
two purchases by Westfield America Trust of warrants to buy Common Shares,
(ii) Westfield Holdings did not timely join in the filing on Form 3 by
Westfield America Trust or in the joint filing on Form 3 by Frank P. Lowy,
David H. Lowy, Peter S. Lowy, Steven M. Lowy and Cordera Holdings Pty.
Limited with respect to Westfield America Trust's initial filing on Form 3,
(iii) Westfield America Trust, Westfield Holdings, Frank P. Lowy, David H.
Lowy, Peter S. Lowy, Steven M. Lowy and Cordera Holdings Pty. Limited filed
one late report on Form 4 with respect to 8 purchases by Westfield America
Trust of Common Shares, one purchase by Westfield America Trust of Series D
Preferred Shares, one purchase by Westfield America Trust of Series D-1
Preferred Shares and one purchase by Westfield America Trust of Series E
Preferred Shares, (iv) Westfield America Trust, Westfield Holdings, Frank
P. Lowy, David H. Lowy, Peter S. Lowy, Steven M. Lowy and Cordera Holdings
Pty. Limited filed one late report on Form 4 with respect to 13 purchases
by Westfield America Trust of Common Shares (v) Westfield Holdings did not
timely join in the filing by Westfield American Investments with respect to
6 reports on Form 4 reporting 39 purchases by Westfield American
Investments of Common Shares, (vi) Frank P. Lowy, David H. Lowy, Peter S.
Lowy, Steven M. Lowy and Cordera Holdings Pty. Limited did not timely join
in the filing by Westfield American Investments with respect to 9 reports
on Form 4 reporting 57 purchases by Westfield American Investments of
Common Shares, (vii) Westfield American Investments, Westfield Holdings,
Frank P. Lowy, David H. Lowy, Peter S. Lowy, Steven M. Lowy and Cordera
Holdings Pty. Limited filed one late report with respect to one purchase by
Westfield American Investments of Series D Preferred Shares, (viii) Frank
P. Lowy, David H. Lowy, Peter S. Lowy, Steven M. Lowy and Cordera Holdings
Pty. Limited filed one late report on Form 4 with respect to 8 purchases by
the PM Capital Absolute Performance Fund of Common Shares, (ix) Frank P.
Lowy, David H. Lowy, Peter S. Lowy, Steven M. Lowy and Cordera Holdings
Pty. Limited filed one late report on Form 4 with respect to 3 purchases by
the PM Capital Absolute Performance Fund Limited of Common Shares and (x)
Irv Hepner failed to report on a timely basis on Form 3 one purchase by him
of Common Shares.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Westfield America's General Form of Annual Report on Form 10-K (the
"Form 10-K") for the fiscal year ended December 31, 1999 was filed with the
Securities and Exchange Commission of March , 2000. The following portions
of the Form 10-K are incorporated in this Proxy Statement by reference:
o Report of Independent Auditors
o Consolidated Balance Sheets
o Consolidated Statements of Income
o Consolidated Statements of Changes in Shareholder's Equity
o Consolidated Statements of Cash Flows
o Notes to Consolidated Financial Statements
o Management's Discussion and Analysis of Financial
Condition and Results of Operations
o Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure
o Quantitative and Qualitative Disclosure about Market Risk
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This Proxy Statement includes statements (other than the
consolidated financial statements incorporated herein by reference and
other statements of historical fact) that are subject to risks and
uncertainties. Forward-looking statements include the information set forth
and in the Annual Report in "Management's Discussion and Analysis of
Financial Condition and Results of Operation" and "Quantitative and
Qualitative Disclosure about Market Risk," which are incorporated herein by
reference, and statements preceded by, followed by or that include the
words "believes," "expects," "may," "will," "anticipates," "intends,"
"plans," "estimates," "proposes," "scheduled," or other similar
expressions.
Forward-looking statements are made based on management's current
expectations and belief concerning future developments and their potential
effects on Westfield America. There can be no assurance that future
developments will be in accordance with management's expectations or that
the effect of future developments on Westfield America will be those
anticipated by management. Many of the factors that will determine these
results are beyond Westfield America's ability to control or predict.
While Westfield America periodically reassesses material trends and
uncertainties affecting the operations and financial condition in
connection with its preparation of Management's Discussion and Analysis of
Results of Operations and Financial Condition contained in its quarterly
and annual reports, Westfield America does not intend to review or revise
any particular forward-looking statement referenced in this Proxy Statement
in light of future events, even if new information, future events or other
circumstances have made them incorrect or misleading.
The information referred to above should be considered by investors
when reviewing any forward-looking statements contained in this Proxy
Statement, in any materials incorporated herein by reference, in any of
Westfield America's public filings or press releases or in any oral
statements made by Westfield America or any of its officers or any other
persons acting on its behalf. For those statements, Westfield America
intends to avail itself of the protection of the safe harbor from liability
with respect to forward-looking statements contained in the Private
Securities Litigation Reform Act of 1995.
By Order of the Board of Directors
Irv Hepner
Secretary
Dated: April 7, 2000
Los Angeles, California
EXHIBIT A
DESCRIPTION OF SERIES E PREFERRED SHARES
The holders of Series E Preferred Shares 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 40%
greater than its consolidated fixed charges (as defined the Series E
Certificate of Designation), Westfield America must pay a dividend 20%
greater than that Westfield America would normally be required to pay.
Holders of Series E 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 E 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.
From August 16, 2009 on, Westfield America may, at its option,
redeem, in whole, or in part, the outstanding Series E 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 E Preferred Shares can require Westfield America, if
Westfield America has funds legally available to do so, to redeem their
Series E 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 E 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
America Trust holds any of the Series E Preferred Shares, if Westfield
America fails to continue to be taxed as a REIT, 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 E
Preferred Shares held by 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 16, 2009, the holders of the Series E
Preferred Shares have the right to require Westfield America to redeem
their Series E 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 E Preferred Shares do not have any voting
rights, other than as required by law, except:
o a majority of the holders of the Series E Preferred Shares,
voting together as a class, must approve any amendment,
alteration or repeal of Westfield America's Articles of
Incorporation, or the Series E Certificate of Designation,
that materially and adversely affects their voting powers,
rights or preferences, with the exception that the holders of
the Series E Preferred Shares will not be entitled to vote on
such a matter if Westfield America redeems the Series E
Preferred Shares before any amendment, alteration or repeal is
to take effect; and
o a majority of the holders of the Series E Preferred Shares,
voting together as a class, must approve any merger or
consolidation if Westfield America does not survive such
merger or consolidation and the holders of the Series E
Preferred Shares do not receive shares of the surviving
corporation with substantially similar rights, preferences and
powers in the surviving corporation as their Series E
Preferred Shares, with the exception that the holders of
Series E Preferred Shares will not be entitled to vote on such
a matter if Westfield America redeems the Series E Preferred
Shares prior to such a merger or consolidation.
The Series E Certificate of Designation allows conversion by
Westfield America Trust at any time (subject to shareholder approval as
described below), of each Series E 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 some 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 some 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 specified amount); and
o payment to holders of Common Shares in connection with a
tender or exchange offer by Westfield America 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, which
payment has a fair market value per Common Share (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, some 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 E 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 E Preferred
Share immediately prior to such transaction.
APPENDIX A
WESTFIELD AMERICA, INC.
Proxy For Annual Meeting Of Shareholders May 8, 2000
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 22,
2000, at the Annual Meeting of Shareholders to be held on May 8, 2000 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.
May 8, 2000
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 [ ] [ ] Frank P. Lowy AC
OF Francis T. Vincent, Jr.
DIRECTORS Larry A. Silverstein
FOR all nominees listed (except as marked to the contrary below)
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2. Proposal to approve the issuance of Westfield America's common
stock upon conversion of Westfield America's Series E 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
3. Proposal to approve the issuance of a warrant to purchase Westfield
America's common stock to 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 ratify the selection of Ernst & Young LLP to serve as
Westfield America's independent accountants for fiscal 2000.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
The undersigned hereby authorizes the proxies, in their discretion,
to vote on any 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 and 4.
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 May 8, 2000
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 22, 2000, at the Annual Meeting of Shareholders to be
held on May 8, 2000 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.
May 8, 2000
Please Detach and Mail in the Envelope Provided
[X] Please mark your votes as in this example.
2. Proposal to approve the issuance of Westfield America's common
stock upon conversion of Westfield America's Series E 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
3. Proposal to approve the issuance of a warrant to purchase Westfield
America's common stock to a substantial security holder of
Westfield America or other restricted security holder under the New
York Stock Exchange Rules.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
The undersigned hereby authorizes the proxies, in their discretion,
to vote on any 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 and 3.
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 May 8, 2000
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 22, 2000, at the Annual Meeting of Shareholders to be
held on May 8, 2000 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.
May 8, 2000
Please Detach and Mail in the Envelope Provided
[X] Please mark your votes as in this example.
2. Proposal to approve the issuance of Westfield America's common
stock upon conversion of Westfield America's Series E 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
3. Proposal to approve the issuance of a warrant to purchase Westfield
America's common stock to a substantial security holder of
Westfield America or other restricted security holder under the New
York Stock Exchange Rules.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
The undersigned hereby authorizes the proxies, in their discretion,
to vote on any 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 and 3.
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 May 8, 2000
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 22, 2000, at the Annual Meeting of Shareholders to be
held on May 8, 2000 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.
May 8, 2000
Please Detach and Mail in the Envelope Provided
[X] Please mark your votes as in this example.
2. Proposal to approve the issuance of Westfield America's common
stock upon conversion of Westfield America's Series E 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
3. Proposal to approve the issuance of a warrant to purchase Westfield
America's common stock to a substantial security holder of
Westfield America or other restricted security holder under the New
York Stock Exchange Rules.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
The undersigned hereby authorizes the proxies, in their discretion,
to vote on any 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 and 3.
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).
