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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): Commission File Number:
March 20, 1997 1-12994
THE MILLS CORPORATION
Exact name of registrant as specified in its charter)
Delaware 52-1802283
(State or other jurisdiction (IRS Employer
of incorporation) Identification Number)
1300 Wilson Boulevard
Suite 400
Arlington, Virginia 22209
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(703) 526-5000
(Former name or former address, if changed since last report)
NOT APPLICABLE
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THE MILLS CORPORATION
ITEM 5--OTHER EVENTS
Attached as Exhibits to this form are the documents listed below:
EXHIBIT DOCUMENT
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1.1 Terms Agreement among the Company and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Dean Witter Reynolds
Inc., Legg Mason Wood Walker, Incorporated and Salomon Brothers Inc
5.1 Opinion of Hogan & Hartson L.L.P. relating to the legality of the
shares of Common Stock
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE MILLS CORPORATION
Date: March 24, 1997 By: /s/ Thomas E. Frost
------------------------
Thomas E. Frost
Senior Vice President
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EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
-------- ----------- ----
1.1 Terms Agreement among the Company and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Dean
Witter Reynolds Inc., Legg Mason Wood Walker, Incorporated
and Salomon Brothers Inc
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality
of the shares of Common Stock
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THE MILLS CORPORATION
(a Delaware corporation)
COMMON STOCK
TERMS AGREEMENT
March 20, 1997
To: The Mills Corporation
1300 Wilson Blvd.,
Suite 400
Arlington, Virginia 22209
Ladies and Gentlemen:
We understand that The Mills Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell 150,000 shares of its common stock,
par value $0.01 per share (the "Common Stock") (such securities also being
hereinafter referred to as the "Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters
named below (the "Underwriters") offer to purchase, severally and not
jointly, the respective number of Securities set forth below opposite their
names at the purchase price set forth below.
NUMBER OF
UNDERWRITER SECURITIES
- ----------- ----------
Merrill Lynch, Pierce, Fenner & Smith Incorporated.................. 22,125
Dean Witter Reynolds Inc............................................ 22,125
Legg Mason Wood Walker Incorporated................................. 22,125
Salomon Brothers Inc................................................ 22,125
Alex. Brown & Sons Incorporated..................................... 3,300
Credit Suisse First Boston Corporation.............................. 3,300
Donaldson, Lufkin & Jenrette Securities Corporation................. 3,300
A.G. Edwards & Sons, Inc............................................ 3,300
PaineWebber Incorporated............................................ 3,300
Prudential Securities Incorporated.................................. 3,300
Smith Barney Inc.................................................... 3,300
Wasserstein Perella Securities, Inc................................. 3,300
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Robert W. Baird & Co. Incorporated.................................. 1,660
William Blair & Company, L.L.C...................................... 1,660
Cromwell, Weedon & Co............................................... 1,660
Dain Bosworth Incorporated.......................................... 1,660
EVEREN Securities, Inc.............................................. 1,660
Fahnestock & Co. Inc................................................ 1,660
Friedman, Billings, Ramsey & Co., Inc............................... 1,660
Gruntal & Co., Incorporated......................................... 1,660
Janney Montgomery Scott Inc......................................... 1,660
Edward D. Jones & Co., L.P.......................................... 1,660
McDonald & Company Securities, Inc.................................. 1,660
Mesirow Financial, Inc.............................................. 1,660
Piper Jaffrey Inc................................................... 1,660
Rauscher Pierce Refsnes, Inc........................................ 1,660
Raymond James & Associates, Inc..................................... 1,660
Roney & Co., LLC.................................................... 1,660
Sands Brothers & Co., Ltd........................................... 1,660
The Seidler Companies Incorporated.................................. 1,660
Sutro & Co. Incorporated............................................ 1,660
Utendahl Capital Partners, L.P...................................... 1,660
Wheat, First Securities, Inc........................................ 1,660
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Total............................................................... 150,000
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The Securities shall have the following terms:
Title: Common Stock
Number of shares: 150,000
Purchase price per share: $24.75
Listing requirements: NYSE
Black-out provisions: N/A
Lock-up provisions During the period of eighty-two (82) days
from the Closing Time, the Company will not,
without the prior written consent of the
Representatives, directly or indirectly,
offer to sell, sell, contract to sell, grant
any option for the sale of, or otherwise
dispose of, any shares of Common Stock or
Units or any security convertible into or
exchangeable into or exercisable for Common
Stock or Units, except for (i) the issuance
of shares of Common Stock upon the exercise
of options or grant of restricted shares of
Common Stock under the Mills Corporation's
1994 Executive Incentive Plan, as amended and
(ii) the exchange of Units for Common Stock.
Other terms and conditions: N/A
Closing date and location: March 21, 1997 at the offices of Hogan &
Hartson, L.L.P., 555 13th Street, N.W.
Washington, D.C. 20004.
All of the provisions contained in the document attached as Annex I hereto
entitled "THE MILLS CORPORATION--Common Stock, Preferred Stock and Warrants to
Purchase Common Stock--Underwriting Agreement" are hereby incorporated by
reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
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Please accept this offer no later than 5:00 P.M. (New York City time) on
March 20, 1997 by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
VERY TRULY YOURS,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DEAN WITTER REYNOLDS INC.
LEGG MASON WOOD WALKER
INCORPORATED
SALOMON BROTHERS INC
BY: MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED, for itself on
behalf of the other Representatives
By: /s/ Daniel A. Rubenstein
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Name: Daniel A. Rubenstein
Title: Authorized Signatory
Acting on behalf of themselves and
the other named Underwriters.
Accepted:
THE MILLS CORPORATION
By: /s/ Peter B. McMillian
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Name: Peter B. McMillian
Title: President and Chief
Operating Officer
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EXHIBIT 5.1
March 21, 1997
The Board of Directors
The Mills Corporation
1300 Wilson Boulevard
Suite 400
Arlington, Virginia 22209
Ladies and Gentlemen:
We are acting as counsel to The Mills Corporation, a Delaware corporation
(the "Company"), in connection with its registration statement on Form S-3,
including Pre-Effective Amendment No. 1 thereto (SEC File No. 333-13363) (the
"Registration Statement") previously declared effective by the Securities and
Exchange Commission relating to the proposed public offering of securities of
the Company that may be offered and sold by the Company from time to time as
set forth in the prospectus which forms a part of the Registration Statement
(the "Prospectus"), and as to be set forth in one or more supplements to the
Prospectus (each, a "Prospectus Supplement"). This opinion letter is rendered
in connection with the proposed public offering of 150,000 shares of common
stock, par value $.01 per share (the "Shares"), of the Company, as described
in a Prospectus Supplement dated March 20, 1997. This opinion letter is
furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in
connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
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2. The Amended and Restated Certificate of Incorporation of the
Company, as certified by the Secretary of the Company on the
date hereof as being complete, accurate and in effect.
3. The Amended and Restated Bylaws of the Company, as certified by the
Secretary of the Company on the date hereof as being complete,
accurate and in effect.
4. Resolutions of the Board of Directors of the Company adopted at
special meetings held on September 26, 1996, February 14, 1997 and
March 20, 1997, as certified by the Secretary of the Company on
the date hereof as being complete, accurate and in effect, relating
to the filing of the Registration Statement and related matters.
5. Executed copies of the Underwriting Agreement dated March 12, 1997,
among the Company, The Mills Limited Partnership and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
(the "Underwriting Agreement") and the Terms Agreement dated
March 20, 1997 among the Company, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Dean Witter
Reynolds Inc., Legg Mason Wood Walker, Incorporated and Salomon
Brothers Inc (the "Terms Agreement").
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity
of all original documents and the conformity to authentic original documents
of all documents submitted to us as copies (including telecopies). This
opinion letter is given, and all statements herein are made, in the context
of the foregoing.
This opinion letter is based as to matters of law solely on the General
Corporation Law of the State of Delaware, as amended (the "DGCL"), and we
express no opinion herein as to any other laws, statutes, regulations, or
ordinances.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, following issuance of the Shares pursuant to the terms of the
Underwriting Agreement and receipt by the Company of the consideration for
the Shares specified in the resolutions of the Board of Directors referred to
above and as set forth in the Terms Agreement, the Shares will be validly
issued, fully paid and nonassessable under the DGCL.
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We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely in connection with the filing by the Company of a Current Report
on Form 8-K on the date of this opinion letter, which Form 8-K will be
incorporated by reference into the Registration Statement. This opinion letter
should not be quoted in whole or in part or otherwise be referred to, nor filed
with or furnished to any governmental agency or other person or entity, without
the prior written consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the
Form 8-K and to the reference to this firm under the caption "Legal Matters" in
the Prospectus. In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Securities Act of 1933, as amended.
VERY TRULY YOURS,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
