EXHIBIT 99(d)(2)
COOPERATION AGREEMENT
This COOPERATION AGREEMENT (this "AGREEMENT"), dated February 14, 2001, is
between Westfield America Management Limited ACN 072 780 619 ("WAML"), in its
capacity as responsible entity and trustee of Westfield America Trust ARSN 092
058 449, a public unit trust constituted under the laws of Australia ("WAT"),
and Westfield Holdings Limited ACN 000 000 000, an Australian public company
("WHL").
WHEREAS, WAML, in its capacity as responsible entity and trustee of WAT,
holds legal title to shares of common stock, par value $.01 per share ("COMMON
STOCK"), and shares of preferred stock (the "WAT PREFERRED SHARES") of Westfield
America, Inc., a Missouri corporation (the "COMPANY");
WHEREAS, WHL indirectly and beneficially owns shares of Common Stock ("WHL
COMMON SHARES") and shares of preferred stock of the Company;
WHEREAS, in connection with the Merger Agreement (as defined below), WAML,
as responsible entity and trustee of WAT, proposes to commence a tender offer
(the "OFFER") for all of the outstanding shares of Common Stock of the Company,
subject to the terms and conditions set forth in the Merger Agreement;
WHEREAS, pursuant to the Merger Agreement, Merger Sub (as defined below)
will merge with and into the Company, with the Company as the surviving corpora
tion (the "MERGER");
WHEREAS, WAML holds legal title to 940,000 shares of Series A Cumulative
Redeemable Preferred Stock, par value $.01 per share (the "SERIES A PREFERRED
SHARES"), and 270,000 shares of Series B Cumulative Redeemable Preferred Stock,
par value $.01 per share (the "SERIES B PREFERRED SHARES");
WHEREAS, WHL indirectly owns 277,778 shares of Series D Cumulative
Convertible Redeemable Preferred Stock, par value $.01 per share (the "SERIES D
PREFERRED SHARES");
WHEREAS, WAML intends to subordinate the Series A Preferred Shares and
Series B Preferred Shares to the Series G Cumulative Convertible Redeemable
Preferred Stock to be issued to Security Capital Preferred Growth Incorporated
and the Amended Series D Preferred Shares (as defined below);
WHEREAS, WAML intends to convert the WAT Preferred Shares, other than the
Series A Preferred Shares and the Series B Preferred Shares, into shares of
Common Stock or capital stock substantially the same as Common Stock of the
Surviving Corporation (as defined below);
WHEREAS, WAML intends to seek WAT Member (as defined below) approval to the
transactions contemplated hereby, including, without limitation, (i) the entry
into the Series H Option Deed (as defined below); (ii) the issuance of the
Series H Options (as defined below) to the Surviving Corporation (as defined
below); (iii) the transfer of the Series H Options by the Surviving Corporation
(as defined below) to WAI; (iv) the issuance of ordinary units in WAT to WAI (as
defined below) in accordance with the Series H Option Deed; (v) the entry into
the Series I Option Deed (as defined below); (vi) the issuance of the Series I
Options (as defined below) to WCI (as defined below) and WAI; (vii) the issuance
of ordinary units in WAT to WCI and WAI in accordance with the Series I Option
Deed; (viii) the Capital Raisings (as defined below); (ix) the amendment of the
Investor's Agree ment referred to in Section 6.3; and (x) the giving of any
financial benefits to WHL and its affiliates which may otherwise arise out of
transactions in connection with the Offer and Merger (collectively, the "WAT
MEMBER APPROVAL");
WHEREAS, WHL intends to cause WAI, as a WAT Member, and any other entity it
controls which is a WAT Member, to vote all of their units in WAT in favor of
the Capital Raisings;
WHEREAS, WHL, subject to obtaining WHL Member Approval (as defined below),
intends to cause WAI to accept the transfer of the Series H Options from the
Surviving Corporation;
WHEREAS, WHL, subject to obtaining WHL Member Approval, intends to cause
WCI and WAI to accept the grant of the Series I Options;
WHEREAS, WAML and WHL desire to set forth their agreement concern ing the
Offer and the Merger as well as the recapitalization of the Surviving
Corporation following the consummation of the Offer and the Merger;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, the following terms used in this Agreement
shall have the meanings specified below:
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"AGREEMENT" shall have the meaning set forth in the introductory paragraph
to this Agreement.
"AMENDED SERIES D PREFERRED SHARES" shall mean the Series D Cumulative
Convertible Redeemable Preferred Shares, par value $.01 per share, the
preferences and rights of which are set forth in the amendment to the Series D
Certificate of Designation.
"AMENDMENT" shall have the meaning set forth in Section 4.1.
"ARTICLES OF INCORPORATION" shall mean the Restated Articles of
Incorporation of the Company, as amended.
"CAPITAL RAISINGS" means:
(a) the issue of fully paid ordinary units in WAT to raise $A450,225,000;
(b) the issue of redeemable convertible preference units in WAT to raise
$A100,000,000; and
(c) the underwriting of WAT's distribution reinvestment plan and the issue
in accordance with the underwriting agreement of new ordinary units in WAT
to raise $A240,000,000 to, among other things, fund the redemption of the
redeemable convertible preference units described in (b).
"COMMON STOCK" shall have the meaning set forth in the recitals to this
Agreement.
"COMPANY" shall have the meaning set forth in the recitals to this Agree
ment.
"GOVERNMENTAL BODY" shall mean any domestic or foreign state, county, city
or other political subdivision, administrative, governmental or regulatory body,
agency or authority.
"LAW" shall mean any law, statute, order, writ, injunction, decree, ordi
xxxxx, award, stipulation, judicial or administrative doctrine, rule or
regulation enacted by any Governmental Body.
"MATERIAL ADVERSE EFFECT" shall mean any event, circumstance, change,
effect or development that, individually or in the aggregate with all other
events, circum stances, changes, effects or developments, is or could reasonably
be expected to be materially
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adverse to the assets, properties, condition (financial or otherwise) or results
of operations of the Company.
"MGBCL" shall mean the Missouri General and Business Corporation Law.
"MERGER" shall have the meaning set forth in the recitals to this
Agreement.
"MERGER AGREEMENT" shall mean the Agreement and Plan of Merger to be
entered into among the Company, WAML, in its capacity as responsible entity and
trustee of WAT, and Merger Sub.
"MERGER SUB" shall mean Mall Acquisition Corp., a Delaware corporation.
"OFFER" shall have the meaning set forth in the recitals to this Agreement.
"OFFER AFFILIATES" shall mean WAI and WCI.
"OFFER PRICE" shall have the meaning set forth in Section 2.1.
"ORDER" shall mean any award, decision, injunction, judgment, order, ruling
or verdict entered, issued, made, or rendered by any court, administrative
agency, or other Governmental Body or by any arbitrator.
"SERIES A PREFERRED SHARES" shall have the meaning set forth in the
recitals to this Agreement.
"SERIES B CERTIFICATE OF DESIGNATION" shall mean the Certificate of Designa
tion of the Series B Preferred Shares, dated May 19, 1997.
"SERIES B PREFERRED SHARES" shall have the meaning set forth in the
recitals to this Agreement.
"SERIES D CERTIFICATE OF DESIGNATION" shall mean the Certificate of Designa
tion of the Series D Preferred Shares, dated August 10, 1998.
"SERIES D PREFERRED SHARES" shall have the meaning set forth in the
recitals to this Agreement.
"SERIES H OPTION" means series H options to acquire ordinary units in WAT
in accordance with the terms of the Series H Option Deed.
"SERIES H OPTION DEED" means the deed a copy of which is EXHIBIT D to this
Agreement.
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"SERIES I OPTION" means Series I options to acquire ordinary units in WAT
in accordance with the terms of the Series I Option Deed.
"SERIES I OPTION DEED" means the deed a copy of which is EXHIBIT E to this
Agreement.
"SUBORDINATION" shall have the meaning set forth in Section 5.1.
"SURVIVING CORPORATION" shall have the meaning set forth in Section 3.2.
"TENDERED SHARES" shall have the meaning set forth in Section 2.1.
"TRUST DEED" means the deed (as amended from time to time) dated 28 March
1996 establishing WAT, and known as the constitution of WAT.
"WAI" shall mean Westfield American Investments Pty. Limited, an Australian
corporation.
"WAML" shall have the meaning set forth in the introductory paragraph to
this Agreement.
"WAT" shall have the meaning set forth in the introductory paragraph to
this Agreement.
"WAT MEMBER APPROVAL" shall have the meaning set forth in the recitals to
this Agreement.
"WAT MEMBERS" means the registered holders of interests in WAT.
"WAT PREFERRED SHARES" shall have the meaning set forth in the recitals to
this Agreement.
"WCI" shall mean Westfield Corporation, Inc, a Delaware corporation.
"WHL" shall have the meaning set forth in the introductory paragraph to
this Agreement.
"WHL MEMBER APPROVAL" shall have the meaning set forth in Section 5.3.
"WHL MEMBERS" means the registered holders of shares in WHL.
"WHL COMMON SHARES" shall have the meaning set forth in the recitals to
this Agreement.
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ARTICLE II
THE OFFER
Section 2.1 THE OFFER. As promptly as practicable, WAML agrees to commence
a tender offer to purchase all of the outstanding shares of common stock of the
Company (the "TENDERED SHARES"), other than the shares owned by the Company,
WAML and the Offer Affiliates at the time of the Offer, at a price set forth in
the Merger Agreement (the "OFFER PRICE").
Section 2.2 CONDITIONS TO CONSUMMATION OF THE OFFER. WAML and WHL
acknowledge that WAML's obligations to commence the Offer and to accept for
payment and to pay for any Tendered Shares validly tendered on or prior to the
expiration of the Offer and not withdrawn shall be subject to the conditions to
be set forth in the definitive Merger Agreement.
Section 2.3 WHL SHARES. WHL agrees to cause both WAI and WCI not to tender
the WHL Common Shares in the Offer.
ARTICLE III
THE MERGER
Section 3.1 THE MERGER. WAML and WHL acknowledge that the Merger shall be
undertaken pursuant to the terms of Section 351.458 of the MGBCL. WHL agrees to
the terms and conditions of the Merger as set forth in the Merger Agreement,
including, without limitation, the Articles of Merger attached thereto. WHL
agrees to cause WAI and WCI to vote in favor of the Merger.
Section 3.2 EFFECT OF THE MERGER. WAML and WHL acknowledge that, following
the Merger, the Company shall continue as the surviving corporation (the
"SURVIVING CORPORATION") and the separate corporate existence of Merger Sub
shall cease.
Section 3.3 COVENANTS AND CONDITIONS TO CONSUMMATION OF THE MERGER. WAML
and WHL acknowledge that the consummation of the Merger shall be subject to
certain covenants and conditions to be set forth in the definitive Merger
Agreement.
ARTICLE IV
AMENDMENT OF TERMS OF SERIES D PREFERRED SHARES
Section 4.1 AMENDMENT TO SERIES D CERTIFICATE OF DESIGNATION. Subject to
the conditions of this Agreement and in accordance with the MGBCL, as soon as
reasonably practicable after the consummation of the Merger, WHL agrees to cause
WAI to approve the amendment to the Series D Certificate of Designation (the
"AMENDMENT"), with the terms substantially in the form set forth in EXHIBIT A
hereto.
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ARTICLE V
CAPITAL RAISINGS, SERIES H OPTIONS AND SERIES I OPTIONS
Section 5.1 CAPITAL RAISINGS. As soon as reasonably practicable after the
date of this Agreement, WAML agrees to call a meeting of WAT Members to consider
and, if thought fit, approve amongst other things, the Capital Raisings to
assist in the funding of the Offer. WHL agrees to cause WAI, as a WAT Member,
and any other entity it controls which is a WAT Member, to vote all of their
units in WAT in favor of the resolu tion to approve the Capital Raisings.
Section 5.2 SERIES H OPTIONS AND SERIES I OPTIONS. (a) As soon as
reasonably practicable after the date of this Agreement, WAML agrees to call a
second meeting of WAT Members, to be held promptly after the close of the Offer,
to consider and if thought fit, approve, among other things; (i) the entry into
the Series H Options; (ii) the issuance of the Series H Options to the Surviving
Corporation; (iii) the transfer of the Series H Options by the Surviving
Corporation to WAI; (iv) the issuance of ordinary units in WAT to WAI in
accordance with the Series H Option Deed; (v) the entry into the Series I Option
Deed; (vi) the issuance of the Series I Options to WCI and WAI; (vii) the
issuance of ordinary units in WAT to WCI and WAI in accordance with the Series I
Option Deed; (viii) the amendment of the Investor's Agreement referred to in
Section 6.3; and (ix) the giving of any financial benefits to WHL and its
affiliates which may otherwise arise out of transac tions in connection with the
Offer and Merger.
(b) Subject to receipt of WAT Member Approval, following the completion of
the Merger, WAML shall cause the Surviving Corporation to transfer the Series H
Options to WAI.
Section 5.3 ACCEPTANCE OF SERIES H OPTIONS AND SPECIAL I OPTIONS. As soon
as reasonably practicable after the date of this Agreement, WHL agrees to call a
meeting of WHL Members, to be held promptly after the close of the Offer, to
consider and if thought fit, approve, among other things: (i) the acceptance of
the transfer of the Series H Options from the Surviving Corporation to WAI; (ii)
the grant of the Series I Options to WCI and WAI; (iii) the exercise of the
Series H Options and Series I Options in accordance with the terms of the Series
H Option Deed and Series I Option Deed, respectively; (iv) the amendment of the
Investor's Agreement referred to in Section 6.3; and (v) the giving of any
financial benefits to WAT which may otherwise arise out of transactions in
connection with the Offer and Merger (the "WHL MEMBER APPROVAL").
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 AMENDMENT TO SERIES A PREFERRED SHARES AND SERIES B PREFERRED
SHARES. As soon as reasonably practicable after consummation of the Merger,
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WAML agrees to cause (i) the subordination of the Series A Preferred Shares and
Series B Preferred Shares to the Amended Series D Preferred Shares of the
Surviving Corporation, and (ii) the amendment of the terms of the Series A
Preferred Shares and Series B Preferred Shares to allow the holders thereof to
convert such preferred shares into capital stock substantially the same as
Common Stock of the Surviving Corporation. In connection therewith, WAML agrees
to approve the amendments to the Articles of Incorporation with respect to the
Series A Preferred Shares and the Series B Certificate of Designation,
substantially in the form attached hereto as EXHIBIT B and EXHIBIT C,
respectively.
Section 6.2 CONVERSION OF WAT PREFERRED SHARES. As soon as reasonably
practicable after consummation of the Merger, WAML agrees to convert the WAT
Preferred Shares into Common Stock or capital stock substantially the same as
Common Stock of the Surviving Corporation.
Section 6.3 AMENDMENT OF INVESTOR'S AGREEMENT. As soon as reasonably
practicable after consummation of the Merger, WAML and WHL agree and shall cause
the Surviving Corporation to amend the non-competition provisions contained in
the Investor's Agreement, dated May 21, 1997, among the Company, WAML, Perpetual
Trustee Company Limited, WCI, WAI and WHL. The effect of those amendments will
be that, if the Surviving Corporation has considered an investment or other
business opportunity and decided not to pursue that opportunity, WHL and its
subsidiaries will be permitted to take advantage of that opportunity.
Section 6.4 TERMINATION OF REGISTRATION RIGHTS AGREEMENT. As soon as
reasonably practicable after consummation of the Merger, WAML shall cause the
Surviving Corporation and WHL agrees to terminate the Registration Rights
Agreement, dated May 21, 1997, between the Company and WHL.
Section 6.5 REASONABLE BEST EFFORTS. Each party will use its reasonable
best efforts to take, or cause to be taken, all actions and to do, or cause to
be done, all things necessary, proper or advisable under applicable Laws to
consummate the transactions contemplated by this Agreement.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF
THE CONTEMPLATED TRANSACTIONS
Section 7.1 CONDITIONS TO WHL'S OBLIGATIONS. Other than WHL's obligations
under Sections 2.3, 3.1, 5.3, 6.5 and 10, which shall be binding on WHL upon
execution of this Agreement, WHL's obligation to consummate the transactions
contemplated in this Agreement is subject to the following conditions:
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(a) The Merger shall have been consummated in accordance with the terms
and conditions of the Merger Agreement.
(b) The Series A Preferred Shares and Series B Preferred Shares shall have
been subordinated to the Amended Series D Preferred Shares of the Surviving
Corporation.
(c) There shall not be in effect any Order or Law prohibiting the
consummation of the transactions contemplated by this Agreement or permitting
such consummation only subject to any condition or restriction that has or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company.
(d) There shall not be any proceeding pending or threatened before any
Governmental Body that would prohibit or reasonably be expected to prohibit the
consummation of the transactions contemplated by this Agreement.
(e) WAT shall have obtained the WAT Member Approval.
(f) WHL shall have obtained the WHL Member Approval.
Section 7.2 CONDITIONS TO WAML'S OBLIGATIONS. Other than WAML's obligations
under Sections 5.1, 5.2, 6.5 and 10, which shall be binding on WAML upon
execution of this Agreement, WAML's obligation to consummate the transactions
contemplated in this Agreement is subject to the following conditions:
(a) The Merger shall have been consummated in accordance with the terms
and conditions of the Merger Agreement.
(b) There shall not be in effect any Order or Law prohibiting the
consummation of the transactions contemplated by this Agreement or permitting
such consummation only subject to any condition or restriction that has or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company.
(c) There shall not be any proceeding pending or threatened before any
Governmental Body that would prohibit or reasonably be expected to prohibit the
consummation of the transactions contemplated by this Agreement.
(d) WAT shall have obtained the WAT Member Approval.
(e) WHL shall have obtained the WHL Member Approval.
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ARTICLE VIII
TERMINATION
Section 8.1 TERMINATION OF MERGER AGREEMENT. In the event of termination of
the Merger Agreement by any party thereto, this Agreement shall become void and
have no effect, without any liability or obligation on the part of WAML or WHL.
ARTICLE IX
LIMITATION OF LIABILITY
Section 9.1 LIMITATION OF LIABILITY OF WAML.
(a) Except as provided in Section 9.1(b), as WAML enters into this
Agreement only in its capacity as responsible entity and trustee of WAT, WAML is
liable under this Agreement only up to the extent to which it is actually
indemnified out of the assets of WAT.
(b) WAML is only personally liable to the extent that it is not actually
indemnified out of the assets of WAT as a result of it being fraudulent,
negligent or in breach of trust.
(c) If WAML is not personally liable, the parties other than WAML must not
xxx WAML personally or seek to wind it up to recover any outstanding money, and
WAML is entitled to plead this clause as a bar to the taking of any such
proceedings.
(d) Nothing contain in Section 9.1(a) limits the right of any party to
bring action for performance by WAML or limit any party's right to recover
damages from the assets of WAT to the extent that WAML is liable under this
Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 ASSIGNMENT. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party.
Section 10.2 WAIVER. Any term or provision of this Agreement may be waived
in writing at any time by the party which is entitled to the benefits thereof.
Section 10.3 AMENDMENT; MODIFICATION. No provision of this Agreement may be
amended or modified unless such amendment or modification is in writing and
signed by the parties hereto intending to be bound thereby.
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Section 10.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
(including persons taking by novation) and assigns.
Section 10.5 FURTHER ASSURANCES. Each party hereto shall do all such
further acts and execute, acknowledge, deliver and file all such other
instruments and documents as may be necessary or desirable to give effect to and
carry out the transactions contemplated by this Agreement.
Section 10.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, including,
without limitation, Section 5-1401 of the New York General Obligations Law.
Section 10.7 ENTIRE AGREEMENT. This Agreement and all other agreements
referred to in this Agreement constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
Section 10.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall,
taken together, be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
WESTFIELD AMERICA MANAGEMENT
LIMITED in its capacity as responsible
entity and trustee of Westfield
America Trust
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
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Title: Director
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WESTFIELD HOLDINGS LIMITED
an Australian public company
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
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Title: Director
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