INVESTORS AGREEMENT
INVESTORS AGREEMENT (hereinafter called the "Agreement"), dated
as of May 21, 1997, among WESTFIELD AMERICA, INC., a Missouri corporation
(the "Company"), WESTFIELD AMERICA MANAGEMENT LIMITED, an Australian
corporation (the "WAT Manager"), in its capacity as manager of the
Westfield America Trust ("WAT"), a public trust constituted by the
Westfield America Trust Deed, dated March 28, 1996, as amended, PERPETUAL
TRUSTEE COMPANY LIMITED, in its capacity as trustee of WAT (the "WAT
Trustee"), WESTFIELD CORPORATION, INC., a Delaware corporation ("Westfield
Corporation"), WESTFIELD AMERICAN INVESTMENTS PTY. LIMITED, an Australian
corporation ("Annatar"), and WESTFIELD HOLDINGS LIMITED, an Australian
corporation ("WHL", and collectively with WHL, Westfield Corporation and
Annatar and any other subsidiary of WHL, the "Westfield Group").
RECITALS
WHEREAS, the Company is authorized to issue 200,000,000 shares of
common stock, par value $.01 per share (the "Common Stock"), 200 shares of
non-voting senior preferred stock, par value $1.00 per share (the "Senior
Preferred Stock"), 940,000 shares of Series A cumulative redeemable
preferred stock, par value $1.00 per share (the "Series A Preferred
Stock"), and 400,000 shares of Series B cumulative redeemable preferred
stock, par value $1.00 per share (the "Series B Preferred Stock", and
collectively with the Common Stock, the Senior Preferred Stock and the
Series A Preferred Stock, the "Capital Stock");
WHEREAS, the WAT Trustee is the record and beneficial owner of
39,494,125 shares and the Westfield Group is the record and beneficial
owner of 10,930,762 shares of Common Stock;
WHEREAS, the Company is in the business of owning, operating,
leasing, developing, redeveloping and acquiring shopping centers and
powers centers (collectively, the Centers") in the United States;
WHEREAS, the parties hereto are parties to a Stockholders
Agreement, dated as of July 1, 1996 (the "Existing Agreement"), that
contains provisions relating to the composition of the Board of Directors
of the Company (the "Board") and certain other matters;
WHEREAS, the Company plans to commence an initial public offering
(the "Public Offering") of shares of Common Stock and the WAT Trustee and
the Westfield Group intend to remain shareholders of the Company after the
Public Offering and wish to enter into this Agreement with the Company in
order to terminate the Existing Agreement and to establish and define
their respective rights and obligations with respect to the matters
hereinafter set forth after the Public Offering;
WHEREAS, pursuant to the Third Restated Articles of Incorporation
of the Company (the "Articles"), the Second Amended and Restated By-Laws
of the Company (the "By-Laws") and certain actions taken by the Board,
following the closing of the Public Offering, the Board will be comprised
of 9 directors (the "Directors") and will be divided into three classes,
as nearly equal in number as possible, with the term of office of the
first class expiring at the Annual Meeting of Shareholders in 1998, the
second class expiring at the Annual Meeting of Shareholders in 1999, and
the third class expiring at the Annual Meeting of Stockholders in 2000,
with the successors to any expired class to be elected for three-year
terms;
WHEREAS, it is expected that following the Public Offering, a
majority of the Directors will be Independent Directors (as defined
below); and
WHEREAS, the WAT Manager and the WAT Trustee have advised the
Company that under Australian law the unitholders of WAT must approve the
exercise by the WAT Trustee of its voting rights with respect to the
election of the Directors (the "Australian Voting Requirement").
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein,
the parties hereto hereby agree as follows:
1. EFFECTIVENESS. The parties hereto hereby covenant and agree
that immediately upon the closing of the Public Offering the Existing
Agreement shall terminate and this Agreement shall become effective.
2. ELECTION OF DIRECTORS. (a) MEETING OF WAT UNITHOLDERS. For so
long as the Australian Voting Requirement is applicable, the WAT Trustee
hereby covenants and agrees to (i) call a meeting of WAT unitholders to
obtain the approval for the WAT Trustee to exercise voting rights in
respect of the election of Directors and (ii) attend, in person or by
proxy, any shareholders meeting at which the shareholders of the Company
are to vote for the election of Directors and to vote or cause to be voted
all of their shares of Common Stock at each such meeting. The timing of
the election of directors will be coordinated with the requirements for
unitholders meetings as required by Australian corporate law so that
sufficient time is permitted for the WAT Trustee to obtain unitholder
approval.
(b) INDEPENDENT DIRECTOR. For purposes of this Agreement,
"Independent Director" shall mean a director of the Company who (i) is
not, and has not for the last 12 months been, an officer, director or
employee of any of the Westfield Group or the WAT Trustee, (ii) is not an
Affiliate of any of the Westfield Group or the WAT Trustee or an officer
or employee of such an Affiliate, (iii) is not a member of the immediate
family of any natural person described in clauses (i) and (ii) above, and
(iv) is free from any relationship that would interfere with the exercise
of independent judgment as a Director. For purposes of this definition of
Independent Director only, an "Affiliate" shall mean any person directly
or indirectly Controlling, Controlled by, or under Control with, such
other person; "Control" shall mean the power to exercise a controlling
influence over the management or policies of a company, unless such power
is solely the result of an official position with any of the Westfield
Group or the WAT Trustee; and "member of the immediate family" shall mean
any parent, spouse of a parent, child, spouse of a child, spouse, brother
or sister and includes step and adoptive relationships.
3. RIGHT OF FIRST REFUSAL. (a) Whenever and as often as the WAT
Trustee or its successors or assigns (each, a "Seller") shall desire to
sell all or any of the Warrants granted to the WAT Trustee pursuant to the
Subscription Agreement and Plan of Reorganization Relating to CenterMark
Properties, Inc., dated as of May 13, 1996, and in connection with the
Public Offering (together, the "Company Warrants"), pursuant to a bona
fide offer for the purchase thereof, the Seller shall give notice (the
"Notice") to WHL (the "Offeree") in writing to such effect, enclosing a
copy of such bona fide offer (it being agreed that the Seller shall cause
any such offer to be reduced to writing) and specifying the portion of the
Company Warrants which the Seller desires to sell (the "Seller's
Warrant"), the name of the person or persons to whom the Seller desires to
make such sale and the dollar value of the consideration which has been
offered in connection therewith. Upon receipt of the Notice, the Offeree
initially shall have the first right and option to purchase up to all of
the Seller's Warrant, for cash at a purchase price equal to the dollar
value of such consideration, exercisable for a period of 30 days from the
date of receipt of the Notice (the "Expiration Date"). Failure of the
Offeree to respond to the Notice within the 30-day period shall be deemed
to constitute a notification to the Seller of the Offeree's decision not
to exercise the first right and option to purchase the Seller's Warrant
under this Section 3.
(b) The Offeree may exercise the right and option provided in
this Section 3 by giving written notice to the Seller not later than the
close of business on the date of expiration of such right and option (or
if such date is not a business day, then on or before the close of
business on the next succeeding business day), advising of the election to
exercise the same and the date (not later than 30 days from the date of
such notice) upon which payment of the purchase price for the Seller's
Warrant shall be made. The Seller shall cause to be delivered to the
Offeree notice, on the payment date specified in such notice, the
certificate or certificates representing the Seller's Warrant being
purchased by the Offeree, properly endorsed for transfer, against payment
of the purchase price therefor.
(c) If all the Seller's Warrant is not purchased by the Offeree
in accordance with this Section, the Seller (i) shall not be required to
sell any of the Seller's Warrant to the Offeree and (ii) may, during the
90-day period commencing on the expiration of the rights and options
provided for in this Section, sell all (but not less than all) of the
Seller's Warrant to the transferee named in the Notice for a consideration
the dollar value of which is equal to or greater than the dollar value of
the consideration specified in the Notice, subject in each case to the
restrictions contained in this Section 3 of this Agreement.
(d) WHL may designate or assign its rights to purchase the
Company Warrants pursuant to this Section 3 to any person or entity with
the prior written consent of the Seller, such consent not be unreasonably
withheld or delayed.
4. NON-COMPETITION. WHL shall not, and shall not permit any of
its subsidiaries, for so long as it or any of its subsidiaries is the
Advisor (as defined in the Advisory Agreement, dated July 1, 1996, as
amended, between the Company and the Advisor) and the Manager (as defined
in the Management Agreements, dated July 1, 1996, as amended, between the
Company, the Manager and the Centers) of the Centers, directly or
indirectly, to acquire any ownership interest in shopping center
properties or power centers in the United States (a "Competitive
Business") or own an interest in, as a partner, member, stockholder,
co-venturer or otherwise, any corporation, company, partnership, firm,
association, enterprise or other entity that owns any ownership interest
in a Competitive Business, PROVIDED that nothing contained in this Section
4 shall prohibit or restrain WHL or any of its subsidiaries or Affiliates
from (a) owning the interests it currently holds in Garden State Plaza,
(b) acquiring shares of capital stock or other equity interests in any
entity where such shares or interests represent a minority interest of 5%
or less of such entity's outstanding capital stock or equity interests,
PROVIDED that such entity is not controlled by WHL or any such subsidiary
and employees of the Westfield Group do not serve as an executive officer,
director, manager or advisor to such entity, (c) acquiring indebtedness of
any person, (d) acquiring by asset purchase, stock purchase, merger,
consolidation or otherwise of any corporation, partnership or other
business entity partially engaged in the Competitive Business, PROVIDED
that such activities relating to the Competitive Business do not exceed 5%
of the revenues or net equity of such entity or such entity disposes of
such Competitive Business within one year of such acquisition, or (e)
acquiring any interest in airport projects or the retail portions thereof.
6. NOTICES. All notices, requests, demands and other
communications made in connection with this Agreement shall, except as
otherwise expressly herein provided, be in writing and shall be (a) mailed
by first-class, registered or certified mail, return receipt requested,
postage prepaid, or (b) transmitted by hand delivery or telecopy,
addressed as follows:
(i) if to the Company, to:
Westfield America, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Co- President
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
(ii) if to WAM, to:
Westfield America Management Limited
Xxxxx 00 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxxxx
Telecopy: 011-612 9358-7077
Telephone: 000-000 0000-0000
Attention: Company Secretary
with a copy to:
The National Manager
Property Trusts
Perpetual Trustees Australia Limited
Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx
Xxxxxxxxx
Telecopy: 011-612 9233-8582
Telephone: 000-000 0000-0000
Attention: Xx. Xxxxx Xxxxxx
(iii) if to the WAT Trustee, to:
The National Manager
Property Trusts
Perpetual Trustees Australia Limited
Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx
Xxxxxxxxx
Telecopy: 011-612 9233-7688
Telephone: 000-000 0000-0000
Attention: Xx. Xxxxx Xxxxxx
with a copy to:
Westfield America Management Limited
Xxxxx 00 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxxxx
Telecopy: 011-612 9358-7077
Telephone: 000-000 0000-0000
Attention: Company Secretary
(iv) if to Westfield Corporation, to:
c/o Westfield Corporation, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: President
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
(v) if to Annatar, to:
Xxxxx 00 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxxxx
Telecopy: 011-612 9358-7165
Telephone: 000-000 0000-0000
Attention: Company Secretary
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
(iv) if to WHL, to:
Xxxxx 00 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxxxx
Telecopy: 011-612 9358-7165
Telephone: 000-000 0000-0000
Attention: Company Secretary
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
or, in each case, at such other address as may be specified in writing to
the other parties hereto.
7. REMEDIES. The parties hereto agree that in the event of any
violation by WHL or any of its subsidiaries of the provisions of Section 4
of this Agreement, the Company will be irreparably damaged. Accordingly,
the Company shall be entitled to an injunction (either preliminary,
permanent or both) restraining any violation of the provisions of Section
4 of this Agreement by WHL or any of its subsidiaries or to any other
appropriate decree of specific performance.
8. SEVERABILITY. If any provision of this Agreement is
inoperative or unenforceable for any reason, such circumstances shall not
have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable, unless to give effect to any such remaining provision or
provisions would frustrate the purpose and intention of the parties
hereunder. The invalidity of any one or more phrases, sentences, clauses,
sections or subsections of this Agreement shall not affect the remaining
portions of this Agreement.
9. HEADINGS. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.
10. ENTIRE AGREEMENT. This Agreement, together with all exhibits
hereto, constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
11. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and both of which
shall together constitute one and the same instrument.
12. GOVERNING LAW. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the
internal laws of the State of Missouri.
13. ASSIGNMENT. This Agreement shall not be assignable by any of
the parties hereto,without the prior written consent of the other parties
hereto, except that members of the Westfield Group shall be permitted to
assign any of their rights hereunder to any subsidiary of WHL.
14. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto
and their respective heirs, executors, administrators, successors and
permitted assigns.
15. AMENDMENT; WAIVERS. No amendment, modification or discharge
of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought.
16. LIMITATION OF LIABILITY. As the WAT Trustee enters into this
Agreement only in its capacity as trustee of WAT, the WAT Trustee is
liable under this Agreement only up to the extent to which it is
indemnified out of the assets of WAT. The WAT Trustee is only personally
liable to the extent that it is fraudulent, negligent, or in breach of
trust. If the WAT Trustee is not personally liable, the parties other than
the WAT Trustee must not xxx the WAT Trustee personally or seek to wind it
up to recover any outstanding money, and the WAT Trustee is entitled to
plead this clause as a bar to the taking of any such proceedings.
17. WAT TRUST DEED. Each of the parties to this Agreement, other
than the WAT Trustee, acknowledges that it has received a copy of the WAT
Trust Deed (as amended) establishing WAT and that it understands the
rights and obligations of the WAT Trustee and the Manager therein.
[Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
WESTFIELD AMERICA, INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title: Co-President
PERPETUAL TRUSTEE COMPANY LIMITED,
in its capacity as trustee of
Westfield America Trust
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Attorney
WESTFIELD AMERICA MANAGEMENT LIMITED,
in its capacity as manager of
Westfield America Trust
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Director
WESTFIELD CORPORATION, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
WESTFIELD AMERICAN INVESTMENTS PTY. LIMITED
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Director
WESTFIELD HOLDINGS LIMITED
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Director
