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Exhibit C
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
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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 10 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
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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
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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
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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 or owning any
interest in Westfield America Trust or the Company, (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.
5. GSP Option Agreement. The Company and Westfield Capital Corporation
Finance Pty. Limited ("WCC"), a subsidiary of WHL, are parties to that certain
GSP Option Agreement (the "GSP Option Agreement"), dated as of July 1, 1997,
granting the Company the option to buy the outstanding common stock of Westland
Realty, Inc. Pursuant to Section 5.2(b) of the GSP Option Agreement, if the
Company exercises its option, WCC may elect to receive the purchase price under
the GSP Option Agreement in stock of the Company or in cash. WHL hereby notifies
the Company that, if the option is exercised by the Company, WCC has irrevocably
elected to receive common stock of the Company for the purchase price, such
shares of common stock to be duly authorized, validly issued, fully paid and
nonassessable and free and clear of all security interests, mortgages, liens,
charges, restrictions, encumbrances and claims of any nature whatsoever. The
amount of shares of common stock shall be determined by dividing the purchase
price by an amount equal to the average of the closing sale price of the Company
on the New York Stock Exchange for the 20 trading days prior to the exercise of
the option.
6. Notices. All notices, requests, demands and other communications
made in connection with this Agreement shall, except as otherwise
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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
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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
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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
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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. Such remedy shall not be exclusive and shall be in addition to any
other remedy that the Company shall have, including, without limitation,
recovery of damages.
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.
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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]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
WESTFIELD AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. 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: Managing Director-U.S.A.
WESTFIELD CORPORATION, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
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WESTFIELD AMERICAN INVESTMENTS PTY.
LIMITED
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X.Xxxx
Title: Managing Director-U.S.A.
WESTFIELD HOLDINGS LIMITED
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director-U.S.A.
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