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EXHIBIT E
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made this 18th
day of December, 1997, by and between WESTFIELD CORPORATION, INC., a Delaware
corporation ("Seller"), and WESTFIELD AMERICAN INVESTMENTS PTY LIMITED (ACN 003
161 475), an Australian corporation ("Buyer").
RECITALS
A. Seller is the owner of 2,300,000 shares (the "Shares") of
the issued and outstanding shares of common stock, par value $.01 (the "Common
Stock"), of Westfield America, Inc., a Missouri corporation (the "Company"). The
Common Stock of the Company is listed on the New York Stock Exchange.
B. Buyer desires to purchase from Seller, and Seller desires
to sell to Buyer, the Shares on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and subject to the
terms and conditions hereinafter set forth, Seller and Buyer hereby agree as
follows:
AGREEMENT
1. SALE OF SHARES
Upon the terms and conditions hereinafter set forth, Seller
shall sell, transfer and assign to Buyer, and Buyer shall purchase from Seller,
the Shares, including, without limitation, all of Seller's right, title and
interest in any accrued and unpaid dividends relating thereto as at the date of
this Agreement.
2. PURCHASE PRICE.
The purchase price for the Shares shall be equal to the
product of (i) 2,300,000 and (ii) the closing price of the Common Stock on the
New York Stock Exchange on December 18, 1997. The Purchase Price shall be paid
by Buyer to Seller at the Closing (as hereinafter defined) by wire transfer of
immediately available funds.
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3. CLOSING.
Subject to the satisfaction of the conditions set forth
herein, the closing ("Closing") of the sale and purchase of the Shares shall
occur on December 22, 1997 ("Closing Date") at the offices of Westfield
Corporation, Inc., 00000 Xxxxxxxx Xxxx. Xxx Xxxxxxx, Xxxxxxxxxx. The Closing may
occur on such earlier or later date as the parties may otherwise agree.
4. REPRESENTATIONS AND WARRANTIES.
4.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller makes the
following representations and warranties, which representations and warranties
are true and correct as of the date of this Agreement, and which representations
and warranties shall be true and correct at and as of the Closing Date in all
respects as though such representations and warranties were made as of the
Closing Date.
(a) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has
the full power and authority to enter into this Agreement and all other
documents contemplated hereby, and to perform all of the terms,
conditions and provisions thereof and hereof. The execution, delivery
and performance of all documents which are to be executed and delivered
by Seller have been duly authorized by all requisite action of Seller.
This Agreement has been duly executed and delivered by Seller and
constitutes the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms. Each of the
documents to be executed by Seller and delivered to Buyer at Closing
will at the time of Closing be duly executed and delivered by Seller
and will constitute the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its respective terms.
(b) Seller owns, beneficially and of record, the Shares free
and clear of all rights and claims of third parties and has not
directly or indirectly, voluntarily or involuntarily, by operation of
law or otherwise, assigned, transferred, encumbered or granted a
security interest in the Shares. Seller will deliver to Buyer good and
valid title to the Shares, free and clear of all security interests,
mortgages, liens, charges, restrictions, encumbrances and claims other
than those created by Buyer.
(c) The execution, delivery and performance of this Agreement
by Seller and the consummation of the transactions contemplated hereby
will not conflict with or result in any violation of or default under
any provisions of Seller's certificate of
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incorporation or by-laws, any contract, agreement, arrangement or
commitment of the Seller, any law, rule or regulation applicable to the
Seller or any judgment, decree or order of any court, governmental
agency or authority applicable to or binding upon Seller. No filing,
consent, approval, order or authorization of any court, administrative
agency or other governmental entity or any other person or entity is
required to be obtained or made by Seller in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby by the Seller.
(d) Seller is not a foreign person within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as amended, and
Section 1.1445-2 of the Treasury Regulations.
4.2 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer makes the
following representations and warranties, which representations and warranties
are true and correct as of the date of this Agreement, and which representations
and warranties shall be true and correct at and as of the Closing Date in all
respects as though such representations and warranties were made as of the
Closing Date.
(a) Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Australia
and has the full power and authority to enter into this Agreement and
all other documents contemplated hereby, and to perform all of the
terms, conditions and provisions thereof and hereof. The execution,
delivery and performance of all documents which are to be executed and
delivered by Buyer have been duly authorized by all requisite action of
Buyer. This Agreement has been duly executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms. Each of the
documents to be executed by Buyer and delivered to Seller at Closing
will at the time of Closing be duly executed and delivered by Buyer and
will constitute the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its respective terms.
(b) The execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer of the transactions
contemplated hereby will not conflict with, or result in any violation
of or default under, any provision of Buyer's memorandum of association
or articles of association, any contract, agreement, arrangement or
commitment of Buyer, any law, rule or regulation applicable to Buyer or
any judgment, decree or order of any court, governmental agency or
authority applicable to or binding upon Buyer. No filing, consent,
approval, order or authorization of any court, administrative agency or
other governmental entity or any
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other person or entity is required to be obtained or made by Buyer in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby by Buyer.
(c) Buyer has had the opportunity to ask questions and receive
answers concerning the terms and conditions of the purchase of the
Shares and to obtain any additional information which Seller possesses
or can acquire without unreasonable effort or expense. Buyer has not
been refused any information or access to any individual pursuant to
any request by Buyer.
(d) (i) Buyer is acquiring the Shares for investment purposes,
for its own account, and not with a view to, or for resale in
connection with, any distribution of all or any part of the Shares.
Buyer understands that the Shares have not been or will not be
registered under the Securities Act of 1933 Act, as amended (the
"Securities Act") or the securities laws of any State of the United
States and that such securities will be subject to the restrictions on
transfer set forth in the legends contained in Section (f) below.
(ii) Buyer has made such independent investigation of the
Company as it deems to be necessary or advisable, and Buyer has been
supplied with all information and data which it believes to be
necessary in order to reach an informed decision as to the advisability
of investing in the Shares.
(e) Buyer is an "accredited investor" as such term is defined
in Rule 501 promulgated under the Securities Act, and has such
knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of its investment hereunder.
(f) Buyer acknowledges and agrees that any certificates
evidencing the Shares purchased pursuant to this Agreement shall be
stamped or endorsed with legends in substantially the following form
and shall be subject to the provisions of such legends:
"THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THIS SECURITY MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM AND AS
SET FORTH HEREIN.
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"THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (2)
INSIDE THE UNITED STATES TO A PERSON WHO IS AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a) UNDER THE
SECURITIES ACT (AN "ACCREDITED INVESTOR") IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO (i) THE RECEIPT BY THE ISSUER OF A LETTER IN
SUBSTANTIALLY THE FORM ATTACHED TO THE MALL INVESTMENT L.P.
SUBSCRIPTION AGREEMENT, PURSUANT TO WHICH THIS SECURITY WAS
ISSUED] (ii) UNLESS THE TRANSFER IS OF SECURITIES WITH A
PURCHASE PRICE OF NOT LESS THAN US$ 250,000, THE RECEIPT BY
THE ISSUER OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
THE ISSUER THAT SUCH REOFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT, AND (iii) THE
RECEIPT BY THE ISSUER OF SUCH OTHER EVIDENCE REASONABLY
ACCEPTABLE TO THE ISSUER THAT SUCH REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS, (3) OUTSIDE THE UNITED STATES TO A
NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULES 901, 903 OR 904 OF REGULATION S UNDER THE SECURITIES
ACT, OR (4) TO THE ISSUER, ITS AFFILIATES, WESTFIELD AMERICA
TRUST OR ITS AFFILIATES, AND (5) IN THE CASE OF A TRANSFER
UNDER (1),(2),(3) OR (4), IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT
OF THIS SECURITY OF THE RESALE RESTRICTING SET FORTH IN (A)
ABOVE."
Buyer acknowledges and agrees that the Shares shall bear the following
additional legends:
"THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR
THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF ITS
STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE
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INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO INDIVIDUAL MAY
BENEFICIALLY OWN SHARES IN EXCESS OF THE THEN APPLICABLE
OWNERSHIP LIMIT, WHICH MAY DECREASE OR INCREASE FROM TIME TO
TIME, UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER. IN
GENERAL, ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN
SHARES IN EXCESS OF THE OWNERSHIP LIMIT MUST IMMEDIATELY
NOTIFY THE CORPORATION. ALL CAPITALIZED TERMS USED IN THIS
LEGEND HAVE THE MEANINGS SET FORTH IN THE ARTICLES OF
INCORPORATION, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON
OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH
SHAREHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP
AND TRANSFER ARE VIOLATED, THE COMMON SHARES REPRESENTED
HEREBY MAY BE AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND
DEEMED TRANSFERRED TO A SPECIAL TRUST AS PROVIDED IN THE
ARTICLES OF INCORPORATION.
"THIS SECURITY IS ISSUED PURSUANT TO AND IS SUBJECT TO THE
TERMS AND CONDITIONS OF THE ISSUER'S ARTICLES OF
INCORPORATION, AS AMENDED, LIMITING THE NUMBER OF HOLDERS OF
RECORD OF THE ISSUER'S COMMON STOCK."
4.3 NO OTHER REPRESENTATIONS AND WARRANTIES. Except as
expressly set forth in this Agreement, neither Seller nor Buyer have made, make
or have authorized anyone to make on its behalf, any warranty or representation
as to the Shares or the Company. The provisions of this section 4.3 shall not
negate any express representations of Seller set forth in this Agreement.
4.4 CONTINUATION AND SURVIVAL OF REPRESENTATIONS AND
WARRANTIES. All representations and warranties by the respective parties
contained in this Agreement or made in writing pursuant to this Agreement are
intended to and shall remain true and correct as of the time of Closing, shall
be deemed to be material, and shall survive the Closing.
5. DELIVERY OF DOCUMENTS.
5.1 DOCUMENTS TO BE EXECUTED AND DELIVERED. At the Closing, the
following documents are to be executed and delivered by or on behalf of the
respective parties as set forth below. To the extent that such documents are not
attached to this Agreement as Exhibits, such documents shall be in form and
substance reasonably satisfactory to the parties.
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(a) Documents to be executed and delivered by the Seller
("Seller's Closing Documents"):
(i) The original stock certificate evidencing the
Shares, duly endorsed for transfer to Buyer or
accompanied by a separate duly executed stock
power to Buyer.
(ii) All required filings with respect to the transfer
of the Shares.
(iii) A certificate of Seller's non-foreign status in
the form of Exhibit A hereto.
(iv) Any other documents required to be delivered by
Seller pursuant to any other provisions of this
Agreement.
(b) Documents to be delivered by Buyer ("Buyer's Closing Documents",
collectively with Seller's Closing Documents, the "Closing Documents"):
(i) All required filings with respect to the purchase
of the Shares.
(ii) Any other documents required to be delivered by
Buyer pursuant to any other provisions of this
Agreement.
6. CONDITIONS TO CLOSING.
6.1 CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE. The following
conditions are conditions precedent to Seller's obligation to sell the Shares,
each of which may be waived in writing by Seller in its sole discretion:
(a) Buyer shall have paid to Seller the Purchase
Price.
(b) Buyer shall have delivered to Seller the documents
set forth in Section 5.1(b) above.
(c) Buyer's warranties and representations shall be
true and correct in all material respects as at
the time of Closing.
6.2 CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. The following
conditions are conditions precedent to Buyer's obligation to purchase the
Seller's Interest, each of which may be waived in writing by Buyer in its sole
discretion:
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(a) Buyer shall have received from Seller the
documents set forth in Section 5.1(a) above.
(b) Seller's warranties and representations shall be
true and correct in all material respects as at
the time of Closing.
(c) Seller shall have performed all covenants,
agreements and conditions required by this
Agreement to be performed by Seller prior to or as
of the Closing Date.
7.3 CLOSING COSTS. Seller shall pay all costs, including stock transfer
stamps, relating to the transfer of the Shares to Buyer.
8. MISCELLANEOUS.
8.1 NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be sent by a recognized private courier
company, or by United States mail, registered or certified mail, postage
prepaid, return receipt requested, and addressed as follows:
If to Seller:
Westfield Corporation, Inc.
00000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Chief Financial Officer
If to Buyer:
Westfield American Investments Pty. Limited
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx 0000
Attention: Company Secretary
or such other address as a party may from time to time specify in writing to the
others in the manner aforesaid. Notices delivered by telecopier shall be deemed
delivered upon confirmation of receipt by recipient. All other notices shall be
deemed delivered upon delivery or refusal to accept delivery as indicated in the
U.S. Postal Service return receipt or similar advice from the courier company.
Buyer and Seller shall each have the right to change the
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address to which notices, demands, requests, or other communications hereunder
shall be given to the other parties by notice of such change to the other party
as set forth herein.
8.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors, heirs, administrators and assigns.
8.3 AMENDMENTS. This Agreement may be amended or modified only
by a written instrument executed by the party asserted to be bound thereby.
8.4 INTERPRETATION. Words used in the singular number shall
include the plural, and vice-versa, and any gender shall be deemed to include
each other gender. The captions and headings of the Sections of this Agreement
are for convenience of reference only, and shall not be deemed to define or
limit the provisions hereof.
8.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
8.6 NO WAIVER. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the party making the
waiver.
8.7 AGREEMENT NOT TO BENEFIT THIRD PARTIES. This Agreement is
made for the sole benefit of Seller and Buyer and no other person shall be
deemed to have any privity of contract under this Agreement nor any right to
rely on this Agreement to any extent for any purpose whatsoever, nor have any
right of action of any kind on this Agreement nor be deemed to be a third party
beneficiary under this Agreement.
8.8 COUNTERPART EXECUTION. This Agreement and any amendments
to this Agreement may be executed in counterparts, each of which shall be fully
effective and all of which together shall constitute one and the same
instrument.
8.9 FURTHER ACTS. In addition to the actions set forth in this
Agreement to be taken by the parties, the parties agree to take or cause to be
taken all such further actions as may be reasonably necessary to consummate this
transaction which is the subject of this Agreement.
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8.10 EXHIBITS. All references to Exhibits contained herein are
references to the Exhibits attached hereto, all of which are made a part hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written, and at the times specified below.
Seller:
WESTFIELD CORPORATION, INC.
a Delaware corporation
Executed on December 18, 1997 By: /s/ Xxxxx Xxxx
at ______ p.m. (pst) ---------------------------
Name: Xxxxx X. Xxxx
Title:
Buyer:
WESTFIELD AMERICAN
INVESTMENTS PTY. LIMITED, an
Australian corporation
Executed on December 18, 1997 By: /s/ Xxxxx Xxxx
at ______ p.m. (pst) ---------------------------
Name: Xxxxx Xxxx
Title: Attorney-in-Fact
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EXHIBIT A
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee (Buyer) of
a U.S. real property interest must withhold tax if the transferor (Seller) is a
foreign person. To inform the transferee (Buyer) that withholding of tax is not
required upon the disposition of a U.S. real property interest by Westfield
Corporation, Inc., a Delaware corporation ("Seller"), the undersigned hereby
swears, affirms, and certifies the following on behalf of the Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the Internal Revenue Code and
Income Tax Regulations); and
2. Seller's U.S. employer I.D. number is 00-0000000; and
3. Seller's address is: 00000 Xxxxxxxx Xxxx., Xxx Xxxxxxx, XX 00000.
Seller understands that this certification may be disclosed to the Internal
Revenue Service by the transferee (Buyer) and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have the authority to sign this document on behalf of
Seller.
Executed as of the __ day of December, 1997.
WESTFIELD CORPORATION, INC.,
a Delaware corporation
By:____________________________
Name:
Title:
