Exhibit 99(d)(1)
CONFIDENTIALITY AND STANDSTILL AGREEMENT
July 6, 0000
XXXXXXX XXX XXXXXXXXXXXX
Xxxxxxx Xxxxx Xxxxxxx N.V.
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Ladies and Gentlemen:
In connection with your consideration of a possible transaction (a
"Transaction") with Urban Shopping Centers, Inc. (collectively with its
subsidiaries and affiliates, the "Company"), the Company is prepared to make
available to you certain information concerning the business, financial
condition, operations, assets and liabilities of the Company. As a condition
to such information being furnished to you, you agree to treat such
information in accordance with the provisions of this letter agreement and to
take or abstain from taking certain other actions hereinafter set forth.
1. DEFINITION OF EVALUATION MATERIAL. The term "Evaluation Material"
means all information concerning the Company (whether prepared by the
Company, its advisors or otherwise and irrespective of the form of
communication) that is furnished to you or to your Representatives now or in
the future by or on behalf of the Company. "Evaluation Material" also shall
be deemed to include all notes, analyses, compilations, studies,
interpretations or other documents prepared by you or your Representatives
which contain, reflect or are based upon, in whole or in part, the
information furnished to you or your Representatives (as defined below)
pursuant hereto. The term "Evaluation Material" does not include information
which (i) is or becomes generally available to the public other than as a
result of a disclosure by you or your Representatives, (ii) was within your
possession prior to its being furnished to you by or on behalf of the
Company, provided that the source of such information is not known by you to
be bound by a confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to the Company or any other party
with respect to such information or (iii) becomes available to you on a
non-confidential basis from a source other than the Company or any of its
representatives, provided that such source is not known by you to be bound by
a confidentiality agreement with, or other contractual, legal or fiduciary
obligation of confidentiality to, the Company or any other party with respect
to such information.
Rodamco North America N.V.
July 6, 2000
Page 2
2. USE OF EVALUATION MATERIAL AND CONFIDENTIALITY.
(a) You hereby agree that the Evaluation Material will be used for the
sole purpose of evaluating a Transaction. Further, you agree that any of
such Evaluation Material may be disclosed or made available only to such of
your directors, officers, employees, affiliates (including, without
limitation, Hexalon Real Estate, Inc.), agents or advisors (including,
without limitation, attorneys, accountants, consultants, bankers and other
prospective financing sources and financial advisors) (collectively, the
"Representatives") who need to know such information for the sole purpose of
evaluating a Transaction; provided, however, that such Representatives, prior
to receipt of any Evaluation Material, shall be informed by you of (a) the
confidential nature of such information and (b) the terms of this agreement
and the obligations of confidentiality undertaken by you under this
agreement, and shall confirm to you in writing their acknowledgment of the
confidentiality obligations under this Agreement. You agree to maintain a
list (which shall be provided to the Company upon request) of those
Representatives to whom Evaluation Material has been disclosed or made
available. In any event, you shall be responsible for any breach of this
letter agreement by any of your Representatives and you agree, at your sole
expense, to take all reasonable measures to restrain your Representatives
from prohibited or unauthorized disclosure or use of the Evaluation Material.
You hereby agree that you and your Representatives shall use the Evaluation
Material solely for the purpose of evaluating a Transaction, that the
Evaluation Material will be kept confidential and that you and your
Representatives will not disclose any of the Evaluation Material in any
manner whatsoever except as permitted by this agreement, provided, however,
that you may make (i) any disclosure of such information to which the Company
gives its prior written consent (but only to the extent of the information
explicitly provided by any such consent) and (ii) any disclosure required by
applicable law or legal proceedings, subject to compliance with this
agreement.
(b) The Evaluation Material may contain material information about the
Company that has not been disclosed to the public generally. You understand
that you and your Representatives could be subject to fines, penalties and
other liabilities under applicable securities laws if you or your
Representatives trade in the Company's Common Shares while in possession of
any material, non-public information that may be contained in the Evaluation
Material.
(c) You agree that, without the prior written consent of the Company,
you and your Representatives will not disclose to any other person the fact
that the Evaluation Material has been made available to you, the fact that
discussions or negotiations are taking place concerning a possible
transaction involving the Company or any of the terms, conditions or other
matters then being discussed with respect thereto (including the status
thereof), provided that you may make such disclosure as required by law,
legal proceedings or the rules of the Amsterdam Stock
Rodamco North America N.V.
July 6, 2000
Page 3
Exchange or other securities market by which you are bound (in which event
you will consult with, and exercise good faith reasonable efforts to mutually
agree with, the Company regarding the nature, extent and form of such
disclosure prior to making any such disclosure, except to the extent there is
a reasonable likelihood that the making of such efforts may cause you to
stand liable for contempt or suffer other censure or penalty, in which case
you may make such disclosure to such extent). Without limiting the
generality of the foregoing, you further agree that, without the prior
written consent of the Company, you will not, directly or indirectly, enter
into any agreement, arrangement or understanding, or any discussions which
might lead to any such agreement, arrangement or understanding, or share any
Evaluation Material, with any person who might participate as a joint
venturer, partner or lender in any transactions involving the Company unless
such person has executed a confidentiality agreement in a form substantially
identical to this letter agreement. The term "person" as used in this letter
agreement shall be broadly interpreted to include the media and any
corporation, partnership, group, individual or other entity.
(d) In the event that you or any of your Representatives are requested
or required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Evaluation Material, you shall
provide the Company with prompt written notice of any such request or
requirement so that the Company may seek a protective order or other
appropriate remedy. If, in the absence of a protective order or other remedy
or the receipt of a waiver by the Company, you or any of your Representatives
are nonetheless legally compelled to disclose Evaluation Material to any
tribunal or else stand liable for contempt or suffer other censure or
penalty, you or your Representatives may, without liability hereunder,
disclose such Evaluation Material to such tribunal only that portion of the
Evaluation Material which such counsel advises you is legally required to be
disclosed, provided that you exercise your reasonable best efforts to
preserve the confidentiality of the Evaluation Material, including, without
limitation, by reasonably cooperating with the Company to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Evaluation Material by such tribunal.
(e) If you decide that you do not wish to proceed with a Transaction,
you will promptly inform the Company of that decision. In that case, upon
the request of the Company, you will promptly deliver to the Company all
Evaluation Material (and all copies thereof) furnished to you or your
Representatives by or on behalf of the Company pursuant hereto. In the event
of such a decision or request, all other Evaluation Material furnished to you
or your Representatives and any other written materials containing or
reflecting any information in the Evaluation Material shall be destroyed and
no copy thereof shall be retained. Notwithstanding the foregoing provisions,
you shall not be required to deliver to the Company the materials which you
generate internally including, but not limited to, financial analyses
prepared for your management and reports made to your board of directors,
provided that such materials shall be
Rodamco North America N.V.
July 6, 2000
Page 4
held by you and kept subject to the terms of this agreement or destroyed.
Notwithstanding the return or destruction of the Evaluation Material, you and
your Representatives will continue to be bound by your obligations of
confidentiality and other obligations hereunder.
3. ACCURACY OF EVALUATION MATERIAL. You understand and acknowledge that
neither the Company nor any of its representatives (including without
limitation any of the Company's directors, officers, employees, or agents)
makes any representation or warranty, express or implied, as to the accuracy
or completeness of the Evaluation Material. You agree that neither the
Company nor any of its representatives (including without limitation any of
the Company's directors, officers, employees, or agents) shall have any
liability to you or to any of your Representatives relating to or resulting
from the use of the Evaluation Material or any errors therein or omissions
therefrom. Only those representations or warranties which are made in a
final definitive agreement regarding any Transaction, when, as and if
executed, and subject to such limitations and restrictions as may be
specified therein, will have any legal effect.
4. REMEDIES. It is understood and agreed that money damages would not
be a sufficient remedy for any breach of this letter agreement by you or any
of your Representatives and that the Company shall be entitled to equitable
relief, including injunctions and specific performance, as a remedy for any
such breach. Such remedies shall not be deemed to be the exclusive remedies
for a breach by you of this letter agreement but shall be in addition to all
other remedies available at law or equity to the Company. In the event of
litigation relating to this letter agreement between the Company and you, the
losing party shall be liable for and pay to the prevailing party the
reasonable legal fees incurred by the prevailing party in connection with
such litigation, including any appeal therefrom.
5. WAIVERS AND AMENDMENTS. No failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other
or future exercise thereof or the exercise of any other right, power or
privilege hereunder. This letter agreement may only be amended with the
written consent of you and the Company.
6. STANDSTILL. You agree that, for a period of eighteen (18) months
after the date on which the Company and you have terminated discussions
concerning a Transaction, unless such shall have been specifically invited in
writing by the Board of Directors of the Company, neither you nor any of your
affiliates (as such term is defined under the Securities Exchange Act of
1934, as amended (the "1934 Act")) will in any manner, directly or
indirectly, (a) effect or seek, offer or propose (whether publicly or
otherwise) to effect, or cause or participate in or in any way assist any
other person to effect or seek, offer or propose (whether publicly or
otherwise) to effect or participate in, (i) any acquisition of any securities
(or beneficial ownership thereof) or assets of the Company (except for
publicly traded securities of the Company not to exceed in the
Rodamco North America N.V.
July 6, 2000
Page 5
aggregate 1% of the outstanding securities of that class at the time of
acquisition); (ii) any tender or exchange offer, merger or other business
combination involving the Company; (iii) any recapitalization, restructuring,
liquidation, dissolution or other extraordinary transaction with respect to
the Company; or (iv) any "solicitation" of "proxies" (as such terms are used
in the proxy rules of the Securities and Exchange Commission) or consents to
vote any voting securities of the Company; (b) form, join or in any way
participate in a "group" (as defined under the 0000 Xxx) or otherwise act,
alone or in concert with others, to seek to control or influence the
management, Board of Directors or policies of the Company; (c) take any
action which might force the Company to make a public announcement regarding
any of the types of matters set forth in (a) above; or (d) enter into any
discussions or arrangements with any third party with respect to any of the
foregoing. You also agree during such period not to request the Company (or
its directors, officers, employees or agents), directly or indirectly, to
amend or waive any provision of this paragraph (including this sentence).
Notwithstanding the foregoing provisions of this Section 6, in the event you
and the Company, or the Company and any third party, have entered into a
definitive agreement for the acquisition of all or substantially all of the
Company's assets or securities, business combinations, mergers, tender
offers, exchange offers or similar transactions ("Extraordinary
Transactions"), then, without invitation or approval of the Board of
Directors of the Company, Rodamco North America N.V. may present a proposal
to the Board of Directors as a whole (but not separately to individual
Directors) to amend any provision of this Agreement or to effect an
Extraordinary Transaction.
Nothing in this agreement shall prevent any of your business divisions
or your affiliates (including investment advisors of you or any
Representative that might otherwise be deemed to be your affiliate) from
purchasing or selling securities or assets of the Company in the ordinary
course of business transactions provided that such business divisions or
affiliates and the personnel that effect or cause such purchase or sale do
not have knowledge of, or access to, any Evaluation Material and are unaware
of this existence of this agreement.
7. EFFECT OF AGREEMENT. Neither the Company nor you nor any of your
affiliates are under any legal obligation of any kind whatsoever with respect
to conducting negotiations relating to or consummating a Transaction by
virtue of this letter agreement. We each understand and agree that no
contract or agreement providing for a transaction with the Company or its
stockholders shall be deemed to exist between you and the Company unless and
until you and the Company execute and deliver a definitive agreement (a
"Transaction Agreement"). We each also agree that unless and until a
Transaction Agreement between the Company and you has been executed and
delivered, there is no legal obligation of any kind whatsoever with respect
to any such transaction by virtue of this agreement or any other written or
oral expression with respect to any such transaction except, in the case of
this agreement, for the matters specifically agreed to herein. The Company
reserves the right, in its sole discretion, to reject any and all proposals
made by you with regard to a Transaction and, subject to the provisions of
this
Rodamco North America N.V.
July 6, 2000
Page 6
agreement, to engage in discussions and negotiations, and to enter into
a definitive agreement, with regard to any other transaction, with any other
person at any time and without notice to you and to terminate discussions and
negotiations with you at any time.
You further agree that, except as provided in a definitive agreement
relating to a Transaction, from the date hereof and for a period ending
twelve months after the date on which the Company and you have terminated
discussions concerning a Transaction, you will not solicit (i.e., initiate
discussions with) for hire any of the present officers or present employees
of the Company (other than persons who no longer are officers or employees of
the Company at the time discussions are initiated) with whom you or any of
your representatives has had contact during the period of your investigation
contemplated herein; provided that you may make use of advertisements for job
openings in publications and may use independent employment agencies or
search firms provided that such employment agencies or search firms are not
directed to solicit the employment of any such person, and such employment
agency and search firm and you may respond to inquiries from such persons.
8. MISCELLANEOUS. This agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois without regard to any
conflicts of law principles thereof. You hereby irrevocably and
unconditionally consent to submit to the jurisdiction of the courts of the
State of Illinois and of the United States of America located in Illinois for
any actions, suits or proceedings arising out of or relating to this
agreement and the transactions contemplated hereby, and you further agree
that service of any process, summons, notice or document by U.S. registered
mail to your address set forth above shall be effective service of process
for any action, suit or proceeding brought against you in any such court.
You hereby irrevocably and unconditionally waive any objection to the laying
of venue of any action, suit or proceeding arising out of this agreement or
the transactions contemplated hereby, in the courts of the State of Illinois
or the United States of America located in Illinois, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum. This agreement may be executed in
counterparts. This agreement shall remain in effect for two (2) years from
the date first above written, unless sooner terminated by mutual written
agreement of the parties.
Rodamco North America N.V.
July 6, 2000
Page 7
Please confirm your agreement with the foregoing by signing and
returning one copy of this letter to the undersigned, whereupon this letter
agreement shall become a binding agreement between you and the Company.
Very truly yours,
URBAN SHOPPING CENTERS, INC.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Accepted and agreed as of the date
first written above.
RODAMCO NORTH AMERICA N.V.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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