EX-99.(A)(5)(HH) 9 a2105006zex-99_a5hh.txt EXHIBIT 99(A)(5)(HH) EXHIBIT (a)(5)(HH) A1030 US DISTRICT COURT - MICHIGAN FINAL G. WILLIAM MILLER SIMON PROPERTY v. TAUBMAN CENTERS JANUARY 22, 2003 Page 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN -------------------------------------------------------------------------------- SIMON PROPERTY GROUP INC,. and SIMON PROPERTY ACQUISITIONS INC., Plaintiffs, v. TAUBMAN CENTERS INC., A. ALFRED TAUBMAN, ROBERT T. TAUBMAN, LISA A. PAYNE, GRAHAM T. ALLISON, PETER KARMANOS JR., WILLIAM S. TAUBMAN, ALLAN J. BLOOSTEIN, JEROME A. CHAZEN, and S. PARKER GILBERT, Defendants. Civil Action No. 02-74799 -------------------------------------------------------------------------------- DEPOSITION OF: G. William Miller Pages 1 through 270 DATE: January 22, 2003 TAKEN BY: Jonathan Moses, Esquire LOCATION: New York, New York REPORTER: Nancy Mahoney, CSR, RPR FINAL COPY, SIGNED 1 -23-03, NANCY MAHONEY JANE ROSE REPORTING 1-800-825-3341 JANE ROSE REPORTING 1-800-825-3341 NEW YORK, NEW YORK www.janerose.net A1031 US DISTRICT COURT - MICHIGAN FINAL G. WILLIAM MILLER SIMON PROPERTY v. TAUBMAN CENTERS JANUARY 22, 2003 Page 2 ATTORNEYS FOR PLAINTIFFS: Richard Posen, Esquire Rachel Fremmer, Esq. WILLKIE FARR & GALLAGHER 787 Seventh Avenue New York, New York 10019 PHONE: 212-728-8000 ATTORNEYS FOR DEFENDANTS: Allan A. Martin, Esquire Jonathan Moses, Esquire WACHTELL LIPTON ROSEN & KATZ 51 West 52nd Street New York, New York 10019 PHONE: 212-403-1000 ATTORNEYS FOR LIONEL GLANCY and SHAREHOLDER PLAINTIFFS IN RELATED ACTIONS: Carlos F. Ramirez, Esquire MILBERG WEISS BERSHAD HYNES & LERACH LLP One Pennsylvania Plaza New York, New York 10119-0165 PHONE: 212-594-5300 JANE ROSE REPORTING 1-800-825-3341 NEW YORK, NEW YORK www.janerose.net A1032 US DISTRICT COURT - MICHIGAN FINAL G. WILLIAM MILLER SIMON PROPERTY v. TAUBMAN CENTERS JANUARY 22, 2003 Page 3 COURT REPORTER: Nancy Mahoney, CSR, RPR New Jersey CSR XI00945 Notary Public New York/New Jersey JANE ROSE REPORTING 37 West 16th Street New York, New york 10011 ADMINISTRATIVE OFFICES 1697 260th Avenue Luck, Wisconsin 54853 TELEPHONE: 800-825-3341 VIDEOGRAPHER: Fred Pflantzer, Legal Videographer JANE ROSE REPORTING 37 West 16th Street New York, New York 10011 ADMINISTRATIVE OFFICES 1697 260th Avenue Luck, Wisconsin 54853 TELEPHONE: 800-825-3341 JANE ROSE REPORTING 1-800-825-3341 NEW YORK, NEW YORK www.janerose.net A1033 US DISTRICT COURT - MICHIGAN FINAL G. WILLIAM MILLER SIMON PROPERTY v. TAUBMAN CENTERS JANUARY 22, 2003 Page 169 attention that the shareholders, pursuant to a proxy statement, had authorized the board of Taubman -- that the shareholders of Taubman had authorized the board of Taubman to issue preferred stock without seeking further shareholder approval? A. No. MR. POSEN: That was asked and answered, by the way. MR. MOSES: Excuse me? MR. POSEN: That was the same question as two questions ago. [BEGINNING OF EXCERPT] BY MR. MOSES: Q. Let me show you a document which was previously marked as Defendants' Exhibit-18. MR. MOSES: Mr. Posen, would you care to show the witness? A. 18? Q. Yes, sir. If you could turn -- do you recognize this document to be in the form of a proxy statement sent to shareholders of Taubman? A. It says it's a proxy statement. JANE ROSE REPORTING 1-800-825-3341 NEW YORK, NEW YORK www.janerose.net A1034 US DISTRICT COURT - MICHIGAN FINAL G. WILLIAM MILLER SIMON PROPERTY v. TAUBMAN CENTERS JANUARY 22, 2003 Page 170 Q. I'm correct -- am I correct in assuming, based on your prior answer, that you've never seen this document before? A. I've never seen it. Q. If you could look at Page 18 of this document, there's a discussion about an amendment to the Articles of Incorporation. A. Yes. Q. If you could read through that discussion beginning on 18 and going over to 19, it seeks the approval of the shareholders to authorize 50 million shares of preferred stock and allow the board of directors to issue preferred stock from time to time in one or more series having the relative rights, preferences and priorities as determined by the board," and it goes on to say that, "The board would have that authority" -- this is on Page 19 -- "without seeking further shareholder approval and if the proposed articles are approved, the board of directors anticipates that it will not seek further shareholder approval prior to authorizing the company to issue preferred stock." A. I see that. JANE ROSE REPORTING 1-800-825-3341 NEW YORK, NEW YORK www.janerose.net A1035 US DISTRICT COURT - MICHIGAN FINAL G. WILLIAM MILLER SIMON PROPERTY v. TAUBMAN CENTERS JANUARY 22, 2003 Page 171 Q. Did anyone bring that to your attention? A. I don't believe so. Q. Do you think that would be important information to know before making an allegation that preferred stock was surreptitiously issued? A. No. This is typical, what I call blank stock and some people refer to as bucket stock, preferred stock, quite often in most charters. The issue to me has never been whether there was blank stock and whether the board could issue it without approval. The issue, as I understand, that when a board has such authority, if it issues the stock in violation of another law, that's not authorized. Q. Would it surprise you -- based on your answer I presume it would not, but I'll ask it. Would it surprise you that SPG's board has the authority, without seeking further shareholder approval, to issue preferred shares? JANE ROSE REPORTING 1-800-825-3341 NEW YORK, NEW YORK www.janerose.net A1036 US DISTRICT COURT - MICHIGAN FINAL G. WILLIAM MILLER SIMON PROPERTY v. TAUBMAN CENTERS JANUARY 22, 2003 Page 172 A. We have blank stock. Q. In fact, if you could look at Defendants' Exhibit-1, which is the annual report -- MR. MOSES: Mr. Posen, if you wouldn't mind placing that before the witness. Q. There's a description on Page 66, if you could turn to that, sir, discussing the capital stock of SPG, do you see that, at item 10? A. Yes, I do. Q. Is that consistent with your understanding that the board of directors has the power to issue capital stock without any further vote or action by the shareholders? A. Provided it's legal to do so, provided they're not violating some other law. [END OF EXCERPT] Q. Do you understand that it could do so in order to make it more difficult for a third party to acquire or discourage a third party from acquiring a majority of the outstanding voting stock of the companies? A. The poison pill? Q. Do you understand that your board is authorized to do so? JANE ROSE REPORTING 1-800-825-3341 NEW YORK, NEW YORK www.janerose.net