-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EVZl+a5Dr0HI0Umuqld6roRO+70EYM4gTnZSwvLdfSjKOljWU/vyp+lCC3CQy11+ 5AsnUy1RjE7q4LRgHlCJLw== 0000910612-09-000035.txt : 20090908 0000910612-09-000035.hdr.sgml : 20090907 20090908115052 ACCESSION NUMBER: 0000910612-09-000035 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20090908 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20090908 DATE AS OF CHANGE: 20090908 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CBL & ASSOCIATES PROPERTIES INC CENTRAL INDEX KEY: 0000910612 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 621545718 STATE OF INCORPORATION: DE FISCAL YEAR END: 1207 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12494 FILM NUMBER: 091057463 BUSINESS ADDRESS: STREET 1: 2030 HAMILTON PLACE BVLD, SUITE 500 STREET 2: CBL CENTER CITY: CHATTANOOGA STATE: TN ZIP: 37421 BUSINESS PHONE: 4238550001 MAIL ADDRESS: STREET 1: 2030 HAMILTON PLACE BVLD, SUITE 500 STREET 2: CBL CENTER CITY: CHATTANOOGA STATE: TN ZIP: 37421 8-K 1 form_8-kwaiverletter.htm FORM 8-K WAIVER LETTER

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

 

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES AND EXCHANGE ACT OF 1934

 

Date of report (Date of earliest event reported): September 3, 2009

 

CBL & ASSOCIATES PROPERTIES, INC.

 

(Exact Name of Registrant as Specified in its Charter)

 

Delaware

 

1-12494

 

62-1545718

(State or Other Jurisdiction of

Incorporation)

 

(Commission File Number)

 

(I.R.S. Employer Identification No.)

 

 

 

 

 

Suite 500, 2030 Hamilton Place Blvd, Chattanooga, TN 37421

(Address of principal executive office, including zip code)

 

 

 

 

 

(423) 855-0001

(Registrant’s telephone number, including area code)

 

 

 

 

 

N/A

(Former name, former address and former fiscal year, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

[ ]

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

[ ]

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

[ ]

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

[ ]

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

CHD-522938-1

Item 1.01

Entry Into a Material Definitive Agreement.

 

In connection with its recent Common Stock offering in June 2009, CBL & Associates Properties, Inc. (the “Company”) entered into an Underwriting Agreement with the underwriters named therein, for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC (f/k/a Wachovia Capital Markets, LLC) acted as representatives, pursuant to which the Company agreed, among other things to use its best efforts to increase the total number of authorized shares of Common Stock to one billion shares as soon as practicable. The Company has received feedback from a number of major shareholders indicating that they would be more comfortable supporting the proposed amendment at a reduced amount. Therefore, the Company’s Board of Directors has determined to reduce the requested number of common shares to 350,000,000. The underwriters have accepted the reduction in the requested increase and, pursuant to a Waiver Letter executed with reference to the original Underwriting Agreement which is dated September 3, 2009 and filed as Exhibit 1.2 to this Report, have agreed to waive the original requirement in the Underwriting Agreement.

 

Item 9.01

Financial Statements and Exhibits

 

(a)

Financial Statements of Businesses Acquired

 

Not applicable

 

(b)

Pro Forma Financial Information

 

Not applicable

 

(c)

Exhibits

 

Exhibit

Number

 

Description

 

1.1

 

Underwriting Agreement, dated June 9, 2009, by and among CBL & Associates Properties, Inc. and CBL & Associates Limited Partnership and the underwriters named therein, for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wachovia Capital Markets, LLC acted as representatives. Incorporated by reference to Exhibit 1 to the Company’s Current Report on Form 8-K dated June 9, 2009 and filed with the SEC June 10, 2009 (SEC File No. 1-12494).

 

 

1.2

 

Waiver Letter, dated September 3, 2009, executed with reference to Underwriting Agreement dated June 9, 2009, by and among CBL & Associates Properties, Inc. and CBL & Associates Limited Partnership and the underwriters named therein, for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC (f/k/a Wachovia Capital Markets, LLC) acted as representatives. Filed herewith.

 

 

CHD-522938-1

SIGNATURE

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized

 

CBL & ASSOCIATES PROPERTIES, INC.

 

 

/s/ John N. Foy

John N. Foy

Vice Chairman,

Chief Financial Officer and Treasurer

 

 

 

 

Date: September 8, 2009

 

 

 

 

 

 

 EX-99 2 exhibit12.htm EXHIBIT 1.2 WAIVER LETTER

Exhibit 1.2

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

One Bryant Park

New York, New York 10036

 

Wells Fargo Securities, LLC

375 Park Avenue

New York, New York 10152

 

 

 

September 3, 2009

CBL & Associates Properties, Inc.

CBL & Associates Limited Partnership

2030 Hamilton Place Blvd., Suite 500

Chattanooga, Tennessee

Ladies and Gentlemen:

We hereby make reference to the Underwriting Agreement, dated June 9, 2009 (the “Underwriting Agreement”) by and among CBL & Associates Properties, Inc., a Delaware corporation (the “Company”), CBL & Associates Limited Partnership, a Delaware limited partnership (the “Operating Partnership”), and the several underwriters named in Schedule A thereto (the “Underwriters”), for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC (f/k/a Wachovia Capital Markets, LLC) acted as representatives.

Pursuant to Section 3(m) of the Underwriting Agreement, the Company covenanted with the Underwriters to use its best efforts to authorize not less than one billion additional shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”) as soon as practicable after the date of the Underwriting Agreement.

You have represented to us that: (i) the Company has provided notice of a Special Meeting of Stockholders to be held on September 21, 2009 (the “Special Meeting”) to, among other things, act upon a proposal to approve an amendment to the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) to increase the number of authorized shares of the Company’s Common Stock from 180,000,000 to 1,000,000,000 shares (the “Proposal”); (ii) under applicable Delaware law and the provisions of the Certificate of Incorporation, increasing the Company’s authorized Common Stock requires the approval of holders of a majority of the Company’s issued and outstanding Common Stock; (iii) because (A) the proxy advisory firm, Glass Lewis & Co., has issued its report recommending a vote against the Proposal, primarily due to the size of the requested increase, (B) the Company's largest shareholder, representing approximately 13% of the outstanding Common Stock, has advised the Company of its intention to vote against the Proposal, and (C) shareholders representing an estimated 26% of the outstanding Common Stock have indicated concerns regarding the size of the Proposal or have indicated that the Proposal involves a larger increase than is approved under their normal guidelines, the Company believes that it is unlikely that they will be able to obtain the requisite approval to increase the number of authorized shares of the Company’s Common Stock to 1,000,000,000 shares at the Special Meeting; and (iv) the Company believes that it is

 

CHD-522943-1

reasonably likely that it could obtain the requisite approval to increase the number of authorized shares of the Company’s Common Stock to not less than 325,000,000 shares.

Based on the foregoing representations, the Underwriters hereby waive the covenant contained in Section 3(m) of the Underwriting Agreement, provided that the Company promptly uses its best efforts to cause the Company to have authorized not less than 325,000,000 shares of Common Stock as soon as practicable after the date of the date hereof.

Very truly yours,

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

By:         /s/    Jack Vissicchio     

Name:  Jack Vissicchio

Title:    Managing Director

Wells Fargo Securities, LLC

By:           /s/ Michael W. Cummings  

Name:   Michael W. Cummings

Title:     Managing Director

For themselves and as Representatives of the several Underwriters named in Schedule A to the Underwriting Agreement.

Confirmed and Accepted

as of the date first above written

CCBL & ASSOCIATES PROPERTIES, INC.

By:     /s/ John N. Foy               

Name:     John N. Foy
Title:      Vice Chairman of the Board

          and Chief Financial Officer

 

CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc., its general partner

By:     /s/ John N. Foy               

Name:     John N. Foy
Title:      Vice Chairman of the Board
          and Chief Financial Officer

 

 

2

 

 

 

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