UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13E-3

(Amendment No. 1)

 

RULE 13e-3 TRANSACTION STATEMENT UNDER SECTION 13(e)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

Brookfield Property Partners L.P.

(Name of the Issuer)

 

Brookfield Property Partners L.P.

Brookfield Asset Management Inc.

BPY Arrangement Corporation

(Name of Persons Filing Statement)

 

Limited Partnership Units

(Title of Class of Securities)

 

G16249107

(CUSIP Number of Class of Securities)

 

Bryan K. Davis
Brookfield Property Partners L.P.
73 Front Street, 5th Floor
Hamilton, HM 12, Bermuda
Telephone: (441) 294-3309
 

Justin B. Beber
Brookfield Asset Management Inc.
BPY Arrangement Corporation
Brookfield Place
181 Bay Street, Suite 300
Toronto, Ontario M5J 2T3

Telephone: (416) 363-9491

(Name, Address, and Telephone Numbers of Persons Authorized to Receive Notices
and Communications on Behalf of Persons Filing Statement)

 

Copies to:

 

Mile T. Kurta
Torys LLP
1114 Avenue of the Americas, 23rd Fl.
New York, New York 10036
(212) 880-6000

 

Karrin Powys-Lybbe
Torys LLP
79 Wellington St. W.
30th Fl.
Toronto, ON M5K 1N2
(416) 865-0400

Mark Gerstein
Julian Kleindorfer

Latham & Watkins LLP

885 Third Avenue
New York, New York 10022
(212) 906-1200

Sheldon Freeman Michelle Vigod
Goodmans LLP
Bay Adelaide Centre –
West Tower
333 Bay Street, Suite 3400
Toronto, ON M5H 2S7
(416) 979-2211
Mark S. Opper
David H. Roberts
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
(617) 570-1000

 

 

 

This statement is filed in connection with (check the appropriate box):

 

  a. o   The filing of solicitation materials or an information statement subject to Regulation 14A (§§240.14a-1 through 240.14b-2), Regulation 14C (§§240.14c-1 through 240.14c-101) or Rule 13e-3(c) (§240.13e-3(c)) under the Securities Exchange Act of 1934 (the “Act”).

  b. x   The filing of a registration statement under the Securities Act of 1933.
  c. o   A tender offer.
  d. o   None of the above.

 

Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: o

 

Check the following box if the filing is a final amendment reporting the results of the transaction: o

 

Calculation of Filing Fee

 

Transaction Valuation*   Amount of Filing Fee**
$6,224,601,119.16   $679,103.98

 

 

 

* Calculated solely for purposes of determining the filing fee. The transaction value was calculated based on the market value of limited partnership units of Brookfield Property Partners L.P. (“BPY Units”) (the securities to be acquired as described in this Transaction Statement on Schedule 13E-3) in accordance with Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, as follows: the sum of (i) the product of (w) $17.76, the average of the high and low prices per BPY Unit on April 20, 2021 as quoted on the Nasdaq Stock Market, multiplied by (x) 289,587,416 BPY Units and (ii) the product of (y) $18.50, the average of the high and low prices per BPY Unit on May 24, 2021 as quoted on the Nasdaq Stock Market, multiplied by (z) 58,461,006 BPY Units. The aforementioned estimated number of BPY Units relates to the number of BPY Units (which includes BPY Units underlying certain equity awards of BPY and certain outstanding exchangeable securities) to be acquired by the Purchaser Parties (as defined below) pursuant to the transaction in this Transaction Statement on Schedule 13E-3.

 

** Determined in accordance with Rule 0-11 under the Exchange Act at a rate equal to $109.10 per $1,000,000 of transaction value.

 

x Check the box if any part of the fee is offset as provided by §240.0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

 

Amount Previously Paid: $40,775.00*

Form or Registration No.: Registration Statement on Form F-4

Filing Party: Brookfield Asset Management Inc., Brookfield Property Preferred L.P., Brookfield Property Partners L.P., Brookfield Property L.P., Brookfield BPY Holdings Inc., Brookfield BPY Retail Holdings II Inc., BPY Bermuda Holdings Limited, BPY Bermuda Holdings II Limited, BPY Bermuda Holdings IV Limited, BPY Bermuda Holdings V Limited and BPY Bermuda Holdings VI Limited

Date Filed: May 27, 2021

 

Amount Previously Paid: $279,026.47*

Form or Registration No.: Registration Statement on Form F-4

Filing Party: Brookfield Asset Management Inc., Brookfield Property Preferred L.P., Brookfield Property Partners L.P., Brookfield Property L.P., Brookfield BPY Holdings Inc., Brookfield BPY Retail Holdings II Inc., BPY Bermuda Holdings Limited, BPY Bermuda Holdings II Limited, BPY Bermuda Holdings IV Limited, BPY Bermuda Holdings V Limited and BPY Bermuda Holdings VI Limited 

Date Filed: April 26, 2021

 

Amount Previously Paid: $282,103.61*

Form or Registration No.: Schedule 13E-3

Filing Party: Brookfield Property Partners L.P., Brookfield Asset Management Inc. and BPY Arrangement Corporation

Date Filed: April 26, 2021

 

*Represents filing fee associated with the acquisition of BPY Units (which includes BPY Units underlying certain equity awards of BPY and certain outstanding exchangeable securities) by the Purchaser Parties as described in this Transaction Statement on Schedule 13E-3.

 

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS: APPROVED OR DISAPPROVED OF THIS TRANSACTION; PASSED UPON THE MERITS OR FAIRNESS OF THIS TRANSACTION; OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS SCHEDULE 13E-3. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

 

 

 

 

 

INTRODUCTION

 

This Amendment No. 1 to the Rule 13e-3 Transaction Statement on Schedule 13E-3, together with the exhibits hereto (this “Schedule 13E-3”), is being filed with the Securities and Exchange Commission (the “SEC”) by Brookfield Asset Management Inc., a corporation organized under the laws of Ontario, Canada (“BAM”), BPY Arrangement Corporation, a corporation organized under the laws of Ontario (“Purchaser Sub” and together with BAM, the “Purchaser Parties”), and Brookfield Property Partners L.P., a Bermuda exempted limited partnership (“BPY” and together with the Purchaser Parties, the “Filing Persons”). Concurrently with the filing of this Schedule 13E-3, BAM, New LP (as defined below) and the Guarantors (as defined below) are filing with the SEC an Amendment No. 1 to its registration statement on Form F-4 (File Nos. 333-255512, 333-255512-01, 333-255512-02, 333-255512-03, 333-255512-04, 333-255512-05, 333-255512-06, 333-255512-07, 333-255512-08, 333-255512-09 and 333-255512-10) (the “Registration Statement”), which includes a circular/prospectus (the “circular/prospectus”), to register under the U.S. Securities Act of 1933, as amended, the BAM Shares, New LP Preferred Units and the related Guarantees (each as defined below).

 

On March 31, 2021, the Purchaser Parties and BPY entered into an Arrangement Agreement (the “Arrangement Agreement”), whereby the Purchaser Parties agreed to acquire, directly and indirectly, among other things, all of the issued and outstanding non-voting limited partnership units of BPY (the “BPY Units”) and exchangeable limited partnership units of Brookfield Office Properties Exchange LP (the “Exchange LP Units,” and together with the BPY Units, the “Units”). A copy of the Arrangement Agreement is attached hereto as Exhibit (d)(1) to this Schedule 13E-3.

 

Holders of BPY Units (“BPY Unitholders”) will be asked to consider at a special meeting of BPY Unitholders, pursuant to an interim order of the Ontario Superior Court of Justice (Commercial List) dated                         , 2021, as the same may be varied (the “Interim Order”), and, if deemed advisable, approve, with or without variation, a resolution of BPY Unitholders (the “Arrangement Resolution”) and an arrangement (the “Arrangement”) pursuant to section 182 of the Business Corporations Act (Ontario), as amended, being made pursuant to Arrangement Agreement.

 

BPY Unitholders will also be asked to consider and, if deemed advisable, approve, with or without variation, a resolution of BPY Unitholders to amend (the “BPY LPA Amendment” and together with the Arrangement and the transactions contemplated by the BPY LPA Amendment and the Arrangement, the “Transaction”) the second amended and restated limited partnership agreement dated August 8, 2013, as amended, of the Partnership to provide for the Arrangement and the grant of dissent rights to registered BPY Unitholders in connection with the Transaction (together with the Arrangement Resolution, the “Transaction Resolutions”). The full text of the Transaction Resolutions is attached as Appendix C to the circular/prospectus.

 

BPY Unitholders and holders of Exchange LP Units (collectively, “Unitholders”) will have the ability to elect to receive, per Unit, $18.17 in cash, 0.3979 of a class A limited voting share, no par value, of BAM (each, a “BAM Share”), or 0.7268 of a preferred unit to be issued by a subsidiary limited partnership of BPY, Brookfield Property Preferred LP (“New LP”), with a liquidation preference of $25.00 per unit (“New LP Preferred Unit”), in each case, subject to pro-ration as described in the circular/prospectus. The New LP Preferred Units will be guaranteed (the “Guarantees”) by BPY, Brookfield Property L.P., Brookfield BPY Holdings Inc., Brookfield BPY Retail Holdings II Inc., BPY Bermuda Holdings Limited, BPY Bermuda Holdings II Limited, BPY Bermuda Holdings IV Limited, BPY Bermuda Holdings V Limited and BPY Bermuda Holdings VI Limited (collectively, the “Guarantors”). If Unitholders collectively elect to receive in excess of $500 million in liquidation preference of New LP Preferred Units, the amount of New LP Preferred Units can increase to a maximum of $1.0 billion in liquidation preference, offset against the maximum amount of BAM Shares. The maximum amount of cash consideration would not be affected.

 

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A special meeting of BPY Unitholders (the “Meeting”) will be held virtually to consider the Transaction Resolutions. Pursuant to the amended and restated limited partnership agreement of BPY, the Interim Order, and the provisions of applicable Canadian securities laws, the requisite approval for the Transaction Resolutions will require the affirmative vote of: (i) the holders of at least a majority of the BPY Units represented in person or by proxy at the Meeting (the “Standard Approval Threshold”) and (ii) the holders of at least a majority of the BPY Units represented in person or by proxy at the Meeting, excluding (A) the votes of BPY Units held directly or indirectly by BAM and its subsidiaries (including BPY) and (B) other votes required to be excluded for the purposes of “minority approval” under applicable Canadian securities laws (the “Majority of the Minority Threshold”). BAM and its subsidiaries (including BPY) beneficially own BPY Units entitled to 33.6% of the votes that may be cast towards achieving the Standard Approval Threshold but such BPY Units will not be entitled to cast any votes towards achieving the Majority of the Minority Threshold. Additionally, the votes of Canadian Taxable Holders (as defined in the circular/prospectus), if any, would also be excluded for purposes of achieving the Majority of the Minority Threshold.

 

The cross-references below are being supplied pursuant to General Instruction G to Schedule 13E-3 and show the location in the circular/prospectus of the information required to be included in response to the items of Schedule 13E-3. Pursuant to General Instruction G to Schedule 13E-3, the information contained in the circular/prospectus, including all annexes and exhibits thereto, is incorporated by reference herein in its entirety, and the responses to each item in this Schedule 13E-3 are qualified in their entirety by the information contained in the circular/prospectus and the annexes and exhibits thereto. As of the date hereof, the circular/prospectus is in preliminary form and is subject to completion or amendment. Capitalized terms used but not defined in this Schedule 13E-3 shall have the meanings given to them in the circular/prospectus.

 

Under the SEC rules governing “going private” transactions, each of the Purchaser Parties may be deemed to be an affiliate of BPY and engaged in a “going private” transaction for purposes of Rule 13e-3 under the U.S. Securities Exchange Act of 1934, as amended. This filing is being made only in response to the SEC’s suggestion that certain of the Purchaser Parties may be “affiliates” within the meaning of Rule 13e-3. The filing of this Schedule 13E-3 is not intended to and does not express the view of any Purchaser Parties as to its legal relationships or its engagement in the Transaction.

 

Lazard Frères & Co. LLC has consented to the inclusion of its materials filed as Exhibits under Item 16 of this Schedule 13E-3.

 

Item 1. Summary Term Sheet.

 

The information set forth in the circular/prospectus under the caption “Questions and Answers on Voting” and “Summary” is incorporated herein by reference.

 

Item 2. Subject Company Information.

 

(a) Name and Address. The name of the subject company is Brookfield Property Partners L.P. The information set forth in the circular/prospectus under the caption “Information Concerning BPY” is incorporated herein by reference.

 

(b) Securities. The BPY Units are the subject class of equity securities. The information set forth in the circular/prospectus under the caption “Information Concerning BPY—Authorized and Outstanding Share Capital” is incorporated herein by reference.

 

(c) Trading Market and Price. The information set forth in the circular/prospectus under the caption “Information Concerning BPY—Price Range and Trading Volume” is incorporated herein by reference.

 

(d) Dividends. The information set forth in the circular/prospectus under the caption “Information Concerning BPY—Distributions and Distribution Policy” is incorporated herein by reference.

 

(e) Prior Public Offerings. None.

 

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(f) Prior Stock Purchases. The information set forth in the circular/prospectus under the captions “Information Concerning BPY—Previous Purchases and Sales” and “Information Concerning BPY—Other Distributions—Distributions of BPY Units in the Past 12 Months” is incorporated herein by reference.

 

Item 3. Identity and Background of Filing Person.

 

(a) Name and Address. Brookfield Property Partners L.P. is the subject company.

 

The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Summary”

 

· “Information Concerning BPY”

 

· “Information Concerning the Purchaser Parties”

 

(b) Business and Background of Entities. Not applicable.

 

(c) Business and Background of Natural Persons. The business and background of the directors and executive officers of BPY and Purchaser Parties is set forth on “Appendix J—Important Information Regarding BPY and the Purchaser Parties” to the circular/prospectus, which is incorporated herein by reference.

 

Item 4. Terms of the Transaction.

 

(a) Material Terms. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Summary—The Transaction”

 

· “Description of the Transaction”

 

· “Rights of Dissenting BPY Unitholders”

 

· “Arrangements, Agreements or Understandings; Other Benefits to Insiders, Affiliates and Associates”

 

· “Certain Canadian Federal Income Tax Considerations”

 

· “Certain United States Federal Income Tax Considerations”

 

· “Comparison of Rights of BPY Unitholders and BPYU Stockholders that become BAM Shareholders and/or New LP Preferred Unitholders”

 

(c) Different Terms. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Summary—The Transaction”

 

· “Description of the Transaction”

 

· “Rights of Dissenting BPY Unitholders”

 

· “Arrangements, Agreements or Understandings; Other Benefits to Insiders, Affiliates and Associates”

 

· “Special Factors—Interests of Certain Persons in the Transaction”

 

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· “Beneficial Ownership of and Trading in Securities”

 

(d) Appraisal Rights. The information set forth in the circular/prospectus under following captions is incorporated herein by reference:

 

· “Summary—The Transaction—Rights of Dissenting BPY Unitholders”

 

· “Special Factors—Dissent Rights; Rule 13e-3”

 

· “Rights of Dissenting BPY Unitholders”

 

· “Appendix D—BPY LPA Amendment”

 

(e) Provisions for Unaffiliated Security Holders. None.

 

(f) Eligibility for Listing or Trading. The information set forth in the circular/prospectus under following captions is incorporated herein by reference:

 

· “Summary—The Transaction—Listings”

 

· “Special Factors—The Purchaser Parties’ Plans for BPY After the Transaction; Certain Effects of the Transaction”

 

· “Description of the Transaction—Listings”

 

· “Information Concerning the Purchaser Parties”

 

Item 5. Past Contacts, Transactions, Negotiations and Agreements.

 

(a) Transactions. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Special Factors—Background to the Transaction”

 

· “Special Factors—Interests of Certain Persons in the Transaction”

 

· “Information Concerning BPY—Previous Purchases and Sales”

 

· “Information Concerning BPY—Other Distributions—Distributions of BPY Units in the Past 12 Months”

 

· “Arrangements, Agreements or Understandings; Other Benefits to Insiders, Affiliates and Associates”

 

· “Interest of Management and Others in Material Transactions”

 

(b) Significant Corporate Events. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Special Factors—Background to the Transaction”

 

· “Special Factors—Interests of Certain Persons in the Transaction”

 

· “Information Concerning BPY—Prior Offers”

 

· “Information Concerning BPY—Previous Purchases and Sales”

 

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· “Arrangements, Agreements or Understandings; Other Benefits to Insiders, Affiliates and Associates”

 

(c) Negotiations or Contacts. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Special Factors—Background to the Transaction”

 

· “Special Factors—Interests of Certain Persons in the Transaction”

 

· “Information Concerning BPY—Prior Offers”

 

· “Information Concerning BPY—Previous Purchases and Sales”

 

· “Arrangements, Agreements or Understandings; Other Benefits to Insiders, Affiliates and Associates”

 

(e) Agreements Involving the Subject Company’s Securities. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Special Factors—Background to the Transaction”

 

· “Special Factors—The Purchaser Parties’ Purpose and Structure of the Transaction; Reasons for the Transaction”

 

· “Special Factors—The Purchaser Parties’ Plans for BPY After the Transaction; Certain Effects of the Transaction”

 

· “Special Factors—Interests of Certain Persons in the Transaction”

 

· “Description of the Transaction”

 

· “Arrangements, Agreements or Understandings; Other Benefits to Insiders, Affiliates and Associates”

 

Item 6. Purposes of the Transaction and Plans or Proposals.

 

(b) Use of Securities Acquired. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Special Factors—The Purchaser Parties’ Purpose and Structure of the Transaction; Reasons for the Transaction”

 

· “Special Factors—The Purchaser Parties’ Plans for BPY After the Transaction; Certain Effects of the Transaction”

 

(c)(1)-(8) Plans. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Special Factors—The Purchaser Parties’ Purpose and Structure of the Transaction; Reasons for the Transaction”

 

· “Special Factors—The Purchaser Parties’ Plans for BPY After the Transaction; Certain Effects of the Transaction”

 

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Item 7. Purposes, Alternatives, Reasons and Effects.

 

(a) Purposes. The information set forth in the circular/prospectus under the caption “Special Factors—The Purchaser Parties’ Purpose and Structure of the Transaction; Reasons for the Transaction” is incorporated herein by reference.

 

(b) Alternatives. The information set forth in the circular/prospectus under the captions “Special Factors—Recommendation of the BPY Board of Directors” and “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors” is incorporated herein by reference.

 

(c) Reasons. The information set forth in the circular/prospectus under the following caption is incorporated herein by reference:

 

· “Special Factors—Background to the Transaction”

 

· “Special Factors—The Purchaser Parties’ Purpose and Structure of the Transaction; Reasons for the Transaction”

 

· “Special Factors—The Purchaser Parties’ Plans for BPY After the Transaction; Certain Effects of the Transaction”

 

· “Special Factors—Position of the Purchaser Parties Regarding the Fairness of the Transaction”

 

(d) Effects. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Description of the Transaction”

 

· “Rights of Dissenting BPY Unitholders”

 

· “Special Factors—The Purchaser Parties’ Purpose and Structure of the Transaction; Reasons for the Transaction”

 

· “Special Factors—The Purchaser Parties’ Plans for BPY After the Transaction; Certain Effects of the Transaction”

 

· “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors”

 

· “Special Factors—Recommendation of the BPY Board of Directors”

 

· “Special Factors—Dissent Rights; Rule 13e-3”

 

· “Special Factors—Summary of the Valuation and the Fairness Opinion”

 

· “Special Factors—Prior Valuations”

 

· “Certain Canadian Federal Income Tax Considerations”

 

· “Certain United States Federal Income Tax Considerations”

 

Item 8. Fairness of the Transaction.

 

(a)-(b) Fairness; Factors Considered in Determining Fairness. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Special Factors—Recommendation of the BPY Board of Directors”

 

· “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors”

 

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· “Special Factors—Interests of Certain Persons in the Transaction”

 

· “Special Factors—Summary of the Valuation and the Fairness Opinion”

 

· “Special Factors—Prior Valuations”

 

· “Special Factors—Dissent Rights; Rule 13e-3”

 

· “Beneficial Ownership of and Trading in Securities”

 

· “Appendix H – Valuations”

 

· “Appendix I – Fairness Opinion”

 

(c) Approval of Security Holders. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Summary—Recommendation of the Special Committee and the BPY Board of Directors”

 

· “Description of the Transaction”

 

· “Special Factors—Recommendation of the BPY Board of Directors”

 

· “Special Factors—Position of the Purchaser Parties Regarding the Fairness of the Transaction”

 

· “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors”

 

· “Special Factors—Dissent Rights; Rule 13e-3”

 

· “Beneficial Ownership of and Trading in Securities”

 

(d) Unaffiliated Representative. The information set forth in the circular/prospectus under the following caption is incorporated herein by reference:

 

· “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors—Risks and Potentially Negative Factors”

 

(e) Approval of Directors. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Summary—Recommendation of the Special Committee and the BPY Board of Directors”

 

· “Special Factors—Background to the Transaction”

 

· “Special Factors—Recommendation of the BPY Board of Directors”

 

· “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors”

 

· “Special Factors—Interests of Certain Persons in the Transaction”

 

· “Special Factors—Dissent Rights; Rule 13e-3”

 

· “Beneficial Ownership of and Trading in Securities”

 

(f) Other Offers. The information set forth in the circular/prospectus under the caption “Information Concerning BPY—Prior Offers” is incorporated herein by reference.

 

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Item 9. Reports, Opinions, Appraisals and Negotiations.

 

(a)-(b) Report, Opinion or Appraisal; Preparer and Summary of the Report, Opinion or Appraisal. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Summary—Recommendation of the Special Committee and the BPY Board of Directors”

 

· “Special Factors—Recommendation of the BPY Board of Directors”

 

· “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors”

 

· “Special Factors—Interests of Certain Persons in the Transaction”

 

· “Special Factors—Summary of the Valuation and the Fairness Opinion”

 

· “Special Factors—Prior Valuations”

 

· “Special Factors—Dissent Rights; Rule 13e-3”

 

· “Appendix H – Valuations”

 

· “Appendix I – Fairness Opinion”

 

(c) Availability of Documents. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Special Factors—Summary of the Valuation and the Fairness Opinion”

 

· “Special Factors—Prior Valuations”

 

With respect to this Item 9, the valuations provided by Lazard Frères & Co. LLC to the Special Committee are provided in Appendix H to the circular/prospectus and are incorporated herein by reference. The Fairness Opinion prepared by Lazard Frères & Co. LLC is provided in Appendix I to the circular/prospectus and is incorporated herein by reference. The Presentation of Lazard Frères & Co. LLC to the Special Committee, dated March 31, 2021, is filed as Exhibit (c)(3) to this Schedule 13E-3. The Preliminary Presentation of Lazard Frères & Co. LLC to the Special Committee, dated March 5, 2021, is filed as Exhibit (c)(4) to this Schedule 13E-3.

 

Item 10. Source and Amounts of Funds or Other Consideration.

 

(a)-(b), (d) Source of Funds; Conditions; Borrowed Funds. The information set forth in the circular/prospectus under the caption “Source of Transaction Consideration” is incorporated herein by reference.

 

(c) Expenses. The information set forth in the circular/prospectus under the caption “Expenses of the Transaction” is incorporated herein by reference.

 

Item 11. Interest in Securities of the Subject Company.

 

(a) Securities Ownership. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Information Concerning BPY”

 

· “Beneficial Ownership of and Trading in Securities”

 

· “Appendix J—Important Information Regarding BPY and the Purchaser Parties”

 

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(b) Securities Transactions. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Information Concerning BPY—Overview”

 

· “Information Concerning BPY—Distributions and Distribution Policy”

 

· “Information Concerning BPY—Previous Purchases and Sales”

 

· “Beneficial Ownership of and Trading in Securities”

 

· “Appendix J—Important Information Regarding BPY and the Purchaser Parties”

 

Item 12. The Solicitation or Recommendation.

 

(d) Intent to Tender or Vote in a Going Private Transaction. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Meeting and Voting Information—Questions and Answers on Voting—Q: Who is Entitled to Vote?”

 

· “Special Factors—Recommendation of the BPY Board of Directors”

 

· “Special Factors—Position of the Purchaser Parties Regarding the Fairness of the Transaction”

 

· “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors”

 

· “Special Factors—Interests of Certain Persons in the Transaction”

 

· “Beneficial Ownership of and Trading of Securities”

 

(e) Recommendations of Others. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Summary—Recommendation of the Special Committee and the BPY Board of Directors”

 

· “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors”

 

· “Special Factors—Recommendation of the BPY Board of Directors”

 

Item 13. Financial Statements.

 

(a)(1)-(4) Financial Information. The financial statements set forth in (i) BPY’s Annual Report on Form 20-F for the year ended December 31, 2020, beginning on page F-1 of such Annual Report on Form 20-F and (ii) BPY’s Current Report on Form 6-K for the quarterly periods ended March 31, 2021 and March 31, 2020, beginning on page 1 of Exhibit 99.2 of such Current Report on Form 6-K, are incorporated by reference herein. The information set forth in the circular/prospectus under the following captions is also incorporated herein by reference:

 

· “About this Document—Where You Can Find More Information; Incorporation by Reference”

 

· “Supplemental Financial Information”

 

· “Special Factors—The Purchaser Parties’ Plans for BPY After the Transaction; Certain Effects of the Transaction—Certain Effects of the Transaction”

 

(b) Pro forma Information. Not Applicable.

 

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Item 14. Persons/Assets, Retained, Employed, Compensated or Used.

 

(a)-(b) Solicitations or Recommendations; Employees and Corporate Assets. BPY has not employed, retained or compensated and does not currently intend to employ, retain or compensate any person to make solicitations. The information set forth in the circular/prospectus under the following captions is incorporated herein by reference:

 

· “Special Factors—Background of the Transaction”

 

· “Special Factors—Recommendation of the BPY Board of Directors”

 

· “Special Factors—Recommendation of the Special Committee of the BPY Board of Directors”

 

· “Expenses of the Transaction”

 

Item 15. Additional Information.

 

(b) Not applicable.

 

(c) Other Material Information. The information set forth in the circular/prospectus, including all appendices thereto, is incorporated herein by reference.

 

  10  

 

 

Item 16. Exhibits.

 

Exhibit No.   Description
     
(a)(1)   Amendment No. 1 to the Registration Statement on Form F-4 of Brookfield Asset Management Inc., Brookfield Property Partners L.P., Brookfield Property L.P., Brookfield BPY Holdings Inc., Brookfield BPY Retail Holdings II Inc., BPY Bermuda Holdings Limited, BPY Bermuda Holdings II Limited, BPY Bermuda Holdings IV Limited, BPY Bermuda Holdings V Limited and BPY Bermuda Holdings VI Limited, including a circular/prospectus (incorporated herein by reference to the Registration Statement on Form F-4 of Brookfield Asset Management Inc., Brookfield Property Partners L.P., Brookfield Property L.P., Brookfield BPY Holdings Inc., Brookfield BPY Retail Holdings II Inc., BPY Bermuda Holdings Limited, BPY Bermuda Holdings II Limited, BPY Bermuda Holdings IV Limited, BPY Bermuda Holdings V Limited and BPY Bermuda Holdings VI Limited, including the circular/prospectus (filed concurrently with this Amendment No. 1 to the Schedule 13E-3 with the SEC)
     
(a)(2)   Letter of Transmittal and Election Form (incorporated by reference to Exhibit 99.2 of the Registration Statement)
     
(a)(3)   Form of Proxy Card (incorporated by reference to Exhibit 99.4 of the Registration Statement)
     
(a)(4)   Notice of Special Meeting of Unitholders (incorporated by reference from the circular/prospectus)
     
(a)(5)   Press release issued by BAM and BPY, dated April 1, 2021 (incorporated by reference to Exhibit 99.1 of the Form 6-K filed by BPY with the SEC on April 1, 2021)
     
(a)(6)   Press release issued by BPY, dated May 27, 2021 (filed herewith)
     
(b)   None.
     
(c)(1)   Fairness Opinion of Lazard Frères & Co. LLC, dated March 31, 2021 (incorporated by reference to Appendix I of the circular/prospectus)
     
(c)(2)   Valuations of Lazard Frères & Co. LLC, dated March 31, 2021 (incorporated by reference to Appendix H of the circular/prospectus)
     
(c)(3)   Presentation of Lazard Frères & Co. LLC to the Special Committee of the Board of Directors of the BPY General Partner, dated March 31, 2021 (previously filed)
     
(c)(4)   Preliminary Presentation of Lazard Frères & Co. LLC to the Special Committee of the Board of Directors of the BPY General Partner, dated March 5, 2021 (previously filed)
     
(d)(1)   Arrangement Agreement, dated March 31, 2021, between Brookfield Asset Management Inc., Brookfield Property Partners L.P. and BPY Arrangement Corporation, as amended on May 27, 2021 (incorporated by reference to Appendix B of the circular/prospectus)
     
(d)(2)   Transaction Resolutions (incorporated by reference to Appendix C to the circular/prospectus)
     
(d)(3)   Plan of Arrangement (incorporated by reference to Appendix E to the circular/prospectus)
     
(d)(4)*   Interim Order (incorporated by reference to Appendix F to the circular/prospectus)
     
(4)(5)*   Notice of Application for Final Order (incorporated by reference to Appendix G to the circular/prospectus)
     
(d)(6)   Fourth Amended and Restated Limited Partnership Agreement of Brookfield Property L.P., dated February 20, 2019 (incorporated by reference to Exhibit 99.2 of the Form 6-K filed by BPY with the SEC on February 20, 2019)
     
(d)(7)   First Amendment to the Fourth Amended and Restated Limited Partnership Agreement of Brookfield Property L.P., dated March 21, 2019 (incorporated by reference to Exhibit 3.2 of the Form 6-K filed by BPY with the SEC on March 21, 2019)
     
(d)(8)   Second Amendment to the Fourth Amended and Restated Limited Partnership Agreement of Brookfield Property L.P., dated April 28, 2019 (incorporated by reference to Exhibit 99.1 of the Form 6-K filed by BPY with the SEC on April 30, 2019)

 

  11  

 

 

(d)(9)   Third Amendment to Fourth Amended and Restated Limited Partnership Agreement of Brookfield Property L.P., dated August 20, 2019 (incorporated by reference to Exhibit 3.2 of the Form 6-K filed by BPY with the SEC on August 20, 2019)
     
(d)(10)   Fourth Amendment to the Fourth Amended and Restated Limited Partnership Agreement of Brookfield Property L.P. dated February 18, 2020 (incorporated by reference to Exhibit 3.2 of the Form 6-K filed by BPY with the SEC on February 18, 2020)
     
(d)(11)   Fifth Amendment to the Fourth Amended and Restated Limited Partnership Agreement of Brookfield Property L.P. dated April 21, 2020 (incorporated by reference to Exhibit 99.2 of the Form 6-K filed by BPY with the SEC on May 11, 2020)
     
(d)(12)   Second Amended and Restated Master Services Agreement, dated August 27, 2018, by and among Brookfield Asset Management Inc., our Company, Brookfield Property L.P., Brookfield Global Property Advisors Limited, Brookfield Property Group LLC, Brookfield Asset Management Private Institutional Capital Adviser US, LLC, BPG Holdings Group Inc. and each of the entities listed on Schedule A to the Agreement (incorporated by reference to Exhibit 99.2 of the Form 6-K filed by BPY with the SEC on August 28, 2018)
     
(d)(13)   Registration Rights Agreement, dated April 10, 2013, between the Partnership and Brookfield Asset Management Inc. (incorporated by reference to Exhibit 99.6 of the Form 6-K filed by BPY with the SEC on April 16, 2013)
     
(d)(14)   Support Agreement, dated March 19, 2014, between our Company and Brookfield Office Properties Exchange LP (incorporated by reference to Exhibit 99.1 of the Form 6-K filed by BPY with the SEC on March 19, 2014)
     
(d)(15)   Guarantee Agreement, dated December 4, 2014, between our Company and Qatar Investment Authority (incorporated by reference to Exhibit 99.5 of the Form 6-K filed by BPY with the SEC on December 4, 2014)
     
(d)(16)   Investor Agreement, dated December 4, 2014, between our Company and Qatar Investment Authority (incorporated by reference to Exhibit 99.3 of the Form 6-K filed by BPY with the SEC on December 4, 2014)
     
(d)(17)   Refinancing Agreement, dated December 4, 2014, among Brookfield Asset Management Inc., our Company and Brookfield Property L.P. (incorporated by reference to Exhibit 99.6 of Schedule 13D/A filed by BAM with the SEC on December 5, 2014)
     
(d)(18)   Fourth Amended and Restated Certificate of Incorporation, dated June 25, 2019 of Brookfield Property REIT Inc. (incorporated by reference to Exhibit 99.1 of the Form 6-K filed by BPY with the SEC on June 26, 2019)
     
(d)(19)   Rights Agreement, dated as of April 27, 2018, by and between Brookfield Asset Management Inc. and Wilmington Trust, National Association (incorporated by reference to Exhibit 10.3 of Form S-4/F-4 filed by BPY on May 2, 2018)
     
(d)(20)   Brookfield Property Group Restricted BPY L.P. Unit Plan, dated November 5, 2019 (incorporated by reference to Exhibit 99.2 of the Form 6-K filed by BPY with the SEC on November 14, 2019)

 

  12  

 

 

(d)(21)   Brookfield Property Partners Amended and Restated BPY Unit Option Plan, dated November 5, 2019 (incorporated by reference to Exhibit 99.1 of the Form 6-K filed by BPY with the SEC on November 14, 2019)
     
(d)(22)   Brookfield Property Partners Amended and Restated BPY Unit Option Plan (Canada), dated November 5, 2019 (incorporated by reference to Exhibit 4.10 of the Form S-8 filed by BPY with the SEC on November 14, 2019)
     
(d)(23)   Brookfield Property Partners BPY Unit Option Plan (GGP), dated August 28, 2018 (incorporated by reference to Exhibit 4.4 of the Form S-8 filed by BPY with the SEC on August 28, 2018)
     
(d)(24)   Form of Purchase Agreement (filed herewith)
     
(f)(1)   Form of BPY LPA Amendment (incorporated by reference to Appendix D of the circular/prospectus)
     
(f)(2)   Rights of Dissenting BPY Unitholders (incorporated herein by reference to the section entitled “Rights of Dissenting BPY Unitholders” in the circular/prospectus)
     
(g)   Not applicable.
     
(h)(1)*   Opinion of Torys LLP as to certain United States tax matters (incorporated by reference to Exhibit 8.1 of the Registration Statement)
     
(h)(2)*   Opinion of Torys LLP as to certain Canadian tax matters (incorporated by reference to Exhibit 8.2 of the Registration Statement)

 

* To be filed by amendment.

 

  13  

 

 

SIGNATURE

 

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: May 27, 2021 BROOKFIELD PROPERTY PARTNERS L.P., by its general partner, BROOKFIELD PROPERTY PARTNERS LIMITED
   
  By: /s/ Jane Sheere
    Name: Jane Sheere
    Title: Secretary

 

Dated: May 27, 2021 BROOKFIELD ASSET MANAGEMENT INC.
   
  By: /s/ Kathy Sarpash
    Name: Kathy Sarpash
    Title: Senior Vice President

 

Dated: May 27, 2021 BPY ARRANGEMENT CORPORATION
   
  By: /s/ Allen Yi
    Name: Allen Yi
    Title: Senior Vice President

 

 

 

 

 

 Exhibit (a)(6)

 

 

 

 

 

BROOKFIELD PROPERTY PARTNERS SETS RECORD DATE FOR SPECIAL MEETING OF
UNITHOLDERS TO CONSIDER PRIVATIZATION TRANSACTION

 

BROOKFIELD NEWS, May 27, 2021 – Brookfield Property Partners L.P. (Nasdaq: BPY; TSX: BPY.UN) announced today that the record date for its upcoming special meeting of unitholders to consider Brookfield Asset Management Inc.’s (“BAM”) acquisition of all of the limited partnership units of BPY (“the transaction”) will be June 8, 2021. Only unitholders of record as of the close of business on the record date will be entitled to vote their units at the meeting. The special meeting is expected to take place on July 16, 2021.

 

Holders of Class A stock of Brookfield Property REIT Inc. (Nasdaq: BPYU) (“BPYU shares”) and holders of exchangeable limited partnership units of Brookfield Office Property Exchange LP (“exchangeable units”) are not entitled to vote at the special meeting or exercise dissent rights with respect to the transaction. Any holders of BPYU shares or exchangeable units who wish to vote or exercise dissent rights must convert their securities into BPY units prior to the record date. Holders of BPYU shares must submit their shares for conversion by June 2, 2021 in order to receive their BPY units by close of business on the record date; instructions on how to do so can be found here. Holders of exchangeable units should contact their broker or AST Trust Company (Canada) at 877-715-0498 or inquiries@astfinancial.com.

 

IMPORTANT INFORMATION AND WHERE TO FIND IT

 

In connection with the transaction, BAM and BPY, together with certain subsidiaries of BPY (collectively, the “Registrants”) have filed with the U.S. Securities and Exchange Commission (“SEC”) a registration statement on Form F-4 that includes a circular of BPY that also constitutes a prospectus of the Registrants. Each of BAM and BPY also plan to file other relevant documents with the SEC regarding the transaction. A final circular/prospectus will also be mailed to BPY unitholders, holders of BPYU shares and holders of exchangeable units. INVESTORS ARE URGED TO READ THE REGISTRATION STATEMENT, CIRCULAR/PROSPECTUS AND OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION.

 

No securities regulatory authority has either approved or disapproved of the contents of this news release. This news release shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended. A free copy of the circular/prospectus, as well as other filings containing information about the Registrants, may be obtained at the SEC’s Internet site (http://www.sec.gov). You may also obtain these documents, free of charge, from BPY by accessing BPY’s website at bpy.brookfield.com or from BAM by accessing BAM’s website at bam.brookfield.com.

# # #

 

 

 

 

Brookfield Property Partners

 

Brookfield Property Partners, through Brookfield Property Partners L.P. and its subsidiary Brookfield Property REIT Inc., is one of the world’s premier real estate companies, with approximately $88 billion in total assets. We own and operate iconic properties in the world’s major markets, and our global portfolio includes office, retail, multifamily, logistics, hospitality, triple net lease, manufactured housing and student housing.

 

Brookfield Property Partners is the flagship listed real estate company of Brookfield Asset Management Inc., a leading global alternative asset manager with over $600 billion in assets under management. More information is available at www.brookfield.com.

 

Brookfield Property Partners L.P. is listed on the Nasdaq Stock Market and the Toronto Stock Exchange. Brookfield Property REIT Inc. is listed on the Nasdaq Stock Market. Further information is available at bpy.brookfield.com.

 

Brookfield Contact:

 

Matt Cherry

SVP, Investor Relations

(212) 417-7488

matthew.cherry@brookfield.com

 

FORWARD-LOOKING STATEMENTS

 

This news release contains “forward-looking information” and “forward-looking statements” within the meaning of applicable Canadian and U.S. securities laws. The word “will” and derivations thereof and other expressions that are predictions of or indicate future events, trends or prospects and which do not relate to historical matters identify forward-looking statements.

 

Forward-looking statements in this news release include statements with respect to the transaction and the special meeting of BPY unitholders. Although BAM and BPY believe that such forward-looking statements and information are based upon reasonable assumptions and expectations, the reader should not place undue reliance on forward-looking statements and information Except as required by law, BAM and BPY undertake no obligation to publicly update or revise any forward-looking statements or information, whether written or oral, that may be as a result of new information, future events or otherwise.

 

 

 

 

 

Exhibit (d)(24)

 

THIS AGREEMENT is made effective this [date] day of May, 2021 at 5:00 p.m. (EDT),

 

B E T W E E N:

 

[NAME OF ENTITY], a corporation incorporated under the laws of [Jurisdiction]

 

(the “Vendor”)

 

- and -

 

BROOKFIELD ASSET MANAGEMENT INC., a corporation incorporated under the laws of Ontario

 

(the “Purchaser”)

 

RECITALS:

 

A. The Vendor is the beneficial and registered owner of [number] limited partnership units of Brookfield Property Partners L.P. (“BPY”) and [number] exchangeable limited partnership units of Brookfield Office Properties Exchange L.P. (“BPY Exchange LP”) (collectively, the “Subject Units”).

 

B. The Purchaser, BPY Arrangement Corporation (the “Purchaser Sub”) and BPY have entered into an arrangement agreement (the “Arrangement Agreement”) dated as of March 31, 2021, as it may be amended, which contemplates an arrangement (the “Arrangement”) of the Purchaser Sub by way of a plan of arrangement (the “Plan of Arrangement”) pursuant to Section 182 of the Business Corporations Act (Ontario), the result of which shall be the acquisition by the Purchaser and the Purchaser Sub (collectively, the “Purchaser Parties”) of all the outstanding limited partnership units of BPY (the “BPY Units”).

 

C. In advance of closing of the Arrangement, the Vendor wishes to sell all of the Subject Units to Sidecar Exchange LP (“Sidecar Exchange LP”), an Ontario limited partnership to be formed by the Purchaser, for consideration including exchangeable limited partnership units of Sidecar Exchange LP (“Exchange LP Units”), as further specified in this Agreement. The terms of the Exchange LP Units will be substantially as set out in Schedule A.

 

D. As a result of entering into this Agreement, the Vendor will not be entitled to participate in the Arrangement (including making any elections).

 

NOW THEREFORE in consideration of the mutual covenants and agreements contained in this Agreement and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows:

 

1. Purchase and Sale

 

Effective as of the Closing Date at the time set forth in Section 6, the Vendor shall sell and the Purchaser shall cause Sidecar Exchange LP to purchase all of the Vendor’s right, title and interest in and to the Subject Units free and clear of all Encumbrances (defined below) on the terms and conditions contained herein.

 

 

- 2 -

 

2. Purchase Price

 

The purchase price of the Subject Units shall be equal to $18.17 (the “Fair Market Value”), multiplied by the number of Subject Units (the “Purchase Price”).

 

3. Payment of Purchase Price

 

3.1           In payment of the Purchase Price, subject to Section 3.2, the Vendor will receive, in aggregate for the Subject Units:

 

3.1.1                      an amount (to be determined by the Purchaser, in its sole discretion) of Exchange LP Units (the “Primary Exchange LP Units”) equal to the number of class A limited voting shares in the capital of the Purchaser (“BAM Shares”) a holder of BPY Units (a “BPY Unitholder”) with a number of BPY Units equal to the number of Subject Units who elected to receive the Default Consideration (as such term is defined in the Plan of Arrangement) would receive in the Arrangement (after pro ration); and

 

3.1.2                      the amount (to be determined by the Purchaser, in its sole discretion) of cash and class A cumulative redeemable preferred units, series 1 (the “New Preferred Units”) of a Bermuda exempted limited partnership (“New LP”) a BPY Unitholder with a number of BPY Units equal to the number of Subject Units who elected to receive the Default Consideration would receive in the Arrangement (after pro ration) (the consideration in Section 3.1.1 together with the consideration in Section 3.1.2 or Section 3.2, as applicable, the “Consideration”).

 

3.2           The Vendor hereby elects to receive for up to [number] aggregate BPY Units (or such lesser number of BPY Units to be confirmed by the Vendor to the Purchaser in writing by no later than 5:00 p.m. (EDT) on the day prior to the Election Deadline), in lieu of the consideration described in Section 3.1.2, additional Exchange LP Units (the “Secondary Exchange LP Units”) equal to all or a portion of the amount of cash and the liquidation value of the New Preferred Units described in the foregoing Section 3.1.2 divided by a price that is equal to the greater of (x) $45.67, and (y) the 5-day volume weighted average trading price of a BAM Share on the New York Stock Exchange as of the end of the last trading day immediately preceding the day of the Election Deadline (defined below) (which amount of Secondary Exchange LP Units will be determined by the Purchaser, in its sole discretion).

 

4. Election

 

The Vendor and Sidecar Exchange LP shall jointly elect in prescribed form and within the prescribed time under subsection 97(2) of the Income Tax Act (Canada) (the “Tax Act”) and under any corresponding provincial tax legislation as to the amount they have agreed upon to be deemed to be the Vendor’s proceeds of disposition of the Subject Units sold hereunder and Sidecar Exchange LP’s cost thereof. The Vendor and the Purchaser agree that the amount that shall be deemed to be the Vendor’s proceeds of disposition and Sidecar Exchange LP’s cost in respect of which such election is made shall be an amount to be determined by the Vendor and the Purchaser.

 

5. Further Adjustment to Purchase Price, Consideration or Elected Amounts

 

5.1           The Vendor and the Purchaser agree and acknowledge that the Purchase Price is, and is intended by the Vendor and the Purchaser, to be equal to the Fair Market Value of the Subject Units. If the Vendor and the Purchaser subsequently mutually determine, or if the Canada Revenue Agency or any other taxing authority issues, or proposes to issue, assessments or reassessments of additional liability for taxes or makes any other adjustment by reason of asserting that the Purchase Price is not equal to the aggregate Fair Market Value of the Subject Units, or that the fair market value of the Consideration received by the Vendor is more or less than the Fair Market Value of the Subject Units, or that an elected amount is not equal to the previous elected amount for the Subject Units as determined by the Vendor and the Purchaser, or if it is established by a court of competent jurisdiction (after all appeal rights have been exhausted or all time periods for appeal have expired without appeals having been taken) that the Purchase Price is not equal to the Fair Market Value of the Subject Units, that the fair market value of the Consideration received by the Vendor is not equal to the Fair Market Value of the Subject Units, or that an elected amount is not equal to the previous elected amount for the Subject Units as determined by the Vendor and the Purchaser, then, the Purchase Price, the Consideration therefor, or the elected amount, as the case may be, shall be increased or decreased to the amount as so determined by the Canada Revenue Agency, such other taxing authority or such court or as agreed by the Vendor and the Purchaser, as the case may be.

 

 

- 3 -

 

5.2           If the Purchase Price or Consideration is varied in the circumstances described in Section 5.1 above, the Vendor and the Purchaser shall take such steps as may be necessary to reflect properly an appropriate adjustment to the Purchase Price and Consideration as varied.

 

5.3           If an elected amount is varied in the circumstances described in Section 5.1 above, the Vendor and the Purchaser shall file revised elections to give effect to their intention that the elected amount be equal to the amount determined by the Vendor and the Purchaser.

 

6. Completion of the Transaction

 

At 9:00 a.m. (EDT) on the third business day following the receipt of the Final Order or such other date agreed by the parties but in any event prior to the Effective Date (each as such term is defined in the Plan of Arrangement) of the Arrangement (the “Closing Date”), the following shall occur (the “Transaction”):

 

6.1           the Vendor shall execute and deliver to the Purchaser all such documents, certificates and instruments and do all such other acts and things as the Purchaser may consider necessary or desirable, acting reasonably, to effectively transfer and assign the Subject Units to the Purchaser and to deliver possession thereof to the Purchaser; and

 

6.2           the Purchaser shall deliver, or cause to be delivered, to the Vendor the Consideration as follows:

 

6.2.1                      any cash amount by wire transfer of immediately available funds in United States dollars to the bank account set out in Schedule B;

 

6.2.2                      any non-cash Consideration in certificated form in the name of the Vendor (or as may be directed by the Vendor in writing prior to the Closing Date).

 

7. Representations and Warranties of the Vendor

 

The Vendor represents and warrants to the Purchaser that:

 

7.1           the Vendor is duly incorporated and validly existing under the laws of the Province of [Jurisdiction];

 

 

- 4 -

 

7.2           the Vendor is a “Canadian corporation” within the meaning set out in the Tax Act and is not exempt from tax under the Tax Act;

 

7.3           the Vendor has the corporate power and capacity to enter into, and to perform its obligations under, this Agreement;

 

7.4           the execution, delivery and performance of this Agreement and all agreements executed in connection therewith have been duly authorized by all necessary corporate action on the part of the Vendor;

 

7.5           this Agreement and all agreements executed in connection therewith are valid and binding obligations of the Vendor, enforceable in accordance with their terms, subject to the usual exceptions as to bankruptcy and the availability of equitable remedies;

 

7.6           the Vendor as of the date hereof has good and marketable title to the Subject Units and the full legal right, power and authority to sell and transfer the Subject Units to the Purchaser free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”);

 

7.7           the Vendor did not acquire the Subject Units for the purpose of the sale of the Subject Units under this Agreement;

 

7.8          as of the date hereof, no actions or filings are required to be made by the Vendor in respect of this Agreement other than as required under the applicable securities Laws (defined below);

 

7.9          the Vendor is aware that the Exchange LP Units and the New Preferred Units have not been and will not be registered under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”) or the securities laws of any state and that these securities may not be offered or sold in the United States without registration under the U.S. Securities Act or compliance with requirements of an exemption from registration and the applicable laws of all applicable states;

 

7.10         the Vendor is aware that it is purchasing the Exchange LP Units and New Preferred Units subject to a “seasoning period” within the meaning of National Instrument 45-102 – Resale of Securities and that the Exchange LP Units are not transferable and will not be exchangeable for 24-months following the Closing Date, as further set forth in Schedule A hereto;

 

7.11        the Vendor was not offered the securities that constitute the Consideration in the United States, the Vendor is not a U.S. person, and the sale and purchase of the securities that constitute the Consideration, including the execution of this Agreement was, or is being, or will be, as the case may be, executed, outside of the United States. For purposes of this Section 7.11, “United States” and “U.S. person” have the meanings ascribed thereto in Regulation S under the U.S. Securities Act;

 

7.12         the Vendor has not relied upon the Purchaser for any investigation into, assessment of, or evaluation with respect to the Consideration and/or the Transaction;

 

7.13         subject to receipt of the GP Consent (defined below), none of the entering into of this Agreement or the consummation of the Transaction, the performance of the Vendor of any of its other obligations under this Agreement will contravene, breach or result in any default under (a) the articles, by-laws, constating documents or other organizational documents of the Vendor, (b) any mortgage, lease, agreement (oral or written), other legally binding instrument, licence, permit to which the Vendor is a party or may be bound statute, regulation, order, judgment, decree or law or (c) any applicable law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Laws”), in respect of which the Vendor must comply; and

 

 

- 5 -

 

7.14         no authorization of, consent or approval of, or filing with or notice to, any governmental agency, regulatory body, court or other third party is required in connection with the execution, delivery or performance of this Agreement by the Vendor or the consummation of the Transaction.

 

The representations and warranties of the Vendor set forth in this Section 7 will survive the completion of the Transaction.

 

8. Representations and Warranties of the Purchaser

 

The Purchaser represents and warrants to the Vendor that:

 

8.1           the Purchaser is duly incorporated and validly existing under the laws of the Province of Ontario;

 

8.2           the Purchaser has the corporate power and capacity to enter into, and to perform its obligations under, this Agreement;

 

8.3           the execution, delivery and performance of this Agreement and all agreements executed in connection therewith have been duly authorized by all necessary corporate action on the part of the Purchaser;

 

8.4           this Agreement and all agreements executed in connection therewith are valid and binding obligations of the Purchaser, enforceable in accordance with their terms, subject to the usual exceptions as to bankruptcy and the availability of equitable remedies;

 

8.5           the Purchaser has not provided the Vendor with any confidential or material, non-public information concerning the Subject Units, the Purchaser or BPY; and

 

8.6           the Consideration will be duly authorized and, upon completion of the Transaction, the Exchange LP Units forming part of the Consideration will be validly issued to the Vendor as fully paid and non-assessable units in the capital of Sidecar Exchange LP and the New Preferred Units forming part of the Consideration will be validly issued to the Vendor as fully paid and non-assessable units in the capital of New LP.

 

The representations and warranties of the Purchaser set forth in this Section 8 will survive the completion of the Transaction.

 

9. Covenants of the Vendor

 

The Vendor covenants and agrees:

 

9.1           (a) not to deliver a Letter of Transmittal and Election Form (each as such term is defined in the Plan of Arrangement) in respect of the Subject Units and (b) if the Vendor votes any of the Subject Units at any meeting(s) of BPY Unitholders convened to consider, and if deemed advisable approve, among other things, the transactions contemplated by the Arrangement (each, a “BPY Unitholders’ Meeting”) the Vendor shall promptly (and in any event no later than one hour before such BPY Unitholders’ Meeting) provide written notice to BPY of the number of Subject Units voted for or against the Transaction Resolutions (as such term is defined in the Plan of Arrangement) such that such votes may be excluded for the purposes of “minority approval” under Multi-lateral Instrument 61-101- Protection of Minority Security Holders in Special Transactions, as amended or replaced from time to time; and

 

 

- 6 -

 

9.2           to use commercially reasonable efforts to cause the Subject Units to be held by the Vendor in registered form prior to the Closing Date.

 

10. Covenants of the Purchaser

 

The Purchaser covenants and agrees:

 

10.1         to provide to the Vendor in writing, as soon as is practicable after 5:00 p.m. (EDT) on the business day which is two business days following the date of the BPY Unitholders’ Meeting (the “Election Deadline”) and in any event 24 hours prior to the Closing Date the following details (which shall be binding on the Vendor):

 

10.1.1                  the amount of BAM Shares, New Preferred Units and cash a holder of the Subject Units with a number of BPY Units equal to the number of Subject Units who elected to receive the Default Consideration would receive in the Arrangement (after pro ration); and

 

10.1.2                  the amount of cash and the number of Primary Exchange LP Units, Secondary Exchange LP Units and New Preferred Units to be received by the Vendor; and

 

10.2         to cause Sidecar Exchange LP and New LP to be formed and to cause the securities forming part of the Consideration to be created and issued to the Vendor in accordance with the terms of this Agreement;

 

10.3         to cause Sidecar Exchange LP to prepare the elections contemplated by this Agreement;

 

10.4         to execute and deliver, and cause its subsidiaries to execute and deliver, the Support Agreement described in Schedule A and any other ancillary agreements; and

 

10.5         to cause the general partner of BPY Exchange LP to execute and deliver consent of the general partner of BPY Exchange LP to the transfer of the exchangeable limited partnership units hereunder in accordance with Section 16.1 of the Amended and Restated Limited Partnership Agreement of BPY Exchange LP dated March 19, 2014 (the “GP Consent”) prior to the Closing Date.

 

11. Termination

 

Unless otherwise agreed to in writing by the parties, this Agreement will automatically terminate upon the first to occur of the following:

 

11.1         the Arrangement Agreement is terminated or the Arrangement is abandoned;

 

11.2         the Transaction has not been completed on or before September 30, 2021;

 

11.3         the Arrangement Agreement is amended without a corresponding amendment being made to this Agreement; and

 

11.4         the written agreement of the parties to terminate this Agreement.

 

 

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12. Further Assurances

 

Each of the parties hereto shall promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may reasonably require from time to time for the purpose of giving effect to this Agreement and shall use its best efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.

 

13. Currency

 

All references in this Agreement to sums of money are expressed in, and, unless otherwise agreed by the parties, all payments provided for herein will be made in United States dollars, and “$” refers to United States dollars.

 

14. Confidentiality

 

The parties will keep the content of this Agreement confidential and not disclose it except as required by applicable Laws. The Vendor acknowledges that the Purchaser may be required to make disclosure pursuant to applicable securities Laws with respect to its entry into this Agreement, including the Purchase Price, the number of Subject Units, the identity of the Vendor and the form of the Agreement.

 

15. Entire Agreement

 

This Agreement, including the Schedules attached hereto, sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes any and all prior discussions, negotiations, letters of intent or agreements in principle between them.

 

16. Binding Effect; No Third Party Beneficiaries

 

This Agreement shall be binding upon and shall inure to the exclusive benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns and nothing herein, express or implied, is intended to, nor shall it, confer in any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

17. Amendment

 

No amendment to this Agreement may be made unless agreed to by the parties hereto in writing.

 

18. Assignability

 

No party hereto shall sell, pledge, assign or otherwise transfer its rights under this Agreement without the prior written consent of the other party and any attempt to do so shall be void, except that the Purchaser may assign or transfer its rights under this Agreement to Sidecar Exchange LP without the Vendor’s consent.

 

 

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19. Waiver

 

No failure or delay by the Purchaser or the Vendor in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder, nor shall any waiver constitute a continuing waiver unless otherwise expressly provided.

 

20. Governing Law

 

This Agreement and all actions, proceedings or counterclaims (whether based on contract, tort or otherwise) arising out of or relating to this Agreement, or the actions of the Purchaser or the Vendor in the negotiation, administration, performance and enforcement thereof, shall be governed by, and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of laws provision or rule that would cause the application of the Laws of any jurisdiction other than the Province of Ontario and the federal laws of Canada applicable therein.

 

Each of the Purchaser and the Vendor hereby irrevocably attorns and submits to the exclusive jurisdiction of the courts of the Province of Ontario for the purpose of any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement, or the actions of the Purchaser or the Vendor in the negotiation, administration, performance and enforcement thereof, and waives objection to the venue of any proceeding in such court or that such court provides an inconvenient forum.

 

21. Expenses

 

Each party will pay for its own costs and expenses incurred in connection with the negotiation, preparation, execution and performance of this Agreement, the agreements contemplated herein and the transactions contemplated herein and therein, including the fees and expenses of legal counsel, financial advisors, accountants, consultants and other professional advisors.

 

22. Time of the Essence

 

Time is of the essence in this Agreement.

 

23. Counterparts, Electronic Delivery

 

This Agreement may be executed in counterparts, each of which will be deemed to be an original and both of which taken together will be deemed to constitute one and the same instrument. Delivery of an executed signature page to this Agreement by either party by facsimile or by PDF via electronic transmission will be as effective as delivery of a manually executed copy of the Agreement by such party.

 

24. Language

 

The parties have required that this Agreement and all agreements, documents and notices relating to this Agreement be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous les autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.

 

Remainder of Page Intentionally Left Blank

 

 

 

 

IN WITNESS WHEREOF the parties hereto have executed this Agreement.

 

  [VENDOR]
   
  by:  
    Name:
    Title:
     
  BROOKFIELD ASSET MANAGEMENT INC.
   
  by:         
  Name:                              
    Title:

 

 

 

 

Schedule A

Terms of Exchange LP Units

 

General:  

Sidecar Exchange LP will be a newly formed limited partnership formed pursuant to the laws of Ontario.

 

The capital of Sidecar Exchange LP is as follows: (i) general partnership units; (ii) limited partnership units (“LP Units”); and (iii) exchangeable limited partnership units (“Exchange LP Units”). 

 

An indirect newly formed subsidiary of Brookfield Asset Management Inc. (“BAM”) will be general partner (“GP”) and another indirect subsidiary (“LP Co”) will be limited partner. The GP and LP Co will at all times be residents of Canada for the purposes of the Income Tax Act (Canada) (“Tax Act”). 

 

Eligible Holders:  

Exchange LP Units will only be issued to up to five persons that are Canadian corporations who are not exempt from tax under the Tax Act (“Eligible Corporations”). 

 

Ranking:  

Exchange LP Units will rank senior to LP Units with respect to the payment of distributions and the distribution of assets in the event of the liquidation, dissolution or winding up of Sidecar Exchange LP, whether voluntary or involuntary, or any distribution of the assets of Sidecar Exchange LP among its holders for purposes of winding up its affairs. 

 

Exchange:   Exchange LP Units will be exchangeable for Class A limited voting shares of BAM (“BAM Shares”) on a one-for-one basis on the 24 month anniversary of closing. Thereafter, exchanges are permitted once every six months.  The exchange right can be exercised at the option of the holder, by retracting such units, which will be repurchased by Sidecar Exchange LP in exchange for BAM Shares.
     
Voting Rights:  

Exchange LP Unit holders do not have a right to vote in respect of Sidecar Exchange LP. The LP Units have 100% of the voting rights of limited partners of Sidecar Exchange LP.

 

Transferability:   Exchange LP Units cannot be transferred, except to an affiliate, and will not be listed on any stock exchange.

 

 

 

 

Distributions and Allocations of income:  

Distributions on the Exchange LP Units will be made at the same time and in the same amount as dividends on the BAM Shares. 

 

The income of Sidecar Exchange LP will be allocated to holders of Exchange LP Units on the basis of the proportion of distributions made on the Exchange LP Units over all distributions made on all units of Sidecar Exchange LP. Given that Sidecar Exchange LP will hold only BPY Units, the composition of the income of Sidecar Exchange LP allocated to a holder of Exchange LP Units will be similar to the composition of income currently allocated by BPY to a holder of BPY Units (which will generally consist of a mix of dividends from Canadian corporations, dividends from foreign corporations and interest income). The amount of income allocated to a holder of Exchange LP Units in a particular year may be greater than or less than the distributions received by the holder in the year.

 

Liquidation Rights:  

Subject to applicable law and the exercise by BAM (directly or through an affiliate) of its Liquidation Call Right (see below), in the event of the liquidation, dissolution or winding up of Sidecar Exchange LP or any other distribution of its assets among its holders for the purpose of winding up its affairs, holders of Exchange LP Units shall be entitled to receive from the assets of Sidecar Exchange LP a liquidation payment that will be satisfied by issuance of one BAM Share plus the amount, if any, of any dividend on a BAM Share that has not yet been paid on the Exchange LP Units (“dividend amount”) for each outstanding Exchange LP Unit. This liquidation amount will be paid to the holders of Exchange LP Units before any distribution of assets of Sidecar Exchange LP is made to other holders of Sidecar Exchange LP.

 

Redemption Right:  

Subject to applicable law and the below call rights, Sidecar Exchange LP will have the right, commencing on the 2nd anniversary of closing, to redeem all of the then outstanding Exchange LP Units for a redemption amount equal to the value of one BAM Share for each outstanding Exchange LP Unit plus the dividend amount, if any. The redemption amount is satisfied by delivering to the holder of Exchange LP Units one BAM Share for each Exchange LP Unit redeemed plus the dividend amount, if any.

 

The redemption date may be accelerated by the board of directors of the general partner of Sidecar Exchange LP in the event that:

 

(i) a person acquires 90% of the BAM Shares in a take-over bid;

 

(ii) shareholders of BAM approve an acquisition of BAM by way of arrangement or amalgamation;

 

(iii) shareholders of BAM approve a liquidation of BAM; and

 

(iv) a sale of all or substantially all of the assets of BAM.

 

 

 

 

 

Call Rights:  

BAM will have certain rights to acquire Exchange LP Units from the holders. If BAM exercises one of the below call rights, a tax deferred exchange may be achieved by filing an election form in connection with the acquisition.

 

Optional Call Right

 

Commencing 24 months after closing, BAM has a right to acquire all but not less than all of the Exchange LP Units held by any holders thereof. The purchase price under such call right is satisfied by delivering to the holder of Exchange LP Units one BAM Share for each Exchange LP Unit purchased plus the dividend amount, if any.

 

Retraction Call Right

 

BAM has an overriding right to acquire all but not less than all of the Exchange LP Units that a holder of Exchange LP Units requests Sidecar Exchange LP to redeem on the retraction date. The purchase price under such call right is satisfied by delivering to the holder of Exchange LP Units one BAM Share for each Exchange LP Unit purchased plus the dividend amount, if any.

 

Redemption Call Right

 

BAM has an overriding right, notwithstanding any proposed redemption of the Exchange LP Units by Sidecar Exchange LP, to acquire all but not less than all of the Exchange LP Units then outstanding. The purchase price under such call right is satisfied by delivering to the holder one BAM Share for each Exchange LP Unit purchased plus the dividend amount, if any.

 

   

Liquidation Call Right

 

BAM has an overriding right, in the event of and notwithstanding a proposed liquidation, dissolution or winding up of Sidecar Exchange LP, to acquire all but not less than all of the Exchange LP Units then outstanding. The purchase price under such call right is satisfied by delivering to the holder of Exchange LP Units one BAM Share for each Exchange LP Unit purchased plus the dividend amount, if any. Upon the exercise by BAM of such call right, the holders will be obligated to transfer their Exchange LP Units to BAM for the purchase price. The acquisition by BAM of all of the outstanding Exchange LP Units upon the exercise of such call right will occur on the effective date of the voluntary or involuntary liquidation, dissolution or winding up of Sidecar Exchange LP.

 

Automatic Redemption Upon Liquidation of BAM:   In the event of the liquidation, dissolution or winding up of BAM or any other distribution of its assets among its holders for the purpose of winding up its affairs (a “BAM Liquidation Event”), all of the then outstanding Exchange LP Units will be automatically redeemed by Sidecar Exchange LP on the effective date of the BAM Liquidation Event and a holder of Exchange LP Units will be entitled to receive an amount per unit equal to the current market price of a BAM Share applicable on the last business day prior to the BAM Liquidation Event plus the dividend amount, if any, which will be satisfied in full by Sidecar Exchange LP causing to be delivered to such holder one BAM Share plus the dividend amount, if any.

 

 

 

 

Conversion:  

BAM or any of its Subsidiaries will be entitled to convert the Exchange LP Units into LP Units on a one for one basis. The conversion would occur on a tax deferred basis by filing an election under subsection 97(2) of the Tax Act.

 

Reporting Issuer Obligations:  

Sidecar Exchange LP will be exempt from reporting issuer obligations provided that it provides all disclosure materials distributed to holders of BAM Shares to holders of Exchange LP Units. 

 

The Exchange LP Units will not be listed on a stock exchange or other public market. 

 

Agreements:  

Sidecar Exchange LP Agreement – the Sidecar Exchange LP Agreement will set out the rights of the holders of the Exchange LP Units 

 

Support Agreement – the Support Agreement will set out customary ancillary obligations and rights of BAM 

 

Fiscal Year-End:   The fiscal year-end of Sidecar Exchange LP will be December 31.

 

 

 

 

SCHEDULE B

 

VENDOR WIRE TRANSFER INSTRUCTIONS

 

[TO BE INSERTED]