TAUBMAN CENTERS, INC. COMMON STOCK, PAR VALUE $0.01 PER SHARE ________ UNDERWRITING AGREEMENT

 

 

 

 

 

 

 

 

             June 14, 2011

 

Goldman, Sachs & Co.

200 West Street

New York, New York 10282-2198

 

Ladies and Gentlemen:

 

Taubman Centers, Inc., a Michigan corporation that operates as a self-administered and self-managed real estate investment trust (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of 1,750,000 shares (the “Firm Securities”) and, at the election of the Underwriters, up to 262,500 additional shares (the “Optional Securities”) of Common Stock, par value $0.01 per share (“Common Stock”), of the Company (the Firm Securities and the Optional Securities that the Underwriters elect to purchase pursuant to Section 2 hereof being collectively called the “Securities”).  In the event only one underwriter is listed in Schedule I hereto, any references in this Agreement to “any Underwriter,” “each Underwriter”, “each of the Underwriters,” “the Underwriters,” the “several Underwriters”, “you,” “your” and similar terms shall be deemed to refer to the sole underwriter in the singular form listed in such Schedule I.

 

1. The Company represents and warrants to, and agrees with, each of the Underwriters, as of the date hereof and as of each Time of Delivery (as defined in Section 4 hereof), that:

 

(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-174880) in respect of the Securities has been filed by the Company with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; pursuant to the Act, such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued under the Act and no proceeding for that purpose has been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including the Basic Prospectus, all exhibits thereto and any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus, the Prospectus and the Registration Statement shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus or Registration Statement; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference into such Basic Prospectus, Preliminary Prospectus or Prospectus, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any documents filed under the Exchange Act, including any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”);

 

(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through you expressly for use therein;

 

(c) For the purposes of this Agreement, the “Applicable Time” is 5:25 p.m. (New York City time) on the date of this Agreement.  The Pricing Prospectus, as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a) hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Prospectus as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through you expressly for use therein;

 

(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the applicable rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through you expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule II(b) hereto;

 

 

 

(e) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder; the Registration Statement does not and will not, as of the applicable effective date and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus does not and will not, as of the applicable filing date, and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through you expressly for use therein;

 

(f) (i) Otherwise than as set forth or contemplated in the Pricing Prospectus, the Company and its Subsidiaries (defined below), considered as a single enterprise, have not sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any material loss or material interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; and (ii) otherwise than as set forth or contemplated in the Pricing Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus there has not been (A) any change in the capital stock other than shares issued pursuant to any benefit plans of the Company or its subsidiaries or pursuant to the continuing offer of the Company, (B) any increase in the long term debt (which is debt with a maturity of a year or more) in excess of $15,000,000 of the Company and its Subsidiaries, considered as a single enterprise or (C) any material adverse change, or any development involving a prospective material adverse change, in the financial condition, shareholders’ equity, results of operations or operations of the Company and its Subsidiaries, considered as a single enterprise (a “Material Adverse Effect”);

 

(g) (i) The Company and each Subsidiary has good and marketable title in fee simple to each material real property owned by each of them and good and marketable title to all material personal property owned by each of them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Pricing Prospectus or such as do not materially affect the value of such property (except for reciprocal easement agreements relating to common area maintenance that do not materially interfere with the use made and proposed to be made of such property by the Company or such Subsidiary) and do not materially interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries; and, except as described in the Pricing Prospectus, any material real property and buildings held under lease by the Company and each Subsidiary are held by them under valid, subsisting and enforceable leases with such exceptions as do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.  As used in this Agreement, “Subsidiary” shall mean each consolidated subsidiary of the Company and each joint venture included in determining the Company’s income from unconsolidated joint ventures in the consolidated financial statements for the Company for the most recent period included in the Prospectus (collectively, the “Subsidiaries”);

 

(h) (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Michigan, with corporate power and authority to own its properties and conduct its business as described in the Pricing Prospectus, (ii) the Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified or to be in good standing would not reasonably be expected to result in a Material Adverse Effect; and (iii) each Significant Subsidiary (as defined under Rule 1-02(w) of Regulation S-X, which is set forth on Schedule III) has been duly organized and is validly existing as a corporation or other organization in good standing under the laws of the jurisdiction in which it is chartered or organized;

 

(i) The Company has an authorized capitalization as set forth in the Pricing Prospectus and the Prospectus; and all of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and all of the issued shares of Common Stock of the Company conform to the description of the Common Stock contained in the Pricing Prospectus and Prospectus in all material respects; and all of the issued shares of capital stock of each Subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and, except as otherwise set forth in the Pricing Prospectus, are owned directly or indirectly by the Company, free and clear of all liens, encumbrances or claims;

 

(j) The Securities to be issued and sold by the Company to the Underwriters hereunder have been duly authorized and, when issued and delivered against payment therefor as provided herein and as otherwise contemplated by the Prospectus and this Agreement, will be validly issued and fully paid and non-assessable; and the Securities conform to the description of the Securities contained in the Prospectus in all material respects;

 

(k) The issue and sale of the Securities and the performance by the Company of its obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of (i) any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, (ii) the provisions of the Restated Articles of Incorporation or Restated By-laws of the Company, or (iii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties; except, in the case of clauses (i) and (iii), for such conflicts, breaches, violations or defaults that would not materially and adversely affect the value of the Securities, materially and adversely affect the ability of the Company to consummate the transactions contemplated hereby or reasonably be expected to have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement except (A) such consents, approvals, authorizations, registrations or qualifications as may be required in connection with the distribution of the Securities by the Underwriters (including under state securities or Blue Sky laws) and (B) such as have been obtained under the Act;

 

(l) Neither the Company nor any of its Significant Subsidiaries is (i) in violation of its Articles of Incorporation or By-laws (or other organizational documents) or (ii) is in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except, in the case of this clause (ii), for such violations or defaults (A) with respect to The Pier Shops or Regency Square, as set forth or contemplated in the Pricing Prospectus or (B) that would not materially and adversely affect the ability of the Company to consummate the transactions contemplated hereby or reasonably be expected to have a Material Adverse Effect;

 

(m) The statements set forth in the Pricing Prospectus and Prospectus under the caption “Description of Securities Being Offered”, insofar as they purport to constitute a summary of the terms of the Common Stock, and under the caption “Material U.S. Federal Income Tax Consequences”, insofar as they purport to describe the facts and the provisions of the laws and documents referred to therein, in each case are accurate and fair in all material respects;

 

(n) Other than as set forth in the Pricing Prospectus and the Prospectus or other than proceedings that would not reasonably be expected to have a Material Adverse Effect or adversely affect the ability of the Company to consummate the transactions contemplated hereby, there are no legal or governmental proceedings pending, or to the best of the Company’s knowledge, threatened, to which the Company or any of its Subsidiaries is a party or of which any property of the Company or any of its Subsidiaries is the subject;

 

(o) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will not be an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended;

 

(p) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under the Act;

 

 

 

(q) KPMG LLP, who has audited the consolidated balance sheets of the Company as of December 31, 2010 and 2009, and the related consolidated statements of operations and comprehensive income, changes in equity, and cash flows for each of the years in the three-year period ended December 31, 2010, and has audited the Company’s internal control over financial reporting as of December 31, 2010, all of which are incorporated by reference in the Registration Statement, Pricing Prospectus and Prospectus, was and will be an independent registered public accounting firm with respect to the Company as of the Applicable Time and each Time of Delivery, as required by the Act and the rules and regulations of the Commission thereunder;

 

(r) The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.  The Company’s internal control over financial reporting was effective as of March 31, 2011 and, to the Company’s knowledge, there are no material weaknesses in its internal control over financial reporting as of the date hereof;

 

(s) Since the date of the latest audited financial statements of the Company included or incorporated by reference in the Pricing Prospectus and the Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting;

 

(t) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its Subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures were effective as of March 31, 2011 and, to the Company’s knowledge, its disclosure controls and procedures are effective as of the date hereof;

 

(u) (i) Other than as set forth in the Pricing Prospectus and the Prospectus or which would not reasonably be expected to have a Material Adverse Effect, the property, assets and operations of the Company and its Subsidiaries comply with all applicable federal, state and local law, common law, doctrine, rule, order, decree, judgment, injunction, license, permit and regulation relating to environmental matters (the “Environmental Laws”); (ii) to the knowledge of the Company, neither the Company nor any Subsidiary has received written notice of any federal, state or local investigation relating to the property, assets or operations of the Company and its Subsidiaries evaluating whether any remedial action is needed to respond to a release into the environment of any substance regulated by, or form the basis of liability under, any Environmental Laws (a “Hazardous Material”), except which would not reasonably be expected to have a Material Adverse Effect; and (iii) there are not any pending or, to the Company’s knowledge, threatened lawsuits against the Company or any Subsidiary with respect to violations of an Environmental Law or in connection with the release of any Hazardous Material into the environment, except which would not reasonably be expected to have a Material Adverse Effect;

 

(v) Since the commencement of the Company’s taxable year which ended December 31, 1992, it has continuously qualified to be taxed as a real estate investment trust pursuant to Sections 856 and 860 of the Internal Revenue Code of 1986, as amended, and the Company’s present and contemplated organization, ownership, method of operation, assets, and income will enable it to so qualify for the taxable year ending December 31, 2011 and thereafter; and

 

(w) The Company and its Subsidiaries have filed all federal, state, local and foreign tax returns that have been required to be filed that if not filed would reasonably be expected to have a Material Adverse Effect and have paid all taxes required to be paid by them and any and all assessments, fines and penalties levied against them or any of them to the extent that any of the foregoing has become due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith and as for which adequate reserves have been established in accordance with generally accepted accounting principles or as would not reasonably be expected to result in a Material Adverse Effect.

 

2. Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price per share of $55.72, the number of Firm Securities set forth opposite the name of such Underwriter in Schedule I hereto and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Securities as provided below, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Optional Securities as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Securities by a fraction, the numerator of which is the maximum number of Optional Securities which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Securities that all of the Underwriters are entitled to purchase hereunder.

 

The Company hereby grants to the Underwriters the right to purchase at their election up to 262,500 shares of Optional Securities, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm Securities, provided that the purchase price per share of Optional Securities shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Securities but not payable on the Optional Securities.  Any such election to purchase Optional Securities may be exercised from time to time, in whole or in part, only by written notice from you to the Company, given within a period of 30 calendar days after the date of this Agreement, and setting forth the aggregate number of Optional Securities to be purchased and the date on which such Optional Securities are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.

 

3. Upon the authorization by you of the release of the Firm Securities, the several Underwriters propose to offer the Firm Securities for sale upon the terms and conditions set forth in the Prospectus.

 

4. (a)  The Securities to be purchased by each Underwriter hereunder, in such authorized denominations and registered in such names as you may request upon at least forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the Company to you, in book-entry form through the facilities of The Depository Trust Company (“DTC”), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to you at least forty-eight hours in advance.  The time and date of such delivery and payment shall be, with respect to the Firm Securities, 9:30 a.m. (New York City time) on June 17, 2011 or such other time and date as you and the Company may agree upon in writing, and, with respect to the Optional Securities, 9:30 a.m. (New York City time) on the date specified by you in the written notice given by them of the Underwriters’ election to purchase such Optional Securities in accordance with Section 2, or such other time and date as you and the Company may agree upon in writing.  Such time and date for delivery of the Firm Securities is herein called the “First Time of Delivery”, such time and date for delivery of the Optional Securities, if not the First Time of Delivery, is herein called the “Second Time of Delivery”, and each such time and date for delivery is herein called a “Time of Delivery”.

 

(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any additional documents requested by the Underwriters pursuant to Section 8(k) hereof, will be delivered at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004 (the “Closing Location”).  A meeting will be held at the Closing Location at 2:00 p.m. (New York City time), on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto.  For the purposes of this Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to close.

 

 

 

5. The Company agrees with each of the Underwriters:

 

(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the date of this Agreement; to make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the last Time of Delivery to which counsel for the Underwriters shall reasonably object promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file within the required time periods all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required under the Act in connection with the offering or sale of the Securities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities  for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Securities by the Underwriters (references herein to the Registration Statement shall include any such amendment or new registration statement);

 

(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus to which counsel for the Underwriters shall reasonably object promptly after reasonable notice thereof;

 

(c) Promptly from time to time to take such action as you may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or subject itself to taxation for doing business in any jurisdiction;

 

(d) To furnish the Underwriters with (i) electronic copies of the Prospectus prior to 10:00 a.m. (New York City time) on the New York Business Day next succeeding the date of this Agreement and from time to time, and (ii) written and electronic copies of the Prospectus  prior to 10:00 a.m., New York City time, on the second New York Business Day next succeeding the date of this Agreement and from time to time, in each case in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, in the reasonable opinion of counsel to the Underwriters, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;

 

(e) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);

 

(f) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-up Period”), not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of any securities of the Company that are substantially similar to the Securities, including but not limited to any options or warrants to purchase shares of Common Stock or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any such substantially similar securities (other than pursuant to employee stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without your prior written consent, other than (1) the offer and sale of Securities pursuant to this Agreement, (2) the grant of options, restricted stock units or other equity awards pursuant to (a) future inducement grants in connection with the hiring of new officers by the Company or (b) the Company’s existing employee benefit or director plans (including deferral plans), in each case as would not require any filings with the Commission under Section 16 of the Exchange Act except for director grants and deferrals or as otherwise permitted under the lock-up agreements contemplated by Section 8(j), (3) the issuance of Common Stock pursuant to the exercise of options, the settlement of equity awards, and the reinvestment of dividends pursuant to the Company’s existing dividend reinvestment plans, in each case as would not require any filings with the Commission under Section 16 of the Exchange Act or as otherwise permitted under the lock-up agreements contemplated by Section 8(j), (4) the issuance of Common Stock pursuant to the exchange of Common Stock for “TRG units”, which securities are outstanding as of the date hereof, in connection with the “Continuing Offer” of the Company, as such terms are defined in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010, or (5) actions in the ordinary course consistent with past practices with respect to the Company’s 401K plan;

 

(g) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act;

 

(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Pricing Prospectus and the Prospectus under the caption “Use of Proceeds”;

 

(i) To use its best efforts to list, subject to notice of issuance, the Securities on the New York Stock Exchange (the “Exchange”); and

 

(j) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Securities (the “License”); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.

 

 

 

6. 

 

(a) (i)           The Company represents and agrees that, without your prior consent, it has not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act; each Underwriter represents and agrees that, without the prior consent of the Company and you, it has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus; and any such free writing prospectus the use of which has been consented to by the Company and you is listed on Schedule II(a) hereto;

 

(b) The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and

 

(c) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to you and, if requested by you, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through you expressly for use therein.

 

7. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration and sale of the Securities under the Act and all other expenses in connection with the preparation, printing, reproduction and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(c) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) all fees and expenses in connection with listing the Securities on the Exchange, and any stock or transfer taxes and stamp or similar duties on the issuance and listing of the Securities; (v) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities; (vi) the cost and charges of any transfer agent or registrar; and (vii) all other costs and expenses incident to the performance of the Company’s obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section and Sections 9 and 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.

 

8. The obligations of the Underwriters hereunder as to the Securities to be delivered at each Time of Delivery shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of such Time of Delivery, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:

 

(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;

 

(b) Sullivan & Cromwell LLP, counsel for the Underwriters, shall have furnished to you their written opinion and disclosure letter, each dated such Time of Delivery, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters, and may rely upon the opinion of Michigan counsel with respect to matters of Michigan law;

 

(c) Chris Heaphy, Esq., Senior Vice President, General Counsel and Secretary for The Taubman Company, and Assistant Secretary for the Company, shall have furnished to you his written opinion dated such Time of Delivery, in form and substance satisfactory to you, to the effect set forth in Annex I(A) hereto, and he may rely upon the opinion of Michigan counsel with respect to matters of Michigan law:

 

(d) Honigman Miller Schwartz and Cohn LLP, counsel for the Company, shall have furnished to you their written opinions and disclosure letter, each dated such Time of Delivery, in form and substance reasonably satisfactory to you, to the effect set forth in Annex I(B) and Annex I(C) hereto;

 

(e) On the date of the Prospectus at a time contemporaneous with the execution of this Agreement, on the effective date of any post effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, KPMG LLP shall have furnished to you a “comfort” letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;

 

(f) (i)           Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements of the Company included or incorporated by reference in the Pricing Prospectus and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus and the Prospectus there shall not have been any change in the capital stock or long-term debt (which is debt with a maturity of a year or more) of the Company or any of its Subsidiaries or any Material Adverse Effect, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;

 

(g) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the Exchange; or (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;

 

 

 

(h) The Company shall have complied with the provisions of Section 5(d) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement;

 

(i) The Securities shall have been duly listed, subject to notice of issuance, on the Exchange;

 

(j) The Company has obtained and delivered to the Underwriters executed copies of “lock-up” agreements from the directors and executive officers of the Company listed on Schedule IV hereto, to be effective during the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, substantially to the effect set forth in Annex II hereto; and

 

(k) The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section 8 and as to such other matters as you may reasonably request.

 

9. (a)           The Company will indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act, from and against any losses, claims, damages or liabilities, joint or several, that arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter, its affiliates, directors or officers, or if applicable, each person who controls such Underwriter within the meaning of Section 15 of the Act, for any legal or other expenses reasonably incurred in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter through you expressly for use therein.

 

(b) Each Underwriter will indemnify and hold harmless the Company, its affiliates, directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the Act, from and against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through you expressly for use therein; and will reimburse the Company, its affiliates, directors or officers, or if applicable, each person who controls the Company within the meaning of Section 15 of the Act, for any legal or other expenses reasonably incurred in connection with investigating or defending any such action or claim as such expenses are incurred.

 

(c) Promptly after receipt by an indemnified party under subsection (a) or (b) of this Section 9 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection.  In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation.  No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.  The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff (and the indemnified party has otherwise acted in accordance with this Section 9), then the indemnifying party agrees to indemnify the indemnified party under this Section 9.

 

(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities.  If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations.  The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the financial benefit received by the Underwriters (which, for purposes hereof, shall be deemed to equal (x) the total number of Securities purchased by the Underwriters multiplied by (y)(i) $57.24 (the closing price of the Common Stock on the Exchange on June 14, 2011) minus (ii) the purchase price per share set forth in Section 2).  The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d).  The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.

 

(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.

 

 

 

10. The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Securities.

 

11. If for any reason any of the Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse you for all out of pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by you in making preparations for the purchase, sale and delivery of the Securities not so delivered, but the Company shall then be under no further liability to you except as provided in Sections 7 and 9 hereof.

 

All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you at Goldman, Sachs & Co., 200 West Street, New York, New York 10282-2198, Attention: Registration Department; and if to the Company, shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.

 

In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

 

12. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 9 and 10 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.

 

13. Time shall be of the essence of this Agreement.  As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.

 

14. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent, fiduciary or financial advisor of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate.  The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.

 

15. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.

 

16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

17. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

18. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.

 

19. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.

 

If the foregoing is in accordance with your understanding, please sign and return to us four counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof shall constitute a binding agreement between you and the Company.

 

 

Very truly yours,

TAUBMAN CENTERS, INC.

By: /s/ Lisa A. Payne

Name:  Lisa A. Payne

Title:    Vice Chairman and Chief Financial Officer

 

Accepted as of the date hereof:

 

GOLDMAN, SACHS & CO.

By: /s/ Goldman, Sachs & Co.

(Goldman, Sachs & Co.)

SCHEDULE I
	Total Number of Firm Securities to be Purchased	Number of Optional Securities to be Purchased if Maximum Option Exercised
Underwriter
Goldman, Sachs & Co..............................................................................................................................	1,750,000	262,500
Total ...................................................................................................................................

 

 

(a) Issuer Free Writing Prospectuses:

 

None

 

(b) Additional Documents Incorporated by Reference:

 

None

 

 

 

 

Dolphin Mall Associates LLC

 

La Cienega Partners Limited Partnership

 

Short Hills Associates, L.L.C.

 

Taub-Co Finance LLC

 

Taubman Auburn Hills Associates Limited Partnership

 

Taubman Cherry Creek Shopping Center L.L.C.

 

The Taubman Company LLC

 

The Taubman Realty Group Limited Partnership

 

Twelve Oaks Mall LLC

 

 

 

 

 

 

Robert S. Taubman

 

Lisa A. Payne

 

William. S. Taubman

 

Denise A. David

 

Ester R. Blum

 

Steven E. Eder

 

Chris B. Heaphy

 

Stephen J. Kieras

 

Robert R. Reese

 

David T. Weinert

 

Rene Tremblay

 

Graham T. Allison

 

Jerome A. Chazen

 

Craig M. Hatkoff

 

Peter Karmanos, Jr.

 

William U. Parfet

 

Ronald W. Tysoe

 

 

 

Ladies and Gentlemen:

I have acted as counsel to Taubman Centers, Inc., a Michigan corporation (the “Company”), in connection with the public offering of up to 2,012,500 shares (the “Securities”) of the Company’s Common Stock, par value $0.01 per share (“Common Stock”), pursuant to the Company’s prospectus dated June 14, 2011 (the “Basic Prospectus”), included in the Company’s Registration Statement on Form S-3 (No. 333-174880) (the “Registration Statement”), as supplemented by the prospectus supplements dated June 14, 2011 (the “Pricing Prospectus”) and June 14, 2011 (the “Prospectus”).  This opinion letter is provided to you at the request of the Company pursuant to Section 8(c) of the Underwriting Agreement, dated as of June 14, 2011 (the “Underwriting Agreement”), between the Company and Goldman, Sachs & Co. (the “Underwriter”).  Except as otherwise indicated, capitalized terms used in this opinion letter are defined as set forth in the Underwriting Agreement.

In so acting, I have examined the Underwriting Agreement, the Registration Statement, the Basic Prospectus, the Pricing Prospectus and the Prospectus, and have considered such matters of law and of fact, and relied upon such certificates and other information furnished to me, as I have deemed appropriate as a basis for my opinions set forth below.  In giving the opinions set forth in this opinion letter, I have assumed the legal capacity of all natural persons, the authenticity of all documents submitted to me as originals and the conformity to original documents of all documents submitted to me as copies.  As to matters involving the facts specified therein, I have relied solely, without independent investigation or verification, upon (i) the representations and warranties made in the Underwriting Agreement, (ii) certificates of officers of the Company, (iii) the written or oral advice of public officials and (iv) my review of (a) the Company’s Restated Articles of Incorporation (the “Articles”) and Restated By-Laws (the “Bylaws”), and (b) the Certificate of Formation and Limited Partnership Agreement of The Taubman Realty Group Limited Partnership (the “Operating Partnership”).

The law covered by the opinions expressed herein is limited to the Law (as defined below) of the State of Michigan and the Federal Law of the United States (collectively, the “Opining Jurisdiction”) and I do not express any opinion concerning any other laws.  For purposes of this opinion letter, “Law” means the statutes and the judicial and administrative decisions, and the rules and regulations of the governmental agencies of the applicable jurisdiction, but excluding the statutes and ordinances, the administrative decisions, and the rules and regulations of counties, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the Federal, state or regional level), and judicial decisions to the extent that they deal with any of the foregoing.  I disclaim any opinion with respect to specialized laws that are not customarily covered in opinion letters of this kind, such as insolvency, antitrust, pension, employee benefit, tax, environmental, intellectual property, bank regulatory, insurance, labor, and health and safety laws.  My “Actual Knowledge” means my conscious awareness of facts or other information.

I have relied, without investigation or verification, upon the following assumptions:  (i) the constitutionality or validity of a relevant statute, rule, regulation or agency action is not in issue unless a reported decision in the Opining Jurisdiction has specifically addressed but not resolved, or has established, its unconstitutionality or invalidity, and (ii) contracts to which the Company or the Operating Partnership is a party or by which the Company or the Operating Partnership or any of its property is bound and court and administrative orders, writs, judgments and decrees that name the Company or the Operating Partnership and are specifically directed to it or any of its property would be enforced as written, unless I have Actual Knowledge otherwise.

Based upon and subject to the foregoing, I am of the opinion that:

1. The issuance and sale of the Securities being delivered at such Time of Delivery and the performance by the Company with its obligations under the Underwriting Agreement and the consummation of the transactions contemplated by the Underwriting Agreement will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, except for such conflicts, breaches, violations or defaults that would not reasonably be expected to have a Material Adverse Effect, nor will such action result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties, except for such violations that would not reasonably be expected to have a Material Adverse Effect.

2. The Company is not in violation of its Articles or Bylaws nor is it in default in the performance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except for defaults set forth in the Pricing Prospectus, or that would not reasonably be expected to have a Material Adverse Effect.  Each Significant Subsidiary is not in violation of its organizational documents.

3. Other than as set forth in the Pricing Prospectus and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries is a party or of which any property of the Company or any of its Subsidiaries is the subject which, if determined adversely to the Company or any of its Subsidiaries, would reasonably be expected to have a Material Adverse Effect; and, to my Actual Knowledge, no such proceedings are threatened by governmental authorities or other persons.

4. To my Actual Knowledge, there are no contracts or other agreements that are material to the operation of the business of the Company and to which the Company or any Subsidiary is a party, which have not been described fairly in all material respects or incorporated by reference, to the extent required, in the Registration Statement, the Pricing Prospectus or the Prospectus.

At the request of my client, this opinion is provided to you by me in my capacity as counsel to the Company and may not be relied on by any other person or by you for any purpose other than in connection with the transactions provided in the Underwriting Agreement, without, in each instance, my prior written consent.  This opinion letter speaks only as of its date.  I do not undertake any obligation to advise the Underwriter or any other party of changes of law or fact that occur after the date of this opinion letter even though the change may affect the legal analysis, a legal conclusion or an information confirmation in this opinion letter.

Very truly yours,

 

 

 

 

 

 

 

Ladies and Gentlemen:

We have acted as counsel to Taubman Centers, Inc., a Michigan corporation (the “Company”), in connection with the public offering of up to 2,012,500 shares (the “Securities”) of the Company’s Common Stock, par value $0.01 per share (“Common Stock”), pursuant to the Company’s prospectus dated June 14, 2011 (the “Basic Prospectus”), included in the Company’s Registration Statement on Form S-3 (No. 333-174880) (the “Registration Statement”), as supplemented by the prospectus supplements dated June 14, 2011 (the “Pricing Prospectus”) and June 14, 2011 (the “Prospectus”).  This opinion letter is provided to you at the request of the Company pursuant to Section 8(d) of the Underwriting Agreement, dated June 14, 2011 (the “Underwriting Agreement”), between the Company and Goldman, Sachs & Co. (the “Underwriter”).  Except as otherwise indicated, capitalized terms used in this opinion letter are defined as set forth in the Underwriting Agreement.

 

In so acting, we have examined the Underwriting Agreement, the Registration Statement, the Basic Prospectus, the Pricing Prospectus and the Prospectus, and we have considered such matters of law and of fact, and relied upon such certificates and other information furnished to us, as we have deemed appropriate as a basis for our opinions set forth below.  In giving the opinions set forth in this opinion letter, we have assumed the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies.  As to matters involving the facts specified therein, we have relied solely, without independent investigation or verification, upon (i) the representations and warranties made in the Underwriting Agreement, (ii) certificates of officers of the Company, (iii) the written or oral advice of public officials and (iv) our review of (a) the Company’s Restated Articles of Incorporation (the “Articles”) and Restated By-Laws (the “Bylaws”), and (b) the Certificate of Formation and Limited Partnership Agreement of The Taubman Realty Group Limited Partnership, as amended (the “Operating Partnership”).

The law covered by the opinions expressed herein is limited to the Law (as defined below) of (i) the State of Michigan, the Delaware Limited Partnership Act and the Federal Law of the United States, and (ii) exclusively for paragraphs 5, 6 and 9 below, the State of New York ((i) and (ii) collectively, the “Opining Jurisdiction”) and we do not express any opinion concerning any other laws.  We are not admitted to practice in the State of Delaware and, with respect to the opinions set forth below, insofar as they relate to the Delaware Limited Partnership Act, we have limited our review to standard compilations available to us of the Delaware Limited Partnership Act, which we have assumed to be accurate and complete, and without any review of case law.  For purposes of this opinion letter, “Law” means the statutes, and, other than with respect to the Delaware Limited Partnership Act, the judicial and administrative decisions, and the rules and regulations of the governmental agencies of the applicable jurisdiction, but excluding the statutes and ordinances, the administrative decisions, and the rules and regulations of counties, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the Federal, state or regional level), and judicial decisions to the extent that they deal with any of the foregoing.  Our “Actual Knowledge” (or any form thereof, including without limitation “Actually Known”) means the conscious awareness of facts or other information by the lawyers of Honigman Miller Schwartz and Cohn LLP who regularly perform services for the Company or have represented the Company in connection with the offering, sale and issuance of the Securities and the transactions contemplated by the Underwriting Agreement.

We have relied, without investigation or verification, upon the following assumptions:  (i) the constitutionality or validity of a relevant statute, rule, regulation or agency action is not in issue unless a reported decision in the Opining Jurisdiction has specifically addressed but not resolved, or has established, its unconstitutionality or invalidity, and (ii) contracts to which the Company or the Operating Partnership is a party or by which the Company or the Operating Partnership or any of its property is bound and court and administrative orders, writs, judgments and decrees that name the Company or the Operating Partnership and are specifically directed to it or any of its property would be enforced as written, unless we have Actual Knowledge otherwise.  We have only considered the applicability of Laws which in our experience and through the exercise of customary professional diligence we recognize as being directly applicable to the Company, the transactions described in the Underwriting Agreement, or both.  We disclaim any opinion with respect to specialized laws that are not customarily covered in opinion letters of this kind, such as tax, insolvency, bankruptcy, antitrust, pension, employee benefit, environmental, intellectual property, bank regulatory, usury, insurance, labor, and health and safety laws, and the effects of such specialized laws.

Based upon and subject to the foregoing, we are of the opinion that:

1. The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Michigan, with corporate power and authority to own its properties and conduct its business as described in the Pricing Prospectus and the Prospectus.

2. The Operating Partnership is a limited partnership duly organized and validly existing in good standing under the laws of the State of Delaware, with limited partnership power and authority to own its properties and conduct its business as described in the Pricing Prospectus and the Prospectus.

3. The Securities have been duly authorized and, when issued and delivered to and paid for by the Underwriter in accordance with the Underwriting Agreement, will be validly issued, fully paid and non-assessable and free of any preemptive or similar rights to subscribe for shares of capital stock of the Company arising under the Michigan Business Corporation Act, the Articles or the Bylaws.  To our Actual Knowledge, the issuance of the Securities is not subject to any contractual right to subscribe for the Securities under any contract to which the Company is a party and which is filed as an exhibit to the Registration Statement or the Company’s Annual Report on Form 10-K for the year ended December 31, 2010.

4. Based solely upon certificates received from public officials in the applicable jurisdictions, each of the Company and the Operating Partnership is duly qualified as a foreign corporation or limited partnership for the transaction of business and is in good standing under the laws of those jurisdictions set forth below its name in the attached Exhibit B.

5. The execution, delivery and performance of the Underwriting Agreement have been duly authorized by all necessary corporate action on behalf of the Company, and the Underwriting Agreement has been executed and delivered by the Company.

6. The execution, delivery and performance by the Company of its obligations under the Underwriting Agreement will not violate any Law and will not result in a default under or breach of any existing obligation of the Company under any agreement or instrument filed as an exhibit to the Registration Statement or the Company’s Annual Report on Form 10-K for the year ended December 31, 2010, except in each case as would not have a Material Adverse Effect or a material adverse effect on the power or ability of the Company to perform its obligations under the Underwriting Agreement or to consummate its part of the transactions contemplated by the Registration Statement and Prospectus.

7. The issuance and sale of the Securities and the compliance by the Company with its obligations under the Underwriting Agreement and the consummation of the transactions contemplated in the Underwriting Agreement will not result in any violation of the provisions of the Articles or Bylaws.

8. Neither the Company nor the Operating Partnership is, and after giving effect to the offering and sale of the Securities and the application of proceeds thereof as described in the Prospectus, neither the Company nor the Operating Partnership would be on the date hereof, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

 

 

 

9. Except where the failure to file or to obtain such authorization, approval, consent, license, order, registration, qualification or decree, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, would not prevent the Company from performing its part of the transactions contemplated under the Pricing Prospectus, the Prospectus, or the Underwriting Agreement, or as disclosed in or incorporated by reference into the Registration Statement, the Pricing Prospectus and the Prospectus or as required under Federal or state securities or blue sky laws or by the Financial Industry Regulatory Agency in connection with the purchase and distribution of the Securities by the Underwriter, no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any U.S. Federal, New York or Michigan court, governmental authority or agency, is necessary or required for the due authorization, execution or delivery by the Company of the Underwriting Agreement or for the performance by the Company of its part of the transactions contemplated under the Pricing Prospectus, the Prospectus, or the Underwriting Agreement, other than such filings, authorizations, approvals or consents which have already been made, obtained or rendered, as applicable.

10. To our Actual Knowledge, there are no (i) legal or governmental proceedings pending or overtly threatened in writing to which the Company or any Designated Subsidiary (such “Designated Subsidiaries” are listed in Exhibit A hereto) is a party or to which any of their properties is subject, other than proceedings accurately described, in all material respects, in the Pricing Prospectus and the Prospectus (including in the documents incorporated therein by reference), or proceedings that would not have a Material Adverse Effect or a material adverse effect on the power or ability of the Company to perform its obligations under the Underwriting Agreement or to consummate its part of the transactions contemplated by the Registration Statement and Prospectus, or (ii) contracts, or other documents that are required to be filed (by incorporation by reference or otherwise) as exhibits to the Registration Statement that are not filed as required.

This opinion letter may be relied upon by you only in connection with the transactions described in the Underwriting Agreement.  This opinion letter may not be used or relied upon by any other person or for any other purpose whatsoever without, in each instance, our prior written consent.

 

This opinion letter speaks only as of its date.  We do not undertake any obligation to advise you or any other party of changes of law or fact that occur after the date of this opinion letter -- even though the change may affect the legal analysis, a legal conclusion or an information confirmation in this opinion letter.

Very truly yours,

 

 

Ladies and Gentlemen:

 

This is with reference to the registration under the Securities Act of 1933 (the “Securities Act”) and offering of an aggregate of 2,012,500 shares of common stock, par value $0.01 per share (the “Securities”), of Taubman Centers, Inc. (the “Company”) and that certain Underwriting Agreement, dated June 14, 2011 (the “Underwriting Agreement”), between the Company and Goldman, Sachs & Co. (the “Underwriter”).  We have acted as counsel to the Company in connection with the Underwriting Agreement and the public offering of the Securities, pursuant to the Company’s prospectus dated June 14, 2011 (the “Basic Prospectus”), included in the Company’s Registration Statement on Form S-3 (No. 333-174880) (the “Registration Statement”).  The Registration Statement was filed on Form S-3 with the Securities and Exchange Commission (the “Commission”) for an offering of securities pursuant thereto, and documents are incorporated by reference therein.  The Basic Prospectus is supplemented by the Prospectus Supplement, dated June 14, 2011 (the “Prospectus Supplement”), which updates or supplements certain information contained in the Basic Prospectus.  The Basic Prospectus, as supplemented by the Prospectus Supplement, does not necessarily contain a current description of the Company’s business and affairs since, pursuant to Form S-3, it incorporates by reference certain documents filed with the Commission that contain information as of various dates.  This opinion letter is provided to you at the request of the Company pursuant to Section 8(d) of the Underwriting Agreement.  Except as otherwise indicated, capitalized terms used in this opinion letter are defined as set forth in the Underwriting Agreement.

 

In so acting, we have considered such matters of law and of fact, and relied upon such certificates and other information furnished to us, as we have deemed appropriate as a basis for our opinions set forth below.  In giving the opinions set forth in this opinion letter, we have assumed the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies.

 

As counsel to the Company in connection with the preparation of the Registration Statement, the Basic Prospectus and the Prospectus Supplement, we reviewed the Registration Statement, the Basic Prospectus and the Preliminary Prospectus Supplement, dated June 14, 2011 (the “Preliminary Prospectus Supplement” and such Preliminary Prospectus Supplement taken together with the Basic Prospectus being referred to herein as the “Pricing Disclosure Package”), and the Prospectus Supplement, and participated in discussions with your representatives and those of the Company, its accountants and the Company’s internal counsel.  Between the date of the Prospectus Supplement and the time of delivery of this letter, we participated in further discussions with your representatives and those of the Company, its accountants and its internal counsel, concerning certain matters relating to the Company and reviewed certificates of certain officers of the Company and letters addressed to you from the Company’s accountants.  On the basis of the information that we gained in the course of the performance of the services referred to above, considered in the light of our understanding of the applicable law (including the requirements of Form S-3 and the character of the prospectus contemplated thereby) and the experience we have gained through our practice under the Securities Act, we confirm to you that, in our opinion, the Registration Statement, as of the date of the Prospectus Supplement, and the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on their face to comply as to form, in all material respects relevant to the offering of the Securities, to the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.  Also, we confirm to you that the statements contained in the Registration Statement, the Basic Prospectus, the Prospectus Supplement and the Pricing Disclosure Package under the caption “Description of Securities Being Offered—Common Stock” in the Basic Prospectus, insofar as they summarize laws and documents described therein, and under the caption “Underwriting” in the Prospectus Supplement, insofar as they summarize certain provisions of the documents referred to therein, and in each case insofar as relevant to the offering of the Securities, constitute a fair summary of such laws and documents in all material respects.

 

Further, nothing that came to our attention in the course of such review has caused us to believe that, insofar as relevant to the offering of the Securities,

 

(a)           the Registration Statement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or

 

(b)           the Pricing Disclosure Package, as of 5:25 P.M. on June 14, 2011, together with the purchase price (as described in the Prospectus Supplement), taken as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or

 

(c)           the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

We also confirm that nothing that came to our attention in the course of the procedures described in the second sentence of the third paragraph of this letter has caused us to believe that the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the time of delivery of this letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

The limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Basic Prospectus, the Pricing Disclosure Package or the Prospectus Supplement except to the extent specifically noted in the fourth sentence of the second preceding paragraph.  Also, we do not express any opinion or belief as to the financial statements, including the notes thereto, and the supporting schedules, or other financial or accounting information and data derived from such financial statements and schedules or the books and records of the Company, or the report of management’s assessment of the effectiveness of internal control over financial reporting or the auditors’ attestation report thereon, each as included in or omitted from the Registration Statement, the Basic Prospectus, the Pricing Disclosure Package or the Prospectus Supplement.

 

This letter is furnished by us, as counsel to the Company, to you, as the Underwriter, solely for your benefit in your capacity as such, and may not be relied upon by any other person or by you for any other purpose.  This letter may not be quoted, referred to or furnished to any purchaser or prospective purchaser of the Securities and may not be used in furtherance of any offer or sale of the Securities.

 

 

Very truly yours,

 

 

 

 

 

 

 

 

Ladies and Gentlemen:

We have acted as counsel to Taubman Centers, Inc., a Michigan corporation that has made an election to be treated as a real estate investment trust (“REIT”) for federal income tax purposes (the “Company”), in connection with the public offering of up to 2,012,500 shares of the Company’s common stock (the “Offering”), pursuant to the Registration Statement on Form S-3 (File No. 333-174880), filed by the Company with the Securities and Exchange Commission on or about June 14, 2011, under the Securities Act of 1933, as amended (the “Shelf Registration”), and as more fully described in the Company’s prospectus supplement dated June 14, 2011 (the “Prospectus Supplement”), to the prospectus dated June 14, 2011 (together with all exhibits, amendments and supplements thereto (including the Prospectus Supplement), the “Prospectus”).  This opinion, regarding certain federal income tax matters, is being rendered to you at the request of the Company and pursuant to Section 8(d) of the Underwriting Agreement, dated June 14, 2011, among you and the Company.

We have also acted as counsel to the Company in connection with the preparation of the section captioned “Material U.S. Federal Income Tax Consequences” of the Prospectus.

In rendering the opinion stated below, we have examined and, with your consent, relied on the following documents:

 

(i)

Amended and Restated Articles of Incorporation of the Company, dated January 19, 2004, as amended to the date hereof;

(ii)

Second Amendment and Restatement of Agreement of Limited Partnership of The Taubman Realty Group Limited Partnership (the “Partnership”), dated September 30, 1998, as amended to the date hereof (the “Partnership Agreement”);

(iii)

The Operating Agreement of The Taubman Company LLC (the “Manager”), dated October 30, 2001, as amended to the date hereof (the “Operating Agreement”);

(iv)

Amended and Restated Certificate of Incorporation of T-I REIT, Inc.

(“T-I REIT”), dated November 17, 1999, as had been amended through the date of T-I REIT’s liquidation on December 28, 2010;

(v)

The Shelf Registration and the Prospectus;

(vi)

A letter of even date to us from Lisa A. Payne, Chief Financial Officer of the Company, containing certain written representations of the Company (“Certificate of Representations”); and

(vii)

Such other records, certificates and documents as we have deemed necessary or appropriate for purposes of rendering the opinion set forth herein.

In our examination of the foregoing documents, we have assumed, with your consent, that (i) the documents are original documents, or true and accurate copies of original documents, and have not been subsequently amended, (ii) the signatures on each original document are genuine, (iii) where any such document required execution by a person, the person who executed the document had proper authority and capacity, (iv) all representations and statements set forth in such documents are and will be true and correct, (v) where any such document imposes obligations on a person, such obligations have been or will be performed or satisfied in accordance with their terms, (vi) the Company, the Partnership, and the Manager at all times have been and will be organized and operated in accordance with the terms of such documents, as applicable, and (vii) T-I REIT at all times had been organized and operated in accordance with the terms of such documents, as applicable, through the date of T-I REIT’s liquidation on December 28, 2010.  We have not independently investigated or made separate inquiry into any of the representations, facts or assumptions set forth in such documents or any other documents.  We have, consequently, assumed and relied on the Company’s representations that the information presented in the foregoing documents or otherwise furnished to us completely and accurately describes all material facts relevant to our opinion.  Without limiting the foregoing, we have assumed that all statements and descriptions of the past and intended future activities of the Company and its affiliates in the Certificate of Representations are true and accurate, and that all representations that speak in the future, or to the intention or expectation, or to the best of the belief and knowledge of any person(s) are and will be true, correct, and complete as if made without such qualification.  No facts have come to our attention, however, that would cause us to question the accuracy or completeness of such facts, assumptions, or documents in a material way.

For purposes of rendering the opinion stated below, we have assumed that the Offering contemplated by the foregoing documents has been or will be consummated in accordance with the operative documents and that such documents accurately reflect the material facts of the Offering.  In addition, our opinion is based on the assumptions that (i) the Company has been and will continue to be operated in accordance with the laws of the State of Michigan, (ii) the Partnership has been and will continue to be operated in accordance with the laws of the State of Delaware, (iii) the Manager has been and will continue to be operated in accordance with the laws of the State of Delaware, and (iv) T-I REIT had been operated in accordance with the laws of the State of Delaware through the date of T-I REIT’s liquidation on December 28, 2010.

Our opinion is also based on the assumptions that (i) the Company has been and will continue to be operated in the manner described in the relevant organizational documents, (ii) the Partnership has been and will continue to be operated in the manner described in the Partnership Agreement, (iii) the Manager has been and will continue to be operated in the manner described in the Operating Agreement, and (iv) T-I REIT had been operated in the manner described in the relevant organizational documents through the date of T-I REIT’s liquidation on December 28, 2010; provided, however, that in making the assumptions set forth in this paragraph or in relying on substantially similar representations in the Certificate of Representations, we do not thereby assume that the Company, the Partnership, or the Manager has been or will be, or that

T-I REIT had been, operated so as the Company or T-I REIT will qualify as a REIT for federal income tax purposes.

In rendering the opinion stated below, we have also considered and relied on the Internal Revenue Code of 1986, as amended (the “Code”), the Treasury Regulations promulgated thereunder (the “Regulations”), administrative rulings and the other interpretations of the Code and Regulations by the courts and the Internal Revenue Service (the “IRS”), all as they exist as of the date hereof.  It should be noted, however, that the Code, Regulations, judicial decisions, and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect.  We can give no assurance, therefore, that legislative enactments, administrative changes or court decisions may not be forthcoming that would modify or supersede the opinion stated herein.  In addition, there can be no assurance that positions contrary to our opinion will not be taken by the IRS, or that a court considering the issues will not hold contrary to such opinion.  Moreover, the opinion set forth below represents our conclusions based upon the documents, facts, assumptions, and representations referred to above.  Any material amendments to such documents or changes in any significant facts after the date hereof, or inaccuracy of such assumptions or representations, could affect the opinion referred to herein.

We express no opinion as to the laws of any jurisdiction other than the federal laws of the United States of America to the extent specifically referred to herein.

 

 

 

 

Other than as expressly stated above, we express no opinion as to any other federal income tax issue or matter relating to the Company.  This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes of matters stated, represented, covenanted, or assumed herein or any subsequent changes in applicable law.  This opinion is issued to you in connection with the Offering and may not be used or relied upon by any other person or for any other purpose without our express written consent.

           Very truly yours,

====================

IRS Circular 230 Disclosure:  To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any federal tax advice contained in this letter was not intended or written by us to be used, and cannot be used by any taxpayer, for the purpose of avoiding federal tax penalties.  This letter was written to support the promotion or marketing of the transaction discussed in this letter, and each taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.

 

 

 

 

Goldman, Sachs & Co.

200 West Street

New York, NY  10282-2198

 

Re:  Taubman Centers, Inc.- Lock-Up Agreement

 

Ladies and Gentlemen:

 

The undersigned understands that you propose to enter into an Underwriting Agreement with Taubman Centers, Inc., a Michigan corporation (the “Company”), providing for a public offering of the Common Stock of the Company (the “Shares”) pursuant to a Registration Statement on Form S-3 to be filed with the Securities and Exchange Commission (the “SEC”).

 

In consideration of the agreement by you to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning from the date hereof and continuing to and including the date 90 days after the date of the final Prospectus covering the public offering of the Shares (the “Lock-Up Period”), the undersigned will not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock of the Company, or any options or warrants to purchase any shares of Common Stock of the Company, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock of the Company, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the SEC (collectively the “undersigned’s shares”).

 

The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the undersigned’s shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the undersigned’s shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares.

 

Notwithstanding the foregoing, the undersigned may transfer the undersigned’s shares during the Lock-Up Period (i) as a bona fide gift or gifts, (ii) to any trust for the direct or indirect benefit of the undersigned or a member of the immediate family of the undersigned, (iii) to the legal representative or a member of the immediate family of the undersigned by way of intestate succession, (iv) pursuant to any contract, instruction or plan in effect on the date hereof that satisfies all of the requirements of Rule 10b5-1(c) of the Securities Exchange Act of 1934, as amended, (v) by way of dispositions from any grantor retained annuity trust established for the direct benefit of the undersigned and/or the immediate family of the undersigned pursuant to the terms of such trust, (vi) by way of distributions to any partnership, corporation or limited liability company controlled by the undersigned or by a member of the immediate family of the undersigned, (vii) [any pledge in effect on the date hereof of Shares or securities convertible into, or exchangeable or exercisable for, Shares as security for a loan pursuant to the terms of such loan, and any dispositions during the Lock-Up Period pursuant to the terms of such loan1, (viii)] with respect to options expiring during the Lock-Up Period, by exercise of such options pursuant to the Company’s benefit plans in effect on the date hereof (including with respect to surrender or forfeiture of Shares to satisfy tax withholding obligations or payment of the exercise price), [(ix)] by way of dispositions from any trust in which the undersigned is a trustee but neither the undersigned nor the immediate family of the undersigned is a beneficiary of such trust, and [(x)] upon your prior written consent; provided that, in the case of any gift, disposition, transfer or distribution pursuant to clause (i) (other than in the case of charitable gifts to not-for-profit corporations), (ii), (iii), (v), or (vi), each transferee shall agree to be bound in writing by the restrictions set forth in this Lock-Up Agreement.  For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.

 

Except as contemplated by the paragraph above, the undersigned now has, and for the Lock-Up Period will have, good and marketable title to the undersigned’s shares, free and clear of all liens, encumbrances, and claims whatsoever.  Notwithstanding the foregoing, the undersigned may maintain any margin account in effect on the date hereof under which the Shares have been pledged. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares except in compliance with the foregoing restrictions.

 

 

 

 

 

---

 

The undersigned understands that the Company and you are relying upon this Lock-Up Agreement in proceeding toward consummation of the offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors, and assigns.

 

Very truly yours,

 

________________________________________

Exact Name of Shareholder

 

________________________________________

Authorized Signature

 

________________________________________

Title