REDEMPTION, REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This REDEMPTION, REGISTRATION RIGHTS AND LOCK-UP AGREEMENT is made as
of the 24th day of July, 1998 (this "AGREEMENT"), among THE MACERICH COMPANY, a
Maryland corporation (the "COMPANY"), The Macerich Partnership, L.P., a Delaware
limited partnership (the "PARTNERSHIP"), and the investors set forth on the
signature pages hereto (each an "INVESTOR" and collectively the "INVESTORS").
W I T N E S S E T H:
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WHEREAS, on the Closing Date (as defined below), each of the Investors
will hold units ("OP Units") representing a limited partnership interest in the
Partnership, which may be redeemed for shares of Common Stock, $.01 par value
per share, of the Company (the "COMMON STOCK") on the terms and conditions set
forth in the Agreement of Limited Partnership (the "PARTNERSHIP AGREEMENT") of
the Partnership;
WHEREAS, the Company has agreed to provide Investors with certain
redemption and registration rights as set forth herein;
WHEREAS, the Investors have agreed to the Lock-Up provision set forth
herein; and
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 "BUSINESS DAY" means any day on which the New York Stock Exchange
is open for trading.
1.2 "CLOSING DATE" means the date hereof.
1.3 "ELIGIBLE SECURITIES" means all or any portion of any shares of
Common Stock acquired by Investors upon redemption of OP Units held by Investors
on the Closing Date, PROVIDED, HOWEVER, that if upon any redemption of OP Units
the Company issues to any Investor Common Stock where its issuance was
registered under the Securities Act ("Unrestricted Common Stock"), such shares
of Unrestricted Common Stock shall not be deemed Eligible
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Securities for purposes of this Agreement and the Investor will have no
registration rights, and the Company will be relieved of all of its obligations
hereunder, with respect to those shares of Unrestricted Common Stock.
As to any proposed offer or sale of Eligible Securities, such
securities shall cease to be Eligible Securities with respect to such proposed
offer or sale when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement or (ii) such securities are permitted to be distributed pursuant to
Rule 144(k) (or any successor provision to such Rule) under the Securities Act
or (iii) such securities shall have been otherwise transferred pursuant to an
applicable exemption under the Securities Act, new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company and such securities shall be freely transferable to the
public without registration under the Securities Act.
1.4 "PERMITTED TRANSFEREES" with respect to each Investor shall mean
any Affiliates (as defined in the Partnership Agreement) of such Investor.
1.5 "PERSON" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, association or other
form of business organization, whether or not regarded as a legal entity under
applicable law, a trust (inter vivos or testamentary), an estate of a deceased,
insane or incompetent person, a quasi-governmental entity, a government or any
agency, authority, political subdivision or other instrumentality thereof, or
any other entity.
1.6 "REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with the registration requirements set
forth in this Agreement including, without limitation, the following: (i) the
fees, disbursements and expenses of the Company's counsel(s) (United States and
foreign), accountants and experts in connection with the registration of
Eligible Securities to be disposed of under the Securities Act; (ii) all
expenses in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the mailing
and delivering of copies thereof to the underwriters and dealers; (iii) the cost
of printing or producing any agreement(s) among underwriters, underwriting
agreement(s) and blue sky or legal investment memoranda, any selling agreements
and any other documents in connection with the offering, sale or delivery of
Eligible Securities to be disposed of; (iv) all expenses in connection with the
qualification of Eligible Securities to be disposed of for offering and sale
under state securities laws, including the fees and disbursements of counsel for
the underwriters in connection with such qualification and in connection with
any blue sky and legal investment surveys; (v) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of Eligible Securities to be disposed of; and (vi)
fees and expenses incurred in connection with the listing of Eligible Securities
on each securities exchange on which securities of the same class are then
listed; PROVIDED, however, that Registration Expenses with respect to any
registration pursuant to this Agreement shall not include underwriting discounts
or commissions attributable to Eligible Securities, transfer taxes applicable to
Eligible Securities or fees, disbursements and expenses of Investor's counsel,
accountants and experts.
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1.7 "SEC" means the Securities and Exchange Commission.
1.8 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the relevant time.
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1 EFFECTIVENESS OF REGISTRATION RIGHTS. This Agreement shall
become effective immediately, provided, however, that the exercise by any
Investor of any registration rights granted pursuant to Article 3 hereof prior
to the first anniversary of the Closing Date shall be subject to such Investor
first having received written consent from the Company.
ARTICLE III
REDEMPTION, REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
3.1 REDEMPTION RIGHTS. The Investor, upon admission as a limited
partner of the Partnership, will be granted rights to redeem OP Units on the
terms and conditions set forth in the Partnership Agreement, provided that
notwithstanding anything set forth in the Partnership Agreement, the Investor
may not: (i) exercise such rights with respect to all or any portion of the OP
Units prior to that date which is six months prior to the Closing, (ii) deliver
more than two separate redemption notices per calendar year, and (iii) redeem
less than 5,000 OP Units (or, if the Investor holds less than 5,000 OP Units,
all of the OP Units held by the Investor) in a single redemption.
3.2 NOTICE AND REGISTRATION. If the Company proposes to register any
shares of Common Stock or other securities issued by it having terms
substantially similar to Eligible Securities ("Other Securities") for public
sale under the Securities Act (whether proposed to be offered for sale by the
Company or by any other Person) on a form and in a manner which would permit
registration of Eligible Securities for sale to the public under the Securities
Act, it will give prompt written notice to each Investor of its intention to do
so, and upon the written request of any of the Investors delivered to the
Company within fifteen (15) Business Days after the giving of any such notice
(which request shall specify the number of Eligible Securities intended to be
disposed of by such Investor and the intended method of disposition thereof) the
Company will use all reasonable efforts to effect, in connection with the
registration of the Other Securities, the registration under the Securities Act
of all Eligible Securities which the Company has been so requested to register
by the Investor or Investors, to the extent required to permit the disposition
(in accordance with the intended method or methods thereof as aforesaid) of
Eligible Securities so to be registered provided that:
(a) if, at any time after giving such written notice of its intention
to register any Other Securities and prior to the effective date of
the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register the Other
Securities, the Company may, at its election, give
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written notice of such determination to the Investor or Investors
seeking registration hereunder (hereafter referred to as the "SELLING
INVESTORS") and thereupon the Company shall be relieved of its
obligation to register such Eligible Securities in connection with the
registration of such Other Securities (but not from its obligation to
pay Registration Expenses to the extent incurred in connection
therewith as provided in Section 3.2);
(b) The Company will not be required to effect any registration
pursuant to this Article 3 if the Company shall have been advised in
writing (with a copy to Investor) by a nationally recognized
independent investment banking firm selected by the Company to act as
lead underwriter in connection with the public offering of securities
by the Company, that in such firm's opinion, a registration of the
Eligible Securities which the Company has been requested to register
by Investor at that time would materially and adversely affect the
Company's own scheduled offering; and
(c) The Company shall not be required to effect any registration of
Eligible Securities under this Article 3 incidental to the
registration of any of its securities in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options or other employee benefit plans.
3.3 REGISTRATION EXPENSES. The Company (as between the Company and
the Selling Investors) shall be responsible for the payment of all Registration
Expenses in connection with any registration pursuant to this Article 3.
3.4 LOCK-UP AGREEMENT. The Investor agrees, that, prior to that date
which is one year following the Closing Date, it will not directly or
indirectly, offer, sell, contract to sell, grant any option to purchase, make
any short sale, transfer, pledge, cause a registration of, or otherwise dispose
of or make a distribution of any of the shares of Common Stock acquired by the
redemption of all or any portion of its OP Units, without the prior written
consent of the Company.
ARTICLE IV
REGISTRATION PROCEDURES
4.1 REGISTRATION AND QUALIFICATION. If and whenever the Company is
required to use all reasonable efforts to effect the registration of any
Eligible Securities under the Securities Act as provided in Article 3, the
Company will as promptly as is practicable:
(a) prepare, file and use all reasonable efforts to cause to become
effective a registration statement under the Securities Act regarding
the Eligible Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the
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provisions of the Securities Act with respect to the disposition of
all Eligible Securities until the earlier of such time as all of such
Eligible Securities have been disposed of in accordance with the
intended methods of disposition by the Selling Investors set forth in
such registration statement or the expiration of twelve (12) months
after such registration statement becomes effective;
(c) furnish to each Selling Investor and to any underwriter of such
Eligible Securities such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including
each preliminary prospectus and any summary prospectus), in conformity
with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or
prospectus, and such other documents as such Selling Investor or such
underwriter may reasonably request;
(d) use all reasonable efforts to register or qualify all Eligible
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the Selling
Investors or any underwriter of such Eligible Securities shall
reasonably request, and do any and all other acts and things which may
be reasonably requested by the Selling Investors or any underwriter to
consummate the disposition in such jurisdictions of the Eligible
Securities covered by such registration statement, except the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is
not so qualified, or to subject itself to taxation in any jurisdiction
where it is not then subject to taxation, or to consent to general
service of process in any jurisdiction where it is not then subject to
service of process;
(e) use all reasonable efforts to list the Eligible Securities on
each national securities exchange on which the Common Stock is then
listed, if the listing of such securities is then permitted under the
rules of such exchange; and
(f) immediately notify the Selling Investors at any time when a
prospectus relating to a registration pursuant to Article 3 hereof is
required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and at the request of any Selling Investor prepare and
furnish to such Investor as many copies of a supplement to or an
amendment of such prospectus as the Selling Investor may request so
that, as thereafter delivered to the purchasers of such Eligible
Securities, such prospectus shall not include 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, in light of the
circumstances under which they were made, not misleading.
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The Company may require the Investors to furnish the Company such information
regarding the Investors and the distribution of such securities as the Company
may from time to time reasonably request in writing and as shall be required by
law or by the SEC in connection with any registration. The Company may also
impose such restrictions and limitations on the distribution of such Eligible
Securities as the Company reasonably believes are necessary or advisable to
comply with applicable law or to effect an orderly distribution, including those
restrictions set forth in Section 4.3 hereof.
4.2 UNDERWRITING. (a) In the event that any registration pursuant to
Article 3 hereof shall involve, in whole or in part, an underwritten offering,
the Company may require Eligible Securities requested to be registered pursuant
to Article 3 to be included in such underwriting on the same terms and
conditions as shall be applicable to the Other Securities being sold through
underwriters under such registration.
(b) If requested by the underwriters for any underwritten offering of
Eligible Securities pursuant to a registration requested hereunder, the Company
will enter into and perform its obligations under an underwriting agreement with
such underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Article 6 hereof. Each
Selling Investor shall be a party to any such underwriting agreement and the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of each such Selling Investor. Such agreement shall also
contain such representations and warranties by each such Selling Investor and
such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Article 6.
4.3 BLACKOUT PERIODS. At any time when a registration statement
effected pursuant to Article 3 relating to Eligible Securities is effective,
upon written notice from the Company to an Investor that the Company has
determined in good faith, with the advice of counsel, that such Investor's sale
of Eligible Securities pursuant to the registration statement would require
disclosure of non-public material information the disclosure of which would have
a material adverse effect on the Company or would otherwise adversely effect a
material financing, acquisition, disposition, merger or other comparable
transaction (a "Blackout"), such Investor shall suspend sales of Eligible
Securities pursuant to such registration statement until the earlier of:
(a) the date upon which such material information is disclosed
to the public or ceases to be material, or
(b) such time as the Company notifies such Investor that sales
pursuant to such registration statement may be resumed.
4.4 QUALIFICATION FOR RULE 144 SALES. The Company will take all
actions reasonably necessary to comply with the filing requirements described in
Rule 144(c)(1) so as to
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enable the Investors to sell Eligible Securities without registration under the
Securities Act and, upon the written request of any Investor, the Company will
deliver to such Investor a written statement as to whether it has complied with
such filing requirements.
ARTICLE V
PREPARATION; REASONABLE INVESTIGATION
5.1 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give each Selling Investor
and the underwriters, if any, and their respective counsel and accountants,
drafts of such registration statement for their review and comment prior to
filing and such reasonable and customary access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the opinion of the Selling Investors and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
6.1 INDEMNIFICATION AND CONTRIBUTION. (a) In the event of any
registration of Eligible Securities hereunder, the Company will enter into
customary indemnification arrangements to indemnify and hold harmless each
Selling Investor, and each Person who participates as an underwriter in the
offering or sale of such securities, and each Person, if any, who controls such
underwriter within the meaning of the Securities Act against any losses, claims,
damages, liabilities and expenses, joint or several, to which such Person may be
subject under the Securities Act or otherwise insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Securities Act, any preliminary
prospectus or final prospectus included therein, or any amendment or supplement
thereto, or any document incorporated by reference therein, or (ii) any 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 the
Company will promptly reimburse each such Person for any legal or any other
expenses reasonably incurred by such Person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
PROVIDED that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus or final prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Selling Investor expressly for use
in the registration statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Selling
Investor or any such
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Person and shall survive the transfer of such securities by such Selling
Investor. The Company also shall agree to provide provision for contribution as
shall be reasonably requested by the Selling Investors or any underwriters in
circumstances where such indemnity is held unenforceable.
(b) Each Selling Investor, by virtue of exercising its registration
rights hereunder, agrees and undertakes to enter into customary indemnification
arrangements to indemnify and hold harmless (in the same manner and to the same
extent as set forth in clause (a) of this Article 6) the Company, each director
of the Company, each officer of the Company who shall sign such registration
statement, each Person who participates as an underwriter in the offering or
sale of such securities and each Person, if any, who controls the Company or any
such underwriter within the meaning of the Securities Act, with respect to any
statement in or omission from such registration statement, any preliminary
prospectus or final prospectus included therein, or any amendment or supplement
thereto, but only to the extent that such statement or omission was made in
reliance upon and in conformity with written information furnished by such
Investor to the Company expressly for use in the registration statement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any such director, officer or controlling
Person and shall survive the transfer of the registered securities by the
Investor and the expiration of this Agreement. Each Investor also shall agree
to provide provision for contribution as shall be reasonably requested by the
Company or any underwriters in circumstances where such indemnity is held
unenforceable.
(c) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Article 6 (with appropriate modifications) shall
be given by the Company and each Selling Investor with respect to any required
registration or other qualification of Eligible Securities under any federal or
state law or regulation of governmental authority other than the Securities Act.
ARTICLE VII
TRANSFER OF REGISTRATION RIGHTS
7.1 TRANSFER OF REGISTRATION RIGHTS. The Investors may NOT transfer
the registration rights granted hereunder to any other Person.
ARTICLE VIII
MISCELLANEOUS
8.1 CAPTIONS. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
8.2 SEVERABILITY. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section
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shall not affect the enforceability or validity of any of the remaining clauses,
provisions or sections hereof to the extent permitted by applicable law.
8.3 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of California, without reference
to its rules as to conflicts or choice of laws.
8.4 MODIFICATION AND AMENDMENT. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by all of the
parties hereto.
8.5 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
8.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding among the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
8.7 NOTICES. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices to
Investors shall be made to the address listed on the stock transfer records of
the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
THE MACERICH COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary and General Counsel
THE MACERICH PARTNERSHIP, L.P.
By: The Macerich Company,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary and General Counsel
THE "INVESTORS"
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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