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Exhibit 4.4
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 24, 1998 (the
"Agreement"), by and among Simon Property Group, Inc. (the "Company") and the
persons set forth on Schedule A (the "Rights Holders"). The Rights Holders and
their respective successors-in-interest and permitted assigns are hereinafter
sometimes referred to as the "Holders."
Upon execution of the Sixth Amended and Restated Agreement of
Limited Partnership (the "Partnership Agreement") of Simon Property Group, L.P.,
a Delaware limited partnership (the "Operating Partnership"), dated as of the
date hereof, among the Company, SPG Properties, Inc., SD Property Group, Inc.
and its limited partners (the "Limited Partners"), the Limited Partners have the
right at any time to exchange all or any portion of their units of partnership
interest ("Units") in the Operating Partnership and in SPG Realty Consultants,
L.P., a Delaware limited partnership (together with the Operating Partnerships
the "Operating Partnerships"), for shares ("Shares") of the Company's common
stock, par value $.0001 per share (including beneficial interest in shares of
common stock, par value $.0001 per share, of SPG Realty Consultants, Inc. ("SPG
Realty") the "Common Stock"), or cash, at the election of the Company and SPG
Realty, and, except as provided herein, any Shares issued upon such exchange
will not be registered under the Securities Act of 1933, as amended (the
"Securities Act"). The Company has agreed to provide certain registration rights
with respect to the Shares held or to be held by certain Limited Partners.
Upon execution of this Agreement and upon consummation of the
transactions contemplated by the Agreement and Plan of Merger, dated as of
February 18, 1998 (the "Merger Agreement"), by and among ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group,
Inc. (the predecessor to SPG Properties, Inc.), Corporate Property Investors
(the predecessor to the Company) and Corporate Realty Consultants, Inc., the
Company has agreed to provide certain registration rights with respect to the
Shares held or to be held by certain former stockholders of Corporate Property
Investors, Inc., which stockholders shall constitute "Holders" for purposes of
this Agreement.
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Securities Subject to this Agreement. The securities entitled to
the benefits of this Agreement are (a) the Shares issued by the Company to the
Holders, (b) the Shares issued by the Company to the Holders upon conversion of
the Series A Convertible Preferred Stock, par value $.0001 per share ("Series A
Preferred Stock"), of the Company and the Shares
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issued by the Company to the Holders upon conversion of the Series B Convertible
Preferred Stock, par value $.0001 per share ("Series B Preferred Stock"), of the
Company, and (c) the Shares issued by the Company to the Holders upon exchange
of the Units pursuant to the Partnership Agreements (collectively, the
"Registrable Securities") but, with respect to any particular Registrable
Security, only so long as it continues to be a Registrable Security. Registrable
Securities shall include any securities issued as a dividend or distribution on
account of Registrable Securities or resulting from a subdivision of the
outstanding shares of Registrable Securities into a greater number of shares (by
reclassification, stock split or otherwise). For the purposes of this Agreement,
a security that was at one time a Registrable Security shall cease to be a
Registrable Security when (a) such security has been effectively registered
under the Securities Act, other than pursuant to Section 4 of this Agreement,
and either (i) the registration statement with respect thereto has remained
continuously effective for 150 days or (ii) such security has been disposed of
pursuant to such registration statement, (b) such security is sold to the public
in reliance on Rule 144 (or any similar provision then in force) under the
Securities Act, (c) such security has been otherwise transferred, and (i) the
Company has delivered a new certificate or other evidence of ownership not
bearing the legend set forth on the Shares upon the initial issuance thereof (or
other legend of similar import) and (ii) in the opinion of counsel to the
Company reasonably acceptable to the Holders and addressed to the Company and
the holder of such security, the subsequent disposition of such security shall
not require the registration or qualification under the Securities Act, or (d)
such security has ceased to be outstanding.
Notwithstanding anything to the contrary herein, any Holder may
exercise any of its rights hereunder prior to its receipt of Shares, provided
that such Holder, simultaneously with the delivery of any notice requesting
registration hereunder, shall deliver an Exercise Notice to the Company
requesting (i) exchange of Units exchangeable into such number of Shares as such
Limited Partner has requested to be registered, or (ii) conversion of the Series
A Preferred Stock or Series B Preferred Stock into such number of Shares as such
Holder has requested to be registered. Any such Exercise Notice so delivered
shall be (a) conditioned on the effectiveness of the requested registration in
connection with which it was delivered and (b) deemed to cover only such number
of Units, Series A Preferred Stock or Series B Preferred Stock as are
exchangeable or convertible into the number of Shares actually sold pursuant to
the requested registration. Any Shares to be issued in connection with any such
Exercise Notice shall be issued upon the closing of the requested registration.
In the event that the Company elects to issue all cash in lieu of Shares upon
the exchange of the Units covered by any such Exercise Notice, the registration
requested by the Limited Partner that delivered such
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Exercise Notice, if a Demand Registration, shall not constitute a Demand
Registration under Section 2.1 hereof.
In the event a Holder holding shares of Series B Preferred Stock
exercises its rights to have Registrable Securities included in a registration
statement pursuant to Section 2, 3 or 4 of this Agreement, it may also request
that shares of Series B Preferred Stock be included therein, subject in all
respects to the terms and conditions of this Agreement, except that,
notwithstanding any provision to the contrary contained in this Agreement, (a)
in the event that the number of Registrable Securities requested to be included
in a registration statement pursuant to Section 2 or 3 is reduced as provided
therein, the shares of Series B Preferred Stock requested to be included shall
be reduced, to zero if so requested by the managing underwriters, before the
number of Registrable Securities is reduced and (b) in no event shall the
Company be required to maintain or extend the effectiveness of a registration
statement solely as a result of the fact that shares of Series B Preferred Stock
covered by such registration statement remain unsold.
Nothing contained herein shall create any obligation on the part of
the Company to issue Shares, rather than cash, upon the exchange of any Units.
2. Demand Registration.
2.1. Request for Registration. At any time, each Holder (or,
with respect to each Holder that is a member of the ▇▇▇▇▇▇▇▇▇ entities listed on
Schedule B (the "▇▇▇▇▇▇▇▇▇ Group"), EJDC LLC) may make a written request per
12-month period (specifying the intended method of disposition) for registration
under the Securities Act (each, a "Demand Registration") of all or part of such
Holder's Registrable Securities (but such part, together with the number of
securities requested by other Holders to be included in such Demand Registration
pursuant to this Section 2.1, shall have an estimated market value at the time
of such request (based upon the then market price of a share of Common Stock of
the Company) of at least $10,000,000). Notwithstanding the foregoing, the
Company shall not be required to file any registration statement on behalf of
any Holder within six months after the effective date of any earlier
registration statement so long as the Holder requesting the Demand Registration
was given a notice offering it the opportunity to sell Registrable Securities
under the earlier registration statement and such Holder did not request that
all of its Registrable Securities be included; provided, however, that if a
Holder requested that all of its Registrable Securities be included in the
earlier registration statement but not all were so included through no fault of
the Holder, such Holder may, but shall not be obligated to, require the Company
to file another registration statement pursuant to a Demand Registration
(subject, in the event of a Demand Registration for less than all
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such remaining Registrable Securities, to the same $10,000,000 limitation set
forth above) exercised by such Holder within six months of the effective date of
such earlier registration statement. Within ten days after receipt of a request
for a Demand Registration, the Company shall give written notice (the "Notice")
of such request to all other Holders and shall include in such registration all
Registrable Securities that the Company has received written requests for
inclusion therein within 15 days after the Notice is given (the "Requested
Securities"). Thereafter, the Company may elect to include in such registration
additional Shares to be issued by the Company. In such event for purposes only
of Section 2.3 (other than the first sentence thereof) and not for purposes of
any other provision or Section hereof (including, without limitation, Section
3), (a) such shares to be issued by the Company in connection with a Demand
Registration shall be deemed to be Registrable Securities and (b) the Company
shall be deemed to be a Holder thereof. All requests made pursuant to this
Section 2.1 shall specify the aggregate number of Registrable Securities to be
registered.
2.2. Effective Registration and Expenses. A registration shall
not constitute a Demand Registration under Section 2.1 hereof until it has
become effective. In any registration initiated as a Demand Registration, the
Company shall pay all Registration Expenses (as defined in Section 8) incurred
in connection therewith, whether or not such Demand Registration becomes
effective, unless such Demand Registration fails to become effective as a result
of the fault of one or more Holders other than the Company, in which case the
Company will not be required to pay the Registration Expenses incurred with
respect to the offering of such Holder or Holders' Registrable Securities. The
Registration Expenses incurred with respect to the offering of such Holder or
Holders' Registrable Securities shall be the product of (a) the aggregate amount
of all Registration Expenses incurred in connection with such registration and
(b) the ratio that the number of such Registrable Securities bears to the total
number of Registrable Securities included in the registration.
2.3. Priority on Demand Registrations. The Holder making the
Demand Registration may elect whether the offering of such Registrable
Securities pursuant to such Demand Registration shall be in the form of a firm
commitment underwritten offering or otherwise; provided, however, that such
Holder may not elect that such offering be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act. In any case in which an offering
is in the form of a firm commitment underwritten offering, if the managing
underwriter or underwriters of such offering advise the Company in writing that
in its or their opinion the number of Registrable Securities proposed to be sold
in such offering exceeds the number of Registrable Securities that can be sold
in such offering without adversely affecting the market for the Company's common
stock, the Company will include in such registration the number of Registrable
Securities that in the opinion of such managing underwriter or underwriters can
be sold without adversely affecting the market for the Company's common stock.
In such event, the number of
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Registrable Securities that in the opinion of such managing underwriter or
underwriters can be sold without adversely affecting the market for the
Company's common stock. In such event, the number of Registrable Securities, if
any, to be offered for the accounts of Holders (including the Holder making the
Demand Registration) shall be reduced pro rata on the basis of the relative
number of any Registrable Securities requested by each such Holder to be
included in such registration to the extent necessary to reduce the total number
of Registrable Securities to be included in such offering to the number
recommended by such managing underwriter or underwriters. In the event the
Holder making the Demand shall receive notice pursuant to this Section 2.3 that
the amount of Registrable Securities to be offered for the account of such
Holder shall be reduced, such Holder shall be entitled to withdraw the Demand by
written notice to the Company within seven (7) days after receipt of such
notice, with the effect that such Demand shall be deemed not to have been made.
2.4. Selection of Underwriters. If any of the Registrable
Securities covered by a Demand Registration are to be sold in an underwritten
offering, the Holders, in the aggregate, that own or will own a majority of the
Registrable Securities that the Company has been requested to register
(including the Requested Securities but excluding any securities to be issued by
the Company), shall have the right to select the investment banker or investment
bankers and manager or managers that will underwrite the offering; provided,
however, that such investment bankers and managers must be reasonably
satisfactory to the Company.
3. Piggyback Registration. Whenever the Company proposes to file a
registration statement under the Securities Act with respect to an underwritten
public offering of Common Stock by the Company for its own account or for the
account of any stockholders of the Company (other than a registration statement
filed pursuant to either Section 2 or 4 hereof), the Company shall give written
notice (the "Offering Notice") of such proposed filing to each of the Holders at
least 30 days before the anticipated filing date. Such Offering Notice shall
offer all such Holders the opportunity to register such number of Registrable
Securities as each such Holder may request in writing, which request for
registration (each, a "Piggyback Registration") must be received by the Company
within 15 days after the Offering Notice is given. The Company shall use all
reasonable efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering, if any, to permit the holders of the Registrable
Securities requested to be included in the registration for such offering to
include such Registrable Securities in such offering on the same terms and
conditions as the common stock of the Company or, if such offering is for the
account of other stockholders, the common stock of such stockholders included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of a
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proposed underwritten offering advise the Company in writing that in its or
their opinion the number of Registrable Securities proposed to be sold in such
offering exceeds the number of Registrable Securities that can be sold in such
offering without adversely affecting the market for the Common Stock, the
Company will include in such registration the number of Registrable Securities
that in the opinion of such managing underwriter or underwriters can be sold
without adversely affecting the market for the Common Stock. In such event, the
number of Registrable Securities, if any, to be offered for the accounts of
Holders shall be reduced pro rata on the basis of the relative number of any
Registrable Securities requested by each such Holder to be included in such
registration to the extent necessary to reduce the total number of Registrable
Securities to be included in such offering to the number recommended by such
managing underwriter or underwriters. The Company shall pay all Registration
Expenses incurred in connection with any Piggyback Registration.
4. Shelf Registration. Following the Effective Time, the Company
shall use reasonable efforts to qualify for registration on Form S-3 for
secondary sales. The Company agrees that, upon the request of any Holder, the
Company shall promptly after receipt of such request notify each other Holder of
receipt of such request and shall cause to be filed on or as soon as practicable
thereafter, but not sooner than 35 days after the receipt of such notice from
such Holder, a registration statement (a "Shelf Registration Statement") on Form
▇-▇, ▇▇▇▇ ▇-▇ or any other appropriate form under the Securities Act for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
thereunder or any similar rule that may be adopted by the Securities and
Exchange Commission (the "Commission") and permitting sales in any manner not
involving an underwritten public offering (and shall register or qualify the
shares to be sold in such offering under such other securities or "blue sky"
laws as would be required pursuant to Section 7(g) hereof) covering up to the
aggregate number of (a) Shares to be issued to such Holder and all other Holders
who request that the Shares to be issued to them upon the exchange of Units held
by them be included in the Shelf Registration Statement upon the exchange of
Units so that the Shares issuable upon the exchange of such Units will be
registered pursuant to the Securities Act and (b) the Shares to be issued to
them upon the conversion of Series A Preferred Stock or Series B Preferred Stock
held by them be included in the Shelf Registration Statement upon the conversion
of Series A Preferred Stock or Series B Preferred Stock so that the Shares
issuable upon the conversion will be registered pursuant to the Securities Act,
and (c) Registrable Securities held by such Holders. The Company shall use its
best efforts to cause the Shelf Registration Statement to be declared effective
by the Commission within three months after the filing thereof. The Company
shall use its reasonable efforts to keep the Shelf Registration Statement
continuously effective (and to register or qualify the shares to be sold in such
offering under such other securities or "blue sky" laws as would be required
pursuant to
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Section 7(g) hereof) for so long as any Holder holds any Shares, Units that may
be exchanged for Shares under the Partnership Agreement, Series A Preferred
Stock or Series B Preferred Stock that may be converted into Shares or until the
Company has caused to be delivered to each Holder an opinion of counsel, which
counsel must be reasonably acceptable to such Holders, stating that such Shares
or Shares issued upon such exchange or conversion may be sold by the Holders
pursuant to Rule 144 promulgated under the Securities Act without regard to any
volume limitations and that the Company has satisfied the informational
requirements of Rule 144. The Company shall file any necessary listing
applications or amendments to existing applications to cause the Shares issuable
upon exchange of Units or conversion of Series A Preferred Stock or Series B
Preferred Stock to be listed on the primary exchange on which the Common Stock
is then listed, if any. Notwithstanding the foregoing, if the Company determines
that it is necessary to amend or supplement such Shelf Registration Statement
and if the Company shall furnish to the Holders a certificate signed by the
Chief Executive Officer of the Company stating that in the good faith judgment
of the Board of Directors of the Company it would be significantly
disadvantageous to the Company and its stockholders for any such Shelf
Registration Statement to be amended or supplemented, the Company may defer such
amending or supplementing of such Shelf Registration Statement for not more than
45 days and in such event the Holders shall be required to discontinue
disposition of any Registrable Securities covered by such Shelf Registration
Statement during such period. Notwithstanding the foregoing, if the Company
irrevocably elects prior to the filing of any Shelf Registration Statement to
issue all cash in lieu of Shares upon the exchange of Units by the Holder
requesting the filing of such Shelf Registration Statement, the Company shall
not be obligated to file such Shelf Registration Statement.
5. Rights of Other Stockholders. The Company shall not grant any
person, for so long as any securities convertible into or exchangeable for
Registrable Securities are outstanding, any rights to have their securities
included in any registration statement to be filed by the Company if such rights
are greater than the rights of the Holders granted herein without extending such
greater rights to the Holders. Subject to the penultimate sentence of Section
2.3 and the last sentence of Section 3, to the extent the securities of such
other stockholders are entitled to be included in any such registration
statement and the managing underwriter or underwriters believe that the number
of securities proposed to be sold in such offering exceeds the number of
securities that can be sold in such offering without adversely affecting the
market for the Company's common stock, the number of securities to be offered
for the accounts of such other stockholders shall be reduced to zero before the
number of securities to be offered for the accounts of the Holders is reduced.
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6. Holdback Agreements.
6.1. Restrictions on Public Sale by Holders of
Registrable Securities. Each Holder (a) participating in an underwritten
offering covered by any Demand Registration or Piggyback Registration or (b) in
the event the Company is issuing shares of its capital stock to the public in an
underwritten offering, agrees, if requested by the managing underwriter or
underwriters for such underwritten offering, not to effect (except as part of
such underwritten offering or pursuant to Article XII of the Partnership
Agreement) any public sale or distribution of Registrable Securities or any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 (or any similar provision then
in force) under the Securities Act, during the period (a "Lock-Out Period")
commencing 14 days prior to and ending no more than 90 days subsequent to the
date (an "Execution Date") specified in the Lock-Out Notice (as defined below)
as the anticipated date of the execution and delivery of the underwriting
agreement (or, if later, a pricing or terms agreement signed pursuant to such
underwriting agreement) to be entered into in connection with such Demand
Registration or Piggyback Registration or other underwritten offering. The
Execution Date shall be no fewer than 21 days subsequent to the date of delivery
of written notice (a "Lock-Out Notice") by the Company to each Holder of the
anticipated execution of an underwriting agreement (or pricing or terms
agreement), and the Execution Date shall be specified in the Lock-Out Notice.
The Company may not deliver a Lock-Out Notice unless it is making a good faith
effort to effect the offering with respect to which such Lock-Out Notice has
been delivered. Notwithstanding the foregoing, the Company may not (a) establish
Lock-Out Periods in effect for more than 208 days in the aggregate within any of
the consecutive fifteen-month periods commencing on August 7, 1997 and (b) cause
any Lock-Out Period to commence (i) during the 45-day period immediately
following the expiration of any Lock-Out Period, such 45-day period to be
extended by one day for each day of delay pursuant to Section 7(a); provided,
however, that in no event shall such extension exceed 90 days; provided,
further, however, that such 90-day limit on extensions shall terminate on
December 31, 1998; or (ii) if the Company shall have been requested to file a
Registration Statement pursuant to Section 2 during such 45-day period (as
extended), until the earlier of (x) the date on which all Registrable Securities
thereunder shall have been sold and (y) 45 days after the effective date of such
Registration Statement. Notwithstanding the foregoing, any Lock-Out Period may
be shortened at the Company's sole discretion by written notice to the Holders,
and the applicable Lock-Out Period shall be deemed to have ended on the date
such notice is received by the Holders. For the purposes of this Section 6.1, a
Lock-Out Period shall be deemed to not have occurred, and a Lock-Out Notice
shall be deemed to not have been delivered, if, within 30 days of the delivery
of a Lock-Out Notice, the Company delivers a written notice (the "Revocation
Notice") to the Holders stating
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that the offering (the "Aborted Offering") with respect to which such Lock-Out
Notice was delivered has not been, or shall not be, consummated; provided,
however, that any Lock-Out Period that the Company causes to commence within 45
days of the delivery of such Revocation Notice shall be reduced by the number of
days pursuant to which the Holders were subject to restrictions on transfer
pursuant to this Section 6.1 with respect to such Aborted Offering.
6.2. Restrictions on Public Sale by the Company. If,
but only if, the managing underwriter or underwriters for any underwritten
offering of Registrable Securities made pursuant to a Demand Registration so
request, the Company agrees not to effect any public sale or distribution of any
of its securities similar to those being registered, or any securities
convertible into or exchangeable or exercisable for such securities (except
pursuant to registrations on Form S-4 or S-8 or any successor or similar forms
thereto) during the 14 days prior to, and during the 180-day period beginning
on, the effective date of such Demand Registration.
7. Registration Procedures. Whenever the Holders have
requested that any Registrable Securities be registered pursuant to Section 2, 3
or 4, the Company shall use its best efforts to effect the registration of
Registrable Securities in accordance with the intended method of disposition
thereof as expeditiously as practicable, and in connection with any such
request, the Company shall as expeditiously as possible:
(a) in connection with a request pursuant to Section
2, prepare and file with the Commission, not later than 40 days (or such longer
period as may be required in order for the Company to comply with the provisions
of Regulation S-X under the Securities Act) after receipt of a request to file a
registration statement with respect to Registrable Securities, a registration
statement on any form for which the Company then qualifies or which counsel for
the Company shall deem appropriate and which form shall be available for the
sale of such Registrable Securities in accordance with the intended method of
distribution thereof and, if the offering is an underwritten offering, shall be
reasonably satisfactory to the managing underwriter or underwriters, and use its
best efforts to cause such registration statement to become effective; provided,
however, that if the Company shall within five (5) Business Days after receipt
of such request furnish to the Holders making such a request a certificate
signed by the Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be
significantly disadvantageous to the Company and its stockholders for such a
registration statement to be filed on or before the date filing would be
required, the Company shall have an additional period of not more than 45 days
within which to file such registration statement (provided that only one such
notice may be given during any 12 month period); and provided, further, that
before filing a
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registration statement or prospectus or any amendments or supplements thereto,
the Company shall (a) furnish to the counsel selected by the Holder making the
demand, or if no demand, then, by the Holders, in the aggregate, that own or
will own a majority of the Registrable Securities covered by such registration
statement, copies of all such documents proposed to be filed, which documents
will be subject to the review of such counsel, and (b) notify each seller or
prospective seller of Registrable Securities of any stop order issued or
threatened by the Commission or withdrawal of any state qualification and take
all reasonable actions required to prevent such withdrawal or the entry of such
stop order or to remove it if entered;
(b) in connection with a registration pursuant to
Section 2, prepare and file with the Commission 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 for a period
of not less than 150 days (or such shorter period that will terminate when all
Registrable Securities covered by such registration statement have been sold,
but not before the expiration of the applicable period referred to in Section
4(3) of the Securities Act and Rule 174 thereunder, if applicable), and comply
with the provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended method of disposition by the sellers
thereof set forth in such registration statement;
(c) notify each seller of Registrable Securities and
the managing underwriter, if any, promptly, and (if requested by any such
Person) confirm such advice in writing,
(i) when the prospectus or any supplement
thereto or amendment or post-effective amendment to the registration
statement has been filed, and, with respect to the registration
statement or any post-effective amendment, when the same has become
effective,
(ii) of any request by the Commission for
amendments or post-effective amendments to the registration statement
or supplements to the prospectus or for additional information,
(iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the registration
statement or the initiation or threatening of any proceedings for that
purpose,
(iv) if at any time during the distribution
of securities by the managing underwriter the representations and
warranties of the Company to be contained in the underwriting agreement
cease to be true and correct in all material respects, and
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(v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(d) use its best efforts to prevent the issuance of
any stop order suspending the effectiveness of the registration statement or any
state qualification or any order preventing or suspending the use of any
preliminary prospectus, and use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement or any state
qualification or of any order preventing or suspending the use of any
preliminary prospectus at the earliest possible moment;
(e) if requested by the managing underwriter or a
seller of Registrable Securities, promptly incorporate in a prospectus
supplement or post-effective amendment to the registration statement such
information as the managing underwriter or a seller of Registrable Securities
reasonably request to have included therein relating to the plan of distribution
with respect to the Registrable Securities, including, without limitation,
information with respect to the amount of Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the underwritten offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment promptly after
being notified of the matters to be incorporated in such prospectus supplement
or post-effective amendment;
(f) furnish to each seller of Registrable Securities
and the managing underwriter one signed copy of the registration statement and
each amendment thereto as filed with the Commission, and such number of copies
of such registration statement, each amendment (including post-effective
amendments) and supplement thereto (in each case including all documents
incorporated by reference and all exhibits thereto whether or not incorporated
by reference), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as each seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(g) use reasonable efforts to register or qualify
such Registrable Securities under such other securities or "blue sky" laws of
such jurisdictions as any seller or underwriter reasonably requests in writing
and to do any and all other acts and things that may be reasonably necessary or
advisable to register or qualify for sale in such jurisdictions the Registrable
Securities owned by such seller; provided, however, that the Company shall not
be required to (a) qualify generally
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to do business in any jurisdiction where it is not then so qualified, (b)
subject itself to taxation in any such jurisdiction, (c) consent to general
service of process in any such jurisdiction or (d) provide any undertaking
required by such other securities or "blue sky" laws or make any change in its
charter or bylaws that the Board of Directors determines in good faith to be
contrary to the best interest of the Company and its stockholders;
(h) use reasonable efforts to cause the Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition of
such Registrable Securities;
(i) notify each seller of such Registrable Securities
at any time when a prospectus relating thereto 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 contains an untrue statement
of a material fact or omits to state any 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, and prepare and file
with the Commission a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any 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;
(j) enter into customary agreements (including an
underwriting agreement in customary form, if the offering is an underwritten
offering) and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection:
(i) make such representations and warranties
to the underwriters in form, substance and scope, reasonably
satisfactory to the managing underwriter, as are customarily made by
issuers to underwriters in primary underwritten offerings on the form
of registration statement used in such offering;
(ii) obtain opinions and updates thereof of
counsel, which counsel and opinions to the Company (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriter, addressed to the managing underwriter, covering the
matters customarily covered in opinions requested in primary
underwritten offerings on the form of registration statement used in
such offering and such other
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matters as may be reasonably requested by the managing underwriter;
(iii) obtain so-called "cold comfort"
letters and updates thereof from the Company's independent public
accountants addressed to the managing underwriter in customary form and
covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with primary underwritten
offerings and such other matters as may be reasonably requested by the
managing underwriter;
(iv) cause the underwriting agreements to
set forth in full the indemnification provisions and procedures of
Section 9 (or such other substantially similar provisions and
procedures as the managing underwriter shall reasonably request) with
respect to all parties to be indemnified pursuant to said Section; and
(v) deliver such documents and certificates
as may be reasonably requested by the Participating Holder or Holders
to evidence compliance with the provisions of this Section 7(j) and
with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.
The above shall be done at the effectiveness of such
registration statement (when consistent with customary industry practice), each
closing under any underwriting or similar agreement as and to the extent
required thereunder and from time to time as may reasonably be requested by the
sellers of Registrable Securities, all in a manner consistent with customary
industry practice.
(k) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement, the counsel referred to in clause (a)
of Section 7(a) and any attorney, accountant or other agent retained by any such
seller or underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors, employees and agents to supply all information reasonably requested
by any such Inspector in connection with such registration statement. Records
that the Company determines, in good faith, to be confidential and that it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (a) the disclosure of such Records is, in the reasonable
judgment of any Inspector, necessary to avoid or correct a misstatement or
omission of a material fact in the registration statement or (b) the release of
such Records is ordered pursuant to a subpoena or other order from a court or
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governmental agency of competent jurisdiction or required (in the written
opinion of counsel to such seller or underwriter, which counsel shall be
reasonably acceptable to the Company) pursuant to applicable state or federal
law. Each seller of Registrable Securities agrees that it will, upon learning
that disclosure of such Records are sought by a court or governmental agency,
give notice to the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(l) if such sale is pursuant to an under-written
offering, use reasonable efforts to obtain a "cold comfort" letter and updates
thereof from the Company's independent public accountants in customary form and
covering such matters of the type customarily covered by "cold comfort" letters
as the holders, in the aggregate, of a majority of the Registrable Securities
being sold and the managing underwriter or underwriters reasonably request;
(m) otherwise use reasonable efforts to comply with
the Securities Act, the Exchange Act, all applicable rules and regulations of
the Commission and all applicable state securities and real estate syndication
laws, and make generally available to its security holders, as soon as
reasonably practicable, an earnings statement covering a period of 12 months,
beginning within three months after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act;
(n) use reasonable efforts to cause all Registrable
Securities covered by the registration statement to be listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed, provided that the applicable listing requirements are satisfied;
(o) cooperate with the sellers of Registrable
Securities and the managing underwriter to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the managing underwriter may
reasonably request at least 2 business days prior to any sale of Registrable
Securities to the underwriters;
(p) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence investigation
by any underwriter;
(q) prior to the filing of any document which is to
be incorporated by reference into the registration statement or the prospectus
(after the initial filing of the registration statement) provide copies of such
document to the sellers of Registrable Securities, the underwriters and their
respective counsel, make the Company representatives available for
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discussion of such document with such persons and, to the extent changes may be
made to such document without the consent of a third party (other than the
Company's accountants or any affiliate of the Company), make such changes in
such document prior to the filing thereof as any such persons may reasonably
request to the extent and only to the extent that such changes relate to a
description of a ▇▇▇▇▇▇▇▇▇ Group Holder or the Plan or Distribution being
effected by a ▇▇▇▇▇▇▇▇▇ Group Holder; and
(r) participate, if so requested, in a "road show" in
connection with the sale of the Registrable Securities but only to the extent
reasonably requested by the managing underwriter, if such sale is pursuant to an
underwritten offering.
The Company may require each seller or prospective seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding the distribution of such securities
and other matters as may be required to be included in the registration
statement.
Each holder of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Paragraph (i) of this Section 7, such holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Paragraph
(i) of this Section 7, and, if so directed by the Company, such holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give any such notice, the Company shall extend the
period during which such registration statement shall be maintained effective
pursuant to this Agreement (including the period referred to in Paragraph (b) of
this Section 7) by the number of days during the period from and including the
date of the giving of such notice pursuant to Paragraph (i) of this Section 7 to
and including the date when each seller of Registrable Securities covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Paragraph (i) of this Section 7.
The Company shall keep the sellers of Registrable Securities
to be offered in a given registration advised of the status of any registration
in which they are participating. In addition, the Company and each such seller
of Registrable Securities may enter into understandings in writing whereby such
seller of Registrable Securities will agree in advance as to the acceptability
of the price or range of prices per share at which the Registrable Securities
included in such registration are to be offered to the public. Furthermore, the
Company shall
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establish pricing notification procedures reasonably acceptable to each such
seller of Registrable Securities and shall, as promptly as practicable after
learning the same from the managing underwriter, use reasonable efforts to give
oral notice to each such seller of Registrable Securities of the anticipated
date on which the Company expects to receive a notification from the managing
underwriter (and any changes in such anticipated date) of the price per share at
which the Registrable Securities included in such registration are to be offered
to the public.
8. Registration Expenses. The Company shall pay all expenses
incident to its performance of or compliance with this Agreement, including,
without limitation, (a) all Commission, stock exchange and National Association
of Securities Dealers, Inc. registration, filing and listing fees, (b) all fees
and expenses incurred in complying with securities or "blue sky" laws (including
reasonable fees and disbursements of counsel in connection with "blue sky"
qualifications of the Registrable Securities), (c) all printing, messenger and
delivery expenses, (d) all fees and disbursements of the Company's independent
public accountants and counsel and (e) all fees and expenses of any special
experts retained by the Company in connection with any Demand Registration or
Piggyback Registration pursuant to the terms of this Agreement, regardless of
whether such registration becomes effective; provided, however, that the Company
shall not pay the costs and expenses of any Holder relating to underwriters'
commissions and discounts relating to Registrable Securities to be sold by such
Holder (but such costs and expenses shall be paid by the Holders on a pro rata
basis), brokerage fees, transfer taxes, or the fees or expenses of any counsel,
accountants or other representatives retained by the Holders, individually or in
the aggregate. All of the expenses described in this Section 8 that are to be
paid by the Company are herein called "Registration Expenses."
9. Indemnification; Contribution.
9.1. Indemnification by the Company. The Company
agrees to indemnify, to the fullest extent permitted by law, each Holder and
each secured creditor referred to in Section 12.4(c)(ii) hereof (a "Secured
Creditor"), each of their respective officers, directors, agents, advisors,
employees and trustees, and each person, if any, who controls such Holder or
Secured Creditor (within the meaning of the Securities Act), against any and all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under which
they were made) not misleading, except insofar as the same are caused by or
contained in any information with respect to such Holder or Secured Creditor
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furnished in writing to the Company by such Holder or Secured Creditor expressly
for use therein or by such Holder's or Secured Creditor's failure to deliver a
copy of the prospectus or any supplements thereto after the Company has
furnished such Holder or Secured Creditor with a sufficient number of copies of
the same or by the delivery of prospectuses by such Holder or Secured Creditor
after the Company notified such Holder or Secured Creditor in writing to
discontinue delivery of prospectuses. The Company also shall indemnify any
underwriters of the Registrable Securities, their officers and directors and
each person who controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the Holders.
9.2. Indemnification by Holders. In connection with
any registration statement in which a Holder is participating, each such Holder
shall furnish to the Company in writing such information and affidavits with
respect to such Holder as the Company reasonably requests for use in connection
with any such registration statement or prospectus and agrees to indemnify,
severally and not jointly, to the fullest extent permitted by law, the Company,
its officers, directors and agents and each person, if any, who controls the
Company (within the meaning of the Securities Act) against any and all losses,
claims, damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of a material fact or any omission or alleged omission of a
material fact required to be stated in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or
necessary to make the statements therein (in the case of a prospectus, in light
of the circumstances under which they were made) not misleading, to the extent,
but only to the extent, that such untrue or alleged untrue statement or omission
is contained in or omitted from, as the case may be, any information or
affidavit with respect to such Holder so furnished in writing by such Holder
specifically for use in the Registration Statement. Each Holder also shall
indemnify any underwriters of the Registrable Securities, their officers and
directors and each person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the Company.
9.3. Conduct of Indemnification Proceedings. Any
party that proposes to assert the right to be indemnified under this Section 9
shall, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim is to be made against an indemnifying
party or parties under this Section 9, notify each such indemnifying party of
the commencement of such action, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party will not relieve it from any
liability that it may have to any indemnified party under the foregoing
provisions of this Section 9 unless, and only to the extent that, such omission
results in the forfeiture of substantive rights or defenses by the
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indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. If the indemnifying party
assumes the defense, the indemnifying party shall have the right to settle such
action without the consent of the indemnified party; provided, however, that the
indemnifying party shall be required to obtain such consent (which consent shall
not be unreasonably withheld) if the settlement includes any admission of
wrongdoing on the part of the indemnified party or any decree or restriction on
the indemnified party or its officers or directors; provided, further, that no
indemnifying party, in the defense of any such action, shall, except with the
consent of the indemnified party (which consent shall not be unreasonably
withheld), consent to entry of any judgment or enter into any settlement that
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability with respect
to such action. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges of such
counsel will be at the expense of such indemnified party unless (a) the
employment of counsel by the indemnified party has been authorized in writing by
the indemnifying party, (b) the indemnified party has reasonably concluded
(based on advice of counsel) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available in the indemnifying party, (c) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified
party) or (d) the indemnifying party has not in fact employed counsel to assume
the defense of such action within a reasonable time after receiving notice of
the commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time from all such indemnified party or parties unless
(a) the employment of more than one counsel has
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been authorized in writing by the indemnifying party or parties, (b) an
indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it that are different from or in
addition to those available to the other indemnified parties or (c) a conflict
or potential conflict exists (based on advice of counsel to an indemnified
party) between such indemnified party and the other indemnified parties, in each
of which cases the indemnifying party shall be obligated to pay the reasonable
fees and expenses of such additional counsel or counsels. An indemnifying party
will not be liable for any settlement of any action or claim effected without
its written consent (which consent shall not be unreasonably withheld).
9.4. Contribution. If the indemnification provided
for in this Section 9 from the indemnifying party is unavailable to an
indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then the indemnifying party, to the
extent such indemnification is unavailable, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
that resulted in such losses, claims, damages, liabilities or expenses. The
relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 9.3, any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 9.4 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person.
If indemnification is available under this Section 9, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 9.1 and 9.2 without regard
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to the relative fault of said indemnifying parties or indemnified party.
10. Participation in Underwritten Registrations. No person may
participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person's securities on the basis provided in any
underwriting agreements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
11. Rule 144. The Company covenants that it shall use its best
efforts to file the reports required to be filed by it under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder if and when the Company becomes obligated to file such
reports (or, if the Company ceases to be required to file such reports, it
shall, upon the request of any Holder, make publicly available other
information), and it shall, if feasible, take such further action as any Holder
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such Rule may be amended from time to time or (ii)
any similar rules or regulations hereafter adopted by the Commission. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
12. Miscellaneous.
12.1. Remedies. Each Holder, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
12.2. Amendments and Waivers. Except as otherwise
provided herein, the provisions of this Agreement may not be amended, modified
or supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the Company has obtained the written consent of
all Holders.
12.3. Notices. Any notice or other communication
required or permitted hereunder shall be in writing and shall be delivered
personally, or sent by certified or registered or express mail, postage prepaid.
Any such notice shall be deemed given when so delivered personally, or, if
mailed, five days (or,
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in the case of express mail, one day) after the date of deposit in the United
States mail, as follows:
(i) if to the Company, to:
Simon Property Group, Inc.
Merchants Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to any Holder, to the most current address of
such Holder given by such Holder to the Company in writing.
Any party may by notice given in accordance with this Section
12.3 to the other parties designate another address or person for receipt of
notice hereunder.
12.4. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and
be binding upon the Holders and their respective successors and assigns and the
successors and assigns of the Company; provided, however, that, except as
otherwise provided in Sections 12.4(b) and (c) hereof, no Limited Partner Holder
may assign its rights hereunder to any person who is not a permitted transferee
of such Holder pursuant to the terms of the Partnership Agreement; provided
further, that, except as otherwise provided in Section 12.4(b) or (c) hereof, no
Holder may assign its rights hereunder to any person who does not acquire all or
substantially all of such Holder's Registrable Securities or Units, as the case
may be, or, (i) in the case of the Simon Family Entities, to any person who does
not acquire at least $10,000,000 worth of the Simon Family Entities' Registrable
Securities or Units and (ii) in the case of the ▇▇▇▇▇▇▇▇▇ Group to any person
who does not acquire at least $10,000,000 worth of ▇▇▇▇▇▇▇▇▇ Group's Registrable
Securities or Units, (iii) in the case of State Street Bank and Trust Company
(the "TREET Trustee"), not individually but solely in its capacity as trustee of
the Telephone Real Estate Equity Trust ("TREET"), to any person who does not
acquire at least $10,000,000 worth of TREET's Registrable Securities, (iv) in
the case of Stichting Pensioen
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fonds Voor de Gezondheid Geestelijke en Maatschappelijke Belangan ("PGGM"), to
any person who does not acquire at least $10,000,000 worth of PGGM's Registrable
Securities, and (v) in the case of Kuwait Investment Authority, as agent for the
government of Kuwait ("Kuwait"), to any person who does not acquire at least
$10,000,000 worth of Kuwait's Registrable Securities. Notwithstanding the
foregoing, it is understood and agreed that the TREET Trustee shall have the
right to assign its rights hereunder to the beneficial owners of TREET in
connection with any distribution of TREET's Registrable Securities to such
beneficial owners.
(b) Affiliates. It is understood that JCP Realty, Inc. ("JCP")
and Brandywine Realty, Inc. ("Brandywine") are affiliates and that under the
terms of the Partnership Agreement, Limited Partners have the right to assign
their partnership interests, in whole or in part, to their affiliates. The
provisions of this Agreement shall inure to the benefit of all such affiliates
and, for all purposes of this Agreement, a party to this Agreement (other than
the Company) and all of its affiliates which at the time in question are Limited
Partners of the Operating Partnership shall be deemed to be one party, with the
consequence that (i) they may aggregate their Units for the purpose of
exercising their rights under this Agreement and (ii) to assign the benefits of
this Agreement to a third party which is not an affiliate of them, except as
otherwise provided with respect to the Simon Family Entities in Section 12.4(a)
above, they must together assign to such third party all or substantially all of
the aggregate amount of Units held by all of them.
(c) Transfer of Exchange and Registration Rights. (i) The
rights of each ▇▇▇▇▇▇▇▇▇ Group Holder to make a request and to cause the Company
to register Registrable Securities owned by such Holder under Section 2 hereof
and the right to cause the Company to include Registrable Securities in a
registration for the account of the Company under Section 3 hereof (the
"Rights") may be assigned, from time to time and reassigned, in whole or in
part, to a transferee or assignee receiving (except as provided in Section
12.4(c)(ii) below) at least three percent (3%) of the outstanding shares of
Common Stock or Units exchangeable into at least such number of shares of Common
Stock (the "Three Percent Requirement") in connection with a transfer or
assignment of shares of Common Stock received upon exchange of Units in
connection with a substantially contemporaneous resale of all such Units or
Units which is not prohibited under any other agreement to which the transferor
or assignor is a party or any pledge of Units or Common Stock which is not
prohibited under any other agreement to which the transferor or assignor is a
party, provided that (x) such transfer may otherwise be effected in accordance
with applicable securities law, (y) the Company is given written notice of such
assignment prior to such assignment or promptly thereafter, and (z) the
transferee or assignee by written agreement acknowledges that he is bound by the
terms of
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this Agreement. From and after the occurrence of any such transfer, the defined
term "Holder" shall include such transferees or assignees.
(ii) The Rights granted to each member of the ▇▇▇▇▇▇▇▇▇ Group hereunder
may be assigned pursuant to this Section 12.4(c) to a secured creditor to whom
such Holder has pledged Units (or other securities exchangeable or convertible
into Registrable Securities) or Registrable Securities prior to the date hereof,
which pledge shall be permitted hereunder, and the Three Percent Requirement
shall not apply to any such assignment. Such rights may, to the extent provided
in the pledge, security or other agreement or instrument pursuant to which such
rights have been assigned and to the extent permitted by the Securities Act and
the rules and regulations thereunder, be exercised by any such secured creditor
even though it does not become an assignee of the pledged Units of such Holder
pursuant to Section 12.4(c)(i) hereof. The Company acknowledges and consents to
the pledge by each of Rues Properties LLC, Great Lakes Mall LLC, NIDC LLC, EJDC
LLC and ▇▇▇▇▇▇▇▇▇ LLC (the "▇▇▇▇▇▇▇▇▇ Pledgors") of the rights, as described in
the two preceding sentences, to Bank One, N.A., or such other institution
serving as indenture trustee under the Indenture dated as of July 8, 1998 among
the ▇▇▇▇▇▇▇▇▇ Pledgors and Bank One, N.A., as indenture trustee, as such
indenture may be supplemented or amended from time to time (the "Indenture" and
Bank One, N.A. or such other institution, the "Trustee") with respect to the
Units pledged to the Trustee pursuant to the Indenture, and that the Trustee
shall be deemed to be a Secured Creditor as such term is used herein. Upon
notice to the Company by any such secured creditor that it has become authorized
to exercise such Rights, no further written instrument shall be required under
this Agreement; provided that such secured creditor provides the Company at the
time it exercises any rights with such indemnification and certifications as are
reasonably satisfactory to the Company in form and substance as to its
authorization to exercise such rights. It is further expressly understood and
agreed that (i) the Company shall not be required in any way to determine the
validity or sufficiency, whether in form or in substance, of any certification
from a secured creditor that it is authorized to exercise Rights so transferred
to it, (ii) the Company shall have no liability to any Holder for acting in
accordance with any such certification and (iii) no further indemnification to
the Company shall be required pursuant to this Section 12.4(c). The Company
shall not be required in any way to determine the validity or sufficiency,
whether in form or in substance, of any written instrument referred to in the
second sentence of this Section 12.4(c)(ii), and it shall be sufficient if any
writing purporting to be such an instrument is delivered to the Company and
purports on its face to be correct in form and signed or otherwise executed by
such Holder. The Company may continue to rely on such written instrument until
such time, if any, that it receives a written instrument from the secured
creditor named therein (or its successor) revoking, or
23
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acknowledging the revocation or other termination of, the authority granted by
such written instrument.
(iii) The rights of each of JCP and Brandywine to make a
request and cause the Company to register Registrable Securities owned by such
Holder under Section 2 hereof and the right of such Holder to cause the Company
to include Registrable Securities in a registration for the account of the
Company under Section 3 hereof (the "JCP Rights") may be assigned (i) to a
secured creditor to whom such Holder has pledged Units or, if such Holder has
not previously exercised the right provided for in the first sentence of Section
9.3(c) of the Operating Partnership Agreement, to any Person to whom the secured
creditor has transferred the pledged Units pursuant to Section 9.3(c) of the
Operating Partnership Agreement (such secured creditor or such transferee being
referred to as the "Assignee"), in each case subject to the further terms and
provision of this Section 12.4(c)(iii). The JCP Rights may be exercised by the
Assignee after the Assignee has become a substitute Limited Partner of the
Operating Partnership and only if the Assignee provides the Company at the time
it exercises the JCP Rights with such indemnification and certifications as are
reasonably satisfactory to the Company in form and substance as to its
authorization to exercise such JCP Rights. It is further expressly understood
and agreed that (i) the Company shall not be required in any way to determine
the validity or sufficiency, whether in form or in substance, of any
certification from the Assignee that it is authorized to exercise the JCP Rights
so transferred to it, (ii) the Company shall have no liability to such Holder
for acting in accordance with any such certification and (iii) except as set
forth above in this paragraph, no further indemnification to the Company shall
be required pursuant to this Section 12.4(c).
12.5. Mergers, Etc. In addition to any other restriction on
mergers, consolidations and reorganizations contained in the articles of
incorporation, by-laws, code of regulations or agreements of the Company, the
Company covenants and agrees that it shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless all the Registrable Securities and all of
the outstanding shares of Common Stock of the Company and Units are exchanged or
purchased upon substantially equivalent economic terms for cash or freely
marketable securities of the surviving corporation unless the surviving
corporation shall, prior to such merger, consolidation or reorganization, agree
in a writing to assume in full and without modification other than conforming
changes necessary to reflect the new issuer of the Registrable Securities all of
the obligations of the Company under this Agreement, and for that purpose
references hereunder to "Registrable Securities" shall be deemed to include the
securities which holders of Common Stock would be entitled to receive in
exchange for Registrable Securities pursuant to any such merger, consolidation,
sale of
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all or substantially all of its assets or business, liquidation, dissolution or
reorganization.
12.6. Intentionally Omitted.
12.7. Intentionally Omitted.
12.8. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
12.9. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
12.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12.11. Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights of the Holders shall be enforceable to the full
extent permitted by law.
12.12. Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. Upon execution by any of the
parties hereto, such party irrevocably waives (i) all of its rights under the
Registration Rights Agreement, dated as of August 9, 1996, by and among certain
of the parties hereto and/or (ii) any registration rights (including demand,
piggy back and shelf registration rights) it may hold relating to the Company
(including any predecessor such as Corporate Property Investors). There are no
restrictions, promises, warranties or undertakings other than those set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
SIMON PROPERTY GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
JCP REALTY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
BRANDYWINE REALTY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
26
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/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Skjodt
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ SKJODT
/s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇, as Successor Trustee Under
Declaration of Trust and Trust Agreement
Dated August 4, 1970
/s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇, as Trustee of the ▇▇▇▇▇▇ ▇▇▇▇▇
Trust No. 1, the ▇▇▇▇▇▇ ▇▇▇▇▇ Trust No. 6,
the ▇▇▇▇▇▇ ▇▇▇▇▇ Trust No. 7 and the ▇▇▇▇▇▇▇
▇▇▇▇▇ Trust No. 3
NORTHEAST PROPERTIES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Member
S.F.G. COMPANY, L.L.C.
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC., its
manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
27
28
[INTENTIONALLY LEFT BLANK]
28
29
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
AND ▇▇▇▇▇ ▇▇▇▇▇, NOT
INDIVIDUALLY BUT AS VOTING
TRUSTEES UNDER THAT CERTAIN
VOTING TRUST AGREEMENT,
VOTING AGREEMENT AND PROXY
DATED AS OF DECEMBER 1,
1993, BETWEEN ▇▇▇▇▇▇ ▇▇▇▇▇
& ASSOCIATES, INC., AND
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
AND ▇▇▇▇▇ ▇▇▇▇▇:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
ESTATE OF ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ York
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ York
Title: Co-Executor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Co-Executor
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., individually, and
in his capacity as Trustee under (1) the
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Revocable Trust-successor
by assignment from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Trust
No. 5, (ii) the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Revocable Trust-successor by assignment from
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Trust No. 6 and (iii)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Trust No.
29
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7 for the Benefit of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ York
-------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ York, individually,
and in his/her capacity as Trustee under (i)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Trust No. 8 for the
benefit of ▇▇▇▇ ▇▇▇▇▇▇ York, (ii) ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ Trust No. 9 for the benefit of
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, (iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Trust No. 10 for the benefit of ▇▇▇▇ ▇▇▇▇▇▇
York and (iv) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Trust No.
11 for the benefit of Jenna ▇▇▇▇▇ York
EJDC LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
▇▇▇▇▇▇▇▇▇ LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
NIDC LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
30
▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
RUES PROPERTIES LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
RUES PROPERTIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
CHELTENHAM SHOPPING CENTER ASSOCIATES
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
STICHTING PENSIOENFONDS VOOR DE GEZONDHEID
GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN
By: /s/ ▇.▇. ▇▇ ▇▇▇▇
----------------------------------
Name: ▇.▇. ▇▇ ▇▇▇▇
Title: Chairman, Board of
Managing Directors
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: Tax Adviser
31
32
KUWAIT FUND FOR ARAB ECONOMIC DEVELOPMENT
By: /s/ ▇▇▇▇▇ Al-Humaidhi
----------------------------------
Name: ▇▇▇▇▇ Al-Humaidhi
Title: Director-General
ARAB FUND FOR ECONOMIC AND SOCIAL
DEVELOPMENT
By: /s/ Abdlatif Al-Humad
----------------------------------
Name: Abdlatif Al-Humad
Title: Chairman/D.A.
KUWAIT INVESTMENT AUTHORITY AS AGENT FOR
GOVERNMENT OF KUWAIT
By: /s/ ▇▇. ▇▇▇▇▇ ▇▇-▇▇▇▇▇▇
----------------------------------
Name: ▇▇. ▇▇▇▇▇ ▇▇-▇▇▇▇▇▇
Title: Chief Investment Manager
Direct Investments Department
STATE STREET BANK AND TRUST
COMPANY, not individually
but solely in its capacity
as Trustee of the Telephone
Real Estate Equity Trust,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
32