INCIDENTAL REGISTRATION RIGHTS AGREEMENT
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Dated: As of July 21, 1994
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TABLE OF CONTENTS
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ARTICLE I
CERTAIN DEFINITIONS . . . . . . . . . 1
1.1. "BUSINESS DAY" . . . . . . . . . . . . . . . . . 1
1.2. "CLOSING DATE" . . . . . . . . . . . . . . . . . 1
1.3. "ELIGIBLE SECURITIES" . . . . . . . . . . . . . . 1
1.4. Intentionally Omitted . . . . . . . . . . . . . . 2
1.5. "PERSON". . . . . . . . . . . . . . . . . . . . . 2
1.6. "REGISTRATION EXPENSES" . . . . . . . . . . . . . 2
1.7. "SEC" . . . . . . . . . . . . . . . . . . . . . . 2
1.8. "SECURITIES ACT". . . . . . . . . . . . . . . . . 3
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS. 3
2.1 EFFECTIVENESS OF REGISTRATION RIGHTS . . . . . . . 3
ARTICLE III
INCIDENTAL REGISTRATION RIGHTS. . . . 3
3.1 NOTICE AND REGISTRATION . . . . . . . . . . . . . 3
3.2 REGISTRATION EXPENSES . . . . . . . . . . . . . . 4
ARTICLE IV
REGISTRATION PROCEDURES . . . . . . . 4
4.1 REGISTRATION AND QUALIFICATION . . . . . . . . . 4
4.2 UNDERWRITING . . . . . . . . . . . . . . . . . . 6
4.3 QUALIFICATION FOR RULE 144 SALES . . . . . . . . 6
ARTICLE V
PREPARATION; REASONABLE INVESTIGATION 7
5.1 PREPARATION; REASONABLE INVESTIGATION . . . . . . 7
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION. . . 7
6.1 INDEMNIFICATION AND CONTRIBUTION . . . . . . . . 7
ARTICLE VII
TRANSFER OF REGISTRATION RIGHTS . . . 8
7.1 TRANSFER OF REGISTRATION RIGHTS . . . . . . . . . 8
ARTICLE VIII
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MISCELLANEOUS . . . . . . . . . . . . 9
8.1 CAPTIONS . . . . . . . . . . . . . . . . . . . . 9
8.2 SEVERABILITY . . . . . . . . . . . . . . . . . . 9
8.3 GOVERNING LAW . . . . . . . . . . . . . . . . . . 9
8.4 MODIFICATION AND AMENDMENT . . . . . . . . . . . 9
8.5 COUNTERPARTS . . . . . . . . . . . . . . . . . . 9
8.6 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . 9
8.7 NOTICES . . . . . . . . . . . . . . . . . . . . . 9
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REGISTRATION RIGHTS AGREEMENT
This INCIDENTAL REGISTRATION RIGHTS AGREEMENT is made as of the 21 day of
July, 1994 (this "AGREEMENT"), among THE MACERICH COMPANY, a Maryland
corporation (the "COMPANY"), 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:
WHEREAS, on the Closing Date (as defined below), each of the Investors will
hold units ("OP Units") representing a limited partnership interest in The
Macerich Partnership, L.P., a Delaware limited partnership, which may be
redeemed for shares of Common Stock, $.01 par value per share, of the Company
(the "Common Stock"); and
WHEREAS, the Company has agreed to provide Investors with certain
registration rights as set forth herein;
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.
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
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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. Intentionally Omitted.
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 or transfer taxes applicable
to Eligible Securities.
1.7. "SEC" means the Securities and Exchange Commission.
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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
INCIDENTAL REGISTRATION RIGHTS
3.1 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 written notice of such
determination to the Investor or Investors seeking
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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.
3.2 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.
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 provisions of the Securities Act with respect to the
disposition of all Eligible Securities until the earlier of
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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
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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.
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.
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 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 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.
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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
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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
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.
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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 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 AGREEMENT. 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:
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Name:
Title:
THE "INVESTORS"
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CHESTERFIELD MALL ASSOCIATES,
a Virginia general partnership
BY: ▇▇▇▇▇▇▇, ▇'▇▇▇▇▇ ASSOCIATES
a Pennsylvania limited partnership,
General Partner
By: THE ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ COMPANY
a Pennsylvania general partnership,
General Partner
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
General Partner
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