REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of May 21, 1997 (this
"Agreement"), among Westfield America, Inc., a Missouri corporation (the
"Company"), Westfield Holdings Limited, an Australian public corporation
("WHL"), for the benefit of WHL and each of its subsidiaries (collectively,
"Westfield Holdings"). Capitalized terms used but not otherwise defined
herein have their respective meanings set forth in Section 1 of this
Agreement.
W I T N E S S E T H:
WHEREAS, the Company plans to commence an underwritten initial
public offering (the "Public Offering") of shares of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company;
WHEREAS, in connection with the Public Offering, the Company
desires to enter into various agreements with WHL and certain of its
subsidiaries or amend existing contractual arrangements with such
entities;
WHEREAS, the parties hereto desire to enter into this Agreement
for the purpose of providing for certain registration rights for the
benefit of the holders of Registrable Securities; and
WHEREAS, the execution and delivery of this Agreement is a
condition precedent to the various agreements and amendments with
Westfield Holdings in connection with the Public Offering.
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 set forth,
the parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following respective meanings:
AFFILIATE: As applied to any Person, any Person directly or
indirectly controlling or controlled by or under common control with such
Person.
BOARD: The Board of Directors of the Company.
BUSINESS DAY: Each day other than a Saturday, a Sunday or any
other day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to be closed.
COMMISSION: The Securities and Exchange Commission and any
successor federal agency having similar powers.
COMMON STOCK: As defined in the first recital of this Agreement.
COMPANY: As defined in the introductory paragraph of this
Agreement.
EFFECTIVENESS DATE: The three-year anniversary of the closing of
the Public Offering.
EFFECTIVENESS PERIOD: As defined in Section 2.1(a).
INITIAL SHELF REGISTRATION: As defined in section 2.1(a).
INITIATING HOLDER: WHL and each subsidiary of WHL that holds or
will hold Registrable Securities or any transferee or transferees to whom
Registrable Securities shall have been transferred holding in the
aggregate at least 50% of the total number of Registrable Securities
outstanding at the time of any request pursuant to section 2.2.
OTHER SECURITIES: Any stock (other than Common Stock) and any
other securities of the Company or any other Person (corporate or
otherwise) which the holders of the Registrable Securities at any time
shall be entitled to receive, or shall have received, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock.
PERSON: Any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, government (or an agency or political
subdivision thereof) or other entity of any kind, including any successor
(by merger or otherwise) of such entity.
PUBLIC OFFERING: As defined in the first recital of this
Agreement.
REGISTRABLE SECURITIES: (i) The shares of Common Stock (or Other
Securities) held by Westfield Holdings upon completion of the Public
Offering, (ii) any other shares of Common Stock (or Other Securities)
thereafter acquired by Westfield Holdings and (iii) any securities issued
or issuable with respect to such shares of Common Stock (or Other
Securities) by way of stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities 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, (ii)
such securities shall have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (iii) such
securities shall have been otherwise transferred, new certificates for
them not bearing a legend restricting further transfer shall have been
delivered by the Company and in the opinion of counsel to the Company
reasonably acceptable to the holder of such Registrable Security, each in
their reasonable judgment, the subsequent disposition of them shall not
require registration or qualification of them under the Securities Act or
any similar state law then enforced, (iv) such securities shall have
ceased to be outstanding, or (v) such securities may be sold or
transferred pursuant to Rule 144(k) (or any similar provisions then in
force) under the Securities Act.
REGISTRATION EXPENSES: All expenses incident to the Company's
performance of or compliance with sections 2 and 3, including, without
limitation, all registration, filing and National Association of
Securities Dealers, Inc. fees, all fees and expenses of complying with
securities or blue sky laws and the preparation of a blue sky memorandum,
all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company
and of its independent public accountants, including the expenses of any
special audits or "comfort" letters required by or incident to such
performance and compliance, the reasonable fees and disbursements of one
special counsel retained by the holders of the Registrable Securities
being registered, fees and disbursements of underwriters customarily paid
by issuers or sellers of securities, but excluding underwriting discounts
and commissions, and fees and expenses of any Person, including special
experts, retained by the Company and the Initiating Holders, PROVIDED
that, in any case where Registration Expenses are not to be borne by the
Company, such expenses shall not include salaries of Company personnel or
general overhead expenses of the Company, auditing fees, or other expenses
for the preparation of financial statements or other data normally
prepared by the Company in the ordinary course of its business or which
the Company would have incurred in any event.
REQUIRED HOLDERS. Westfield Holdings or the holders of at least
25% of the Registrable Securities.
SECURITIES ACT: The Securities Act of 1933, as amended, or any
similar federal statute, as at the time in effect, and any reference to a
particular section of such Act shall include a reference to the comparable
section, if any, of any such similar federal statute.
SHELF REGISTRATION: A "shelf" registration for an offering to be
made on a continuous basis pursuant to Rule 415 of Regulation C (17 C.F.R.
Section 240.415) promulgated under the Securities Act, or similar rule
that may be adopted by the Commission.
SUBSEQUENT SHELF REGISTRATION: As defined in section 2.1(b).
2. REGISTRATION UNDER SECURITIES ACT, ETC. 2.1 SHELF
REGISTRATIONS. (a) INITIAL SHELF REGISTRATION. The Company agrees that,
upon the request of any Initiating Holder made at any time after the
Effectiveness Date, the Company shall use all reasonable efforts to
prepare and cause to be filed with the Commission a registration statement
for a Shelf Registration covering up to the aggregate number of
Registrable Securities and permitting sales in ordinary course brokerage
or dealer transactions (the "Initial Shelf Registration") on or as soon as
practicable after the Effectiveness Date. The Company agrees to use all
reasonable efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act within three months after it is filed
with the Commission (the "Initial Shelf Registration Statement"). The
Initial Shelf Registration Statement shall be on a Form S-3 or other
appropriate form permitting registration of such Registrable Securities
for resale by such holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The
Company shall use all reasonable efforts to keep the Initial Shelf
Registration Statement continuously effective under the Securities Act for
the period ending when (x) all Registrable Securities covered by the
Initial Shelf Registration Statement have been sold pursuant thereto, (y)
no Registrable Securities remain outstanding, or (z) a Subsequent Shelf
Registration covering all of the Registrable Securities has been declared
effective under the Securities Act.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective
for any reason at any time during the Effectiveness Period (other than
pursuant to clauses (x) or (y) of section 2.1(a)), the Company shall use
every reasonable effort to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event within 120 days of
such cessation of effectiveness, amend such Shelf Registration in a manner
reasonably expected to obtain the withdrawal of such order or file an
additional Shelf Registration covering all of the Registrable Securities
(a "Subsequent Shelf Registration"). If a Subsequent Shelf Registration is
filed, the Company shall use all reasonable efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such registration statement
effective for a period equal to the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or
any Subsequent Shelf Registration was previously effective.
(c) REGISTRATION RIGHTS EXCLUSIVE. The Company will not register
securities for sale for the account of any Person other than holders of
Registrable Securities, and will not register any securities other than
Registrable Securities in any registration of Registrable Securities
pursuant to this section 2.1. The Company will not grant to any Person the
right to request a registration of securities not permitted by this
subdivision (c).
(d) SUPPLEMENTS AND AMENDMENTS. The Company shall supplement and
amend the Initial Shelf Registration or any Subsequent Shelf Registration
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if
required by the Securities Act or if reasonably requested by any
underwriter of such Registrable Securities. Notwithstanding the foregoing,
but subject to the rights of holders of Registrable Securities under
section 2.3, if the Company shall furnish to the Initiating Holders a
certificate signed by a President or an Executive Vice President of the
Company stating that in the good faith judgment of the Board it would be
significantly disadvantageous to the Company and its shareholders 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 60 days and in any such event the
holders shall be required to discontinue disposition of any Registrable
Securities covered by such Shelf Registration Statement during such
period.
2.2 REGISTRATION ON REQUEST. (a) REQUEST. At any time after the
Effectiveness Date, upon the written request of one or more Initiating
Holders, requesting that the Company effect the registration under the
Securities Act (which shall be a Shelf Registration if requested by the
Initiating Holders), of all or part of such Initiating Holders'
Registrable Securities and specifying the intended method or methods of
disposition thereof, the Company will promptly, but in any event within 20
days, give written notice of such requested registration to all holders of
Registrable Securities and thereupon will use all reasonable efforts to
effect the registration under the Securities Act of all Registrable
Securities of the Initiating Holders requested to be registered within 15
days after receipt of the Company's notice, all to the extent required to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of Registrable Securities so to be registered, PROVIDED that
the Company shall not be required to effect a registration pursuant to
this section 2.2 until a period of six months shall have elapsed from the
effective date of the most recent registration previously effected
pursuant to this section 2.2, and PROVIDED further that, the Company shall
not be required to effect more than three such registrations in the
aggregate at the request of Initiating Holders pursuant to this section
2.2. Notwithstanding the foregoing, but subject to the rights of holders
of Registrable Securities under section 2.3, if the Company shall furnish
to the Initiating Holders a certificate signed by a President or an
Executive vice President of the Company stating that in the good faith
judgment of the Board it would be significantly disadvantageous to the
Company and its shareholders for such registration statement to be filed
on or before the filing which would otherwise be required pursuant to this
section 2.2, the Company may defer the filing (but not the preparation) of
the registration statement which is required to effect any registration
pursuant to this section 2.2 for an additional period of not more than 60
days following the anticipated filing of such registration statement,
PROVIDED that at all times the Company is in good faith using all
reasonable efforts to cause such registration statement to become
effective.
(b) REGISTRATION STATEMENT FORM. Each registration requested
pursuant to this section 2.2 shall be effected by the filing of a
registration statement on any form which the Company is eligible to use,
such form (which form shall be suitable for a Shelf Registration, if
applicable) to be selected by the Company after consultation with counsel
and notice of such selection of such form to be delivered to the holders
of all Registrable Securities eligible to participate in such
registration. Such selection shall be final unless the use of such form
has been objected to in writing by the Required Holders.
(c) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this section 2.2 shall not be deemed to be effected unless it
has been declared effective by the Commission or otherwise becomes
effective, PROVIDED that a registration which does not become effective
after the Company has filed a registration statement with respect thereto
solely by reason of the refusal to proceed of all of the Initiating
Holders (other than any refusal to proceed based upon (i) the advice of
their counsel that the registration statement, or the prospectus contained
therein, contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing or (ii) the discovery of a material adverse change in the
condition, business or prospects of the Company from that known to the
Initiating Holders at the time of their request that makes the proposed
offering unreasonable in the good faith judgment of such Holders) shall be
deemed to have been effected by the Company at the request of such
holders. Notwithstanding the foregoing, a registration requested pursuant
to this section 2.2 shall not be deemed to have been effected for purposes
of this section 2.2 if
(i) the registration does not remain effective for a period of
at least 120 days (or one year, in the case of a Shelf Registration) or,
if earlier, until all the Registrable Securities requested to be
registered in connection therewith were sold, or
(ii) after it has become effective, such registration is
interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for
any reason prior to the sale of at least 85% of the securities to be sold
pursuant to such registration statement, or
(iii) the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied, other than by reason of some act or
omission by the holders of the Registrable Securities that were to have
been registered.
(d) REGISTRATION RIGHTS EXCLUSIVE. The Company will not register
securities for sale for the account of any Person other than holders of
Registrable Securities, and will not register any securities other than
Registrable Securities in any registration of Registrable Securities
requested by one or more holders pursuant to this section 2.2, unless
permitted to do so by the written consent of the Required Holders. The
Company will not grant to any Person the right to request a registration
of securities not permitted by this subdivision (d).
(e) OTHER REQUESTS. Upon the written request of one or more
holders of Registrable Securities (other than Initiating Holders),
requesting that the Company effect the registration under the Securities
Act of all or part of such holders' Registrable Securities and specifying
the intended method or methods of disposition thereof, the Company will
promptly, but in any event within 20 days, give written notice of such
requested registration, including the names and addresses of such
requesting holders, to all holders of Registrable Securities but shall not
have any obligation to effect any registration pursuant to such request
until it has received a request of Initiating Holders pursuant to section
2.2(a).
2.3 INCIDENTAL REGISTRATION. (a) At any time after the
Effectiveness Date, If the Company at any time proposes to register any of
its equity securities under the Securities Act (other than pursuant to
section 2.2 or on Form ▇-▇, ▇▇▇▇ ▇-▇ or any successor forms thereto),
whether or not for sale for its own account, it will each such time give
prompt written notice to all holders of Registrable Securities of its
intention to do so, which notice shall be given to all such holders at
least 30 days prior to the date such registration is proposed to be
consummated, and, upon the written request of any such holder made within
15 days after the receipt of any such notice (which request shall specify
the Registrable Securities intended to be disposed of by such holder and
the intended method of disposition thereof), the Company will use all
reasonable efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so requested to
register by the holders thereof, on the same terms and conditions as the
equity securities of the Company or, if such offering is for the account
of other shareholders, the equity securities included therein, to the
extent required to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered, PROVIDED that if, at any time after giving written notice of
its intention to register any 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 such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon,
shall be relieved of its obligation to register any Registrable Securities
in connection with such registration, without prejudice, however, to the
rights of any holder or holders of Registrable Securities to request that
such registration be effected as a registration upon request under section
2.2. Notwithstanding the foregoing, if the Initial Shelf Registration or
any Subsequent Shelf Registration is then in effect, the Company shall
have no obligation to effect the registration of Registrable Securities
under this section 2.3 unless the securities proposed to be registered by
the Company are to be disposed of in an underwritten public offering.
(b) If the securities proposed to be registered by the Company
are to be disposed of in an underwritten public offering, such notice of
the Company's intention to register such securities shall designate the
proposed underwriters of such offering (which shall be one or more
underwriting firms of recognized national standing) and shall contain the
Company's agreement to use all reasonable efforts, if requested to do so,
to arrange for such underwriters to include in such underwriting the
Registrable Securities which the Company has been so requested to register
pursuant to this section 2.3, it being understood that the holders of such
Registrable Securities shall have no right to select different
underwriters for the disposition of their Registrable Securities.
(c) No registration effected under this section 2.3 shall
relieve the Company from its obligation to effect registrations upon
request under section 2.2 or to effect the Initial Shelf Registration or
any Subsequent Shelf Registration pursuant to section 2.1.
(d) If a requested registration pursuant to this section 2.3
involves an underwritten offering, and the managing underwriter shall
advise the Company in writing (with a copy to each holder of Registrable
Securities requesting registration) that, in its opinion, the number of
securities requested to be included in such registration exceeds the
number which can be sold in such offering within a commercially reasonable
price range (such writing to state the basis of such opinion and the
approximate number of shares of securities which may be included in such
offering without such effect), the Company will include in such
registration, to the extent of the number of securities which the Company
is so advised can be sold in such offering, (i) first, securities that the
Company proposes to issue and sell for its own account, (ii) second,
Registrable Securities requested to be registered by the holders thereof
pursuant to this section 2.3, pro rata among such holders on the basis of
the number of shares of Common Stock proposed to be registered by such
holders, and (iii) third, all other securities proposed to be registered.
2.4 REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in section 2,
the Company will promptly:
(a) prepare and file with the Commission as promptly as
practicable, but in any event not later than 90 days (or such longer
period as may be required in order for the Company to comply with the
applicable provisions under the Securities Act) after receipt of a request
to file a registration statement with respect to Registrable Securities, a
registration statement with respect to such Registrable Securities and use
all reasonable efforts to cause such registration statement to become
effective; PROVIDED, HOWEVER, that if the Company shall furnish to the
Initiating Holders making such a request a certificate signed by a
President or Executive Vice President of the Company stating that in the
good faith judgment of the Board it would be significantly disadvantageous
to the Company and its shareholders for such registration statement to be
filed on or before the date such filing would be required, the Company
shall have an additional period of not more than 60 days within which to
file such registration statement; and PROVIDED, FURTHER, that before
filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall provide each holder of Registrable
Securities being registered in such registration and any attorney retained
by such holder with an adequate and appropriate opportunity to participate
in the preparation of such registration statement and each prospectus
included therein (and each amendment or supplement thereto) to be filed
with the Commission;
(b) prepare and file with the Commission such amendments, post-
effective amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep
such registration statement effective (or, in the case of a Shelf
Registration, continuously effective) and to comply with the rules,
regulations or instructions of the registration form utilized by the
Company, the Securities Act and the rules and regulations thereunder with
respect to the disposition of all Registrable Securities and other
securities covered by such registration statement until the earlier of
such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement or the expiration
of six months (nine months, in the case of a Shelf Registration) after
such registration statement becomes effective or, in the case of the
Initial Shelf Registration or any Subsequent Shelf Registration, for the
remainder of the Effectiveness Period (but not before the expiration of
the 90-day period referred to in Section 4(3) of the Securities Act and
Rule 174 thereunder, if applicable); and will furnish to each such seller
prior to the filing thereof a copy of any amendment, post-effective
amendment or supplement to such registration statement or prospectus and
shall not file any such amendment, post-effective amendment or supplement
to which any such seller or holder shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(c) furnish to each seller of such Registrable Securities such
number of conformed copies of such registration statement and of each such
amendment, post-effective 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, if any, incorporated by reference in such
registration statement or prospectus, and such other documents, as such
seller may reasonably request;
(d) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the
prospectus (after initial filing of the registration statement), provide
copies of such document to counsel to each seller of Registrable
Securities, make the Company's representatives available for discussion of
such document and make such changes in such document prior to the filing
thereof as counsel for such selling holders may reasonably request;
(e) use all reasonable efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions as each seller of such Registrable Securities shall
reasonably request, to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and do any
and all other acts and things which may be necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of
its Registrable Securities covered by such registration statement, except
that the Company shall not for any such purpose be required to (i) qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision (e) be
obligated to be so qualified, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction;
(f) cooperate with the sellers of such Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and enable such Registrable
Securities to be registered in such names as such sellers may request at
least two Business Days prior to any sale of Registrable Securities;
(g) use all reasonable efforts to cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable each seller thereof
to consummate the disposition of such Registrable Securities;
(h) furnish to each seller of such Registrable Securities a
signed counterpart, addressed to such seller, of (i) an opinion of counsel
for the Company, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement) and (ii) a
"comfort" letter, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement), signed by the
independent public accountants who have certified the Company's financial
statements included in such registration statement, covering substantially
the same matters with respect to such registration statement (and the
prospectus included therein) and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel and
in accountants' letters delivered to underwriters in underwritten public
offerings of securities and, in the case of the accountants' letter, such
other financial matters, as such seller may reasonably request;
(i) immediately notify each seller of such Registrable
Securities and (if requested by any such seller) confirm such advice in
writing, (i) when or if the prospectus or any prospectus supplement or
post-effective amendment 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
supplements to the registration statement or 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 of any proceedings for that purpose, (iv) 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 and
(v) of the existence of any fact which makes any statement made in the
registration statement, the prospectus or any document incorporated
therein by reference untrue or which requires the making of any changes in
the registration statement, the prospectus or any document incorporated
therein by reference in order to make the statements therein not
misleading;
(j) if any fact contemplated by clause (i)(v) above shall exist,
prepare a supplement or post-effective amendment to the registration
statement or the related prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities the prospectus
will not contain an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading;
(k) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement at
the earliest possible moment;
(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
securities holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more than
eighteen months, beginning with the first month of the first fiscal
quarter after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of section 11(a) of the
Securities Act;
(m) provide and cause to be maintained transfer agents and
registrars for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement;
(n) cause all Registrable Securities issuable upon exercise
thereof, covered by the registration statement to be listed on each
securities exchange on which similar securities issued by the Company are
then listed if requested by the Required Holders;
(o) enter into and perform any other customary agreements and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities;
(p) make available for inspection by each holder of Registrable
Securities included in such registration statement, any managing
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any
such holder or any managing underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such person
in connection with such registration statement;
(q) cooperate and cause the executive officers of the Company to
cooperate in connection with such registration, to the extent reasonably
requested by each seller of Registrable Securities or by the underwriters,
if any, including, in the case of any underwritten registration upon
request under Section 2.1 or 2.2, by making executive officers of the
Company available for road show presentations and other investor meetings
to the extent customary in similar underwritten offerings; and
(r) use all reasonable efforts to take all other steps necessary
to effect the registration of the Registrable Securities contemplated
hereby and cooperate with the holders thereof to facilitate the
disposition of such Registrable Securities pursuant thereto.
The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish the Company such
information regarding such seller 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 Commission in connection therewith.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in clause
(i)(v) of this section 2.4, such holder will forthwith discontinue
disposition of Registrable Securities until such holder's receipt of the
copies of the supplemented or amended prospectus contemplated by paragraph
(j) of this section 2.4, or until it is advised in writing (the "Advice")
by the Company that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, and, if so directed by the
Company, such holder will 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. In the event the
Company shall give any such notice, the time periods regarding the
effectiveness of registration statements set forth in paragraph (b) of
this section 2.4 shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
clause (i)(v) of this section 2.4 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 (j) of this section 2.4 or the Advice.
2.5 UNDERWRITTEN OFFERINGS. (a) UNDERWRITTEN OFFERINGS
EXCLUSIVE. Whenever a registration requested by one or more holders
pursuant to section 2.1 or 2.2 is for an underwritten offering, only
Registrable Securities which are to be distributed by the underwriters
designated by such holders may be included in such registration, unless
such holders shall have permitted other securities to be included in such
registration and such underwritten offering as provided in subdivision
2.2(e). If such holders shall determine that the number of Registrable
Securities to be sold in any such underwritten offering should be limited
due to market conditions or otherwise, the Company will include in such
registration to the extent of the number which the Company is so advised
can be sold in such offering (i) first, Registrable Securities requested
to be included in such registration, PRO RATA among the holders thereof on
the basis of the number of shares of Common Stock proposed to be
registered by such holders, (ii) second, securities that the Company
proposes to issue and sell for its own account and (iii) third, all other
securities proposed to be registered.
(b) UNDERWRITING AGREEMENT. If requested by the underwriters for
any underwritten offering of Registrable Securities on behalf of a holder
or holders of Registrable Securities pursuant to a registration effected
pursuant to section 2.1 or requested under section 2.2, the Company will
enter into 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 to the effect
and to the extent provided in section 2.7. The holders of Registrable
Securities on whose behalf Registrable Securities are to be distributed by
such underwriters shall be parties 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 such holders of Registrable
Securities. Such holders of Registrable Securities shall not be required
by the Company to make any representations or warranties to or agreements
with the Company or the underwriters other than reasonable
representations, warranties or agreements regarding such holder, such
holder's Registrable Securities and such holder's intended method or
methods of disposition and any other representation required by law.
(c) SELECTION OF UNDERWRITERS. Whenever a registration requested
pursuant to section 2.2 is for an underwritten offering, the holders of a
majority of the Registrable Securities included in such registration shall
have the right to select the managing underwriter(s) to administer the
offering, subject to the approval of the Company, such approval not to be
unreasonably withheld. Whenever a holder of Registrable Securities desires
to distribute its securities under a registration effected pursuant to
section 2.1 in an underwritten offering, such holder shall have the right
to select the managing underwriter(s) to administer the offering, subject
to the approval of the Company, such approval not to be unreasonably
withheld.
2.6 PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each registration statement registering
Registrable Securities under the Securities Act, the Company will give the
holders of Registrable Securities on whose behalf such Registrable
Securities are to be so registered and their underwriters, if any, and
their respective counsel and accountants, the opportunity to participate
in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof
or supplement thereto, and will give each of them such 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 such holders and such underwriters or their respective counsel, to
conduct a reasonable investigation within the meaning of the Securities
Act.
2.7 INDEMNIFICATION. (a) INDEMNIFICATION BY THE COMPANY. The
Company will, and hereby does, indemnify and hold harmless, to the full
extent permitted by law, in the case of any registration statement filed
pursuant to Section 2.1, 2.2 or 2.3, each holder of any Registrable
Securities covered by such registration statement, and each other Person
who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such holder or any
such underwriter within the meaning of Section 15 of the Securities Act,
and their respective directors, officers, partners, investment advisors,
agents and affiliates, against any losses, claims, damages or liabilities,
joint or several, to which such holder or underwriter or any such
director, officer, partner, investment advisor, agent, affiliate or
controlling person may become subject under the Securities Act or common
law or otherwise, including, without limitation, reasonable costs of
investigation and subject to Section 3 hereof, reasonable fees and
expenses of legal counsel, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement filed by the Company
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment 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 light of the
circumstances in which they were made not misleading, and the Company will
reimburse such holder or underwriter and each such director, officer,
partner, investment advisor, employee, agent, affiliate and controlling
Person for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
liability, action or proceeding; PROVIDED, HOWEVER, 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, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such holder,
underwriter, director, officer, partner, investment advisor, employee,
agent, affiliate or controlling Person, as the case may be, expressly for
use in the preparation thereof; PROVIDED further, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement of any material fact contained in
any such registration statement, preliminary prospectus, final prospectus
or summary prospectus contained therein or any omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made
not misleading in a prospectus or prospectus supplement, if (i) such
untrue statement or omission is completely corrected in an amendment or
supplement to such prospectus or prospectus supplement, the seller of the
Registrable Securities has an obligation under the Securities Act to
deliver a prospectus or prospectus supplement in connection with such sale
of Registrable Securities and the seller of Registrable Securities
thereafter fails to deliver such prospectus or prospectus supplement as so
amended or supplemented prior to or concurrently with the sale of
Registrable Securities to the person asserting such loss, claim, damage or
liability after the Company has furnished such seller with a sufficient
number of copies of the same or (ii) if the seller received written notice
from the Company of the existence of such an untrue statement or such an
omission and the seller continued to dispose of Registrable Securities
prior to the time of the receipt of either (a) an amended or supplemented
prospectus or prospectus supplement that completely corrected the untrue
statement or the omission or (b) a notice from the Company that the use of
the existing prospectus or prospectus supplement may be resumed. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director,
officer, partner, investment advisor, employee, agent, affiliate or
controlling person and shall survive the transfer of such securities by
such seller.
(b) INDEMNIFICATION BY THE SELLERS. As a condition to including
any Registrable Securities in any registration statement, the Company
shall have received an undertaking satisfactory to it from the prospective
seller of such Registrable Securities, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 2.7(a)) the
Company, and each director of the Company, each officer of the Company and
each other Person, if any, who participates as an underwriter in the
offering or sale of such securities and each other Person who controls the
Company or any such underwriter within the meaning of the Securities Act,
with respect to any statement or alleged statement in or omission or
alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
seller expressly for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement; PROVIDED, HOWEVER, that (A) the indemnifying
party shall not be liable in any such case to the extent that any such
statement or omission is completely corrected (x) in the final prospectus,
in the case of a preliminary prospectus, or (y) in an amendment or
supplement to a prospectus or prospectus supplement (PROVIDED, HOWEVER,
that nothing in this clause (y) shall limit the indemnifying party's
liability with respect to sales made prior to the receipt by the Company
from the indemnifying party of written notice of such an untrue statement
or such an omission) and (B) the liability of such indemnifying party
under this Section 2.7(b) shall be limited to the amount of proceeds
received by such indemnifying party in the offering giving rise to such
liability. 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 such securities by such holder.
(c) NOTICE OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in Section 2.7(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; PROVIDED, HOWEVER, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 2.7, except to the extent that the indemnifying party is
materially prejudiced by such failure to give notice. In case any such
action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it may
wish, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party; PROVIDED, HOWEVER, that (i) if the indemnified
party reasonably believes that it is advisable for it to be represented by
separate counsel because there exists or may exist a conflict of interest
between its interests and those of the indemnifying party with respect to
such claim, or there exist defenses available to such indemnified party
that may not be available to the indemnifying party, or (ii) if the
indemnifying party shall fail to assume responsibility for such defense,
the indemnified party may retain counsel satisfactory to it and, in the
case of clause (i), reasonably satisfactory to the indemnifying party, and
the indemnifying party shall pay all fees and expenses of such counsel;
PROVIDED FURTHER, that the indemnifying partyshall not be deemed to have
failed to assume responsibility for such defense if the indemnifying party
has not received notice of such claim pursuant to this Section 2.7(c). In
the event an indemnifying party elects not to assume, or shall not be
entitled to assume because of a conflict of interest between its interests
and those of the indemnified party, the defense of a claim, such
indemnifying party shall not be obligated to pay the fees and expenses of
more than one counsel or firm of counsel in any jurisdiction in any one
legal action or group of related legal actions for all parties indemnified
by such indemnifying party in respect of such claim, unless in the
reasonable judgment of any such indemnified party a conflict of interest
may exist between such indemnified party and any other of such indemnified
parties in respect of such claim. No indemnifying party shall be liable
for any settlement of any action or proceeding effected without its
written consent, which consent shall not be unreasonably withheld or
delayed. No indemnifying party shall, without the consent of the
indemnified party, 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 in respect to such claim or litigation or that requires
action other than the payment of money by the indemnifying party.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 2.7 shall for any reason be held by a court to be unavailable to
an indemnified party under Section 2.7(a) or (b) hereof in respect of any
loss, claim, damage or liability, or any action in respect thereof, then,
in lieu of the amount paid or payable under Section 2.7(a) or (b), the
indemnified party and the indemnifying party under Section 2.7(a) or (b)
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating the same), (i) in such proportion as is appropriate to
reflect the relative fault of the Company and the prospective sellers of
Registrable Securities covered by the registration statement that resulted
in such loss, claim, damage or liability, or action or proceeding in
respect thereof, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action or proceeding
in respect thereof, as well as any other relevant equitable considerations
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and such prospective sellers
from the offering of the securities covered by such registration
statement; PROVIDED, HOWEVER, that for purposes of this clause (ii), the
relative benefits received by the prospective sellers shall be deemed not
to exceed the amount of proceeds received by such prospective sellers. 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 who was not guilty of such fraudulent misrepresentation.
Such prospective sellers' obligations to contribute as provided in this
Section 2.7(d) are several in proportion to the relative value of their
respective Registrable Securities covered by such registration statement
and not joint. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be
unreasonably withheld.
(e) OTHER INDEMNIFICATION. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section
2.7 (with appropriate modifications) shall be given by the Company and
each holder of Registrable Securities with respect to any required
registration or other qualification of securities under any federal or
state law or regulation of any governmental authority other than the
Securities Act.
(f) INDEMNIFICATION PAYMENTS. The indemnification and
contribution required by this Section 2.7 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or
liability is incurred.
3. EXPENSES. The Company will pay all Registration Expenses in
connection with the Initial Shelf Registration, any Subsequent Shelf
Registration and any registration effected pursuant to Section 2.3. The
Company will pay all Registration Expenses in connection with three
registrations of Registrable Securities requested pursuant to section 2.2
by the Initiating Holders, PROVIDED that the Company will pay all
Registration Expenses in connection with registrations requested pursuant
to section 2.2 which are not deemed to be effected within the meaning of
subdivision (c) of section 2.2. All Registration Expenses in connection
with each subsequent registration of Registrable Securities requested by
one or more holders pursuant to section 2.2 shall be apportioned among the
holders of all Registrable Securities and other securities requesting or
joining in such registration, on the basis of the respective amounts of
securities then being registered by such holders or on their behalf.
4. RULES 144 AND 144A. The Company will file the reports
required to be filed by it under the Securities Act and the rules and
regulations adopted by the Commission thereunder (or, if the Company is
not required to file such reports, will, upon the request of any holder of
Registrable Securities, make publicly available other information), and
will take such further action as any holder of Registrable Securities 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 (A)
Rule 144 under the Securities Act, as such Rule may be amended from time
to time, (b) Rule 144A under the Securities Act, as such Rule may be
amended from time to time or (c) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as
to whether it has complied with such requirements.
5. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE
SECURITIES. Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144, Rule
144A and Regulation S) of any equity securities of the Company or of any
securities convertible into or exchangeable or exercisable for such equity
securities, during the period beginning on the later of (i) the effective
date of any registration statement relating to a registration pursuant to
section 2.2 or 2.3 of this Agreement involving an underwritten offering or
involving an underwritten offering by the Company of equity securities and
(ii) the date on which such holder shall have received notice of such
effective date of any such registration statement and ending on the date
90 following the effective date of such registration statement (except as
part of such underwritten offering), unless the underwriters managing such
underwritten offering otherwise agree.
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company
agrees (A) not to effect any public sale or distribution (including sales
pursuant toRule 144A and Regulation S) of any of its equity securities, or
any securities convertible into or exchangeable or exercisable for such
equity securities (except pursuant to registrations on Form S-4 or Form
S-8 or any successor forms), during the 90 day period beginning on the
effective date of any registration statement relating to a registration
pursuant to section 2.2 or 2.3 of this Agreement involving an underwritten
offering in which Registrable Securities are included (except as part of
such underwritten offering), unless the underwriters managing such
offering otherwise agree, and (ii) to cause each holder of its Common
Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of
this Agreement (other than in a registered public offering) to agree not
to effect any public sale or distribution (including sales pursuant to
Rule 144, Rule 144A and Regulation S) of any such securities during such
period (except as part of such underwritten offering, if otherwise
permitted), unless the underwriters managing such offering otherwise
agree.
6. Amendment and Modification. This Agreement may be amended,
modified or supplemented by the Company with the written consent of the
Initiating Holders and a majority (by number of shares, including
Registrable Securities issuable upon conversion or exchange of other
securities) of any other holder of Registrable Securities whose interests
would be adversely affected by such amendment. Each holder of any
Registrable Securities at the time shall be bound by any consent
authorized by this section 6, whether or not such Registrable Securities
shall have been marked to indicate such consent.
7. NOMINEES FOR BENEFICIAL OWNERS. In the event that any
Registrable Securities are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its election, be treated as
the holder of such Registrable Securities for purposes of any request or
other action by any holder or holders of Registrable Securities pursuant
to this Agreement or any determination of any number or percentage of
Registrable Securities held by any holder or holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Securities.
8. NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if
delivered personally, mailed, certified or registered mail with postage
prepaid, sent by next-day or overnight mail or delivery or sent by
telecopy or telegram, as follows:
(a) If to the Company, to it at:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
General Counsel and Secretary
With a copy to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
(b) If to Westfield Holdings, to it at:
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
General Counsel
With a copy to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
(c) if to any other holder of Registrable Securities, at its
address as it appears on the transfer books of the Company.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial overnight courier
service; and when receipt is acknowledged, if telecopied.
9. REMEDIES. The holders of Registrable Securities, in addition
to being entitled to exercise all rights granted by law, including
recovery of damages, shall be entitled to specific performance of their
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.
10. NO INCONSISTENT AGREEMENTS. The Company will not, on or
after the date of this Agreement enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the holders
of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof.
11. MISCELLANEOUS.
(a) SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. In addition, the provisions of
this Agreement which are for the benefit of a holder of Registrable
Securities shall be for the benefit of and enforceable by any subsequent
holder of any Registrable Securities, PROVIDED that such subsequent holder
shall agree to be bound by the provisions of this Agreement.
Notwithstanding any transfer of such rights, all of the obligations of the
Company hereunder shall survive any such transfer and shall continue to
inure to the benefit of all transferees.
(b) GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereunder and the persons subject hereto shall be governed
by, and construed and interpreted in accordance with, the law of the State
of New York, without giving effect to the choice of law principles of such
State.
(c) INVALIDITY OF PROVISION; SEVERABILITY. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction
shall not affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of this
Agreement, including that provision, in any other jurisdiction. 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 and privileges of the holders of Registrable Securities shall be
enforceable to the fullest extent permitted by law.
(d) HEADINGS; EXECUTION IN COUNTERPART. The headings and
captions contained herein are for convenience and shall not control or
affect the meaning or construction of any provision hereof. This Agreement
may be executed in any number of counterparts, each of which shall be
deemed to be an original and which together shall constitute one and the
same agreement.
(e) ENTIRE AGREEMENT. This Agreement is intended by the parties
hereto as a final expression of their agreement and intended to be a
complete and exclusive statement of their agreement and understanding in
respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect
to such subject matter.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
WESTFIELD AMERICA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer &
Treasurer
WESTFIELD HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director