REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 17, 1998 (this
"AGREEMENT"), by and between The Macerich Company, a Maryland corporation (the
"COMPANY"), and The Ontario Teachers' Pension Plan Board, an Ontario corporation
(the "INVESTOR").
WHEREAS, pursuant to that certain Series B Preferred Securities
Purchase Agreement, dated as of June 16, 1998 (the "PURCHASE AGREEMENT"), by and
between the Company and the Investor, the Investor has agreed to acquire
5,487,471 shares of Series B Cumulative Convertible Preferred Stock, par value
$.01 per share, of the Company (the "PREFERRED SHARES"), all of which may be
converted into shares of the Company's common stock, par value $.01 per share
(the "COMMON SHARES"), pursuant to the terms of the Preferred Shares; and
WHEREAS, in connection with the Purchase Agreement, the Company has
agreed to register for sale by the Investor and certain transferees, the Common
Shares received by the Investor upon conversion of Preferred Shares (the
"REGISTRABLE SHARES"); and
WHEREAS, the parties hereto desire to enter into this Agreement to
evidence the foregoing agreement of the Company and the mutual covenants of the
parties relating thereto.
NOW, THEREFORE, in consideration of the foregoing and the covenants of
the parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. In this Agreement the following
terms shall have the following respective meanings:
"ACCREDITED INVESTOR" shall have the meaning set forth in Rule 501 of
the General Rules and Regulations promulgated under the Securities Act.
"AFFILIATE" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the relevant time.
"HOLDERS" shall mean (i) the Investor and (ii) each Person holding
Registrable Shares (which term, for purposes of this definition shall include
Common Shares that may be issued upon conversion of outstanding Preferred
Shares) as a result of a transfer or assignment to
that Person of Registrable Shares other than pursuant to an effective
registration statement or Rule 144 under the Securities Act, which transfer or
assignment is properly completed in accordance with Section 10 hereof.
"INDEMNIFIED PARTY" shall have the meaning ascribed to it in
Section 6(c) of this Agreement.
"INDEMNIFYING PARTY" shall have the meaning ascribed to it in
Section 6(c) of this Agreement.
"PERSON" shall mean an individual, corporation, partnership, estate,
trust, association, private foundation, joint stock company or other entity.
"PIGGYBACK NOTICE" shall have the meaning ascribed to it in
Section 3(a) of this Agreement.
"PIGGYBACK REGISTRATION" shall have the meaning ascribed to it in
Section 3(a) of this Agreement.
"PREFERRED SHARES" shall have the meaning ascribed to it in the
recitals to this Agreement.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act providing for the sale by the Holders of
Registrable Shares in accordance with the method or methods of distribution
designated by the Holders, and the declaration or ordering of the effectiveness
of such registration statement by the Commission.
"REGISTRABLE SHARES" shall have the meaning ascribed to it in the
recitals to this Agreement, except that as to any particular Registrable Shares,
once issued such securities shall cease to be Registrable Shares when (a) 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, (b) such securities
shall have been sold in accordance with Rule 144 (or any successor provision)
under the Securities Act or (c) if in the opinion of counsel reasonably
acceptable to the Company and the Holders securities may be sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act and the Company has removed all transfer restrictions and
legends with respect to the registration and prospectus delivery requirements
for the consummation of such sale.
"REGISTRATION EXPENSES" shall mean all out-of-pocket expenses
(excluding Selling Expenses) incurred by the Company in connection with any
attempted or completed registration pursuant to Sections 2, 3 and 4 hereof,
including, without limitation, the following: (a) all registration, filing and
listing fees; (b) fees and expenses of compliance with federal and state
securities or real estate syndication laws (including, without limitation,
reasonable fees and disbursements of counsel in connection with state securities
and real estate syndication qualifications of the Registrable Shares under the
laws of such jurisdictions as the Holders may reasonably designate);
(c) printing (including, without limitation, expenses of printing or
2
engraving certificates for the Registrable Shares in a form eligible for deposit
with The Depository Trust Company and otherwise meeting the requirements of any
securities exchange on which they are listed and of printing registration
statements and prospectuses), messenger, telephone, shipping and delivery
expenses; (d) fees and disbursements of counsel for the Company; (e) fees and
disbursements of all independent public accountants of the Company (including
without limitation the expenses of any annual or special audit and "cold
comfort" letters required by the managing underwriter); (f) Securities Act
liability insurance if the Company so desires; (g) fees and expenses of other
Persons reasonably necessary in connection with the registration, including any
experts, retained by the Company; (h) fees and expenses incurred in connection
with the listing of the Registrable Shares on each securities exchange on which
securities of the same class or series are then listed; and (i) fees and
expenses associated with any filing with the National Association of Securities
Dealers, Inc. required to be made in connection with the registration statement.
"REGISTRATION REQUEST" shall have the meaning ascribed to it in
Section 2(a) of this Agreement.
"RULE 144" shall mean Rule 144 promulgated by the Commission under the
Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to any sale of Registrable
Shares and, if neither the Company nor any person not a Holder includes
securities with the subject Registration, shall include all travel and other
expenses of members of the management of the Company and its affiliates (and if
the Company or any such Person shall so include securities, Selling Expenses
shall include a pro rata portion of such travel and other expenses).
Section 2. DEMAND REGISTRATION.
(a) Upon receipt of a written request (a "REGISTRATION REQUEST")
delivered not earlier than 120 days prior to the first anniversary of this
Agreement from Holders holding at least 50% of the aggregate of the number of
Registrable Shares then outstanding, the Company shall (i) promptly give notice
of the Registration Request to all non-requesting Holders and (ii) prepare and
file with the Commission, within 45 days after its receipt of such Registration
Request a registration statement for the purpose of effecting a Registration of
the sale of all Registrable Shares by the requesting Holders and any other
Holder who requests to have his Registrable Shares included in such registration
statement within 10 days after receipt of notice by such Holder of the
Registration Request. The Company shall use its reasonable best efforts to
effect such Registration as soon as practicable but not later than 120 days
after its receipt of such Registration Request (including, without limitation,
the execution of an undertaking to file post-effective amendments and
appropriate qualification under applicable state securities and real estate
syndication laws); and shall keep such Registration continuously effective until
the earlier of (i) the third anniversary of the date hereof, (ii) the date on
which all Registrable Shares
3
registered pursuant to such Registration have been sold pursuant to such
registration statement or Rule 144, and (iii) the date on which, in the opinion
of counsel reasonably acceptable to the Company and the Holders, all of the
Registrable Shares registered pursuant to such Registration may be sold in
accordance with Rule 144(k); PROVIDED, HOWEVER, that the Company shall not be
obligated to take any action to effect any such Registration, qualification or
compliance pursuant to this Section 2 in any particular jurisdiction in which
the Company would be required to execute a general consent to service of process
in effecting such Registration, qualification or compliance unless the Company
is already subject to service in such jurisdiction.
Notwithstanding the foregoing, the Company shall have the right (the
"SUSPENSION RIGHT") to defer such filing (or suspend sales under any filed
registration statement or defer the updating of any filed registration statement
and suspend sales thereunder) for a period of not more than 105 days during any
one-year period ending on December 31, if the Company shall furnish to the
Holders a certificate signed by an executive officer or any director of the
Company stating that, in the good faith judgment of the Company, it would be
detrimental to the Company and its shareholders to file such registration
statement or amendment thereto at such time (or continue sales under a filed
registration statement) and therefore the Company has elected to defer the
filing of such registration statement (or suspend sales under a filed
registration statement).
(b) The Company shall not be required to effect more than two (2)
Registrations pursuant to this Section 2.
Section 3. PIGGYBACK REGISTRATIONS.
(a) On and after the Conversion Date (as defined in the Series B
Preferred Articles Supplementary), so long as the Investor and its Affiliates
hold at least 50% of the Registrable Shares, if the Company proposes to register
under the Securities Act any of its common equity securities with an expected
aggregate offering price to the public of at least $100 million (other than
pursuant to (i) a registration statement filed pursuant to Rule 415 under the
Securities Act, (ii) a registration on Form S-4 or any successor form, or
(iii) an offering of securities in connection with an employee benefit, share
dividend, share ownership or dividend reinvestment plan) and the registration
form to be used may be used for the registration of Registrable Shares, the
Company will give prompt written notice to all Holders of Registrable Shares of
its intention to effect such a registration (each a "PIGGYBACK NOTICE") and,
subject to subparagraph 3(c) below, the Company will include in such
registration all Registrable Shares with respect to which the Company has
received written requests for inclusion therein within ten days after the date
of sending the Piggyback Notice (a "PIGGYBACK REGISTRATION"), unless, if the
Piggyback Registration is not an underwritten offering, the Company in its
reasonable judgement determines that, or in the case of an underwritten
Piggyback Registration, the managing underwriters advise the Company in writing
that in their opinion, the inclusion of Registrable Shares would adversely
interfere with such offering, affect the Company's securities in the public
markets, or otherwise adversely affect the Company. Nothing herein shall affect
the right of the Company to withdraw any such registration in its sole
discretion.
(b) If a Piggyback Registration is a primary registration on behalf
of the Company and, if the Piggyback Registration is not an underwritten
offering, the Company in its
4
reasonable judgement determines that, or in the case of an underwritten
Piggyback Registration, the managing underwriters advise the Company in writing
that in their opinion, the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner within a
price range acceptable to the Company, the Company will include in such
registration (i) first, the securities the Company proposes to sell and
(ii) second, the Registrable Shares requested to be included in such
Registration and any other securities requested to be included in such
registration, pro rata among the holders of Registrable Shares requesting such
registration and the holders of such other securities on the basis of the number
of Shares requested for inclusion in such registration by each such holder.
(c) If a Piggyback Registration is a secondary registration on behalf
of holders of the Company's securities other than the holders of Registrable
Shares, and, if the Piggyback Registration is not an underwritten offering, the
Company determines that, or in the case of an underwritten Piggyback
Registration, the managing underwriters advise the Company in writing that in
their opinion, the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration, the Company will include in such registration the securities
requested to be included therein by the holders requesting such registration and
the Registrable Shares requested to be included in such registration, pro rata
among the holders of securities requesting such registration on the basis of the
number of Shares initially requested for inclusion in such registration by each
such holder, subject to any preferential registration rights granted prior to
the date of this Agreement.
(d) In the case of an underwritten Piggyback Registration, the
Company will have the right to select the investment banker(s) and manager(s) to
administer the offering. In a registration pursuant to Section 2(a), the
Holders requesting registration shall have the right to select the investment
banker(s) and manager(s) to administer the offering, which shall be reasonably
acceptable to the Company. If requested by the underwriters for any
underwritten offerings by Holders, under a registration requested pursuant to
Section 2(a), the Company will enter into a customary underwriting agreement
with such underwriters for such offering, to contain such representations and
warranties by the Company and such other terms as are customarily contained in
agreements of that type. The Holders who elect to register Registrable Shares
shall be a party to such underwriting agreement and may, at their option,
require that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of Holders. Such Holders shall not be required to make any
representations or warranties to or agreement with the Company or the
underwriters other than representations, warranties or agreements regarding the
Holders and the Holders' intended method of distribution and any other
representation or warranties required by law.
Section 4. REGISTRATION PROCEDURES.
(a) The Company shall promptly notify the Holders of the occurrence
of the following events:
5
(i) when any registration statement relating to the
Registrable Shares or post-effective amendment thereto filed with the Commission
has become effective;
(ii) the issuance by the Commission of any stop order
suspending the effectiveness of any registration statement relating to the
Registrable Shares;
(iii) the suspension of an effective registration statement by
the Company in accordance with the last paragraph of Section 2(a) hereof;
(iv)the Company's receipt of any notification of the suspension of the
qualification of any Registrable Shares covered by a registration statement for
sale in any jurisdiction; and
(v) the existence of any event, fact or circumstance that
results in a registration statement or prospectus relating to Registrable Shares
or any document incorporated therein by reference containing an untrue statement
of material fact or omitting to state a material fact required to be stated
therein or necessary to make the statements therein not misleading during the
distribution of securities.
The Company agrees to use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such registration
statement or any state qualification as promptly as possible. The Investor
agrees by acquisition of the Registrable Shares that upon receipt of any notice
from the Company of the occurrence of any event of the type described in Section
4(a)(ii), (iii), (iv) or (v) to immediately discontinue its disposition of
Registrable Shares pursuant to any registration statement relating to such
securities until the Investor's receipt of written notice from the Company that
such disposition may be made.
(b) The Company shall provide to the Holders, at no cost to the
Holders, a copy of the registration statement and any amendment thereto used to
effect the Registration of the Registrable Shares, each prospectus contained in
such registration statement or post-effective amendment and any amendment or
supplement thereto and such other documents as the requesting Holders may
reasonably request in order to facilitate the disposition of the Registrable
Shares covered by such registration statement. The Company consents to the use
of each such prospectus and any supplement thereto by the Holders in connection
with the offering and sale of the Registrable Shares covered by such
registration statement or any amendment thereto. The Company shall also file a
sufficient number of copies of the prospectus and any post-effective amendment
or supplement thereto with the New York Stock Exchange, Inc. (or, if the Common
Shares are no longer listed thereon, with such other securities exchange or
market on which the Common Shares are then listed) so as to enable the Holders
to have the benefits of the prospectus delivery provisions of Rule 153 under the
Securities Act.
(c) The Company agrees to use its reasonable best efforts to cause
the Registrable Shares covered by a registration statement to be registered with
or approved by such state securities authorities as may be necessary to enable
the Holders to consummate the disposition of such shares pursuant to the plan of
distribution set forth in the registration
6
statement; provided, however, that the Company shall not be obligated to take
any action to effect any such Registration, qualification or compliance pursuant
to this Section 4 in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
Registration, qualification or compliance unless the Company is already subject
to service in such jurisdiction..
(d) Subject to the Company's Suspension Right, if any event, fact or
circumstance requiring an amendment to a registration statement relating to the
Registrable Shares or supplement to a prospectus relating to the Registrable
Shares shall exist, immediately upon becoming aware thereof the Company agrees
to notify the Holders and prepare and furnish to the Holders a post-effective
amendment to the registration statement or supplement to the 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 Shares,
the 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 not misleading.
(e) The Company agrees to use its reasonable best efforts (including
the payment of any listing fees) to obtain the listing of all Registrable Shares
covered by the registration statement on each securities exchange on which
securities of the same class or series are then listed.
(f) The Company agrees to use its reasonable best efforts to comply
with the Securities Act and the Exchange Act in connection with the offer and
sale of Registrable Shares pursuant to a registration statement, and, as soon as
reasonably practicable following the end of any fiscal year during which a
registration statement effecting a Registration of the Registrable Shares shall
have been effective, to make available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act.
(g) The Company agrees to cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Shares to be sold pursuant to a Registration and not bearing any
Securities Act legend; and enable certificates for such Registrable Shares to be
issued for such numbers of shares and registered in such names as the Holders
may reasonably request at least two business days prior to any sale of
Registrable Shares.
Section 5. EXPENSES OF REGISTRATION. The Company shall pay all
Registration Expenses incurred in connection with the registration,
qualification or compliance pursuant to Sections 2, 3 and 4 hereof. All Selling
Expenses incurred in connection with the sale of Registrable Shares by any of
the Holders shall be borne by the Holder selling such Registrable Shares. Each
Holder shall pay the expenses of its own counsel.
Section 6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will (i) indemnify each Holder, each Holder's
officers and directors, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (including reasonable legal expenses), arising
out of or based on any untrue statement (or alleged untrue statement) of a
7
material fact contained in any registration statement or prospectus relating to
the Registrable Shares, or any amendment or supplement thereto, or based on 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
(ii) reimburse each Holder for all reasonable legal or other expenses incurred
in connection with investigating or defending any such action or claim as such
expenses are incurred, PROVIDED, HOWEVER, that the Company will not be liable in
any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in conformity with
information furnished in writing to the Company by such Holder or underwriter
for inclusion therein; and PROVIDED FURTHER, that in the case of a
nonunderwritten offering, the Company shall not be liable in any such case with
respect to any preliminary prospectus or preliminary prospectus supplement to
the extent that any such expenses, claims, losses, damages and liabilities
result from the fact that Registrable Shares were sold to a person as to whom it
shall be established that there was not sent or given at or prior to the written
confirmation of such sale a copy of the prospectus as then amended or
supplemented under circumstances were such delivery is required under the
Securities Act, if the Company shall have previously furnished copies thereof to
such Indemnified Person in sufficient quantities to enable such Indemnified
Party to satisfy such obligations and the expense, claim, loss, damage or
liability of such Indemnified Person results from an untrue statement or
omission of a material fact contained it the preliminary prospectus or the
preliminary prospectus supplement which was corrected in the prospectus.
(b) Each Holder selling shares pursuant to a Registration (and, in
the case of a nonunderwritten offering, any agents of each Holder that
facilitate the distribution of Registrable Shares) will (i) indemnify the
Company, each of its directors and each of its officers who signs the
registration statement, each underwriter, if any, of the Company's securities
covered by such registration statement, and each person who controls the Company
or such underwriter within the meaning of Section 15 of the Securities Act,
against all expenses, claims, losses, damages and liabilities (including
reasonable legal fees and expenses) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any such
registration statement or prospectus, or any amendment or supplement thereto, or
based on 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, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement or prospectus, in reliance upon and in
conformity with information furnished in writing to the Company by such Holder
for inclusion therein, and (ii) reimburse the Company for all reasonable legal
or other expenses incurred in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Each party entitled to indemnification under this Section 6 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
omission to so notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party pursuant to the provisions
of this Section 6 except to the extent of the actual damages suffered by such
delay in notification. The Indemnifying Party shall assume the defense of such
action, including the employment of counsel to be chosen by the Indemnifying
Party to be reasonably satisfactory to
8
the Indemnified Party, and payment of expenses. The Indemnified Party shall
have the right to employ its own counsel in any such case, but the legal fees
and expenses of such counsel shall be at the expense of the Indemnified Party,
unless the employment of such counsel shall have been authorized in writing by
the Indemnifying Party in connection with the defense of such action, or the
Indemnifying Party shall not have employed counsel to take charge of the defense
of such action or the Indemnified Party shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to the Indemnifying Party (in which case the
Indemnifying Party shall not have the right to direct the defense of such action
on behalf of the Indemnified Party), in any of which events such fees and
expenses shall be borne by the Indemnifying Party. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which 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.
(d) If the indemnification provided for in this Section 6 is
unavailable to a party that would have been an Indemnified Party under this
Section 6 in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party that would have been an Indemnifying Party
hereunder shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of such
expenses, claims, losses, damages and liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statement or
omission which resulted in such expenses, claims, losses, damages and
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Indemnifying Party or such Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 6(d).
(e) 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.
(f) In no event shall any Holder be liable for any expenses, claims,
losses, damages or liabilities pursuant to this Section 6 in excess of the net
proceeds to such Holder of any Registrable Shares sold by such Holder.
Section 7. INFORMATION TO BE FURNISHED BY HOLDERS. Each Holder shall
furnish to the Company such information as the Company may reasonably request
and as shall be required in connection with the Registration and related
proceedings referred to in Section 2 or Section 3 hereof. If any Holder fails
to provide the Company with such information within 10 days of receipt of the
Company's request, the Company's obligations under Section 2 or
9
Section 3 hereof, as applicable, with respect to such Holder or the Registrable
Shares owned by such Holder, shall be suspended until such Holder provides such
information.
Section 8. UNDERTAKING TO PARTICIPATE IN UNDERWRITING. If the
Holders of at least $75 million of the Registrable Shares shall propose to sell
Registrable Shares in an underwritten public offering, the Company shall make
available, for reasonable periods of time and with reasonable notice, members
of the management of the Company and its affiliates for reasonable assistance in
selling efforts relating to such offering, to the extent customary for a public
offering (including, without limitation, to the extent customary, senior
management attendance at due diligence meetings with the underwriters and their
counsel and road shows) and shall enter into underwriting agreements containing
usual and customary terms and conditions reasonably acceptable to the Company
for such types of offerings.
Section 9. RULE 144 SALES.
(a) The Company covenants that it will use its best efforts to file
the reports required to be filed by the Company under the Exchange Act, so as to
enable any Holder to sell Registrable Shares pursuant to Rule 144 under the
Securities Act.
(b) In connection with any sale, transfer or other disposition by any
Holder of any Registrable Shares pursuant to Rule 144 under the Securities Act,
the Company shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Shares to be
sold and not bearing any Securities Act legend, and enable certificates for such
Registrable Shares to be for such number of shares and registered in such names
as the selling Holder may reasonably request at least two business days prior to
any sale of Registrable Shares.
Section 10. TRANSFER OF REGISTRATION RIGHTS. The rights and
obligations of a Holder under this Agreement may be transferred or otherwise
assigned to a transferee or assignee of Registrable Shares provided that
(i) such transferee or assignee becomes a party to this Agreement or agrees in
writing to be subject to the terms hereof to the same extent as if such
transferee or assignee were an original party hereunder and (ii) the Company is
given written notice by such Holder of such transfer or assignment stating the
name and address of such transferee or assignee and identifying the securities
with regard to which such rights and obligations are being transferred or
assigned.
Section 11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the State of Maryland.
(b) ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
(c) AMENDMENT. No supplement, modification, waiver or termination of
this Agreement shall be binding unless executed in writing by the Company and
the Holders of at least two-thirds of the Registrable Shares.
10
(d) NOTICES, ETC. Each notice, demand, request, request for
approval, consent, approval, disapproval, designation or other communication
(each of the foregoing being referred to herein as a notice) required or desired
to be given or made under this Agreement shall be in writing (except as
otherwise provided in this Agreement), and shall be effective and deemed to have
been received (i) when delivered in person, (ii) when sent by fax with receipt
acknowledged, (iii) five (5) days after having been mailed by certified or
registered United States mail, postage prepaid, return receipt requested, or
(iv) the next business day after having been sent by a nationally recognized
overnight mail or courier service, receipt requested. Notices shall be
addressed as follows: (a) if to the Investor, at the Investor's address or fax
number set forth below its signature hereon, or at such other address or fax
number as the Investor shall have furnished to the Company in writing, or (b) if
to any assignee or transferee of an Investor, at such address or fax number as
such assignee or transferee shall have furnished the Company in writing, or
(c) if to the Company, at the address of its principal executive offices and
addressed to the attention of the President, or at such other address or fax
number as the Company shall have furnished to the Investors or any assignee or
transferee. Any notice or other communication required to be given hereunder to
a Holder in connection with a registration may instead be given to the
designated representative of such Holder.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by fewer than all of the parties
hereto (PROVIDED that each party executes one or more counterparts), each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
(f) SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
(g) SECTION TITLES. Section titles are for descriptive purposes only
and shall not control or alter the meaning of this Agreement as set forth in the
text.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns.
(i) REMEDIES. The Company and the Investor acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that the Company and each Holder,
in addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of another
party under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(j) ATTORNEYS' FEES. If the Company or any Holder brings an action
to enforce its rights under this Agreement, the prevailing party in the action
shall be entitled to recover its costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred in connection with such action,
including any appeal of such action.
[signature page follows]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE MACERICH COMPANY
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
General Counsel and Secretary
THE ONTARIO TEACHERS' PENSION PLAN BOARD
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Portfolio Manager
Address:
Fax Number:
12
