EXHIBIT Q-2
INCIDENTAL REGISTRATION RIGHTS AGREEMENT
CLOSING DISTRIBUTEE PARTNERS
This INCIDENTAL REGISTRATION RIGHTS AGREEMENT is made as of the 21st day
of December, 1995 (this "Agreement"), between THE MACERICH COMPANY, a
Maryland corporation (the "Company") and XXXX X. XXXXXXXXXXX, TRUSTEE OF THE
XXXXXXXXXXX FAMILY TRUST ("Investor").
W I T N E S E T H:
WHEREAS, the Company has agreed to provide Investor with certain
registration rights as set forth in this Agreement with respect to the units
("OP Units") held by Investor representing a limited partnership interest in
The Macerich Partnership, L.P., a Delaware limited partnership (the
"Partnership"), which may be redeemed for shares of Common Stock, $.01 par
value per share, of the Company (the "Common Stock");
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
and on the terms and conditions herein set forth, the parties hereto agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1. "BUSINESS DAY" means any day on which the New York Stock
Exchange is open for trading.
1.2. "CLOSING DATE" means the date hereof.
1.3. "ELIGIBLE SECURITIES" means all or any portion of any shares of
Common Stock acquired by Investor upon redemption of OP Units held by
Investor on the Closing Date, subject to the provision of Section 3.4 hereof.
As to any proposed offer or sale of Eligible Securities, such securities
shall cease to be Eligible Securities with respect to such proposed offer or
sale when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement or, (ii) such securities are permitted to be
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distributed pursuant to Rule 144(k) (or any successor provision to such Rule)
under the Securities Act or, (iii) such securities shall have been otherwise
transferred pursuant to an applicable exemption under the Securities Act, new
certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company and such securities shall
be freely transferable to the public without registration under the
Securities Act.
1.4. "PERSON" means an individual, a partnership (general or
limited), corporation, joint venture, business trust, cooperative,
association or other form of business organization, whether or not regarded as
a legal entity under applicable law, a trust (inter vivos or testamentary),
an estate of a deceased, insane or incompetent person, a quasi-governmental
entity, a government or any agency, authority, political subdivision or other
instrumentality thereof, or any other entity.
1.5. "REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with the registration requirements set
forth in this Agreement including, without limitation, the following; (i) the
fees, disbursements and expenses of the Company's counsel(s) (United States
and foreign), accountants and experts in connection with the registration of
Eligible Securities to be disposed of under the Securities Act; (ii) all
expenses in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the
mailing and delivering of copies thereof to the underwriters and dealers;
(iii) the cost of printing or producing any agreement(s) among underwriters,
underwriting agreement(s) and blue sky or legal investment memoranda, any
selling agreements and any other documents in connection with the offering,
sale or delivery of Eligible Securities to be disposed of; (iv) all expenses
in connection with the qualification of Eligible Securities to be disposed of
for offering and sale under state securities laws, including the fees and
disbursements of counsel for the underwriters in connection with such
qualification and in connection with any blue sky and legal investment
surveys; (v) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
Eligible Securities to be disposed of; and (vi) fees and expenses incurred in
connection with the listing of Eligible Securities on each securities
exchange on which securities of the same class are then listed; PROVIDED,
however, that Registration Expenses with respect to any registration pursuant
to this Agreement shall not include underwriting discounts or commissions
attributable to Eligible Securities or transfer taxes applicable to Eligible
Securities.
1.6. "SEC" means the Securities and Exchange Commission.
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1.7. "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder, all as the
same shall be in effect at the relevant time.
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
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2.1. EFFECTIVENESS OF REGISTRATION RIGHTS. This Agreement shall
become effective immediately; PROVIDED, HOWEVER, that the exercise by
Investor of any registration rights granted pursuant to Article 3 hereof
prior to eighteen (18) months from the Closing Date shall be subject to
Investor first having received written consent from the Company.
ARTICLE III
INCIDENTAL REGISTRATION RIGHTS
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3.1. NOTICE AND REGISTRATION. If the Company proposes to register
any shares of Common Stock or other securities issued by it having terms
substantially similar to Eligible Securities ("Other Securities") for public
sale under the Securities Act to be offered for sale by, and for the benefit
of, the Company on a form and in a manner which would permit registration of
Eligible Securities for sale to the public under the Securities Act or as
specified in Section 3.1(d) below, it will give prompt written notice to
Investor (whether or not the direct holder of Eligible Securities) of its
intention to do so, and upon the written request of Investor (the "Investor
Notice") delivered to the Company within fifteen (15) Business Days after the
giving of any such notice (which request shall specify the number of
Eligible Securities intended to be disposed of by Investor and the intended
method of disposition thereof) the Company will use all reasonable efforts to
effect, in connection with the registration of the Other Securities, the
registration under the Securities Act of all Eligible Securities which the
Company has been so requested to register by Investor, to the extent required
to permit the disposition (in accordance with the intended method or methods
thereof as aforesaid) of Eligible Securities so to be registered, provided
that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register the Other Securities, the Company may, at its election, give
written notice of such determination to Investor and thereupon the
Company shall be relieved of its obligation to register such
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Eligible Securities in connection with the registration of such Other
Securities (but not from its obligation to pay Registration Expenses to the
extent incurred in connection therewith as provided in Section 3.2);
(b) The Company will not be required to effect any registration
pursuant to this Article 3 if the Company shall have been advised in writing
(with a copy to Investor) by a nationally recognized independent investment
banking firm selected by the Company to act as lead underwriter in
connection with the public offering of securities by the Company, that in
such firm's opinion, a registration of the number of Eligible Securities
which the Company has been requested to register by Investor and any existing
or future holder of incidental registration rights (collectively, the
"Selling Shareholders") at that time would adversely affect the Company's own
scheduled offering or the market price of the Common Stock (a "Full
Cutback"), provided, however, that if registration of some but not all of the
shares requested to be registered by Investor and any other Selling
Shareholder would not adversely affect the Company's offering or the market
price of the Common Stock, the aggregate number of shares of all of the
Selling Shareholders that may be included in such registration shall be
allocated first, to the Selling Shareholders who presently have demand
registration rights with the Company and their permitted transferees in
accordance with their respective registration rights agreements and second,
if applicable, to the other Selling Shareholders pro rata according to the
total number of shares for which registration was initially requested by such
Selling Shareholders (a "Pro Rata Cutback");
(c) The Company shall not be required to effect any registration of
Eligible Securities under this Article 3 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or stock options or
other employee benefit plans;
(d) If the Company proposes to register any Other Securities to be
offered for sale by, and for the benefit of the Company, utilizing an
unallocated shelf registration statement on Form S-3 and the SEC does not
permit any secondary offering by an Investor to be registered in connection
therewith, the Company agrees to use all reasonable efforts to effect the
registration under the Securities Act of all Eligible Securities which the
Company has been so requested to register by Investor, to the extent such
secondary offering may be registered utilizing a registration statement on
Form S-3 and to the extent required to permit the disposition of Eligible
Securities so to be registered. Any registration to be effected pursuant
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to this Section 3.1(d) shall be subject to the limitations and
restrictions set forth in this Agreement; and
(e) Investor shall have the right to request registration of
Eligible Securities pursuant to this Article 3 no more than a total of
two times during the life of this Agreement. No registration request by
an Investor shall be deemed a request for purposes of this Section
3.1(e) unless all of the Eligible Securities requested to be registered
by an Investor as specified in an Investor Notice are so registered by
the Company in accordance with the provisions of this Agreement.
3.2. REGISTRATION EXPENSES. The Company (as between the Company
and Investor) shall be responsible for the payment of all Registration
Expenses in connection with any registration pursuant to this Article 3.
3.3. NOTICE REQUIREMENTS.
(a) At the time of the delivery of the Investor Notice, Investor
must directly hold the number of Eligible Securities that Investor is
requesting to be registered or follow the procedures specified herein.
If at the time of the delivery of the Investor Notice Investor does not
directly hold the number of Eligible Securities that Investor is
requesting to be registered, an exercise notice (the "Exercise Notice")
must also be delivered in accordance with the partnership agreement of
the Partnership requesting the redemption of OP Units (which together
with any other Eligible Securities directly held by Investor) equal the
number of Eligible Securities Investor is requesting the Company
register pursuant to Article 3. If upon delivery of the Exercise
Notice, all or any portion of the OP Units are redeemed for cash or
Unrestricted Common Stock (as defined below), the Investor Notice will
be deemed to be amended to reflect the change in the number of shares
of restricted Common Stock received upon such redemption.
(b) Notwithstanding any provision of the Partnership Agreement to
the contrary, this Exercise Notice may only be revoked by Investor if
(i) the registration statement filed in connection with such
registration of Eligible Securities does not become effective, or
(ii) the Eligible Securities that the Investor is requesting to be
registered are not included in such registration statement in
accordance with the provisions hereof, or (iii) a Full Cutback has
occurred, or (iv) a Pro Rata Cutback has occurred; provided, however,
that, in such event, the Exercise Notice may be revoked only with
respect to the number of Eligible Securities not included in such
registration statement. Within five (5) Business Days of receipt of
written notice of any of the events described above, Investor must
provide written notice
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to the Company of the intent of Investor to withdraw the Exercise
Notice or Investor will be deemed to have declined the right to revoke
the Exercise Notice.
3.4. ISSUANCE OF UNRESTRICTED COMMON STOCK. If upon any redemption
of Op Units the Company issues to Investor Common Stock where its issuance
was registered under the Securities Act ("Unrestricted Common Stock"), such
shares of Unrestricted Common Stock shall not be deemed Eligible Securities
for purposes of this Agreement and Investor will have no registration rights,
and the Company will be relieved of all of its obligations hereunder, with
respect to those shares of Unrestricted Common Stock.
ARTICLE IV
REGISTRATION PROCEDURES
-----------------------
4.1. REGISTRATION AND QUALIFICATION. If and whenever the Company
is required to use all reasonable efforts to effect the registration of any
Eligible Securities under the Securities Act as provided in Article 3, the
Company will as promptly as is practicable:
(a) prepare, file and use all reasonable efforts to cause to
become effective a registration statement under the Securities Act
regarding the Eligible Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the disposition of all Eligible Securities until the earlier
of such time as all of such Eligible Securities have been disposed of
in accordance with the intended methods of disposition by Investor set
forth in such registration statement or the expiration of twelve (12)
months after such registration statement become effective;
(c) furnish to Investor and to any underwriter of such Eligible
Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, such documents incorporated by
reference in such registration statement or prospectus, and such other
documents as Investor or such underwriter may reasonably request;
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(d) use all reasonable efforts to register or qualify all Eligible
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as Investor or any
underwriter of such Eligible Securities shall reasonably request, and do
any and all other acts and things which may be reasonably requested by
Investor or any underwriter to consummate the disposition in such
jurisdictions of the Eligible Securities covered by such registration
statement, except the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any jurisdiction where it is not then subject to taxation,
or to consent to general service of process in any jurisdiction where
it is not then subject to service of process;
(e) use all reasonable efforts to list the Eligible Securities on
each national securities exchange on which the Common Stock is then
listed, if the listing of such securities is then permitted under the
rules of such exchange; and
(f) immediately notify Investor at any time when a prospectus
relating to a registration pursuant to Article 3 hereof is required
to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of material
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at the
request of Investor prepare and furnish to such Investor as many copies
of a supplement to or an amendment of such prospectus as Investor may
reasonably request so that, as thereafter delivered to the purchasers
of such Eligible Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
The Company may require Investor to furnish the Company such information
regarding Investor and the distribution of such Eligible Securities as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the SEC in connection with any registration. The
Company may also impose such restrictions and limitations on the distribution
of such Eligible Securities as the Company reasonably believes are necessary
or advisable to comply with applicable law or to effect an orderly
distribution, including those restrictions set forth in Section 4.3 hereof.
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4.2. UNDERWRITING.
(a) In the event that any registration pursuant to Article 3 hereof
shall involve, in whole or in part, an underwritten offering, the
Company may require Eligible Securities requested to be registered
pursuant to Article 3 to be included in such underwriting on
the same terms and conditions as shall be applicable to the Other
Securities being sold through underwriters under such registration. In
such case, the holders of Eligible Securities on whose behalf Eligible
Securities are to be distributed by such underwriters shall be parties
to any such underwriting agreement. Such agreement shall contain such
representations and warranties by Investor and such other terms and
provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, without limitation,
indemnities and contribution to the effect and to the extent provided
in Article 6. The representations and warranties in such underwriting
agreement 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 Eligible Securities.
(b) If requested by the underwriters for any underwritten offering
of Eligible Securities pursuant to a registration requested hereunder,
the Company will enter into and perform its obligations under an
underwriting agreement with such underwriters for such offering, such
agreement to contain such representations and warranties by the Company
and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities and contribution to the effect
and to the extent provided in Article 6 hereof. Investor shall be a party
to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, the Company to
and for the benefit of such underwriters shall also be made to and for
the benefit of Investor. Such agreement shall also contain such
representations and warranties by Investor and such other terms and
provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, without limitation,
indemnities and contribution to the effect and to the extent provided in
Article 6.
4.3. BLACKOUT PERIODS. At any time when a registration statement
effected pursuant to Article 3 relating to Eligible Securities is effective,
upon written notice from the Company to Investor that the Company has
determined in good faith, with the advice of counsel, that Investor's sale of
Eligible Securities pursuant to the registration statement would require
disclosure
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of non-public material information the disclosure of which would have a
material adverse effect on the Company or would otherwise adversely effect a
material financing, acquisition, disposition, merger or other comparable
transaction, Investor shall suspend sales of Eligible Securities pursuant to
such registration statement until the earlier of:
(X) the date upon which such material information is
disclosed to the public or ceases to be material, or
(Y) such time as the Company notifies Investor that sales
pursuant to such registration statement may be resumed.
4.4 QUALIFICATION FOR RULE 144 SALES. The Company will take all
actions reasonably necessary to comply with the filing requirements described
in Rule 144(c) so as to enable Investor to sell Eligible Securities without
registration under the Securities Act and, upon the written request of
Investor, the Company will deliver to Investor a written statement as to
whether it has complied with such filing requirements.
ARTICLE V
PREPARATION; REASONABLE INVESTIGATION
5.1 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement registering
Eligible Securities under the Securities Act, the Company will give Investor
and the underwriters, if any, and their respective counsel and accountants,
drafts of such registration statement for their review and comment prior to
filing and such reasonable and customary access to its books and records and
such opportunities to discuss the business of the Company with its officers
and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of Investor and such
underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
6.1 Indemnification and Contribution.
(a) In the event of any registration of Eligible Securities
hereunder, the Company will enter into customary indemnification
arrangements to indemnify and hold harmless Investor, and each Person who
participates as an underwriter in the offering or sale of such securities,
and each Person,
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if any, who controls such underwriter within the meaning of the Securities
Act against any losses, claims, damages, liabilities and expenses, joint or
several, to which such Person may be subject under the Securities Act or
otherwise insofar as such losses, claims, damages, liabilities or expenses
(or actions or proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus included therein, or any amendment or supplement thereto, or any
document incorporated by reference therein, or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
promptly reimburse each such Person for any legal or any other expenses
reasonably incurred by such Person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
PROVIDED that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus or final
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by Investor expressly for use in
the registration statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of Investor or
any such Person and shall survive the transfer of such securities by
Investor. The Company also shall agree to provide provision for contribution
as shall be reasonably requested by Investor or any underwriters in
circumstances where such indemnity is held unenforceable.
(b) Investor, by virtue of exercising its registration rights
hereunder, agrees and undertakes to enter into customary indemnification
arrangements to indemnify and hold harmless (in the same manner and to the
same extent as set forth in clause (a) of this Article 6) the Company, each
director of the Company, each officer of the Company who shall sign such
registration statement, each Person who participates as an underwriter in the
offering or sale of such securities and each Person, if any, who controls
the Company or any such underwriter within the meaning of the Securities Act,
with respect to any statement in or omission from such registration
statement, any preliminary prospectus or final prospectus included therein, or
any amendment or supplement thereto, but only to the extent that such
statement or omission was made in reliance upon and in conformity with
written information furnished by Investor to
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the Company expressly for use in the registration statement. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of the
registered securities by Investor and the expiration of this Agreement.
Investor also shall be reasonably requested by the Company or any
underwriters in circumstances where such indemnity is held unenforceable.
(c) Indemnification and contribution similar to that specified in
the preceding subdivisions of this Article 6 (with appropriate
modifications) shall be given by the Company and Investor with respect
to any required registration or other qualification of Eligible
Securities under any federal or state law or regulation of governmental
authority other than the Securities Act.
ARTICLE VII
TRANSFER OF REGISTRATION RIGHTS
7.1. TRANSFER OF REGISTRATION RIGHTS. Investor may NOT transfer the
registration rights granted hereunder to any other Person.
ARTICLE VIII
MISCELLANEOUS
8.1. CAPTIONS. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or
limit the scope or intent of this Agreement.
8.2. SEVERABILITY. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or
unenforceability of such clause, provision or section shall not affect the
enforceability or validity of any of the remaining clauses, provisions or
sections hereof to the extent permitted by applicable law.
8.3. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of California, without
reference to its rules as to conflicts or choice of laws.
8.4. MODIFICATION AND AMENDMENT. This Agreement may not be
changed, modified, discharged or amended, except by an instrument signed by
all of the parties hereto.
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8.5. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall
constitute one and the same instrument.
8.6. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding among the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
8.7. NOTICES. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery
service or by certified mail, return receipt requested, postage prepaid.
Notices to Investor shall be made to the address listed on the stock transfer
records of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
or caused this Agreement to be executed as of the day and year first above
written.
THE MACERICH COMPANY
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: General Counsel and Secretary
INVESTOR:
/s/ Xxxx X. Xxxxxxxxxxx
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Print Name: XXXX X. XXXXXXXXXXX, TRUSTEE
DEBENEDETTI FAMILY TRUST
Address: 000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
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