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Exhibit 10.28
FORM OF
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August __, 1998 (the
"Agreement"), by and among Simon Property Group, Inc. (the "Company") and the
persons set forth on Schedule A (the "Rights Holders"). The Rights Holders and
their respective successors-in-interest and permitted assigns are hereinafter
sometimes referred to as the "Holders."
Upon execution of the Sixth Amended and Restated Agreement of
Limited Partnership (the "Partnership Agreement") of Simon Property, L.P., a
Delaware limited partnership (the "Operating Partnership"), dated as of the
date hereof, among the Company, SPG Properties, Inc., SD Property Group, Inc.
and its limited partners (the "Limited Partners"), the Limited Partners have the
right at any time to exchange all or any portion of their units of partnership
interest ("Units") in the Operating Partnership for shares ("Shares") of the
Company's common stock, par value $.0001 per share (the "Common Stock"), or
cash, at the election of the Company, and, except as provided herein, any Shares
issued upon such exchange will not be registered under the Securities Act of
1933, as amended (the "Securities Act").
Upon execution of this Agreement and upon consummation of the
transactions contemplated by the Agreement and Plan of Merger, dated as of
February 18, 1998 (the "Merger Agreement"), by and among Xxxxx XxXxxxxxx Group,
Inc. (the predecessor to SPG Properties, Inc.), Corporate Property Investors,
Inc. (the predecessor to the Company) and Corporate Realty Consultants, Inc.,
the Company has agreed to provide certain registration rights with respect to
the Shares held by certain former stockholders of Corporate Property Investors,
Inc.
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Securities Subject to this Agreement. The securities entitled to
the benefits of this Agreement are (a) the Shares issued by the Company to the
Holders, (b) the Shares issued by the Company to the Holders upon conversion of
the Series A Convertible Preferred Stock, par value $.0001 per share ("Series A
Preferred Stock"), of the Company, and (c) the Shares issued by the Company to
the Holders upon exchange of the Units pursuant to the Partnership Agreement
(collectively, the "Registrable Securities") but, with respect to any particular
Registrable Security, only so long as it continues to be a Registrable Security.
Registrable Securities shall include any securities issued as a dividend or
distribution on account of Registrable Securities or resulting from a
subdivision of the outstanding shares of Registrable Securities into a greater
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number of shares (by reclassification, stock split or otherwise). For the
purposes of this Agreement, a security that was at one time a Registrable
Security shall cease to be a Registrable Security when (a) such security has
been effectively registered under the Securities Act of 1933, as amended (the
"Securities Act"), other than pursuant to Section 4 of this Agreement, and
either (i) the registration statement with respect thereto has remained
continuously effective for 150 days or (ii) such security has been disposed of
pursuant to such registration statement, (b) such security is sold to the public
in reliance on Rule 144 (or any similar provision then in force) under the
Securities Act, (c) such security has been otherwise transferred, [except in
connection with the exercise of the EJDC Option (as defined in the Partnership
Agreement), and (i) the Company has delivered a new certificate or other
evidence of ownership not bearing the legend set forth on the Shares upon the
initial issuance thereof (or other legend of similar import) and (ii) in the
opinion of counsel to the Company reasonably acceptable to the Holders and
addressed to the Company and the holder of such security, the subsequent
disposition of such security shall not require the registration or qualification
under the Securities Act, or (d) such security has ceased to be outstanding.
Notwithstanding anything to the contrary herein, any Limited Partner
may exercise any of its rights hereunder prior to its receipt of Shares,
provided that such Holder, simultaneously with the delivery of any notice
requesting registration hereunder, shall deliver an Exercise Notice to the
Company requesting (i) exchange of Units exchangeable into such number of Shares
as such Limited Partner has requested to be registered, or (ii) conversion of
the Series A Preferred Stock into such number of Shares as such Holder has
requested to be registered. Any such Exercise Notice so delivered shall be (a)
conditioned on the effectiveness of the requested registration in connection
with which it was delivered and (b) deemed to cover only such number of Units as
are exchangeable into the number of Shares actually sold pursuant to the
requested registration. Any Shares to be issued in connection with any such
Exercise Notice shall be issued upon the closing of the requested registration.
In the event that the Company elects to issue all cash in lieu of Shares upon
the exchange of the Units covered by any such Exercise Notice, the registration
requested by the Limited Partner that delivered such Exercise Notice, if a
Demand Registration, shall not constitute a Demand Registration under Section
2.1 hereof.
Nothing contained herein shall create any obligation on the part of
the Company to issue Shares, rather than cash, upon the exchange of any Units.
2. Demand Registration.
2.1. Request for Registration. At any time, each Holder (or,
with respect to each Holder that is a member of the XxXxxxxxx Group, the
XxXxxxxxx Representative) may make a written
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request per 12-month period (specifying the intended method of disposition) for
registration under the Securities Act (each, a "Demand Registration") of all or
part of such Holder's Registrable Securities (but such part, together with the
number of securities requested by other Holders to be included in such Demand
Registration pursuant to this Section 2.1, shall have an estimated market value
at the time of such request (based upon the then market price of a share of
Common Stock of the Company) of at least $10,000,000). Notwithstanding the
foregoing, the Company shall not be required to file any registration statement
on behalf of any Holder within six months after the effective date of any
earlier registration statement so long as the Holder requesting the Demand
Registration was given a notice offering it the opportunity to sell Registrable
Securities under the earlier registration statement and such Holder did not
request that, all of its Registrable Securities be included; provided, however,
that if a Holder requested that all of its Registrable Securities be included in
the earlier registration statement but not all were so included through no fault
of the Holder, such Holder may, but shall not be obligated to, require the
Company to file another registration statement pursuant to a Demand Registration
(subject, in the event of a Demand Registration for less than all such remaining
Registrable Securities, to the same $10,000,000 limitation set forth above)
exercised by such Holder within six months of the effective date of such earlier
registration statement. Within ten days after receipt of a request for a Demand
Registration, the Company shall give written notice (the "Notice") of such
request to all other Holders and shall include in such registration all
Registrable Securities that the Company has received written requests for
inclusion therein within 15 days after the Notice is given (the "Requested
Securities"). Thereafter, the Company may elect to include in such registration
additional shares of Common Stock to be issued by the Company. In such event for
purposes only of Section 2.3 (other than the first sentence thereof) and not for
purposes of any other provision or Section hereof (including, without
limitation, Section 3), (a) such shares to be issued by the Company in
connection with a Demand Registration shall be deemed to be Registrable
Securities and (b) the Company shall be deemed to be a Holder thereof. All
requests made pursuant to this Section 2.1 shall specify the aggregate number of
Registrable Securities to be registered.
2.2. Effective Registration and Expenses. A registration shall
not constitute a Demand Registration under Section 2.1 hereof until it has
become effective. In any registration initiated as a Demand Registration, the
Company shall pay all Registration Expenses (as defined in Section 8) incurred
in connection therewith, whether or not such Demand Registration becomes
effective, unless such Demand Registration fails to become effective as a result
of the fault of one or more Holders other than the Company, in which case the
Company will not be required to pay the Registration Expenses incurred with
respect to the offering of such Holder or Holders' Registrable
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Securities. The Registration Expenses incurred with respect to the offering of
such Holder or Holders' Registrable Securities shall be the product of (a) the
aggregate amount of all Registration Expenses incurred in connection with such
registration and (b) the ratio that the number of such Registrable Securities
bears to the total number of Registrable Securities included in the
registration.
2.3. Priority on Demand Registrations. The Holder making the
Demand Registration may elect whether the offering of such Registrable
Securities pursuant to such Demand Registration shall be in the form of a firm
commitment underwritten offering or otherwise; provided, however, that such
Holder may not elect that such offering be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act. In any case in which an offering
is in the form of a firm commitment underwritten offering, if the managing
underwriter or underwriters of such offering advise the Company in writing that
in its or their opinion the number of Registrable Securities proposed to be sold
in such offering exceeds the number of Registrable Securities that can be sold
in such offering without adversely affecting the market for the Company's common
stock, the Company will include in such registration the number of Registrable
Securities that in the opinion of such managing underwriter or underwriters can
be sold without adversely affecting the market for the Company's common stock.
In such event, the number of Registrable Securities, if any, to be offered for
the accounts of Holders (including the Holder making the Demand Registration)
shall be reduced pro rata on the basis of the relative number of any Registrable
Securities requested by each such Holder to be included in such registration to
the extent necessary to reduce the total number of Registrable Securities to be
included in such offering to the number recommended by such managing underwriter
or underwriters. In the event the Holder making the Demand shall receive notice
pursuant to this Section 2.3 that the amount of Registrable Securities to be
offered for the account of such Holder shall be reduced, such Holder shall be
entitled to withdraw the Demand by written notice to the Company within seven
(7) days after receipt of such notice, with the effect that such Demand shall be
deemed not to have been made.
2.4. Selection of Underwriters. If any of the Registrable
Securities covered by a Demand Registration are to be sold in an underwritten
offering, the Holders, in the aggregate, that own or will own a majority of the
Registrable Securities that the Company has been requested to register
(including the Requested Securities but excluding any securities to be issued by
the Company), shall have the right to select the investment banker or investment
bankers and manager or managers that will underwrite the offering; provided,
however, that such investment bankers and managers must be reasonably
satisfactory to the Company.
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3. Piggyback Registration. Whenever the Company proposes to file a
registration statement under the Securities Act with respect to an underwritten
public offering of Common Stock by the Company for its own account or for the
account of any stockholders of the Company (other than a registration statement
filed pursuant to either Section 2 or 4 hereof), the Company shall give written
notice (the "Offering Notice") of such proposed filing to each of the Holders at
least 30 days before the anticipated filing date. Such Offering Notice shall
offer all such Holders the opportunity to register such number of Registrable
Securities as each such Holder may request in writing, which request for
registration (each, a "Piggyback Registration") must be received by the Company
within 15 days after the Offering Notice is given. The Company shall use all
reasonable efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering, if any, to permit the holders of the Registrable
Securities requested to be included in the registration for such offering to
include such Registrable Securities in such offering on the same terms and
conditions as the common stock of the Company or, if such offering is for the
account of other stockholders, the common stock of such stockholders included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of a proposed underwritten offering advise the Company in writing
that in its or their opinion the number of Registrable Securities proposed to be
sold in such offering exceeds the number of Registrable Securities that can be
sold in such offering without adversely affecting the market for the Common
Stock, the Company will include in such registration the number of Registrable
Securities that in the opinion of such managing underwriter or underwriters can
be sold without adversely affecting the market for the Common Stock. In such
event, the number of Registrable Securities, if any, to be offered for the
accounts of Holders shall be reduced pro rata on the basis of the relative
number of. any Registrable Securities requested by each such Holder to be
included in such registration to the extent necessary to reduce the total number
of Registrable Securities to be included in such offering to the number
recommended by such managing underwriter or underwriters. The Company shall pay
all Registration Expenses incurred in connection with any Piggyback
Registration.
4. Shelf Registration. Following the Effective Time, the Company
shall use reasonable efforts to qualify for registration on Form S-3 for
secondary sales. The Company agrees that, upon the request of any Holder, the
Company shall promptly after receipt of such request notify each other Holder of
receipt of such request and shall cause to be filed on or as soon as practicable
thereafter, but not sooner than 35 days after the receipt of such notice from
such Holder, a registration statement (a "Shelf Registration Statement") on Form
X-0, Xxxx X-0 or any. other appropriate form under the Securities Act for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
thereunder or any similar rule that may be adopted by the Securities and
Exchange Commission (the "Commission") and
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permitting sales in any manner not involving an underwritten public offering
(and shall register or qualify the shares to be sold in such offering under such
other securities or "blue sky" laws as would be required pursuant to Section
7(g) hereof) covering up to the aggregate number of (a) Shares to be issued to
such Holder and all other Holders who request that the shares to be issued to
them upon the exchange of Units held by them be included in the shelf
registration statement upon the exchange of Units so that the Shares issuable
upon the exchange of such Units will be registered pursuant to the Securities
Act and (b) the Shares to be issued to them upon the conversion of Series A
Preferred Stock held by them be included in the shelf registration statement
upon the conversion of Series A Preferred Stock so that the Shares issuable upon
the conversion will be registered pursuant to the Securities Act, and (c)
Registrable Securities held by such Holders. The Company shall use its
reasonable efforts to cause the Shelf Registration Statement to be declared
effective by the Commission within three months after the filing thereof. The
Company shall use its reasonable efforts to keep the Shelf Registration
Statement continuously effective (and to register or qualify the shares to be
sold in such offering under such other securities or "blue sky" laws as would be
required pursuant to Section 7(g) hereof) for so long as any Holder holds any
Shares, Units that may be exchanged for Shares under the Partnership Agreement
or Series A Preferred Stock that may be converted into Shares or until the
Company, has caused to be delivered to each Holder an opinion of counsel, which
counsel must be reasonably acceptable to such Holders, stating that such Shares
or Shares issued upon such exchange or conversion may be sold by the Holders
pursuant to Rule 144 promulgated under the Securities Act without regard to any
volume limitations and that the Company has satisfied the informational
requirements of Rule 144. The Company shall file any necessary listing
applications or amendments to existing applications to cause the Shares issuable
upon exchange of Units or conversion of Series A Preferred Stock to be listed on
the primary exchange on which the Common Stock is then listed, if any.
Notwithstanding the foregoing, if the Company determines that it is necessary to
amend or supplement such Shelf Registration Statement and if the Company shall
furnish to the Holders a certificate signed by the Chief Executive Officer of
the Company stating that in the good faith judgment of the Board of Directors of
the Company it would be significantly disadvantageous to the Company and its
stockholders for any such Shelf Registration Statement to be amended or
supplemented, the Company may defer such amending or supplementing of such Shelf
Registration Statement for not more than 45 days and in such event the Holders
shall be required to discontinue disposition of any Registrable Securities
covered by such Shelf Registration Statement during such period. Notwithstanding
the foregoing, if the Company irrevocably elects prior to the filing of any
Shelf Registration Statement to issue all cash in lieu of Shares upon the
exchange of Units by the Holder requesting the filing of such Shelf Registration
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Statement, the Company shall not be obligated to file such Shelf Registration
Statement.
5. Rights of Other Stockholders. The Company shall not grant any
person, for so long as any securities convertible into or exchangeable for
Registrable Securities are outstanding, any rights to have their securities
included in any registration statement to be filed by the Company if such rights
are greater than the rights of the Holders granted herein without extending such
greater rights to the Holders. Subject to the penultimate sentence of Section
2.3 and the last sentence of Section 3, to the extent the securities of such
other stockholders are entitled to be included in any such registration
statement and the managing underwriter or underwriters believe that the number
of securities proposed to be sold in such offering exceeds the number of
securities that can be sold in such offering without adversely affecting the
market for the Company's common stock, the number of securities to be offered
for the accounts of such other stockholders shall be reduced to zero before the
number of securities to be offered for the accounts of the Holders is reduced.
6. Holdback Agreements.
6.1. Restrictions on Public Sale by Holders of Registrable
Securities. Each Holder (a) participating in an underwritten offering covered by
any Demand Registration or Piggyback Registration or (b) in the event the
Company is issuing shares of its capital stock to the public in an underwritten
offering, agrees, if requested by the managing underwriter or underwriters for
such underwritten offering, not to effect (except as part of such underwritten
offering or pursuant to Article XII of the Partnership Agreement) any public
sale or distribution of Registrable Securities or any securities convertible
into or exchangeable or exercisable for such Registrable Securities, including a
sale pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, during the period (a "Lock-Out Period") commencing 14 days prior
to and ending no more than 90 days subsequent to the date (an "Execution "Date")
specified in the Lock-Out Notice (as defined below) as the anticipated date of
the execution and delivery of the underwriting agreement (or, if later, a
pricing or terms agreement signed pursuant to such underwriting agreement) to be
entered into in connection with such Demand Registration or Piggyback
Registration or other underwritten offering. The Execution Date shall be no
fewer than 21 days subsequent to the date of delivery of written notice (a
"Lock-Out Notice") by the Company to each Holder of the anticipated execution of
an underwriting agreement (or pricing or terms agreement), and the Execution
Date shall be specified in the Lock-Out Notice. The Company may not deliver a
Lock-Out Notice unless it is making a good faith effort to effect the offering
with respect to which such Lock-Out Notice has been delivered. Notwithstanding
the foregoing, the Company may not (a) establish Lock-Out Periods in
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effect for more than 208 days in the aggregate within any of the consecutive
fifteen-month periods commencing on August 7, 1997 and (b) cause any Lock-Out
Period to commence (i) during the 45-day period immediately following the
expiration of any Lock-Out Period, such 45-day period to be extended by one day
for each day of delay pursuant to Section 7(a); provided, however, that in no
event shall such extension exceed 90 days; provided, further, however, that such
90-day limit on extensions shall terminate on December 31, 1998; or (ii) if the
Company shall have been requested to file a Registration Statement pursuant to
Section 2 during such 45-day period (as extended), until the earlier of (x) the
date on which all Registrable Securities thereunder shall have been sold and (y)
45 days after the effective date of such Registration Statement. Notwithstanding
the foregoing, any Lock-Out Period may be shortened at the Company's sole
discretion by written notice to the Holders, and the applicable Lock-Out Period
shall be deemed to have ended on the date such notice is received by the
Holders. For the purposes of this Section 6.1, a Lock-Out Period shall be deemed
to not have occurred, and a Lock-Out Notice shall be deemed to not have been
delivered, if, within 30 days of the delivery of a Lock-Out Notice, the Company
delivers a written notice (the "Revocation Notice") to the Holders stating that
the offering (the "Aborted Offering") with respect to which such Lock-Out Notice
was delivered has not been, or shall not be, consummated; provided, however,
that any Lock-Out Period that the Company causes to commence within 45 days of
the delivery of such Revocation Notice shall be reduced by the number of days
pursuant to which the Holders were subject to restrictions on transfer pursuant
to this Section 6.1 with respect to such Aborted Offering.
6.2. Restrictions on Public Sale by the Company. If, but only
if, the managing underwriter or underwriters for any underwritten offering of
Registrable Securities made pursuant to a Demand Registration so request, the
Company agrees not to effect any public sale or distribution of any of its
securities similar to those being registered, or any securities convertible into
or exchangeable or exercisable for such securities (except pursuant to
registrations on Form S-4 or S-8 or any successor or similar forms thereto)
during the 14 days prior to, and during the 180-day period beginning on, the
effective date of such Demand Registration.
7. Registration Procedures. Whenever the Holders have requested that
any Registrable Securities be registered pursuant to Section 2 or 3, the Company
shall use its reasonable efforts to effect the registration of Registrable
Securities in accordance with the intended method of disposition thereof as
expeditiously as practicable, and in connection with any such request, the
Company shall as expeditiously as possible:
(a) in connection with a request pursuant to Section 2,
prepare and file with the Commission, not later than 40 days (or such longer
period as may be required in order for
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the Company to comply with the provisions of Regulation S-X under the Securities
Act) after receipt of a request to file a registration statement with respect to
Registrable Securities, a registration statement on any form if or which the
Company then qualifies or which counsel for the Company shall deem appropriate
and which form shall be available for the sale of such Registrable Securities in
accordance with the intended method of distribution thereof and, if the offering
is an underwritten offering, shall be reasonably satisfactory to the managing
underwriter or underwriters, and use its best efforts to cause such registration
statement to become effective; provided, however, that if the Company shall
within five (5) Business Days after receipt of such request furnish to the
Holders making such a request a certificate signed by the Chief Executive
Officer of the Company stating that in the good faith judgment of the Board of
Directors of the Company it would be significantly disadvantageous to the
Company and its stockholders for such a registration statement to be filed on or
before the date filing would be required, the Company shall have an additional
period of not more than 45 days within which to file such registration statement
(provided that only one such notice may be given during any 12 month period);
and provided, further, that before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company shall (a) furnish to the
counsel selected by the Holder making the demand, or if no demand, then, by the
Holders, in the aggregate, that own or will own a majority of the Registrable
Securities covered by such registration statement, copies of all such documents
proposed to be filed, which documents will be subject to the review of such
counsel, and (b) notify each seller or prospective seller of Registrable
Securities of any stop order issued or threatened by the Commission or
withdrawal of any state qualification and take all reasonable actions required
to prevent such withdrawal or the entry of such stop order or to remove it if
entered;
(b) in connection with a registration pursuant to Section 2,
prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 150 days (or such shorter period that will terminate when all Registrable
Securities covered by such registration statement have been sold, but not before
the expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable), and comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended method of disposition by the sellers
thereof set forth in such registration statement;
(c) notify each seller of Registrable Securities and the
managing underwriter, if any, promptly, and (if requested by any such Person)
confirm such advice in writing,
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(i) when the prospectus or any supplement thereto or
amendment or post-effective amendment to the registration statement has
been filed, and, with respect to the registration statement or any
post-effective amendment, when the same has become effective,
(ii) of any request by the Commission for amendments or
post-effective amendments to the registration statement or supplements to
the prospectus or for additional information,
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or the
initiation or threatening of any proceedings for that purpose,
(iv) if at any time during the distribution of
securities by the managing underwriter the representations and warranties
of the Company to be contained in the underwriting agreement cease to be
true and correct in all material respects, and
(v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose;
(d) use its reasonable efforts to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or any
state qualification or any order preventing or suspending the use of any
preliminary prospectus, and use its reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of the registration statement or any
state qualification or of any order preventing or suspending the use of any
preliminary prospectus at the earliest possible moment;
(e) if requested by the managing underwriter or a seller of
Registrable Securities, promptly incorporate in a prospectus supplement or
post-effective amendment to the registration statement such information as the
managing underwriter or a seller of Registrable Securities reasonably request to
have included therein relating to the plan of distribution with respect to the
Registrable Securities, including, without limitation, information with respect
to the amount of Registrable Securities being sold to such underwriters, the
purchase price being paid therefor by such underwriters and with respect to any
other terms of the underwritten offering of the Registrable Securities to be
sold in such offering; and make all required filings of such prospectus
supplement or post-effective amendment promptly after being notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
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(f) furnish to each seller of Registrable Securities and the
managing underwriter one signed copy of the registration statement and each
amendment thereto as filed with the Commission, and such number of copies of
such registration statement, each amendment (including post-effective
amendments) and supplement thereto (in each case including all documents
incorporated by reference and all exhibits thereto whether or not incorporated
by reference), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as each seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(g) use reasonable efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of such
jurisdictions as any seller or underwriter reasonably requests in writing and to
do any and all other acts and things that may be reasonably necessary or
advisable to register or qualify for sale in such jurisdictions the Registrable
Securities owned by such seller; provided, however, that the Company shall not
be required to (a) qualify generally to do business in any jurisdiction where it
is not then so qualified, (b) subject itself to taxation in any such
jurisdiction, (c) consent to general service of process in any such jurisdiction
or (d) provide any undertaking required by such other securities or "blue sky"
laws or make any change in its charter or bylaws that the Board of Directors
determines in good faith to be contrary to the best interest of the Company and
its stockholders;
(h) use reasonable efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers thereof
or the underwriters, if any, to consummate the disposition of such Registrable
Securities;
(i) notify each seller of such Registrable Securities at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and prepare and file with the Commission a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
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(j) enter into customary agreements (including an underwriting
agreement in customary form, if the offering is an underwritten offering) and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection:
(i) make such representations and warranties to the
underwriters in form, substance and scope, reasonably satisfactory to the
managing underwriter, as are customarily made by issuers to underwriters
in primary underwritten offerings on the form of registration statement
used in such offering;
(ii) obtain opinions and updates thereof of counsel,
which counsel and opinions to the Company (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriter, addressed to
the managing underwriter, covering the matters customarily covered in
opinions requested in primary underwritten offerings on the form of
registration statement used in such offering and such other matters as may
be reasonably requested by the managing underwriter;
(iii) obtain so-called "cold comfort" letters and
updates thereof from the Company's independent public accountants
addressed to the managing underwriter in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with primary underwritten offerings and such
other matters as may be reasonably requested by the managing underwriter;
(iv) cause the underwriting agreements to set forth in
full the indemnification provisions and procedures of Section 9 (or such
other substantially similar provisions and procedures as the managing
underwriter shall reasonably request) with respect to all parties to be
indemnified pursuant to said Section; and
(v) deliver such documents and certificates as may be
reasonably requested by the Participating Holder or Holders to evidence
compliance with the provisions of this Section 7(j) and with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company.
The above shall be done at the effectiveness of such registration
statement (when consistent with customary industry practice), each closing under
any underwriting or similar agreement as and to the extent required thereunder
and from time to time as may reasonably be requested by the sellers of
Registrable Securities, all in a manner consistent with customary industry
practice.
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(k) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, the counsel referred to in clause (a) of Section 7(a)
and any attorney, accountant or other agent retained by any such seller or
underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors, employees
and agents to supply all information reasonably requested by any such Inspector
in connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (a)
the disclosure of such Records is, in the reasonable judgment of any Inspector,
necessary to avoid or correct a misstatement or omission of a material fact in
the registration statement or (b) the release of such Records is ordered
pursuant to a subpoena or other order from a court or governmental agency of
competent jurisdiction or required (in the written opinion of counsel to such
seller or underwriter, which counsel shall be reasonably acceptable to the
Company) pursuant to applicable state or federal law. Each seller of Registrable
Securities agrees that it will, upon learning that disclosure of such Records
are sought by a court or governmental agency, give notice to the Company and
allow the Company, at the Company's expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential;
(l) if such sale is pursuant to an under-written offering, use
reasonable efforts to obtain a "cold comfort" letter and updates thereof from
the Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as the
holders, in the aggregate, of a majority of the Registrable securities being
sold and the managing underwriter or underwriters reasonably request;
(m) otherwise use reasonable efforts to comply with the
Securities Act, the Exchange Act, all applicable rules and regulations of the
Commission and all applicable state securities and real estate syndication laws,
and make generally available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of 12 months, beginning
within three months after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act;
(n) use reasonable efforts to cause a1 Registrable Securities
covered by the registration statement to be listed on each securities exchange,
if any, on which similar securities issued by the Company are then listed,
provided that the applicable listing requirements are satisfied;
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(o) cooperate with the sellers of Registrable Securities and
the managing underwriter to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter may
reasonably request at least 2 business days prior to any sale of Registrable
Securities to the underwriters;
(p) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
underwriter;
(q) prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of the registration statement) provide copies of such
document to the sellers of Registrable Securities, the underwriters and their
respective counsel, make the Company representatives available for discussion of
such document with such persons and, to the extent changes may be made to such
document without the consent of a third party (other than the Company's
accountants or any affiliate of the Company), make such changes in such document
prior to the filing thereof as any such persons may reasonably request to the
extent and only to the extent that such changes relate to a description of a
XxXxxxxxx Group Holder or the Plan or Distribution being effected by a XxXxxxxxx
Group Holder; and
(r) participate, if so requested, in a "road show" in
connection with the sale of the Registrable Securities but only to the extent
reasonably requested by the managing underwriter, if such sale is pursuant to an
underwritten offering.
The Company may require each seller or prospective seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding the distribution of such securities
and other matters as may be required to be included in the registration
statement.
Each holder of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Paragraph (i) of this Section 7, such holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Paragraph (i) of this
Section 7, and, if so directed by the Company, such holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which such
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registration statement shall be maintained effective pursuant to this Agreement
(including the period referred to in Paragraph (b) of this Section 7) by the
number of days during the period from and including the date of the giving of
such notice pursuant to Paragraph (i) of this Section 7 to and including the
date when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Paragraph (i) of this Section 7.
The Company shall keep the sellers of Registrable Securities to be
offered in a given registration advised of the status of any registration in
which they are participating. In addition, the Company and each such seller of
Registrable Securities may enter into understandings in writing whereby such
seller of Registrable Securities will agree in advance as to the acceptability
of the price or range of prices per share at which the Registrable Securities
included in such registration are to be offered to the public. Furthermore, the
Company shall establish pricing notification procedures reasonably acceptable to
each such seller of Registrable Securities and shall, as promptly as practicable
after learning the same from the managing underwriter, use reasonable efforts to
give oral notice to each such seller of Registrable Securities of the
anticipated date on which the Company expects to receive a notification from the
managing underwriter (and any changes in such anticipated date) of the price per
share at which the Registrable Securities included in such registration are to
be offered to the public.
8. Registration Expenses. The Company shall pay all expenses
incident to its performance of or compliance with this Agreement, including,
without limitation, (a) all Commission, stock exchange and National Association
of Securities Dealers, Inc. registration, filing and listing fees, (b) all fees
and expenses incurred in complying with securities or "blue sky" laws (including
reasonable fees and disbursements of counsel in connection with "blue sky"
qualifications of the Registrable Securities), (c) all printing, messenger and
delivery expenses, (d) all fees and disbursements of the Company's independent
public accountants and counsel and (e) all fees and expenses of any special
experts retained by the Company in connection with any Demand Registration or
Piggyback Registration pursuant to the terms of this Agreement, regardless of
whether such registration becomes effective; provided, however, that the Company
shall not pay the costs and expenses of any Holder relating to underwriters'
commissions and discounts relating to Registrable Securities to be sold by such
Holder (but such costs and expenses shall be paid by the Holders on a pro rata
basis), brokerage fees, transfer taxes, or the fees or expenses of any counsel,
accountants or other representatives retained by the Holders, individually or in
the aggregate. All of the expenses described in this Section 8 that are to be
paid by the Company are herein called "Registration Expenses."
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9. Indemnification; Contribution.
9.1. Indemnification by the Company. The Company agrees to
indemnify, to the fullest extent permitted by law, each Holder and each secured
creditor referred to in Section 12.4(c) (ii) hereof (a "Secured Creditor"), each
of their respective officers, directors, agents, advisors, employees and
trustees, and each person, if any, who controls such Holder or Secured Creditor
(within the meaning of the Securities Act), against any and all losses, claims,
damages, liabilities and expenses caused by any untrue or alleged untrue
statement of material fact contained in any registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as the same are caused by or contained in any
information with respect to such Holder or Secured Creditor furnished in writing
to the Company by such Holder or Secured Creditor expressly for use therein or
by such Holder's or Secured Creditor's failure to deliver a copy of the
prospectus or any supplements thereto after the Company has furnished such
Holder or Secured Creditor with a sufficient number of copies of the same or by
the delivery of prospectuses by such Holder or Secured Creditor after the
Company notified such Holder or Secured Creditor in writing to discontinue
delivery of prospectuses. The Company also shall indemnify any underwriters of
the Registrable Securities, their officers and directors and each person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Holders.
9.2. Indemnification by Holders. In connection with any
registration statement in which a Holder is participating, each such Holder
shall furnish to the Company in writing such information and affidavits with
respect to such Holder as the Company reasonably requests for use in connection
with any such registration statement or prospectus and agrees to indemnify,
severally and not jointly, to the fullest extent permitted by law, the Company,
its officers, directors and agents and each person, if any, who controls the
Company (within the meaning of the Securities Act) against any and all losses,
claims, damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of a material fact or any omission or alleged omission of a
material fact required to be stated in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or
necessary to make the statements therein (in the case of a prospectus, in light
of the circumstances under which they were made) not misleading, to the extent,
but only to the extent, that such untrue or alleged untrue statement or omission
is contained in or omitted from, as the case may be, any information or
affidavit with respect to such Holder so furnished in writing by
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such Holder specifically for use in the Registration Statement. Each Holder also
shall indemnify any underwriters of the Registrable Securities, their officers
and directors and each person who controls such underwriters (within the meaning
of the Securities Act) to the same extent as provided above with respect to the
indemnification of the Company.
9.3. Conduct of Indemnification Proceedings. Any party that
proposes to assert the right to be indemnified under this Section 9 shall,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim is to be made against an indemnifying party or
parties under this Section 9, notify each such indemnifying party of the
commencement of such action, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party will not relieve it from any
liability that it may have to any indemnified party under the foregoing
provisions of this Section 9 unless, and only to the extent that, such omission
results in the forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying party will
be entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the action, with
counsel reasonably satisfactory to the indemnified party, and after notice from
the indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. If the indemnifying party assumes the defense,
the indemnifying party shall have the right to settle such action without the
consent of the indemnified party; provided, however, that the indemnifying party
shall be required to obtain such consent (which consent shall not be
unreasonably withheld) if the settlement includes any admission of wrongdoing on
the part of the indemnified party or any decree or restriction on the
indemnified party or its officers or directors; provided, further, that no
indemnifying party, in the defense of any such action, shall, except with the
consent of the indemnified party (which consent shall not be unreasonably
withheld), consent to entry of any judgment or enter into any settlement that
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability with respect
to such action. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges of such
counsel will be at the expense of such indemnified party unless (a) the
employment of counsel by the indemnified party has been authorized in writing by
the indemnifying party, (b) the indemnified party has reasonably concluded
(based on advice of
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counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available in the
indemnifying party, (c) a conflict or potential conflict exists (based on advice
of counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (d)
the indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time from
all such indemnified party or parties unless (a) the employment of more than one
counsel has been authorized in writing by the indemnifying party or parties, (b)
an indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it that are different from or in
addition to those available to the other indemnified parties or (c) a conflict
or potential conflict exists (based on advice of counsel to an indemnified
party) between such indemnified party and the other indemnified parties, in each
of which cases the indemnifying party shall be obligated to pay the, reasonable
fees and expenses of such additional counsel or counsels. An indemnifying party
will not be liable for any settlement of any action or claim effected without
its written consent (which consent shall not be unreasonably withheld).
9.4. Contribution. If the indemnification provided for in this
Section 9 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, to the extent such
indemnification is unavailable, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions that resulted in
such losses, claims, damages, liabilities or expenses. The relative fault of
such indemnifying party and indemnified parties shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the
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losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 9.3, any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9.4 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person.
If indemnification is available under this Section 9, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 9.1 and 9.2 without regard to the relative fault of said
indemnifying parties or indemnified party.
10. Participation in Underwritten Registrations. No person may
participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person's securities on the basis provided in any
underwriting agreements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
11. Rule 144. The Company covenants that it shall use its reasonable
efforts to file the reports required to be filed by it under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder if and when the Company becomes obligated to file such
reports (or, if the Company ceases to be required to file such reports, it
shall, upon the request of any Holder, make publicly available other
information), and it shall, if feasible, take such further action as any Holder
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such Rule may be amended from time to time or (ii)
any similar rules or regulations hereafter adopted by the Commission. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
12. Miscellaneous.
12.1. Remedies. Each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of
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its rights under this Agreement. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate.
12.2. Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of all
Holders.
12.3. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, or
sent by certified or registered or express mail, postage prepaid. Any such
notice shall be deemed given when so delivered personally, or, if mailed, five
days (or, in the case of express mail, one day) after the date of deposit in the
United States mail, as follows:
(i) if to the Company, to:
Simon Property Group, Inc.
Merchants Plaza
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(ii) if to any Holder, to the most current address of such
Holder given by such Holder to the Company in writing.
Any party may by notice given in accordance with this Section 12.3
to the other parties designate another address or person for receipt of notice
hereunder.
12.4. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be
binding upon the Holders and their respective successors and assigns and the
successors and assigns of the Company; provided, however, that, except as
otherwise provided in Sections 12.4(b) and (c) hereof, no Holder may assign its
rights hereunder
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to any person who is not a permitted transferee of such Holder pursuant to the
terms of the Partnership Agreement; provided further, that, except as otherwise
provided in Section 12.4(b) or (c) hereof, no Holder may assign its rights
hereunder to any person who does not acquire all or substantially all of such
Holder's Registrable Securities or Units, as the case may be, or, (i) in the
case of the Simon Family Entities, to any person who does not acquire at least
$10,000,000 worth of the Simon Family Entities' Registrable Securities or Units
and (ii) in the case of the XxXxxxxxx Group to any person who does not acquire
at least $10,000,000 worth of XxXxxxxxx Group's Registrable Securities or Units.
(b) Affiliates. It is understood that JCP Realty, Inc. ("JCP")
and Brandywine Realty, Inc. ("Brandywine") are affiliates and that under the
terms of the Partnership Agreement, Limited Partners have the right to assign
their partnership interests, in whole or in part, to their affiliates. The
provisions of this Agreement shall inure to the benefit of all such affiliates
and, for all purposes of this Agreement, a party to this Agreement (other than
the Company) and all of its affiliates which at the time in question are Limited
Partners of the Operating Partnership shall be deemed to be one party, with the
consequence that (i) they may aggregate their Units for the purpose of
exercising their rights under this Agreement and (ii) to assign the benefits of
this Agreement to a third party which is not an affiliate of them, except as
otherwise provided with respect to the Simon Family Entities in Section 12.4(a)
above, they must together assign to such third party all or substantially all of
the aggregate amount of Units held by all of them.
(c) Transfer of Exchange and Registration Rights. (i) The
rights of each XxXxxxxxx Group Holder to make a request and to cause the Company
to register Registrable Securities owned by such Holder under Section 2 hereof
and the right to cause the Company to include Registrable Securities in a
registration for the account of the Company under Section 3 hereof (the
"Rights") may be assigned, from time to time and reassigned, in whole or in
part, to a transferee or assignee receiving (except as provided in Section
12.4(c) (ii) below) at least three percent (3%) of the outstanding shares of
Common Stock or Units exchangeable into at least such number of shares of Common
Stock (the "Three Percent Requirement") in connection with a transfer or
assignment of shares of Common Stock received upon exchange of Units in
connection with a substantially contemporaneous resale of all such Units or
Units which is not prohibited under any other agreement to which the transferor
or assignor is a party or any pledge of Units or Common Stock which is not
prohibited under any other agreement to which the transferor or assignor is a
party, provided that (x) such transfer may otherwise be effected in accordance
with applicable securities law, (y) the Company is given written notice of such
assignment prior to such assignment or promptly thereafter, and (z) the
transferee or assignee by
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written agreement acknowledges that he is bound by the terms of this Agreement.
From and after the occurrence of any such transfer, the defined term "Holder"
shall include such transferees or assignees.
(i) The Rights granted to each member of the XxXxxxxxx Group
hereunder may be assigned pursuant to this Section 12.4(c) to a secured creditor
to whom such Holder has pledged Units (or other securities exchangeable or
convertible into Registrable Securities) or Registrable Securities prior to the
date hereof, which pledge shall be permitted hereunder, and the Three Percent
Requirement shall not apply to any such assignment. Such rights may, to the
extent provided in the pledge, security or other agreement or instrument
pursuant to which such rights have been assigned and to the extent permitted by
the Securities Act and the rules and regulations thereunder, be exercised by any
such secured creditor even though it does not become an assignee of the pledged
Units of such Holder pursuant to Section 12.4(c)(i) hereof. Each of the Estate
of Xxxxxx X. XxXxxxxxx, Xxxxxx X. XxXxxxxxx, Xx., The Xxxxxx X. XxXxxxxxx
Corporation and each corporate or other person or legal entity, other than Xxxxx
Xxxxxx XxXxxxxxx York specified on Schedule B to the Stockholders Agreement does
hereby grant the rights, as described in the two preceding sentences, to the
institution from time to time serving as the Administrative Agent under (A) the
Second Amended and Restated New Facility Credit Agreement, dated as of March
31, 1994, by and among XxXxxxxxx, Inc. and The Xxxxxx X. XxXxxxxxx Corporation,
as the Borrowers, Xxxxx Fargo Bank, N.A., as the Issuing Bank, the Co-Lenders
from time to time party thereto, and Xxxxx Fargo Realty Advisors Funding,
Incorporated, as the Administrative Agent (and its successors and assigns),] as
such agreement may be modified, supplemented or amended from time to time and
(B) [the Second Amended and Restated Restructuring Facility Credit Agreement,
dated as of March 31, 1994, by and among XxXxxxxxx, Inc. and The Xxxxxx X.
XxXxxxxxx Corporation, as the Borrowers, the Co-Lenders from time to time party
thereto, and Xxxxx Fargo Realty Advisors Funding, Incorporated, in its capacity
as the Administrative Agent (together with its successors and assigns),] as such
agreement may be modified, supplemented or amended from time to time. Upon
notice to the Company by any such secured creditor that it has become authorized
to exercise such Rights, no further written instrument shall be required under
this Agreement; provided that such secured creditor provides the Company at the
time it exercises any rights with such indemnification and certifications as are
reasonably satisfactory to the Company in form and substance as to its
authorization to exercise such rights. It is further expressly understood and
agreed that (i) the Company shall not be required in any way to determine the
validity or sufficiency, whether in form or in substance, of any certification
from a secured creditor that it is authorized to exercise Rights so transferred
to it, (ii) the Company shall have no liability to any Holder for acting in
accordance with any such certification and (iii) no further indemnification to
the Company shall be
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required pursuant to this Section 12.4(c). The Company shall not be required in
any way to determine the validity or sufficiency, whether in form or in
substance, of any written instrument referred to in the second sentence of this
Section 12.4(c)(ii), and it shall be sufficient if any writing purporting to be
such an instrument is delivered to the Company and purports on its face to be
correct in form and signed or otherwise executed by such Holder. The Company may
continue to rely on such written instrument until such time, if any, that it
receives a written instrument from the secured creditor named therein (or its
successor) revoking, or acknowledging the revocation or other termination of,
the authority granted by such written instrument.
(ii) The rights of each of JCP and Brandywine to make a
request and cause the Company to register Registrable Securities owned by such
Holder under Section 2 hereof and the right of such Holder to cause the Company
to include Registrable Securities in a registration for the account of the
Company under Section 3 hereof (the "JCP Rights") may be assigned (i) to a
secured creditor to whom such Holder has pledged Units or, if such Holder has
not previously exercised the right provided for in the first sentence of Section
9.3(c) of the Operating Partnership Agreement, to any Person to whom the secured
creditor has transferred the pledged Units pursuant to Section 9.3(c) of the
Operating Partnership Agreement (such secured creditor or such transferee being
referred to as the "Assignee"), in each case subject to the further terms and
provision of this Section 12.4(c)(iii). The JCP Rights may be exercised by the
Assignee after the Assignee has become a substitute Limited Partner of the
Operating Partnership and only if the Assignee provides the Company at the time
it exercises the JCP Rights with such indemnification and certifications as are
reasonably satisfactory to the Company in form and substance as to its
authorization to exercise such JCP Rights. It is further expressly understood
and agreed that (i) the Company shall not be required in any way to determine
the validity or sufficiency, whether in form, or in substance, of any
certification from the Assignee that it is authorized to exercise the JCP Rights
so transferred to it, (ii) the Company shall have no liability to such Holder
for acting in accordance with any such certification and (iii) except as set
forth above in this paragraph, no further indemnification to the Company shall
be required pursuant to this Section 12.4(c).
12.5. Mergers, Etc. In addition to any other restriction on
mergers, consolidations and reorganizations contained in the articles of
incorporation, by-laws, code of regulations or agreements of the Company, the
Company covenants and agrees that it shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless all the Registrable Securities and all of
the outstanding shares of Common Stock of the Company and Units are exchanged or
purchased upon substantially equivalent economic terms for cash or freely
marketable securities of the surviving corporation unless the
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surviving corporation shall, prior to such merger, consolidation or
reorganization, agree in a writing to assume in full and without modification
other than conforming changes necessary to reflect the new issuer of the
Registrable Securities all of the obligations of the Company under this
Agreement, and for that purpose references hereunder to "Registrable Securities"
shall be deemed to include the securities which holders of Common Stock would be
entitled to receive in exchange for Registrable Securities pursuant to any such
merger, consolidation, sale of all or substantially all of its assets or
business, liquidation, dissolution or reorganization.
12.6. Intentionally Omitted.
12.7. Intentionally Omitted.
12.8. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
12.9. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
12.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12.11. Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights of the Holders shall be enforceable to the full
extent permitted by law.
12.12. Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. Upon execution by any of the
parties hereto, such party waives all of its rights under the Registration
Rights Agreement, dated as of August 9, 1996, by and among certain of the
parties hereto. There are no restrictions, promises, warranties or undertakings
other than those set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
24
25
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
SIMON PROPERTY GROUP, INC.
By:
--------------------------------------
Name:
Title:
XXXXXX XXXXX & ASSOCIATES, INC.
By:
--------------------------------------
Name:
Title:
JCP REALTY, INC.
By:
--------------------------------------
Name:
Title:
BRANDYWINE REALTY, INC.
By:
--------------------------------------
Name:
Title:
-----------------------------------------
XXXXXX XXXXX
-----------------------------------------
XXXXXXX XXXXX
25
26
-----------------------------------------
XXXXX XXXXX
-----------------------------------------
XXXXXXX X. XXXXX
-----------------------------------------
XXXXXXX X. XXXXX SKJODT
-----------------------------------------
XXXXX XXXX, as Successor Trustee
Under Declaration of Trust and Trust
Agreement Dated August 4, 1970
-----------------------------------------
XXXXX XXXX, as Trustee of the Xxxxxx
Xxxxx Trust No. 1, the Xxxxxx Xxxxx
Trust No. 6, the Xxxxxx Xxxxx Trust
No. 7 and the Xxxxxxx Xxxxx Trust No. 3
XXXXXX XXXXX & ASSOCIATES, INC.
By:
--------------------------------------
Name:
Title:
XXXX XXXXX CORPORATION
By:
--------------------------------------
Name:
Title:
26
27
NACO SIMON CORP.
By:
--------------------------------------
Name:
Title:
XXXXX SPRINGS PROPERTIES, INC.
By:
--------------------------------------
Name:
Title:
SIMON ENTERPRISES, INC.
By:
--------------------------------------
Name:
Title:
S.F.G. COMPANY, L.L.C.
By: XXXXXX XXXXX & ASSOCIATES,
INC., its manager
By:
--------------------------------------
Name:
Title:
27
28
XXXXXX XXXXX, XXXXXXX XXXXX AND
XXXXX XXXXX, NOT INDIVIDUALLY BUT AS
VOTING TRUSTEES UNDER THAT CERTAIN
VOTING TRUST AGREEMENT, VOTING
AGREEMENT AND PROXY DATED AS OF
DECEMBER 1, 1993, BETWEEN XXXXXX
XXXXX & ASSOCIATES, INC., AND XXXXXX
XXXXX, XXXXXXX XXXXX AND XXXXX
XXXXX:
-----------------------------------------
Xxxxxx Xxxxx
-----------------------------------------
Xxxxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx
THE XXXXXX X. XxXXXXXXX, CORP.
By:
--------------------------------------
Name:
Title:
ESTATE OF XXXXXX X. XxXXXXXXX
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
28
29
-----------------------------------------
Xxxxxx X. XxXxxxxxx, Xx., individually,
and in his capacity as Trustee under (1)
the Xxxx X. XxXxxxxxx Revocable
Trust-successor by assignment from
Xxxxxx X. XxXxxxxxx Trust No. 5, (ii)
the Xxxxxxxx X. XxXxxxxxx Revocable
Trust-successor by assignment from
Xxxxxx X. XxXxxxxxx Trust No. 6 and
(iii) Xxxxxx X. XxXxxxxxx Trust No. 7
for the Benefit of Xxxxxx X. XxXxxxxxx
-----------------------------------------
Xxxxxxx X. XxXxxxxxx
____________________________________________
_____________________________, individually,
and in his/her capacity as Trustee under
(i) Xxxxxx X. XxXxxxxxx Trust No. 8 for
the benefit of Xxxx Xxxxxx York, (ii)
Xxxxxx X. XxXxxxxxx Trust No. 9 for the
benefit of Xxxxxxx Xxxx Xxxx, (iii)
Xxxxxx X. XxXxxxxxx Trust No. 10 for the
benefit of Xxxx Xxxxxx York and (iv)
Xxxxxx X. XxXxxxxxx Trust No. 11 for the
benefit of Jenna Xxxxx York
XxXXXXXXX, INC.
By:
--------------------------------------
Name:
Title:
NATIONAL INDUSTRIAL DEVELOPMENT
CORP.
By:
--------------------------------------
Name:
Title:
29
30
GREAT LAKES MALL, INC.
By:
--------------------------------------
Name:
Title:
RUES PROPERTIES, INC.
By:
--------------------------------------
Name:
Title:
CHELTENHAM SHOPPING CENTER
ASSOCIATES
By:
--------------------------------------
Name:
Title:
STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN
By:
--------------------------------------
Name:
Title:
KUWAIT FUND FOR ARAB ECONOMIC
DEVELOPMENT
By:
--------------------------------------
Name:
Title:
ARAB FUND FOR ECONOMIC AND SOCIAL
DEVELOPMENT
By:
--------------------------------------
30
31
Name:
Title:
KUWAIT INVESTMENT AUTHORITY AS
AGENT FOR GOVERNMENT OF KUWAIT
By:
--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
--------------------------------------
Name:
Title:
31
