THE MACERICH COMPANY
INCIDENTAL REGISTRATION RIGHTS AGREEMENT
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DATED: AS OF AUGUST 15, 1995
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This INCIDENTAL REGISTRATION RIGHTS AGREEMENT is made as of the 15th day
of August, 1995 (this "AGREEMENT") between THE MACERICH COMPANY, a Maryland
corporation (the "COMPANY") and SALISBURY-SPRINGHILL LIMITED PARTNERSHIP, a
Maryland limited partnership ("INVESTOR").
W I T N E S 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 provisions 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 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
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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.
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.
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ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
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 the
last day of the eighteenth (18th) month following the Closing Date shall be
subject to Investor first having received written consent from the Company.
ARTICLE III
INCIDENTAL REGISTRATION RIGHTS
3.1. NOTICE AND REGISTRATION. If the Company proposes to register any
shares of Common Stock or other securities issued by it having terms
substantially similar to Eligible Securities ("Other Securities") for public
sale under the Securities Act 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, 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 of
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 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
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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; and
(d) 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 Investor shall be deemed a request for purposes of this Section 3.1(d)
unless all of the Eligible Securities requested to be registered
by 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
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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 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.
1.4. 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;
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(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 becomes 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;
(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
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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.
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
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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 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)(1) 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
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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, 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
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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 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 agree to provide provision
for contribution as shall be reasonably requested by the Company or any
underwriters in circumstances where such indemnity is held unenforceable.
(c) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Article 6 (with appropriate modifications)
shall be given by the Company and 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
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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.
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above
written.
MACERICH:
THE MACERICH COMPANY,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
SALISBURY:
SALISBURY-SPRINGHILL LIMITED PARTNERSHIP,
a Maryland limited partnership
By: DMA Limited Partnership,
a general partner
By: /s/ Xxx Xxxxxx
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Xxx Xxxxxx
General Partner
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