EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 17, 1998 (this
"AGREEMENT"), by and between The Macerich Company, a Maryland corporation
(the "COMPANY"), and The Ontario Teachers' Pension Plan Board, an Ontario
corporation (the "INVESTOR").
WHEREAS, pursuant to that certain Series B Preferred Securities
Purchase Agreement, dated as of June 16, 1998 (the "PURCHASE AGREEMENT"), by
and between the Company and the Investor, the Investor has agreed to acquire
5,487,471 shares of Series B Cumulative Convertible Preferred Stock, par
value $.01 per share, of the Company (the "PREFERRED SHARES"), all of which
may be converted into shares of the Company's common stock, par value $.01
per share (the "COMMON SHARES"), pursuant to the terms of the Preferred
Shares; and
WHEREAS, in connection with the Purchase Agreement, the Company has
agreed to register for sale by the Investor and certain transferees, the
Common Shares received by the Investor upon conversion of Preferred Shares
(the "REGISTRABLE SHARES"); and
WHEREAS, the parties hereto desire to enter into this Agreement to
evidence the foregoing agreement of the Company and the mutual covenants of
the parties relating thereto.
NOW, THEREFORE, in consideration of the foregoing and the covenants
of the parties set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
subject to the terms and conditions set forth herein, the parties hereby
agree as follows:
Section 1. CERTAIN DEFINITIONS. In this Agreement the
following terms shall have the following respective meanings:
"ACCREDITED INVESTOR" shall have the meaning set forth in Rule 501
of the General Rules and Regulations promulgated under the Securities Act.
"AFFILIATE" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
the Person specified.
"COMMISSION" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
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"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the relevant time.
"HOLDERS" shall mean (i) the Investor and (ii) each Person holding
Registrable Shares (which term, for purposes of this definition shall include
Common Shares that may be issued upon conversion of outstanding Preferred
Shares) as a result of a transfer or assignment to that Person of Registrable
Shares other than pursuant to an effective registration statement or Rule 144
under the Securities Act, which transfer or assignment is properly completed
in accordance with Section 10 hereof.
"INDEMNIFIED PARTY" shall have the meaning ascribed to it in
Section 6(c) of this Agreement.
"INDEMNIFYING PARTY" shall have the meaning ascribed to it in
Section 6(c) of this Agreement.
"PERSON" shall mean an individual, corporation, partnership,
estate, trust, association, private foundation, joint stock company or other
entity.
"PIGGYBACK NOTICE" shall have the meaning ascribed to it in Section
3(a) of this Agreement.
"PIGGYBACK REGISTRATION" shall have the meaning ascribed to it in
Section 3(a) of this Agreement.
"PREFERRED SHARES" shall have the meaning ascribed to it in the
recitals to this Agreement.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act providing for the sale by the Holders of
Registrable Shares in accordance with the method or methods of distribution
designated by the Holders, and the declaration or ordering of the
effectiveness of such registration statement by the Commission.
"REGISTRABLE SHARES" shall have the meaning ascribed to it in the
recitals to this Agreement, except that as to any particular Registrable
Shares, once issued such securities shall cease to be Registrable Shares when
(a) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities
shall have been disposed of in accordance with such registration statement,
(b) such securities shall have been sold in accordance with Rule 144 (or any
successor provision) under the Securities Act or (c) if in the opinion of
counsel reasonably acceptable to the Company and the Holders securities may
be sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act and the Company has removed all transfer
restrictions and legends with
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respect to the registration and prospectus delivery requirements for the
consummation of such sale.
"REGISTRATION EXPENSES" shall mean all out-of-pocket expenses
(excluding Selling Expenses) incurred by the Company in connection with any
attempted or completed registration pursuant to Sections 2, 3 and 4 hereof,
including, without limitation, the following: (a) all registration, filing
and listing fees; (b) fees and expenses of compliance with federal and state
securities or real estate syndication laws (including, without limitation,
reasonable fees and disbursements of counsel in connection with state
securities and real estate syndication qualifications of the Registrable
Shares under the laws of such jurisdictions as the Holders may reasonably
designate); (c) printing (including, without limitation, expenses of printing
or engraving certificates for the Registrable Shares in a form eligible for
deposit with The Depository Trust Company and otherwise meeting the
requirements of any securities exchange on which they are listed and of
printing registration statements and prospectuses), messenger, telephone,
shipping and delivery expenses; (d) fees and disbursements of counsel for the
Company; (e) fees and disbursements of all independent public accountants of
the Company (including without limitation the expenses of any annual or
special audit and "cold comfort" letters required by the managing
underwriter); (f) Securities Act liability insurance if the Company so
desires; (g) fees and expenses of other Persons reasonably necessary in
connection with the registration, including any experts, retained by the
Company; (h) fees and expenses incurred in connection with the listing of the
Registrable Shares on each securities exchange on which securities of the
same class or series are then listed; and (i) fees and expenses associated
with any filing with the National Association of Securities Dealers, Inc.
required to be made in connection with the registration statement.
"REGISTRATION REQUEST" shall have the meaning ascribed to it in
Section 2(a) of this Agreement.
"RULE 144" shall mean Rule 144 promulgated by the Commission under
the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to any sale of Registrable
Shares and, if neither the Company nor any person not a Holder includes
securities with the subject Registration, shall include all travel and other
expenses of members of the management of the Company and its affiliates (and
if the Company or any such Person shall so include securities, Selling
Expenses shall include a pro rata portion of such travel and other expenses).
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Section 2. DEMAND REGISTRATION.
(a) Upon receipt of a written request (a "REGISTRATION REQUEST")
delivered not earlier than 120 days prior to the first anniversary of this
Agreement from Holders holding at least 50% of the aggregate of the number of
Registrable Shares then outstanding, the Company shall (i) promptly give
notice of the Registration Request to all non-requesting Holders and (ii)
prepare and file with the Commission, within 45 days after its receipt of
such Registration Request a registration statement for the purpose of
effecting a Registration of the sale of all Registrable Shares by the
requesting Holders and any other Holder who requests to have his Registrable
Shares included in such registration statement within 10 days after receipt
of notice by such Holder of the Registration Request. The Company shall use
its reasonable best efforts to effect such Registration as soon as
practicable but not later than 120 days after its receipt of such
Registration Request (including, without limitation, the execution of an
undertaking to file post-effective amendments and appropriate qualification
under applicable state securities and real estate syndication laws); and
shall keep such Registration continuously effective until the earlier of (i)
the third anniversary of the date hereof, (ii) the date on which all
Registrable Shares registered pursuant to such Registration have been sold
pursuant to such registration statement or Rule 144, and (iii) the date on
which, in the opinion of counsel reasonably acceptable to the Company and the
Holders, all of the Registrable Shares registered pursuant to such
Registration may be sold in accordance with Rule 144(k); PROVIDED, HOWEVER,
that the Company shall not be obligated to take any action to effect any such
Registration, qualification or compliance pursuant to this Section 2 in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such Registration,
qualification or compliance unless the Company is already subject to service
in such jurisdiction.
Notwithstanding the foregoing, the Company shall have the right
(the "SUSPENSION RIGHT") to defer such filing (or suspend sales under any
filed registration statement or defer the updating of any filed registration
statement and suspend sales thereunder) for a period of not more than 105
days during any one-year period ending on December 31, if the Company shall
furnish to the Holders a certificate signed by an executive officer or any
director of the Company stating that, in the good faith judgment of the
Company, it would be detrimental to the Company and its shareholders to file
such registration statement or amendment thereto at such time (or continue
sales under a filed registration statement) and therefore the Company has
elected to defer the filing of such registration statement (or suspend sales
under a filed registration statement).
(b) The Company shall not be required to effect more than two (2)
Registrations pursuant to this Section 2.
Section 3. PIGGYBACK REGISTRATIONS.
(a) On and after the Conversion Date (as defined in the Series B
Preferred Articles Supplementary), so long as the Investor and its Affiliates
hold at least 50% of the Registrable Shares, if the Company proposes to
register under the Securities Act any of its common equity securities with an
expected aggregate offering price to the public of at least $100
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million (other than pursuant to (i) a registration statement filed pursuant
to Rule 415 under the Securities Act, (ii) a registration on Form S-4 or any
successor form, or (iii) an offering of securities in connection with an
employee benefit, share dividend, share ownership or dividend reinvestment
plan) and the registration form to be used may be used for the registration
of Registrable Shares, the Company will give prompt written notice to all
Holders of Registrable Shares of its intention to effect such a registration
(each a "PIGGYBACK NOTICE") and, subject to subparagraph 3(c) below, the
Company will include in such registration all Registrable Shares with respect
to which the Company has received written requests for inclusion therein
within ten days after the date of sending the Piggyback Notice (a "PIGGYBACK
REGISTRATION"), unless, if the Piggyback Registration is not an underwritten
offering, the Company in its reasonable judgement determines that, or in the
case of an underwritten Piggyback Registration, the managing underwriters
advise the Company in writing that in their opinion, the inclusion of
Registrable Shares would adversely interfere with such offering, affect the
Company's securities in the public markets, or otherwise adversely affect the
Company. Nothing herein shall affect the right of the Company to withdraw
any such registration in its sole discretion.
(b) If a Piggyback Registration is a primary registration on
behalf of the Company and, if the Piggyback Registration is not an
underwritten offering, the Company in its reasonable judgement determines
that, or in the case of an underwritten Piggyback Registration, the managing
underwriters advise the Company in writing that in their opinion, the number
of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner within a price range acceptable
to the Company, the Company will include in such registration (i) first, the
securities the Company proposes to sell and (ii) second, the Registrable
Shares requested to be included in such Registration and any other securities
requested to be included in such registration, pro rata among the holders of
Registrable Shares requesting such registration and the holders of such other
securities on the basis of the number of Shares requested for inclusion in
such registration by each such holder.
(c) If a Piggyback Registration is a secondary registration on
behalf of holders of the Company's securities other than the holders of
Registrable Shares, and, if the Piggyback Registration is not an underwritten
offering, the Company determines that, or in the case of an underwritten
Piggyback Registration, the managing underwriters advise the Company in
writing that in their opinion, the number of securities requested to be
included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the
holders initially requesting such registration, the Company will include in
such registration the securities requested to be included therein by the
holders requesting such registration and the Registrable Shares requested to
be included in such registration, pro rata among the holders of securities
requesting such registration on the basis of the number of Shares initially
requested for inclusion in such registration by each such holder, subject to
any preferential registration rights granted prior to the date of this
Agreement.
(d) In the case of an underwritten Piggyback Registration, the
Company will have the right to select the investment banker(s) and manager(s)
to administer the offering. In a registration pursuant to Section 2(a), the
Holders requesting registration shall have the right to select the investment
banker(s) and manager(s) to administer the offering, which shall be
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reasonably acceptable to the Company. If requested by the underwriters for
any underwritten offerings by Holders, under a registration requested
pursuant to Section 2(a), the Company will enter into a customary
underwriting agreement with such underwriters for such offering, to contain
such representations and warranties by the Company and such other terms as
are customarily contained in agreements of that type. The Holders who elect
to register Registrable Shares shall be a party to such underwriting
agreement and may, at their option, require that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of Holders. Such
Holders shall not be required to make any representations or warranties to or
agreement with the Company or the underwriters other than representations,
warranties or agreements regarding the Holders and the Holders' intended
method of distribution and any other representation or warranties required by
law.
Section 4. REGISTRATION PROCEDURES.
(a) The Company shall promptly notify the Holders of the
occurrence of the following events:
(i) when any registration statement relating to the
Registrable Shares or post-effective amendment thereto filed with the
Commission has become effective;
(ii) the issuance by the Commission of any stop order
suspending the effectiveness of any registration statement relating to the
Registrable Shares;
(iii) the suspension of an effective registration statement
by the Company in accordance with the last paragraph of Section 2(a) hereof;
(iv) the Company's receipt of any notification of the
suspension of the qualification of any Registrable Shares covered by a
registration statement for sale in any jurisdiction; and
(v) the existence of any event, fact or circumstance that
results in a registration statement or prospectus relating to Registrable
Shares or any document incorporated therein by reference containing an untrue
statement of material fact or omitting to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
during the distribution of securities.
The Company agrees to use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such registration
statement or any state qualification as promptly as possible. The Investor
agrees by acquisition of the Registrable Shares that upon receipt of any
notice from the Company of the occurrence of any event of the type described
in Section 4(a)(ii), (iii), (iv) or (v) to immediately discontinue its
disposition of Registrable Shares pursuant to any registration statement
relating to such securities until the Investor's receipt of written notice
from the Company that such disposition may be made.
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(b) The Company shall provide to the Holders, at no cost to the
Holders, a copy of the registration statement and any amendment thereto used
to effect the Registration of the Registrable Shares, each prospectus
contained in such registration statement or post-effective amendment and any
amendment or supplement thereto and such other documents as the requesting
Holders may reasonably request in order to facilitate the disposition of the
Registrable Shares covered by such registration statement. The Company
consents to the use of each such prospectus and any supplement thereto by the
Holders in connection with the offering and sale of the Registrable Shares
covered by such registration statement or any amendment thereto. The Company
shall also file a sufficient number of copies of the prospectus and any
post-effective amendment or supplement thereto with the New York Stock
Exchange, Inc. (or, if the Common Shares are no longer listed thereon, with
such other securities exchange or market on which the Common Shares are then
listed) so as to enable the Holders to have the benefits of the prospectus
delivery provisions of Rule 153 under the Securities Act.
(c) The Company agrees to use its reasonable best efforts to cause
the Registrable Shares covered by a registration statement to be registered
with or approved by such state securities authorities as may be necessary to
enable the Holders to consummate the disposition of such shares pursuant to
the plan of distribution set forth in the registration statement; provided,
however, that the Company shall not be obligated to take any action to effect
any such Registration, qualification or compliance pursuant to this Section 4
in any particular jurisdiction in which the Company would be required to
execute a general consent to service of process in effecting such
Registration, qualification or compliance unless the Company is already
subject to service in such jurisdiction..
(d) Subject to the Company's Suspension Right, if any event, fact
or circumstance requiring an amendment to a registration statement relating
to the Registrable Shares or supplement to a prospectus relating to the
Registrable Shares shall exist, immediately upon becoming aware thereof the
Company agrees to notify the Holders and prepare and furnish to the Holders a
post-effective amendment to the registration statement or supplement to the
prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Shares, the prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(e) The Company agrees to use its reasonable best efforts
(including the payment of any listing fees) to obtain the listing of all
Registrable Shares covered by the registration statement on each securities
exchange on which securities of the same class or series are then listed.
(f) The Company agrees to use its reasonable best efforts to
comply with the Securities Act and the Exchange Act in connection with the
offer and sale of Registrable Shares pursuant to a registration statement,
and, as soon as reasonably practicable following the end of any fiscal year
during which a registration statement effecting a Registration of the
Registrable Shares shall have been effective, to make available to its
security holders an earnings statement satisfying the provisions of Section
11(a) of the Securities Act.
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(g) The Company agrees to cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Shares to be sold pursuant to a Registration and not bearing any
Securities Act legend; and enable certificates for such Registrable Shares to
be issued for such numbers of shares and registered in such names as the
Holders may reasonably request at least two business days prior to any sale
of Registrable Shares.
Section 5. EXPENSES OF REGISTRATION. The Company shall pay all
Registration Expenses incurred in connection with the registration,
qualification or compliance pursuant to Sections 2, 3 and 4 hereof. All
Selling Expenses incurred in connection with the sale of Registrable Shares
by any of the Holders shall be borne by the Holder selling such Registrable
Shares. Each Holder shall pay the expenses of its own counsel.
Section 6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will (i) indemnify each Holder, each Holder's
officers and directors, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (including reasonable legal expenses),
arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any registration statement or prospectus
relating to the Registrable Shares, or any amendment or supplement thereto,
or based on any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (ii) reimburse each Holder for all reasonable
legal or other expenses incurred in connection with investigating or
defending any such action or claim as such expenses are incurred, PROVIDED,
HOWEVER, that the Company will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with information furnished
in writing to the Company by such Holder or underwriter for inclusion
therein; and PROVIDED FURTHER, that in the case of a nonunderwritten
offering, the Company shall not be liable in any such case with respect to
any preliminary prospectus or preliminary prospectus supplement to the extent
that any such expenses, claims, losses, damages and liabilities result from
the fact that Registrable Shares were sold to a person as to whom it shall be
established that there was not sent or given at or prior to the written
confirmation of such sale a copy of the prospectus as then amended or
supplemented under circumstances were such delivery is required under the
Securities Act, if the Company shall have previously furnished copies thereof
to such Indemnified Person in sufficient quantities to enable such
Indemnified Party to satisfy such obligations and the expense, claim, loss,
damage or liability of such Indemnified Person results from an untrue
statement or omission of a material fact contained it the preliminary
prospectus or the preliminary prospectus supplement which was corrected in
the prospectus.
(b) Each Holder selling shares pursuant to a Registration (and, in
the case of a nonunderwritten offering, any agents of each Holder that
facilitate the distribution of Registrable Shares) will (i) indemnify the
Company, each of its directors and each of its officers who signs the
registration statement, each underwriter, if any, of the Company's securities
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covered by such registration statement, and each person who controls the
Company or such underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(including reasonable legal fees and expenses) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained
in any such registration statement or prospectus, or any amendment or
supplement thereto, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement or
prospectus, in reliance upon and in conformity with information furnished in
writing to the Company by such Holder for inclusion therein, and (ii)
reimburse the Company for all reasonable legal or other expenses incurred in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Each party entitled to indemnification under this Section 6
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
but the omission to so notify the Indemnifying Party shall not relieve it
from any liability which it may have to the Indemnified Party pursuant to the
provisions of this Section 6 except to the extent of the actual damages
suffered by such delay in notification. The Indemnifying Party shall assume
the defense of such action, including the employment of counsel to be chosen
by the Indemnifying Party to be reasonably satisfactory to the Indemnified
Party, and payment of expenses. The Indemnified Party shall have the right
to employ its own counsel in any such case, but the legal fees and expenses
of such counsel shall be at the expense of the Indemnified Party, unless the
employment of such counsel shall have been authorized in writing by the
Indemnifying Party in connection with the defense of such action, or the
Indemnifying Party shall not have employed counsel to take charge of the
defense of such action or the Indemnified Party shall have reasonably
concluded that there may be defenses available to it or them which are
different from or additional to those available to the Indemnifying Party (in
which case the Indemnifying Party shall not have the right to direct the
defense of such action on behalf of the Indemnified Party), in any of which
events such fees and expenses shall be borne by the Indemnifying Party. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
(d) If the indemnification provided for in this Section 6 is
unavailable to a party that would have been an Indemnified Party under this
Section 6 in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party that would have been an Indemnifying
Party hereunder shall, in lieu of indemnifying such Indemnified Party,
contribute to the amount paid or payable by such Indemnified Party as a
result of such expenses, claims, losses, damages and liabilities in such
proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and such Indemnified Party on the other in
connection with the statement or omission which resulted in such expenses,
claims, losses,
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damages and liabilities, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Indemnifying Party or such Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and each Holder agree that it would not be just and equitable if contribution
pursuant to this Section were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 6(d).
(e) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) In no event shall any Holder be liable for any expenses,
claims, losses, damages or liabilities pursuant to this Section 6 in excess
of the net proceeds to such Holder of any Registrable Shares sold by such
Holder.
Section 7. INFORMATION TO BE FURNISHED BY HOLDERS. Each Holder
shall furnish to the Company such information as the Company may reasonably
request and as shall be required in connection with the Registration and
related proceedings referred to in Section 2 or Section 3 hereof. If any
Holder fails to provide the Company with such information within 10 days of
receipt of the Company's request, the Company's obligations under Section 2
or Section 3 hereof, as applicable, with respect to such Holder or the
Registrable Shares owned by such Holder, shall be suspended until such Holder
provides such information.
Section 8. UNDERTAKING TO PARTICIPATE IN UNDERWRITING. If the
Holders of at least $75 million of the Registrable Shares shall propose to
sell Registrable Shares in an underwritten public offering, the Company shall
make available, for reasonable periods of time and with reasonable notice,
members of the management of the Company and its affiliates for reasonable
assistance in selling efforts relating to such offering, to the extent
customary for a public offering (including, without limitation, to the extent
customary, senior management attendance at due diligence meetings with the
underwriters and their counsel and road shows) and shall enter into
underwriting agreements containing usual and customary terms and conditions
reasonably acceptable to the Company for such types of offerings.
Section 9. RULE 144 SALES.
(a) The Company covenants that it will use its best efforts to
file the reports required to be filed by the Company under the Exchange Act,
so as to enable any Holder to sell Registrable Shares pursuant to Rule 144
under the Securities Act.
(b) In connection with any sale, transfer or other disposition by
any Holder of any Registrable Shares pursuant to Rule 144 under the
Securities Act, the Company shall cooperate with such Holder to facilitate
the timely preparation and delivery of certificates
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representing Registrable Shares to be sold and not bearing any Securities Act
legend, and enable certificates for such Registrable Shares to be for such
number of shares and registered in such names as the selling Holder may
reasonably request at least two business days prior to any sale of
Registrable Shares.
Section 10. TRANSFER OF REGISTRATION RIGHTS. The rights and
obligations of a Holder under this Agreement may be transferred or otherwise
assigned to a transferee or assignee of Registrable Shares provided that (i)
such transferee or assignee becomes a party to this Agreement or agrees in
writing to be subject to the terms hereof to the same extent as if such
transferee or assignee were an original party hereunder and (ii) the Company
is given written notice by such Holder of such transfer or assignment stating
the name and address of such transferee or assignee and identifying the
securities with regard to which such rights and obligations are being
transferred or assigned.
Section 11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Maryland.
(b) ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof.
(c) AMENDMENT. No supplement, modification, waiver or termination
of this Agreement shall be binding unless executed in writing by the Company
and the Holders of at least two-thirds of the Registrable Shares.
(d) NOTICES, ETC. Each notice, demand, request, request for
approval, consent, approval, disapproval, designation or other communication
(each of the foregoing being referred to herein as a notice) required or
desired to be given or made under this Agreement shall be in writing (except
as otherwise provided in this Agreement), and shall be effective and deemed
to have been received (i) when delivered in person, (ii) when sent by fax
with receipt acknowledged, (iii) five (5) days after having been mailed by
certified or registered United States mail, postage prepaid, return receipt
requested, or (iv) the next business day after having been sent by a
nationally recognized overnight mail or courier service, receipt requested.
Notices shall be addressed as follows: (a) if to the Investor, at the
Investor's address or fax number set forth below its signature hereon, or at
such other address or fax number as the Investor shall have furnished to the
Company in writing, or (b) if to any assignee or transferee of an Investor,
at such address or fax number as such assignee or transferee shall have
furnished the Company in writing, or (c) if to the Company, at the address of
its principal executive offices and addressed to the attention of the
President, or at such other address or fax number as the Company shall have
furnished to the Investors or any assignee or transferee. Any notice or
other communication required to be given hereunder to a Holder in connection
with a registration may instead be given to the designated representative of
such Holder.
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(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by fewer than all of the parties
hereto (PROVIDED that each party executes one or more counterparts), each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
(f) SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force
and effect without said provision.
(g) SECTION TITLES. Section titles are for descriptive purposes
only and shall not control or alter the meaning of this Agreement as set
forth in the text.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the parties hereto and their respective successors and assigns.
(i) REMEDIES. The Company and the Investor acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that the Company and each
Holder, in addition to any other remedy to which it may be entitled at law or
in equity, shall be entitled to compel specific performance of the
obligations of another party under this Agreement in accordance with the
terms and conditions of this Agreement in any court of the United States or
any State thereof having jurisdiction.
(j) ATTORNEYS' FEES. If the Company or any Holder brings an
action to enforce its rights under this Agreement, the prevailing party in
the action shall be entitled to recover its costs and expenses, including,
without limitation, reasonable attorneys' fees, incurred in connection with
such action, including any appeal of such action.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
THE MACERICH COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
General Counsel and Secretary
THE ONTARIO TEACHERS' PENSION PLAN BOARD
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Portfolio Manager
Address:
Fax Number:
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