EXHIBIT 1.1
THE MACERICH COMPANY
808,989 SHARES
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
April 21, 1998
X.X. XXXXXXX & SONS, INC.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
The undersigned, The Macerich Company, a Maryland corporation (the
"COMPANY") hereby confirms its agreement with you (the "UNDERWRITER") as
follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and sell to
you 808,989 shares of its Common Stock, par value $.01 per share (the "SHARES").
The Shares are more fully described in the Prospectus hereinafter defined.
2. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to you, and
you agree to purchase from the Company at a purchase price of $26.4225 per
share, 808,989 Shares.
Delivery to the Underwriter of and payment for the Shares will be made
at the office of X.X. Xxxxxxx & Sons, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
("XXXXXXX' OFFICE"), or such other place as you and the Company may mutually
agree upon (the "PLACE OF CLOSING"), for your account against payment to the
Company of the purchase price for the Shares sold to you by wire transfer of
immediately available funds, at 9:00 a.m., St. Louis time, on April 24, 1998, or
at such other time and date not later than three full business days thereafter
as you and the Company may agree, such time and date of payment and delivery
being herein called the "CLOSING DATE." The Company will not be obligated to
deliver any of the Shares except upon payment for all of the Shares to be
purchased on the Closing Date.
The parties acknowledge and agree that the Shares will be delivered and
maintained in book-entry form and will be in such names and denominations as you
may request prior to 1:00 p.m., New York City time, on the second business day
prior to the Closing Date.
3. Representations, Warranties and Agreements of the Company. (a) The
Company represents and warrants to and agrees with you that:
(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "ACT"); a registration statement
(Registration No.
333-21157) on Form S-3, including a prospectus relating to the registration of
the Shares and such other securities which may be offered from time to time in
accordance with Rule 415 under the Act, and such amendments to such registration
statement as may have been required to the date of this Agreement, have been
prepared by the Company pursuant to and in conformity with the requirements of
the Act, and the Rules and Regulations (the "RULES AND REGULATIONS") of the
Securities and Exchange Commission (the "COMMISSION") thereunder, and have been
filed with the Commission under the Act and the Registration Statement was
declared effective. A prospectus supplement (the "PROSPECTUS SUPPLEMENT")
setting forth the terms of the offering, sale and plan of distribution of the
Shares and additional information concerning the Company and its business has
been or will be so prepared and will be filed pursuant to Rule 424(b) of the
Rules and Regulations on or before the second business day after the date hereof
(or such earlier time as may be required by the Rules and Regulations). The
term "Registration Statement" as used herein means the registration statement,
and the basic prospectus included therein, as amended at the time it or any
amendment thereto became effective under the Act, or at the time any Annual
Report on Form 10-K is filed by the Company with the Commission (the "EFFECTIVE
DATE"), including financial statements and all exhibits and all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act.
Any document filed by the Company under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT") after the effective date of the Registration
Statement or the date of the Prospectus Supplement and incorporated by reference
in the Prospectus shall be deemed to be included in the Registration Statement
and the Prospectus as of the date of such filing. The term "Prospectus" as used
herein means (i) the basic prospectus included in the Registration Statement at
the Effective Date, as supplemented by the Prospectus Supplement as first filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations, except
that, if such basic prospectus is amended or supplemented subsequent to the
Effective Date, the term "Prospectus" shall refer to the basic prospectus as so
amended or supplemented and as further supplemented by the Prospectus
Supplement, or (ii) if no such filing is required, the form of final prospectus
included in the Registration Statement at the Effective Date.
(ii) The Commission has not issued, and is not to the knowledge of
the Company threatening to issue, an order preventing or suspending the use of
the Prospectus nor instituted proceedings for that purpose. The Registration
Statement at the Effective Date, and the Prospectus at its date of issue and any
amendments or supplements thereto prior to the Closing Date conform or will
conform in all material respects, as the case may be, to the requirements of,
the Act and the Rules and Regulations. Neither the Registration Statement nor
any amendment thereto, as of the applicable effective date, and neither the
Prospectus nor any supplement thereto prior to the Closing Date, as of its
applicable filing date, contains or will contain, as the case may be, any untrue
statement of a material fact or omits or will omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and
conforming with, written information furnished to the Company by you
specifically for use in the preparation thereof.
(iii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act, when they became effective or at
the time they were filed with the Commission, as the case may be, complied in
all material respects with the requirements of the Exchange Act, and the rules
and regulations adopted by the Commission thereunder (the "EXCHANGE ACT RULES
AND REGULATIONS"), and, when filed with the Commission, did not contain 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 not misleading.
(iv) The filing of the Registration Statement and the execution and
delivery of this Agreement have been duly authorized by the Board of Directors
of the Company; this Agreement constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms (except to
the extent the enforceability of the indemnification and contribution provisions
of Section 6 hereof may be limited by public policy considerations as expressed
in the Act as construed by courts of competent jurisdiction, and except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditors' rights generally and by general
principles of equity); the issue and sale of the Shares by the Company and the
performance of this Agreement and the consummation of the transactions herein
contemplated will not result in a violation of the Company's articles of
incorporation or bylaws or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any properties or assets of
the Company or its subsidiaries under any statute, or under any indenture,
mortgage, deed of trust, note, loan agreement, sale and leaseback arrangement or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which they are bound or to which any of the properties or assets
of the Company or its subsidiaries is subject, or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the Company
or its subsidiaries or their properties, except to such extent as does not
materially adversely affect the business of the Company and its subsidiaries
taken as a whole; no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the consummation of the transactions herein contemplated, except such as may
be required by the National Association of Securities Dealers, Inc. (the "NASD")
or under the Act or Rules and Regulations or any state securities laws.
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree. Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, the Company and its subsidiaries taken as a whole have not
incurred any material liabilities or material obligations, direct or contingent,
other than in the ordinary course of business, or entered into any material
transactions not in the ordinary course of business, and there has not been any
material change in the capital stock or long-term debt of the Company and its
subsidiaries taken as a whole or any material adverse change in the condition
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(financial or other), net worth, business or results of operations of the
Company and its subsidiaries taken as a whole. The Company and its subsidiaries
have filed all necessary federal, state and foreign income and franchise tax
returns and paid all taxes shown as due thereon; all tax liabilities are
adequately provided for on the books of the Company and its subsidiaries except
to such extent as would not materially adversely affect the business of the
Company and its subsidiaries taken as a whole, the Company and its subsidiaries
have made all necessary payroll tax payments and are current and up-to-date as
of the date of this Agreement; and the Company and its subsidiaries have no
knowledge of any tax proceeding or action pending or threatened against the
Company or its subsidiaries which might materially adversely affect their
business or property taken as a whole.
(vi) Except as described in the Prospectus, there is not now
pending or, to the knowledge of the Company, threatened or contemplated, any
action, suit or proceeding to which the Company or its subsidiaries is a party
before or by any court or public, regulatory or governmental agency or body
which might be expected to result (individually or in the aggregate) in any
material adverse change in the condition (financial or other), business or
results of operations of the Company and its subsidiaries taken as a whole, or
might be expected to materially and adversely affect the properties or assets
thereof, and there are no contracts or documents of the Company or its
subsidiaries which would be required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations which have not been filed
as exhibits to the Registration Statement or incorporated by reference therein.
(vii) The Company has duly and validly authorized stock as described
in the Prospectus; all outstanding shares of Common Stock of the Company and the
Shares conform, or when issued will conform, to the description thereof in the
Prospectus and have been, or, when issued and paid for will be, duly authorized,
validly issued, fully paid and nonassessable; and the issuance of the Shares to
be purchased from the Company hereunder is not subject to preemptive rights.
(viii) Each of the Company and its subsidiaries have been duly
incorporated or formed, as the case may be, and is a validly existing
corporation, general or limited partnership, or other legal entity, as the case
may be, in good standing under the laws of the state or other jurisdiction in
which it is incorporated or formed, as the case may be. The Company and its
subsidiaries have full power and authority (corporate or other) to own, lease
and operate their properties and conduct their businesses as described in the
Prospectus; each of the Company and its subsidiaries is duly qualified or
registered to do business and is in good standing in each state or other
jurisdiction in which its ownership or leasing of property or conduct of
business legally requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the ability of the Company
and its subsidiaries to conduct its or their business as described in the
Prospectus; and the outstanding shares of capital stock or ownership interests
of the Company's subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and are owned by the Company free and clear of any
mortgage, pledge, lien, encumbrance, charge or adverse claim and are not the
subject of any agreement or understanding with any person, except for
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such as would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; no options, warrants or other rights to purchase,
agreement or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interest in the
subsidiaries are outstanding.
(ix) Coopers & Xxxxxxx L.L.P., the accounting firm which has
certified the financial statements filed with or incorporated by reference in
and as a part of the Registration Statement, is an independent public accounting
firm within the meaning of the Act and the Rules and Regulations.
(x) The consolidated financial statements of the Company together
with the related schedules and notes thereto, set forth or included or
incorporated by reference in the Registration Statement and Prospectus fairly
present the financial condition of the Company and its consolidated subsidiaries
as of the dates indicated and the results of operations, changes in financial
position, shareholders' equity and cash flows for the periods therein specified,
in conformity with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein). The
summary and selected financial and statistical data included or incorporated by
reference in the Registration Statement and the Prospectus present fairly the
information shown therein and, to the extent based upon or derived from the
financial statements, have been compiled on a basis consistent with the
financial statements presented therein. In addition, the pro forma financial
statements of the Company, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the basis described therein, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. Furthermore, all financial statements
required by Rule 3-14 of Regulation S-X ("RULE 3-14") have been included or
incorporated by reference in the Registration Statement and the Prospectus and
any such financial statements are in conformity with the requirements of Rule
3-14. No other financial statements are required to be set forth or to be
incorporated by reference in the Registration Statement or the Prospectus under
the Act or the Rules and Regulations thereunder.
(xi) Neither the Company nor any subsidiary is in default with
respect to any contract or agreement to which it is a party; PROVIDED that this
representation shall not apply to defaults which in the aggregate are not
materially adverse to the condition, financial or other, or the business or
prospects of the Company and its subsidiaries taken as a whole.
(xii) Neither the Company nor any subsidiary is in violation of any
other laws, ordinances or governmental rules or regulations to which it is
subject, including, without limitation, Section 13 of the Exchange Act, and
neither the Company nor any subsidiary has failed to obtain any license, permit,
franchise, easement, consent, or other governmental authorization necessary to
the ownership, leasing and operation of its properties or to the conduct of its
business, which violation or failure would materially adversely affect
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the business, results of operations, properties, or condition (financial or
other) of the Company and its subsidiaries taken as a whole. Neither the
Company nor any subsidiary has, at any time during the past five years, (A) made
any unlawful contributions to any candidate for any political office, or failed
fully to disclose any contribution in violation of law, or (B) made any payment
to any state, federal or foreign government official, or other person charged
with similar public or quasi-public duty (other than payment required or
permitted by applicable law).
(xiii) There are no holders of securities of the Company having
rights to registration thereof or preemptive rights to purchase Common Stock of
the Company except as disclosed in the Prospectus. Holders of registration
rights have waived such rights with respect to the offering being made by the
Prospectus.
(xiv) The Company and each of its subsidiaries has good and
marketable title to all properties and assets described in the Prospectus as
owned by it, free and clear of all liens, charges, encumbrances or restrictions,
except such as (i) are described or incorporated by reference in the Prospectus
or (ii) are not material to the business of the Company or its subsidiaries
taken as a whole. The Company and each of its subsidiaries has valid,
subsisting and enforceable leases for the properties described in the Prospectus
as leased by it, with such exceptions as are not material and do not materially
interfere with the use made and proposed to be made of such properties by the
Company and such subsidiaries; no tenant under any of the leases pursuant to
which the Company leases its properties has an option or right of first refusal
to purchase the premises demised under such lease which option or right, if
exercised, would have a material adverse effect on the Company and its
subsidiaries taken as a whole; the use and occupancy of each of the properties
of the Company complies in all material respects with all applicable codes and
zoning laws and regulations; the Company has no knowledge of any pending or
threatened condemnation or zoning change or other proceeding or action that will
in any material respect affect the size of, use of, improvements of,
construction on, or access to any of the properties of the Company, except for
such as would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(xv) Title insurance in favor of the Company (or the subsidiary
which holds title to such property) is maintained with respect to each of the
properties owned by the Company in an amount at least equal to the greater of
(i) the cost of acquisition of such property of (ii) the cost of construction by
the Company of the improvements located on such property (measured at the time
of such construction), except, in each case, where the failure to maintain such
title insurance would not materially adversely affect the business, results of
operations, properties, net worth or condition (financial or other) of the
Company and its subsidiaries taken as a whole.
(xvi) (1) Except as disclosed in the Prospectus, the Company has no
knowledge of (a) the presence of any hazardous substances, hazardous materials,
toxic substances, pollutants or waste materials (collectively, "HAZARDOUS
MATERIALS") on any of its properties, except that which is in compliance with
all Environmental Laws or (b) any spills,
9
releases, discharges or disposals of Hazardous Materials that have occurred or
are presently occurring on or from its properties, which presence or occurrence
would in the aggregate materially adversely affect the business, results of
operations, properties, net worth or condition (financial or other) of the
Company and its subsidiaries taken as a whole.
(2) Except as disclosed in the Prospectus (including the financial
statements incorporated by reference therein), the Company, its subsidiaries and
its properties (i) are in compliance with any and all Environmental Laws, (ii)
have received all permits, licenses or other approvals required under applicable
Environmental Laws to conduct its business and (iii) are in compliance with all
terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not in the aggregate materially
adversely affect the business, results of operations, properties, net worth or
condition (financial or other) of the Company and its subsidiaries taken as a
whole.
(3) The Company generally engages environmental consultants to
perform phase I environmental site assessments in accordance with the ASTM
Standard to identify any environmental conditions prior to the purchase of its
properties. On the basis of such phase I environmental site assessments, or
such additional investigations as may have been performed based on the findings
of a phase I assessment, and, except as described in the Prospectus (including
the financial statements incorporated by reference therein), the Company and its
subsidiaries have reasonably concluded that no such environmental conditions
exist which would, individually or in the aggregate, materially adversely affect
the business, results of operations, properties, net worth or condition
(financial or other) of the Company and its subsidiaries taken as a whole.
(4) As used herein, "Hazardous Material" shall include, without
limitation any flammable explosives, radioactive materials, hazardous materials,
hazardous wastes, hazardous or toxic substances, or related materials, asbestos,
polychlorinated biphenyls ("PCBS"), petroleum products and by-products and
substances defined or listed as "hazardous substances," "toxic substances,"
"hazardous waste," or "hazardous materials" in any Federal, state or local
Environmental Law.
(5) As used herein, "Environmental Law" shall mean all laws,
regulations or ordinances of any Federal, state or local governmental authority
having or claiming jurisdiction over any of its properties (a "GOVERNMENTAL
AUTHORITY") that are designed to protect public health and the environment or
regulate the handling of Hazardous Materials, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. Section 9601 ET SEQ.) ("CERCLA"), the Hazardous Material
Transportation Act, as amended (49 U.S.C. Section 1801 ET SEQ.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 ET SEQ.), the
Federal Water Pollution Control Act, as amended (33 U.S.C. Section 1251 ET
SEQ.), and the Clean Air Act, as amended (42 U.S.C. Section 7401 ET SEQ.).
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(xvii) No labor disturbance exists with the employees of the Company
or its subsidiaries or is imminent which would materially adversely affect the
business, results of operations, properties, net worth or condition (financial
or other) of the Company and its subsidiaries taken as a whole.
(xviii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(xix) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(xx) The mortgages and deeds of trust encumbering the properties
and assets described in the Prospectus are not convertible nor does the Company
hold a participating interest therein.
(xxi) Property and casualty insurance in favor of the Company is
maintained with respect to each of the properties owned by it in an amount and
on such terms as is reasonable and customary for businesses of this type.
(xxii) The Company has continuously been organized and operated in
conformity with the requirements for qualification as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the "CODE"), for all
taxable years commencing with its taxable year ended December 31, 1994. The
Company has filed an election to be taxed as a real estate investment trust for
all subsequent taxable years, and no such election has been terminated. The
Company's method of operation will permit it to continue to meet the
requirements for taxation as a real estate investment trust under the Code.
(xxiii) Except as disclosed in the Prospectus, each entity identified
in the Prospectus as a tenant of any property, or a subtenant thereof, has
entered into a lease or a sublease, if applicable, for the possession of such
property; except as disclosed in the Prospectus, each such lease is in full
force and effect and neither the Company nor any of its subsidiaries has notice
of any defense to the obligations of the tenant thereunder or any claim asserted
or threatened by any person or entity, which claim, if sustained, would
materially adversely affect the business, results of operations, properties, net
worth or condition (financial or other) of the Company and its subsidiaries
taken as a whole; and except as disclosed in the Prospectus, the lessor under
each lease has complied with its obligations under such lease in all material
respects and neither the Company nor any of its subsidiaries has notice of any
default by the tenant under such lease which, individually or in the aggregate
with other such defaults, materially adversely affect the business, results of
operations, properties, net worth or condition (financial or other) of the
Company and its subsidiaries taken as a whole.
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(xxiv) Any certificate signed by any officer of the Company and
delivered to you or to your counsel on the Closing Date shall be deemed a
representation and warranty by the Company to you as to the matters covered
thereby.
(xxv) A registration statement relating to the Common Stock of the
Company has been declared effective by the Commission pursuant to the Exchange
Act and the Common Stock of the Company is duly registered thereunder.
4. ADDITIONAL COVENANTS. The Company covenants and agrees with you that:
(a) The Company will (i) prepare a Prospectus Supplement setting
forth the number of Shares covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Shares are being issued, the
name of the Underwriter and the number of Shares which the Underwriter has
agreed to purchase, the price at which the Shares are to be purchased by the
Underwriter from the Company and such other information as the Underwriter and
the Company deem appropriate in connection with the offering of the Shares, and
file the Prospectus in a form approved by you pursuant to Rule 424(b) under the
Act no later than the Commission's close of business on the second business day
following the date of the determination of the offering price of the Shares;
(ii) prior to the Closing Date, not file any amendment to the Registration
Statement or supplement to the Prospectus of which you shall not previously have
been advised and furnished with a copy or to which you shall have reasonably
objected in writing or which is not in compliance with the Rules and
Regulations; and (iii) prior to the Closing Date, promptly notify you after it
shall have received notice thereof of the time when any amendment to the
Registration Statement becomes effective or when any supplement to the
Prospectus has been filed; PROVIDED that (ii) and (iii) shall not apply to any
amendment, supplement or Prospectus filed in connection with the offer and sale
of securities to any unit investment trust (a "UIT TRANSACTION").
(b) The Company will advise you promptly, after it shall receive
notice or obtain knowledge thereof, of any request of the Commission for
amendment of the Registration Statement or for supplement to the Prospectus or
for any additional information, or of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the use of
the Prospectus or of the institution or threatening of any proceedings for that
purpose, and the Company will use its best efforts to prevent the issuance of
any such stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with you and your counsel in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as they may have designated where such qualification is required
and will make such applications, file such documents, and furnish such
information as may be necessary for that purpose, PROVIDED the Company shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent or to subject itself to taxation as doing
business in any jurisdiction where it is not now so taxed. The Company will,
from time to time, file such statements, reports, and
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other documents, as are or may be required to continue such qualifications in
effect for so long a period as you may reasonably request.
(d) The Company will deliver to you, without charge, as many
copies of the Prospectus (including all documents incorporated by reference
therein), or as it thereafter may be amended or supplemented, as you may from
time to time reasonably request. The Company consents to the use of such
Prospectus by you, both in connection with the offering or sale of the Shares
and for such other purposes and for such period of time thereafter as the
Prospectus is required by law to be delivered in connection with the offering or
sale of the Shares.
(e) If, during the period in which a prospectus is required by
law to be delivered by an underwriter or dealer, any event (other than a UIT
Transaction) shall occur as a result of which, in the judgment of the Company or
in reasonable opinion of your counsel, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in light of
the circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company promptly will
prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its
shareholders, as soon as it is practicable to do so, but in any event not later
than 15 months after the effective date of the Registration Statement, an
earnings statement covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, which earnings statement
shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations.
(g) The Company will, for a period of three years from the
Closing Date, deliver to you at your principal executive offices a copy of each
report mailed by the Company to its stockholders or filed with the Commission
pursuant to the Act or the Exchange Act. Any report required to be furnished
under this paragraph (g) shall be furnished as soon as practicable after such
report becomes available.
(h) The Company will apply the proceeds from the sale of the
Shares substantially in accordance with the description under "Use of Proceeds"
in the Prospectus, which description complies in all respects with the
requirements of Item 504 of Regulation S-K.
(i) The Company will supply you with copies of all correspondence
to and from, and all documents issued to and by, the Commission in connection
with the registration of the Shares under the Act.
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(j) Prior to the Closing Date, the Company will not issue any
press releases or other communications directly or indirectly and will hold no
press conference, with respect to the Company or any of its subsidiaries, the
financial condition, results of operations, business, properties, assets or
liabilities of the Company or any of its subsidiaries, or the offering of the
Shares, without your prior written consent, which may not be unreasonably
withheld or delayed; PROVIDED, however, that this subsection (j) shall not apply
to press releases or other communication in connection with a UIT Transaction.
(k) The Company will use its best efforts to obtain approval for,
and maintain the listing of the Shares on, the New York Stock Exchange.
(l) The Company and its subsidiaries will maintain and keep
accurate books and records reflecting their assets and maintain internal
accounting controls which provide reasonable assurance that (1) transactions are
executed in accordance with management's authorization, (2) transactions are
recorded as necessary to permit the preparation of the Company's consolidated
financial statements and to maintain accountability for the assets of the
Company and its subsidiaries, (3) access to the assets of the Company and its
subsidiaries is permitted only in accordance with management's authorization,
and (4) the recorded accounts of the assets of the Company and its subsidiaries
are compared with existing assets at reasonable intervals.
(m) During any period in which a prospectus is required by law to
be delivered by the Underwriter or dealer, the Company will promptly file all
documents required to be filed with the Commission pursuant to Sections 13, 14
or 15(d) of the Exchange Act.
(n) The Company will use its best efforts to meet the
requirements to qualify as a "real estate investment trust" under the Code,
unless the Company's Board of Directors determines by resolution that it is in
the best interests of the Company's stockholders not to so qualify.
5. CONDITIONS OF UNDERWRITER'S OBLIGATION. Your obligations, as
Underwriter to purchase and pay for the Shares, as provided herein, shall be
subject to the accuracy in all material respects, as of the date hereof and as
of the Closing Date, of the representations and warranties of the Company
contained herein, to the performance in all material respects by the Company of
its covenants and obligations hereunder, and to the following additional
conditions:
(a) All filings required by Rule 424 of the Rules and Regulations
shall have been made. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceeding for that purpose shall have been initiated or, to your knowledge
or the knowledge of the Company, threatened or contemplated by the Commission,
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
complied with to your reasonable satisfaction.
14
(b) You shall not have disclosed in writing to the Company on or
prior to the Closing Date that the Registration Statement or Prospectus or any
amendment or supplement thereto contains an untrue statement of fact which, in
the opinion of your counsel, is material, or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(c) On the Closing Date, you shall have received the opinions of
O'Melveny & Xxxxx LLP, special counsel for the Company, and Xxxxxxx Xxxxx
Xxxxxxx & Ingersoll, LLP, special counsel for the Company, addressed to you and
dated the Closing Date, as to the matters set forth in Schedule I attached
hereto. In rendering such opinion as aforesaid, O'Melveny & Xxxxx LLP may rely
on an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to the laws of any jurisdiction, PROVIDED
that each such local counsel is acceptable to you.
(d) You shall have received on the Closing Date, from Xxxxxxx and
Xxxxxx, your counsel, such opinion or opinions, dated the Closing Date with
respect to the incorporation of the Company, the validity of the Shares, the
Registration Statement, the Prospectus and other related matters as you may
reasonably require; the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass on
such matters. In rendering such opinion as aforesaid, Xxxxxxx and Xxxxxx may
rely on the opinion, dated the Closing Date, of Xxxxxxx Xxxxx Xxxxxxx &
Ingersoll, LLP, special counsel for the Company.
(e) On the date of this Agreement and on the Closing Date, you
shall have received from Coopers & Xxxxxxx L.L.P. a letter or letters, dated the
date of this Agreement and the Closing Date, respectively, in form and substance
satisfactory to you, confirming that they are independent public accountants
with respect to the Company within the meaning of the Act and the published
Rules and Regulations, and stating to the effect set forth in Schedule II
hereto.
(f) Except as contemplated in the Prospectus, (i) neither the
Company nor any of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree; and (ii) subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its subsidiaries
shall have incurred any material liability or obligation, direct or contingent,
or entered into material transactions, and there shall not have been any
material change in the stock or long-term debt of the Company and its
subsidiaries or any material change in the condition (financial or other), net
worth, business, management or results of operations of the Company or its
subsidiaries, the effect of which, in any such case described in clause (i) or
(ii), is in your judgment so material or adverse as to make it impracticable or
inadvisable to proceed with
15
the public offering or the delivery of the Shares being delivered on the Closing
Date on the terms and in the manner contemplated in the Prospectus.
(g) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or the American Stock Exchange or the establishing on such
exchanges by the Commission or by such exchanges of minimum or maximum prices
which are not in force and effect on the date hereof; (ii) a general moratorium
on commercial banking activities declared by either federal or state
authorities; (iii) with the exception of the outbreak or escalation of
hostilities between the United States and Iraq (or their respective allies), the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iii) in your judgment makes it
impracticable or inadvisable to proceed with the delivery of the Shares in the
manner contemplated in the Prospectus; or (iv) with the exception of the
outbreak or escalation of hostilities between the United States and Iraq (or
their respective allies), any calamity or crisis, change in national,
international or world affairs, act of God, change in the international or
domestic markets, or change in the existing financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in this clause (iv) makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares in the manner
contemplated in the Prospectus.
(h) You shall have received certificates, dated the Closing Date
and signed by the President or any Vice President and the Chief Financial
Officer of the Company stating that (i) they have carefully examined the
Registration Statement and the Prospectus as amended or supplemented and all
documents incorporated by reference therein and nothing has come to their
attention that would lead them to believe that either the Registration Statement
or the Prospectus, or any amendment or supplement thereto or any documents
incorporated by reference therein as of their respective effective, issue or
filing dates, contained, and the Prospectus as amended or supplemented and all
documents incorporated by reference therein and when read together with the
documents incorporated by reference therein, at the Closing Date, contains any
untrue statement of a material fact, or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, and, that
(ii) all representations and warranties made herein by the Company are true and
correct in all material respects at the Closing Date, with the same effect as if
made on and as of the Closing Date, and all agreements herein to be performed by
the Company on or prior to the Closing Date have been duly performed in all
material respects.
(i) The Company shall not have failed, refused, or been unable,
at or prior to the Closing Date to have performed in all material respects any
agreement on their part to be performed or any of the conditions herein
contained and required to be performed or satisfied by them at or prior to the
Closing Date.
(j) The Company shall have furnished to you at the Closing Date
such other certificates as you may have reasonably requested as to the accuracy,
on and as of the
16
Closing Date, of the representations and warranties of the Company herein and as
to the performance by the Company of their obligations hereunder.
(k) The Shares shall have been approved for trading upon official
notice of issuance on the New York Stock Exchange.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Xxxxxxx and Xxxxxx, your counsel. The Company will furnish you
with such conformed copies of such opinions, certificates, letters and documents
as you may request.
If any of the conditions specified above in this Section 5 shall not have
been satisfied at or prior to the Closing Date or waived by you in writing, this
Agreement may be terminated by you on notice to the Company.
6. INDEMNIFICATION. (a) The Company will indemnify and hold you harmless
and each person, if any, who controls you within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which you or such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities arise out of
or are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or in any blue sky application or other document executed
by the Company or based on any information furnished in writing by the Company,
filed in any jurisdiction in order to qualify any or all of the Shares under the
securities laws thereof ("BLUE SKY APPLICATION"), or arise out of or are based
upon the omission or alleged omission to state therein 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; and will reimburse
you and each such controlling person for any legal or other expenses reasonably
incurred by you or such controlling person in connection with investigating or
defending any such loss, claim, damage or liability; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or the Prospectus, or such amendment or supplement, or
any Blue Sky Application in reliance upon and in conformity with written
information furnished to the Company by you, specifically for use in the
preparation thereof; and PROVIDED, FURTHER, that if the Prospectus contained any
alleged untrue statement or allegedly omitted to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading and such statement or omission shall have been corrected in a revised
Prospectus or in the Prospectus or in an amended or supplemented Prospectus, the
Company shall not be liable to you or controlling persons under this subsection
(a) with respect to such alleged untrue statement or alleged omission to the
extent that any such loss, claim, damage or liability of such person results
from the fact that you sold Shares to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, such revised
Prospectus or amended or supplemented Prospectus. In addition to its other
obligations under this Section 6(a), the
17
Company agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
this Section 6(a), it will reimburse you on a monthly basis for all reasonable
legal and other expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Company's obligation to reimburse you for such expenses
and the possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. This indemnity agreement shall be in
addition to any liabilities which the Company may otherwise have.
(b) You will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company or any such director, officer or controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any Blue Sky Application or arise out of or are based
upon the omission or the alleged omission to state therein 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, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement or the Prospectus, such amendment or supplement, or any
Blue Sky Application in reliance upon and in conformity with written information
furnished to the Company by you or your counsel on your behalf specifically for
use in the preparation thereof; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action. In addition to your other obligations under this
Section 6(b), you agree that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 6(b), you will reimburse the Company or such director,
officer or controlling person on a monthly basis for all reasonable legal and
other expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
your obligation to reimburse the Company or such director, officer or
controlling person for such expenses and the possibility that such payments
might later be held to have been improper by a court of competent jurisdiction.
This indemnity agreement shall be in addition to any liabilities which you may
otherwise have.
(c) Any party which proposes to assert the right to be indemnified under
this Section 6 shall, within ten days after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a claim is
to be made against an
18
indemnifying party under this Section 6, notify each such indemnifying party of
the commencement of such action, suit or proceeding, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party of any such
action, suit or proceeding shall not relieve such indemnifying party from any
liability which it may have to any indemnified party otherwise than under this
Section 6. In case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ its own counsel
in any such action, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of counsel by such
indemnified party at the expense of the indemnifying party has been authorized
by the indemnifying party, (ii) the indemnified party shall have been advised by
such counsel in a written opinion that there may be a conflict of interest
between the indemnifying party and the indemnified party in the conduct of the
defense, or certain aspects of the defense, of such action (in which case the
indemnifying party shall not have the right to direct the defense of such action
with respect to those matters or aspects of the defense on which a conflict
exists or may exist on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have employed counsel to assume the defense
of such action, in any of which events such fees and expenses to the extent
applicable shall be borne by the indemnifying party. An indemnifying party
shall not be liable for any settlement of any action or claim effected without
its consent. Each indemnified party, as a condition of such indemnity, shall
cooperate in good faith with the indemnifying party in the defense of any such
action or claim.
(d) If the indemnification provided for in this Section 6 is for any
reason, other than pursuant to the terms thereof, judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right to appeal) to be
unavailable to an indemnified party under subsections (a) or (b) above in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative benefits received by the Company and you
from the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault, as applicable, of the Company and
you in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as other relevant equitable
considerations. The relative benefits received by, as applicable, the Company
and you shall be deemed to be in the same proportion as the total
19
net proceeds from the offering (after deducting underwriting discounts and
commissions but before deducting other expenses) received by the Company bear to
the total underwriting discounts and commissions received by you, in each case
as set forth on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue statement of
a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or you and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and you agree that it would not be just
and equitable if contributions pursuant to this subsection (d) 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 subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), you shall not be required to contribute any
amount in excess of the underwriting discounts and commissions applicable to the
Shares purchased by you. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company contained herein or
in certificates delivered pursuant hereto, and your agreements contained in
Section 6 hereof, shall remain operative and in full force and effect regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of you or any controlling person, the Company or any of its
officers, directors or any controlling persons, and shall survive delivery of
the Shares to you hereunder PROVIDED that, if you, with actual knowledge of (a)
a default in any of the covenants, agreements or obligations to be performed by
the Company under this Agreement or under any closing document, and/or (b) any
breach of any representation or warranty of the Company made in this Agreement
or any closing document, nonetheless elect to proceed to closing, then upon the
consummation of the closing, you will be deemed to have waived any such default
and breach and will have no claim against the Company with respect thereto, or
any termination right hereunder by reason thereof.
8. EFFECTIVE DATE AND TERMINATION. (a) This Agreement shall become
effective upon execution.
(b) This Agreement may be terminated by you at any time at or prior to the
Closing Date by notice to the Company if any condition specified in Section 5
hereof shall not have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party except as
provided in Sections 6 and 9 hereof.
If you terminate this Agreement as provided in Section 8(b), you shall
notify the Company by telephone or facsimile, confirmed by letter.
20
9. COST AND EXPENSES. The Company will bear and pay the costs and
expenses incident to the registration of the Shares and offering thereof as
described in the Prospectus including, without limitation, (a) the fees and
expenses of the Company's accountants and the fees and expenses of counsel for
the Company, (b) the preparation, printing, filing, delivery and shipping of the
Registration Statement, the Prospectus, and any amendments or supplements
thereto, (c) the furnishing of copies of such documents to you, (d) the
registration or qualification of the Shares for offering and sale under the
securities laws of the various states, including the reasonable fees and
disbursements of your counsel relating to such registration or qualification,
(e) the fees payable to the NASD (if any) and the Commission in connection with
their review of the proposed offering of the Shares, (f) all initial transfer
taxes, if any, (g) all fees and expenses relating to the authorization of the
Shares for trading on the New York Stock Exchange and (h) all of the other costs
and expenses incident to the performance by the Company of the registration and
offering of the Shares; PROVIDED, HOWEVER, that you will bear and pay the fees
and expenses of your counsel (other than fees and disbursements relating to the
registration or qualification of the Shares for offering and sale under the
securities laws of the various states), your out-of-pocket expenses, and any
advertising costs and expenses incurred by you incident to the offering of the
Shares.
If this Agreement is terminated by you in accordance with the provisions of
Section 8(b), the Company shall reimburse you for all of your out-of-pocket
expenses, including the reasonable fees and disbursements of your counsel.
10. INFORMATION FURNISHED BY THE UNDERWRITER. The statements set forth in
the last two paragraphs on the cover page and the statements under the caption
"Underwriting" in the Prospectus constitute the only information furnished by or
on behalf of you as such information is referred to in Sections 3(a)(ii) and 6
hereof.
11. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
c/o X.X. Xxxxxxx & Sons, Inc. at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, Attention: Syndicate, facsimile number (000) 000-0000, or if sent to the
Company shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed to the Company at 000 Xxxxxxxx Xxxxxxxxx, Xx. 000,
Xxxxx Xxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel, facsimile number
(000) 000-0000.
12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon you and the Company and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, corporation or other entity, other than the parties hereto and
their respective successors and assigns and the controlling persons, officers
and directors referred to in Section 6, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained;
this Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and their
respective
21
successors and assigns and said controlling persons and said officers and
directors, and for the benefit of no other person, corporation or other entity.
No purchaser of any of the Shares from you shall be construed a successor or
assign by reason merely of such purchase.
13. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
14. PRONOUNS. Whenever a pronoun of any gender or number is used herein,
it shall, where appropriate, be deemed to include any other gender and number.
15. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Missouri.
22
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and you.
THE MACERICH COMPANY
By /s/ Xxxxxxx X. Xxxxx
Title: General Counsel and Secretary
ACCEPTED in St. Louis, Missouri as
of the date first above written.
X.X. XXXXXXX & SONS, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
23
