Filed Pursuant to Rule 424(b)(3)
Registration Statement No. 333-264769
Prospectus Supplement No. 7
(to Prospectus dated May 13, 2022)
Up to 12,380,260 Shares
CBL & ASSOCIATES PROPERTIES, INC.
Common Stock
This prospectus supplement (“Prospectus Supplement No. 7”) is being filed to update and supplement the information contained in the prospectus dated May 13, 2022 (as supplemented to date, the “Prospectus”) related to the resale or other disposition by the selling stockholders (the “Selling Stockholders”) identified in the Prospectus of up to an aggregate of 12,380,260 shares of common stock, par value $0.001 per share, of CBL & Associates Properties, Inc. (“CBL,” the “Company,” ”we,” “our” or “us”), with the information contained in Items 5.02 and 8.01 of our Current Report on Form 8-K dated September 1, 2022, filed with the Securities and Exchange Commission (“SEC”) on September 1, 2022 (the “September 1, 2022 Form 8-K”). Accordingly, we have attached the September 1, 2022 Form 8-K to this prospectus supplement.
This prospectus supplement updates and supplements the information in the Prospectus and is not complete without, and may not be delivered or utilized except in combination with, the Prospectus, including any amendments or supplements thereto. This prospectus supplement should be read in conjunction with the Prospectus and if there is any inconsistency between the information in the Prospectus and this prospectus supplement, you should rely on the information in this prospectus supplement.
Our common stock is listed on the New York Stock Exchange (the “NYSE”) under the trading symbol “CBL.” On August 31, 2022, the last sale price of our common stock, as reported on the NYSE was $28.94 per share.
We are not selling any securities under the Prospectus and will not receive any of the proceeds from the sale of shares of our common stock by the Selling Stockholders. We have agreed to bear all fees and expenses (excluding any underwriting discounts or commissions or transfer taxes, if any, of any Selling Stockholder) incident to the registration of the securities covered by the Prospectus.
Investing in us involves a high degree of risk. See “Risk Factors” beginning on page 6 of the Prospectus and in any applicable prospectus supplement for a discussion of the risks that should be considered in connection with an investment in our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of the Prospectus or this prospectus supplement. Any representation to the contrary is a criminal offense.
The date of this prospectus supplement is September 1, 2022
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): September 1, 2022
CBL & ASSOCIATES PROPERTIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware |
| 1-12494 |
| 62-1545718 |
(State or Other Jurisdiction of Incorporation) |
| (Commission File Number) |
| (I.R.S. Employer Identification No.) |
2030 Hamilton Place Blvd., Suite 500, Chattanooga, TN 37421-6000
(Address of principal executive office, including zip code)
423-855-0001
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered under Section 12(b) of the Act:
Title of each Class |
| Trading Symbol(s) |
| Name of each exchange on which registered |
Common Stock, $0.001 par value |
| CBL |
| New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers
(b) On September 1, 2022, CBL & Associates Properties, Inc. (the “Company”) issued a press release announcing an executive transition plan related to the Company’s Chief Financial Officer. Pursuant to this plan, it is anticipated that Farzana Khaleel will cease to serve as CBL’s Executive Vice President – Chief Financial Officer as of December 31, 2022 and Benjamin W. Jaenicke, who has been appointed Executive Vice President – Finance of CBL effective September 1, 2022, will assume the duties of Executive Vice President – Chief Financial Officer as of January 1, 2023. The Company also expects to enter into a consulting arrangement with Ms. Khaleel to continue to provide certain advisory services through an initial term ending March 31, 2023, with one 3-month extension available at the Company’s option, in order to provide for a smooth transition. The Company also anticipates that Ms. Khaleel will continue to serve in her current role if Mr. Jaenicke is unable for any reason to assume the duties of Chief Financial Officer as planned.
(c) The information set forth in Item 5.02(b) above is incorporated herein by reference. Prior to joining the Company, Mr. Jaenicke, age 39, had served since 2012 as Director, Real Estate Investment Banking at Wells Fargo Securities (and its predecessor firm, Eastdil Secured), where he worked closely with executives across the real estate industry on strategic and capital planning including advising clients on M&A transactions, recapitalizations, and capital markets executions. Prior to joining Wells Fargo/Eastdil, Mr. Jaenicke worked at PricewaterhouseCoopers where he performed audits and other accounting services for public REIT clients. Mr. Jaenicke holds a BS in Business and a Master of Accounting from Miami University and received his MBA from the University of Virginia Darden School of Business. He is a CFA charterholder and former Certified Public Accountant.
In connection with his employment, Mr. Jaenicke entered into an Employment Agreement with the Company, the material terms of which may be summarized as follows:
Term: Initial term runs from September 1, 2022 through April 1, 2024, with automatic renewals for successive 1-year terms if not terminated.
Base Salary: Initial annual base salary of $350,000 (pro-rated for the remainder of 2022), increasing to $400,000 beginning January 1, 2024, with future increases or decreases at the discretion of the Company’s Compensation Committee (provided that base salary shall not be decreased by more than 5% during the term of the agreement).
Annual Bonus: Annual bonus opportunities, structured as determined by the Compensation Committee, for 2023 and future years, with an annual bonus of $109,333 for 2022 and a target annual bonus amount of $338,000 for 2023 pursuant to such terms as the Compensation Committee may approve.
Initial Stock Grant: Initial grant of 20,000 shares of restricted common stock, vesting in four equal annual installments and subject to the same terms as other outstanding restricted stock awards to the Company’s executives as described in the Company’s 2022 proxy statement.
Future Equity Incentives: Participation in the Company’s equity incentive programs under its 2021 Equity Incentive Plan on the same basis as other similarly situated executives, with awards of restricted common stock of not less than 25,000 shares and awards of performance stock units (or equivalents) covering not less than 30,000 shares/units for 2023.
Insurance/Benefits: Continuation of health insurance benefits for 18 months following termination, subject to longer continuation, if applicable, under the terms of the Company’s Tier I, Tier II and Tier III Legacy Retiree Programs as described in the Company’s 2022 proxy statement, subject to Mr. Jaenicke not having been terminated for Cause.
Severance: If employment is terminated either (A) by the Company without Cause or (B) by Mr. Jaenicke for Good Reason following a Change in Control (as defined in the 2021 Equity Incentive Plan), severance will be twice (2x) the sum of (i) Mr. Jaenicke’s then-current annual base salary plus (ii) his 2023 target annual bonus as described above.
Death/Disability: If employment is terminated due to death or disability, severance is twice (2x) then-current annual base salary.
Non-Solicitation/Non-Compete: Non-Competition Period is six months following termination, while Non-Solicitation Period is one year following termination.
For purposes of the provisions summarized above, the terms “Cause” and “Good Reason” have the same meanings as in the Company’s other current senior executive employment agreements, as described in the Company’s 2022 proxy statement. The Company also agreed to provide a relocation allowance to Mr. Jaenicke in an amount not to exceed $100,000, subject to Mr. Jaenicke’s agreement to repay such allowance if he voluntarily resigns from his employment within two years of September 1, 2022. The foregoing summary of Mr. Jaenicke’s Employment Agreement and Relocation Allowance Commitment is qualified by reference to the full terms of such documents, which are filed as Exhibits 10.1 and 10.2 to this report.
Mr. Jaenicke does not have any other arrangements or relationships with the Company required to be disclosed pursuant to Item 404(a) of SEC Regulation S-K.
Item 8.01 Other Events
A copy of the press release announcing the Company’s CFO transition plan described above is attached hereto as Exhibit 99.1 and is incorporated herein by reference and constitutes part of this report.
Item 9.01 Financial Statements and Exhibits
| (d) | Exhibits |
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Exhibit Number |
| Description |
10.1 |
| Employment Agreement for Benjamin W. Jaenicke, dated September 1, 2022. |
10.2 |
| Relocation Allowance Commitment with Benjamin W. Jaenicke, dated September 1, 2022. |
99.1 |
| Press Release – CBL Properties Announces CFO Transition Plan. |
104 |
| Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CBL & ASSOCIATES PROPERTIES, INC. |
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Date: September 1, 2022 | /s/ Farzana Khaleel |
| Farzana Khaleel |
| Executive Vice President - |
| Chief Financial Officer and Treasurer |
Exhibit 10.1
FINAL
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into by and between Benjamin W. Jaenicke (“Executive”) and CBL & Associates Management, Inc., a Delaware corporation (together with its successors and assigns permitted under this Agreement, the “Company”), as of September 1, 2022 (the “Effective Date”). Executive is employed by CBL & Associates Management, Inc., which is an affiliate of CBL & Associates Properties, Inc., a Delaware corporation (“CBL/REIT”), and, as such, references herein to, the “Company”, where the context requires, will include the CBL/REIT.
WHEREAS, the Company desires to employ the Executive and the Executive desires to be employed by the Company, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. | Term of Employment. The Company hereby agrees to employ Executive, and Executive hereby agrees to be employed with the Company, upon the terms and conditions contained in this Agreement, for the period set forth in this Agreement. Executive’s continued employment with the Company pursuant to this Agreement shall commence on the Effective Date and shall continue until April 1, 2024 (the “Initial Term”) unless this Agreement is renewed pursuant to Section 8 below or until terminated in accordance with and pursuant to Section 8 below. The Initial Term and any renewal term as set forth in Section 8 below is hereinafter referred to as the “Term”. |
3. | Annual Base Salary. During the period from the Effective Date through December 31, 2022, the Company shall pay Executive a base salary of a gross amount of $116,667 for the period (which is an annual base salary of $350,000 but pro-rated for the period from the Effective Date through December 31, 2022); for the period from January 1, 2023 to December 31, 2023, the Company shall pay executive an annual base salary of a gross amount of $350,000; for the period commencing on January 1, 2024, the Company shall pay executive an annual base salary of a gross amount of $400,000; all such salary payments shall be payable in accordance with the Company’s normal payroll practices. Executive’s annual base salary, as in effect from time to time, is |
hereinafter referred to as the “Annual Base Salary.”*1 The Annual Base Salary may be increased in the discretion of the Compensation Committee of the Board (the “Compensation Committee”) (and in the absence of such Compensation Committee, by the Board) or the Board but shall not be decreased by an amount greater than five percent (5%), during the Term. |
4. | Annual Bonus. With respect to each fiscal year of the Company commencing for the 2022 fiscal year of the Company and continuing for each subsequent fiscal year of the Company thereafter during the Term, Executive shall be eligible to earn an annual cash bonus award (the “Annual Bonus”) in an amount established by the Compensation Committee or the Board, which may include all or a portion of such amount being determined based upon the achievement of performance targets established by the Compensation Committee or the Board, in its or their discretion. The Annual Bonus, if any, shall be paid at the same time annual bonuses are paid to other senior executives of the Company generally or as otherwise determined by the Compensation Committee or the Board, but in no event later than ninety (90) days following, the end of the fiscal year in which the Annual Bonus was earned, and shall be subject to Executive being employed by the Company on January 1st of the fiscal year following the year in which such Annual Bonus relates. Notwithstanding any provision of this Section 4 to the contrary, Executive’s Annual Bonus for the Company’s 2022 fiscal year shall be $109,333*2. Executive’s target Annual Bonus for the Company’s 2023 fiscal year under an applicable annual cash bonus program shall be $338,000 (the “Target 2023 Annual Bonus”)*3. |
5. | [Intentionally Left Blank] |
6. | Equity Incentive Programs. Executive shall receive an initial grant of 20,000 shares of the Company’s common stock on the Effective Date hereof which shall be restricted per the terms of a separate stock restriction agreement (the “Initial Grant Stock Restriction Agreement”) to be executed by the Executive and the Company. The Executive shall be entitled to participate in the Company’s equity incentive programs for the 2023 fiscal year of the Company with awards of restricted common stock of the Company and performance stock units (or equivalents) of the Company commensurate with the level of other Named Executive Officers*4 of the Company (excluding the Chief Executive Officer) but with awards of restricted common stock of not less than 25,000 shares and awards of performance stock units (or equivalents) of not less than 30,000 shares/units. The Executive’s participation in such programs for 2024 and subsequent years shall be determined by the Compensation Committee or the Board. |
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*1 | For purposes of other provisions of this Agreement, i.e., Section 9 below, the Executive’s Annual Base Salary for the 2022 year shall be based upon the amount of $350,000. |
*2 | For purposes of other provisions of this Agreement, the Executive’s Annual Bonus for the 2022 year shall be based upon the amount of $328,000 but has been pro-rated for the period from the Effective Date through December 31, 2022. |
*3 | Represents Executive’s Annual Bonus for 2022 without pro-ration and an increase of 3% (rounded up) over that amount. |
*4 | Named Executive Officers are the executive officers of the Company who are listed as the Named Executive Officers in the Company’s proxy statement filed in conjunction with the Company’s annual shareholders meeting. |
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8. | Termination of Employment. Executive’s employment hereunder may be terminated as follows: |
| (a) | Automatically in the event of the death of Executive; |
(b)At the option of the Company, by written notice to Executive or Executive’s legal representative, in the event of the Disability of Executive;
“Disability” shall mean Executive’s complete and permanent disability as defined by the Company’s health insurance plans or as otherwise defined by the Company from time to time consistent with applicable law. Executive acknowledges and agrees that the determination of disability shall be within the sole, absolute and exclusive discretion of the Company;
(c)At the option of the Company for Cause, as determined in the discretion of the Company, by delivering written notice to Executive;
For purposes of this Agreement, “Cause” shall mean (i) any act of fraud or willful malfeasance committed by Executive; (ii) Executive’s engagement in conduct which, is injurious to the Company or any of its affiliates, monetarily or otherwise if (provided, that, such conduct is capable of being cured), after written notice by the Board or the Compensation Committee to Executive stating, with specificity, the alleged conduct and providing direction and a reasonable opportunity for Executive to cure any such alleged conduct, Executive then fails to cure such alleged conduct
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within thirty (30) days following Executive’s receipt of such written notice to the reasonable satisfaction of the Board or the Compensation Committee; (iii) Executive’s failure to perform Executive’s material duties under this Agreement, or Executive’s material breach of this Agreement, if (provided, that, such failure to perform or material breach is capable of being cured), after written notice by the Board or the Compensation Committee to Executive stating, with specificity, the duties Executive has failed to perform and providing direction and a reasonable opportunity for Executive to cure any such alleged failures, Executive then fails to cure alleged failures within thirty (30) days following Executive’s receipt of such written notice to the reasonable satisfaction of the Board or the Compensation Committee; (iv) Executive’s conviction of, or pleading guilty or no contest to, a felony, or a conviction of, or a plea of guilty or no contest to, any criminal offence involving fraud, willful malfeasance, embezzlement, extortion, bribery, misappropriation or moral turpitude; (v) Executive’s (A) material violation of the Company’s policies and procedures including, but not limited to, (I) the Company’s policies prohibiting conduct that constitutes sexual misconduct, harassment (including sexual harassment), discrimination or retaliation and (II) the Fourth Amended and Restated Code of Business Conduct and Ethics dated February 16, 2022, as may be further amended; and (B) engagement in any conduct or cover-up of such conduct that is in violation of any of the Company’s policies and procedures (including but not limited to policies listed in (I) and (II) of this Subsection 8(c)(v)) that could cause or has caused damage to the reputation or business of the Company or any of its affiliates or their respective employees; provided, however, that, except for violations that would constitute “Cause” under subsection (iv) directly above, after written notice by the Board or the Compensation Committee to Executive stating, with specificity, the material violations alleged to have been committed by Executive and providing direction and a reasonable opportunity for Executive to cure any such alleged violations (if curable, as determined by the Board or the Compensation Committee), Executive then fails to cure alleged violations within thirty (30) days following Executive’s receipt of such written notice to the reasonable satisfaction of the Board or the Compensation Committee.
(d)At the option of the Company at any time without Cause, by delivering written notice to Executive;
(e)At the option of Executive (other than resignation by the Executive for Good Reason following the occurrence of a Change in Control), upon thirty (30) days prior written notice to the Company (which the Company may, in its sole discretion, make effective on the date of its receipt of such written notice or at any time within such thirty (30)-day period);
(f)Following the occurrence of a Change in Control, upon the resignation by Executive for Good Reason;
For purposes of this Agreement, “Good Reason” shall mean (i) a material diminution in the Executive’s duties and responsibilities; provided, however, that the Executive shall not have Good Reason to terminate employment pursuant to this clause if such change in duties and responsibilities results solely from the Company’s ceasing to be a publicly-traded company; (ii) a reduction in Executive’s Annual Base Salary, other than a reduction not in excess of five percent (5%) as provided in Section 3 of the Agreement; or (iii) the relocation of the geographic location of Executive’s principal place of employment to a location more than fifty (50) miles from Executive’s principal place of employment as of the date hereof; provided, that, Executive shall not have the right to terminate Executive’s employment hereunder for Good Reason unless (1)
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within thirty (30) days of the initial existence of the condition or conditions giving rise to such right Executive provides written notice to the Company of the existence of such condition or conditions, and (2) the Company fails to remedy such condition or conditions within thirty (30) days following the receipt of such written notice (the “Cure Period”). If any such condition is not remedied within the Cure Period, Executive must terminate Executive’s employment with the Company immediately following the end of the Cure Period.
As used in this Agreement, a “Change in Control” shall have the meaning ascribed to such term in the CBL & Associates Properties, Inc. 2021 Equity Incentive Plan adopted to be effective as of November 1, 2021 as such may be amended from time to time.
(g)Upon the expiration of the Term of this Agreement.
Provided, however, if Executive’s employment is not terminated on or before the termination of the Initial Term hereof, this Agreement shall then automatically renew for successive one (1)-year terms until terminated pursuant to this Section 8. Either Executive or the Company (or both) may elect not to renew this Agreement at the end of the Initial Term by giving the other a written notice of non-renewal at least one-hundred and twenty (120) days prior to the end of the Initial Term. Either Executive or the Company (or both) may elect not to renew this Agreement at the end of any subsequent one (1)-year renewal term by giving the other a written notice of non-renewal at least one-hundred and twenty (120) days prior to the end of the respective one (1)-year renewal term.
(a)Termination by the Company Without Cause or by Executive for Good Reason following the Occurrence of a Change in Control. If (x) Executive’s employment is terminated at any time by the Company without Cause or (y) Executive terminates Executive’s employment with the Company for Good Reason at any time following the occurrence of a Change in Control, Executive shall be entitled to, in addition to the continued benefits set forth in Section 7 of this Agreement, the following:
(i)(A) within thirty (30) days following such termination, payment of Executive’s accrued and unpaid Annual Base Salary accrued through the date of termination and (B) all other accrued amounts or accrued benefits due to Executive in accordance with the Company’s benefit plans, programs or policies (other than severance), required by law; and
(ii)Subject to Section 9(d) below, an amount (the “Severance Amount”) equal to two times (2x) the sum of: (A) Executive’s Annual Base Salary in effect immediately prior to Executive’s date of termination plus (B) an amount equal to the Executive’s Target 2023 Annual Bonus, payable in substantially equal installments in accordance with the Company’s regular payroll practices as in effect from time to time, over the twelve (12) months following the date of termination (the “Severance Period”); provided, that the first payment pursuant to this Section 9(a)(ii) shall be made on the first payroll date after the sixtieth (60th) day following the date of Executive’s termination (the “Without Cause/For Good Reason Payment Date”), subject to the prior execution, delivery and non-revocation by Executive to the Company of the General Release, as defined and set forth below, and any other documents or instruments reasonably required by the Company to be executed by Executive in standard terminations of employment
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as determined by the Company’s HR department*5 and that are consistent with the past practices of the Company’s HR department for similarly-situated executives. In the event of Executive’s death during the Severance Period, any payments to be made pursuant to this Section 9(a)(ii) shall be paid to Executive’s legal representative.
(b)Termination on Executive’s Death or Disability. If Executive’s employment is terminated at any time on Executive’s death or by the Company due to Executive’s Disability, Executive or Executive’s legal representative, as applicable, shall be entitled to, in addition to the continued benefits set forth in Section 7 of this Agreement, the following:
(i)(A) within thirty (30) days following such termination, payment of Executive’s accrued and unpaid Annual Base Salary accrued through the date of termination and (B) all other accrued amounts or accrued benefits due to Executive in accordance with the Company’s benefit plans, programs or policies (other than severance), required by law; and |
(c)Other Terminations. Subject to Section 7 of this Agreement, if Executive’s employment is terminated for any reason other than (i) by the Company without Cause, (ii) by Executive for Good Reason following the occurrence of a Change in Control, or (iii) on Executive’s death or by the Company due to Executive’s Disability, Executive shall be entitled to receive only the payments and benefits described under Section 9(a)(i) of this Agreement.
(d)Conditions to Payment. (i) The continued benefits following Executive’s death or termination other than a termination by the Company for Cause under Section 7 herein shall be provided in accordance with Section 7 and (ii) the first payment of the Severance Amount or the Death/Disability Severance Amount shall be made on the applicable Payment Date on termination pursuant to Section 9(a) or Section 9(b)
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*5 | Also known as the Company’s People & Culture Department. |
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, as applicable (with such first payment inclusive of the installment payments that would otherwise have been payable during such sixty (60)-day period); provided, that, prior to such Payment Date, Executive or Executive’s legal representative, as applicable (i) executes and delivers to the Company a general release of claims in a form acceptable to the Company (the “General Release”) and does not revoke such execution within the revocation period specified in such General Release, (ii) executes and delivers to the Company any other documents or instruments reasonably required by the Company to be executed in standard terminations of employment as determined by the Company’s HR department and that are consistent with the past practices of the Company’s HR department for similarly-situated executives, and (iii) withdraws, resigns or otherwise terminates any and all positions with the Company or any of its affiliates, including effectuating such termination in any reasonable manner requested by the Company. Failure to timely execute and return such General Release shall be a waiver by Executive or Executive’s legal representative, as applicable, of Executive’s right to the continued benefits under Section 7 and the Severance Amount or Death/Disability Severance Amount, as applicable (which, for the avoidance of doubt, shall not include the payments and benefits described under Sections 9(a)(i) or 9(b)(i) of this Agreement); provided, that, the parties may mutually agree to extend the date set forth in the General Release on which Executive must execute, deliver and not revoke the General Release so long as no extension of such period to execute, deliver and not revoke the release extends past the sixtieth (60th) day following Executive’s date of termination. In addition, (x) the continued benefits under Section 7 in accordance with Section 7 and (y) the payment of the Severance Amount or the Death/Disability Severance Amount on a termination pursuant to Section 9(a) or on a termination pursuant to Section 9(b), as applicable, shall be conditioned on Executive’s compliance with Section 10 of this Agreement, and on Executive’s continued compliance with Section 11 and Section 12 of this Agreement as provided in Section 13 below.
(e)No Other Severance. Executive hereby acknowledges and agrees that, other than (i) the payments and benefits described under Sections 9(a)(i) or 9(b)(i) of this Agreement, (ii) the continued benefits set forth in Section 7 of this Agreement and (iii) the Severance Amount or the Death/Disability Severance Amount payable on a termination pursuant to Section 9(a) or on a termination pursuant to Section 9(b), upon the effective date of the termination of Executive’s employment, Executive shall not be entitled to receive any other payments or benefits from the Company or any of its affiliates, including any severance payments or benefits of any kind under any Company benefit plan, severance policy generally available to the Company’s employees or otherwise and all other rights of Executive to compensation under this Agreement shall end as of such date. Notwithstanding any provision of this Section 9(e) to the contrary, Executive shall be entitled to Executive’s vested account in any Company retirement plan, including but not limited to the Company’s 401(K) Profit Sharing Plan and Trust, on Executive’s termination of employment.
10. | Return of Company Property. Immediately following the effective date of Executive’s termination for any reason, Executive, or Executive’s legal representative, as applicable, shall return all property of the Company or any of its affiliates in Executive’s possession, custody or control, including, but not limited to, all Company-owned computer equipment (hardware and software), telephones, facsimile machines, tablet computers and other communication devices, credit and charge cards, office keys, security access cards, badges, identification cards and all copies (including drafts) of any documentation or information, including Confidential and Proprietary Information (as defined below) (however stored) relating to the business of the Company or any of its affiliates. |
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(a)Confidential and Proprietary Information. Executive agrees that all materials and items produced or developed by Executive for the Company or any of its affiliates, or obtained by Executive from the Company or any of its affiliates either directly or indirectly pursuant to this Agreement or otherwise shall be and remains the property of the Company and its affiliates. Executive acknowledges that Executive will, during Executive’s association with the Company, acquire, or be exposed to, or have access to, materials, data and information that constitute valuable, confidential and proprietary information of the Company and its affiliates, including, without limitation, any or all of the following: business plans, practices and procedures, pricing information, sales figures, profit or loss figures, this Agreement and its terms, information relating to tenants, occupants, intellectual property, suppliers, technology, sources of supply and customer lists, research, technical data, trade secrets, or know-how, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, policies, training manuals and similar materials used by the Company in conducting its business operations, personnel information of any Person employed by the Company, potential business combinations, and such other information or material as the Company may designate as confidential and/or proprietary from time to time (collectively hereinafter, the “Confidential and Proprietary Information”). During Executive’s employment with the Company and at all times thereafter, Executive shall not, directly or indirectly, use, misuse, misappropriate, disclose or make known, without the prior written approval of the Board, to any party, firm, corporation, association or other entity, any such Confidential and Proprietary Information for any reason or purpose whatsoever, except as may be required in the course of Executive’s performance of Executive’s duties hereunder. In consideration of the unique nature of the Confidential and Proprietary Information, all obligations pertaining to the confidentiality and nondisclosure thereof shall remain in effect until the Company and its affiliates have released such information; provided, that the provisions of this Section 11(a) shall not apply to the disclosure of Confidential and Proprietary Information to the Company’s affiliates together with each of their respective shareholders, directors, officers, accountants, lawyers and other representatives or agents, nor to a Permitted Disclosure as defined in Section 11(b) below. In addition, it shall not be a breach of the confidentiality obligations hereof if Executive is required by applicable law to disclose any Confidential and Proprietary Information; provided, that in such case, Executive shall (x) give the Company the earliest notice possible that such disclosure is or may be required and (y) cooperate with the Company, at the Company’s expense, in protecting to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential and Proprietary Information which must be so disclosed. Upon termination of Executive’s employment, Executive agrees that all Confidential and Proprietary Information, directly or indirectly, in Executive’s possession, that is in writing, or other tangible form (together with all duplicates thereof) will immediately be returned to the Company and will not be retained by Executive or furnished to any person, either by sample, facsimile film, audio or video cassette, electronic data, verbal communication or any other means of communication. |
(b)Permitted Disclosure. This Agreement does not limit or interfere with Executive’s right to communicate and cooperate in good faith with any self-regulatory organization or U.S. federal, state, or local governmental or law enforcement branch, agency, commission, or entity (collectively, a “Government Entity”) for the purpose of (i) reporting a possible violation of any U.S. federal, state, or local law or regulation, (ii) participating in any |
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investigation or proceeding that may be conducted or managed by any Government Entity, including by providing documents or other information, or (iii) filing a charge or complaint with a Government Entity; provided, that, in each case, such communications, participation, and disclosures are consistent with applicable law; provided, further, that, Executive may not receive any relief (including, but not limited to, reinstatement, back pay, front pay, damages, attorneys’ or experts’ fees, costs, and/or disbursements) as a consequence of any charge or complaint filed with a Government Entity and/or any litigation arising out of a charge or complaint filed with a Government Entity except as provided in any indemnity agreement between the Company and the Executive. Additionally, Executive shall not be held criminally or civilly liable under the Defend Trade Secrets Act, 18 U.S.C. § 1833(b), or any applicable federal or state trade secret law, for the disclosure of a trade secret that is made (A) in confidence to a federal, state, or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or (B) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. All disclosures permitted under this Section 11(b) are herein referred to as “Permitted Disclosures.” Notwithstanding the foregoing, under no circumstance will Executive be authorized to disclose any Confidential and Proprietary Information as to which the Company may assert protections from disclosure under the attorney-client privilege or the attorney work product doctrine, without prior written consent of Company’s designated legal counsel or an authorized officer designated by the Company. |
(c) Work Product. Executive agrees that any and all developments, improvements, inventions, discoveries, creations, formulae, algorithms, processes, systems, interfaces, protocols, concepts, programs, products, risk management tools, methods, designs, and works of authorship, and any and all documents, information (including Confidential and Proprietary Information), or things relating thereto, whether patentable or not, within the scope of or pertinent to any business, research, or development in which the Company or any of its affiliates is engaged or (if such is known to or ascertainable by Executive) considering engaging, which Executive may conceive, make, author, create, invent, develop, or reduce to practice, in whole or in part, during Executive’s employment with the Company or any of its affiliates, whether alone or working with others, whether during or outside of normal working hours, whether inside or outside of the offices of the Company or any of its affiliates, and whether with or without the use of the computers, systems, materials, equipment, or other property of the Company or any of its affiliates, shall be and remain the sole and exclusive property of the Company or any of its affiliates (the foregoing, individually and collectively, “Work Product”). To the maximum extent allowable by law, any Work Product subject to copyright protection shall be considered “works made for hire” for the Company or any of its affiliates under U.S. copyright law. To the extent that any Work Product that is subject to copyright protection is not considered a work made for hire, or to the extent that Executive otherwise has or retains any ownership or other rights in any Work Product (or any intellectual property rights therein) anywhere in the world, Executive hereby assigns and transfers to the Company or any of its affiliates all such rights, including the intellectual property rights therein, effective automatically as and when such Work Product is conceived, made, authored, created, invented, developed, or reduced to practice. The Company or its affiliates shall have the full worldwide right to use, assign, license, and/or transfer all rights in, with, to, or relating to Work Product (and all intellectual property rights therein). Executive shall, whenever requested to do so by the Company (whether during Executive’s employment or thereafter), execute any and all applications, assignments, and/or other instruments, and do all other things (including cooperating in any matter or giving testimony in any legal proceeding) |
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which the Company may deem necessary or appropriate in order to (A) apply for, obtain, maintain, enforce, or defend patent, trademark, copyright, or similar registrations of the United States or any other country for any Work Product; (B) assign, transfer, convey, or otherwise make available to the Company or any of its affiliates any right, title, or interest which Executive might otherwise have in any Work Product; and/or (C) confirm the Company’s or any of its affiliate’s right, title, and interest in any Work Product. Executive shall promptly communicate and disclose all Work Product to the Company and, upon request, report upon and deliver all such Work Product to the Company or its affiliates. Executive shall not use or permit any Work Product to be used for any purpose other than on behalf of the Company or its affiliates, whether during Executive’s employment or thereafter. |
(d)Non-Solicitation. Executive agrees that during the Non-Solicitation Restricted Period (defined below), Executive will not, without written consent of the Company, directly or indirectly, Solicit (as defined below), recruit, induce or encourage to leave employment or association with the Company or its affiliates, or to become employed by, become associated with or consult for, any Person other than the Company or its affiliates, or to hire, attempt to hire, employ or engage (whether as an employee, consultant, agent, independent contractor or otherwise), any Person who or which is or was employed or engaged by the Company or its affiliates at any time during the Non-Solicitation Restricted Period or the one (1) year period preceding the Non-Solicitation Restricted Period, or directly or indirectly, Solicit or accept business from, any Person who is a customer, client or supplier of the Company or its affiliates, with whom Executive has had, or employees reporting to Executive have had, personal contact or dealings on behalf of the Company during the one (1)-year period preceding the Non-Solicitation Restricted Period, or induce or encourage any such Person to cease to engage the services of the Company or its affiliates in order to use the services of any Person that competes with a business of the Company or its affiliates. “Non-Solicitation Restricted Period” means the period beginning on the Effective Date and ending on the one (1)-year anniversary of the date on which Executive’s employment is terminated. “Person” means an individual, a partnership, a corporation, an association, a limited liability company, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof. “Solicit” shall mean making any direct or indirect communication of any kind, regardless of who initiates it, or engaging in any conduct, that in any way invites, advises, encourages, or requests any Person to take or refrain from taking any action. |
(e)Non-Competition. Executive agrees that during the Non-Competition Restricted Period (defined below), Executive will not, directly or indirectly, individually or on behalf of any Person, whether for compensation or otherwise, engage in Competing Business in any state of the United States of America in which the Company or any of its affiliates did business during Executive’s service, or any other jurisdiction in which the Company or any of its affiliates engages in business or derives a material portion of its revenues, or where the Company or any of its affiliates has plans to commence business activities. “Non-Competition Restricted Period” means the period beginning on the Effective Date and ending on the six (6)-month anniversary of the date on which Executive’s employment is terminated. “Competing Business” means any business engaged in by the Company or any of its affiliates on the date of Executive’s termination or any business activity in which the Company or any of its affiliates has substantive plans to engage as of the date of Executive’s termination. |
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(g)Tolling. In the event of any violation of the provisions of this Section 11, Executive acknowledges and agrees that the post-termination restrictions contained in this Section 11 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation. |
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time and scope limitations set forth in Section 11 are reasonable and are properly required for the protection of the Company and its affiliates, and in the event that a court of competent jurisdiction deems any territorial, time or scope limitation in this Agreement to be unreasonable, the Company and Executive agree, and Executive submits, to the reduction of any or all of said territorial, time or scope limitations to such an area, period or scope as said court shall deem reasonable under the circumstances. |
14. | [Intentionally Left Blank] |
15. | Miscellaneous. |
(a)Any notice provided for in this Agreement (“Notice(s)”) shall be in writing and either (i) personally delivered, (ii) sent by a nationally recognized overnight courier delivery service, (iii) mailed by United States registered or certified mail, return receipt requested, postage prepaid, deposited in a United States post office or a depository for the receipt of mail regularly maintained by the post office, (iv) sent via telefax transmission or (v) sent via electronic mail. If personally delivered, then Notices shall be effective when received as evidenced by affidavit of the person or entity making such delivery; if sent by overnight courier delivery service then Notices shall be deemed to have been received by the addressee on the next business day following the date so sent; if mailed, then Notices or other communication shall be deemed to have been received by the addressee on the date received as evidenced by the return receipt; if sent via telefax transmission, then Notices shall be deemed to have been received when received by the addressee with the burden of proving receipt to be borne by the sender; and if sent via electronic mail, then Notices shall be deemed to have been received when received by the addressee with the burden of proving receipt to be borne by the sender. The inability to make delivery because of changed address of which no notice was given or by reason of rejection or refusal to accept delivery of any Notice shall be deemed to be receipt of the Notice as of the date of such inability to deliver or rejection or refusal to accept. |
The addresses of the parties for Notices hereunder shall be as follows:
If to the Company:
CBL & Associates Management, Inc
CBL & Associates Properties, Inc.
2030 Hamilton Place Boulevard
Suite 500, CBL Center
Chattanooga, TN 37421
Attn: HR Department
Email: HR.Department@cblproperties.com
If to Executive:
Ben Jaenicke
[PERSONAL CONTACT INFORMATION REDACTED PER REG. S-K ITEM 601(a)(6)]
Email: [PERSONAL CONTACT INFORMATION REDACTED PER REG. S-K ITEM 601(a)(6)]
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A party may change its/hers/his notice address at any time by providing written notice thereof to the other party. |
(b)This Agreement is personal to Executive and shall not be assigned by Executive. Any purported assignment by Executive shall be null and void from the initial date of the purported assignment. The Company may assign this Agreement to any successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company. This Agreement shall inure to the benefit of the Company and its successors and assigns. |
(c)This Agreement, the Initial Grant Stock Restriction Agreement and the Offer Letter as executed by the Company and Executive dated _______ (to the extent such Offer Letter contains terms that are not set forth in this Agreement) contain the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all other agreements, term sheets, offer letters, and drafts thereof, oral or written, between the parties hereto with respect to the subject matter hereof. Notwithstanding the foregoing, this Agreement shall not supersede (i) any indemnification agreement between the Company and Executive through which Executive is provided an indemnity by the Company for claims or actions against Executive in Executive’s capacity as an executive officer of the Company; or (ii) any bonus or compensation arrangements implemented by the Company after the Effective Date. |
(d)No amendment, modification or waiver of this Agreement shall be valid unless the same shall be in writing and signed by all of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver, unless so provided in the waiver. |
(f)Notwithstanding anything to the contrary in this Agreement: |
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(i)The parties agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Section 409A”), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. In no event whatsoever will the Company, any of its affiliates, successors or assigns be liable for any additional tax, interest or penalties that may be imposed on Executive under Section 409A or any damages for failing to comply with Section 409A. |
(g)This Agreement will be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to any choice of law or conflict of law provision or rule. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (EACH PARTY HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT. |
(h)The Company shall have the right to withhold from any amount payable hereunder any Federal, state and local taxes in order for the Company to satisfy any withholding tax obligation it may have under any applicable law or regulation. |
(i)The covenants and obligations of the Company under Sections 7, 9 and 12, hereof, and the covenants and obligations of Executive under Sections 9, 10, 11, 12 and 13 hereof, shall continue and survive termination of Executive’s employment or any termination of this Agreement for the period of time specified in this Agreement or for the period of time until the expiration of the applicable statute of limitations if no expiration is specifically stated herein. |
(j)This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and together constitute one and the same instrument. To facilitate execution of this Agreement, the parties may exchange counterparts of the signature page by facsimile or electronic mail (e-mail), including, but not limited to, as an attachment in portable document format (PDF), which shall be effective as original signature pages for all purposes. |
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[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
| CBL & ASSOCIATES MANAGEMENT, INC. | |
| By: | /s/ Jeffery V. Curry |
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| By: Jeffery V. Curry |
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| Title: Chief Legal Officer |
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| EXECUTIVE | |
| /s/ Benjamin W. Jaenicke | |
| Name: Benjamin W. Jaenicke |
Exhibit 10.2
RELOCATION ALLOWANCE COMMITMENT
Effective Date: September 1, 2022
In consideration of the relocation assistance provided and to be provided to or on behalf of Benjamin W. Jaenicke (“Jaenicke”) by CBL & Associates Management, Inc. (the “Company”) in an amount not to exceed $100,0000 (the “Relocation Allowance”) upon Jaenicke’s acceptance of employment with the Company as the Executive Vice President – Finance effective as of September 1, 2022, Jaenicke agrees to repay to the Company in full the amount of the Relocation Allowance paid to Jaenicke by the Company or paid by the Company on behalf of Jaenicke in the event Jaenicke voluntarily resigns from employment with the Company within two (2) years of the Effective Date hereof (ie, on or before September 1, 2024).
By signing below, Jaenicke acknowledges that this Relocation Allowance Commitment may be deemed a contingent note payable by Jaenicke to the Company that may be offset against any compensation otherwise due to be paid to Jaenicke on or following his voluntary resignation as set forth above. By the Company’s execution below, the Company is agreeing to the terms of this Relocation Allowance Commitment, and the Company is agreeing that there will be -0- percent interest charged or accrued on any amounts that may be owed by Jaenicke hereunder. Any amounts of the Relocation Allowance that may be due to be paid by Jaenicke hereunder shall be based upon verified invoices or other evidences of payment or reimbursement by the Company. The Company likewise agrees that, notwithstanding any provision herein to the contrary, if Jaenicke’s employment is terminated (i) due to Jaenicke’s death or disability or (ii) voluntarily or involuntarily in the event of a merger, consolidation, sale of all or substantially all of the assets or “Change in Control”*6 of the Company and its affiliates, then, in any of such events, no amount of the Relocation Allowance will then be due and payable to the Company by Jaenicke or his estate or representatives.
In witness hereof, Jaenicke and the Company have executed this Relocation Allowance Commitment to be effective as of the Effective Date set forth hereinabove.
/s/ Ben Jaenicke
Ben Jaenicke
CBL & Associates Management, Inc.
By: | /s/ Jeffery V. Curry |
Name: | Jeffery V. Curry |
Title: | Chief Legal Officer |
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*1 “Change in Control” shall have the meaning set forth in the CBL & Associates Properties, Inc. 2021 Equity Incentive Plan. |
Exhibit 99.1
News Release
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Investor Contact: Katie Reinsmidt, Executive Vice President & Chief Investment Officer, 423.490.8301, Katie.Reinsmidt@cblproperties.com
Media Contact: Stacey Keating, Vice President– Corporate Communications, 423.490.8361, Stacey.Keating@cblproperties.com
CBL PROPERTIES ANNOUNCES CFO TRANSITION PLAN
Ben Jaenicke Joins CBL September 1, 2022; To Be Appointed CFO as of January 1, 2023
CHATTANOOGA, Tenn. (September 1, 2022) – CBL Properties (NYSE: CBL) today announced that Farzana Khaleel will step down as CBL’s executive vice president – chief financial officer as of December 31, 2022. CBL also announced that Ben Jaenicke will join the company as executive vice president – finance on September 1st and will begin serving as EVP – CFO as of January 1, 2023. To provide for a smooth transition, Ms. Khaleel will enter into a consulting arrangement with the company to provide advisory services through March 31, 2023, with one three-month extension available, at the company’s option.
“On behalf of myself, the management team, the board and the entire company, I want to express my deepest appreciation and gratitude to Farzana for her invaluable contributions and dedication to CBL,” said Stephen D. Lebovitz, chief executive officer. “During her more than twenty-year career with CBL, Farzana has worked tirelessly. She has played a leading role in helping to navigate the company through a number of challenges, including most recently, CBL’s reorganization. Farzana has been unwavering in her efforts to ensure that CBL is best positioned financially for a stable future and to generate ongoing success for our shareholders. She cares deeply about her team and the entire CBL organization and has always been one of CBL’s biggest advocates. Farzana is highly respected throughout the shopping center and real estate industry for her many accomplishments as CBL’s CFO. We are fortunate to have benefited from her guidance, insight and knowledge and are appreciative of her role in assisting with this upcoming transition.”
Lebovitz added, “Ben is a fantastic addition to the CBL organization. He has served as an advisor and partner to CBL for many years in his role in investment banking at Eastdil and Wells Fargo Securities. His extensive experience working on strategic transactions and financings across the REIT space, including many directly for CBL, as well as his accounting and finance background, will be invaluable as CBL moves forward with its strategic priorities and pursues future opportunities. We are thrilled to welcome such a talented professional to the executive team.”
Mr. Jaenicke joins CBL from Wells Fargo Securities (and predecessor firm Eastdil Secured) where he spent more than a decade in real estate investment banking. In this role, he worked closely with executives across the real estate industry on strategic and capital planning including advising clients on M&A transactions, recapitalizations, and capital markets executions. Prior to joining Wells Fargo/Eastdil, Mr. Jaenicke worked at PricewaterhouseCoopers where he performed audits and other accounting services for public REIT clients. Mr. Jaenicke holds a BS in Business and a Master of Accounting from Miami University and received his MBA from the University of Virginia Darden School of Business. He is a CFA charterholder and former Certified Public Accountant.
About CBL Properties
Headquartered in Chattanooga, TN, CBL Properties owns and manages a national portfolio of market-dominant properties located in dynamic and growing communities. CBL’s owned and managed portfolio is comprised of 95 properties totaling 59.6 million square feet across 24 states, including 57 high-quality enclosed malls, outlet centers and lifestyle retail centers as well as more than 30 open-air centers and other assets. CBL seeks to continuously strengthen its company and portfolio through active management, aggressive leasing and profitable reinvestment in its properties. For more information visit cblproperties.com.
Information included herein contains “forward-looking statements” within the meaning of the federal securities laws. Such statements are inherently subject to risks and uncertainties, many of which cannot be predicted with accuracy and some of which might not even be anticipated. Future events and actual events, financial and otherwise, may differ materially from the events and results discussed in the forward-looking statements. The reader is directed to the Company’s various filings with the Securities and Exchange Commission, including without limitation the Company’s Annual Report on Form 10-K, and the “Management's Discussion and Analysis of Financial Condition and Results of Operations” included therein, for a discussion of such risks and uncertainties.
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