As filed with the Securities and Exchange Commission on December 31, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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The Macerich Company
(Exact name of registrant as specified in its charter)
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Maryland 95-4448705
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
401 Wilshire Boulevard, Suite 700
Santa Monica, California 90401
(310) 394-6000
(Address of principal executive offices)
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The Macerich Property Management Company Profit Sharing Plan
(Full title of the plan)
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Richard A. Bayer
General Counsel and Secretary
The Macerich Company
401 Wilshire Boulevard, Suite 700
Santa Monica, California 90401
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(310) 394-6000
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CALCULATION OF REGISTRATION FEE
============================================================================
Proposed Proposed
Maximum maximum
Title of Amount offering aggregate Amount of
Securities to be price offering registration
to be registered registered per unit price fee
- ----------------------------------------------------------------------------
Common Stock, $150,000<1><2> $25.5625<3> $3,834,375<3> $1,066<3>
par value $0.01
per share
Interests in the Plan -- -- -- --
============================================================================
<FN>
<1> This Registration Statement covers, in addition to the
number of shares of Common Stock stated above, other rights
to purchase or acquire the shares of Common Stock covered by
the Prospectus and, pursuant to Rule 416(c) under the
Securities Act of 1933, an indeterminate number of shares of
Common Stock, rights, and interests in The Macerich Property
Management Company Profit Sharing Plan (the "Plan") which by
reason of certain events specified in the Plan may be
offered or sold pursuant to the Plan.
<2> Each share is accompanied by a Preferred Share Purchase
Right pursuant to the registrant's Agreement, dated November
10, 1998, with First Chicago Trust Company of New York (as
rights agent).
<3> Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low prices
of the Common Stock on December 24, 1998, as reported on the
New York Stock Exchange and published in the Western Edition
of The Wall Street Journal.
The Exhibit Index for this Registration Statement is at page
S-4.
</FN>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant information)
will be sent or given to employees as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents need not be filed with the
Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents, which include the statement of
availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement
pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of The Macerich Company (the
"Company") filed with the Commission are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997;
(b) The Company's Quarterly Reports on Forms 10-Q for the
quarterly periods ended March 31, 1998, June 30, 1998,
and September 30, 1998;
(c) The Company's Current Reports on Forms 8-K for event
dates February 25, 1998; February 27, 1998 (as amended
by a Form 8-K/A filed April 23, 1998); June 17, 1998;
July 1, 1998 (as amended by Forms 8-K/A filed August
21, 1998 and September 11, 1998); July 24, 1998 (as
amended by a Form 8-K/A filed November 10, 1998);
November 10, 1998 (as amended by a Form 8-K/A filed
December 8, 1998); and December 15, 1998;
(d) The description of the Company's Common Stock
contained in its Registration Statement on Form 8-A,
dated March 9,1994, and any amendment or report filed
for the purpose of updating such description; and
(e) The description of the Company's Preferred Share
Purchase Rights contained in its Registration
Statement on Form 8-A, dated November 13, 1998, and
any amendment or report filed for the purpose of
updating such description;
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to
the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference into the prospectus and to be a
part hereof from the date of filing of such documents. Any
statement contained herein or in a document, all or a portion of
which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed,
except as so modified or amended, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
The Company's Common Stock and Preferred Share
Purchase Rights are registered pursuant to Section 12 of the
Exchange Act. Therefore, the description of securities is
omitted.
Item 5. Interests of Named Experts and Counsel
Item 6. Indemnification of Directors and Officers
The Maryland General Corporations Law ("MGCL") permits
a corporation formed in Maryland to include in its charter a
provision limiting the liability of its directors
and officers to the corporation and its stockholders for money
damages except for liability resulting from (i) active and deliberate
dishonesty established by a final judgment as being material to that
cause of action or (ii) actual receipt of an improper benefit or
profit in money, property or services. The Company's charter
(the "Charter") has incorporated such a provision which limits
such liability to the fullest extent permitted by the MGCL.
The Charter requires the Company to indemnify its
present and former officers and directors, whether serving the
Company or at its request another entity, and to pay or
reimburse reasonable expenses in advance of the final
disposition of the proceeding to the maximum extent permitted
from time to time by the laws of Maryland. The Charter provides
that the indemnification rights are non-exclusive of any other rights
to which those seeking indemnification may be entitled. The MGCL
permits a corporation to indemnify its present and former directors
and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party
by reason of their service in those or other capacities unless
it is established that: (i) the act or omission of the director
or officer was material to the matter giving rise to the
proceeding and (a) was committed in bad faith or (b) was the
result of active and deliberate dishonesty, (ii) the director or
officer actually received an improper personal benefit, or (iii)
in the case of any criminal proceeding, the director or officer
had reasonable cause to believe that the act or omission was
unlawful. In addition, the MGCL requires the Company, as
conditions to advancing expenses, to obtain (a) a written
affirmation by the director or officer of his good faith belief
that he has met the standard of conduct necessary for
indemnification by the Company and (b) a written undertaking by
him or on his behalf to repay the amount paid or reimbursed by
the Company if it shall ultimately be determined that the
standard of conduct was not met. The MGCL requires a
corporation (unless its charter provides otherwise, which the
Company's Charter does not) to indemnify a director or officer
who has been successful, on the merits or otherwise, in the
defense of any proceeding to which he is made a party by reason
of his service in that capacity. However, under the MGCL, a
Maryland corporation may not indemnify for an adverse judgment
in a suit by or in the right of the corporation or for a judgment
of liability on the basis that a personal benefit was improperly
received unless, in either case, a court orders indemnification and
then only for expenses. The Company's bylaws (the "Bylaws") specify
the procedures for indemnification and advance of expenses.
The Partnership Agreement of the Company's operating
partnership, The Macerich Partnership, L.P., a Delaware limited
partnership (the "Operating Partnership"), also provides for
indemnification of the Company and its officers and directors
similar to that provided to officers and directors of the
Company in the Charter, and includes limitations on the
liability of the Company and its officers and directors to the
Operating Partnership and its partners similar to those contain
in the Charter.
The Company and the Operating Partnership have entered
into indemnification agreements with certain of the Company's
executive officers and directors. The indemnification
agreements require, among other things, that the Company and the
Operating Partnership indemnify the Company's officers and
directors to the fullest extent permitted by law, and advance to
the officers and directors all related reasonable expenses,
subject to certain defenses. The Company and the Operating
Partnership must also indemnify and advance all expenses
incurred by officers and directors seeking to enforce their
rights under the indemnification agreements, and cover officers
and directors under the Company's directors' and officers'
liability insurance. Although this form of indemnification
agreement offers substantially the same scope of coverage
afforded by provisions in the Charter and the Bylaws of the
Company and the Partnership Agreement of the Operating
Partnership, it provides greater assurance to directors and
officers that indemnification will be available, because, as a
contract, it cannot be modified unilaterally in the future by
the Board of Directors, by the stockholders or by the partners
of the Operating Partnership to eliminate the rights it
provides.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See the attached Exhibit Index on page S-4.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date
of this Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in this
Registration Statement or any material change to
such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant
with or furnished to the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions described in Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Santa Monica, State of California, on December 30,
1998.
By: /s/ Arthur M. Coppola
---------------------------
Arthur M. Coppola
Its: President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints Arthur M. Coppola, Thomas E. O'Hern, and Richard E.
Bayer, or any one of them individually, his true and lawful
attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, or any one of them individually,
full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any one of them
individually, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Mace Siegel Chairman of the Board December 30, 1998
- --------------- of Directors
Mace Siegel
/s/ Dana K. Anderson Vice Chairman of the Board December 30, 1998
- -------------------- of Directors
Dana K. Anderson
/s/ Arthur M. Coppola Director, President and Chief December 30, 1998
- --------------------- Executive Officer (Principal
Arthur M. Coppola Executive Officer)
/s/ Edward C. Coppola Director, Executive Vice President December 30, 1998
- ---------------------
Edward C. Coppola
/s/ James S. Cownie Director December 30, 1998
- -------------------
James S. Cownie
/s/ Theodore S. Hochstim Director December 30, 1998
- ------------------------
Theodore S. Hochstim
/s/ Fred S. Hubbell Director December 30, 1998
- -------------------
Fred S. Hubbell
/s/ Stanley A. Moore Director December 22, 1998
- --------------------
Stanley A. Moore
/s/ William P. Sexton Director December 28, 1998
- ---------------------
William P. Sexton
/s/ Thomas E. O'Hern Senior Vice President, Chief December 30, 1998
- -------------------- Financial Officer and Treasurer
Thomas E. O'Hern (Principal Financial Officer
The Plan. Pursuant to the requirements of the Securities
Act, the Plan has caused this Registration Statement on Form S-8
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Monica, State of California, on
December 30, 1998.
The Macerich Property Management
Trust Company Profit Sharing Plan
By: /s/ Richard A. Bayer
----------------------------
Richard A. Bayer
Trustee
By: /s/ Arthur M. Coppola
----------------------------
Arthur M. Coppola
Trustee
By: /s/ Thomas E. O'Hern
----------------------------
Thomas E. O'Hern
Trustee
EXHIBIT INDEX
Exhibit
Number Description
- -------- -----------
4.1 The Macerich Property Management Company Profit
Sharing Plan (Amended and Restated Effective as of
February 1, 1999).
4.2 The Macerich Property Management Company Profit
Sharing Plan Trust Agreement.
5.1 Opinion of O'Melveny & Myers LLP (ERISA opinion).
5.2 Opinion of Ballard Spahr Andrews & Ingersoll, LLP
(opinion re legality).
23.1 Consent of PricewaterhouseCoopers LLP (consent of
independent accountants).
23.2 Consent of KPMG Peat Marwick LLP (consent of
independent accountants).
23.3 Consent of Deloitte & Touche LLP (consent of
independent accountants).
23.4 Consent of Ballard Spahr Andrews & Ingersoll, LLP
(included in Exhibit 5.2).
23.5 Consent of O'Melveny & Myers LLP (included in Exhibit
5.1).
24. Power of Attorney (included in this Registration
Statement under "Signatures").