REDEMPTION, REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This REDEMPTION, REGISTRATION RIGHTS AND LOCK-UP
AGREEMENT is made as of the 24th day of July, 1998 (this "AGREEMENT"), among
THE MACERICH COMPANY, a Maryland corporation (the "COMPANY"), The Macerich
Partnership, L.P., a Delaware limited partnership (the "PARTNERSHIP"), and
the investors set forth on the signature pages hereto (each an "INVESTOR" and
collectively the "INVESTORS").
W I T N E S S E T H:
WHEREAS, on the Closing Date (as defined below), each of
the Investors will hold units ("OP Units") representing a limited partnership
interest in the Partnership, which may be redeemed for shares of Common
Stock, $.01 par value per share, of the Company (the "COMMON STOCK") on the
terms and conditions set forth in the Agreement of Limited Partnership (the
"PARTNERSHIP AGREEMENT") of the Partnership;
WHEREAS, the Company has agreed to provide Investors with
certain redemption and registration rights as set forth herein;
WHEREAS, the Investors have agreed to the Lock-Up
provision set forth herein; and
NOW, THEREFORE, in consideration of the mutual covenants
and undertakings contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and subject to and on the terms and conditions herein set forth, the parties
hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 "BUSINESS DAY" means any day on which the New York
Stock Exchange is open for trading.
1.2 "CLOSING DATE" means the date hereof.
1.3 "ELIGIBLE SECURITIES" means all or any portion of
any shares of Common Stock acquired by Investors upon redemption of OP Units
held by Investors on the Closing Date, PROVIDED, HOWEVER, that if upon any
redemption of OP Units the Company issues to any Investor Common Stock where
its issuance was registered under the Securities Act ("Unrestricted Common
Stock"), such shares of Unrestricted Common Stock shall not be deemed Eligible
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Securities for purposes of this Agreement and the Investor will have no
registration rights, and the Company will be relieved of all of its
obligations hereunder, with respect to those shares of Unrestricted Common
Stock.
As to any proposed offer or sale of Eligible Securities,
such securities shall cease to be Eligible Securities with respect to such
proposed offer or sale when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement or (ii) such securities are permitted to be
distributed pursuant to Rule 144(k) (or any successor provision to such Rule)
under the Securities Act or (iii) such securities shall have been otherwise
transferred pursuant to an applicable exemption under the Securities Act, new
certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company and such securities shall
be freely transferable to the public without registration under the
Securities Act.
1.4 "PERMITTED TRANSFEREES" with respect to each
Investor shall mean any Affiliates (as defined in the Partnership Agreement)
of such Investor.
1.5 "PERSON" means an individual, a partnership (general
or limited), corporation, joint venture, business trust, cooperative,
association or other form of business organization, whether or not regarded
as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
1.6 "REGISTRATION EXPENSES" means all expenses incident
to the Company's performance of or compliance with the registration
requirements set forth in this Agreement including, without limitation, the
following: (i) the fees, disbursements and expenses of the Company's
counsel(s) (United States and foreign), accountants and experts in connection
with the registration of Eligible Securities to be disposed of under the
Securities Act; (ii) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus
or final prospectus, any other offering document and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
underwriters and dealers; (iii) the cost of printing or producing any
agreement(s) among underwriters, underwriting agreement(s) and blue sky or
legal investment memoranda, any selling agreements and any other documents in
connection with the offering, sale or delivery of Eligible Securities to be
disposed of; (iv) all expenses in connection with the qualification of
Eligible Securities to be disposed of for offering and sale under state
securities laws, including the fees and disbursements of counsel for the
underwriters in connection with such qualification and in connection with any
blue sky and legal investment surveys; (v) the filing fees incident to
securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of Eligible Securities to be disposed
of; and (vi) fees and expenses incurred in connection with the listing of
Eligible Securities on each securities exchange on which securities of the
same class are then listed; PROVIDED, however, that Registration Expenses
with respect to any registration pursuant to this Agreement shall not include
underwriting discounts or commissions attributable to Eligible Securities,
transfer taxes applicable to Eligible Securities or fees, disbursements and
expenses of Investor's counsel, accountants and experts.
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1.7 "SEC" means the Securities and Exchange Commission.
1.8 "SECURITIES ACT" shall mean the Securities Act of
1933, as amended, and the rules and regulations of the SEC thereunder, all as
the same shall be in effect at the relevant time.
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1 EFFECTIVENESS OF REGISTRATION RIGHTS. This
Agreement shall become effective immediately, provided, however, that the
exercise by any Investor of any registration rights granted pursuant to
Article 3 hereof prior to the first anniversary of the Closing Date shall be
subject to such Investor first having received written consent from the
Company.
ARTICLE III
REDEMPTION, REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
3.1 REDEMPTION RIGHTS. The Investor, upon admission as
a limited partner of the Partnership, will be granted rights to redeem OP
Units on the terms and conditions set forth in the Partnership Agreement,
provided that notwithstanding anything set forth in the Partnership
Agreement, the Investor may not: (i) exercise such rights with respect to all
or any portion of the OP Units prior to that date which is six months prior
to the Closing, (ii) deliver more than two separate redemption notices per
calendar year, and (iii) redeem less than 5,000 OP Units (or, if the Investor
holds less than 5,000 OP Units, all of the OP Units held by the Investor) in
a single redemption.
3.2 NOTICE AND REGISTRATION. If the Company proposes to
register any shares of Common Stock or other securities issued by it having
terms substantially similar to Eligible Securities ("Other Securities") for
public sale under the Securities Act (whether proposed to be offered for sale
by the Company or by any other Person) on a form and in a manner which would
permit registration of Eligible Securities for sale to the public under the
Securities Act, it will give prompt written notice to each Investor of its
intention to do so, and upon the written request of any of the Investors
delivered to the Company within fifteen (15) Business Days after the giving
of any such notice (which request shall specify the number of Eligible
Securities intended to be disposed of by such Investor and the intended
method of disposition thereof) the Company will use all reasonable efforts to
effect, in connection with the registration of the Other Securities, the
registration under the Securities Act of all Eligible Securities which the
Company has been so requested to register by the Investor or Investors, to
the extent required to permit the disposition (in accordance with the
intended method or methods thereof as aforesaid) of Eligible Securities so to
be registered provided that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the
effective date of the registration statement filed in
connection with such registration, the Company shall
determine for any reason not to register the Other
Securities, the Company may, at its election, give
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written notice of such determination to the Investor or
Investors seeking registration hereunder (hereafter referred
to as the "SELLING INVESTORS") and thereupon the Company
shall be relieved of its obligation to register such
Eligible Securities in connection with the registration of
such Other Securities (but not from its obligation to
pay Registration Expenses to the extent incurred in
connection therewith as provided in Section 3.2);
(b) The Company will not be required to effect any
registration pursuant to this Article 3 if the Company shall
have been advised in writing (with a copy to Investor) by a
nationally recognized independent investment banking firm
selected by the Company to act as lead underwriter in
connection with the public offering of securities by the
Company, that in such firm's opinion, a registration of the
Eligible Securities which the Company has been requested to
register by Investor at that time would materially and
adversely affect the Company's own scheduled offering; and
(c) The Company shall not be required to effect any
registration of Eligible Securities under this Article 3
incidental to the registration of any of its securities in
connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock
options or other employee benefit plans.
3.3 REGISTRATION EXPENSES. The Company (as between the
Company and the Selling Investors) shall be responsible for the payment of
all Registration Expenses in connection with any registration pursuant to
this Article 3.
3.4 LOCK-UP AGREEMENT. The Investor agrees, that, prior
to that date which is one year following the Closing Date, it will not
directly or indirectly, offer, sell, contract to sell, grant any option to
purchase, make any short sale, transfer, pledge, cause a registration of, or
otherwise dispose of or make a distribution of any of the shares of Common
Stock acquired by the redemption of all or any portion of its OP Units,
without the prior written consent of the Company.
ARTICLE IV
REGISTRATION PROCEDURES
4.1 REGISTRATION AND QUALIFICATION. If and whenever the
Company is required to use all reasonable efforts to effect the registration
of any Eligible Securities under the Securities Act as provided in Article 3,
the Company will as promptly as is practicable:
(a) prepare, file and use all reasonable efforts to cause
to become effective a registration statement under the
Securities Act regarding the Eligible Securities to be
offered;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the
prospectus used in connection therewith as may be necessary
to keep such registration statement effective and to comply
with the
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provisions of the Securities Act with respect to the
disposition of all Eligible Securities until the earlier of
such time as all of such Eligible Securities have been
disposed of in accordance with the intended methods of
disposition by the Selling Investors set forth in
such registration statement or the expiration of twelve (12)
months after such registration statement becomes effective;
(c) furnish to each Selling Investor and to any underwriter
of such Eligible Securities such number of conformed copies
of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including
each preliminary prospectus and any summary prospectus), in conformity
with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or
prospectus, and such other documents as such Selling Investor or such
underwriter may reasonably request;
(d) use all reasonable efforts to register or qualify all Eligible
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the Selling
Investors or any underwriter of such Eligible Securities shall
reasonably request, and do any and all other acts and things which may
be reasonably requested by the Selling Investors or any underwriter to
consummate the disposition in such jurisdictions of the Eligible
Securities covered by such registration statement, except the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is
not so qualified, or to subject itself to taxation in any jurisdiction
where it is not then subject to taxation, or to consent to general
service of process in any jurisdiction where it is not then subject to
service of process;
(e) use all reasonable efforts to list the Eligible Securities on
each national securities exchange on which the Common Stock is then
listed, if the listing of such securities is then permitted under the
rules of such exchange; and
(f) immediately notify the Selling Investors at any time when a
prospectus relating to a registration pursuant to Article 3 hereof is
required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and at the request of any Selling Investor prepare and
furnish to such Investor as many copies of a supplement to or an
amendment of such prospectus as the Selling Investor may request so
that, as thereafter delivered to the purchasers of such Eligible
Securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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The Company may require the Investors to furnish the Company such information
regarding the Investors and the distribution of such securities as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the SEC in connection with any registration. The
Company may also impose such restrictions and limitations on the distribution
of such Eligible Securities as the Company reasonably believes are necessary
or advisable to comply with applicable law or to effect an orderly
distribution, including those restrictions set forth in Section 4.3 hereof.
4.2 UNDERWRITING. (a) In the event that any
registration pursuant to Article 3 hereof shall involve, in whole or in part,
an underwritten offering, the Company may require Eligible Securities
requested to be registered pursuant to Article 3 to be included in such
underwriting on the same terms and conditions as shall be applicable to the
Other Securities being sold through underwriters under such registration.
(b) If requested by the underwriters for any
underwritten offering of Eligible Securities pursuant to a registration
requested hereunder, the Company will enter into and perform its obligations
under an underwriting agreement with such underwriters for such offering,
such agreement to contain such representations and warranties by the Company
and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the
extent provided in Article 6 hereof. Each Selling Investor shall be a party
to any such underwriting agreement and the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of each such
Selling Investor. Such agreement shall also contain such representations and
warranties by each such Selling Investor and such other terms and provisions
as are customarily contained in underwriting agreements with respect to
secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Article 6.
4.3 BLACKOUT PERIODS. At any time when a registration
statement effected pursuant to Article 3 relating to Eligible Securities is
effective, upon written notice from the Company to an Investor that the
Company has determined in good faith, with the advice of counsel, that such
Investor's sale of Eligible Securities pursuant to the registration statement
would require disclosure of non-public material information the disclosure of
which would have a material adverse effect on the Company or would otherwise
adversely effect a material financing, acquisition, disposition, merger or
other comparable transaction (a "Blackout"), such Investor shall suspend
sales of Eligible Securities pursuant to such registration statement until
the earlier of:
(a) the date upon which such material information
is disclosed to the public or ceases to be material, or
(b) such time as the Company notifies such Investor
that sales pursuant to such registration statement may be resumed.
4.4 QUALIFICATION FOR RULE 144 SALES. The Company will
take all actions reasonably necessary to comply with the filing requirements
described in Rule 144(c)(1) so as to
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enable the Investors to sell Eligible Securities without registration under
the Securities Act and, upon the written request of any Investor, the Company
will deliver to such Investor a written statement as to whether it has
complied with such filing requirements.
ARTICLE V
PREPARATION; REASONABLE INVESTIGATION
5.1 PREPARATION; REASONABLE INVESTIGATION. In
connection with the preparation and filing of each registration statement
registering Eligible Securities under the Securities Act, the Company will
give each Selling Investor and the underwriters, if any, and their respective
counsel and accountants, drafts of such registration statement for their
review and comment prior to filing and such reasonable and customary access
to its books and records and such opportunities to discuss the business of
the Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of
the Selling Investors and such underwriters or their respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
6.1 INDEMNIFICATION AND CONTRIBUTION. (a) In the event
of any registration of Eligible Securities hereunder, the Company will enter
into customary indemnification arrangements to indemnify and hold harmless
each Selling Investor, and each Person who participates as an underwriter in
the offering or sale of such securities, and each Person, if any, who
controls such underwriter within the meaning of the Securities Act against
any losses, claims, damages, liabilities and expenses, joint or several, to
which such Person may be subject under the Securities Act or otherwise
insofar as such losses, claims, damages, liabilities or expenses (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such securities were registered
under the Securities Act, any preliminary prospectus or final prospectus
included therein, or any amendment or supplement thereto, or any document
incorporated by reference therein, or (ii) any omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Company will promptly
reimburse each such Person for any legal or any other expenses reasonably
incurred by such Person in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; PROVIDED that the
Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement, any such preliminary prospectus or final prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Investor expressly for use in the
registration statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Selling Investor
or any such
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Person and shall survive the transfer of such securities by such Selling
Investor. The Company also shall agree to provide provision for contribution
as shall be reasonably requested by the Selling Investors or any underwriters
in circumstances where such indemnity is held unenforceable.
(b) Each Selling Investor, by virtue of exercising its
registration rights hereunder, agrees and undertakes to enter into customary
indemnification arrangements to indemnify and hold harmless (in the same
manner and to the same extent as set forth in clause (a) of this Article 6)
the Company, each director of the Company, each officer of the Company who
shall sign such registration statement, each Person who participates as an
underwriter in the offering or sale of such securities and each Person, if
any, who controls the Company or any such underwriter within the meaning of
the Securities Act, with respect to any statement in or omission from such
registration statement, any preliminary prospectus or final prospectus
included therein, or any amendment or supplement thereto, but only to the
extent that such statement or omission was made in reliance upon and in
conformity with written information furnished by such Investor to the Company
expressly for use in the registration statement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf
of the Company or any such director, officer or controlling Person and shall
survive the transfer of the registered securities by the Investor and the
expiration of this Agreement. Each Investor also shall agree to provide
provision for contribution as shall be reasonably requested by the Company or
any underwriters in circumstances where such indemnity is held unenforceable.
(c) Indemnification and contribution similar to that
specified in the preceding subdivisions of this Article 6 (with appropriate
modifications) shall be given by the Company and each Selling Investor with
respect to any required registration or other qualification of Eligible
Securities under any federal or state law or regulation of governmental
authority other than the Securities Act.
ARTICLE VII
TRANSFER OF REGISTRATION RIGHTS
7.1 TRANSFER OF REGISTRATION RIGHTS. The Investors may
NOT transfer the registration rights granted hereunder to any other Person.
ARTICLE VIII
MISCELLANEOUS
8.1 CAPTIONS. The captions or headings in this
Agreement are for convenience and reference only, and in no way define,
describe, extend or limit the scope or intent of this Agreement.
8.2 SEVERABILITY. If any clause, provision or section
of this Agreement shall be invalid or unenforceable, the invalidity or
unenforceability of such clause, provision or section
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shall not affect the enforceability or validity of any of the remaining
clauses, provisions or sections hereof to the extent permitted by applicable
law.
8.3 GOVERNING LAW. This Agreement shall be construed
and enforced in accordance with the internal laws of the State of California,
without reference to its rules as to conflicts or choice of laws.
8.4 MODIFICATION AND AMENDMENT. This Agreement may not
be changed, modified, discharged or amended, except by an instrument signed
by all of the parties hereto.
8.5 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
8.6 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement and understanding among the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
8.7 NOTICES. All notices, requests, demands, consents
and other communications required or permitted to be given pursuant to this
Agreement shall be in writing and delivered by hand, by overnight courier
delivery service or by certified mail, return receipt requested, postage
prepaid. Notices to Investors shall be made to the address listed on the
stock transfer records of the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be executed as of the day and year
first above written.
THE MACERICH COMPANY
By:
---------------------------------
Name: Richard A. Bayer
Title: Secretary and General Counsel
THE MACERICH PARTNERSHIP, L.P.
By: The Macerich Company,
its General Partner
By:
----------------------------
Name: Richard A. Bayer
Title: Secretary and General Counsel
THE "INVESTORS"
-------------------------------
Harry S. Newman, Jr.
-------------------------------
LeRoy H. Brettin
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