Exhibit 10.2


 


REGISTRATION RIGHTS AGREEMENT


 


This
Registration Rights Agreement (this “Agreement”) is made and
entered into as of September 3, 2009 by and between The Macerich Company,
a Maryland corporation (the “Company”), and [                           ] (the “Investor”).


 


RECITALS


 


WHEREAS, pursuant to
the terms of that certain Agreement to Invest in Limited Liability Company,
dated as of August 12, 2009 (the “Purchase Agreement”), Investor
and/or its Affiliate(s) are making an investment in Flatiron Property
Holding, L.L.C., an Arizona limited liability company (the “LLC”), and
in connection therewith are concurrently herewith entering into the Amended and
Restated Limited Liability Company Operating Agreement of Flatiron Property
Holding, L.L.C. (the “Operating Agreement”) of the LLC, dated as of September 3,
2009, with an Affiliate of the Company;


 


WHEREAS, in
consideration of the Investor entering into the Purchase Agreement and the
Operating Agreement and consummating the transactions contemplated thereby, the
Company has agreed to issue warrants to purchase common stock of the Company
(the “Warrants”);


 


WHEREAS, the Warrants
are being issued without registration under the Securities Act of 1933, as
amended (the “Securities Act”), and the Warrants will be exercisable for
unregistered shares of common stock of the Company (the “Common Shares”);
and


 


WHEREAS, in connection
with the Investor entering into the Purchase Agreement and Operating Agreement
and consummating the transactions contemplated thereby, the Company has agreed
to grant certain registration rights to the Investor with respect to the Common
Shares.


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual promises and
covenants of the parties set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:


 


Section 1.              Additional
Definitions.  In this
Agreement the following terms shall have the following respective meanings:


 


“Affiliate” of any
Person shall mean a Person that directly or indirectly, including through one
or more intermediaries, controls, is controlled by, or is under common control
with, the first-mentioned Person.


 


“Commission” shall
mean the U.S. Securities and Exchange Commission or any other federal agency at
the time administering the Securities Act.


 


“Company” shall have
the meaning set forth in the recitals to this Agreement, and shall be deemed to
refer to all successors, including by operation of law.


 


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“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the relevant time.


 


“Person” shall mean an
individual, corporation, partnership, limited liability company, estate, trust,
association, private foundation, joint stock company or other entity.


 


The terms “Register,”
“Registered” and “Registration” refer to a registration effected
by preparing and filing a Registration Statement in compliance with the
Securities Act providing for the issuance to, or the sale by, the Investor of
Registrable Shares in accordance with the method or methods of distribution
reasonably designated by the Investor, and the declaration or ordering of the
effectiveness of such Registration Statement by the Commission.


 


“Registrable Shares”
shall mean the Common Shares, including any Common Shares issued in redemption
or exchange for, or in replacement of such Common Shares.


 


“Registration Expenses”
shall mean all out-of-pocket expenses (excluding Selling Expenses) incurred by
the Company in connection with any attempted or completed registration pursuant
to this Agreement, including the following: (a) registration, filing and listing
fees; (b) fees and expenses of compliance with federal and state
securities laws; (c) printing, shipping and delivery expenses; (d) fees
and disbursements of counsel for the Company; (e) fees and disbursements
of all independent public accountants of the Company; (f) fees and
expenses of listing of the Registrable Shares on each securities exchange on
which securities of the same class or series are then listed; and (g) fees
and expenses associated with any filing with the Financial Industry Regulatory
Authority required to be made in connection with the Registration Statement.


 


“Registration Statement”
shall mean a Shelf Registration Statement or an Automatic Shelf, and all
amendments and supplements to any such Registration Statement, including post-effective
amendments, in each case including the prospectus contained therein or related
thereto, all exhibits thereto and all materials and documents incorporated by
reference therein.


 


“Rule 144” shall
mean Rule 144 promulgated by the Commission under the Securities Act, or
any successor rule or regulation.


 


“Selling Expenses”
shall mean all underwriting discounts, selling commissions and stock transfer
taxes applicable to any sale of Registrable Shares.


 


Section 2.              Shelf
Registration.


 


(a)           Within sixty (60) days from the date first written above,
to the extent that the Company does not have as of the date first written above
an effective shelf registration statement under which the Registrable Shares
could be offered (an “Automatic Shelf”), the Company shall file a
registration statement on Form S-3 or another appropriate form (a “Shelf
Registration Statement”) pursuant to Rule 415 under the Securities Act
relating to the resale of all Registrable Shares in an offering to be made on a
continuous basis. The Company agrees to use commercially reasonable efforts to
cause such Shelf Registration Statement to be declared


 


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effective by the Commission
no later than one hundred fifty (150) days after the date first written
above.  The Company agrees to keep such
Shelf Registration Statement or Automatic Shelf, as the case may be, effective
until the date that is the earlier of (i) the date on which the
Registrable Shares have been disposed of by Investor, and (ii) the date on
which it is no longer necessary to keep the Registration Statement effective
because the Registrable Shares may be sold without restriction pursuant to Rule 144.  To the extent that the Company has an
effective Automatic Shelf as of the date first written above, the Company will
use commercially reasonable efforts to prepare and file a prospectus supplement
covering all of the Registrable Shares within thirty (30) days from the date
first written above.


 


(b)           Notwithstanding the foregoing, the Company shall have the
right (the “Deferral Right”) to defer any such filing (or suspend sales
under any filed Registration Statement or defer the updating of any filed
Registration Statement and suspend sales thereunder) for a period of not more
than 105 days during any one year period ending on December 31, if the
Company determines in its discretion that it would be detrimental to the
Company and its stockholders to file such Registration Statement or amendment
thereto at such time (or continue sales under a filed Registration Statement); provided
that the Company shall deliver to the Investor written notice of such
determination and of the termination of any such deferral period as soon as
reasonably practicable following the determination to exercise the Deferral
Right or of the termination thereof.


 


Section 3.              Registration Procedures.


 


(a)           The Company shall promptly notify the Investor of the
occurrence of any of the following events as soon as reasonably practicable
following the Company obtaining actual knowledge of the same:


 


(i)            when any prospectus, Shelf Registration Statement or
Automatic Shelf filed with the Commission after the date first written above
relating to the Registrable Shares has been filed; provided however, that
before filing any such prospectus, Shelf Registration Statement or Automatic
Shelf or any amendments or supplements thereto, the Company shall furnish to
and afford the Investor and its counsel five days to review copies of all such
documents (including copies of all exhibits thereto proposed to be filed
therewith);


 


(ii)           when any Registration Statement relating to the
Registrable Shares has become effective;


 


(iii)          the issuance by the Commission of any stop order suspending
the effectiveness of any Registration Statement;


 


(iv)          the Company exercising its Deferral Right;


 


(v)           the Company’s receipt of any notification of the
suspension of the qualification of any Registrable Shares covered by a
Registration Statement for sale in any jurisdiction;


 


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(vi)          the existence of any event, fact or circumstance that
results in a Registration Statement containing an untrue statement of material
fact or omitting to state a material fact required to be stated therein or
necessary to make the statements therein not misleading during the distribution
of securities; or


 


(vii)         the occurrence or existence of any pending corporate
development that, in the sole discretion of the Company, makes it appropriate
to suspend the availability of the Registration Statement.


 


The Company agrees to use
commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of any such Registration Statement or any state
qualification as promptly as reasonably practicable.  The Investor agrees that upon delivery of any
notice by the Company of the occurrence of any event of the type described in
this Section 3(a)(iii), (iv), (v), (vi) or (vii), the Investor shall
immediately discontinue any disposition of Registrable Shares pursuant to any
Registration Statement until the receipt of written notice from the Company
that such disposition may be made (such time period being a “Deferral/Suspension
Period”).


 


(b)           The Company shall provide to the Investor, at no cost, as
many copies of the Registration Statement used to effect the Registration of
the Registrable Shares, each prospectus contained in such Registration
Statement or post effective amendment and any amendment or supplement thereto
and such other documents, as the Investor may reasonably request in order to
facilitate the disposition of the Registrable Shares covered by such
Registration Statement.  The Company
consents to the use of each prospectus and any supplement thereto by the
Investor and the underwriter or underwriters, if any, in connection with the
offering and sale of the Registrable Shares covered by such Registration
Statement.  The Company shall also file
copies of the prospectus and any post-effective amendment or supplement thereto
with the Commission to enable the Investor to have the benefits of the
prospectus delivery provisions of the Securities Act.


 


(c)           The Company agrees to use commercially reasonable efforts
to cause the Registrable Shares covered by a Registration Statement to be
registered with or approved by such state securities authorities as may be
necessary to enable the Investor to consummate the disposition of the
Registrable Shares pursuant to the plan of distribution set forth in the
Registration Statement or supplement thereto; provided, however, that the
Company shall not be obligated to take any action to effect any such
Registration, qualification or compliance pursuant to this Section 3 in
any particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such Registration,
qualification or compliance, unless the Company is already subject to service
in such jurisdiction.


 


(d)           Subject to the Deferral Right, if any event, fact or
circumstance requiring an amendment to a Registration Statement relating to the
Registrable Shares shall exist, as soon as reasonably practicable upon becoming
aware thereof, the Company agrees to notify the Investor and prepare and
furnish to the Investor a post-effective amendment to the Registration
Statement or supplement to the prospectus or any document incorporated therein
by reference or file any


 


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other required document
necessary to disclose or otherwise address the event, fact or circumstance
requiring such amendment.


 


(e)           The Company agrees to obtain the listing of all
Registrable Shares covered by the Registration Statement on each securities
exchange on which securities of the same class or series are then listed.


 


(f)            The Company agrees to comply with the Securities Act and
the Exchange Act in connection with the offer and sale of Registrable Shares
pursuant to a Registration Statement.


 


Section 4.              Expenses of Registration.  The Company shall pay the Registration
Expenses incurred in connection with Registration, qualification or compliance
as provided for in this Agreement. 
Selling Expenses incurred in connection with the sale of Registrable
Shares by the Investor shall be borne by the Investor and the Investor shall
pay the expenses of its own counsel.


 


Section 5.              Indemnification
and Contribution.


 


(a)           The Company will (i) indemnify
the Investor, and its officers, directors, members, partners and managers, and
any Person controlling the Investor within the meaning of Section 15 of
the Securities Act, against all expenses, claims, losses, damages and
liabilities (including reasonable legal fees and expenses), arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any Registration Statement, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made,  not misleading,
and (ii) reimburse the Investor for all reasonable legal or other expenses
incurred in connection with investigating or defending any such action or claim
as such expenses are incurred; provided,
however,  that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on (A) an offer or
sale of Registrable Shares occurring during a Deferral/Suspension Period or
Blackout Period, or (B) any untrue statement or omission (or alleged
untrue statement or omission) made in reliance upon and in conformity with
information furnished in writing to the Company by the Investor for inclusion
therein; and, provided further,
that the Company shall not be liable with respect to any preliminary prospectus
or preliminary prospectus supplement to the extent that any such expenses,
claims, losses, damages and liabilities result from the fact that Registrable
Shares were sold to a Person as to whom it shall be established that there was
not sent or given at or prior to the written confirmation of such sale a copy
of the prospectus as then amended or supplemented under circumstances where
such delivery is required under the Securities Act, if the Company shall have
previously furnished copies thereof to such Indemnified Party, and the expense,
claim, loss, damage or liability of such Indemnified Party results from an
untrue statement or omission of a material fact contained in the preliminary
prospectus or the preliminary prospectus supplement, which was corrected in the
prospectus.


 


(b)           The Investor shall, and shall cause any agents of the
Investor that facilitate the distribution of Registrable Shares to, (i) indemnify
the Company, each of its directors and each of its officers who signs the
Registration Statement, and each Person who controls the Company


 


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within the meaning of Section 15
of the Securities Act, against all expenses, claims, losses, damages and
liabilities (including reasonable legal fees and expenses) arising out of or based
on (A) any untrue statement (or alleged untrue statement) of a material
fact contained in any such Registration Statement, or based on any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case to the
extent, and only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
Statement in reliance upon and in conformity with information furnished in
writing to the Company by the Investor for inclusion therein, or (B) any
failure by the Investor to deliver a prospectus where such delivery is required
under the Securities Act, the Company shall have furnished copies of such
prospectus to the Investor in sufficient quantities to permit the Investor to
satisfy such obligations, and such prospectus corrected an untrue statement or
omission of a material fact contained in a preliminary prospectus, and (ii) reimburse
the Company for all reasonable legal or other expenses incurred in connection
with investigating or defending any such action or claim as such expenses are
incurred.


 


(c)           Each party entitled to indemnification under this Section 5
(the “Indemnified Party”) shall give notice to the party required to
provide indemnification (the “Indemnifying Party”) promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, but the omission to so notify the Indemnifying Party shall not
relieve it from any liability which it may have to the Indemnified Party
pursuant to the provisions of this Section 5 except to the extent of the
actual damages suffered by such delay in notification. The Indemnifying Party
shall assume the defense of such action, including the employment of counsel to
be chosen by the Indemnifying Party, which counsel shall be reasonably
satisfactory to the Indemnified Party, and payment of expenses. The Indemnified
Party shall have the right to employ its own counsel in any such case, but the
legal fees and expenses of such counsel shall be at the expense of the
Indemnified Party, unless the employment of such counsel shall have been
authorized in writing by the Indemnifying Party in connection with the defense
of such action, or the Indemnifying Party shall not have employed counsel to
take charge of the defense of such action within a reasonable period of time
upon becoming aware of such action, or the Indemnified Party shall have
reasonably concluded that there exists an actual and material conflict of
interest between the Indemnified Party and the Indemnifying Party (in which
case the Indemnifying Party shall not have the right to direct the defense of
such action on behalf of the Indemnified Party), in any of which events such
fees and expenses shall be borne by the Indemnifying Party. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of the Indemnified Party, consent to entry of any judgment or enter
into any settlement unless such judgment or settlement (i) includes an
unconditional release from all liability in respect to such claim or
litigation, and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the Indemnified
Party.


 


(d)           If the indemnification provided for in this Section 5
is unavailable to a party that would have been an Indemnified Party under this Section 5
in respect of any expenses, claims, losses, damages and liabilities referred to
herein, then the party that would have been an Indemnifying Party hereunder
shall, in lieu of indemnifying such Indemnified Party, contribute


 


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to the amount paid or
payable by such Indemnified Party as a result of such expenses, claims, losses,
damages and liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other in connection with the statement or omission (or alleged
statement or omission), which resulted in such expenses, claims, losses,
damages and liabilities, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Party or the Indemnified Party and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Investor
agree that it would not be just and equitable if contribution pursuant to this Section 5
were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to above in
this Section 5(d).


 


(e)           No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such fraudulent
misrepresentation.


 


(f)            In no event shall the Investor be liable for any
expenses, claims, losses, damages or liabilities pursuant to this Section 5
in excess of the net proceeds to the Investor of any Registrable Shares sold by
the Investor.


 


Section 6.              Information to be Furnished by
the Investor.   The
Investor shall furnish to the Company such information as the Company may
reasonably request and as shall be required in connection with any Registration
Statement and related proceedings referred to in this Agreement. If the
Investor fails to provide the Company with such information within ten business
days of receipt of the Company’s request, the Company’s obligations under this
Agreement with respect to the Investor or the Registrable Shares owned by the
Investor shall be suspended until the Investor provides such information.


 


Section 7.              Black-Out Period. The Investor
agrees, if requested by the Company or the Company’s underwriters or financial
advisors in connection with an underwritten offering of the Company’s
securities pursuant to a Registration Statement filed with the Commission (a “Registered
Offering), not to effect any sale or distribution of any Registrable Shares,
including a sale pursuant to Rule 144, during the 15 day period prior to,
and during the 30 day period beginning on, the date of pricing of such
Registered Offering (each, a “Blackout Period”); provided that (a) each of
the Company’s Chief Executive Officer and President are also subject to
substantially similar restrictions, and (b) the Investor shall not be
subject to more than one Blackout Period during any 6 month period.


 


Section 8.              Miscellaneous.


 


(a)           Governing Law. This Agreement shall be governed in
all respects by the laws of the State of Maryland.


 


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(b)           Entire Agreement. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subject matter hereof.


 


(c)           Amendment. No supplement, modification, waiver or
termination of this Agreement shall be binding unless executed in writing by
the Company and the Investor.


 


(d)           Notices. 
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified or three days following deposit
with the United States Post Office, by registered or certified mail, postage
prepaid and addressed to the party to be notified (or one day following timely
deposit with a reputable overnight courier with next day delivery
instructions), or upon confirmation of receipt by the sender of any notice by
facsimile transmission, at the address indicated below or at such other address
as such party may designate by ten days’ advance written notice to the other
parties.


 


	
  To
  Holder:

  	
  [                            ]

  
	
   

  	
   

  
	
  With
  a Copy to:

  	
  Paul
  Hastings Janofsky & Walker LLP

  
	
   

  	
  695
  Town Center Drive, Seventeenth Floor

  
	
   

  	
  Costa
  Mesa, California 92626

  
	
   

  	
  Attention:
  John Simonis, Esq.

  
	
   

  	
  Telecopy:  714-668-6336

  
	
   

  	
   

  
	
  To
  the Company:

  	
  The
  Macerich Company

  
	
   

  	
  401 Wilshire Boulevard, Suite 700

  
	
   

  	
  Santa Monica, California 90401

  
	
   

  	
  Attention:  Chief Legal Officer

  
	
   

  	
  Facsimile:
  (310) 394-7692

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Manatt,
  Phelps & Phillips, LLP

  
	
   

  	
  11355
  West Olympic Boulevard

  
	
   

  	
  Los
  Angeles, California 90064

  
	
   

  	
  Attention:  F. Thomas Muller, Esq.

  
	
   

  	
  Facsimile:
  (310) 914-5852

  



 


(e)           Counterparts. This Agreement may be executed in any
number of counterparts, each of which may be executed by fewer than all of the
parties hereto (provided, that
each party executes one or more counterparts), each of which shall be
enforceable against the parties actually executing such counterparts, and all
of which together shall constitute one instrument.


 


(f)            Interpretation. Section titles are for
descriptive purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text.  “Including”
means “including without limitation.”


 


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(g)           Severability. 
If any provision of this Agreement is judicially determined to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions will not be affected or impaired.


 


(h)           Merger, Consolidation and Sale of Assets.  In the event the Company, (i) enters
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation, or (ii) sells, assigns, licenses or
otherwise transfers or agrees to sell, assign, license or otherwise transfer
all or substantially all of the Company’s assets, then prior to such merger,
consolidation, reorganization or asset transfer, the Company shall use
commercially reasonable efforts in an effort to have the surviving corporation
or the transferee (provided the surviving corporation or the transferee has a
class of shares registered under the Exchange Act), as the case may be, agree
in writing (x) to assume the obligations of the Company under this
Agreement, and (y) that references hereunder to “Registrable Shares” shall
be deemed to include the securities which the Investor would be entitled to
receive in exchange for Registrable Shares pursuant to or in connection with
any such merger, consolidation or reorganization or such sale, assignment,
license or other transfer, as the case may be. 
For the avoidance of doubt, in the event the Company endeavors to use
commercially reasonable efforts to have the surviving corporation or transferee
assume the obligations of the Company under this Agreement and the surviving
corporation or transferee refuses to do so, the Company shall not be in breach
of this Agreement and shall not be liable to the Investor for any losses or damages
suffered, directly or indirectly, as a result thereof.


 


(i)            Remedies. The Company and the Investor acknowledge
that there would be no adequate remedy at law if any party fails to perform any
of its obligations hereunder, and accordingly agree that the Company and the
Investor, in addition to any other remedy to which it may be entitled at law or
in equity, shall be entitled to compel specific performance of the obligations
of the other party under this Agreement in accordance with the terms and conditions
of this Agreement in any court of the United States or any State thereof having
jurisdiction.


 


(j)            Anti-Assignment. 
The Investor may not assign this Agreement or its rights or obligations
hereunder without the express written consent of the Company, which consent may
be withheld, delayed or conditioned in the sole and absolute discretion of the
Company; provided, however, that the Investor may assign this
Agreement and any of its rights and obligations hereunder to any Permitted
Transferee(s) (as defined in Section 14(g) of that certain
Warrant to Purchase Common Stock bearing even date herewith between the
Investor and the Company).


 


(k)           Attorneys’ Fees. If the Company or the Investor
brings an action to enforce its rights under this Agreement, the prevailing
party in the action shall be entitled to recover its costs and expenses,
including reasonable attorneys’ fees, incurred in connection with such action,
including any appeal of such action.


 


(l)            Changes in Securities Laws. In the event that any
amendment, repeal or other change in the securities laws shall render the
provisions of this Agreement inapplicable, the Company will provide the
Investor with substantially similar rights to those granted under this


 


9

















 


Agreement and use its good
faith efforts to cause such rights to be as comparable as possible to the
rights granted to the Investor hereunder.


 


[Remainder of the Page Intentionally Left Blank]


 


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IN WITNESS WHEREOF, the
parties hereto have executed this Registration Rights Agreement as of the date
first written above.


 


 


	
  DATED:
  September 3, 2009

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
  THE
  MACERICH COMPANY, a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Richard
  A. Bayer, Senior Executive Vice President, Chief Legal Officer and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INVESTOR

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                                          ]

  



 


 


SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT