SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
SIMON PROPERTY GROUP INC.
(Name of Issuer)
COMMON STOCK, $.0001 PAR VALUE
(Title of Class of Securities)
828806 0 10 9
(CUSIP Number)
ANN F. CHAMBERLAIN, ESQ.
RICHARDS & O'NEIL, LLP
885 THIRD AVENUE
NEW YORK, NEW YORK
10022-4873
(212) 207-1200
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 18, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|
Check the following box if a fee is being paid with this statement. |_|
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SCHEDULE 13D
CUSIP NO. 828806 0 10 9
(1) Name of reporting person STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN
S.S. or I.R.S. identification
Nos. of above persons
(2) Check the appropriate box if a (a)
member of a group
(see instructions) (b)
(3) SEC use only
(4) Source of funds OO
(see instructions)
(5) Check if disclosure of legal proceedings is required pursuant to items
2(d) or 2(e)
(6) Citizenship or place of THE NETHERLANDS
organization
Number of shares beneficially owned by each reporting person with:
(7) Sole voting power 10,923,772
(8) Shared voting power 0
(9) Sole dispositive power 10,923,772
(10) Shared dispositive power 0
(11) Aggregate amount beneficially 10,923,772
owned by each reporting person
(12) Check box if the aggregate
amount in Row (11) excludes
certain shares (see instructions)
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(13) Percent of class represented by 6.5%
amount in Row (11)
(14) Type of reporting person (see HC/EP
instructions)
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ITEM 1. Security And Issuer.
This Statement on Schedule 13D (the "Statement") relates to the
common stock, par value $.0001 per share ("COMMON STOCK"), of Simon Property
Group Inc. (the "COMPANY") which, to the best knowledge of the persons filing
this Statement, is a corporation organized under the laws of Delaware with
principal executive offices at 115 West Washington Street, Indianapolis, Indiana
46204.
ITEM 2. Identity And Background
(a) This Statement is filed by Stichting Pensioenfonds Voor De
Gezondheid Geestelijke en Maatschappelijke Belangen, an entity formed under the
laws of The Kingdom of the Netherlands ("PGGM").
(b) The business address of PGGM is Kroostweg-Noord 149, 3700 AC
Zeist, The Netherlands. The name and business address of each executive officer
and director of PGGM is set forth on EXHIBIT A hereto and is incorporated by
reference herein.
(c) The principal business of PGGM is to serve as a pension fund in
The Netherlands which invests for the benefit of health care industry workers,
including nurses and medical technicians, but excluding self-employed doctors.
The present principal occupation of each executive officer and director of PGGM
is set forth on EXHIBIT A hereto and is incorporated by reference herein.
(d) Neither PGGM nor any of its executive officers or directors has,
during the last five years, been convicted in any criminal proceeding (excluding
traffic violations and similar misdemeanors).
(e) Neither PGGM nor any of its executive officers or directors has,
during the last five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which proceeding it
or he or she was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws,
decree or final order.
(f) PGGM is a "stichting" organized under the laws of The
Netherlands. The citizenship of each executive officer and director of PGGM is
set forth on EXHIBIT A hereto and is incorporated by reference herein.
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ITEM 3. Source and Amount of Funds or Other Consideration.
During the period from March 12 through April 20, 1999, PGGM
acquired 2,795,000 shares of Common Stock through open market purchases for an
aggregate purchase price of $72,252,336.33. The source of funds for such
purchases were supplied from the pension contributions of private sector health
care workers.
The dates and purchase price paid for each transaction are listed
below:
Date Number of Shares Purchased Purchase Price
---- -------------------------- --------------
March 12 82,300 1,985,150.07
March 15 17,600 4,26,800.00
March 16 327,000 8,252,499.00
March 17 52,300 1,338,142.57
March 18 292,900 7,431,693.12
March 19 109,900 2,845069.22
March 22 165,000 4,270,992.00
March 23 120,700 3,108,604.36
March 24 220,000 5,666,892.00
March 25 106,500 2,716,165.35
March 26 85,600 2,170,002.80
March 29 109,400 2,790,214.18
March 30 79,900 2,042,491.69
March 31 100,400 2,580,320.16
April 1 122,100 3,224,538.90
April 5 52,000 1,377,870.00
April 6 50,000 1,348,330.00
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April 9 5,000 129,687.50
April 12 264,500 7,078,839.95
April 13 338,900 9,016,908.96
April 16 8,000 208,000.00
April 20 85,000 2,243,124.50
ITEM 4. Purpose of Transaction.
PGGM has acquired the shares of Common Stock included by it in this
Statement for investment purposes and not with the present intention of
acquiring control of the Company's business. An advisor to the Board of Managing
Directors of PGGM (the "PGGM Affiliate") sits on the Company's Board of
Directors. By having the PGGM Affiliate sit on the Board of Directors of the
Company, PGGM has the power to influence the management, strategies and conduct
of the business and affairs of the Company.
The PGGM from time to time intends to review its investment in the
Company on the basis of various factors, including the Company's business,
financial condition, results of operations and prospects, general economic and
industry conditions, the securities markets in general and those for the
Company's securities in particular, as well as other developments and other
investment opportunities. Based on such review, PGGM will take such actions in
the future as PGGM may deem appropriate in light of the circumstances existing
from time to time. If PGGM believes that further investment in the Company is
attractive, whether because of the market price of the Company's securities or
otherwise, it may acquire Common Stock or other securities of the Company either
in the open market or in privately negotiated transactions. Similarly, depending
on market and other factors, PGGM may determine to dispose of some or all of the
Common Stock currently owned by PGGM or otherwise acquired by PGGM either in the
open market or in privately negotiated transactions.
Except as set forth above, PGGM has not formulated any plans or
proposals which relate to or would result in: (a) the acquisition by any person
of additional securities of the Company or the disposition of securities of the
Company, (b) an extraordinary corporate transaction involving the Company or any
of its subsidiaries, (c) a sale or transfer of a material amount of the assets
of the Company or any of its subsidiaries, (d) any change in the present board
of directors or management of the Company, (e) any material change in the
Company's capitalization or dividend policy, (f) any other material change in
the Company's business or corporate structure, (g) any change in the Company's
charter or bylaws or other instrument corresponding thereto or other action
which may impede the acquisition of control of the Company by any person, (h)
causing a class of the
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Company's securities to be deregistered or delisted, (i) a class of equity
securities of the Company becoming eligible for termination of registration or
(j) any action similar to any of those enumerated above.
ITEM 5. Interest in Securities of the Issuer.
As of the date hereof, PGGM may be deemed to beneficially own for
purposes of this Statement 10,923,772 shares of Common Stock, including 434,821
shares of Common Stock issuable upon the conversion of the Series B Preferred
Stock of the Company owned by PGGM (the "Conversion Shares"), which constitute
approximately 6.5% of the sum of (i) 166,775,031, being the number of shares of
Common Stock outstanding (based on the Company's Annual Report, dated December
31, 1998, filed under the Securities Exchange Act of 1934, as amended), and (ii)
434,821, being the number of Conversion Shares.
On February 26, 1999, PGGM elected to convert 150,000 shares of
Series A Preferred Stock of the Company, being all the Series A Preferred Stock
of the Company owned by PGGM, into 5,699,304 shares of Common Stock pursuant to
its conversion rights as set forth in the Amended and Restated Certificate of
Incorporation of the Company.
During the period from March 12 through April 20, 1999, PGGM
acquired 2,795,000 shares of Common Stock through the open market purchase of
the Company's Common Stock as listed in Item 3 hereof.
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No other person has the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, any Common Stock
beneficially owned by PGGM.
ITEM 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
PGGM entered into a Registration Rights Agreement, dated as of
September 24, 1998, by and among the Company and the persons set forth on
Schedule A thereto, a copy of which is attached hereto as EXHIBIT B. Pursuant to
the Registration Rights Agreement, (i) PGGM has the right, once each 12-month
period, to demand that the Company register PGGM's Registrable Securities (as
defined in the Registration Rights Agreement) under the Securities Act of 1933,
as amended (the "Securities Act"); (ii) PGGM has the right to request that the
Company register PGGM's Registrable Securities if the Company proposes to file a
registration statement under the Securities Act with respect to an underwritten
public offering of Common Stock of the Company for its own account or for the
account of any shareholder; and (iii) the Company agrees to use reasonable
efforts to qualify for registration on Form S-3 for secondary sales following
the effective time of an initial public offering.
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ITEM 7. Material to be Filed as Exhibits.
EXHIBIT A contains the name, citizenship, office, business address
and present principal occupation of each executive officer and director of PGGM.
EXHIBIT B is the Registration Rights Agreement, dated as of
September 24, 1998, by and among the Company and the persons listed on Schedule
A thereto.
[Remainder of page left blank intentionally]
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Signature
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Statement is true, complete and
correct.
Dated: May 11, 1999
STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN
By:/s/Jan H.W.R. van der Vlist
--------------------------------
Jan H.W.R. van der Vlist
Attorney-in-Fact
By:/s/Anneke C. van de Puttelaar
--------------------------------
Anneke C. van de Puttelaar
Attorney-in-Fact
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EXHIBIT A
The name, citizenship, business address and present principal occupation
of each executive officer and director of PGGM is as follows:
Name and Citizenship Present Principal Office Occupation and Address
- -------------------- ------------------------ ----------------------
Dick J. de Beus (Mr.) Executive Officer Pensioenfonds PGGM
(The Netherlands) Chairman, Board of Kroostweg-Noord 149
Managing Directors P.O. Box 117
3700 AC Zeist
The Netherlands
Roderick M.S.M. Munsters Executive Officer, Pensioenfonds PGGM
(Mr.) (The Netherlands) Managing Director Kroostweg-Noord 149
Investments P.O. Box 117
3700 AC Zeist
The Netherlands
H.J. van Essen (Mr.) Executive Officer, Pensioenfonds PGGM
(The Netherlands) Managing Director Kroostweg-Noord 149
Pensions P.O. Box 117
3700 AC Zeist
The Netherlands
J.C.J. Lammers (Mr.) Chairman of the Board of Leidsegracht 25
(The Netherlands) Directors of PGGM 1017 NA Amsterdam
Retired The Netherlands
W.L. Bonhof (Mr.) Director Zon en Schild
(The Netherlands) Director (Hospital)
Utrechtseweg 266
P.O. Box 3051
3800 DB Amersfoort
The Netherlands
R.G. de Vries (Mr.) Director Nederlandse Zorg
(The Netherlands) Vice Director Federatie
(Netherlands Health
Care Federation)
P.O. Box 9696
3506 GR Utrecht
The Netherlands
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Name and Citizenship Present Principal Office Occupation and Address
- -------------------- ------------------------ ----------------------
J. Hillenius (Mr.) Director Meije 342
(The Netherlands) Retired 3474 ME Zegveld
The Netherlands
J. Wagenaar(Mr.) Director Nederlandse Zorg
(The Netherlands) Director Federatie
Federatie
(Netherlands Health
Care Federation)
P.O. Box 9696
3506 GR Utrecht
The Netherlands
W.H. de Weijer (Mr.) Director Zorg en Wonen
(The Netherlands) Chief Executive Officer Zaanstreek/Waterland
P.O. Box 68
1440 AB Purmerend
The Netherlands
H.D. Cornelissen (Mr.) Director Professor
(The Netherlands) Board Member Duboisstichting P.O.
Box 694
5900 AR Venlo
The Netherlands
R. van den Burg (Mr.) Director ABVAKABO
(The Netherlands) Trade Union Officer (Trade Union)
P.O. Box 3010
2700 KT Zoetermeer
The Netherlands
A.J.M. van Huygevoort (Mr.) Director ABVAKABO
(The Netherlands) Trade Union Officer (Trade Union)
P.O. Box 3010
2700 KT Zoetermeer
The Netherlands
J.F. van Pijpen (Mrs.) Director ABVAKABO
(The Netherlands) Trade Union Officer (Trade Union)
P.O. Box 3010
2700 KT Zoetermeer
The Netherlands
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Name and Citizenship Present Principal Office Occupation and Address
- -------------------- ------------------------ ----------------------
E. de Bruin (Mr.) Director CFO (Trade union)
(The Netherlands) Board Member P.O. Box 84500
2508 AM Den Haag
the Netherlands
K. Kruithof (Mr.) Director CFO (Trade Union)
(The Netherlands) Board Member P.O. Box 84500
2508 AM Den Haag
The Netherlands
K. de Jong (Mr.) Director NU '91 (Trade Union)
(The Netherlands) Vice Chairman Leidseweg 63
P.O. Box 6001
3503 PA Utrecht
The Netherlands
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EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 24, 1998 (the
"Agreement"), by and among Simon Property Group, Inc. (the "Company") and the
persons set forth on Schedule A (the "Rights Holders"). The Rights Holders and
their respective successors-in-interest and permitted assigns are hereinafter
sometimes referred to as the "Holders."
Upon execution of the Sixth Amended and Restated Agreement of
Limited Partnership (the "Partnership Agreement") of Simon Property, L.P., a
Delaware limited partnership (the "Operating Partnership"), dated as of the date
hereof, among the Company, SPG Properties, Inc., SD Property Group, Inc. and its
limited partners (the "Limited Partners"), the Limited Partners have the right
at any time to exchange all or any portion of their units of partnership
interest ("Units") in the Operating Partnership and in SPG Realty Consultants,
L.P., a Delaware limited partnership (together with the Operating Partnerships
the "Operating Partnerships") for shares ("Shares") of the Company's common
stock, par value $.0001 per share (including beneficial interest in shares of
common stock, par value $.0001 per share, of SPG Realty Consultants, Inc. ("SPG
Realty") the "Common Stock"), or cash, at the election of the Company and SPG
Realty, and, except as provided herein, any Shares issued upon such exchange
will not be registered under the Securities Act of 1933, as amended (the
"Securities Act"), which stockholders shall constitute "Holders" for purposes of
this Agreement.
Upon execution of this Agreement and upon consummation of the
transactions contemplated by the Agreement and Plan of Merger, dated as of
February 18, 1998 (the "Merger Agreement"), by and among Simon DeBartolo Group,
Inc. (the predecessor to SPG Properties, Inc.), Corporate Property Investors
(the predecessor to the Company) and Corporate Realty Consultants, Inc., the
Company has agreed to provide certain registration rights with respect to the
Shares held or to be held by certain former stockholders of Corporate Property
Investors, Inc. The Company has agreed to provide certain registration rights
with respect to the Shares held or to be held by certain Limited Partners.
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Securities Subject to this Agreement. The securities entitled to
the benefits of this Agreement are (a) the Shares issued by the Company to the
Holders, (b) the Shares issued by the Company to the Holders upon conversion of
the Series A Convertible
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Preferred Stock, par value $.0001 per share ("Series A Preferred Stock"), of the
Company, and the Shares issued by the Company to the Holders upon conversion of
the Series B Convertible Preferred Stock, par value $.0001 per share ("Series B
Preferred Stock") of the Company and (c) the Shares issued by the Company to the
Holders upon exchange of the Units pursuant to the Partnership Agreement
(collectively, the "Registrable Securities") but, with respect to any particular
Registrable Security, only so long as it continues to be a Registrable Security.
Registrable Securities shall include any securities issued as a dividend or
distribution on account of Registrable Securities or resulting from a
subdivision of the outstanding shares of Registrable Securities into a greater
number of shares (by reclassification, stock split or otherwise). For the
purposes of this Agreement, a security that was at one time a Registrable
Security shall cease to be a Registrable Security when (a) such security has
been effectively registered under the Securities Act, other than pursuant to
Section 4 of this Agreement, and either (i) the registration statement with
respect thereto has remained continuously effective for 150 days or (ii) such
security has been disposed of pursuant to such registration statement, (b) such
security is sold to the public in reliance on Rule 144 (or any similar provision
then in force) under the Securities Act, (c) such security has been otherwise
transferred, and (i) the Company has delivered a new certificate or other
evidence of ownership not bearing the legend set forth on the Shares upon the
initial issuance thereof (or other legend of similar import) and (ii) in the
opinion of counsel to the Company reasonably acceptable to the Holders and
addressed to the Company and the holder of such security, the subsequent
disposition of such security shall not require the registration or qualification
under the Securities Act, or (d) such security has ceased to be outstanding.
Notwithstanding anything to the contrary herein, any Holder may
exercise any of its rights hereunder prior to its receipt of Shares, provided
that such Holder, simultaneously with the delivery of any notice requesting
registration hereunder, shall deliver an Exercise Notice to the Company
requesting (i) exchange of Units exchangeable into such number of Shares as such
Limited Partner has requested to be registered, or (ii) conversion of the Series
A Preferred Stock or Series B Preferred Stock into such number of Shares as such
Holder has requested to be registered. Any such Exercise Notice so delivered
shall be (a) conditioned on the effectiveness of the requested registration in
connection with which it was delivered and (b) deemed to cover only such number
of Units, Series A Preferred Stock or Series B Preferred Stock as are
exchangeable or convertible into the number of Shares actually sold pursuant to
the requested registration. Any Shares to be issued in connection with any such
Exercise Notice shall be issued upon the closing of the requested registration.
In the event that the Company elects to issue all cash in lieu of Shares upon
the exchange of the Units covered by any such Exercise Notice, the registration
requested by the Limited Partner that delivered such Exercise Notice, if a
Demand Registration, shall not constitute a Demand Registration under Section
2.1 hereof.
In the event a Holder holding shares of Series B Preferred Stock
exercises its rights to have Registrable Securities included in a registration
statement pursuant to Section 2, 3
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or 4 of this Agreement, it may also request that shares of Series B Preferred
Stock be included therein, subject in all respects to the terms and conditions
of this Agreement, except that, notwithstanding any provision to the contrary
contained in this Agreement, (a) in the event that the number of Registrable
Securities requested to be included in a registration statement pursuant to
Section 2 or 3 is reduced as provided therein, the shares of Series B Preferred
Stock requested to be included shall be reduced, to zero if so requested by the
managing underwriters, before the number of Registrable Securities is reduced
and (b) in no event shall the Company be required to maintain or extend the
effectiveness of a registration statement solely as a result of the fact that
shares of Series B Preferred Stock covered by such registration statement remain
unsold.
Nothing contained herein shall create any obligation on the part of
the Company to issue Shares, rather than cash, upon the exchange of any Units.
2. Demand Registration.
2.1. Request for Registration. At any time, each Holder (or,
with respect to each Holder that is a member of the DeBartolo entities listed on
Schedule B (the "DeBartolo Group"), EDJC LLC) may make a written request per
12-month period (specifying the intended method of disposition) for registration
under the Securities Act (each, a "Demand Registration") of all or part of such
Holder's Registrable Securities (but such part, together with the number of
securities requested by other Holders to be included in such Demand Registration
pursuant to this Section 2.1, shall have an estimated market value at the time
of such request (based upon the then market price of a share of Common Stock of
the Company) of at least $10,000,000). Notwithstanding the foregoing, the
Company shall not be required to file any registration statement on behalf of
any Holder within six months after the effective date of any earlier
registration statement so long as the Holder requesting the Demand Registration
was given a notice offering it the opportunity to sell Registrable Securities
under the earlier registration statement and such Holder did not request that
all of its Registrable Securities be included; provided, however, that if a
Holder requested that all of its Registrable Securities be included in the
earlier registration statement but not all were so included through no fault of
the Holder, such Holder may, but shall not be obligated to, require the Company
to file another registration statement pursuant to a Demand Registration
(subject, in the event of a Demand Registration for less than all such remaining
Registrable Securities, to the same $10,000,000 limitation set forth above)
exercised by such Holder within six months of the effective date of such earlier
registration statement. Within ten days after receipt of a request for a Demand
Registration, the Company shall give written notice (the "Notice") of such
request to all other Holders and shall include in such registration all
Registrable Securities that the Company has received written requests for
inclusion therein within 15 days after the Notice is given (the "Requested
Securities"). Thereafter, the Company may elect to include in such registration
additional Shares to be issued by the Company. In such event for purposes only
of Section 2.3 (other than the first sentence thereof) and not for purposes of
any other provision or Section
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hereof (including, without limitation, Section 3), (a) such shares to be issued
by the Company in connection with a Demand Registration shall be deemed to be
Registrable Securities and (b) the Company shall be deemed to be a Holder
thereof. All requests made pursuant to this Section 2.1 shall specify the
aggregate number of Registrable Securities to be registered.
2.2. Effective Registration and Expenses. A registration shall
not constitute a Demand Registration under Section 2.1 hereof until it has
become effective. In any registration initiated as a Demand Registration, the
Company shall pay all Registration Expenses (as defined in Section 8) incurred
in connection therewith, whether or not such Demand Registration becomes
effective, unless such Demand Registration fails to become effective as a result
of the fault of one or more Holders other than the Company, in which case the
Company will not be required to pay the Registration Expenses incurred with
respect to the offering of such Holder or Holders' Registrable Securities. The
Registration Expenses incurred with respect to the offering of such Holder or
Holders' Registrable Securities shall be the product of (a) the aggregate amount
of all Registration Expenses incurred in connection with such registration and
(b) the ratio that the number of such Registrable Securities bears to the total
number of Registrable Securities included in the registration.
2.3. Priority on Demand Registrations. The Holder making the
Demand Registration may elect whether the offering of such Registrable
Securities pursuant to such Demand Registration shall be in the form of a firm
commitment underwritten offering or otherwise; provided, however, that such
Holder may not elect that such offering be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act. In any case in which an offering
is in the form of a firm commitment underwritten offering, if the managing
underwriter or underwriters of such offering advise the Company in writing that
in its or their opinion the number of Registrable Securities proposed to be sold
in such offering exceeds the number of Registrable Securities that can be sold
in such offering without adversely affecting the market for the Company's common
stock, the Company will include in such registration the number of Registrable
Securities that in the opinion of such managing underwriter or underwriters can
be sold without adversely affecting the market for the Company's common stock.
In such event, the number of Registrable Securities, if any, to be offered for
the accounts of Holders (including the Holder making the Demand Registration)
shall be reduced pro rata on the basis of the relative number of any Registrable
Securities requested by each such Holder to be included in such registration to
the extent necessary to reduce the total number of Registrable Securities to be
included in such offering to the number recommended by such managing underwriter
or underwriters. In the event the Holder making the Demand shall receive notice
pursuant to this Section 2.3 that the amount of Registrable Securities to be
offered for the account of such Holder shall be reduced, such Holder shall be
entitled to withdraw the Demand by written notice to the Company within seven
(7) days after receipt of such notice, with the effect that such Demand shall be
deemed not to have been made.
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2.4. Selection of Underwriters. If any of the Registrable
Securities covered by a Demand Registration are to be sold in an underwritten
offering, the Holders, in the aggregate, that own or will own a majority of the
Registrable Securities that the Company has been requested to register
(including the Requested Securities but excluding any securities to be issued by
the Company), shall have the right to select the investment banker or investment
bankers and manager or managers that will underwrite the offering; provided,
however, that such investment bankers and managers must be reasonably
satisfactory to the Company.
3. Piggyback Registration. Whenever the Company proposes to file a
registration statement under the Securities Act with respect to an underwritten
public offering of Common Stock by the Company for its own account or for the
account of any stockholders of the Company (other than a registration statement
filed pursuant to either Section 2 or 4 hereof), the Company shall give written
notice (the "Offering Notice") of such proposed filing to each of the Holders at
least 30 days before the anticipated filing date. Such Offering Notice shall
offer all such Holders the opportunity to register such number of Registrable
Securities as each such Holder may request in writing, which request for
registration (each, a "Piggyback Registration") must be received by the Company
within 15 days after the Offering Notice is given. The Company shall use all
reasonable efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering, if any, to permit the holders of the Registrable
Securities requested to be included in the registration for such offering to
include such Registrable Securities in such offering on the same terms and
conditions as the common stock of the Company or, if such offering is for the
account of other stockholders, the common stock of such stockholders included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of a proposed underwritten offering advise the Company in writing
that in its or their opinion the number of Registrable Securities proposed to be
sold in such offering exceeds the number of Registrable Securities that can be
sold in such offering without adversely affecting the market for the Common
Stock, the Company will include in such registration the number of Registrable
Securities that in the opinion of such managing underwriter or underwriters can
be sold without adversely affecting the market for the Common Stock. In such
event, the number of Registrable Securities, if any, to be offered for the
accounts of Holders shall be reduced pro rata on the basis of the relative
number of any Registrable Securities requested by each such Holder to be
included in such registration to the extent necessary to reduce the total number
of Registrable Securities to be included in such offering to the number
recommended by such managing underwriter or underwriters. The Company shall pay
all Registration Expenses incurred in connection with any Piggyback
Registration.
4. Shelf Registration. Following the Effective Time, the Company
shall use reasonable efforts to qualify for registration on Form S-3 for
secondary sales. The Company agrees that, upon the request of any Holder, the
Company shall promptly after receipt of such request notify each other Holder of
receipt of such request and shall cause to be filed on or as
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soon as practicable thereafter, but not sooner than 35 days after the receipt of
such notice from such Holder, a registration statement (a "Shelf Registration
Statement") on Form S-1, Form S-3 or any other appropriate form under the
Securities Act for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 thereunder or any similar rule that may be adopted by the
Securities and Exchange Commission (the "Commission") and permitting sales in
any manner not involving an underwritten public offering (and shall register or
qualify the shares to be sold in such offering under such other securities or
"blue sky" laws as would be required pursuant to Section 7(g) hereof) covering
up to the aggregate number of (a) Shares to be issued to such Holder and all
other Holders who request that the Shares to be issued to them upon the exchange
of Units held by them be included in the Shelf Registration Statement upon the
exchange of Units so that the Shares issuable upon the exchange of such Units
will be registered pursuant to the Securities Act and (b) the Shares to be
issued to them upon the conversion of Series A Preferred Stock or Series B
Preferred Stock held by them be included in the Shelf Registration Statement
upon the conversion of Series A Preferred Stock or Series B Preferred Stock so
that the Shares issuable upon the conversion will be registered pursuant to the
Securities Act, and (c) Registrable Securities held by such Holders. The Company
shall use its best efforts to cause the Shelf Registration Statement to be
declared effective by the Commission within three months after the filing
thereof. The Company shall use its reasonable efforts to keep the Shelf
Registration Statement continuously effective (and to register or qualify the
shares to be sold in such offering under such other securities or "blue sky"
laws as would be required pursuant to Section 7(g) hereof) for so long as any
Holder holds any Shares, Units that may be exchanged for Shares under the
Partnership Agreement, Series A Preferred Stock or Series B Preferred Stock that
may be converted into Shares or until the Company has caused to be delivered to
each Holder an opinion of counsel, which counsel must be reasonably acceptable
to such Holders, stating that such Shares or Shares issued upon such exchange or
conversion may be sold by the Holders pursuant to Rule 144 promulgated under the
Securities Act without regard to any volume limitations and that the Company has
satisfied the informational requirements of Rule 144. The Company shall file any
necessary listing applications or amendments to existing applications to cause
the Shares issuable upon exchange of Units or conversion of Series A Preferred
Stock or Series B Preferred Stock to be listed on the primary exchange on which
the Common Stock is then listed, if any. Notwithstanding the foregoing, if the
Company determines that it is necessary to amend or supplement such Shelf
Registration Statement and if the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company it would be
significantly disadvantageous to the Company and its stockholders for any such
Shelf Registration Statement to be amended or supplemented, the Company may
defer such amending or supplementing of such Shelf Registration Statement for
not more than 45 days and in such event the Holders shall be required to
discontinue disposition of any Registrable Securities covered by such Shelf
Registration Statement during such period. Notwithstanding the foregoing, if the
Company irrevocably elects prior to the filing of any Shelf Registration
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Statement to issue all cash in lieu of Shares upon the exchange of Units by the
Holder requesting the filing of such Shelf Registration Statement, the Company
shall not be obligated to file such Shelf Registration Statement.
5. Rights of Other Stockholders. The Company shall not grant any
person, for so long as any securities convertible into or exchangeable for
Registrable Securities are outstanding, any rights to have their securities
included in any registration statement to be filed by the Company if such rights
are greater than the rights of the Holders granted herein without extending such
greater rights to the Holders. Subject to the penultimate sentence of Section
2.3 and the last sentence of Section 3, to the extent the securities of such
other stockholders are entitled to be included in any such registration
statement and the managing underwriter or underwriters believe that the number
of securities proposed to be sold in such offering exceeds the number of
securities that can be sold in such offering without adversely affecting the
market for the Company's common stock, the number of securities to be offered
for the accounts of such other stockholders shall be reduced to zero before the
number of securities to be offered for the accounts of the Holders is reduced.
6. Holdback Agreements.
6.1. Restrictions on Public Sale by Holders of Registrable
Securities. Each Holder (a) participating in an underwritten offering covered by
any Demand Registration or Piggyback Registration or (b) in the event the
Company is issuing shares of its capital stock to the public in an underwritten
offering, agrees, if requested by the managing underwriter or underwriters for
such underwritten offering, not to effect (except as part of such underwritten
offering or pursuant to Article XII of the Partnership Agreement) any public
sale or distribution of Registrable Securities or any securities convertible
into or exchangeable or exercisable for such Registrable Securities, including a
sale pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, during the period (a "Lock-Out Period") commencing 14 days prior
to and ending no more than 90 days subsequent to the date (an "Execution Date")
specified in the Lock-Out Notice (as defined below) as the anticipated date of
the execution and delivery of the underwriting agreement (or, if later, a
pricing or terms agreement signed pursuant to such underwriting agreement) to be
entered into in connection with such Demand Registration or Piggyback
Registration or other underwritten offering. The Execution Date shall be no
fewer than 21 days subsequent to the date of delivery of written notice (a
"Lock-Out Notice") by the Company to each Holder of the anticipated execution of
an underwriting agreement (or pricing or terms agreement), and the Execution
Date shall be specified in the Lock-Out Notice. The Company may not deliver a
Lock-Out Notice unless it is making a good faith effort to effect the offering
with respect to which such Lock-Out Notice has been delivered. Notwithstanding
the foregoing, the Company may not (a) establish Lock-Out Periods in effect for
more than 208 days in the aggregate within any of the consecutive fifteen-month
periods commencing on August 7,
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1997 and (b) cause any Lock-Out Period to commence (i) during the 45-day period
immediately following the expiration of any Lock-Out Period, such 45-day period
to be extended by one day for each day of delay pursuant to Section 7(a);
provided, however, that in no event shall such extension exceed 90 days;
provided, further, however, that such 90-day limit on extensions shall terminate
on December 31, 1998; or (ii) if the Company shall have been requested to file a
Registration Statement pursuant to Section 2 during such 45-day period (as
extended), until the earlier of (x) the date on which all Registrable Securities
thereunder shall have been sold and (y) 45 days after the effective date of such
Registration Statement. Notwithstanding the foregoing, any Lock-Out Period may
be shortened at the Company's sole discretion by written notice to the Holders,
and the applicable Lock-Out Period shall be deemed to have ended on the date
such notice is received by the Holders. For the purposes of this Section 6.1, a
Lock-Out Period shall be deemed to not have occurred, and a Lock-Out Notice
shall be deemed to not have been delivered, if, within 30 days of the delivery
of a Lock-Out Notice, the Company delivers a written notice (the "Revocation
Notice") to the Holders stating that the offering (the "Aborted Offering") with
respect to which such Lock-Out Notice was delivered has not been, or shall not
be, consummated; provided, however, that any Lock-Out Period that the Company
causes to commence within 45 days of the delivery of such Revocation Notice
shall be reduced by the number of days pursuant to which the Holders were
subject to restrictions on transfer pursuant to this Section 6.1 with respect to
such Aborted Offering.
6.2. Restrictions on Public Sale by the Company. If, but only
if, the managing underwriter or underwriters for any underwritten offering of
Registrable Securities made pursuant to a Demand Registration so request, the
Company agrees not to effect any public sale or distribution of any of its
securities similar to those being registered, or any securities convertible into
or exchangeable or exercisable for such securities (except pursuant to
registrations on Form S-4 or S-8 or any successor or similar forms thereto)
during the 14 days prior to, and during the 180-day period beginning on, the
effective date of such Demand Registration.
7. Registration Procedures. Whenever the Holders have requested that
any Registrable Securities be registered pursuant to Section 2, 3, or 4, the
Company shall use its best efforts to effect the registration of Registrable
Securities in accordance with the intended method of disposition thereof as
expeditiously as practicable, and in connection with any such request, the
Company shall as expeditiously as possible:
(a) in connection with a request pursuant to Section 2, prepare and
file with the Commission, not later than 40 days (or such longer period as may
be required in order for the Company to comply with the provisions of Regulation
S-X under the Securities Act) after receipt of a request to file a registration
statement with respect to Registrable Securities, a registration statement on
any form for which the Company then qualifies or which counsel for the Company
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shall deem appropriate and which form shall be available for the sale of such
Registrable Securities in accordance with the intended method of distribution
thereof and, if the offering is an underwritten offering, shall be reasonably
satisfactory to the managing underwriter or underwriters, and use its best
efforts to cause such registration statement to become effective; provided,
however, that if the Company shall within five (5) Business Days after receipt
of such request furnish to the Holders making such a request a certificate
signed by the Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be
significantly disadvantageous to the Company and its stockholders for such a
registration statement to be filed on or before the date filing would be
required, the Company shall have an additional period of not more than 45 days
within which to file such registration statement (provided that only one such
notice may be given during any 12 month period); and provided, further, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall (a) furnish to the counsel selected by
the Holder making the demand, or if no demand, then, by the Holders, in the
aggregate, that own or will own a majority of the Registrable Securities covered
by such registration statement, copies of all such documents proposed to be
filed, which documents will be subject to the review of such counsel, and (b)
notify each seller or prospective seller of Registrable Securities of any stop
order issued or threatened by the Commission or withdrawal of any state
qualification and take all reasonable actions required to prevent such
withdrawal or the entry of such stop order or to remove it if entered;
(b) in connection with a registration pursuant to Section 2, prepare
and file with the Commission 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 for a period of not less
than 150 days (or such shorter period that will terminate when all Registrable
Securities covered by such registration statement have been sold, but not before
the expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable), and comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended method of disposition by the sellers
thereof set forth in such registration statement;
(c) notify each seller of Registrable Securities and the managing
underwriter, if any, promptly, and (if requested by any such Person) confirm
such advice in writing,
(i) when the prospectus or any supplement thereto or amendment
or post-effective amendment to the registration statement has been
filed, and, with respect to the registration statement or any
post-effective amendment, when the same has become effective,
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(ii) of any request by the Commission for amendments or
post-effective amendments to the registration statement or
supplements to the prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation or threatening of any proceedings for that purpose,
(iv) if at any time during the distribution of securities by
the managing underwriter the representations and warranties of the
Company to be contained in the underwriting agreement cease to be
true and correct in all material respects, and
(v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(d) use its best efforts to prevent the issuance of any stop order
suspending the effectiveness of the registration statement or any state
qualification or any order preventing or suspending the use of any preliminary
prospectus, and use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement or any state
qualification or of any order preventing or suspending the use of any
preliminary prospectus at the earliest possible moment;
(e) if requested by the managing underwriter or a seller of
Registrable Securities, promptly incorporate in a prospectus supplement or
post-effective amendment to the registration statement such information as the
managing underwriter or a seller of Registrable Securities reasonably request to
have included therein relating to the plan of distribution with respect to the
Registrable Securities, including, without limitation, information with respect
to the amount of Registrable Securities being sold to such underwriters, the
purchase price being paid therefor by such underwriters and with respect to any
other terms of the underwritten offering of the Registrable Securities to be
sold in such offering; and make all required filings of such prospectus
supplement or post-effective amendment promptly after being notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(f) furnish to each seller of Registrable Securities and the
managing underwriter one signed copy of the registration statement and each
amendment thereto as filed with the Commission, and such number of copies of
such registration statement, each amendment (including post-effective
amendments) and supplement thereto (in each case including all documents
incorporated by reference and all exhibits thereto whether or not incorporated
by reference), the prospectus included in such registration statement (including
each
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preliminary prospectus) and such other documents as each seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(g) use reasonable efforts to register or qualify such Registrable
Securities under such other securities or "blue sky" laws of such jurisdictions
as any seller or underwriter reasonably requests in writing and to do any and
all other acts and things that may be reasonably necessary or advisable to
register or qualify for sale in such jurisdictions the Registrable Securities
owned by such seller; provided, however, that the Company shall not be required
to (a) qualify generally to do business in any jurisdiction where it is not then
so qualified, (b) subject itself to taxation in any such jurisdiction, (c)
consent to general service of process in any such jurisdiction or (d) provide
any undertaking required by such other securities or "blue sky" laws or make any
change in its charter or bylaws that the Board of Directors determines in good
faith to be contrary to the best interest of the Company and its stockholders;
(h) use reasonable efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers thereof
or the underwriters, if any, to consummate the disposition of such Registrable
Securities;
(i) notify each seller of such Registrable Securities at any time
when a prospectus relating thereto 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 contains an untrue statement of a
material fact or omits to state any 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 prepare and file with the Commission a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any 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;
(j) enter into customary agreements (including an underwriting
agreement in customary form, if the offering is an underwritten offering) and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection:
(i) make such representations and warranties to the
underwriters in form, substance and scope, reasonably satisfactory
to the managing underwriter, as are customarily made by issuers to
underwriters in primary underwritten offerings on the form of
registration statement used in such offering;
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(ii) obtain opinions and updates thereof of counsel, which
counsel and opinions to the Company (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriter,
addressed to the managing underwriter, covering the matters
customarily covered in opinions requested in primary underwritten
offerings on the form of registration statement used in such
offering and such other matters as may be reasonably requested by
the managing underwriter;
(iii) obtain so-called "cold comfort" letters and updates
thereof from the Company's independent public accountants addressed
to the managing underwriter in customary form and covering matters
of the type customarily covered in "cold comfort" letters to
underwriters in connection with primary underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter;
(iv) cause the underwriting agreements to set forth in full
the indemnification provisions and procedures of Section 9 (or such
other substantially similar provisions and procedures as the
managing underwriter shall reasonably request) with respect to all
parties to be indemnified pursuant to said Section; and
(v) deliver such documents and certificates as may be
reasonably requested by the Participating Holder or Holders to
evidence compliance with the provisions of this Section 7(j) and
with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
The above shall be done at the effectiveness of such registration
statement (when consistent with customary industry practice), each closing under
any underwriting or similar agreement as and to the extent required thereunder
and from time to time as may reasonably be requested by the sellers of
Registrable Securities, all in a manner consistent with customary industry
practice.
(k) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, the counsel referred to in clause (a) of Section 7(a)
and any attorney, accountant or other agent retained by any such seller or
underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors, employees
and agents to supply all information reasonably requested by any such Inspector
in connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and that it notifies the
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Inspectors are confidential shall not be disclosed by the Inspectors unless (a)
the disclosure of such Records is, in the reasonable judgment of any Inspector,
necessary to avoid or correct a misstatement or omission of a material fact in
the registration statement or (b) the release of such Records is ordered
pursuant to a subpoena or other order from a court or governmental agency of
competent jurisdiction or required (in the written opinion of counsel to such
seller or underwriter, which counsel shall be reasonably acceptable to the
Company) pursuant to applicable state or federal law. Each seller of Registrable
Securities agrees that it will, upon learning that disclosure of such Records
are sought by a court or governmental agency, give notice to the Company and
allow the Company, at the Company's expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential;
(l) if such sale is pursuant to an under-written offering, use
reasonable efforts to obtain a "cold comfort" letter and updates thereof from
the Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as the
holders, in the aggregate, of a majority of the Registrable Securities being
sold and the managing underwriter or underwriters reasonably request;
(m) otherwise use reasonable efforts to comply with the Securities
Act, the Exchange Act, all applicable rules and regulations of the Commission
and all applicable state securities and real estate syndication laws, and make
generally available to its security holders, as soon as reasonably practicable,
an earnings statement covering a period of 12 months, beginning within three
months after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(n) use reasonable efforts to cause all Registrable Securities
covered by the registration statement to be listed on each securities exchange,
if any, on which similar securities issued by the Company are then listed,
provided that the applicable listing requirements are satisfied;
(o) cooperate with the sellers of Registrable Securities and the
managing underwriter to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter may
reasonably request at least 2 business days prior to any sale of Registrable
Securities to the underwriters;
(p) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter;
(q) prior to the filing of any document which is to be incorporated
by reference into the registration statement or the prospectus (after the
initial filing of the
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registration statement) provide copies of such document to the sellers of
Registrable Securities, the underwriters and their respective counsel, make the
Company representatives available for discussion of such document with such
persons and, to the extent changes may be made to such document without the
consent of a third party (other than the Company's accountants or any affiliate
of the Company), make such changes in such document prior to the filing thereof
as any such persons may reasonably request to the extent and only to the extent
that such changes relate to a description of a DeBartolo Group Holder or the
Plan or Distribution being effected by a DeBartolo Group Holder; and
(r) participate, if so requested, in a "road show" in connection
with the sale of the Registrable Securities but only to the extent reasonably
requested by the managing underwriter, if such sale is pursuant to an
underwritten offering.
The Company may require each seller or prospective seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding the distribution of such securities
and other matters as may be required to be included in the registration
statement.
Each holder of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Paragraph (i) of this Section 7, such holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Paragraph (i) of this
Section 7, and, if so directed by the Company, such holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which such
registration statement shall be maintained effective pursuant to this Agreement
(including the period referred to in Paragraph (b) of this Section 7) by the
number of days during the period from and including the date of the giving of
such notice pursuant to Paragraph (i) of this Section 7 to and including the
date when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Paragraph (i) of this Section 7.
The Company shall keep the sellers of Registrable Securities to be
offered in a given registration advised of the status of any registration in
which they are participating. In addition, the Company and each such seller of
Registrable Securities may enter into understandings in writing whereby such
seller of Registrable Securities will agree in advance as to the acceptability
of the price or range of prices per share at which the Registrable Securities
included in such registration are to be offered to the public. Furthermore, the
Company shall establish pricing notification procedures reasonably acceptable to
each such seller of Registrable Securities and shall, as promptly as practicable
after learning the same from the managing underwriter, use reasonable efforts to
give oral notice to each such seller of Registrable
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Securities of the anticipated date on which the Company expects to receive a
notification from the managing underwriter (and any changes in such anticipated
date) of the price per share at which the Registrable Securities included in
such registration are to be offered to the public.
8. Registration Expenses. The Company shall pay all expenses
incident to its performance of or compliance with this Agreement, including,
without limitation, (a) all Commission, stock exchange and National Association
of Securities Dealers, Inc. registration, filing and listing fees, (b) all fees
and expenses incurred in complying with securities or "blue sky" laws (including
reasonable fees and disbursements of counsel in connection with "blue sky"
qualifications of the Registrable Securities), (c) all printing, messenger and
delivery expenses, (d) all fees and disbursements of the Company's independent
public accountants and counsel and (e) all fees and expenses of any special
experts retained by the Company in connection with any Demand Registration or
Piggyback Registration pursuant to the terms of this Agreement, regardless of
whether such registration becomes effective; provided, however, that the Company
shall not pay the costs and expenses of any Holder relating to underwriters'
commissions and discounts relating to Registrable Securities to be sold by such
Holder (but such costs and expenses shall be paid by the Holders on a pro rata
basis), brokerage fees, transfer taxes, or the fees or expenses of any counsel,
accountants or other representatives retained by the Holders, individually or in
the aggregate. All of the expenses described in this Section 8 that are to be
paid by the Company are herein called "Registration Expenses."
9. Indemnification; Contribution.
9.1. Indemnification by the Company. The Company agrees to
indemnify, to the fullest extent permitted by law, each Holder and each secured
creditor referred to in Section 12.4(c) (ii) hereof (a "Secured Creditor"), each
of their respective officers, directors, agents, advisors, employees and
trustees, and each person, if any, who controls such Holder or Secured Creditor
(within the meaning of the Securities Act), against any and all losses, claims,
damages, liabilities and expenses caused by any untrue or alleged untrue
statement of material fact contained in any registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as the same are caused by or contained in any
information with respect to such Holder or Secured Creditor furnished in writing
to the Company by such Holder or Secured Creditor expressly for use therein or
by such Holder's or Secured Creditor's failure to deliver a copy of the
prospectus or any supplements thereto after the Company has furnished such
Holder or Secured Creditor with a sufficient number of copies of the same or by
the delivery of
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prospectuses by such Holder or Secured Creditor after the Company notified such
Holder or Secured Creditor in writing to discontinue delivery of prospectuses.
The Company also shall indemnify any underwriters of the Registrable Securities,
their officers and directors and each person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the Holders.
9.2. Indemnification by Holders. In connection with any
registration statement in which a Holder is participating, each such Holder
shall furnish to the Company in writing such information and affidavits with
respect to such Holder as the Company reasonably requests for use in connection
with any such registration statement or prospectus and agrees to indemnify,
severally and not jointly, to the fullest extent permitted by law, the Company,
its officers, directors and agents and each person, if any, who controls the
Company (within the meaning of the Securities Act) against any and all losses,
claims, damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of a material fact or any omission or alleged omission of a
material fact required to be stated in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or
necessary to make the statements therein (in the case of a prospectus, in light
of the circumstances under which they were made) not misleading, to the extent,
but only to the extent, that such untrue or alleged untrue statement or omission
is contained in or omitted from, as the case may be, any information or
affidavit with respect to such Holder so furnished in writing by such Holder
specifically for use in the Registration Statement. Each Holder also shall
indemnify any underwriters of the Registrable Securities, their officers and
directors and each person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the Company.
9.3. Conduct of Indemnification Proceedings. Any party that
proposes to assert the right to be indemnified under this Section 9 shall,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim is to be made against an indemnifying party or
parties under this Section 9, notify each such indemnifying party of the
commencement of such action, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party will not relieve it from any
liability that it may have to any indemnified party under the foregoing
provisions of this Section 9 unless, and only to the extent that, such omission
results in the forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying party will
be entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the action, with
counsel reasonably satisfactory to the indemnified party, and after notice from
the indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will
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not be liable to the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. If the
indemnifying party assumes the defense, the indemnifying party shall have the
right to settle such action without the consent of the indemnified party;
provided, however, that the indemnifying party shall be required to obtain such
consent (which consent shall not be unreasonably withheld) if the settlement
includes any admission of wrongdoing on the part of the indemnified party or any
decree or restriction on the indemnified party or its officers or directors;
provided, further, that no indemnifying party, in the defense of any such
action, shall, except with the consent of the indemnified party (which consent
shall not be unreasonably withheld), consent to entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability with respect to such action. The indemnified party will have the
right to employ its own counsel in any such action, but the fees, expenses and
other charges of such counsel will be at the expense of such indemnified party
unless (a) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (b) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available in the indemnifying party, (c) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (d) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time from all such indemnified party or
parties unless (a) the employment of more than one counsel has been authorized
in writing by the indemnifying party or parties, (b) an indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it that are different from or in addition to those
available to the other indemnified parties or (c) a conflict or potential
conflict exists (based on advice of counsel to an indemnified party) between
such indemnified party and the other indemnified parties, in each of which cases
the indemnifying party shall be obligated to pay the reasonable fees and
expenses of such additional counsel or counsels. An indemnifying party will not
be liable for any settlement of any action or claim effected without its written
consent (which consent shall not be unreasonably withheld).
9.4. Contribution. If the indemnification provided for in this
Section 9 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any
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<PAGE>
losses, claims, damages, liabilities or expenses referred to herein, then the
indemnifying party, to the extent such indemnification is unavailable, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions that resulted in such losses, claims, damages, liabilities or
expenses. The relative fault of such indemnifying party and indemnified parties
shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 9.3, any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9.4 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. 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.
If indemnification is available under this Section 9, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 9.1 and 9.2 without regard to the relative fault of said
indemnifying parties or indemnified party.
10. Participation in Underwritten Registrations. No person may
participate in any underwritten registration hereunder unless such person
(i)agrees to sell such person's securities on the basis provided in any
underwriting agreements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
11. Rule 144. The Company covenants that it shall use its best
efforts to file the reports required to be filed by it under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder if and when the Company becomes obligated to file such
reports (or, if the Company ceases to be required to file such reports, it
shall, upon the request of any Holder, make publicly available other
information), and it shall, if feasible, take such further action as any Holder
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the
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Securities Act, as such Rule may be amended from time to time or (ii) any
similar rules or regulations hereafter adopted by the Commission. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
12. Miscellaneous.
12.1. Remedies. Each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
12.2. Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of all
Holders.
12.3. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, or
sent by certified or registered or express mail, postage prepaid. Any such
notice shall be deemed given when so delivered personally, or, if mailed, five
days (or, in the case of express mail, one day) after the date of deposit in the
United States mail, as follows:
(i) if to the Company, to:
Simon Property Group, Inc.
Merchants Plaza
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Attention: David Simon
James M. Barkley, Esq.
Facsimile No.: (317) 685-7221
with a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
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Attention: Richard L. Posen, Esq.
Facsimile: (212) 728-8111
(ii) if to any Holder, to the most current address of such Holder
given by such Holder to the Company in writing.
Any party may by notice given in accordance with this Section 12.3
to the other parties designate another address or person for receipt of notice
hereunder.
12.4. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding upon
the Holders and their respective successors and assigns and the successors and
assigns of the Company; provided, however, that, except as otherwise provided in
Sections 12.4(b) and (c) hereof, no Limited Partner Holder may assign its rights
hereunder to any person who is not a permitted transferee of such Holder
pursuant to the terms of the Partnership Agreement; provided further, that,
except as otherwise provided in Section 12.4(b) or (c) hereof, no Holder may
assign its rights hereunder to any person who does not acquire all or
substantially all of such Holder's Registrable Securities or Units, as the case
may be, or, (i) in the case of the Simon Family Entities, to any person who does
not acquire at least $10,000,000 worth of the Simon Family Entities' Registrable
Securities or Units and (ii) in the case of the DeBartolo Group to any person
who does not acquire at least $10,000,000 worth of DeBartolo Group's Registrable
Securities or Units, (iii) in the case of State Street Bank and Trust Company
(the "TREET Trustee"), not individually but solely in its capacity as trustee of
the Telephone Real Estate Equity Trust ("TREET"), to any person who does not
acquire at least $10,000,000 worth of TREET's Registrable Securities, (iv) in
the case of Stichting Pensioen fonds Voor de Gezondheid Geestelijke en
Maatschappelijke Belangan ("PGGM"), to any person who does not acquire at least
$10,000,000 worth of PGGM's Registrable Securities, and (v) in the case of
Kuwait Investment Authority, as agent for the government of Kuwait ("Kuwait"),
to any person who does not acquire at least $10,000,000 worth of Kuwait's
Registrable Securities. Notwithstanding the foregoing, it is understood and
agreed that the TREET Trustee shall have the right to assign its rights
hereunder to the beneficial owners of TREET in connection with any distribution
of TREET's Registrable Securities to such beneficial owners.
(b) Affiliates. It is understood that JCP Realty, Inc. ("JCP") and
Brandywine Realty, Inc. ("Brandywine") are affiliates and that under the terms
of the Partnership Agreement, Limited Partners have the right to assign their
partnership interests, in whole or in part, to their affiliates. The provisions
of this Agreement shall inure to the benefit of all such affiliates and, for all
purposes of this Agreement, a party to this Agreement (other than the Company)
and all of its affiliates which at the time in question are Limited Partners of
the Operating Partnership shall
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<PAGE>
be deemed to be one party, with the consequence that (i) they may aggregate
their Units for the purpose of exercising their rights under this Agreement and
(ii) to assign the benefits of this Agreement to a third party which is not an
affiliate of them, except as otherwise provided with respect to the Simon Family
Entities in Section 12.4(a) above, they must together assign to such third party
all or substantially all of the aggregate amount of Units held by all of them.
(c) Transfer of Exchange and Registration Rights. (i) The rights of
each DeBartolo Group Holder to make a request and to cause the Company to
register Registrable Securities owned by such Holder under Section 2 hereof and
the right to cause the Company to include Registrable Securities in a
registration for the account of the Company under Section 3 hereof (the
"Rights") may be assigned, from time to time and reassigned, in whole or in
part, to a transferee or assignee receiving (except as provided in Section
12.4(c) (ii) below) at least three percent (3%) of the outstanding shares of
Common Stock or Units exchangeable into at least such number of shares of Common
Stock (the "Three Percent Requirement") in connection with a transfer or
assignment of shares of Common Stock received upon exchange of Units in
connection with a substantially contemporaneous resale of all such Units or
Units which is not prohibited under any other agreement to which the transferor
or assignor is a party or any pledge of Units or Common Stock which is not
prohibited under any other agreement to which the transferor or assignor is a
party, provided that (x) such transfer may otherwise be effected in accordance
with applicable securities law, (y) the Company is given written notice of such
assignment prior to such assignment or promptly thereafter, and (z) the
transferee or assignee by written agreement acknowledges that he is bound by the
terms of this Agreement. From and after the occurrence of any such transfer, the
defined term "Holder" shall include such transferees or assignees.
(ii) The Rights granted to each member of the DeBartolo Group
hereunder may be assigned pursuant to this Section 12.4(c) to a
secured creditor to whom such Holder has pledged Units (or other
securities exchangeable or convertible into Registrable Securities)
or Registrable Securities prior to the date hereof, which pledge
shall be permitted hereunder, and the Three Percent Requirement
shall not apply to any such assignment. Such rights may, to the
extent provided in the pledge, security or other agreement or
instrument pursuant to which such rights have been assigned and to
the extent permitted by the Securities Act and the rules and
regulations thereunder, be exercised by any such secured creditor
even though it does not become an assignee of the pledged Units of
such Holder pursuant to Section 12.4(c)(i) hereof. The Company
acknowledges and consents to the pledge by each of Rues Properties
LLC, Great Lakes Mall LLC, NIDC LLC, EJDC LLC and DeBartolo LLC (the
"DeBartolo Pledgors") of the rights, as described in the two
preceding sentences, to Bank One, N.A., or such other institution
serving as indenture trustee under the
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<PAGE>
Indenture dated as of July 8, 1998 among the DeBartolo Pledgors and
Bank One, N.A., as indenture trustee, as such indenture may be
supplemented or amended from time to time (the "Indenture" and Bank
One, N.A. or such other institution, the "Trustee") with respect to
the Units pledged to the Trustee pursuant to the Indenture, and that
the Trustee shall be deemed to be a Secured Creditor as such term is
used herein. Upon notice to the Company by any such secured creditor
that it has become authorized to exercise such Rights, no further
written instrument shall be required under this Agreement; provided
that such secured creditor provides the Company at the time it
exercises any rights with such indemnification and certifications as
are reasonably satisfactory to the Company in form and substance as
to its authorization to exercise such rights. It is further
expressly understood and agreed that (i) the Company shall not be
required in any way to determine the validity or sufficiency,
whether in form or in substance, of any certification from a secured
creditor that it is authorized to exercise Rights so transferred to
it, (ii) the Company shall have no liability to any Holder for
acting in accordance with any such certification and (iii) no
further indemnification to the Company shall be required pursuant to
this Section 12.4(c). The Company shall not be required in any way
to determine the validity or sufficiency, whether in form or in
substance, of any written instrument referred to in the second
sentence of this Section 12.4(c)(ii), and it shall be sufficient if
any writing purporting to be such an instrument is delivered to the
Company and purports on its face to be correct in form and signed or
otherwise executed by such Holder. The Company may continue to rely
on such written instrument until such time, if any, that it receives
a written instrument from the secured creditor named therein (or its
successor) revoking, or acknowledging the revocation or other
termination of, the authority granted by such written instrument.
(iii) The rights of each of JCP and Brandywine to make a
request and cause the Company to register Registrable Securities
owned by such Holder under Section 2 hereof and the right of such
Holder to cause the Company to include Registrable Securities in a
registration for the account of the Company under Section 3 hereof
(the "JCP Rights") may be assigned (i) to a secured creditor to whom
such Holder has pledged Units or, if such Holder has not previously
exercised the right provided for in the first sentence of Section
9.3(c) of the Operating Partnership Agreement, to any Person to whom
the secured creditor has transferred the pledged Units pursuant to
Section 9.3(c) of the Operating Partnership Agreement (such secured
creditor or such transferee being referred to as the "Assignee"), in
each case subject to the further terms and provision of this Section
12.4(c)(iii). The JCP Rights may be exercised by the Assignee after
the Assignee has become a substitute Limited Partner of the
Operating Partnership
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and only if the Assignee provides the Company at the time it
exercises the JCP Rights with such indemnification and
certifications as are reasonably satisfactory to the Company in form
and substance as to its authorization to exercise such JCP Rights.
It is further expressly understood and agreed that (i) the Company
shall not be required in any way to determine the validity or
sufficiency, whether in form or in substance, of any certification
from the Assignee that it is authorized to exercise the JCP Rights
so transferred to it, (ii) the Company shall have no liability to
such Holder for acting in accordance with any such certification and
(iii) except as set forth above in this paragraph, no further
indemnification to the Company shall be required pursuant to this
Section 12.4(c).
12.5. Mergers, Etc. In addition to any other restriction on
mergers, consolidations and reorganizations contained in the articles of
incorporation, by-laws, code of regulations or agreements of the Company, the
Company covenants and agrees that it shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless all the Registrable Securities and all of
the outstanding shares of Common Stock of the Company and Units are exchanged or
purchased upon substantially equivalent economic terms for cash or freely
marketable securities of the surviving corporation unless the surviving
corporation shall, prior to such merger, consolidation or reorganization, agree
in a writing to assume in full and without modification other than conforming
changes necessary to reflect the new issuer of the Registrable Securities all of
the obligations of the Company under this Agreement, and for that purpose
references hereunder to "Registrable Securities" shall be deemed to include the
securities which holders of Common Stock would be entitled to receive in
exchange for Registrable Securities pursuant to any such merger, consolidation,
sale of all or substantially all of its assets or business, liquidation,
dissolution or reorganization.
12.6. Intentionally Omitted.
12.7. Intentionally Omitted.
12.8. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
12.9. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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12.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
ANDCONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12.11. Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights of the Holders shall be enforceable to the full
extent permitted by law.
12.12. Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. Upon execution by any of the
parties hereto, such party irrevocably waives (i) all of its rights under the
Registration Rights Agreement, dated as of August 9, 1996, by and among certain
of the parties hereto and/or (ii) any registration rights (including demand,
piggy back and shelf registration rights) it may hold relating to the Company
(including any predecessor such as Corporate Property Investors). There are no
restrictions, promises, warranties or undertakings other than those set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
Page 37 of __
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
SIMON PROPERTY GROUP, INC.
By:
-----------------------------------------
Name: David Simon
Title: Chief Executive Officer
MELVIN SIMON & ASSOCIATES, INC.
By:
-----------------------------------------
Name: David Simon
Title: Vice President
JCP REALTY, INC.
By:
-----------------------------------------
Name: Jack Garvey
Title: Executive Vice President
BRANDYWINE REALTY, INC.
By:
-----------------------------------------
Name: Jack Garvey
Title: Executive Vice President
--------------------------------------------
MELVIN SIMON
--------------------------------------------
HERBERT SIMON
--------------------------------------------
DAVID SIMON
--------------------------------------------
DEBORAH J. SIMON
Page 38 of __
<PAGE>
--------------------------------------------
CYNTHIA J. SIMON SKJODT
--------------------------------------------
IRWIN KATZ, as Successor Trustee Under
Declaration of Trust and Trust Agreement
Dated August 4, 1970
--------------------------------------------
IRWIN KATZ, as Trustee of the Melvin
Simon Trust No. 1, the Melvin Simon Trust
No. 6, the Melvin Simon Trust No. 7 and
the Herbert Simon Trust No. 3
NORTHEAST PROPERTIES, LLC
By:
-----------------------------------------
Name: Herbert Simon, Member
S.F.G. COMPANY, L.L.C.
By: MELVIN SIMON & ASSOCIATES, INC., its
manager
By:
------------------------------------
Name: David Simon
Title: Vice President
Page 39 of __
<PAGE>
[INTENTIONALLY LEFT BLANK]
Page 40 of __
<PAGE>
MELVIN SIMON, HERBERT SIMON AND DAVID SIMON,
NOT INDIVIDUALLY BUT AS VOTING TRUSTEES
UNDER THAT CERTAIN VOTING TRUST AGREEMENT,
VOTING AGREEMENT AND PROXY DATED AS OF
DECEMBER 1, 1993, BETWEEN MELVIN SIMON &
ASSOCIATES, INC., AND MELVIN SIMON, HERBERT
SIMON AND DAVID SIMON:
--------------------------------------------
Melvin Simon
--------------------------------------------
Herbert Simon
--------------------------------------------
David Simon
ESTATE OF EDWARD J. DeBARTOLO, SR.
By:
----------------------------------------
Name: Marie Denise DeBartolo York
Title: Co-Executor
By:
----------------------------------------
Name: Edward J. DeBartolo, Jr.
Title: Co-Executor
--------------------------------------------
Edward J. DeBartolo, Jr., individually,
and in his capacity as Trustee under (1)
the Lisa M. DeBartolo Revocable
Trust-successor by assignment from Edward
J. DeBartolo Trust No. 5, (ii) the
Tiffanie L. DeBartolo Revocable
Trust-successor by assignment from Edward
J. DeBartolo Trust No. 6 and (iii) Edward
J. DeBartolo Trust No. 7 for the Benefit
of Nicole A. DeBartolo
Page 41 of __
<PAGE>
--------------------------------------------
Cynthia R. DeBartolo
--------------------------------------------
Marie Denise DeBartolo York,
individually, and in his/her capacity as
Trustee under (i) Edward J. DeBartolo
Trust No. 8 for the benefit of John
Edward York, (ii) Edward J. DeBartolo
Trust No. 9 for the benefit of Anthony
John York, (iii) Edward J. DeBartolo
Trust No. 10 for the benefit of Mara
Denise York and (iv) Edward J. DeBartolo
Trust No. 11 for the benefit of Jenna
Marie York
EJDC LLC
By:
-----------------------------------------
Name:
Title:
DeBARTOLO INC.
By:
-----------------------------------------
Name:
Title:
NIDC LLC
By:
-----------------------------------------
Name:
Title:
GREAT LAKES MALL, INC.
By:
-----------------------------------------
Name:
Title:
Page 42 of __
<PAGE>
RUES PROPERTIES, INC.
By:
-----------------------------------------
Name:
Title:
CHELTENHAM SHOPPING CENTER ASSOCIATES
By:
-----------------------------------------
Name:
Title:
STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN
By:
-----------------------------------------
Name:
Title:
KUWAIT FUND FOR ARAB ECONOMIC DEVELOPMENT
By:
-----------------------------------------
Name: Bader Al-Humaidhi
Title: Director-General
ARAB FUND FOR ECONOMIC AND SOCIAL
DEVELOPMENT
By:
-----------------------------------------
Name:
Title:
Page 43 of __
<PAGE>
KUWAIT INVESTMENT AUTHORITY AS AGENT FOR
GOVERNMENT OF KUWAIT
By:
-----------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
-----------------------------------------
Name:
Title:
Page 44 of __
