<PAGE>
As filed with the Securities and Exchange Commission on September 17, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
The Mills Corporation
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 1300 Wilson Boulevard 52-1802283
(State or other jurisdiction of Suite 400 (I.R.S. Employer
incorporation or organization) Arlington, Virginia 22209 Identification Number)
(Address of principal executive offices) (Zip code)
</TABLE>
The Mills Corporation 1994 Executive Equity Incentive Plan
(Full title of the plan)
Laurence C. Siegel
Chairman of the Board and
Chief Executive Officer
1300 Wilson Boulevard
Suite 400
Arlington, Virginia 22209
(Name and address of agent for service)
(703) 526-5000
(Telephone number, including area code, of agent for service)
-------------------------------------------------------------
With a copy to:
J. Warren Gorrell, Jr.
Alan L. Dye
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
-------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per share aggregate offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, par
value $.01 per share 2,500,000 $27.31(1) $68,275,000 $20,689.89
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(h) under the Securities Act of 1933 as of
September 12, 1997 solely for the purpose of calculating the registration
fee.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I
will be sent or given to employees participating in The Mills
Corporation 1994 Executive Equity Incentive Plan (the "Plan"), as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act"). In accordance with the instructions to Part I
of Form S-8, such documents will not be filed with the Securities and
Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference pursuant to Item 3 of Part II
of this Registration Statement, taken together, constitute the
prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Mills Corporation (the "Company") hereby incorporates by
reference into this Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, and Form 10-K/A dated April 30, 1997;
(b) The Company's current reports on Form 8-K dated March 12, 1997,
March 18, 1997 and March 20, 1997;
(c) The Company's quarterly reports on Form 10-Q for the periods
ended March 31, 1997 and June 30, 1997;
(d) The description of the Company's common stock contained in
the Company's Registration Statement on Form 8-A filed with
the Commission and which became effective on June 14, 1994
(Reg. No. 1-12994); and
(e) All documents filed by the Company subsequent to the filing
of this Registration Statement pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities
remaining unsold.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded to the
extent that a statement contained in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such prior statement. The documents required to be so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in
such proxy statement which is not, pursuant to the Commission's rules, deemed
to be "filed" with the Commission or subject to the liabilities of Section 18
of the Exchange Act.
-1-
<PAGE>
Item 4. Description of Securities.
A description of the Company's Common Stock, par value $.01 per share,
is incorporated by reference under Item 3.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) Article VII of the Company's Amended and Restated Certificate
of Incorporation, entitled "Indemnification," and Section VI of the Company's
Amended and Restated Bylaws, entitled "Indemnification," are set forth in
Exhibits 3.1, and 3.3, respectively, to this Registration Statement and
incorporated herein by reference.
(b) Section 145 of the General Corporation Law of the State of
Delaware, as amended, entitled "Indemnification of Officers, Directors,
Employees and Agents; Insurance," is set forth as Exhibit 99.3 to this
Registration Statement and incorporated herein by reference.
(c) The Company has in effect a policy of liability insurance
covering its directors and officers.
(d) The Company has entered into indemnification agreements with
certain of its directors and officers, the form of which is set forth as
Exhibit 4.1 to this Registration Statement and incorporated herein by
reference.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
3.1 The Company's Amended and Restated Certificate
of Incorporation.
3.2 First Amendment to the Company's Amended and Restated Certificate
of Incorporation.
3.3* Section VI of the Company's Amended and Restated Bylaws.
4.1* Form of Indemnification Agreement between the Company and
its directors and officers.
4.2* Specimen Form of Certificate of Common Stock of the Company.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of
the securities being registered.
23.1 Consent of Hogan & Hartson L.L.P. (included as part of
Exhibit 5.1).
-2-
<PAGE>
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included as part of signature page).
99.1* The Mills Corporation 1994 Executive Equity Incentive Plan.
99.2 First Amendment to The Mills Corporation 1994 Executive
Equity Incentive Plan.
99.3 Section 145 of the General Corporation Law of the State of
Delaware, as amended.
_______________________
* Included as an exhibit to the Company's Registration Statement on
Form S-11, File No. 33-71524, and incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment
to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement;
(iii)To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the Registration Statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
-3-
<PAGE>
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered
therein, and the offering of such securities at
that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant of the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Arlington,
Commonwealth of Virginia, on September 16, 1997.
THE MILLS CORPORATION
By: /s/ Laurence C. Siegel
----------------------------------
Laurence C. Siegel
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of The Mills Corporation,
do hereby constitute and appoint Laurence C. Siegel and Peter B. McMillan,
and each and either of them, our true and lawful attorneys-in-fact and
agents, to do any and all acts and things in our names and our behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our name in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Company to comply with the Securities Act and any rules,
regulations and requirements of the Securities and Exchange Commission, in
connection with this Registration Statement, or any registration statement
for this offering that is to be effective upon filing pursuant to Rule 462(b)
under the Securities Act, including specifically, but without limitation, any
and all amendments (including post-effective amendments) hereto; and we
hereby ratify and confirm all that said attorneys and agents, or either of
them, shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated as of September 16, 1997:
SIGNATURE TITLE
--------- -----
/s/ Laurence C. Siegel Chairman of the Board and
- ---------------------- Chief Executive Officer
Laurence C. Siegel (Principal Executive Officer)
/s/ Peter B. McMillan President, Chief Operating Officer
- ---------------------- and Director
Peter B. McMillan
-5-
<PAGE>
/s/ Kenneth R. Parent Senior Vice President and Chief
- ---------------------------------- Financial Officer (Principal Financial
Kenneth R. Parent Officer and Principal Accounting Officer)
- ---------------------------------- Director
Harry H. Nick
/s/ Dietrich von Boetticher Vice Chairman and Director
- ----------------------------------
Dietrich von Boetticher
/s/ John M. Ingram Vice Chairman and Director
- ----------------------------------
John M. Ingram
/s/ Charles R. Black, Jr. Director
- ----------------------------------
Charles R. Black, Jr.
/s/ James C. Braithwaite Director
- ----------------------------------
James C. Braithwaite
/s/ The Hon. Joseph B. Gildenhorn
- ---------------------------------- Director
The Hon. Joseph B. Gildenhorn
- ---------------------------------- Director
Peter A. Gordon
/s/ Franz von Perfall Director
- ----------------------------------
Franz von Perfall
/s/ Robert P. Pincus Director
- ----------------------------------
Robert P. Pincus
-6-
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
3.1 The Company's Amended and Restated Certificate of Incorporation.
3.2 First Amendment to the Company's Amended and Restated
Certificate of Incorporation.
3.3* Section VI of the Company's Amended and Restated Bylaws.
4.1* Form of Indemnification Agreement between the Company and
its directors and officers.
4.2* Specimen Form of Certificate of Common Stock of the Company.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of
the securities being registered.
23.1 Consent of Hogan & Hartson L.L.P. (included as part of
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included as part of signature page).
99.1* The Mills Corporation 1994 Executive Equity Incentive Plan.
99.2 First Amendment to The Mills Corporation 1994 Executive
Equity Incentive Plan.
99.3 Section 145 of the General Corporation Law of the State of
Delaware, as amended.
-7-
<PAGE>
Exhibit 3.1
The Company's
First Amended and Restated Certificate
of Incorporation
<PAGE>
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE MILLS CORPORATION
ARTICLE I
NAME; ORIGINAL NAME;
ORIGINAL DATE OF FILING
The name of the corporation is The Mills Corporation (the
"Corporation"). The Corporation was previously incorporated under the Delaware
General Corporation Law (the "GCL") as The Mills Corporation, and the original
Certificate of Incorporation of The Mills Corporation was filed with the
Delaware Secretary of State on September 21, 1993.
ARTICLE II
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The address of the registered office of the Corporation in the State
of Delaware is c/o Corporation Trust Company, 1209 Orange Street, Wilmington,
New Castle County, Delaware and the name of its registered agent is Corporation
Trust Company.
ARTICLE III
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may now or hereafter be organized under the
GCL. It shall have all powers that may now or hereafter be lawful for a
corporation to exercise under the GCL.
ARTICLE IV
CAPITAL STOCK
Section 4.1. Total Number of Shares of Capital Stock. The total
number of shares of capital stock of all classes that the Corporation shall have
authority to issue is 170,000,000 shares. The authorized stock is divided into
20,000,000 shares of Preferred Stock, with the par value of $0.01 each (the
"Preferred Stock"), and 100,000,000 shares of voting common stock, with the par
value of $0.01 each (the "Common Stock"), and 50,000,000 shares of
1
<PAGE>
non-voting common stock, with the par value of $0.01 each (the "Excess Stock").
Section 4.2. Preferred Stock. (a) The shares of Preferred Stock of
the Corporation may be issued from time to time in one or more classes thereof,
the shares of each class thereof to have such voting powers, full or limited, or
no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations, restrictions to preserve REIT status or other restrictions thereof,
as are stated and expressed herein or in the resolution or resolutions providing
for the issue of such class, adopted by the Board of Directors as hereinafter
provided.
(b) Authority is hereby expressly granted to the Board of Directors
of the Corporation, subject to the provisions of this Article IV and to the
limitations prescribed by the GCI, to authorize the issue of one or more class
of Preferred Stock and, with respect to each such class, to fix by resolution or
resolutions providing for the issue of such class the voting powers, full or
limited, if any, of the shares of such class, the designations, preferences and
relative, participating, optional or other special rights, and -qualifications,
limitations or restrictions thereof. The authority of the Board of Directors
with respect to each class thereof shall include, but not be limited to, the
determination or fixing of the following:
(i) the designation of such class;
(ii) the number of shares to compose such class, which number the
Board of Directors may thereafter (except where otherwise
provided in a resolution designating a particular class) increase
(but not above the total number of authorized shares of the
class) or decrease (but not below the number of shares thereof
then outstanding);
(iii) the dividend rate of such class, the conditions and
dates upon which such dividends shall be payable, the relation
which such dividends shall bear to the dividends payable on any
other class or classes of capital stock of the Corporation and
whether such dividends shall be cumulative or noncumulative;
(iv) whether the shares of such class shall be subject to
redemption by the Corporation and, if made subject to such
redemption, the times, prices and other terms and conditions of
such redemption;
2
<PAGE>
(v) the terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such class;
(vi) whether or not the shares of such class shall be convertible
into or exchangeable for shares of any other class or classes of
any capital stock or any other securities of the Corporation,
and, if provision is made for conversion or exchange, the times,
prices, rates, adjustments and other terms and conditions of such
conversion or exchange;
(vii) the extent, if any, to which the holders of shares of
such class shall be entitled to vote with respect to the election of
directors or otherwise;
(viii) the restrictions, if any, on the issue or reissue
of any additional Preferred Stock;
(ix) the rights of the holders of the shares of such class
upon the dissolution of, voluntary or involuntary liquidation, winding
up or upon the distribution of assets of the Corporation; and
(x) the manner in which any facts ascertainable outside the
resolution or resolutions providing for the issue of such class shall
operate upon the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such class.
Section 4.3. Voting Common Stock.
(a) Subject to all of the rights of the holders of Preferred
Stock provided for by resolution or resolutions of the Board of Directors
pursuant to this Article IV or by the GCL and subject to Section 12.4 hereof,
each holder of voting Common Stock shall have one vote per share of voting
Common Stock held by such holder on all matters on which holders of voting
Common Stock are entitled to vote and shall have the right to receive notice of
and to vote at all meetings of the stockholders of the Corporation.
(b) The holders of voting Common Stock shall have the right to
receive dividends as and when declared by the Board of Directors in its sole
discretion, subject to any limitations on the declaring of dividends imposed by
the GCL. In determining whether to declare any such dividends, the Board of
Directors shall consider all pertinent information including, without
limitation, the Corporation's overall financial condition, funds from operations
and its intention to elect and maintain tax status as a real estate
3
<PAGE>
investment trust for federal income tax purposes, pursuant to Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (or any successor
provisions). Upon the declaration of dividends hereunder, the holders of Common
Stock shall be entitled to share in such dividends, pro rata, in accordance with
the relative number of shares of Common Stock held by each such stockholder.
(c) Stockholders shall not have preemptive rights to acquire
additional shares of stock of any class which the Corporation may elect to issue
or sell.
(d) In the event of the dissolution, liquidation or winding up of the
business operations and affairs of the Corporation, the Corporation shall first
provide for the payment of its outstanding debts and liabilities. Thereafter,
subject to all of the rights of the holders of Preferred Stock as provided in
Section 4.2 hereof and as provided by resolution or resolutions of the Board of
Directors pursuant to Section 4.2 hereof and Excess Stock as provided in Section
12.4(c), the holders of voting Common Stock shall be entitled to share in all
remaining liquidation proceeds, pro rata, in accordance with the relative number
of shares of voting Common Stock and Excess Stock held by each stockholder.
Section 4.4. Excess Stock. Shares of Excess Stock shall be a
separate class of issued and outstanding stock of the Corporation. The rights,
privileges and other attributes of Excess Stock shall be as provided in Section
12.4 hereof.
Section 4.5. Issuance of Rights to Purchase Securities and Other
Property. Subject to all of the rights of the holders of Preferred Stock
provided for by resolution or resolutions of the Board of Directors pursuant to
this Article IV or by the GCL, the Board of Directors is hereby authorized to
create and to authorize and direct the issuance (on either a pro rata or a
non-pro rata basis) by the Corporation of rights, options and warrants for the
purchase of shares of capital stock of the Corporation, other securities of the
Corporation or shares or other securities of any successor in interest of the
Corporation (a "Successor"), at such times, in such amounts, to such persons,
for such consideration (if any), with such form and content (including without
limitation the consideration for which any shares of capital stock of the
Corporation, other securities of the Corporation or shares or other securities
of any Successor are to be issued) and upon such terms and conditions as it may,
from time to time, determine upon, subject only to the restrictions,
limitations, conditions and requirements imposed by the
4
<PAGE>
GCL, other applicable laws and this Amended and Restated Certificate of
Incorporation (this "Certificate").
ARTICLE V
BOARD OF DIRECTORS
Section 5.1. Power of the Board of Directors. The business and
affairs of the Corporation shall be managed by or under the direction of its
Board of Directors. In furtherance, and not in limitation, of the powers
conferred by the GCL, the Board of Directors is expressly authorized to:
(a) adopt, amend, alter, change or repeal the Bylaws of the
Corporation; provided, however, that no Bylaws hereafter adopted shall
invalidate any prior act of the directors that was valid at the time such action
was taken;
(b) determine the rights, powers, duties, rules and procedures that
affect the power of the Board of Directors to manage and direct the business and
affairs of the Corporation, including the power to designate and empower
committees of the Board of Directors to elect, appoint and empower the officers
and other agents of the Corporation, and to determine the time and place of, and
the notice requirements for, Board meetings, as well as quorum and voting
requirements for, and the manner of taking, Board action; and
(c) exercise all such powers and do all such acts as may be exercised
or done by the Corporation, subject to the provisions of the GCL, this
Certificate and the Bylaws of the Corporation.
Section 5.2. Number of Directors. The number of directors
constituting the Board of Directors shall be as specified in the Bylaws.
Section 5.3. Classes, Election and Term. The Board of Directors
shall be divided into three classes, with each class to be as nearly equal in
number as reasonably possible, and with the initial term of office of the first
class of directors to expire at the annual meeting of stockholders to be held
after the end of the Corporation's 1994 fiscal year, the initial term of office
of the second class of directors to expire at the annual meeting of stockholders
to be held after the end of the Corporation's 1995 fiscal year and the initial
term of office of the third class of directors to expire at the annual meeting
of stockholders to be held after the end of the Corporation's 1996 fiscal year.
Commencing with the annual meeting of stockholders to be held after the end of
the Corporation's 1994 fiscal year, directors elected to
5
<PAGE>
succeed those directors whose terms have thereupon expired shall be elected for
a term of office to expire at the third succeeding annual meeting of
stockholders after their election, and upon the election and qualification of
their successors. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain or attain, if
possible, the number of directors in each class as nearly equal as reasonably
possible, but in no case will a decrease in the number of directors shorten the
term of any incumbent director.
Upon adoption of this Certificate, the initial Board of Directors
shall include the following individuals who shall serve in the specified class:
First class of directors
------------------------
Harry H. Nick
James C. Braithwaite
Robert P. Pincus
Second class of directors
-------------------------
Laurence C. Siegel
Franz von Perfall
Peter A. Gordon
Third class of directors
-------------------------
Herbert S. Miller
Dietrich von Boetticher
John Ingram
Section 5.4. Vacancies. Any vacancies in the Board of Directors
for any reason and any newly created directorships resulting by reason of any
increase in the number of directors may be filled only by the Board of
Directors, acting by a majority of the remaining directors then in office,
although less than a quorum, or by a sole remaining director, and any directors
so appointed shall hold office until the next election of the class for which
such directors have been chosen and until their successors are elected and
qualified.
Section 5.5. Removal of Directors. Except as may be provided in
a resolution or resolutions providing for any class of Preferred Stock pursuant
to Article IV hereof, with respect to any directors elected by the holders of
such class, any director, or the entire Board of Directors, may be removed from
office at any time for cause by the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the voting
6
<PAGE>
power of all of the shares of capital stock of the Corporation then entitled to
vote generally in the election of directors, voting together as a single class.
ARTICLE VI
STOCKHOLDER ACTIONS AND
MEETINGS OF STOCKHOLDERS
Except as may be provided in a resolution or resolutions providing
for any class of Preferred Stock pursuant to Article IV hereof, any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of such holders and may not
be effected by any consent in writing by such holders. Special meetings of
stockholders of the Corporation may be called only by the Board of Directors
pursuant to a resolution adopted by a majority of the members of the Board of
Directors then in office. Elections of directors need not be by written ballot,
unless otherwise provided in the Bylaws of the Corporation.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Right to Indemnification. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact:
(a) that he or she is or was a director or officer of the
Corporation; or
(b) that he or she, being at the time a director or officer
of the Corporation, is or was serving at the request of the
Corporation as a director, trustee, officer, employee or
agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with
respect to an employee benefit plan (collectively, "another
enterprise" or "other enterprise");
whether either in case (a) or in case (b) the basis of such proceeding is
alleged action or inaction (x) in an official capacity as a director or officer
of the Corporation, or as a director, trustee, officer, employee or agent of
such other enterprise, or (y) in any other capacity related to the Corporation
or such other enterprise while so serving as a director, trustee, officer,
7
<PAGE>
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent not prohibited by Section 145 of the GCL (or any successor
provision or provisions) as the same exists or may hereafter be amended (but, in
the case of any such amendment, with respect to actions taken prior to such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), against
all expense, liability and loss (including, without limitation, attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such person in connection
therewith if such person satisfied the applicable level of care to permit such
indemnification under the GCL. The persons indemnified by this Article VII are
hereinafter referred to as "indemnities." Such indemnification as to such
alleged action or inaction shall continue as to an indemnitee who has after such
alleged action or inaction ceased to be a director or officer of the
Corporation, or director, officer, employee or agent of such other enterprise;
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators. The right to indemnification conferred in this Article VII: (i)
shall be a contract right; (ii) shall not be affected adversely as to any
indemnitee by any amendment of this Certificate with respect to any action or
inaction occurring prior to such amendment; and (iii) shall, subject to any
requirements imposed by law and the Bylaws, include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition.
Section 7.2. Relationship to Other Rights and Provisions Concerning
Indemnification. The rights to indemnification and to the advancement of
expenses conferred in this Article VII shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, this
Certificate, Bylaws, agreement, vote of stockholders or disinterested directors
or otherwise. The Bylaws may contain such other provisions concerning
indemnification, including provisions specifying reasonable procedures relating
to and conditions to the receipt by indemnitees of indemnification, provided
that such provisions are not inconsistent with the provisions of this Article
VII.
Section 7.3. Agents and Employees. The Corporation may, to the
extent authorized from time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses, to any employee or agent of
the Corporation (or any person serving at the Corporation's request as a
director, trustee, officer, employee or agent of another enterprise) or to
persons who are or were a director, officer,
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employee or agent of any of the Corporation's affiliates, predecessor or
subsidiary corporations or of a constituent corporation absorbed by the
Corporation in a consolidation or merger or who is or was serving at the request
of such affiliate, predecessor or subsidiary corporation or of such constituent
corporation as a director, officer, employee or agent of another enterprise, in
each case as determined by the Board of Directors to the fullest extent of the
provisions of this Article VII in cases of the indemnification and advancement
of expenses of directors and officers of the Corporation, or to any lesser
extent (or greater extent, if permitted by law) determined by the Board of
Directors.
ARTICLE VIII
LIMITATION ON LIABILITY OF DIRECTORS
A director of the Corporation shall, to the maximum extent now or
hereafter permitted by Section 102(b)(7) of the GCL (or any successor
provision or provisions), have no personal liability to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director.
ARTICLE IX
COMPROMISE
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this
Corporation under the provisions of Section 291 of the GCI, trustees in
dissolution or of any receiver or receivers appointed for this Corporation
under the provisions of Section 279 of the GCI, order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may
be, agree to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors
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or class of creditors, and/or on all the stockholders or class of stockholders,
of this Corporation, as the case may be, and also on this Corporation.
ARTICLE X
AMENDMENT OF BYLAWS
The Board of Directors shall have power to adopt, amend, alter,
change and repeal any Bylaws of the Corporation by the vote of the majority of
the Board of Directors then in office. In addition to any requirements of the
GCL (and notwithstanding the fact that a lesser percentage may be specified by
the GCL), any adoption, amendment, alteration, change or repeal of any Bylaws by
the stockholders of the corporation shall require the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of all of the shares of capital stock of the Corporation then entitled to
vote generally in the election of directors, voting together as a single class.
ARTICLE XI
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation hereby reserves the right to amend, alter, change
or repeal any provision contained in this Certificate. Except as may be
provided in a resolution or resolutions providing for any class of Preferred
Stock pursuant to Article IV hereof and which relate to such class of Preferred
Stock and except as provided in Article IV hereof, any such amendment,
alteration, change or repeal shall require the affirmative vote of both (a) a
majority of the members of the Board of Directors then in office, and (b) a
majority of the voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of directors, voting
together as a single class.
By a vote of the majority of the Board of Directors then in
office, the Board may adopt a resolution providing that at any time prior to the
filing of the amendment with the Secretary of State, notwithstanding
authorization of the proposed amendment by the stockholders, the Board of
Directors may abandon such proposed amendment without further action by the
stockholders.
Notwithstanding anything contained in this Certificate to the
contrary, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of all of the shares of capital
stock of the Corporation then entitled to vote, voting together as a single
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class, shall be, required to amend, repeal or adopt any provision inconsistent
with Articles IV-XI herein.
This Certificate was duly adopted in accordance with Section 245 of
the GCL.
ARTICLE XII
PRESERVATION OF STATUS AS A REAL ESTATE
INVESTMENT TRUST
Section 12.1. Defined Terms. For purposes of this Article XII,
the following terms shall have the following meanings:
(a) "Acquire" shall mean the acquisition of Beneficial Ownership of
shares of capital stock of the Corporation by any means including, but not
limited to, acquisition pursuant to the exercise of (i) any right to redeem or
exchange Units that may result in the issuance of capital stock or to convert
any debt instrument or other convertible security into capital stock
(collectively "Convertible Securities"), or (ii) any option, warrant, pledge or
other security interest or similar right to acquire shares of capital stock
(collectively "Options"), but shall not include the acquisition of any such
rights unless, as a result, the acquiror would be considered a Beneficial Owner,
as defined below, of the shares subject to such rights. The term "Acquisition"
shall correspond to the foregoing definition of "Acquire."
(b) "Beneficial Ownership" shall mean ownership of capital stock by a
Person who would be treated as an owner of such shares of capital stock of the
Corporation either directly or indirectly under Code Section 542(a)(2), taking
into account, for this purpose, constructive ownership determined under Code
Section 544, as modified by Code Section 856(h)(1)(B) (except where expressly
provided otherwise) and Code Section 856(h)(3) and assuming that all Convertible
Securities have been converted into shares. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have their correlative
meanings.
(c) "Beneficiary" shall mean the beneficiary of the Trust as
determined pursuant to Section 12.4(a) of this Article XII.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended
and in effect from time to time. Any Code Section reference in this Article XII
which is included for the purpose of establishing limits on ownership of capital
stock shall be incorporated by reference as if the language of such Code Section
were included in full herein, and in the event
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such Code Section shall be modified, amended or repealed in the future, the
language incorporated by reference as of the date hereof shall be deemed to
remain herein notwithstanding such modification, amendment or repeal.
(e) "Existing Holder" shall mean Herbert S. Miller, any other Person
who is controlled by Herbert S. Miller (an "Affiliate"), any other Person who is
a Beneficial Owner of shares of capital stock of the Corporation as to which
Herbert S. Miller or any Affiliate is also a Beneficial Owner and any other
Person who Acquires shares from any of the foregoing in a transaction not
registered under Section 5 of the Securities Act of 1933, as amended. This
definition shall apply to any Person so long as, but only so long as, such
Person Beneficially Owns capital stock (or has rights to Acquire capital stock)
in excess of the Ownership Limit.
(f) "Existing Holder Limit" for all Existing Holders, taken together,
shall be 13% in value of the outstanding capital stock of the Corporation. For
purposes of determining the Existing Holder Limit, the amount of capital stock
outstanding at the time of determination shall be deemed to include the maximum
number of shares that the Existing Holders may Beneficially Own with respect to
Options, but shall not include shares that may be Beneficially Owned solely by
other Persons upon exercise of Options, and all Convertible Securities shall be
deemed converted into shares.
(g) "IPO" means the first sale of shares of Common Stock pursuant to
the Corporation's first effective registration statement for such Common Stock
filed under the Securities Act of 1933, as amended.
(h) "Ownership Limit" shall initially mean Beneficial Ownership of
five percent (5%) in value of the outstanding capital stock of the Corporation,
and after any adjustment as set forth in Section 12.9, shall mean such greater
percentage in value of the outstanding capital stock of the Corporation as so
adjusted. For purposes of determining the Ownership Limit, all Convertible
Securities shall be deemed converted into shares and the amount of capital stock
outstanding at the time of determination shall be deemed to include the maximum
number of shares that the Person may Beneficially Own with respect to Options,
but shall not include shares that may be Beneficially Owned solely by other
Persons upon exercise of Options.
(i) "Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Code Section 401(a) or Code
Section 501(c)(17), but, if applicable, as modified by Code
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Section 856(h)(3) to apply to the beneficiaries in such trust), a portion of a
trust permanently set aside for or to be used exclusively for the purposes
described in Code Section 642(c), association or private foundation within the
meaning of Code Section 509(a), joint stock company or other entity and also
includes a group as that term is used for purposes of Section 12(d)(3) of the
Securities Exchange Act of 1934, as amended; but does not include an underwriter
which participates in a public offering of capital stock for a period of no more
than 120 days following the purchase by such underwriter of the capital stock.
(j) "Purported Beneficial Owner" shall mean, with respect to any
event which results in Excess Stock under Section 12.3(b), the Person for whom
the Purported Record Owner would have Acquired or held shares of capital stock,
if such event had not resulted in Excess Stock.
(k) "Purported Record Owner" shall mean, with respect to any event
which results in Excess Stock under Section 12.3(b), the record holder of the
capital stock if such event had not resulted in Excess Stock.
(l) "REIT" shall mean a real estate investment trust under Code
Section 856.
(m) "Redemption Price" shall mean the lower of (i) the price paid by
the transferee from whom shares are being redeemed, and (ii) the average closing
market price on the New York Stock Exchange of the capital stock to be redeemed
on the date fixed for redemption by the Board of Directors, or if the capital
stock to be redeemed is not then being traded, the average of the last reported
sales prices (or if no sales prices are reported, the average of the last
reported bid and asked prices) of the capital stock to be redeemed on the ten
trading days immediately preceding the relevant date as reported on any exchange
or quotation system over which the capital stock to be redeemed may be traded,
or if the capital stock is not then traded over any exchange or quotation
system, then the price determined in good faith by the Board of Directors of the
Corporation as the fair market value of the shares of capital stock to be
redeemed on the relevant date.
(n) "Restriction Termination Date" shall mean the first day after the
IPO on which (i) the Board of Directors determines that it is no longer in the
best interests of the Corporation to attempt to, or continue to, qualify as a
REIT and adopts a resolution recommending that the Corporation terminate its
status as a REIT, (ii) the Board of Directors presents such a resolution at an
annual or special meeting of stockholders,
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and (iii) such resolution is approved by at least a majority of all the votes
entitled to be cast on the matter.
(o) "Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of capital stock or the right to vote or receive
dividends on capital stock of the Corporation (including (i) the granting of any
Option or entering into any agreement for the sale, transfer or other
disposition of capital stock or the right to vote or receive dividends on
capital stock, or (ii) the sale, transfer, assignment or other disposition or
grant of any securities or rights convertible into or exchangeable for capital
stock, or the right to vote or receive dividends on capital stock), whether
voluntary or involuntary, whether of record or beneficially and whether by
operation of law or otherwise.
(p) "Trust" shall mean the trust created pursuant to Section 12.4(a)
of this Article XII.
(q) "Units" shall mean units of limited partnership interest as more
fully described in the Agreement of limited Partnership of The Mills Limited
Partnership, a Delaware limited partnership, as effective on the date of the
IPO.
Section 12.2. Restrictions
(a) Except as provided in Section 12.11, during the period commencing
on the date of the IPO and prior to the Restriction Termination Date: (i) no
Person (other than an Existing Holder) shall Acquire any shares of capital stock
of the Corporation if, as the result of such Acquisition, such Person shall
Beneficially Own shares of capital stock in excess of the Ownership Limit; (ii)
no Existing Holder shall Acquire shares of capital stock of the Corporation of
the Corporation if, as a result of such Acquisition, the Existing Holders, taken
together, would Beneficially Own shares of capital stock of the Corporation in
excess of the Existing Holder Limit or if the only Existing Holder would own
shares of capital stock of the Corporation in excess of the Existing Holder
Limit; (iii) no Person shall Acquire any shares of capital stock of the
Corporation if, as a result of such Acquisition, the capital stock of the
Corporation would be directly or indirectly owned by less than 100 Persons
(determined without reference to any rules of attribution); and (iv) no Person
shall Acquire any shares of capital stock of the Corporation if as a result of
such Acquisition, the Corporation would be "closely held" within the meaning of
Code Section 856(h).
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(b) Any Transfer that would result in a violation of any of the
restrictions in Section 12.2(a) shall be void ab initio as to the Transfer of
such shares of capital stock that would cause the violation of the applicable
restriction in Section 12.2(a), and the intended transferee shall acquire no
rights in such shares of capital stock.
Section 12.3. Remedies for Breach.
(a) If the Board of Directors or its designee shall at any time
determine in good faith that a Transfer has taken place that falls within the
scope of Section 12.2(b) or that a Person has Acquired or intends to Acquire
Beneficial Ownership of shares of capital stock that will result in violation of
Section 12.2(a) (whether or not such violation is intended), the Board of
Directors or its designee shall take such action as it deems advisable to
prevent such Transfer or Acquisition or intended Acquisition, including, without
limitation, refusing to give effect to the Transfer or Acquisition on the books
of the Corporation or instituting proceedings to enjoin the Transfer or
Acquisition.
(b) Without limitation to Section 12.2(b) and Section 12.3(a), if an
event occurs such that any Person would Beneficially Own capital stock which
would violate any of the provisions of Section 12.2(a), then, except as provided
in Section 12.11, such shares of capital stock which would violate the
provisions of Section 12.2(a) (rounded up to the nearest whole share) shall
automatically be exchanged for an equal number of shares of Excess Stock. Such
exchange shall be effective as of the close of business on the business day
prior to the date of the event resulting in Excess Stock. The shares of Excess
Stock issued as a result of such event shall be treated in the manner set forth
in Section 12.4 below.
Section 12.4. Excess Stock.
(a) Upon any event that results in the issuance of Excess Stock
pursuant to Section 12.3(b) of this Article XII, such Excess Stock shall be
deemed to have been transferred to the Corporation, as trustee of a Trust for
the exclusive benefit of such Beneficiary or Beneficiaries to whom an interest
in such Excess Stock may later be transferred pursuant to Section 12.4(e) of
this Article XIII. The Purported Record Owner shall have no rights in such
Excess Stock except the right to designate a transferee of such Excess Stock,
and the Purported Beneficial Owner shall have no rights in such Excess Stock,
except as provided in Section 12.4(e) below.
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(b) Excess Stock shall not be entitled to any dividends. Any dividend or
distribution paid prior to the discovery by the Corporation that by operation of
this Certificate the shares of capital stock have been exchanged for Excess
Stock pursuant to Section 12.3(b) of this Article XII shall be repaid to the
Corporation upon demand, and any dividend or distribution declared but unpaid
shall be rescinded or void ab initio with respect to such shares of Excess
Stock.
(c) Subject to any preferential rights of any outstanding Preferred Stock,
in the event of any liquidation, dissolution or winding up of the business and
affairs of the Corporation, each Beneficiary of shares of Excess Stock shall be
entitled to receive, pro rata with each holder of voting Common Stock and each
Beneficiary of Excess Stock, that portion of the assets of the Corporation
available for distribution to its stockholders as the number of shares of Excess
Stock bears to the total number of shares of voting Common Stock and Excess
Stock then outstanding. The Corporation, as holder of the Excess Stock in
trust, or if the Corporation shall have been dissolved, any trustee appointed by
the Corporation prior to its dissolution, shall distribute, pro rata to the
Beneficiaries of the Trust, when determined, any such assets received in respect
of the Excess Stock in any liquidation, dissolution or winding up of, or any
distribution of the assets of the Corporation.
(d) Subject to any requirement imposed by applicable law, the holders of
shares of Excess Stock shall not be entitled to vote on any matter. To the
extent holders of the Excess Stock are accorded any voting rights, they shall
vote together with holders of the Common Stock.
(e)(1) Excess Stock shall not be transferable. The Purported Record
Owner may designate a Beneficiary of an interest in the Trust (representing the
number of shares of Excess Stock held by the Trust attributable to the event
that resulted in the Excess Stock), if (i) the shares of Excess Stock held in
the Trust would not be Excess Stock in the hands of such Beneficiary, and (ii)
the Purported Beneficial Owner does not receive a price for the designation of
such Beneficiary that reflects a price per share for such Excess Stock that
exceeds (x) the price per share such Purported Beneficial Owner paid for the
capital stock in the event that resulted in such Excess Stock, or (y) if the
Purported Beneficial Owner did not give value for such capital stock that
resulted in such Excess Stock, a price per share equal to the Redemption Price
on the date of the event that resulted in the issuance of Excess Stock. Upon
such transfer of an interest in the Trust, the corresponding shares of Excess
Stock in the Trust shall be automatically
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exchanged for an equivalent number of shares of capital stock out of which the
Excess Stock resulted pursuant to Section 12.3(b), and such shares of capital
stock shall be transferred of record to the transferee of the interest in the
Trust if such capital stock would not be Excess Stock in the hands of such
transferee. Prior to any transfer of any interest in the Trust, the Purported
Record Owner must give advance notice to the Corporation of the intended
transfer and the Corporation must have waived in writing its purchase rights
under Section 12.4(f) of this Article XII.
(2) If, notwithstanding the foregoing Section 12.4(e)(1), a Purported
Beneficial Owner receives a price for the designation of a Beneficiary of an
interest in the Trust that exceeds the amount allowable under such Section
12.4(e)(1), such Purported Beneficial Owner shall pay the excess amount to the
Corporation.
(f) Shares of Excess Stock shall be deemed to have been offered for
sale to the Corporation (or its designee) at a price per share equal to the
lesser of (i) the price per share in the transaction that created the Excess
Stock (or, in the case of a transfer without consideration, the Redemption Price
at the time of the purported Transfer), and (ii) the Redemption Price on the
date the Corporation (or its designee) accepts such offer. The Corporation
shall have the right to accept such offer for a period of ninety (90) days after
the later of (i) the date of the Transfer which resulted in such Excess Stock,
and (ii) the date that the Board of Directors determines in good faith that a
Transfer resulting in Excess Stock has occurred, if the Corporation does not
receive notice of such Transfer pursuant to Section 12.5 below.
Section 12.5. Notice of Restricted Transfer. Any Person who
Acquires or attempts or intends to Acquire shares of capital stock in violation
of Section 12.2(a) shall immediately give written notice to the Corporation
thereof and shall provide the Corporation with such additional information as
the Corporation may request in order to determine the effect, if any, of such
Transfer or attempted or intended Transfer on the Corporation's status as a
REIT.
Section 12.6. Required Information. From the date of the IPO and
prior to the Restriction Termination Date:
(a) Every stockholder of record of more than the Ownership Limit (or
such lower percentage as required by the Code or the regulations promulgated
thereunder) shall, within 30 days after December 31 of each
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year, give written notice to the Corporation stating the name and address of
such record stockholder, the number of shares Beneficially Owned by it and a
description of how such shares are held; provided that stockholder of record who
holds outstanding capital stock of the Corporation as nominee for another
Person, which other Person is required to include in gross income the dividends
received on such capital stock (an "Actual Owner"), shall give written notice to
the Corporation stating the name and address of such Actual Owner and the number
of shares of such Actual Owner with respect to which the stockholder of record
is nominee.
(b) Every Actual Owner of more than the Ownership Limit (or such
lower percentage as required by the Code or regulations promulgated thereunder)
who is not a stockholder of record of the Corporation, shall, within 30 days
after December 31 of each year, give written notice to the Corporation stating
the name and address of such Actual Owner, the number of shares Beneficially
Owned and a description of how such shares are held.
(c) Each Person who is a Beneficial Owner of capital stock and each
Person (including the stockholder of record) who is holding capital stock for a
Beneficial Owner shall provide to the Corporation such information as the
Corporation may request, in good faith, in order to enable the Corporation to
assess (i) whether the requirements of this Article XII have been satisfied, and
(ii) its continuing status as a REIT.
Section 12.7. Remedies Not Limited. Nothing contained in this
Article XII shall be construed to alter the authority of the Board of Directors
to take such other action as it deems necessary or advisable to protect the
Corporation and the interests of its stockholders in preserving the
Corporation's status as a REIT.
Section 12.8. Ambiguity. In the case of an ambiguity in the
application of any of the provisions of this Article XII, including any
definition contained in Section 12.1, the Board of Directors shall have the
power to determine the application of the provisions of this Article XII with
respect to any such situation, based on the facts then known to it.
Section 12.9. Modification of Ownership Limit. Subject to the
limitations set forth in Section 12.10, the Board of Directors may, from time to
time, increase the Ownership Limit.
Section 12.10. Limitations on Modification. The foregoing
Section 12.9 notwithstanding, the following limitations shall apply:
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(a) The Ownership Limit may not be increased if, after giving effect
to such increase five Beneficial Owners of capital stock (including any Options
or rights to Acquire capital stock) could Beneficially Own, in the aggregate,
more than 49.9% in value of the outstanding capital stock of the Corporation.
(b) Prior to any adjustment of the Ownership limit, the Board of
Directors may require such opinions of counsel, affidavits, undertakings or
agreements as it deems necessary or advisable in order to determine or ensure
the Corporation's status as a REIT.
(c) The Ownership Limit may not be increased to a percentage which is
greater than 9.75% in value of the outstanding capital stock, determined by
application of the rules set forth in Code Section 856(d)(5).
Section 12.11. Exceptions. The Board of Directors may (but shall
not be required), upon receipt of either a ruling from the Internal Revenue
Service or an opinion of counsel satisfactory to the Board of Directors, exempt
a Person (the "Exempted Holder") from the Ownership Limit if the ruling or
opinion concludes that no Person who is an individual as defined in Code Section
542(a)(2) will, as the result of ownership of shares by the Exempted Holder, be
considered to have Beneficial Ownership of an amount of capital stock of the
Corporation that will violate the Ownership Limit and such Exempted Holder
agrees that any violation or attempted violation will result in such capital
stock being treated in accordance with the provisions of Section 12.3 of this
Article XII.
Section 12.12. Legend. Each certificate for shares of capital
stock shall bear the following legend:
"The shares represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's
maintenance of its status as a Real Estate Investment Trust under
the Internal Revenue Code of 1986, as amended. Except as
otherwise provided by the Corporation's Certificate of
Incorporation, no Person may Beneficially Own shares of capital
stock in excess of 5% (or such greater percentage as may be
determined by the Board of Directors of the Corporation) in value
of the outstanding capital stock of the Corporation (unless such
Person is an Existing Holder). Separate restrictions regarding
Existing Holders are set forth in Article XII of the
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Certificate of Incorporation of the Corporation. Any Person who
attempts to Beneficially Own shares of capital stock in excess of the
above limitations must immediately notify the Corporation. Any such
Person who is a stockholder of record or a Beneficial Owner of capital
stock and each Person who is holding capital stock for a Beneficial
Owner, as defined in Article XII of the Certificate of Incorporation
of the Corporation, shall provide to the Corporation written notice as
required by Article XII of the Certificate of Incorporation of the
Corporation. Any shares of capital stock so held may be subject to
mandatory redemption or sale in certain events, and certain purported
acquisitions of Beneficial Ownership of shares of capital stock in
excess of such limitations shall be void ab initio and shall result in
the automatic exchange of the shares of capital stock represented
hereby for shares of Excess Stock which shall be held in trust by the
Corporation. A Person who attempts to Beneficially Own shares in
violation of the ownership provisions set forth in Section 12.2 of the
Corporation's Certificate of Incorporation shall have no claim, cause
of action or any other recourse whatsoever against a transferor of
such shares. All capitalized terms in this legend have the meanings
set forth in the Corporation's Certificate of Incorporation, a copy of
which, including the restrictions on transfer, will be sent without
charge to each stockholder who so requests."
Section 12.13. Transfers on Securities Exchange. Nothing in this
Certificate of Incorporation shall preclude the settlement of any transaction
entered through the facilities of the New York Stock Exchange or any other
exchange or trading system on which the Corporation's securities are listed or
traded.
Section 12.14. Severability. If any provision of this Article
XII or any application of such provision is determined to be invalid by any
court having jurisdiction over the issues, the validity of such remaining
provisions shall not be affected and other applications of such provision shall
be affected only to the extent necessary to comply with the determination of
such court.
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ARTICLE XIII
SECTION 203
The Corporation hereby expressly elects not to be governed by
Section 203 of the GCL.
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IN WITNESS WHEREOF, said The Mills Corporation has caused this
certificate to be signed by Herbert S. Miller, its President, and attested by
Ronald P. Salerno, its Secretary, this 18th day of April, 1994.
THE MILLS CORPORATION
By /s/ Herbert S. Miller
----------------------
Herbert S. Miller, President
ATTEST:
By /s/ Ronald P. Salerno
---------------------------
Ronald P. Salerno, Secretary
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IN WITNESS WHEREOF, said The Mills Corporation has caused this
certificate to be signed by Herbert S. Miller, its President, and attested by
Laurence C. Siegel, its Secretary, this 18th day of April, 1994.
THE MILLS CORPORATION
By /s/ Herbert S. Miller
----------------------
Herbert S. Miller, President
ATTEST:
By /s/ Laurence C. Siegel
----------------------------
Laurence C. Siegel, Secretary
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IN WITNESS WHEREOF, said The Mills Corporation has caused this
certificate to be signed by Herbert S. Miller, its President, and attested by
Ronald P. Salerno, its Secretary, this 18th day of April, 1994.
THE MILLS CORPORATION
By /s/ Herbert S. Miller
----------------------
Herbert S. Miller, President
ATTEST:
By
------------------------------
Laurence C. Siegel, Secretary
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Exhibit 3.2
First Amendment to the Company's
Amended and Restated Certificate
of Incorporation
<PAGE>
FIRST AMENDMENT TO AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
THE MILLS CORPORATION
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
THE MILLS CORPORATION, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware
(the "Corporation") does hereby certify that an amendment to the Amended and
Restated Certificate of Incorporation of the Corporation (the "Certificate") has
been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware follows:
1. Article XII, Section 12.1 of the Certificate is hereby amended to add
the following:
"(h) "Non-U.S. Person" shall mean any Person (i) who is
not (A) a citizen or resident of the United States, or
(B) an entity created or organized in the United States
or under the laws of the United States or any state
therein (including the District of Columbia) that is
treated as either a "partnership" or "corporation" for
United States federal income tax purposes, or (ii) that
is a foreign estate or foreign trust within the meaning
of Section 7701(a)(31) of the Code."
Succeeding paragraphs of Section 12.1 are re-lettered (i) through
(t) accordingly.
2. The aforesaid amendment was adopted June 25, 1997 by a majority of the
issued and outstanding shares of the Corporation pursuant to Section 242 of
the General Corporation Law of the State of Delaware.
3. Article III, Section 12.2(a) of the Certificate is hereby amended by
adding the following to the end thereof, prior to the period (.) after the
words "Code Section 856(h)":
";and (v) no Person shall Acquire any shares of capital
stock of the Corporation if, as a result of such
acquisition, the fair market value of the shares of
capital stock of the Corporation owned directly and
indirectly by Non-U.S. Persons would
-1-
<PAGE>
compromise 50% or more of the fair market value of the issued and
outstanding shares of capital stock of the Corporation. For
purposes of Section 12.2(a)(v) above, the Board of Directors, in
its sole and absolute discretion, may treat shares owned by a
partnership, trust or estate as being owned proportionately by
its partners or beneficiaries, to the extent the Board of
Directors determines such treatment to be necessary or advisable
to help maintain the Corporation's qualification as a
"domestically controlled REIT" under the U.S. Internal Revenue
Code."
4. The aforesaid amendment was adopted June 25, 1997 by a majority of the
issued and outstanding shares of the Corporation pursuant to Section 242 of
the General Corporation Law of the State of Delaware.
5. Article XII, Section 12.11 of the Certificate is hereby amended to
read as follows:
"Section 12.11 Exceptions. The Board of Directors, in
its sole and absolute discretion, may exempt a Person
(the "Exempted Holder") from the Ownership Limit if
such Person is not an individual for purposes of
Section 524(a)(2) of the Code (determined taking into
account Section 856(h)(3)(A) of the Code) and such
Person provides to the Board of Directors such
representations and undertakings, if any, as the Board,
in its sole and absolute discretion, may require, and
such Person agrees that any violation of such
representation and undertakings or any attempted
violation thereof will result in the application of the
remedies set forth in Section 12.3 of this Article XII
with respect to capital stock held in excess of the
Ownership Limit with respect to such Person (determined
without regard to the exemption granted to such Person
under this Section 12.11)."
6. The aforesaid amendment was adopted June 25, 1997 by a majority of the
issued and outstanding shares of the Corporation pursuant to Section 242 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation pursuant to Section 103(a)(2) of
the General Corporation Law of the State of Delaware, has caused this
-2-
<PAGE>
Certificate to be executed by its undersigned, being the Senior Vice President
and attested by its Assistant Secretary on the 26th of June, 1997
THE MILLS CORPORATION
a Delaware Corporation
ATTEST:
------------------------------------
Thomas E. Frost, Senior Vice President
President
- -----------------------------------------
Michael S. Steele, Assistant Secretary
-3-
<PAGE>
HOGAN & HARTSON, L.L.P
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202)-637-5600
(202) 637-5910
September 17, 1997
The Board of Directors
The Mills Corporation
1300 Wilson Boulevard, Suite 400
Arlington, VA 22209
Ladies and Gentlemen:
This firm has acted as counsel to The Mills Corporation, a
Delaware real estate investment trust (the "Registrant"), in
connection with its registration on Form S-8 (the "Registration
Statement"), of an additional 2,500,000 shares of common stock, par
value $.01 per share, issuable in connection with the Registrant's
1994 Executive Equity Incentive Plan, as amended (the "Plan"). This
letter is furnished to you at your request to enable you to fulfill
the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R.
Section 229.601(b)(5), in connection with such registration.
For purposes of this opinion, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Plan, as certified on the date hereof by
the Secretary of the Registrant as being complete,
accurate and in effect.
3. The Amended and Restated Certificate of Incorporation
of the Registrant, as amended, as certified by the
Secretary of State of the State of Delaware on September 17,
1997, and as certified on the date hereof by the Secretary
of the Registrant as being complete, accurate and in effect.
4. The Amended and Restated Bylaws of the Registrant, as
certified on the date hereof by the Secretary of the
Registrant as being complete, accurate and in effect.
5. Written Consent to Corporate Action by the Majority
Stockholders of the Registrant, adopted on April 12,
1994, as certified by the Secretary of the Registrant
on the date hereof as being complete, accurate and in
effect, relating to authorization and approval of the
Plan.
6. Resolutions of the Executive Committee of the
Registrant, adopted on May 30, 1997, as certified by
the Secretary of the Registrant on the date hereof as
being complete, accurate and in effect, relating to
authorization of the filing of the Registration
Statement.
<PAGE>
The Board of Directors
The Mills Corporation
September 17, 1997
Page 2
In our examination of the aforesaid documents, we have
assumed the genuineness of all signatures, the legal capacity of all
natural persons, the accuracy and completeness of all documents
submitted to us, the authenticity of all original documents, and the
conformity to authentic original documents of all documents submitted
to us as copies (including telecopies). This opinion letter is given,
and all statements herein are made, in the context of the foregoing.
This opinion is based as to matters of law solely on the
General Corporation Law of the State of Delaware, as amended (the
"DGCL"), and we express no opinion as to any other laws, statutes,
regulations or ordinances.
Based upon, subject to, and limited by the foregoing, we are
of the opinion that the Shares, when issued and delivered in the
manner and on the terms described in the Registration Statement and
the Plan, will be validly issued, fully paid and nonassessable under
the DGCL.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This
opinion letter has been prepared solely for you use in connection with
the filing of the Registration Statement on the date of this opinion
letter and should not be quoted in whole or in part or otherwise be
referred to, nor be filed with or furnished to any governmental agency
or other person or entity, without the prior written consent of this
firm.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement. In giving this consent, we do
not thereby admit that we are an "expert" within the meaning of the
Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
--------------------------
HOGAN & HARTSON L.L.P.
<PAGE>
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-00000) pertaining the The Mills Corporation 1994 Executive
Equity Incentive Plan, of our report dated February 21, 1997, with respect to
the consolidated financial statements and schedule of The Mills Corporation
as of December 31, 1996 and 1995 and for the years ended December 31, 1996
and 1995, and for the period April 22, 1994 to December 31, 1994 and the
combined financial statements of The Mills Entities for the period January 1,
1994 to April 21, 1994 included in its Annual Report (Form 10-K) for the year
ended December 31, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
ERNST & YOUNG LLP
Washington, D.C.
September 12, 1997
<PAGE>
FIRST AMENDMENT
TO
THE MILLS CORPORATION 1994 EXECUTIVE EQUITY INCENTIVE PLAN
This FIRST AMENDMENT TO THE MILLS CORPORATION 1994 EXECUTIVE
EQUITY INCENTIVE PLAN (the "First Amendment") is adopted by THE MILLS
CORPORATION, a Delaware corporation (the "Company") as of the 26th day
of September, 1996.
Recitals
A. Pursuant to an Action taken by Written Consent of the
Directors of the Company dated as of April 12, 1994, the Company
adopted The Mills Corporation 1994 Executive Equity Incentive Plan
(the "Original Plan"), which Original Plan became effective on April
21, 1994 with the closing of the Company's initial public offering of
shares of its common stock.
B. The Company has entered into various Stock Option Agreements
and Restricted Stock Agreements with certain Employees and Outside
Directors, by which grants of Stock Options and Restricted Stock have
been awarded to such Employees and Outside Directors.
C. Pursuant to authorization granted by the Company's Executive
Compensation Committee (the "Committee"), the Company has elected to
be governed by amended rules promulgated by the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934
(the "1934 Act").
D. The Company desires to amend the Original Plan, pursuant to
and in accordance with the amended rules issued pursuant to the 1934
Act.
E. The adoption of this First Amendment by the Company and the
implementation of the terms and conditions contained herein have been
authorized by the Board of Directors by Resolution No. 96--54 adopted
in a regular meeting on September 26, 1996.
Agreements
NOW THEREFORE, the Company hereby amends the Original Plan as
follows (deletions being denoted herein by strikeouts and new
language being denoted herein by double underlining):
- -------------------------------------------------------------------------------
FOR EDGAR FILING, LANGUAGE THAT WILL BE ADDED IS PRECEDED BY A "<*>" AND
FOLLOWED BY A "</*>". LANGUAGE THAT WILL BE ELIMINATED IS PRECEDED BY A "<#>"
AND FOLLOWED BY A "</#>".
- -------------------------------------------------------------------------------
1. Subsection 1.4 of the Original Plan is amended to read as
follows:
1.4 "Committee" means the committee of the Board
meeting the standards of <*>Rule 16b-3(d)(1)</*> <#>Rule
16b-3(c)(2)(i)</#> under the Exchange Act, or any similar
successor rule and Prop. Treas. Reg. Section 1.162-27(e)(3)
or any similar successor rule, appointed by the Board to
administer the Plan. Unless otherwise determined by the
Board, the Executive Compensation Committee of the Board
shall be the Committee.
2. Subsection 1.26 of the Original Plan is amended to read as follows:
<PAGE>
1.26. "Plan" means The Mills Corporation 1994
Executive Equity Incentive Plan<*>, as the same may be amended,
modified or supplemented from time to time</*>.
3. Subsection 3.2 of the Original Plan captioned "Shares
Subject to Terminated Options or Forfeited Restricted Stock Awards" is
amended to read as follows:
If and to the extent, an Option shall expire or
terminate for any reason without having been exercised in
full, the Shares subject thereto which have not become
outstanding shall (unless the Plan shall have terminated)
become available under the Plan for other awards. Any
Shares of Restricted Stock forfeited by the Grantee, will
(unless the Plan shall have terminated) become available
under the Plan for other grants or awards<#>; provided,
however, that forfeited Restricted Stock awards shall not
again be available for awards to Grantees subject to Section
16 of the Exchange Act if the Grantee received, directly or
indirectly, any of the benefits of ownership of the
securities of the Company underlying such award, including
without limitation, the right to receive dividend equivalent
payments</#>.
4. Subsection 4.2 of the Original Plan captioned "Authority of
the Committee" is amended by revising subparagraph (c) thereof to read
as follows:
(c) to determine all other terms and provisions of
each Agreement (which may, but need not be, identical),
<#>other than the exercisability of Options which is governed
by Subsection 7.2 hereof,</#> and, with the consent of the
Optionee or Grantee, as the case may be, to modify any
Agreement (including, without limitation, the vesting of
Restricted Stock subject to such Agreement);
5. Subsection 4.2 of the Original Plan captioned "Authority of
the Committee" is further amended by revising subparagraph (d)(iv)
thereof to read as follows:
(iv) for the payment of the Option Price upon the
exercise of an Option otherwise than in cash, including
without limitation by delivery of Shares (other than
Restricted Stock) valued at Fair Market Value on the Date of
Exercise of the Option in accordance with the terms of
<*>Subsection 9.1</*> <#>Subsection 9.2</#> hereof, or a combination of
cash and Shares, or for the payment in part of the Option
Price with a promissory note in accordance with the terms of
Subsection 9.3 hereof;
6. Subsection 7.2 of the Original Plan captioned "Option Period
and Exercisability" is amended to read as follows:
Subject to the terms of Section 11 hereof, the Option
Period shall be determined by the Committee and specifically
set forth in the Agreement; provided, however, that the
Option Period shall not be for a period of more than ten
years from the Date of Grant, and shall be subject to
earlier termination as herein provided. <*>The terms and
conditions with respect to exercisability shall be
determined by the Committee.</*> <#>Each Option granted under this
Plan shall provide that the Option shall become exercisable
with respect to 50% of the total number of Shares subject to
being purchased thereunder beginning on the third
anniversary of the Option's Date of Grant and exercisable
with respect to the remaining such Shares beginning on the
fourth anniversary of the Option's Date of Grant; provided;
provided, however, that the Optionee remains an </#>
<PAGE>
<#>Employee (or a director of the Company in the case of a Nonstatutory
Stock Option granted to an Outside Director pursuant to
Section 11 hereof) on such third and fourth anniversaries of
the Date of Grant.</#> To the extent not set forth in the Plan, the
terms and conditions of each grant shall be set forth in an Agreement.
7. Subsection 7.6 (b) of the Original Plan captioned "Term of
Award Agreements" is amended by revising subparagraph (i) thereof to
read as follows:
(i) prohibitions against the sale, assignment, transfer,
exchange, pledge, hypothecation or other encumbrance of (A) the Shares
awarded as Restricted Stock under the Plan, (B) the right to vote the
Shares, or (C) the right to receive dividends thereon in each such
case during the restriction period applicable to the Shares; provided,
however, that the Grantee shall<*>, unless otherwise provided in the
applicable Agreement,</*> have all the other rights of a stockholder
including, but not limited to, the right to receive dividends and the
right to vote the Shares;
8. Subsection 7.6 (b) of the Original Plan captioned "Term of
Award Agreements" is further amended by revising subparagraph (iv)
thereof to read as follows:
(iv) a requirement that each certificate representing
shares of Restricted Stock shall be deposited with the
Company, or its designee, and shall bear the following
legend:
"This certificate and the shares of stock
represented hereby are subject to the terms and
conditions (including the risks of forfeiture and
restrictions against transfer) contained in The
Mills Corporation 1994 Executive Equity Incentive
Plan, <*>as the same may be amended from time to time</*>
(the "Plan") and a written agreement (the
"Agreement") entered into between the registered
owner and The Mills Corporation. Release from
such terms and conditions shall be made only in
accordance with the provisions of the Plan and the
Agreement, a copy of each of which is on file in
the office of the Secretary of The Mills
Corporation."
9. Subsection 7.6 (e) of the Original Plan captioned "Code
Section 162(m) Compliance for Restricted Stock" is amended by revising
the first two sentences thereof to read as follows:
(e) Code Section 162(m) Compliance for Restricted
Stock. This <*>Sub</*>section 7.6(e) applies only to those
salaried Employees who, in the judgment of the Committee,
may be Covered Employees, under Code Section 162(m)(3).
With respect to the grant of Restricted Stock, the Committee
<*>may</*> <#>shall</#> establish performance goals applicable to
Restricted Stock granted to Grantees in such manner as shall
permit the Grant to qualify as "performance-based
compensation" as described in Section 162(m)(4)(C) of the
Code.
10. Section 8 of the Original Plan captioned
"Non-transferability" is amended to read as follows:
<*>Unless otherwise provided in the applicable Agreement,</*>
each <#>Each</#> Option granted and Restricted Stock awarded
hereunder shall by its terms not be assignable or
<PAGE>
transferable other than by will or the laws of
descent and distribution and Options may be exercised, during the
Optionee's lifetime, only by the Optionee.
11. Section 10 of the Original Plan captioned "Accelerated
Exercise" is amended to read as follows:
Notwithstanding any other provisions of the Plan, all
unexercised Options and non-vested Restricted Stock awards<#>,
except unexercised Options and non-vested Restricted Stock
awards held by those persons who for purposes of Section 16
of the 1934 Act are treated as officers, directors or 10%
stockholders of the Company,</#> may be exercised or disposed of
commencing on the date of a Change of Control, as defined in
Section 16 hereof; provided, however, that the Company may
cancel all such Options and Restricted Stock under the Plan
as of the date of a Change of Control by giving notice to
each Optionee or Grantee thereof, as the case may be, of its
intention to do so and by permitting the purchase during the
thirty-day period next preceding such effective date of all
of the Shares subject to such outstanding Options or by
payment for outstanding Restricted Stock during such
thirty-day period.
12. Subsection 11.3 of the Original Plan captioned "Change of
Control" is amended to read as follows:
Notwithstanding the provisions of Subsection 11.1, a
Nonstatutory Stock Option granted pursuant to Subsection
11.1 may be exercised in full upon a Change in Control <#>if
such exercise is permitted by Section 10</#>.
13. Subsection 11.4 of the Original Plan captioned "Amendments
to Section" is hereby deleted in its entirety, as follows:
<#>11.4. Amendments to Section. Notwithstanding
Section 2 hereof, the provisions in this Section 11 may not
be amended more than once every six months, other than to
comport with changes in the Code, the Employee Retirement
Income Security Act, or the rules thereunder.</#>
14. Section 13 of the Original Plan captioned "Withholding
Taxes" is amended to read as follows:
<#>13.1 Remittance of Tax as Condition of Delivery.</#> The
Company shall be entitled to require as a condition of
delivery of Shares hereunder that the Optionee or Grantee,
as the case may be, remit an amount sufficient to satisfy
all federal, state, and other governmental withholding tax
requirements related thereto.
<#>13.2 Mandatory Withholding on Officers, Directors and
10% Stockholders. In the case of an Optionee or Grantee who
is an officer, director or 10% stockholder of the Company
(for purposes of Section 16 of the Exchange Act), whenever
under the Plan, Shares are to be delivered, the Company
shall withhold an amount sufficient to satisfy all federal,
state, and other governmental withholding tax requirements
related thereto.</#>
<PAGE>
15. Subsection 14.1 of the Original Plan is amended to read as
follows:
14.1. An Optionee or Grantee<#>, other than an officer,
director or 10% stockholder of the Company (for purposes of
Section 16 of the Exchange Act),</#> may, subject to Committee
approval, elect the withholding ("Share Withholding") by the
Company of a portion of the Shares otherwise deliverable to
such Optionee or Grantee upon his or her exercise of an
Option or vesting of a Restricted Stock award having a Fair
Market Value equal to either (a) the amount necessary to
satisfy such Optionee's or Grantee's required federal,
state, or other governmental withholding tax liability with
respect thereto, or (b) a greater amount, not to exceed the
estimated total amount of such Optionee's or Grantee's tax
liability with respect thereto.
16. Subsection 15.1 of the Original Plan captioned "Forfeiture"
is amended by revising the first clause thereof to read as follows:
15.1 Forfeiture. Subject to the provisions of
Subsection 7.4 hereof with respect to Incentive Stock
Options and the provisions of Subsection 7.6(c) hereof with
respect to Restricted Stock<*>, unless otherwise provided in an
applicable Agreement,</*> an unexercised Option or non-vested
Restricted Stock award shall terminate and/or be forfeited
upon the date on which the Optionee or Grantee thereof, as
the case may be, is no longer an Employee ("Termination of
Employment"), except that:
17. Subsection 15.1 of the Original Plan captioned "Forfeiture"
is further amended by revising subparagraph (d) thereof to read as
follows:
(d) Other Reasons for Termination. If the Optionee or
Grantee has a Termination of Employment for any reason other
than by death, retirement or Permanent Disability, any
unexercised Option to the extent exercisable on the date of
such Termination of Employment, may be exercised, in whole
or in part, at any time within <*>90 days</*> <#>three months</#> from the
date of such Termination of Employment.
18. Subsection 16.1 of the Original Plan captioned "Change of
Control" is amended by revising subparagraph (a) thereof to read as
follows:
(a) Acquisition of Stock. The acquisition, by a person
or group of persons <#>(other than Herbert S. Miller and his
affiliates)</#> acting in concert, of a beneficial ownership
interest in the Company, resulting in the total beneficial
ownership of such persons or group of persons equaling or
exceeding 20% of the outstanding common stock of the
Company. The Change of Control shall be deemed to occur on
the date the beneficial ownership of the acquiring person or
group of persons first equals or exceeds 20% of the
outstanding common stock of the Company.
19. Section 17 of the Original Plan captioned "Substituted
Options" is amended to read as follows:
If the Committee cancels, with the consent of an
Optionee, any Option granted under the Plan, and a new
Option is substituted therefor, then the Committee may, in
its discretion, provide that the Date of Grant of the
canceled Option shall be the date used to determine the
earliest date or dates for exercising the new substituted
Option
<PAGE>
under Subsection 7.2 hereof so that the Optionee may exercise or
dispose of the substituted Option at the same time as if the
Optionee had held the substituted Option since the Date of Grant
of the canceled Option<#>; provided, however, that no Optionee who
for purposes of Section 16 of the Exchange Act is treated as an
officer, director or 10% stockholder of the Company may dispose
of a substituted Option within less than six months after the
Date of Grant (calculated without reference to this Section 17)</#>.
20. Subsection 25.1 of the Original Plan captioned "Board's
Authority to Modify" is amended by revising the introductory
provisions thereof to read as follows:
25.1 Board's Authority to Modify. <#>Subject to
Subsection 11.6 hereof, the</#> <*>The</*> Board may make such
modifications of the Plan as it shall deem advisable;
21. The Original Plan, as amended herein, shall continue in full
force and effect.
IN WITNESS WHEREOF, the Company has caused this First Amendment
to be executed as of the date first above written.
THE MILLS CORPORATION,
a Delaware corporation,
By:
Peter B. McMillan
President & Chief Operating Officer
<PAGE>
Section 145. Indemnification of officers, directors, employees and
agents; insurance.
(a) A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in
good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe the person's conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith
and in a manner which the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe
that the person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of
such action or suit if the person acted in good faith and in a manner
the person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this section, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) of
this section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee
or agent is proper in the circumstances because the person has met the
applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made (1) by a majority vote
of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) if there are no
such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative
or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall
-1-
<PAGE>
ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the board of
directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this
section shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him
against such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority
to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with
respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate existence
had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer, employee
or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators
of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this section or under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees). (8 Del. C. 1953, Section 145; 56 Del. Laws, c. 50; 56 Del.
Laws, c. 186, Section 6; 57 Del. Laws, c. 421, Section 2; 59 Del.
Laws, c. 437, Section 7; 63 Del. Laws, c. 25, Section 1; 64 Del.
Laws, c. 112, Section 7; 65 Del. Laws, c. 289, Sections 3-6; 67 Del.
Laws, c. 376, Section 3; 69 Del. Laws, c. 261 Sections 1, 2; 70 Del.
Laws, c 186, Section 1.)
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