UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): June 7, 2007
THE MACERICH COMPANY
(Exact Name of Registrant as Specified in its Charter)
Maryland |
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1-12504 |
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95-4448705 |
(State or Other
Jurisdiction of |
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
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401
Wilshire Boulevard |
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(Address of Principal Executive Offices) |
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(Zip Code) |
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(310) 394-6000 |
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(Registrants Telephone Number, Including Area Code) |
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Not applicable |
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(Former name or former address, if changed since last report) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Item No. |
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Description |
5.1 |
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Opinion, dated June 7, 2007, of Venable LLP |
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8.1 |
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Opinion, dated June 7, 2007, of OMelveny &
Myers |
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23.1 |
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Consent of Venable LLP (included in Item 5.1) |
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23.2 |
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Consent of OMelveny & Myers LLP (included in |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
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THE MACERICH COMPANY |
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(Registrant) |
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By: |
/s/ RICHARD A. BAYER |
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Date: |
June 7, 2007 |
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Richard A. Bayer |
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Executive Vice
President, Chief Legal Officer |
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EXHIBIT INDEX
Item No. |
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Description |
5.1 |
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Opinion, dated June 7, 2007, of Venable LLP |
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8.1 |
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Opinion, dated June 7, 2007, of OMelveny &
Myers |
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23.1 |
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Consent of Venable LLP (included in Item 5.1) |
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23.2 |
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Consent of OMelveny & Myers LLP (included in |
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Exhibit 5.1
[VENABLE LLP LETTERHEAD]
June 7, 2007
The Macerich Company
Suite 700
401 Wilshire Boulevard
Santa Monica, California
Re: The Macerich Company
Registration Statement on Form S-3
Ladies and Gentlemen:
We have served as Maryland counsel to The Macerich Company, a Maryland corporation (the Company), in connection with certain matters of Maryland law arising out of the registration of 10,417,253 shares (the Shares) of the Companys Common Stock, par value $0.01 per share (Common Stock), covered by the above-referenced Registration Statement on Form S-3 (Registration No. 333-130993) and any amendments thereto (the Registration Statement), filed by the Company with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the 1933 Act). 191,263 Shares (the Issued Shares) were issued upon redemption of units of limited partnership interest (the Units) in The Macerich Partnership, L.P., a Delaware limited partnership (the Operating Partnership), and up to 10,225,990 Shares (the Conversion Shares) may be issued by the Company upon conversion of $950,000,000 aggregate principal amount of the Companys 3.25% Convertible Senior Notes due 2012 (the Notes), subject to certain adjustments. The Shares may be sold by the selling stockholders named in the Registration Statement (collectively, the Selling Stockholders) and are being registered on behalf of the Selling Stockholders pursuant to contractual registration rights.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the Documents):
1. The Registration Statement and the related form of prospectus, dated January 12, 2006, and prospectus supplement, dated June 7, 2007, included therein (collectively, the Prospectus) in the form in which it was transmitted to the Commission under the 1933 Act;
2. The charter of the Company (the Charter), certified as of a recent date by the State Department of Assessments and Taxation of Maryland (the SDAT);
3. The Amended and Restated Bylaws of the Company (the Bylaws), certified as of the date hereof by an officer of the Company;
4. Resolutions (the Board Resolutions) adopted by the Board of Directors of the Company (the Board), relating to (i) the issuance of the Issued Shares, (ii) the authorization and issuance of the Notes and the Conversion Shares, (iii) the reservation for issuance of the Conversion Shares, (iv) the authorization of the execution of the Indenture, dated as of March 16, 2007 (the Indenture), between the Company and Deutsche Bank Trust Company Americas, as Trustee, (v) the appointment of a committee of the Board (the Pricing Committee) to exercise all the powers and authority of the Board with respect to the offering, issuance and sale of the Notes and the Conversion Shares, and (vi) the registration of the Shares, certified as of the date hereof by an officer of the Company;
5, Resolutions (the Pricing Committee Resolutions, and, together with the Board Resolutions, the Resolutions) adopted by the Pricing Committee of the Board (i) fixing the aggregate principal amount of the Notes to be issued and the terms for the issuance and sale of the Notes and (ii) authorizing the execution, delivery and performance by the Company of the Indenture, certified as of the date hereof by an officer of the Company;
6. The Agreement of Limited Partnership of the Operating Partnership, certified as of the date hereof by an officer of the Company;
7. The Indenture;
8. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
9. A certificate executed by an officer of the Company, dated as of the date hereof; and
10. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
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1. Each individual executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such partys obligations set forth therein are legal, valid and binding.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. None of the Issued Shares have been, and none of the Conversion Shares will be, issued, sold or transferred in violation of the restrictions on ownership and transfer contained in the Charter.
6. The Units were duly authorized and validly issued by the Operating Partnership.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The Issued Shares have been duly authorized and validly issued and are fully paid and nonassessable.
3. The Conversion Shares have been duly authorized and, when and if issued upon conversion of the Notes in accordance with the Resolutions and the Indenture (assuming
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that upon issuance, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter), will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland, and we do not express any opinion herein concerning any other law. We express no opinion as to compliance with the securities (or blue sky) laws or the real estate syndication laws of the State of Maryland. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the Companys Current Report on Form 8-K, dated June 7, 2007, and to the use of the name of our firm in the section entitled Legal Matters in the Prospectus. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
VENABLE LLP
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Exhibit 8.1
[OMELVENY & MYERS LLP LETTERHEAD]
June 7, 2007
The Macerich Company
401 Wilshire Boulevard
Suite 700
Santa Monica, California 90407
Re: Status as a Real Estate Investment Trust
Ladies and Gentlemen:
You have requested our opinion concerning certain federal income tax considerations in connection with the registration by The Macerich Company (the Company) of 10,417,253 shares of its common stock, $.01 par value per share (Common Stock), as more fully described in the Registration Statement on Form S-3 filed with the Securities and Exchange Commission on January 12, 2006 (the Registration Statement), as supplemented by the Prospectus Supplement, dated June 7, 2007 (the Prospectus Supplement).
The opinion set forth in this letter is based on relevant provisions of the Internal Revenue Code of 1986, as amended (the Code), Treasury Regulations thereunder (including proposed and temporary Treasury Regulations), and interpretations of the foregoing as expressed in court decisions, administrative determinations, and the legislative history as of the date hereof. These provisions and interpretations are subject to change, which may or may not be retroactive in effect, that might result in modifications of our opinion.
In rendering our opinion we examined such records, certificates, documents and other materials as we considered necessary or appropriate as a basis for such opinion, including the following: (1) the Registration Statement and the Prospectus Supplement, (2) the Amended and Restated Limited Partnership Agreement of The Macerich Operating Partnership, L.P. (the Operating Partnership), (3) the corporate charter of the Company, as supplemented by Articles Supplementary filed with the appropriate State of Maryland authorities on May 30, 1995, (4) the organizational documents of Macerich Management Company, Macerich Property Management Company LLC, Westcor Partners, L.L.C. and Macerich Westcor Management, LLC (collectively referred to herein as the Management Companies), as well as those for Macerich PPR Corp. (Macerich PPR) and Pacific Premier Retail Trust (PPRT), (5) the Companys Annual Report on Form 10-K for each of the years ended December 31, 1998 through December 31, 2006, (6) records required by the Code and Treasury Regulations relating to stockholder ownership and fair value of assets, prepared by the Company, Macerich PPR and PPRT, for the year ended December 31, 2006, and (7) such other documents and information provided to us as we deemed relevant to our opinion.
In addition, we have been provided with a certificate, dated June 7, 2007 (the Officers
Certificate), executed by a duly appointed officer of the Company, as the corporation which is directly or indirectly serving as (i) the sole corporate general partner of the Operating Partnership, and (ii) a general partner of certain of the Property Partnerships (as defined in the Officers Certificate), setting forth certain representations relating to the formation and operation of the Company and its subsidiaries (including Macerich PPR, PPRT, the Operating Partnership and the Property Partnerships).
For purposes of our opinion, we have not made an independent investigation of the facts set forth in such documents, the Officers Certificate, the partnership agreement for the Operating Partnership, the partnership agreements for the Property Partnerships, the Registration Statement or the Prospectus Supplement. We have consequently assumed, with your permission, that the information presented in such documents, or otherwise furnished to us, accurately and completely describes all material facts relevant to our opinion.
We have also assumed for the purposes of this opinion that (i) each of the Company and Macerich PPR is validly organized and duly incorporated under the laws of the State of Maryland, that PPRT is a duly organized and validly existing trust under the laws of the State of Maryland, that the Operating Partnership is a duly organized and validly existing partnership under the laws of the State of Delaware and that each of the Management Companies and each of the Property Partnerships is duly organized and a validly existing limited liability company or partnership under the laws of its state of organization, (ii) the transactions described in or contemplated by any of the aforementioned documents have been or will be consummated in accordance with the operative documents, (iii) the operative documents are enforceable in accordance with their terms, (iv) the Company has been and will continue to be organized and operated in the manner described in the Officers Certificate, the Registration Statement or the Prospectus Supplement, and the other relevant documents referred to above and (v) the representations in the Officers Certificate are and will remain true, correct and complete and that all representations made to the best of the knowledge and belief of any person(s) or party(ies) or with similar qualification are and will be true, correct and complete as if made without such qualification. Any material change that is made after the date hereof in any of the foregoing bases for our opinion could affect our conclusions.
Based on the foregoing, we are of the opinion that:
1. The Company has qualified for treatment as a real estate investment trust (REIT) under the Code for its taxable years ended December 31, 2003 through December 31, 2006 and the Companys current organization and method of operation, if continued, will enable it to continue to meet the requirements for qualification and taxation as a REIT for its taxable year ending December 31, 2007, and each taxable year thereafter.
2. The statements set forth in the Prospectus Supplement under the caption Certain United States Federal Income Tax Considerations, insofar as they discuss matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute our opinion as to the material United States federal income tax consequences set forth therein, subject to the assumptions and qualifications set forth therein and in this letter.
However, such section of the Prospectus Supplement is not exhaustive and does not purport to discuss any state or local tax considerations or all possible federal income tax considerations of the purchase, ownership and disposition of the Common Stock. In addition, the Companys qualification and taxation as a REIT depend upon the Companys ability to meet on a continuing basis, through actual annual operating and other results, the various requirements under the Code and described in the
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Prospectus Supplement with regard to, among other things, the sources of its gross income, the composition of its assets, the level of its distributions to stockholders, and the diversity of its stock ownership. OMelveny & Myers LLP will not review the Companys compliance with these requirements on a continuing basis. Accordingly, no assurance can be given that the actual results of the operations of the Company, the Operating Partnership, and their subsidiaries, the sources of their income, the nature of their assets, the level of the Companys distributions to stockholders and the diversity of its stock ownership for any given taxable year will satisfy the requirements under the Code for qualification and taxation as a REIT.
Other than as expressly stated above, we express no opinion on any issue relating to the Company, Macerich PPR, PPRT, the Operating Partnership, one or more of the Property Partnerships or to any investment therein. Furthermore, we assume no obligation to advise you of any changes in the foregoing subsequent to the date of this letter, and we are not undertaking to update this letter after the date hereof.
In accordance with the requirements of Item 601(b)(23) of Regulation S-K under the Securities Act of 1933, we hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K that is incorporated by reference in the Registration Statement and the reference to this Firm under the caption Legal Matters in the Prospectus Supplement. In giving such consent we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the Securities and Exchange Commission thereunder.
Respectfully submitted,
OMELVENY & MYERS LLP
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