UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED
IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a)
AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment No. )1
The Macerich Company
(Name
of Issuer)
Common Stock, $0.01 par value
(Title of Class of Securities)
554382101
(CUSIP Number)
The
passive investment trust
c/o Sharon Berger, Trustee
167 Overlook Road
New Rochelle, NY 10804
steve
wolosky, Esq.
OLSHAN
FROME WOLOSKY LLP
1325 Avenue of the Americas
New York, New York 10019
(212)
451-2300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices
and Communications)
August 3, 2020
(Date of Event Which Requires
Filing of This Statement)
If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following
box ¨.
Note: Schedules
filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See
§ 240.13d-7 for other parties to whom copies are to be sent.
1
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided
in a prior cover page.
The information required
on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities
Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject
to all other provisions of the Act (however, see the Notes).
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1 |
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NAME OF REPORTING PERSON |
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THE PASSIVE INVESTMENT TRUST |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ☐ |
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(b) ☐ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS |
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WC, AF |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
☐ |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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NEW YORK |
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NUMBER OF |
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7 |
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SOLE VOTING POWER |
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SHARES |
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BENEFICIALLY |
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- 0 - |
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OWNED BY |
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8 |
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SHARED VOTING POWER |
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EACH |
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REPORTING |
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10,175,100 |
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PERSON WITH |
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SOLE DISPOSITIVE POWER |
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- 0 - |
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10 |
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SHARED DISPOSITIVE POWER |
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10,175,100 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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10,175,100 |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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6.8% |
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14 |
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TYPE OF REPORTING PERSON |
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OO |
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1 |
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NAME OF REPORTING PERSON |
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MYSC LLC |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ☐ |
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(b) ☐ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
☐ |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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DELAWARE |
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NUMBER OF |
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7 |
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SOLE VOTING POWER |
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SHARES |
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BENEFICIALLY |
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- 0 - |
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OWNED BY |
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8 |
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SHARED VOTING POWER |
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EACH |
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REPORTING |
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- 0 - |
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PERSON WITH |
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SOLE DISPOSITIVE POWER |
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- 0 - |
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10 |
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SHARED DISPOSITIVE POWER |
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- 0 - |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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- 0 - |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |
☐ |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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0% |
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14 |
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TYPE OF REPORTING PERSON |
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OO |
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1 |
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NAME OF REPORTING PERSON |
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SHARON BERGER |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ☐ |
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(b) ☐ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS |
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AF |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
☐ |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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United States of America |
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NUMBER OF |
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7 |
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SOLE VOTING POWER |
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SHARES |
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BENEFICIALLY |
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- 0 - |
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OWNED BY |
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SHARED VOTING POWER |
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EACH |
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REPORTING |
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10,175,100 |
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PERSON WITH |
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SOLE DISPOSITIVE POWER |
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- 0 - |
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10 |
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SHARED DISPOSITIVE POWER |
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10,175,100 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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10,175,100 |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |
☐ |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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6.8% |
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14 |
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TYPE OF REPORTING PERSON |
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IN |
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The following constitutes
the Schedule 13D filed by the undersigned (the “Schedule 13D”).
| Item 1. | Security and Issuer. |
This statement relates
to the Common Stock, $0.01 par value (the “Shares”), of The Macerich Company, a Maryland corporation (the “Issuer”).
The address of the principal executive offices of the Issuer is 401 Wilshire Boulevard, Suite 700, Santa Monica, California 90401.
| Item 2. | Identity and Background. |
(a) This
statement is filed by:
| (i) | The Passive Investment Trust, a trust organized under the laws of the State of New York (the “Trust”),
as to the Shares directly owned by it; |
| (ii) | MYSC LLC, a Delaware limited liability company (“MYSC”), of which the Trust is the
sole member; and |
| (iii) | Sharon Berger (the “Trustee”), as trustee of the Trust and Manager of MYSC. |
Each of the foregoing
is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting
Persons is party to that certain Joint Filing Agreement, as further described in Item 6. Accordingly, the Reporting Persons are
hereby filing a joint Schedule 13D.
(b) The
principal business address of each of the Reporting Persons is 167 Overlook Road, New Rochelle, NY 10804.
(c) The principal business of each of the Trust and MYSC is investing in securities. The principal business of the Trustee is serving as trustee
of the Trust and Manager of MYSC.
(d) No
Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) No
Reporting Person has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to
such laws.
(f) The
Trust is organized under the laws of the State of New York. MSYC is organized under the laws of the State of Delaware. The Trustee
is a citizen of the United States of America.
| Item 3. | Source and Amount of Funds or Other Consideration. |
The Shares directly
owned by the Trust were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms
in the ordinary course of business) in open market purchases, except as otherwise noted. Certain Shares were also transferred to
the Trust as capital contributions. The aggregate purchase price of the 10,175,100 Shares owned by the Trust is approximately $78,422,923,
including brokerage commissions.
| Item 4. | Purpose of Transaction. |
The Reporting Persons
purchased the Shares based on the Reporting Persons’ belief that the Shares, when purchased, were undervalued and represented
an attractive investment opportunity. The Reporting Persons are supportive of and encouraged by their recent engagement with management
and the board of directors of the Issuer (the “Board”) and expect to continue to engage with management and the Board.
Depending upon overall market conditions, other investment opportunities available to the Reporting Persons, and the availability
of Shares at prices that would make the purchase or sale of Shares desirable, the Reporting Persons may endeavor to increase or
decrease their position in the Issuer through, among other things, the purchase or sale of Shares on the open market or in private
transactions or otherwise, on such terms and at such times as the Reporting Persons may deem advisable.
No Reporting Person
has any present plan or proposal which would relate to or result in any of the matters set forth in subparagraphs (a) - (j) of
Item 4 of Schedule 13D except as set forth herein or such as would occur upon or in connection with completion of, or following,
any of the actions discussed herein. The Reporting Persons intend to review their investment in the Issuer on a continuing basis.
Depending on various factors including, without limitation, the Issuer’s financial position and investment strategy, the
price levels of the Shares, conditions in the securities markets and general economic and industry conditions, the Reporting Persons
may in the future take such actions with respect to their investment in the Issuer as they deem appropriate including, without
limitation, engaging in discussions with stockholders of the Issuer or other third parties about the Issuer and the Reporting Persons’
investment, including potential business combinations or dispositions involving the Issuer or certain of its businesses, making
recommendations or proposals to the Issuer concerning changes to the capitalization, ownership structure, potential business combinations
or dispositions involving the Issuer or certain of its businesses, or suggestions for improving the Issuer’s financial and/or
operational performance, purchasing additional Shares, selling some or all of their Shares, engaging in short selling of or any
hedging or similar transaction with respect to the Shares, including swaps and other derivative instruments, or changing their
intention with respect to any and all matters referred to in Item 4.
| Item 5. | Interest in Securities of the Issuer. |
The aggregate percentage of Shares reported owned by each person
named herein is based upon 149,463,668 Shares outstanding, which is the total number
of Shares outstanding as of August 7, 2020, as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities
and Exchange Commission on August 10, 2020.
| (a) | As of the close of business on August 11, 2020, the Trust directly owned 10,175,100 Shares. |
Percentage: Approximately
6.8%
| (b) | 1. Sole power to vote or direct vote: 0
2. Shared power to vote or direct vote: 10,175,100
3. Sole power to dispose or direct the disposition: 0
4. Shared power to dispose or direct the disposition: 10,175,100 |
| (c) | The transactions in the Shares by the Trust during the past sixty days are set forth in Schedule
A and are incorporated herein by reference. |
| (a) | As of the close of business on August 11, 2020, MYSC did not beneficially own any shares. |
Percentage: 0%
| (b) | 1. Sole power to vote or direct vote: 0
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 0
4. Shared power to dispose or direct the disposition: 0 |
| (c) | MYSC has not entered into any transactions in the Shares during the past sixty days. |
C. The
Trustee
| (a) | The Trustee, as the trustee of the Trust, may be deemed to beneficially own the 10,175,100 Shares
directly owned by the Trust. |
Percentage: Approximately
6.8%
| (b) | 1. Sole power to vote or direct vote: 0
2. Shared power to vote or direct vote: 10,175,100
3. Sole power to dispose or direct the disposition: 0
4. Shared power to dispose or direct the disposition: 10,175,100 |
| (c) | The Trustee has not entered into any transactions in the Shares during the past sixty days.
The transactions in the Shares entered into on behalf of the Trust during the past sixty days are set forth in Schedule A and
are incorporated herein by reference. |
The filing of this
Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange
Act of 1934, as amended, the beneficial owners of any securities of the Issuer that she or it does not directly own. Each of the
Reporting Persons specifically disclaims beneficial ownership of the securities reported herein that she or it does not directly
own.
| (d) | No person other than the Reporting Persons is known to have the right to receive, or the power
to direct the receipt of dividends from, or proceeds from the sale of, the Shares. |
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Pursuant to the trust
agreement establishing the Trust, the Trustee has the power to control the vote and/or disposition of the Shares held by the Trust.
On April 21,
2020, MYSC entered into certain agreements with the Issuer (the “Limited Waiver”), pursuant to which, the Board
agreed to grant a limited waiver under the Issuer’s Articles of Amendment and Restatement, as amended (the
“Charter”), which authorizes MYSC and certain of its affiliates (the “Investors”) to Beneficially Own
(as defined in the Charter), in the aggregate, up to 9.9% of the Issuer’s outstanding Shares. Pursuant to the Limited
Waiver, the Investors have agreed to, among other things, (i) hold the Shares in the ordinary course of business and not with
the purpose or effect of changing or influencing the control of the Issuer and (ii) if the Investors own in excess of 5% of
the outstanding Shares, to vote all such Shares owned in excess of such percentage in accordance with the recommendations of
the Board. The Limited Waiver shall terminate on the earliest of (a) September 21, 2020, if the Investors do not Beneficially
Own Shares in excess of the Ownership Limit (as defined in the Charter) by such date, (b) after the Investors’
Beneficial Ownership of Shares exceeds the Ownership Limit, the earliest date on which the Investors’ Beneficial
Ownership of Shares is less than the Ownership Limit, (c) the earliest date on which any of the representations, warranties,
agreements or undertakings made by the Investors in connection with the Limited Waiver are no longer true, (d) the earliest
date on which any of the conditions of the Limited Waiver are no longer true or accurate, or otherwise have been violated, or
(e) such other date to be agreed upon by the Investors and the Issuer.
The full text of the
Limited Waiver is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
On August 12, 2020,
the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf
of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable
law. The Joint Filing Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
Other than as described
herein, there are no contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting
Persons and any other person, with respect to the securities of the Issuer.
| Item 7. | Material to be Filed as Exhibits. |
| 99.1 | Limited Waiver, by and among MYSC LLC and the Issuer, dated April 21, 2020. |
| 99.2 | Joint Filing Agreement by and among The Passive Investment Trust, MYSC LLC and Sharon Berger, dated
August 12, 2020. |
SIGNATURES
After reasonable inquiry
and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: August 12, 2020
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the passive investment trust |
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By: |
/s/ Sharon Berger |
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Name: Sharon Berger |
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Title: Trustee |
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MYSC LLC |
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By: |
/s/ Sharon Berger |
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Name: Sharon Berger |
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Title: Manager |
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/s/ Sharon Berger |
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SHARON BERGER |
SCHEDULE A
Transactions in the Shares During the
Past Sixty Days
Nature of Transaction |
Amount of Shares
Purchased/(Sold) |
Price Per
Share($) |
Date of
Purchase/Sale |
the
passive investment trust
Purchase of Common Stock |
1,000,000 |
7.4632 |
08/03/2020 |
Purchase of Common Stock |
1,787,632 |
8.1489 |
08/04/2020 |
Acquisition of Common Stock1 |
1,655,620 |
0.0000 |
08/04/2020 |
_________________
1 Represents
Shares transferred to the Trust as a capital contribution.
Exhibit 99.2
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1)(iii) under
the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of
a Statement on Schedule 13D (including additional amendments thereto) with respect to the shares of Common Stock, $0.01 par value,
of The Macerich Company, a Maryland corporation. This Joint Filing Agreement shall be filed as an Exhibit to such Statement.
Dated: August 12, 2020
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the passive investment trust |
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By: |
/s/ Sharon Berger |
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Name: Sharon Berger |
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Title: Trustee |
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MYSC LLC |
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By: |
/s/ Sharon Berger |
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Name: Sharon Berger |
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Title: Manager |
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/s/ Sharon Berger |
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SHARON BERGER |
This regulatory filing also includes additional resources:
ex991to13d12647002_08112020.pdf
Macerich (NYSE:MAC)
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