EXHIBIT 4.4
REDEMPTION RIGHTS AGREEMENT
Redemption Rights Agreement, dated July 13, 1995, among GGP Limited
Partnership, a Delaware limited partnership (the "Partnership"), General Growth
Properties, Inc., a Delaware corporation (the "General Partner"), and the
persons whose names are set forth under the caption "Contributing Partners" on
the signature pages hereto (collectively, "Contributing Partners").
RECITALS
WHEREAS, concurrently herewith, Contributing Partners are being admitted as
limited partners of the Partnership, the general partner of which is the General
Partner;
WHEREAS, shares of the common stock, $.10 par value per share, of the
General Partner (the "Common Stock") are listed on the New York Stock Exchange;
and
WHEREAS, the parties desire to set forth herein the terms and conditions
upon which the Contributing Partners can cause the Partnership to redeem their
limited partnership units in the Partnership.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
have the meanings set forth below:
"Acts" shall mean the Securities Act and the Exchange Act, collectively.
"Bucksbaum Limited Partners" shall have the meaning set forth in the
Partnership Agreement.
"Business Day" shall mean any day upon which commercial banks are open for
business in Chicago, Illinois.
"Cash Purchase Price" shall mean, with respect to any redeemed or purchased
Units, an amount of cash equal to the value of the Share Purchase Price
(computed as of the Computation Date and equal to the Current Per Share Market
Price on such Computation Date multiplied by the number of Shares) that would be
payable with respect to such Units assuming the Share Purchase Price were paid
in full satisfaction of the Purchase Price of such Units.
"Closing Price" shall have the meaning set forth in the Partnership
Agreement.
"Common Stock" shall have the meaning set forth in the recitals.
"Computation Date" shall mean the date on which the applicable Exercise
Notice is received by the Partnership or, if such date is not a Business Day,
the first Business Day thereafter.
"Conversion Factor" shall mean 100%, provided that such factor shall be
adjusted in accordance with Section 6(a).
"Certificate of Incorporation" shall mean the Certificate of Incorporation
of the General Partner, as the same may be amended from time to time.
"Contribution Agreement" shall mean that certain Contribution Agreement
dated June 7, 1995, among the Partnership and Contributing Partners, pursuant to
which this Agreement is being executed.
"Current Per Share Market Price" shall have the meaning set forth in the
Partnership Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor statute.
"Exchange Act Reporting Company" shall mean any corporation or other entity
which is subject to the reporting requirements of the Exchange Act.
"Expiration Date" shall mean the earlier of (a) the 30th anniversary of the
date hereof and (b) the date upon which all Units have been redeemed or
purchased in accordance with the terms hereof. Notwithstanding the foregoing,
Contributing Partners shall continue to have the right to have their Units
redeemed or purchased and the General Partner shall have the obligation to
register Shares (if the Contributing Partners then hold Units and the General
Partner then is an Exchange Act Reporting Company) in accordance with this
Agreement during any period of time that any other present or future holder of
limited partnership units in the Partnership has any right to convert its units
into Shares or require the Partnership to redeem them in exchange for cash or
Shares and the Partnership shall give Contributing Partners no less than 30
days' written
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notice of the expiration or termination of the rights of such other present or
future holders.
"Liens" shall have the meaning set forth in the Contribution Agreement.
"Major Transaction Event" shall mean, with respect to the General Partner,
(a) a reclassification, capital reorganization or other similar change regarding
or affecting outstanding Shares (other than a change addressed in Section 6(a));
(b) a merger or consolidation of the General Partner with one or more other
corporations or entities, other than a merger pursuant to which the General
Partner is the surviving corporation and the outstanding Shares are not
affected, (c) a sale, lease or exchange of all or substantially all of the
General Partner's assets.
"Notice" shall have the meaning set forth in Section 3.1.
"Partnership Agreement" shall mean that certain Amended and Restated
Agreement of Limited Partnership of the Partnership, dated July 27, 1993, as
amended by that certain First Amendment thereto dated the date hereof and as the
same may be further amended from time to time.
"Person" shall mean any natural person, corporation, partnership, limited
liability company, trust or other entity.
"Purchase Price" shall mean the Cash Purchase Price or the Share Purchase
Price, or a combination thereof.
"Redemption Rights" shall have the meaning set forth in Section 2.
"REIT Requirements" shall have the meaning set forth in the Partnership
Agreement.
"Registration Expenses" shall mean all expenses incident to the General
Partner's performance of or compliance with the registration requirements set
forth in this Agreement, including without limitation (a) the fees,
disbursements and expenses of the General Partner's counsel and accountants in
connection with the registration of Shares issuable upon the exercise of the
Redemption Rights; (b) all expenses in connection with the preparation, printing
and filing of the registration statement or statements, any preliminary
prospectus or final prospectus, any other offering document and amendments and
supplements
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thereto; (c) the cost of printing or producing any blue sky or legal investment
memoranda or other documents in connection with the offering, sale or delivery
of such Shares; (d) all expenses in connection with the qualification of such
Shares under state securities laws; and (e) the fees and expenses incurred in
connection with the listing of such Shares on each securities exchange on which
securities of the same class are then listed. Notwithstanding the foregoing,
Registration Expenses shall not include any costs incurred by the Partnership or
the General Partner in preparing any document that is incorporated by reference
in a registration statement or any professional fee or other expenses that would
have been incurred apart from the obligation of the General Partner hereunder to
file a Registration Statement.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor statute.
"Share Purchase Price" shall mean, with respect to the exercise of any
Redemption Rights, a number of Shares equal to the product of (a) the number of
Units being redeemed or purchased multiplied by (b) the Conversion Factor.
"Shares" shall mean shares of the Common Stock.
"Units" shall mean the limited partnership units in the Partnership issued
to Contributing Partners pursuant to the Contribution Agreement.
2. Grant of Redemption Rights.
(a) Upon the terms and subject to the conditions contained herein, the
Partnership does hereby grant to each Contributing Partner, and each
Contributing Partner does hereby accept, the right, but without obligation to
such Contributing Partner, to require the Partnership to redeem from time to
time part or all of its Units for the Cash Purchase Price ("Redemption Rights").
(b) Notwithstanding the provisions of Section 2(a), the General Partner
may, in its sole and absolute discretion, assume the obligation of the
Partnership with respect to and satisfy a Contributing Partner's exercise of a
Redemption Right by paying to the exercising Contributing Partner, at the
General Partner's election (which may be exercised in the General Partner's sole
discretion), either the Cash Purchase Price or the Share
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Purchase Price. If the General Partner assumes such obligations with respect to
an exercise of a Redemption Right and makes the required payment, then the
Partnership shall have no obligation to pay any amount to the Contributing
Partner with respect to such Contributing Partner's exercise of a Redemption
Right, and any Units purchased shall be owned by the General Partner for all
purposes.
(c) If the General Partner shall assume the obligations of the Partnership
with respect to and satisfy a Redemption Right, the Partnership, the exercising
Contributing Partner and the General Partner each shall treat the transaction
between the General Partner and such Contributing Partner as a sale of such
Contributing Partner's Units (or a portion thereof) to the General Partner for
federal income tax purposes.
(d) Upon the redemption or purchase of part or all of a Contributing
Partner's Units and the payment of the Purchase Price with respect thereto, such
Person shall be deemed withdrawn as a Partner in the Partnership to the extent
of the Units redeemed or purchased and shall have no further rights or
obligations under this Agreement with respect to such redeemed or purchased
Units.
(e) No fractional Shares shall be issued hereunder; in lieu of fractional
Shares, the General Partner shall pay cash based on the Current Per Share Market
Price on the relevant Computation Date.
3. Exercise of Redemption Rights.
3.1 Time for Exercise of Redemption Rights. A Contributing Partner may
exercise its Redemption Rights in whole or in part and at any time and from time
to time on or after the first anniversary of the date hereof but prior to the
Expiration Date; provided, however, that the Redemption Rights may not be
exercised at any one time with respect to less than 1,000 Units (or all the
Units then owned by the exercising Contributing Partner if such Contributing
Partner owns less than 1,000 Units). Once given, a Notice shall be irrevocable
subject to the payment of the Purchase Price for the Units specified therein in
accordance with the terms hereof.
3.2 Method of Exercise. The Redemption Rights shall be exercised by written
notice (the "Notice") to the Partnership (a) specifying the identity of the
exercising Contributing Partner, the number of Units to be redeemed, the name or
names
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(with address) in which any Shares issuable upon such exercise shall be
registered if different than the exercising Contributing Partner and that the
representations and warranties set forth on Schedule A are true and correct and
(b) accompanied by an instrument, duly executed by the exercising Contributing
Partner and in form reasonably satisfactory to the Partnership, transferring
such Units to the Partnership free and clear of all Liens.
3.3 Closing. The closing of the redemption or purchase and sale pursuant to
an exercise of the Redemption Rights shall occur within 30 days following the
receipt of the Notice and the instrument of transfer referred to in Section 3.2.
3.4 Payment of Cash or Issuance of Shares. At the closing of the redemption
or purchase and sale of Units pursuant to the exercise of Redemption Rights, the
Partnership shall deliver to the exercising Contributing Partner the Cash
Purchase Price by check or, in the event that the General Partner has assumed
the obligations of the Partnership with respect to such exercise of Redemption
Rights, the General Partner shall deliver to the Partnership, at the election of
the General Partner (which may be exercised in the General Partner's sole
discretion), either (a) the Cash Purchase Price or (b) a certificate
representing the Shares constituting the Share Purchase Price, together with
cash in lieu of the issuance of any fraction of a Share as provided in Section
2(e).
4. Matters Relating to Shares.
4.1 Registration.
(a) The General Partner shall (i) prepare, file and use reasonable best
efforts to cause to become effective on or before the first anniversary of the
date hereof a registration statement, which may be on Form S-3, under the
Securities Act relating to the Shares to be issued upon exercise of the
Redemption Rights assuming full satisfaction of the Redemption Rights by
delivery of Shares (and, in the sole discretion of the General Partner, any
other Shares) and (ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act. The General Partner may,
but shall not be obligated to, include any such Shares under its current
registration statement on Form S-3.
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(b) The General Partner shall pay all Registration Expenses incurred prior
to the sixth anniversary of the date hereof with respect to filing and keeping
effective the registration statement through such date, and the Contributing
Partners who are then Unitholders, severally in proportion to the number of
Units owned by them in relation to the total number of shares covered by the
registration statement, shall reimburse the General Partner for Registration
Expenses which are incurred after the sixth anniversary of the date hereof in
respect of maintaining effective such registration statement; provided, however,
that such Contributing Partners shall not be required to reimburse any costs (i)
of preparing any documents filed with the SEC that are incorporated by reference
in the Registration Statement or (ii) that become necessary because the General
Partner is unable to use Form S-3 (or any equivalent short form that relies on
incorporation by reference) for the reason that the General Partner has failed
to comply on a timely basis with any requirement of the Acts or Form S-3.
(c) If under the Acts or then current SEC policy, the registration of
Shares delivered pursuant hereto will not permit the public resale thereof
without further registration of such Shares for resale by the Contributing
Partners, the General Partner may deregister the Shares previously registered
for issuance to Contributing Partners pursuant to Section 4.1(a) and shall
register such Shares for resale, which may be accomplished by means of a shelf
registration, and Contributing Partners and the General Partner will enter into
customary agreements with respect thereto which contain provisions similar to
those contained in Section 4.1(a) and (b) (except that after the sixth
anniversary of the date hereof, the Contributing Partners whose Shares are being
registered for resale shall pay, severally in proportion to the number of their
Shares registered in relation to the total number of shares covered by the
registration statement, the Registration Expenses) and other customary
provisions, including customary indemnification agreements.
(d) Notwithstanding anything to the contrary contained herein, the General
Partner shall have no obligation to keep such registration statement effective
after the Expiration Date or if the status of the General Partner (or its
successor) as an Exchange Act Reporting Company is terminated.
(e) If the General Partner does not use reasonable best efforts, or despite
using its reasonable best efforts is unable, to cause such registration
statement to become effective on or before the second anniversary of the date
hereof or the General
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Partner thereafter does not maintain such registration statement in accordance
with the terms hereof (unless the Contributing Partners have defaulted
hereunder), the General Partner shall have no right to deliver the Share
Purchase Price upon exercise of Redemption Rights during the time when such
registration statement is not so effective and in that event the Partnership or
the General Partner must deliver the Cash Purchase Price for Units as to which
Redemption Rights have been exercised.
4.2 Reservation of Shares. At all times while the Redemption Rights are
outstanding, the General Partner shall reserve for issuance such number of
Shares as may be necessary to enable the General Partner to issue Shares in full
satisfaction of all Redemption Rights which are from time to time outstanding
(assuming no limitations as to the ownership of such Shares under the
Certificate of Incorporation which relate to compliance with the REIT
Requirements and that the General Partner elected to pay the Share Purchase
Price with respect to all such Redemption Rights).
4.3 Fully Paid and Non-Assessable. All Shares which may be issued upon
exercise of the Redemption Rights upon issue shall be duly and validly issued
and fully paid and non-assessable.
5. Transfer and Other Taxes. In the event that any state or local property
transfer or other tax is payable as the result of or in connection with any
exercise of the Redemption Rights by an exercising Contributing Partner, the
Partnership shall pay such transfer tax, but the exercising Contributing Partner
shall pay such tax to the extent that such tax results from registration of
Shares in the name of a person other than the registered owner of the Units and
no Shares shall be issued pursuant hereto until such exercising Contributing
Partner has paid to the General Partner the amount of such tax or has provided
evidence, in form reasonably satisfactory to the General Partner, as to the
payment thereof.
6. Anti-Dilution and Adjustment Provisions.
(a) If the General Partner or the Partnership increases or decreases the
number of its issued and outstanding Shares or limited partnership units, as the
case may be, by means of (i) the payment of a stock dividend or the making of
any other distribution on the Shares (or limited partnership units) payable in
its Common Stock (or limited partnership units), (ii) a subdivision of Shares or
limited partnership units or (iii) a
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consolidation or combination of Shares or limited partnership units, the
Conversion Factor shall be adjusted so as to result in the Redemption Rights not
being diluted or expanded thereby.
(b) If at any time the General Partner grants to its stockholders any right
to subscribe pro rata for additional securities of the General Partner, whether
Common Stock or other classifications, or for any other securities or interests
that Contributing Partners would have been entitled to subscribe for if,
immediately prior to such grant, Contributing Partners had exercised their
Redemption Rights and received the Share Purchase Price in payment thereof, in
lieu of any readjustment under any other subsection of this Section 6, then the
General Partner also shall grant to Contributing Partners the same subscription
rights that Contributing Partners would be entitled to if Contributing Partners
had exercised their Redemption Rights in full and received the Share Purchase
Price in satisfaction thereof prior to such grant.
(c) Upon the occurrence of a Major Transaction Event where all or a portion
of the consideration received by stockholders of the General Partner in
connection with such Major Transaction Event is in the form of securities in a
successor entity, the General Partner shall cause effective provision to be made
so that, upon exercise of the Redemption Rights and payment of the Purchase
Price by means of the Share Purchase Price, Contributing Partners shall have the
right thereafter to acquire, in lieu of the Shares which would have been
surrendered therefor, the kind and amount of shares of stock and other
securities and property and interests as would be issued or payable with respect
to or in exchange for the number of Shares constituting the Share Purchase Price
as if such Redemption Rights had been exercised and the General Partner had
satisfied the Redemption Rights by delivery of the Share Purchase Price
immediately before such Major Transaction Event.
(d) In the event of any Major Transaction Event where no portion of the
consideration received by stockholders of the General Partner in connection with
such Major Transaction Event is in the form of securities in a successor entity,
each Unitholder shall be entitled to exercise the Redemption Rights in full
prior to the consummation of such Major Transaction Event, and, with respect to
any Shares acquired upon exercise thereof, shall be entitled to all of the
rights of the other holders of Shares with respect to any distribution by the
General Partner (or the other party to such Major Transaction Event) in
connection with such Major Transaction Event. If not
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exercised within forty-five days after written notice from the General Partner
of such Major Transaction Event (which shall be given promptly after such Major
Transaction Event is announced to the public) or such shorter period between the
date of such notice and the effective date of such Major Transaction Event, the
Redemption Rights shall terminate at the expiration of such period, but the
Redemption Rights shall be revived if such Major Transaction Event is not
consummated.
(e) The provisions of this Section 6 shall apply to successive events that
may occur from time to time but only shall apply to a particular event if it
occurs prior to the exercise in full of the Redemption Rights or the liquidation
of the Partnership.
(f) Whenever the Conversion Factor is adjusted as herein provided, the
General Partner shall compute the adjusted Conversion Factor in accordance with
Section 6 and shall prepare a certificate signed by the chief financial officer
of the General Partner setting forth the adjusted Conversion Factor and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at the offices of the General Partner and
mailed to the holders of the Redemption Rights within 30 days of the date of the
adjustment.
(g) Notwithstanding anything above to the contrary, the Contributing
Partners will be entitled to adjustments to protect against dilution, and to
protect against deferral of receipt of benefits, that are no less favorable than
the adjustments and protection against deferral of receipt of benefits which are
received by any other holder of limited partnership units in the Partnership.
7. Miscellaneous Provisions.
7.1 Notices. All notices or other communications given pursuant to this
Agreement shall be sent to the party to whom or to which such notice is being
sent, by certified or registered mail, return receipt requested, commercial
overnight delivery service or facsimile or delivered by hand with receipt
acknowledged in writing. All notices (a) shall be deemed given when received and
(b) may be given either by a party or by such party's attorneys. For purposes of
this Section 7.1, the addresses of the parties shall be, in the case of the
Partnership and the General Partner, 000 Xxx Xxx, Xxx Xxxxxx, Xxxx 00000,
Attention: Xxxxxx Xxxxxxxxx, and, in the case of
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Contributing Partners, as set forth on the records of the Partnership. The
address of any party may be changed by a notice in writing given in accordance
with the provisions hereof.
7.2 Assignment. Contributing Partners may not assign this Agreement or
their rights hereunder; provided, however, that the rights of Contributing
Partners hereunder (including the Redemption Rights) shall automatically devolve
upon any Person to the extent that such Person holds Units, and becomes a
substituted partner with respect to such Units, in accordance with the
Partnership Agreement and delivers to the Partnership a written instrument, in
form reasonably satisfactory to the Partnership, pursuant to which such Person
agrees to be bound by the terms hereof. Subject to the provisions of Section 6,
the General Partner may assign this Agreement without the consent of
Contributing Partners, provided that no such assignment shall relieve the
General Partner of its obligation to file and maintain effective a registration
statement for the Shares as set forth herein or to make the required payment of
the Cash Purchase Price.
7.3 Binding Effect. This Agreement shall be binding upon, and inure to the
benefit of, the parties and their successors and permitted assigns, except as
expressly herein otherwise provided.
7.4 Governing Law. This Agreement shall be governed by the laws of the
State of Delaware (without regard to its conflicts of law principles).
7.5 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which shall constitute one document.
7.6 Entire Agreement. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter hereof and supersedes any prior
written or oral understandings and/or agreements among them with respect
thereto.
7.7 Pronouns; Headings; Etc. As used herein, all pronouns shall include
the masculine, feminine and neuter, and all terms shall include the singular
and plural thereof wherever the context and facts require such construction.
The headings herein are inserted for convenience of reference only and are to
be ignored in any construction of the provisions hereof. Any
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references in this Agreement to a "Section" or "Schedule" shall refer to a
Section or Schedule of this Agreement unless otherwise specified.
7.8 Survival. The representations, warranties and covenants contained
herein or made pursuant hereto shall survive the execution and delivery of this
Agreement and the issuance of Shares pursuant hereto.
7.9 Further Assurances. Each of the parties shall hereafter execute and
deliver such other instruments and documents and do such further acts and things
as may be required or useful to carry out the purposes of this Agreement.
7.10 No Right of Set-off. Notwithstanding any claim that the Partnership or
the General Partner may have against any Contributing Partner not arising under
this Agreement, each of the Partnership and the General Partner shall perform
all of its obligations under this Agreement without asserting any right of
setoff, counterclaim or similar justification for non-performance of its
obligations under this Agreement as the result of any such claim against such
Contributing Partner.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
GENERAL PARTNER:
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Its: Executive Vice President
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CONTRIBUTING PARTNERS:
PIEDMONT MALL ASSOCIATES PPP ASSOCIATES, L.P.
By: XXXXXXX, XXXXXXXXX-DANVILLE By: PIEDMONT MALL ASSOCIATES
ASSOCIATES, general partner general partner
By: /s/ Xxxxxx Xxxxxx, Xx. By: XXXXXXX, XXXXXXXXX-
--------------------------------- DANVILLE ASSOCIATES,
Xxxxxx Xxxxxx, Xx. general partner
Co-Managing Partner
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxx, Xx.
--------------------------------- ------------------------------------
Xxxxx X. Xxxxxxx Xxxxxx Xxxxxx, Xx.
Co-Managing Partner Co-Managing Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
Co-Managing Partner
By: GDC DANVILLE ASSOCIATES, By: GDC DANVILLE ASSOCIATES, L.P.,
L.P., general partner general partner
By: GDC DANVILLE GENERAL By: GDC DANVILLE GENERAL CORP.,
CORP., general partner general partner
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ------------------------------------
Xxxxx Xxxxxxx, Xxxxx Xxxxxxx,
President President
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MP ASSOCIATES L.P. HP ASSOCIATES, L.P.
By: PIEDMONT MALL ASSOCIATES, By: PIEDMONT MALL ASSOCIATES,
general partner general partner
By: XXXXXXX, XXXXXXXXX- By: XXXXXXX, XXXXXXXXX-
DANVILLE ASSOCIATES, DANVILLE ASSOCIATES,
general partner general partner
By: /s/ Xxxxxx Xxxxxx, Xx. By: /s/ Xxxxxx Xxxxxx, Xx.
--------------------------------- ------------------------------------
Xxxxxx Xxxxxx, Xx. Xxxxxx Xxxxxx, Xx.
Co-Managing Partner Co-Managing Partner
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------------------- ------------------------------------
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx,
Co-Managing Partner Co-Managing Partner
By: GDC DANVILLE ASSOCIATES, By: GDC DANVILLE ASSOCIATES, L.P.,
L.P., general partner general partner
By: GDC DANVILLE GENERAL By: GDC DANVILLE GENERAL CORP.,
CORP., general partner general partner
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ------------------------------------
Xxxxx Xxxxxxx, Xxxxx Xxxxxxx,
President President
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SCHEDULE A
REPRESENTATIONS AND WARRANTIES
Exercising Contributing Partner has good and marketable title to the Units
desired to be converted into Shares by it, free and clear of all Liens, it has
full power and capacity to transfer such Units, any documents executed in
connection with any such transfer are valid and binding and enforceable against
it in accordance with their terms and such transfer does not conflict with or
result in the breach by it of any agreement or instrument to which it is a party
or by which it is bound or any laws, regulations, ordinances, judgments or
decrees to which it is subject.
