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EXHIBIT 4.5
EXECUTION COPY
ISSUANCE AGREEMENT dated as of September 23,
1998, between CORPORATE PROPERTY INVESTORS, INC., a
Delaware corporation to be renamed Simon Property
Group, Inc. at the effective time of the Merger
("C1"), and CORPORATE REALTY CONSULTANTS, INC., a
Delaware corporation to be renamed SPG Realty
Consultants, Inc. at the effective time of the Merger
("C2").
The parties hereto hereby agree as follows:
SECTION 1. Definitions. As used herein, the following terms
shall have the following meanings:
"C1 Common Equivalent" with respect to a share of a series of
C1 Special Preferred Stock at any date shall mean the number of shares of C1
Common Stock (the "Conversion Rate") that would be issued to the holder of such
share of C1 Special Preferred Stock if all outstanding shares of such series
were converted into C1 Common Stock on such date in accordance with their terms,
regardless of whether such share of C1 Special Preferred Stock could not
actually be converted until a later date; provided, however, that if no
Conversion Rate has been fixed as of such date, the "C1 Common Equivalent" of
such a share of C1 Special Preferred Stock shall be determined by the Board of
Directors of C1 in good faith so as to achieve, insofar as is possible, the
intent and purposes of this Agreement.
"C1 Common Stock" shall mean the Common Stock, par value $.01
per share, of C1 prior to the effective time of the Merger and the Common Stock,
par value $.0001 per share, of Simon Property Group, Inc. from and after the
effective time of the Merger.
"C1 Special Preferred Stock" shall mean (i) prior to the
effective time of the Merger, the 6.50% First Series Preferred Stock, par value
$1,000 per share, of C1, (ii) from and after the effective time of the Merger,
the 6.50% Series A Convertible Preferred Stock, par value $.0001 per share, of
Simon Property Group, Inc. and (iii) any series of preferred stock of C1
convertible into C1 Common Stock, the terms of which expressly provide that such
stock shall be "Special Preferred Stock" of C1 for purposes of this Agreement.
"C2 Common Stock" shall mean the Common Stock, par value $.10
per share, of C2 prior to the effective time of the Merger and the Common Stock,
par value $.0001 per share,
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of SPG Realty Consultants, Inc. from and after the effective time of the Merger.
"C1 Proportionate Interest" shall mean (i) with respect to the
C1 Common Stock at any date, a fraction, the numerator of which shall be the
number of shares of C1 Common Stock outstanding at such date and the denominator
of which shall be the sum of such number of shares of C1 Common Stock and the
aggregate C1 Common Equivalents of all outstanding shares of C1 Special
Preferred Stock at such date, and (ii) with respect to any series of C1 Special
Preferred Stock, a fraction, the numerator of which shall be the C1 Common
Equivalent of the outstanding shares of such series at such date and the
denominator of which shall be the sum of the number of shares of C1 Common Stock
outstanding at such date and the aggregate C1 Common Equivalents of all
outstanding shares of C1 Special Preferred Stock at that date.
"C2 Common Trust" shall mean the trust for the ratable benefit
of all or substantially all the holders of C1 Common Stock established pursuant
to that certain Trust Agreement dated as of October 30, 1979, among the
shareholders of Corporate Property Investors, a Massachusetts business trust,
whose executions appear at the foot thereof, C2 and Bank of Montreal Trust
Company, as successor trustee thereunder.
"C2 Permitted Preferred Stock" shall mean a series of
preferred stock of C2, (i) the dividends on which shall not be determined by
reference to the dividends on C2 Common Stock or to the financial performance of
C2 or any of its affiliates or any particular line of business of any of them
(other than to provide that such dividends shall be payable to the extent the
Board of Directors of C2 determines that sufficient surplus shall be available
to pay them), (ii) that does not carry any voting rights (other than the right
to vote on amendments to the terms thereof or the Certificate of Incorporation
of C2, if such amendments shall be materially prejudicial to the holders of such
series of preferred stock) and (iii) that is not convertible into C2 Common
Stock.
"C2 Preferred Trust" shall mean a trust for the ratable
benefit of all the holders of a single series of C1 Special Preferred Stock
under which C2 Common Shares are held by a corporate trustee on terms
substantially the same as those of the trust established pursuant to the Trust
Agreement dated as of August 26, 1994, among the holders of the 6.50% First
Series Preference Shares of Corporate Property Investors, a Massachusetts
business trust, whose
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executions appear at the foot thereof, C2 and Bank of Montreal Trust Company, as
trustee thereunder.
"C2 Trust" shall mean each of the C2 Common Trust and the C2
Preferred Trusts.
"C2 Proportionate Interest" for any C2 Trust at any date shall
mean a fraction, the numerator of which shall be the number of shares of C2
Common Stock held in such C2 Trust at such date and the denominator of which
shall be the number of shares of C2 Common Stock outstanding at such date.
"Merger" means the merger of a substantially
wholly owned subsidiary of C1 with and into Xxxxx XxXxxxxxx
Group, Inc. pursuant to an Agreement and Plan of Merger
dated as of February 18, 1998 among Xxxxx XxXxxxxxx Group,
Inc. and C1 and C2.
Two numbers shall be "equal" if such numbers, when rounded to
the nearest 1/10,000th, are the same.
A series of capital stock of C1 shall be "related" to a C2
Trust, and vice versa, if the C2 Common Stock held in such trust is
held for the ratable benefit of the holders of all or substantially all
the outstanding shares of such series of capital stock of C1.
SECTION 2. Establishment of C2 Trusts. C1 shall not issue any
shares of any series of C1 Special Preferred Stock unless either a C2 Trust
related to such series shall then exist or C1 shall contemporaneously cause such
a C2 Trust to be established and give C2 notice of such establishment, along
with the details thereof.
SECTION 3. Issuance of C2 Shares. (a) Whenever C1 shall issue
shares of C1 Common Stock or C1 Special Preferred Stock, including upon the
conversion of any security other than the C1 Special Preferred Stock, C2 shall
issue to the C2 Trusts numbers of shares of C2 Common Stock such that,
immediately after such issuance of C2 Common Stock (giving effect to any
transfers of shares of C2 Common Stock among the C2 Trusts pursuant to the terms
of such trusts occurring by reason of the issuance of such shares of stock by
C1) the C2 Proportionate Interest of each C2 Trust shall equal the C1
Proportionate Interest of the series of capital stock of C1 related to such C2
Trust. The issuance of shares of C1 Common Stock or C1 Special Preferred Stock
in connection with a merger, consolidation or similar transaction in which C1
shall be the survivor shall be deemed to occur when the holders of the
securities to be
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exchanged for such shares surrender the Certificates evidencing such securities
to C1 or an exchange agent for exchange.
(b) C2 shall issue no shares of C2 Common Stock other than to
the C2 Trusts.
SECTION 4. Payment for C2 Shares Issued. Whenever C2 shall
issue shares of C2 Common Stock pursuant to Section 3, C1 shall simultaneously
pay to C2 an amount equal to the greater of (x) the aggregate par value of the
shares of C2 Common Stock issued and (y) the amount determined in good faith by
the Board of Directors of C2 to represent the fair market net asset value of the
shares of C2 Common Stock issued (less, in the case of this clause (y), the
aggregate consideration paid to C2 by parties other than C1 in connection with
such issuance of C2 Common Stock).
SECTION 5. Limitation on Issuance; Reservation of Shares. (a)
C2 shall not (i) issue, or propose or contract to issue, any shares of any
series of capital stock other than C2 Common Stock and C2 Permitted Preferred
Stock, or (ii) increase the par value of the C2 Common Stock.
(b) All authorized shares of C2 Common Stock that are not
outstanding from time to time shall be reserved for issuance pursuant to the
terms of this Agreement.
SECTION 6. Third Party Beneficiaries. The only intended third
party beneficiaries hereof shall be the holders from time to time of the
outstanding shares of C1 Common Stock, C1 Special Preferred Stock and C1
preferred stock convertible into C1 Common Stock; provided, however, that this
Agreement may be amended as set forth herein, and all such third party
beneficiaries shall be bound by the terms of any such amendment.
SECTION 7. Amendment. This Agreement and the rights of the
parties hereunder may not be waived, modified or otherwise amended other than by
a written amendment signed by the parties and either approved in writing by the
trustees of each C2 Trust then existing or approved by the affirmative vote of
the holders of 66.67% of (i) the shares of C1 Common Stock then outstanding,
(ii) each series of C1 Special Preferred Stock then outstanding and (iii) each
series of preferred stock of C1 convertible into C1 Common Stock then
outstanding, each such series voting as a separate class, at a stockholders'
meeting duly called for the purpose thereof or by a written consent in lieu
thereof
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executed in accordance with Section 228 of the General Corporation Law of the
State of Delaware.
SECTION 8. Assignment. Neither this Agreement nor any rights
hereunder shall be assigned by any party hereto, whether voluntarily or
involuntarily, by operation of law or otherwise; provided, however, that a party
may assign this Agreement if it shall merge or consolidate with another entity
with such other entity being the surviving entity, so long as such entity
assumes in writing, by an instrument delivered to the other party and the
trustees of any C2 Trusts then in existence, all the assigning party's
obligations hereunder, and in such an event all references herein to such party,
its capital stock and its Board of Directors shall thereafter be deemed
references to such person, its capital stock and its Board of Directors, as
applicable.
SECTION 9. Termination. This Agreement shall remain in full
force and effect until there shall be no C2 Trusts in existence, whereupon it
shall immediately terminate.
SECTION 10. Notices. (a) C2 shall give C1 prompt notice of any
issuance of C2 Common Stock and of the dissolution of any C2 Trust. C1 shall
give C2 prompt notice of any issuance of C1 Common Stock or C1 Special Preferred
Stock and of the entry by C1 into any agreement obligating C1 to make any such
issuance in the future.
(b) All notices hereunder shall be in writing; shall be hand
delivered, or mailed, postage prepaid, or sent by recognized overnight courier
to the address specified below (as the same may be changed by a party on notice
to the other party):
If to C1:
Simon Property Group, Inc.
National City Center
000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Secretary; and
If to C2:
SPG Realty Consultants, Inc.
National City Center
000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
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Attn: Corporate Secretary
and shall be deemed delivered when received.
SECTION 11. Governing Law. This Agreement shall be construed
in accordance with, and governed by, the laws of the State of New York, without
regard to conflicts of laws principles.
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IN WITNESS WHEREOF the undersigned have executed this Issuance
Agreement as of the date first written above.
CORPORATE PROPERTY INVESTORS,
INC.,
by /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President and
General Counsel
CORPORATE REALTY CONSULTANTS,
INC.,
by /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President and
General Counsel
