EXHIBIT 4.4
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of June ___, 1998, among GENERAL GROWTH
PROPERTIES, INC., a Delaware corporation (the "Company"), and NORWEST BANK
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MINNESOTA, N.A., a national banking association, as Depositary (the
"Depositary"), and all holders from time to time of Receipts (as hereinafter
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defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of up to 345,000 shares of 7.25% Preferred Income
Equity Redeemable Stock, Series A, a series of preferred stock, par value $100
per share (the "PIERS"), of the Company, with the Depositary for the purposes
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set forth in this Deposit Agreement and for the issuance hereunder of the
Receipts evidencing Depositary Shares representing a fractional interest in the
PIERS so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
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annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, and such
other good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
"Certificate of Designations" shall mean the Certificate of Designations,
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Preferences and Rights of the PIERS, filed with the Secretary of State of the
State of Delaware establishing the PIERS as a series of Preferred Stock of the
Company, as such Certificate of Designations, Preferences and Rights may be
amended from time to time.
"Certificate of Incorporation" shall mean the Certificate of
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Incorporation, as amended from time to time, of the Company.
"Common Stock" shall mean the shares of common stock, par value $.10 per
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share, of the Company.
"Company" shall mean General Growth Properties, Inc., a Delaware
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corporation, and its successors.
"Corporate Office" shall mean the corporate office of the Depositary at
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which at any particular time its business in respect of matters governed by this
Deposit Agreement shall be administered, which at the date of this Deposit
Agreement is located at 000 Xxxxx Xxxxxxx Xxxxxxxx, Xxxxx Xx. Xxxx, Xxxxxxxxx
00000.
"Deposit Agreement" shall mean this Agreement, as the same may be amended,
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modified or supplemented from time to time.
"Depositary" shall mean Norwest Bank Minnesota, N.A., a national banking
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association having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000, and any successor as
depositary hereunder.
"Depositary Share" shall mean a fractional interest of 1/40 of a PIERS
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deposited with the Depositary hereunder and the same proportionate interest in
any and all other property received by the Depositary in respect of such PIERS
and held under this Deposit Agreement, all as evidenced by the Receipts issued
hereunder. Subject to the terms of this Deposit Agreement, each owner of a
Depositary Share is entitled, proportionately, to all the rights, preferences
and privileges of the PIERS represented by such Depositary Share, including the
dividend, voting, redemption, conversion and liquidation rights contained in the
Certificate of Designations.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
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provided, and for the purposes specified, in Section 7.5.
"Excess PIERS" shall mean any PIERS held by any Person that (i) become or
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have become "Equity Stock" "Beneficially Owned" or "Constructively Owned" in
excess of the applicable "Ownership Limit" or "Existing Holder Limit " (as such
terms are defined in the Certificate of Incorporation) or (ii) would cause the
Company to become "closely held" within the meaning of Section 856(h) of the
Internal Revenue Code of 1986, as amended.
"Person" shall mean any individual, partnership, corporation, limited
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liability company, trust or other legal entity.
"PIERS" shall have meaning set forth in the recitals to this Agreement.
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"Receipt" shall mean a Depositary Receipt issued hereunder to evidence one
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or more Depositary Shares, whether in definitive or temporary form,
substantially in the form set forth as Exhibit A hereto.
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"record date" shall mean the date fixed pursuant to Section 4.4.
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"record holder" or "holder" as applied to a Receipt shall mean the Person
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in whose name a Receipt is registered on the books maintained by the Depositary
for such purpose.
"Registrar" shall mean Norwest Bank Minnesota, N.A. or any bank or trust
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company appointed to register ownership and transfers of Receipts, the deposited
PIERS or Excess PIERS, as the case may be, as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Transfer Agent" shall mean Norwest Bank Minnesota, N.A. or any bank or
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trust company appointed to transfer the Receipts, the deposited PIERS or Excess
PIERS, as the case may be, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PIERS,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transferability of Receipts. Definitive Receipts
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shall be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
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annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company, delivered in
compliance with Section 2.2, shall execute and deliver temporary Receipts which
may be printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Corporate Office or such other offices, if any, as the
Depositary may designate, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered temporary Receipt
or Receipts registered in the name (and only the name) of the holder of the
temporary Receipt. Such exchange shall be made at the Company's expense and
without any charge therefor to the holder. Until so exchanged, the
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temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the PIERS deposited, as definitive
Receipts.
Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary, provided that if a
Registrar (other than the Depositary) shall have been appointed then such
Receipts shall also be countersigned by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding sentence. The Depositary shall
record on its books each Receipt executed as provided above and delivered as
hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares. All Receipts shall be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary and approved by the
Company or required to comply with any applicable law or regulation or with the
rules and regulations of any securities exchange upon which the PIERS, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery of such
Receipt with the same effect as if such Receipt were a negotiable instrument;
provided, however, that until a Receipt shall be transferred on the books of the
Depositary as provided in Section 2.4, the Depositary may, notwithstanding any
notice to the contrary, treat the record holder thereof at such time as the
absolute owner thereof for the purpose of determining the person entitled to
distribution of dividends or other distributions with respect to the PIERS, the
exercise of any conversion rights or to any notice provided for in this Deposit
Agreement and for all other purposes. The Depositary shall not lend any PIERS
deposited hereunder.
SECTION 2.2 Deposit of PIERS; Execution and Delivery of Receipts in
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Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
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the Company or any other Person authorized under the Underwriting Agreement,
dated June __, 1998, between the Company and the Underwriters named therein,
with respect to the PIERS (the "Authorized Persons"), may from time to time
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deposit PIERS with the Depositary under this Deposit Agreement by delivery to
the Depositary of a certificate or certificates representing the PIERS to be
deposited; provided, however, that other than in the case of splits,
combinations or other reclassifications affecting the PIERS, or in the case of
dividends
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or distributions of PIERS, if any, there shall be deposited with the Depositary
hereunder not more than 460,000 PIERS. Such certificate or certificates shall
be properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with (i) all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement and (ii)
a written order of the Company directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such order a
Receipt or Receipts for the Depositary Shares representing such deposited PIERS.
All PIERS deposited by the Company or the Authorized Persons, as the case may
be, with the Depositary shall be held by the Depositary at the Corporate Office
or at such other office as the Depositary shall determine. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the PIERS
deposited hereunder and any Excess PIERS issued pursuant to Section 2.10 and the
Depositary hereby accepts such appointment and, as such, will reflect changes in
the number of shares (including any fractional shares) of deposited PIERS held
by it by notation, book-entry or other appropriate method.
If required by the Depositary, PIERS presented for deposit at any time
(except for the initial deposit of PIERS by the Company or the Authorized
Persons and any subsequent deposit by the Company or the Authorized Persons of
PIERS acquired pursuant to the over-allotment option under the Underwriting
Agreement referred to above) whether or not the register of stockholders of the
Company is closed, shall also be accompanied by an agreement or assignment, or
other instrument satisfactory to the Depositary, that will provide for the
prompt transfer to the Depositary or its nominee of any dividend or right to
subscribe for additional PIERS or to receive other property that any person in
whose name the PIERS is or has been registered may thereafter receive upon or in
respect of such deposited PIERS, or in lieu thereof such agreement of indemnity
or other agreement as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates
representing PIERS deposited with the Depositary by the Company or the
Authorized Persons, as the case may be, in accordance with the provisions of
this Section 2.2, together with the other documents specified above, and upon
registering such PIERS in the name of the Depositary, the Depositary, subject to
the terms and conditions of this Deposit Agreement, shall execute and deliver
to, or upon the order of, the Person or Persons named in the written order
delivered to the Depositary referred to in the first paragraph of this Section
2.2, a Receipt or Receipts for the number of whole Depositary Shares
representing the PIERS so deposited and registered in such name or names as may
be requested by such Person or Persons. The Depositary shall execute and
deliver such Receipt or Receipts at the Corporate Office, except that, at the
request, risk and expense of any Person requesting such delivery, such delivery
may be made at such other place as may be designated by such Person.
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The Company shall deliver to the Depositary from time to time such
quantities of blank Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.3 Redemption of PIERS. Whenever the Company shall elect to
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redeem PIERS in accordance with the provisions of the Certificate of
Designations, it shall (unless otherwise agreed in writing with the Depositary)
mail notice to the Depositary of such redemption, by first class mail, postage
prepaid, on the same date on which the Company first publicly announces such
redemption which date shall not be less than 30 days prior to the date of such
redemption (in the case of a redemption for Common Stock) or 20 days prior to
the date of such redemption (in the case of a redemption for cash). On the date
of such redemption, provided that the Company shall then have deposited with the
Depositary a number of shares of Common Stock and/or an amount in cash required
pursuant to the Certificate of Designations in order to effect a redemption of
the number of PIERS specified in the notice of redemption and any other amounts
payable with respect to the PIERS, the Depositary shall redeem the Depositary
Shares relating to such PIERS. Notice of such redemption and the simultaneous
redemption of the number of Depositary Shares relating to the PIERS to be
redeemed to the record holders of the Receipts evidencing the Depositary Shares
to be so redeemed shall be provided on the record date fixed pursuant to Section
4.4 hereof by the Depositary by first-class mail, postage prepaid, at the
addresses of such holders as they appear on the records of the Depositary, or
(if permitted by the Certificate of Designations) by the Company by publication
in The Wall Street Journal or The New York Times, or if neither such newspaper
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is then being published, any other daily newspaper of national circulation, not
less than 30 days (in the case of a redemption for Common Stock) or 20 days (in
the case of a redemption for cash) and not more than 60 days prior to the date
fixed for redemption of such PIERS and Depositary Shares (the "Redemption
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Date"), and in no case later than four business days after the Company first
publicly announces such redemption. If the Company elects to provide such
notice by publication, the Depositary shall also promptly mail notice of such
redemption to the holders of the Depositary Shares to be redeemed. Neither
failure to mail any such notice to one or more such holders nor any defect in
any notice or in the mailing thereof to one or more such holders shall affect
the validity or sufficiency of the proceedings for redemption of any Depositary
Shares as to other holders. Each such notice of redemption provided by the
Depositary to the holder shall state, as appropriate: (i) the Redemption Date;
(ii) the redemption price per Depositary Share (expressed as a number of shares
of Common Stock or an amount in cash) and any other amounts per share payable
with respect to the Depositary Shares; (iii) the number of Depositary Shares to
be redeemed (and, if fewer than all the Depositary Shares held by any such
holder are to be redeemed, the number of such Depositary Shares held by such
holder to be so redeemed); (iv) the place or places where Receipts evidencing
Depositary Shares are to be surrendered for certificates representing shares of
Common Stock or cash; (v) that dividends in respect of the PIERS to be redeemed,
which are represented by the Depositary Shares to be redeemed, will cease to
accrue at the
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close of business on such Redemption Date, except as otherwise provided in the
Certificate of Designations and (vi) the date upon which such holder's
conversion rights, if any, as to such PIERS (and Depositary Shares representing
such PIERS) will terminate. If fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be selected by
lot or pro rata or other equitable method, in each case as may be determined by
the Board of Directors of the Company that will not result in the issuance of
Excess PIERS.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to deliver to the
Depositary certificates representing a number of shares of Common Stock or cash
(as applicable) sufficient to redeem the PIERS to be redeemed to it or any other
amounts payable with respect to the PIERS as set forth in the Company's notice
provided for in the preceding paragraph), all dividends in respect of the PIERS
so called for redemption shall cease to accrue (except as otherwise provided in
the Certificate of Designations), the Depositary Shares being redeemed shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the number of
shares of Common Stock or cash (as applicable) required to redeem such
Depositary Shares and any other amounts payable with respect to the PIERS)
shall, to the extent of such Depositary Shares, cease and terminate and, upon
surrender in accordance with such notice of the Receipts evidencing any such
Depositary Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be redeemed by the Depositary
for a number of shares of Common Stock or an amount in cash (as applicable) per
Depositary Share equal to 1/40 of the number of shares of Common Stock or the
amount in cash (as applicable) required by the Certificate of Designations to be
delivered in respect of one PIERS plus all money and other property, if any,
underlying such Depositary Shares, including all amounts paid by the Company in
respect of dividends that, on the Redemption Date, have accrued on the PIERS to
be so redeemed and relate to dividend periods ending on or prior to the
Redemption Date or to the extent provided in the Certificate of Designations, to
the dividend period ending after the Redemption Date, and have not theretofore
been paid.
If fewer than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the delivery of a number of
shares of Common Stock or the amount in cash (as applicable) sufficient to
redeem the PIERS to be redeemed and any other amounts per share payable with
respect to the PIERS, a new Receipt evidencing such number of Depositary Shares
as were evidenced by such prior receipt and not called for redemption.
The Depositary shall not be required (a) to issue, transfer or exchange any
Receipts for a period beginning at the close of business on the day the Company
first publicly announces the redemption of PIERS and ending at the close of
business on the day the
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Depositary mails the notices of redemption of Depositary Shares or (b) to
transfer or exchange for another Receipt any Receipt evidencing Depositary
Shares called or being called for redemption in whole or in part, except as
provided in the preceding paragraph of this Section 2.3.
Upon any redemption, the Company shall deliver to the Depositary
certificates representing a number of shares of Common Stock or a sufficient
amount of immediately available funds (as applicable) required by the
Certificate of Designations in order to effect the redemption of the number of
PIERS specified in the notice of redemption mailed by the Company to the
Depositary pursuant to this Section 2.3, and a sufficient amount of immediately
available funds to pay any other amounts per share payable with respect to the
PIERS. Any shares of Common Stock so delivered shall be duly executed by proper
officers of the Company and duly countersigned by the transfer agent and
registrar for the Common Stock and shall be registered in such names as the
Depositary shall request. The Depositary shall deliver to each holder of a
Receipt surrendered for redemption a number of shares of Common Stock equal to
the number required by the Certificate of Designations, or the amount of cash
required by the Certificate of Designations (as applicable), to effect a
redemption of the number of Depositary Shares evidenced by such Receipt to be
redeemed. The Company shall bear all costs and expenses associated with the
exchange of the Receipts for shares of Common Stock.
If the shares of Common Stock are to be delivered to a person or persons
other than the record holder of the Receipt or Receipts being surrendered for
redemption, such holder shall execute and deliver to the Depositary a written
order so directing the Depositary and the Depositary may require that the
Receipt or Receipts surrendered by such holder for redemption be accompanied by
a properly executed instrument of transfer or endorsement properly executed in
blank.
No fractional shares of Common Stock shall be issuable upon redemption of
PIERS underlying the Depositary Shares. If any holder of Receipts surrendered
for redemption would be entitled to a fractional share of Common Stock upon such
redemption, the Company shall cause to be delivered to such holder a cash amount
for such fractional shares as provided in the Certificate of Designations.
SECTION 2.4 Registration of Transfers of Receipts. The Company hereby
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appoints the Depositary as the Registrar and Transfer Agent for the Receipts and
the Depositary hereby accepts such appointment and, as such, shall register on
its books from time to time transfers of Receipts upon, any surrender thereof by
the holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
together with evidence of the payment of any transfer taxes as may be required
by law. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto
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evidencing the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
SECTION 2.5 Combinations and Split-ups of Receipts. Upon surrender of a
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Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denominations requested evidencing the same aggregate number of Depositary Share
evidenced by the Receipt or Receipts surrendered.
SECTION 2.6 Surrender of Receipts and Withdrawal of PIERS. Any holder of
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a Receipt of Receipts evidencing not less than 40 Depositary Shares (or integral
multiples of 40 Depositary Shares) may withdraw the deposited PIERS represented
by such Depositary Shares and all money and other property, if any, represented
by such Depositary Shares by surrendering such Receipt or Receipts at the
Corporate Office or at such other office as the Depositary may designate for
such withdrawals, provided that a holder of a Receipt or Receipts may not
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withdraw such PIERS (or money and other property, if any, represented thereby)
which have previously been called for redemption or which have been converted to
Excess PIERS in accordance with Section 2.10. After such surrender, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided, the number
of whole PIERS and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole PIERS will not thereafter be entitled to
deposit such PIERS hereunder or to receive Depositary Shares therefor. If the
Receipt or Receipts delivered by the holder to the Depositary in connection with
such withdrawal shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole deposited PIERS to
be withdrawn, the Depositary shall at the same time, in addition to such number
of whole PIERS and such money and other property, if any, to be withdrawn,
deliver to such holder, or (subject to Sections 2.4 and 3.2) upon his order, a
new Receipt or Receipts evidencing such excess number of Depositary Shares.
Delivery of such PIERS and such money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate, which, if required by the
Depositary, shall be properly endorsed or accompanied by proper instruments of
transfer.
If the deposited PIERS and the money and other property being withdrawn are
to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of PIERS, such holder shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such PIERS be properly endorsed in
blank or accompanied by a properly executed instrument of transfer or
endorsement in blank.
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The Depositary shall deliver the deposited PIERS and the money and other
property, if any, represented by the Depositary Shares evidenced by Receipts
surrendered for withdrawal at the Corporate Office, except that, at the request,
risk and expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place as
may be designated by such holder.
SECTION 2.7 Limitations on Execution and Delivery, Transfer, Split-up,
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Combination, Surrender and Exchange of Receipts. As a condition precedent to
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the execution and delivery, transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any taxes, charges or
expenses payable by the holder of a Receipt pursuant to Sections 3.2 and 5.7;
(ii) the production of evidence satisfactory to it as to the identity and
genuineness of any signature, and (iii) compliance with the rules and
regulations of any governmental body, any stock exchange or any applicable self-
regulatory body, including, without limitation, the National Association of
Securities Dealers Inc. (the "NASD") or such procedures, if any, as the
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Depositary or the Company may establish consistent with the provisions of this
Deposit Agreement.
The deposit of PIERS may be refused, the delivery of Receipts against PIERS
may be suspended, the transfer of Receipts may be refused, and the transfer,
split-up, combination, surrender, exchange or redemption of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed reasonably necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government, governmental body or commission, stock exchange or the NASD or under
any provision of this Deposit Agreement.
SECTION 2.8 Lost Receipts, etc. If any mutilated Receipt is surrendered
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to the Depositary, the Depositary shall execute and deliver in exchange therefor
a new Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt. In case any Receipt shall be destroyed, lost or stolen, the
Depositary shall execute and deliver a Receipt to the holder thereof of like
form and tenor in exchange and substitution for such destroyed, lost or stolen
Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of such holder's ownership thereof
and (ii) the holder's furnishing the Depositary with reasonable indemnification
satisfactory to the Depositary and the Company and (iii) payment of any expenses
including fees, charges and expenses of the Depositary in connection with such
execution and delivery. Every new Receipt issued pursuant to this Section 2.8 in
lieu of any mutilated, destroyed, lost or stolen receipt shall constitute an
original additional contractual obligation under this Deposit Agreement,
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whether or not the mutilated, destroyed, lost or stolen Receipt shall be at any
time enforceable by anyone.
SECTION 2.9 Cancellation of Surrendered Receipts. All Receipts
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surrendered to the Depositary or any Depositary's Agent shall be cancelled by
the Depositary. The Depositary shall retain all Receipts so canceled for a
period of one (1) year, after which the Depositary shall return all canceled
Receipts to the Company which shall hold the canceled Receipts for such
additional period as may be required by applicable law or NYSE regulation.
SECTION 2.10 Conversion of PIERS into Excess PIERS. In the event that
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deposited PIERS become or have become Excess PIERS, the Receipt or Receipts
representing the deposited PIERS so converted shall no longer represent, to the
extent of the shares so converted, such deposited PIERS. Promptly upon its
knowledge of the conversion of such deposited PIERS into Excess PIERS, the
Company shall notify the Depositary of such conversion, the number of deposited
PIERS so converted, and the identity of the holder of the Receipt or Receipts so
affected, whereupon the Depositary shall promptly notify the holder of such
Receipt or Receipts as to the foregoing information and the requirement for the
holder to surrender such Receipt or Receipts to the Depositary for cancellation
of the number of Depositary Shares evidenced thereby equal to the converted
deposited PIERS represented thereby. Further, where PIERS deposited under this
Agreement become or have become Excess PIERS, the Depositary Shares related to
such PIERS (which shall be those Depositary Shares the direct, indirect or
constructive ownership of which by a Prohibited Owner (as defined in the
Certificate of Incorporation) caused such PIERS to be treated as Excess PIERS;
provided that the number of Depositary Shares so related and owned directly,
indirectly or constructively by such Prohibited Owner shall be rounded up to the
nearest 40 Depositary Shares), shall be entitled to receive dividends and
exercise voting rights only to the extent that a Prohibited Owner with respect
to the PIERS associated with such Depositary Shares would be entitled to receive
dividends and exercise voting rights under the Certificate of Incorporation.
Any Prohibited Owner of Depositary Shares that represent Excess PIERS shall
repay to the Trustee (as defined in the Certificate of Incorporation) the amount
of any dividends or distributions received by it that (a) are attributable to
such Excess PIERS and (b) have a record date on or after the date that such
PIERS became Excess PIERS. In addition, any vote by a Prohibited Owner as a
holder of Depositary Shares prior to the discovery by the Company that the
Depositary Shares represent Excess PIERS shall be rescinded and shall be void ab
initio with respect to such Excess PIERS.
Each holder of Receipts shall, upon demand, be required to disclose to the
Company such information with respect to the direct, indirect and constructive
ownership of Depositary Shares and PIERS as the Board of Directors deems
necessary to comply with
-11-
the provisions of the Internal Revenue Code of 1986, as amended, applicable to a
real estate investment trust or to comply with the requirements of any taxing
authority or governmental agency. The Depositary hereby agrees to transmit
written statements from the Company requesting information with respect to the
direct, indirect and constructive ownership of Depositary Shares and PIERS
through to holders of Receipts, and to provide the Company with the responses
received in connection with such requests. The Depositary also hereby agrees to
provide the Company with a list of the record holders of Depositary Shares and
such other information concerning the direct, indirect and constructive
ownership of Depositary Shares as the Company may reasonably request.
If fewer than all of the Depositary Shares evidenced by a Receipt are
required to be surrendered for cancellation, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
required to be surrendered for cancellation. Upon the conversion of the
deposited PIERS and cancellation of the Depositary Shares represented thereby,
the Depositary will make appropriate adjustments in its records (as contemplated
in Section 2.2) to reflect such conversion and cancellation (including the
reduction of any fractional share of deposited PIERS and the creation of any
Excess PIERS).
SECTION 2.11 Conversion of PIERS into Common Stock. Receipts may be
-------------------------------------
surrendered with written instructions to the Depositary to instruct the Company
to cause the conversion of any specified number of whole or fractional PIERS
represented by the Depositary Shares evidenced thereby into whole shares of
Common Stock at the conversion price then in effect for the PIERS (and,
therefore, for the Depositary Shares) specified in the Certificate of
Designations, as such conversion price may be adjusted by the Company from time
to time as provided in the Certificate of Designations. Subject to the terms
and conditions of this Deposit Agreement and the Certificate of Designations, a
holder of a Receipt or Receipts evidencing Depositary Shares representing whole
or fractional PIERS may surrender such Receipt or Receipts at the Corporate
Office or to such office or to such Depositary's Agents as the Depositary may
designate for such purpose, together with a notice of conversion duly completed
and executed, thereby directing the Depositary to instruct the Company to cause
the conversion of the number of shares or fractions thereof of underlying PIERS
specified in such notice of conversion into shares of Common Stock, and an
assignment of such Receipt or Receipts to the Company or in blank, duly
completed and executed. To the extent that a holder delivers to the Depositary
for conversion a Receipt or Receipts which in the aggregate are convertible into
less than one whole share of Common Stock, the holder shall receive payment in
cash in lieu of such fractional shares of Common Stock otherwise issuable. If
more than one Receipt shall be delivered for conversion at one time by the same
holder, the number of whole shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate number of Receipts so
delivered.
-12-
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of PIERS and an assignment of such Receipt or Receipts to the
Company or in blank, duly completed and executed, the Depositary shall instruct
the Company (i) to cause the conversion of the Depositary Shares evidenced by
the Receipts so surrendered for conversion as specified in the written notice to
the Depositary and (ii) to cause the delivery to the holders of such Receipts of
a certificate or certificates evidencing the number of whole shares of Common
Stock and the amount of money, if any, to be delivered to the holders of
Receipts surrendered for conversion in payment of any accrued and unpaid
dividends and in lieu of fractional shares of Common Stock otherwise issuable.
The Company shall as promptly as practicable after receipt thereof cause the
delivery of (i) a certificate or certificates evidencing the number of whole
shares of Common Stock into which the PIERS represented by the Depositary Shares
evidenced by such Receipt or Receipts has been converted and (ii) any money or
other property to which the holder is entitled. Upon such conversion, the
Depositary (i) shall deliver to the holder a Receipt evidencing the number of
Depositary Shares, if any, which such holder has elected not to convert and
evidencing the number of Depositary Shares, if any, in excess of the number of
Depositary Shares representing PIERS which has been so converted, (ii) shall
cancel the Depositary Shares evidenced by the Receipts surrendered for
conversion and (iii) shall deliver to the Company or its transfer agent for the
PIERS for cancellation the PIERS represented by the Depositary Shares evidenced
by the Receipts so surrendered and so converted.
If any PIERS shall be called by the Company for redemption, the Depositary
Shares representing such PIERS may be converted into Common Stock as provided in
this Deposit Agreement until and including, but not after, the close of business
on the second business day preceding the Redemption Date unless the Company
shall default in making payment of the shares of Common Stock and other amounts
payable upon such redemption, in which case the Depositary Shares representing
such PIERS may continue to be converted into Common Stock until and including,
but not after, the close of business on the date on which the Company makes full
payment of the shares of Common Stock and other amounts payable on such
redemption. Upon receipt by the Depositary of a Receipt or Receipts, together
with a properly completed and executed notice of conversion, representing any
PIERS called for redemption, the PIERS held by the Depositary represented by
such Depositary Shares for which conversion is requested shall be deemed to have
been received by the Company for conversion as of the close of business on the
date of such receipt.
The record holder of Depositary Shares on any dividend payment record date
established by the Depositary pursuant to Section 4.4 shall be entitled to
receive the dividend payable with respect to such Depositary Shares on the
corresponding dividend payment date notwithstanding the subsequent conversion of
the PIERS to which such Depositary Shares relate. If a PIERS is converted
between the record date with respect to any dividend payment
-13-
on the PIERS and the opening of business on the next succeeding dividend payment
date, any holder of Receipts surrendered with instructions to the Depositary for
conversion of the underlying PIERS (except for Depositary Shares converted after
the issuance of a notice of redemption with respect to a Redemption Date during
such period or coinciding with such Dividend Payment Date which shall be
entitled to such dividend on the dividend payment date) shall pay to the
Depositary an amount equal to the dividend payable on such dividend payment date
on the Depositary Shares represented by the Receipt being surrendered for
conversion. Any holder of Receipts on a dividend payment record date who (or
whose transferee) surrenders the Receipts with instructions to the Depositary
for conversion of the underlying PIERS on the corresponding dividend payment
date will receive the dividend payable with respect to the Depositary Shares
underlying such Receipts and will not be required to include payment of the
amount of such dividend upon surrender of the Receipts for conversion.
Upon the conversion of any PIERS for which a request for conversion has
been made by the holder of Depositary Shares representing such shares, all
dividends in respect of such Depositary Shares shall cease to accrue (except as
provided in the preceding paragraph), such Depositary Shares shall be deemed no
longer outstanding, all rights of the holder of the Receipt with respect to such
Depositary Shares (except the right to receive the Common Stock, any cash
payable with respect to any fractional shares of Common Stock as provided herein
and any cash payable on account of accrued dividends and any Receipts evidencing
Depositary Shares not so converted) shall terminate, and the Receipt evidencing
such Depositary Shares shall be cancelled in accordance with Section 2.9 hereof.
No fractional shares of Common Stock shall be issuable upon conversion of
PIERS underlying the Depositary Shares. If any holder of Receipts surrendered
with instructions to the Depositary for conversion of the underlying PIERS would
be entitled to a fractional share of Common Stock upon such conversion, the
Company shall cause to be delivered to such holder an amount in cash for such
fractional share as provided in the Certificate of Designations.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other Information. Except
-------------------------------------------------
for the initial deposit of PIERS by the Company or the Authorized Persons and
any subsequent deposit by the Company or the Authorized Persons of PIERS
acquired by such Authorized Persons pursuant to the overallotment option
referred to in Section 2.2, any Person presenting PIERS for deposit or any
holder of a Receipt may be required from time to time to file such proof of
residence or other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem
-14-
necessary or proper. The Depositary or the Company may withhold or delay the
delivery of any Receipt, the transfer, conversion, redemption or exchange of any
Receipt, the withdrawal of the deposited PIERS represented by the Depositary
Shares evidenced by any Receipt, the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof, until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.2 Payment of Fees and Expenses. Holders of Receipts shall be
----------------------------
obligated to make payments to the Depositary of certain fees and expenses, as
provided in Section 5.7, or provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the PIERS or money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused, any dividend or other distribution may be withheld, and any part
or all of the PIERS or other property represented by the Depositary Shares
evidenced by such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder a reasonable number
of days prior to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.3 Representations, Warranties and Covenants as to PIERS and
---------------------------------------------------------
Common Stock. The Company hereby represents and warrants to the Depositary that
------------
the PIERS, when issued, will be validly issued, fully paid and nonassessable.
Such representation and warranty shall survive the deposit of the PIERS and the
issuance of Receipts. The Company covenants that it will keep reserved or
otherwise available a sufficient number of authorized and unissued shares of
Common Stock or its issued shares of Common Stock held in its treasury, or both,
to meet conversion requirements in respect of the PIERS and that it will give
written notice to the Depositary of any adjustments in the conversion price as
set forth in the Certificate of Designations. The Company represents and
warrants that the Common Stock issued upon conversion or redemption of PIERS,
when issued, will be validly issued, fully paid and non-assessable. Such
representation and warranty shall survive the conversion or redemption of the
PIERS into such Common Stock.
SECTION 3.4 Representations and Warranty as to Receipts and Depositary
----------------------------------------------------------
Shares. The Company hereby represents and warrants that the Receipts, when
------
issued, will evidence legal and valid interests in the Depositary Shares and
each Depositary Share will represent a legal and valid 1/40 fractional interest
in a deposited PIERS. Such representation and warranty shall survive the
deposit of the PIERS and the issuance of Receipts evidencing the Depositary
Shares.
-15-
ARTICLE IV
PIERS; NOTICES
SECTION 4.1 Cash Distributions. Whenever the Depositary shall
------------------
receive any cash dividend or other cash distribution on the deposited PIERS,
including any cash received upon redemption of any PIERS pursuant to Section
2.3, the Depositary shall, subject to Section 3.2, distribute to record holders
of Receipts on the record date fixed pursuant to Section 4.4 such amounts of
such sum as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that (i) in case the Company or the Depositary shall be
required to and shall withhold from any cash dividend or other cash distribution
in respect of the PIERS represented by the Receipts held by any holder an amount
on account of taxes, or as otherwise required by law, regulation or court order,
the amount made available for distribution or distributed in respect of
Depositary Shares represented by such Receipts subject to such withholding shall
be reduced accordingly and (ii) no cash dividends will be paid in respect of any
Depositary Share to the extent that it represents any PIERS converted into
Excess PIERS. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Receipts a fraction of one
cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.2 Distributions Other Than Cash. Whenever the Depositary
-------------------------------
shall receive any distribution other than cash on the deposited PIERS, the
Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner, that the Depositary and the
Company may deem equitable and practicable for accomplishing such distribution,
except that no distribution will be made in respect of any Depositary Share to
the extent that it represents any PIERS converted into Excess PIERS. If, in the
opinion of the Depositary after consultation with the Company, such distribution
cannot be made proportionately among such record holders or, if for any other
reason (including any requirement that the Company or the Depositary withhold an
amount on account of taxes or as otherwise required by law, regulation or court
order), the Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable for the purpose
of effecting such distribution, including the sale (at public or private sale)
of the securities or property thus received or any part thereof, at such place
or places and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Section 3.2, be distributed or
-16-
made available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.1 in the case of a distribution
received in cash.
SECTION 4.3 Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Company shall at any time offer or cause to be offered to the persons in whose
names deposited PIERS are registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines upon advice of its legal counsel that it is not lawful or feasible to
make such rights, preferences or privileges available to the holders of Receipts
(by the issue of warrants or otherwise) or (b) if and to the extent instructed
by holders of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, if so instructed to the Company, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.1 and Section 3.2,
be distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.1 in the case of a distribution received in
cash.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees to use its best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.4 Notice of Dividends; Fixing of Record Date for Holders of
---------------------------------------------------------
Receipts. Whenever any cash dividend or other cash distribution shall become
--------
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
deposited PIERS, or whenever the Depositary shall receive notice of (i) any
meeting at which holders of such PIERS are entitled to vote or of which holders
of such PIERS are entitled to notice or (ii) any election on the part of the
Company to redeem any such PIERS, the Depositary shall in each such instance fix
a record date (which shall be the same date as the record date fixed by the
Company with respect to the PIERS) for the determination of the holders of
Receipts who shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, to give
instructions for the exercise of voting rights at any such meeting or to receive
notice of such meeting or whose Depositary Shares are to be so redeemed.
-17-
SECTION 4.5 Voting Rights. Upon receipt of notice of any meeting at
-------------
which the holders of deposited PIERS are entitled to vote, the Depositary shall,
as soon as practicable thereafter, mail to the record holders of Receipts a
notice, which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified record date fixed
pursuant to Section 4.4 will be entitled, subject to any applicable provision of
law, to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of PIERS represented by their respective Depositary
Shares and (iii) a brief statement as to the manner in which such instructions
may be given. Upon the written request of a holder of a Receipt on such record
date, the Depositary shall vote or cause to be voted the amount of PIERS
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. To the extent such
instructions request the voting of a fractional interest of a share of deposited
PIERS, the Depositary shall aggregate such interest with all other fractional
interests resulting from requests with the same voting instructions and shall
vote the number of whole votes resulting from such aggregation in accordance
with the instructions received in such requests. The Company hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such PIERS (or portion thereof) or cause
such PIERS (or portion thereof) to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting (but, at its discretion, not from appearing at any meeting with respect
to such PIERS unless directed to the contrary by the holders of all the
Receipts) to the extent of the PIERS (or portion thereof) represented by the
Depositary Shares evidenced by such Receipt.
SECTION 4.6 Changes Affecting PIERS and Reclassifications,
----------------------------------------------
Recapitalization, etc. Upon any change in par or stated value, split-up,
----------------------
combination or any other reclassification of PIERS, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party or sale of all or substantially
all of the Company's assets, the Depositary shall, upon the instructions of the
Company, (i) make such adjustments in (a) the fraction of an interest
represented by one Depositary Share in one PIERS, (b) the ratio of the
redemption price per Depositary Share to the redemption price of a PIERS and (c)
the ratio of the conversion price per Depositary Share to the conversion price
of a PIERS, in each case as may be required by or as is consistent with the
provisions of the Certificate of Designations to fully reflect the effects of
such change in par or stated value, split-up, combination or other
reclassification of PIERS, or of such recapitalization, reorganization, merger,
consolidation or sale and (ii) treat any shares or other securities or property
(including cash) that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the PIERS as new deposited property under
this Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the proportionate interests of holders thereof or the new deposited
property so received in exchange for or upon conversion or in respect of such
PIERS. In any such case the Depositary may, in its discretion, with the
approval of the Company, execute
-18-
and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited property. Anything to the contrary herein notwithstanding,
holders of Receipts shall have the right from and after the effective date of
any such change in par or stated value, split-up, combination or other
reclassification of the PIERS or any such recapitalization, reorganization,
merger, amalgamation or consolidation or sale of substantially all the assets of
the Company to surrender such Receipts to the Depositary with instructions to
convert, exchange or surrender the PIERS represented thereby only into or for,
as the case may be, the kind and amount of shares and other securities and
property and cash into which the deposited PIERS evidenced by such Receipts
might have been converted or for which such PIERS might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.7 Inspection of Reports. The Depositary shall make
---------------------
available for inspection by holders of Receipts at the Corporate Office and at
such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that are
both received by the Depositary as the holder of deposited PIERS and made
generally available to the holders of the PIERS. In addition, the Depositary
shall transmit certain notices and reports to the holders of Receipts as
provided in Section 5.05.
SECTION 4.8 Lists of Receipt Holders. Promptly upon request from
------------------------
time to time by the Company, the Depositary shall furnish to the Company a list,
as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION 4.9 Tax and Regulatory Compliance. The Depositary shall be
-----------------------------
responsible for (i) preparation and mailing of form 1099s for all open and
closed accounts, (ii) foreign tax withholding, (iii) withholding 31% (or any
withholding as may be required at the then applicable rate) of dividends from
eligible holders of Receipts if directed to do so by the Company or required to
do so by applicable law, (iv) mailing W-9 forms to new holders of Receipts
without a certified taxpayer identification number, (v) processing certified W-9
forms, (vi) preparation and filing of state information returns and (vii)
escheatment services.
SECTION 4.10 Withholding. Notwithstanding any other provision of
-----------
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax that the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the
-19-
balance of any such property after deduction of such taxes to the holders of
Receipts entitled thereto in proportion to the number of Depositary Shares held
by them respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary and the Registrar. The Depositary shall maintain at the
--------------------------------
Corporate Office facilities for the execution and delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of PIERS and at the offices of the Depositary's Agents, if any,
facilities for the delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of PIERS, all
in accordance with the provisions of this Deposit Agreement.
If the Receipts or the Depositary Shares evidenced thereby or the
PIERS represented by such Depositary Shares shall be listed in the New York
Stock Exchange, Inc. or any other stock exchange, the Depositary may, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of such Receipts or Depositary Shares in accordance with the
requirements of such Exchange. Such Registrar (which may be the Depositary if
so permitted by the requirements of such Exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such PIERS
are listed on one or more other stock exchanges, the Depositary will, at the
request and expense of the Company, arrange such facilities for the delivery,
transfer, surrender, redemption and exchange of such Receipts, such Depositary
Shares or such PIERS as may be required by law or applicable stock exchange
regulations.
The Registrar shall maintain books at the Depositary's Office for the
registration and registration of transfer of Receipts or at such other place as
shall be approved by the Company and of which the holders of Receipts shall have
reasonable notice, which books at all reasonable times during normal business
hours shall be open for inspection by the record holders of Receipts; provided,
--------
that any such holder requesting to exercise such right shall certify in writing
to the Registrar that such inspection shall be for a proper purpose reasonably
related to such Person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may cause the Registrar to close the books with respect
to the Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the PIERS or when such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of law
-20-
or of any government, governmental body or commission, stock exchange or any
applicable self-regulatory body, including, without limitation, the NASD.
SECTION 5.2 Prevention or Delay in Performance by the Depositary, the
---------------------------------------------------------
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
-------------------------------------------------
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or of any other governmental authority or by reason of any provision, present or
future, of the Certificate of Incorporation or the Certificate of Designations
or by reason of any act of God or war or other circumstance beyond the control
of the relevant party, the Depositary, any Depositary's Agent, the Registrar or
the Company shall be prevented or forbidden from doing or performing any act or
thing that the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability or be subject to any obligation (i) by reason of
any nonperformance or delay, caused as aforesaid, in the performance of any act
or thing that the terms of this Deposit Agreement provide shall or may be done
or performed or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement, except in the event of the
gross negligence or willful misconduct of the party charged with such exercise
or failure to exercise.
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
the Registrar and the Company. Neither the Depositary nor any Depositary's
-----------------------------
Agent nor any Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with respect to the
deposited PIERS, Depositary Shares or Receipts that in its opinion may involve
it in expense or liability unless indemnity satisfactory to such party against
all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company
assumes any obligation or shall be under any liability under this Deposit
Agreement to holders of Receipts other than to use its best judgment and good
faith in the performance of such duties as are specifically set forth in this
Deposit Agreement. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party hereto for any action or
any failure to act by it with respect to this Deposit Agreement in reliance upon
the written advice of legal counsel or accountants, or information provided by
any person presenting PIERS for deposit, any holder of a Receipt or any other
person believed by it in good faith to be competent to give such information.
The Depositary, any Depositary's Agent, any Registrar and the Company may each
rely and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
-21-
In the event the Depositary shall receive conflicting claims, requests
or instructions from any holders of Receipts, on the one hand, and the Company,
on the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company, and shall be entitled to the
full indemnification set forth in Section 5.6 hereof in connection with any
action so taken.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the deposited PIERS or for the manner or effect
of any such vote made, as long as any such action or non-action is in good faith
and does not result from negligence or willful misconduct of the Depositary.
The Depositary undertakes, and shall cause any Registrar to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement using its best efforts and in good faith. The parties hereto
acknowledge that no implied covenants or obligations shall be read into this
Deposit Agreement against the Depositary or any Registrar or against the Company
with respect to the Depositary and any Registrar. The Depositary will indemnify
the Company against any liability that may arise out of acts performed or
omitted by the Depositary or any Depositary's Agent due to its or their
negligence or bad faith.
The Depositary, its parent, affiliates, or subsidiaries, any
Depositary's Agent, the Company (to the extent permitted by law) and any
Registrar may own, buy, sell or deal in any class of securities of the Company
and its affiliates and in Receipts or Depositary Shares. The Depositary, its
parent, affiliates or subsidiaries, and any Depositary's Agent may become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to the Company or its
affiliates or otherwise act as fully or as freely as if it were not the
Depositary or the Depositary's Agent hereunder. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates or act in any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of the securities under the federal securities
laws or applicable state securities laws, it being expressly understood and
agreed that the Depositary and any Depositary's Agent are acting only in a
ministerial capacity as Depositary for the deposited PIERS; provided, however,
that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement in
its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
deposited PIERS, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein; provided,
however, that the Depositary
-22-
is responsible for its representations in this Deposit Agreement and for the
validity of any action taken or required to be taken by the Depositary in
connection with this Deposit Agreement.
The Company agrees that it will register the deposited PIERS and the
Depositary Shares in accordance with the applicable securities laws.
SECTION 5.4. Resignation and Removal of the Depositary; Appointment
------------------------------------------------------
of Successor Depositary. The Depositary may at any time resign as Depositary
-----------------------
hereunder by written notice of its election to do so delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder and agreeing to become a party to this Deposit
Agreement, and thereupon such successor depositary, without any further act or
deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor and for all purposes shall be the Depositary
under this Deposit Agreement, and such predecessor, upon payment of all sums due
it and on the written request of the Company, shall promptly execute and deliver
an instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the deposited PIERS and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation or other entity into or with which the Depositary may
be merged, consolidated or converted, or to which the Depositary may sell all or
substantially all its assets, shall be the successor of such Depositary without
the execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
-23-
SECTION 5.5 Notices, Reports and Documents. The Company agrees that
------------------------------
it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the PIERS, the Depositary Shares or the Receipts
are included for quotation or listed or by the Certificate of Incorporation and
the Certificate of Designations to be furnished by the Company to holders of the
deposited PIERS and, if requested by the holder of any Receipt, a copy of this
Deposit Agreement, the form of Receipt, the Certificate of Designations and the
form of PIERS. Such transmission will be at the Company's expense and the
Company will provide the Depositary with such number of copies of such documents
as the Depositary may reasonably request. In addition, the Depositary will
transmit to the record holders of Receipts at the Company's expense such other
documents as may be requested by the Company.
SECTION 5.6 Indemnification by the Company. The Company agrees to
------------------------------
indemnify the Depositary, and Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable attorneys' fees) that may arise out of, or in connection with, its
acting as Depositary, Depositary's Agent or Registrar, respectively, under this
Deposit Agreement and the Receipts, except for any liability, costs or expenses
arising out of the willful misconduct, gross negligence, negligence (in the case
of any action or inaction with respect to the voting of the deposited PIERS) or
bad faith on the part of any such person or persons. The obligations of the
Company set forth in this Section 5.6 shall survive any succession of any
Depositary, Registrar or Depositary's Agent or termination of this Deposit
Agreement. This indemnification does not extend in favor of holders of
Receipts.
SECTION 5.7 Fees, Charges and Expenses. No charges and expenses of
--------------------------
the Depositary or any Depositary's Agent hereunder shall be payable by any
person, except as provided in this Section 5.7. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of this Deposit Agreement. The Company shall also pay all fees and
expenses of the Depositary in connection with the initial deposit of the PIERS
and the initial issuance of the Depositary Shares evidenced by the Receipts, any
redemption of the PIERS at the option of the Company and the issuance of Common
Stock upon the surrender of Receipts upon redemption or for conversion. All
other transfer and other taxes and governmental charges shall be at the expense
of the holders of Depositary Shares. If a holder of Receipts requests the
Depositary to perform duties not required under this Deposit Agreement, the
Depositary shall notify the holder of the cost of the performance of such duties
prior to the holder of the cost of the performance of such duties prior to the
performance thereof. Such holder will be liable for the charges and expenses
related to such performance. All other fees and expenses of the Depositary and
any Depositary's Agent hereunder and of any Registrar (including, in each case,
reasonable fees
-24-
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be payable by the Company only after prior
consultation and agreement between the Depositary and the Company and consent by
the Company to the incurrence of such expenses. The Depositary shall present
its statement for fees and expenses to the Company every month or at such other
intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment. The form of the Receipts and any provision of
---------
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment (other
-------- -------
than any change in the fees of any Depositary, Registrar or Transfer Agent) that
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. In no event shall
any amendment impair the right, subject to the provisions of Section 2.6 and
Section 2.7 and Article III, of any holder of any Depositary Shares to surrender
the Receipt evidencing such Depositary Shares to the Depositary with
instructions to cause the conversion of such Receipt into Common Stock or to
deliver to the holder the deposited PIERS and all money and other property, if
any, represented thereby, except in order to comply with mandatory provisions of
applicable law or the rules and regulations of any governmental body, agency or
commission, the NASD or any applicable stock exchange. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.
SECTION 6.2 Termination. This Deposit Agreement may be terminated
-----------
by the Company upon not less than 30 days' prior written notice to the
Depositary if (i) such termination is necessary to preserve the Company's status
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended (or any successor provisions) or (ii) the holders of a majority of the
outstanding PIERS consent to such termination, whereupon the Depositary shall
deliver or make available to each holder of a Receipt, upon surrender of the
Receipt held by such holder, such number of whole or fractional shares of
deposited PIERS as are represented by the Depositary Shares evidenced by such
Depositary Receipt, together with any other property held by the Depositary in
respect of such Receipt. In the event that this Deposit Agreement is terminated
pursuant to clause (i) of the immediately preceding sentence, then if the
Depositary Shares are listed on a national securities exchange the Company
hereby agrees to use its best efforts to list the PIERS issued upon surrender of
the Receipt evidencing the Depositary Shares represented thereby on a national
securities
-25-
exchange. This Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section 2.3,
(ii) each PIERS shall have been converted into shares of Common Stock or (iii)
there shall have been made a final distribution in respect of the deposited
PIERS in connection with any liquidation, dissolution or winding-up of the
Company and such distribution shall have been distributed to the holders of
Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and Section 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed in
------------
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Corporate Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.2 Exclusive Benefits of Parties. This Deposit Agreement is
-----------------------------
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3 Invalidity of Provisions. If any one or more of the
------------------------
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Notices. Any and all notices to be given to the Company
-------
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Company at:
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GENERAL GROWTH PROPERTIES, INC.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
General Counsel
Telephone No.: (000) 000-0000
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or telex or telecopier message) is deposited, postage prepared, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or telex or telecopier message received by it from the other or from any holder
of a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.5 Depositary's Agents. The Depositary may from time to
-------------------
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.6 Holders of Receipts Are Parties. The holders of Receipts
-------------------------------
from time to time shall be deemed to be parties to this Deposit Agreement and
shall be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.7 Governing Law. This Deposit Agreement and the Receipts
-------------
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed
-27-
by, and construed in accordance with, the law of the State of New York
applicable to agreements made and to be performed in said State.
SECTION 7.8 Inspection of Deposit Agreement and Certificate of
--------------------------------------------------
Designations. Copies of this Deposit Agreement and the Certificate of
------------
Designations shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Corporate Office and
the respective offices of the Depositary's Agents, if any, by any holder of any
Receipt.
SECTION 7.9 Headings. The headings of articles and sections in this
--------
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
---------
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
-28-
IN WITNESS WHEREOF, General Growth Properties, Inc. and Norwest Bank
Minnesota, N.A. have duly executed this Deposit Agreement as of the day and year
first above set forth and all holders of Receipts shall become parties hereto by
and upon acceptance by them of delivery of Receipts issued in accordance with
the terms hereof.
GENERAL GROWTH PROPERTIES, INC.
By:
-----------------------------------
Attest: Authorized Officer
NORWEST BANK MINNESOTA, N.A.
By:
___________________________________
Attest: Authorized Signatory
-29-
Exhibit A
The Depositary Shares evidenced by this Depositary Receipt are subject to
restrictions on ownership and transfer for the purpose of the Company's
maintenance of its status as a real estate investment trust ("REIT") under the
----
Internal Revenue Code of 1986, as amended (the "Code"). No person may
----
Beneficially Own or Constructively Own (as such capitalized terms are defined in
the Certificate of Incorporation) Capital Stock (including Depositary Shares
representing shares of 7.25% Preferred Income Equity Redeemable Stock, Series A,
a series of preferred stock, par value $100 per share ("Series A Preferred
------------------
Stock") of the Company) in excess of 7.5% of the outstanding Capital Stock of
the Company with certain further restrictions and exceptions set forth in the
Company's Certificate of Incorporation, the Certificate of Designations for the
Series A Preferred Stock and the Deposit Agreement. Any Person who attempts to
own, Beneficially Own or Constructively Own Depositary Shares representing
Series A Preferred Stock in excess of the above limitations must immediately
notify the Company. All capitalized terms in this legend have the meanings
defined in the Company's Certificate of Designations for the Series A Preferred
Stock. Transfers in violation of the restrictions described above shall be void
ab initio.
-- ------
Where shares of Series A Preferred Stock deposited under the Deposit
Agreement become or have become Excess PIERS (as defined in the Deposit
Agreement), the Depositary Shares related to such share of Series A Preferred
Stock (which shall be those Depositary Shares the direct, indirect or
constructive ownership of which by a Prohibited Owner (as defined in the
Certificate of Incorporation) caused such shares of Series A Preferred Stock to
be treated as Excess PIERS; provided that the number of Depositary Shares so
related and owned directly, indirectly or constructively by such Prohibited
Owner shall be rounded up to the nearest 40 Depositary Shares), shall be
entitled to receive dividends and exercise voting rights only to the extent that
a Prohibited Owner with respect to the shares of Series A Preferred Stock
associated with such Depositary Shares would be entitled to received dividends
and exercise voting rights under the Certificate of Incorporation.
Any Prohibited Owner of Depositary Shares that represent Excess PIERS shall
repay to the Trustee (as defined in the Certificate of Incorporation) the amount
of any dividends or distributions received by it that (a) are attributable to
such Excess PIERS and (b) have a record date on or after the date that such
Series A Preferred Stock became Excess PIERS. In addition, any vote by a
Prohibited Owner as a holder of Depositary Shares prior to the discovery by the
Company that the Depositary Shares represent Excess PIERS shall be rescinded and
shall be void ab initio with respect to such Excess PIERS.
Each holder of Receipts shall, upon demand, be required to disclose to the
Company such information with respect to the direct, indirect and constructive
ownership of Depositary Shares and Series A Preferred Stock as the Board of
Directors deems necessary to comply with the provisions of the Code applicable
to a REIT or to comply with the requirements of any taxing authority or
governmental agency. The Depositary has agreed in the Deposit Agreement to
provide the Company with a list of the record holders of Depositary Shares and
such other information concerning the direct, indirect and constructive
ownership of Depositary Shares as the Company may reasonably request.
In addition, if the restrictions on ownership are violated, the shares of
Series A Preferred Stock represented by the Depositary Shares evidenced by this
Depositary Receipt will be automatically exchanged for Excess PIERS which will
be held in trust by the Company. As specified in the Certificate of
Designations for the Series A Preferred Stock, the Company has an option to
acquire Excess PIERS under certain circumstances and an obligation to acquire
Excess PIERS in certain other circumstances. The Company will furnish to the
holder hereof upon request and without
-30-
charge a complete written statement of the terms and conditions of the Series A
Preferred Stock and the Excess PIERS. Requests for such statement may be
directed to the Secretary of the Company.
-31-
[FORM OF FACE OF RECEIPT]
DR.
CERTIFICATE FOR NOT MORE THAN _______ DEPOSITARY SHARES
CUSIP No. 370021 206
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/40 OF A SHARE OF 7.25% PREFERRED INCOME EQUITY
REDEEMABLE STOCK, SERIES A OF
GENERAL GROWTH PROPERTIES, INC.
(a Delaware corporation)
Norwest Bank Minnesota, N.A., as Depositary (the "Depositary"), hereby
----------
certifies that _____________________ is the registered owner of __________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing 1/40
-----------------
of share of 7.25% Preferred Income Equity Redeemable Stock, Series A, par value
$100 per share (the "Series A Preferred Stock"), of General Growth Properties,
------------------------
Inc., a Delaware corporation (the "Company"), on deposit with the Depositary,
-------
subject to the terms and entitled to the benefits of the Deposit Agreement dated
as of June __, 1998 (the "Deposit Agreement"), among the Company, the Depositary
-----------------
and the holders from time to time of Receipts for Depositary Shares. By
accepting this Receipt, the holder hereof becomes a party to and agrees to be
bound by all the terms and conditions of the Deposit Agreement. This Receipt
shall not be valid or obligatory for any purpose or entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized officer or, if a
Registrar in respect of the Receipts (other than the Depositary) shall have been
appointed, by the manual signature of a duly authorized officer of such
Registrar.
Dated:
[Countersigned:
__________________________________
By: ___________________] By:
______________________________
Authorized Signatory
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[FORM OF REVERSE RECEIPT]
GENERAL GROWTH PROPERTIES, INC.
GENERAL GROWTH PROPERTIES, INC. WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT
AND A COPY OF THE CERTIFICATE OF DESIGNATIONS WITH RESPECT TO THE 7.25%
PREFERRED INCOME EQUITY REDEEMABLE STOCK, SERIES A OF GENERAL GROWTH
PROPERTIES, INC. ANY SUCH REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY NAMED ON
THE FACE OF THIS RECEIPT.
------------------
The following abbreviations when used in the instructions on the face
of this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM- As Tenant In Common UNIF GIFT MIN ACT - Custodian
--------------------------
(Cust) (Minor)
TEN ENT- as tenants by the entireties Under Uniform Gifts to Minors Act
JT TEN as joint tenants with right of
survivorship and not as tenants -------------------------------------
in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
For value received, ____________________________ hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
________________________________ Depositary Shares represented by the
within Receipt, and do hereby irrevocably constitute and appoint _______________
Attorney to transfer the said Depositary Shares on the books of the within name
Depositary with full power of substitution in the premises.
Dated: __________________________ __________________________________________
NOTICE: The signature to the assignment
must correspond with the name as
written upon the face of this
Receipt in every particular,
without alteration or enlargement
or any change whatever.
-33-
