EXHIBIT 4.22
GENERAL GROWTH PROPERTIES, INC.
GGP LIMITED PARTNERSHIP
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
November 10, 1999
Comptroller of the State of New
York as Trustee of the Common
Retirement Fund
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Agreement Concerning Shareholder Rights Plan
Dear Sir/Madam:
Reference is made to the following:
1. that certain Stockholders Agreement dated as of December
20, 1995, among GGP/Homart, Inc. ("GGP/Homart"), Comptroller of the State of New
York as Trustee of the Common Retirement Fund ("NYSCRF"), GGP Limited
Partnership ("GGPLP"), General Growth Properties, Inc., ("GGPI") and certain
others (as the same has been and may be further amended from time to time, the
"Stockholders Agreement"), pursuant to which, among other things, (a) GGP/Homart
issued to NYSCRF shares of Class B Common Stock, $.01 par value, of GGP/Homart
(together with any shares of Class C Common Stock of GGP/Homart received on
conversion of such shares of Class B Common Stock, the "GGP/Homart Shares"), (b)
NYSCRF has the right (the "Exchange Right") to exchange all or any portion of
the GGP/Homart Shares for an amount determined as provided therein (the
"Exchange Amount") and otherwise upon the terms and subject to the conditions
contained therein and (c) GGPI has the option to pay the Exchange Amount in cash
and/or by delivery of shares of its common stock, $.10 par value ("GGPI
Shares"), upon the terms and subject to the conditions contained therein;
2. that certain Operating Agreement dated as of the date
hereof, among GGP/Homart II L.L.C. ("GGP/Homart II"), NYSCRF and GGPLP (as the
same may be amended from time to time, the "Operating Agreement"), pursuant to
which, among other things, (a) GGP/Homart II issued to NYSCRF Class B units of
membership interest (the "GGP/Homart Units" and, together with the GGP/Homart
Shares, the "Venture Securities"), (b) NYSCRF has the right (the "Put Right"
and, together
with the Exchange Right, the "Rights") to require GGPLP to purchase
all or a portion of the GGP/Homart Units for an amount determined as provided
therein (the "Put Purchase Price") and otherwise upon the terms and subject to
the conditions contained therein and (c) GGPI has the option to purchase all or
a portion of the GGP/Homart Units and pay the Put Purchase Price by delivery of
GGPI Shares, upon the terms and subject to the conditions contained therein (the
GGPI Shares that are issued from time to time in connection with an exercise of
Rights, the "GGPI Rights Shares");
3. that certain Rights Agreement dated as of November 18,
1998, between GGPI and Norwest Bank Minnesota, N.A., as amended by that certain
Amendment to Rights Agreement dated the date hereof (as the same may be further
amended from time to time, the "Rights Agreement"); and
4. that certain letter agreement dated the date hereof,
between NYRSCF and GGPLP, specifying certain Persons whose principal business is
deemed to be the development or management of regional shopping malls (as the
same may be amended from time to time, the "Deemed Competitor Letter").
Capitalized terms used herein without definition shall have the meanings set
forth in the Rights Agreement.
1. Matters Relating to Transfer of GGPI Shares.
(a) Within 30 days following the receipt by GGPI of written notice of
a proposed sale, conveyance, exchange or other transfer ("Transfer") of all or
any portion of the GGPI Rights Shares, GGPI shall amend the Rights Agreement, if
necessary, to permit the proposed transferee (the "Transferee"), together with
its Affiliates and Associates, to Beneficially Own up to the number of GGPI
Shares described in the last sentence of this Section 1(a) without the
Transferee becoming an Acquiring Person under the Rights Agreement. Any such
notice shall disclose the identity of the Transferor and proposed Transferee and
contain a certification by the proposed Transferee of the number of GGPI Shares
then Beneficially Owned by the proposed Transferee and its Affiliates and
Associates. The number of GGPI Shares that the Transferee, together with its
Affiliates and Associates, may Beneficially Own for purposes of the first
sentence of this Section 1(a) is equal to the sum of (i) the number of GGPI
Rights Shares, if any, previously Transferred to such Transferee in accordance
with this agreement, (ii) the number of GGPI Rights Shares then proposed to be
Transferred to such Transferee pursuant to this agreement and (iii) 1% of the
number of GGPI Shares then issued and outstanding.
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(b) Prior to any Transfer in connection with which the Rights
Agreement has been amended as provided in Section 1(a) hereof, the proposed
Transferee shall sign and deliver to GGPI and GGPLP (i) a standstill agreement
in the form of Exhibit A, attached hereto and by this reference made a part
hereof (a "Standstill Agreement"), and dated the date of the Transfer and (ii)
an instrument in form reasonably satisfactory to GGPI and GGPLP, pursuant to
which the Transferee agrees to be bound by the terms of this agreement (and upon
execution and delivery of such instrument by the Transferee, the Transferee
shall be entitled to the benefits of a holder of GGPI Rights Shares under this
agreement). If such Transferee has previously signed and delivered to GGPI and
GGPLP a Standstill Agreement, it shall deliver a new Standstill Agreement at
such time.
(c) Neither NYSCRF nor any Transferee which is bound by the terms of
this agreement may Transfer any GGPI Shares (including the GGPI Rights Shares or
any portion thereof) to any Person described in Section 8.5(b) of the Operating
Agreement (as supplemented by the Deemed Competitor Letter) without the written
consent of GGPI (which consent may be withheld in the sole and absolute
discretion of GGPI), and any Transfer of GGPI Shares in violation of such
restriction shall be null and void.
2. Matters Relating to Exercise of Rights and Transfer of Venture
Securities.
(a) Notwithstanding anything to the contrary contained in the
Operating Agreement and the Stockholders Agreement and upon an exercise of
Rights by any holder of Venture Securities (other than NYSCRF), GGPI may pay the
applicable Exchange Amount or the Put Purchase Price by issuing GGPI Rights
Shares but only to the extent that (i) the issuance of GGPI Rights Shares to
such holder would not cause such holder to become an Acquiring Person under the
Rights Agreement or (ii) GGPI has amended the Rights Agreement (which it may do
or decline to do in its sole and absolute discretion) to permit such holder,
together with its Affiliates and Associates, to Beneficially Own up to the
number of GGPI Shares described in the third sentence of this Section without
such holder becoming an Acquiring Person under the Rights Agreement.
Notwithstanding anything to the contrary contained in the Operating Agreement
and the Stockholders Agreement, GGPLP and/or GGPI may defer the closing of a
cash purchase and sale of Venture Securities pursuant to an exercise of the
Rights for an additional 150 days in the case of an exercise of the Exchange
Right and an additional 90 days in the case of an exercise of the Put Right. The
number of GGPI Shares which any holder, together with its Affiliates and
Associates, may Beneficially Own for purposes of clause (ii) above shall be
equal to the sum of (A) the number of GGPI Rights Shares proposed to be issued
by GGPI in connection with an exercise of Rights and (B) the lesser of: (I) the
number of GGPI Shares that were Beneficially Owned by such holder, together with
its
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Affiliates and Associates, on the date of the first acquisition of Venture
Securities by such holder or any of its Affiliates or Associates and (II) the
number of GGPI Shares that are Beneficially Owned by the holder and its
Affiliates and Associates at the time of such exercise of Rights. Upon exercise
of Rights by a holder of Venture Securities, such holder shall deliver to GGPI
and GGPLP a certification of the number of GGPI Shares referred to in clauses
(B)(I) and (B)(II) above.
(b) In the event that the holder of any Venture Securities (other than
NYSCRF) exercises Rights, GGPI pays all or a portion of the applicable Put
Purchase Price and/or Exchange Amount by delivering GGPI Rights Shares and the
Rights Agreement is amended as provided in Section 2(a) hereof, the holder shall
sign and deliver to GGPLP and GGPI a Standstill Agreement dated the date the
GGPI Rights Shares are issued. If such holder has previously signed and
delivered to GGPI and GGPLP a Standstill Agreement, it shall deliver a new
Standstill Agreement at such time.
(c) Prior to any Transfer of Venture Securities, the proposed
Transferee shall sign and deliver to GGPI and GGPLP an instrument in form
reasonably satisfactory to GGPI and GGPLP, pursuant to which the Transferee
agrees to be bound by the terms of this agreement (and upon execution and
delivery of such instrument by the Transferee, the Transferee shall be entitled
to the benefits of a holder of Venture Securities under this agreement), and any
Transfer of Venture Securities in violation of such restriction shall be null
and void.
3. Matters Relating to Amendment of Rights Agreement. GGPI shall not
(a) amend clause (ii) of the definition of "Acquiring Person" contained in the
Rights Agreement (as in effect on the date hereof) so as to materially and
adversely affect NYSCRF without NYSCRF's consent, (b) further amend the Rights
Agreement (as in effect on the date hereof) in any manner which is inconsistent
with the terms of this agreement or (c) enter into any other agreement which is
inconsistent with the terms of this agreement.
4. Matters Relating to Beneficial Ownerships of GGPI Rights Shares.
For purposes of the Rights Agreement and/or this agreement and notwithstanding
anything to the contrary contained therein or herein, a holder of Venture
Securities (other than NYSCRF and its Affiliates and Associates) shall not be
deemed to Beneficially Own the GGPI Shares issuable to it upon the exchange or
sale of the Venture Securities Beneficially Owned by it solely by virtue of its
ownership of such Venture Securities.
5. No Other Changes; Etc. Except as expressly set forth herein, the
Stockholders Agreement and Operating Agreement shall remain in full force and
effect. Nothing contained herein shall be deemed a waiver of the provisions of
GGPI's Certificate of Incorporation, as amended. Any references to the
Stockholders
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Agreement in the Stockholders Agreement or elsewhere (except herein unless
otherwise specified) shall be deemed to mean the Stockholders Agreement, as
amended hereby, and any references to the Operating Agreement in the Operating
Agreement or elsewhere (except herein unless otherwise specified) shall be
deemed to mean the Operating Agreement, as amended hereby. Neither NYSCRF nor
any Transferees shall enter into any transaction or take any other action for
the purpose of directly or indirectly avoiding the restrictions contained in
this agreement. The parties agree that the restrictions herein are reasonable
and the result of arm's-length negotiations.
6. Counterparts. This agreement may be executed in one or more
counterparts, each of which shall be an original and all of which together shall
constitute one document.
7. Governing Law. The interpretation and performance of this agreement
shall be governed under the laws of the State of Delaware (without regard to its
conflict of laws rules).
8. Successors and Assigns. The terms of this agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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Please indicate your agreement with the foregoing by signing and
returning the enclosed counterpart of this letter to the undersigned.
Very truly yours,
GGP LIMITED PARTNERSHIP, a Delaware
limited partnership
By: GENERAL GROWTH PROPERTIES, INC., a
Delaware corporation,
its general partner
By: /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
GENERAL GROWTH PROPERTIES,INC., a
Delaware corporation
By: /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
Accepted and agreed to as
of the date first above written
COMPTROLLER OF THE STATE OF
NEW YORK AS TRUSTEE OF THE
COMMON RETIREMENT FUND
By: /s/ XXXX X. XXXX
---------------------------------
Name: Xxxx X. Xxxx
Title: Deputy Comptroller
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The undersigned, GGP/Homart, Inc. and GGP/Homart II L.L.C., do hereby
accept and agree to the foregoing to the extent that the foregoing constitutes
an amendment to the Stockholders Agreement and the Operating Agreement,
respectively.
GGP/HOMART, INC., a Delaware
corporation
By: /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
GGP/HOMART II L.L.C., a Delaware
limited liability company
By: /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
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