Exhibit 4.16
REGISTRATION RIGHTS AGREEMENT
between
GENERAL GROWTH PROPERTIES, INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
GENERAL GROWTH VENTURE L.P.,
and
APPLETON TRUST, FALLBROOK TRUST,
▇▇▇▇▇▇ INVESTMENT TRUST A, ▇▇▇▇▇▇ INVESTMENT TRUST B,
▇▇▇▇▇▇ INVESTMENT TRUST C, ▇▇▇▇▇▇ INVESTMENT TRUST D,
▇▇▇▇▇▇ INVESTMENT TRUST E, ▇▇▇▇▇▇ INVESTMENT TRUST F,
▇▇▇▇▇▇▇ INVESTMENT TRUST A, ▇▇▇▇▇▇▇ INVESTMENT TRUST B,
▇▇▇▇▇▇▇ INVESTMENT TRUST C, ▇▇▇▇▇▇▇ INVESTMENT TRUST D,
▇▇▇▇▇▇▇ INVESTMENT TRUST E, ▇▇▇▇▇▇▇ INVESTMENT TRUST F,
MBA TRUST, MBB TRUST, MBC TRUST, FALLBROOK INVESTORS, M.B.
CAPITAL PARTNERS and MB CAPITAL PARTNERS II
Dated: As of April 15, 1993
TABLE OF CONTENTS
Page
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ARTICLE I
CERTAIN DEFINITIONS
1.1 Business Day ........................................................ 1
1.2 Eligible Securities ................................................. 1
1.3 Person .............................................................. 2
1.4 Permitted Transferees ............................................... 2
1.5 Registration Expenses ............................................... 2
1.6 SEC ................................................................. 3
1.7 Securities Act ...................................................... 3
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1 Effectiveness of Registration Rights ................................ 3
ARTICLE III
REGISTRATION REQUEST
3.1 Notices ............................................................. 4
3.2 Registration Expenses ............................................... 5
3.3 Third Person Shares ................................................. 5
ARTICLE IV
INCIDENTAL REGISTRATION
4.1 Notice and Registration ............................................. 7
4.2 Registration Expenses ............................................... 9
ARTICLE V
REGISTRATION PROCEDURES
5.1 Registration and Qualification ...................................... 9
5.2 Underwriting ........................................................ 11
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page
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5.3 Blackout Periods .................................................... 12
5.4 Qualification for Rule 144 Sales .................................... 13
ARTICLE VI
PREPARATION: REASONABLE INVESTIGATION
6.1 Preparation; Reasonable Investigation ............................... 13
ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
7.1 Indemnification and Contribution .................................... 14
ARTICLE VIII
BENEFITS OF REGISTRATION RIGHTS
8.1 Benefits of Registration Rights ..................................... 15
ARTICLE IX
MISCELLANEOUS
9.1 Captions ............................................................ 16
9.2 Severability ........................................................ 16
9.3 Governing Law ....................................................... 16
9.4 Modification and Amendment .......................................... 16
9.5 Counterparts ........................................................ 16
9.6 Entire Agreement .................................................... 16
9.7 Notices ............................................................. 16
SIGNATURES .............................................................. 18
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of the 15th day of
April 1993 (this "Agreement"), among GENERAL GROWTH PROPERTIES,
INC., a Delaware corporation (the "Company"). ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, GENERAL GROWTH VENTURE L.P., APPELTON TRUST, FALLBROOK TRUST, ▇▇▇▇▇▇
INVESTMENT TRUST A, ▇▇▇▇▇▇ INVESTMENT TRUST B, ▇▇▇▇▇▇
INVESTMENT TRUST C, ▇▇▇▇▇▇ INVESTMENT TRUST D, ▇▇▇▇▇▇
INVESTMENT TRUST E, ▇▇▇▇▇▇ INVESTMENT TRUST F, ▇▇▇▇▇▇▇
INVESTMENT TRUST A, ▇▇▇▇▇▇▇ INVESTMENT TRUST B, ▇▇▇▇▇▇▇
INVESTMENT TRUST C, ▇▇▇▇▇▇▇ INVESTMENT TRUST D, ▇▇▇▇▇▇▇
INVESTMENT TRUST E, ▇▇▇▇▇▇▇ INVESTMENT TRUST F, MBA TRUST,
MBB TRUST, MBC TRUST, FALLBROOK INVESTORS, M.B. CAPITAL
PARTNERS and MB CAPITAL PARTNERS, II (each an "Investor" and collectively the
"Investors").
WITNESSETH:
WHEREAS, the Investors will hold an aggregate of 1,315,671 shares
(the "Investor Shares") of common stock, par value $.10 per share, of the
Company (the "Common Stock") and a 44.4% limited partnership interest
(the "LP Interests") in GGP Limited Partnership, a Delaware limited partnership,
which may be converted into shares of Common stock; and
WHEREAS, the Company has agreed to provide Investors with certain
registration rights as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS.
1.1. "Business Day" means any day on which the New York Stock Exchange
is open for trading.
1.2. "Eligible Securities" means all or any portion of the Investors
Shares and any shares of Common Stock acquired by the Investors upon conversion
of the LP Interests.
As to any proposed offer or sale of Eligible Securities, such
securities shall cease to be Eligible Securities with respect to such proposed
offer or sale when (i) a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement or (ii) such securities are permitted to be distributed pursuant to
Rule 144(k) (or any successor provision to such Rule) under the Securities Act
to be confirmed in a written opinion of counsel to the Company addressed to the
Investors, or (iii) such securities shall have been otherwise transferred
pursuant to an applicable exemption under the Securities Act, new certificates
for such securities not bearing a legend restricting further transfer shall have
been delivered by the Company and such securities shall be freely transferable
to the public without registration under the Securities Act.
1.3. "person" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, association or other
form of business organization, whether or not regarded as a legal entity under
applicable law, a trust (inter vivos or testamentary), an estate of a deceased,
insane or incompetent person, a quasi-governmental entity, a government or any
agency, authority, political subdivision or other instrumentality thereof, or
any other entity.
1.4. "Permitted Transferees" with respect to each Investor shall mean
any Affiliates of such Investor, as defined in the Agreement of Limited
Partnership of GGP Limited Partnership, dated April ____, 1993.
1.5. "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with the registration requirements set
forth in this Agreement including, without limitation, the following: (i) the
fees, disbursements and expenses of the Company's counsel(s) (United States and
foreign), accountants and experts in connection with the registration of
Eligible Securities to be disposed of under the Securities Act; (ii) all
expenses in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the mailing
and delivering of copies thereof to the underwriters and dealers; (iii) the cost
of printing or producing any agreement(s) among underwriters, underwriting
agreement(s) and blue sky or legal investment memoranda, any selling agreements
and any other documents in connection with the offering, sale or delivery of
Eligible Securities to be disposed of; (iv) all expenses in connection with the
qualification of Eligible
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Securities to be disposed of for offering and sale under state securities laws,
including the fees and disbursements of counsel for the underwriters in
connection with such qualification and in connection with any blue sky and legal
investment surveys; (v) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of Eligible Securities to be disposed of; and (vi) fees and expenses incurred in
connection with the listing of Eligible Securities on each securities exchange
on which securities of the same class are then listed; provided, however, that
Registration Expenses with respect to any registration pursuant to this
Agreement shall not include underwriting discounts or commissions attributable
to Eligible Securities, SEC or blue sky registration fees attributable to
Eligible Securities or transfer taxes applicable to Eligible Securities.
1.6. "SEC" means the Securities and Exchange Commission.
1.7. "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the relevant time.
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1 Effectiveness of Registration Rights. This Agreement shall become
effective immediately, provided, however, that the exercise of any registration
rights granted pursuant to Articles 3 and 4 hereof prior to the third
anniversary of the date of the prospectus to be used by the Company in its
initial public offering of shares of Common Stock (the "IPO") shall be subject
to the Investors first having received written consent from the Company and
▇▇▇▇▇▇▇, Sachs & Co. to the waiver of the restrictions on transfer of the Common
Stock held by the Investors under the terms of the letter agreement restricting
such transfers, to be entered by the Investors and the underwriters in
connection with the IPO.
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ARTICLE III
REGISTRATION REQUEST
3.1 NOTICE. Upon written notice front an Investor requesting that the
Company effect the registration under the Securities Act of all or part of the
Eligible Securities held by such Investor, which notice shall specify the
intended method or methods of disposition of such Eligible Securities, the
Company will use all reasonable efforts to effect (at the earliest possible
date) the registration, under the Securities Act, of such Eligible Securities
for disposition in accordance with the intended method or methods of disposition
stated in such request, provided that:
(a) if the Company shall have previously effected a registration with
respect to Eligible Securities pursuant to Article 4 hereof, the Company
shall not be required to effect a registration pursuant to this Article 3
until a period of one hundred twenty (120) days shall have elapsed from the
effective date of the most recent such previous registration;
(b) if, upon receipt of a registration request pursuant to this
Article 3, the Company is advised in writing (with a copy to the Selling
Shareholders (as defined below)) by a nationally recognized independent
investment banking firm selected by the Company to act as lead underwriter
in connection with a public offering of securities by the Company that, in
such firm's opinion, a registration at the time and on the terms requested
would materially adversely affect such public offering of securities by the
Company (other than an offering in connection with employee benefit and
similar plans) (a "Company Offering") that had been contemplated by the
Company prior to the notice by the Investors who initially requested
registration, the Company shall not be required to effect a registration
pursuant to this Article 3 until the earliest of (i) three months after
the completion of such Company Offering, (ii) the termination of any "black
out" period, if any, required by the underwriters to be applicable to the
Selling Investors (as defined below) in connection with such Company
Offering and agreed to in writing by the Selling Investors, (iii) promptly
after abandonment of such Company Offering or (iv) four months after the
date of written notice from the Investor who initially requested
registration;
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(c) if, while a registration request is pending pursuant to Article 3,
the Company determines in the good faith judgment of the Board of Directors
of the Company, with the advice of counsel, that the filing of a
registration statement would require the disclosure of non-public material
information the disclosure of which would have a material adverse effect on
the Company or would otherwise adversely affect a material financing,
acquisition, disposition, merger or other comparable transaction, the
Company shall deliver a certificate to such effect signed by its President
or any Vice President to the Selling Shareholders and the Company shall not
be required to effect a registration pursuant to this Article 3 until the
earlier of (i) the date upon which such material information is disclosed
to the public or ceases to be material or (ii) 60 days after the Company
makes such good faith determination; and
(d) the Company shall not be required to effect more than one
registration pursuant to this Article 3 in any calendar year. No
registration of Eligible Securities under this Article 3 shall relieve the
Company of its obligation (if any) to effect registrations of Eligible
Securities pursuant to Article 4.
3.2. Registration Expenses. With respect to the registrations
requested pursuant to this Article 3 and any registration arising from an
exercise of a Blackout Termination Right (as defined below), the Company shall
pay all Registration Expenses.
3.3. Third Person Shares. (a) Upon receipt of the written notice from
an Investor requesting registration under Section 3.1, the Company shall give
written notice to each other Investor, the other parties (the "Primary Third
Parties") entitled to substantially similar registration rights under a
Registration Rights Agreement entered into by the Company on the date hereof and
the parties (the "Incidental Parties") entitled only to incidental registration
rights pursuant to an Incidental Registration Rights Agreement entered into by
the Company on the date hereof. The Company shall have the right to cause the
registration of securities for sale for the account of any Person in any
registration of Eligible Securities requested pursuant to this Article 3 who has
delivered written notice to the Company within fifteen (15) business days (which
notice shall specify the number of shares to be disposed of
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and the intended method of disposition), provided that the Company shall not
have the right to cause the registration of all of such securities if the
Investor who requested such registration is advised in writing (with a copy to
the Company) by a nationally recognized independent investment banking firm
selected by such Investor that, in such firm's opinion, registration of all of
such securities would adversely affect the offering and sale of Eligible
Securities then contemplated by such Investor. The Investor or Investors and any
other Persons who elect to participate in an offering pursuant to registration
rights are referred to herein as the "Selling Shareholders". The Investor or
Investors who initially requested registration pursuant to Section 3.1 and each
other Investor who elects to participate in such offering are herein referred to
as the "Selling Investors".
(b) If the Company cannot, pursuant to the terms of this Section 3.3,
register all of the shares requested to be registered, the Company shall
register the Maximum Amount (as defined below), and such amount shall be
allocated among the Persons requesting registrations follows:
(i) if the Selling Investors and the Principal Third Parties each
exercise registration rights on the same day, the Maximum Amount shall be
allocated between such Persons pro rata according to the number of shares
for which registration was initially requested by each such Person; and
(ii) in all other cases in which both Selling Investors and the
Principal Third Parties seek to register shares, the Maximum Amount shall
be allocated pro rata according to the total number of shares of Common
Stock owned by the Investors taken as a whole on the one hand and the
Principal Third Party on the other hand on the day the Company first
received the demand request with respect to such registration.
For purposes of this Section, "Maximum Amount" shall mean the largest number of
shares (if any) which, after deducting any shares for which registration is
requested by any Incidental Parties, in the opinion of the nationally recognized
underwriter selected by the Investors for purposes of Section 3.3(a), could be
offered to the public without adversely affecting the offering and sale of
Eligible Securities as then contemplated by the Selling Investors.
Notwithstanding anything to the contrary contained herein, if any Incidental
Party seeks to register
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shares in a registration that was initiated by the Selling Investors under this
Article 3, such Incidental Party shall not suffer any reduction in the number of
shares it seeks to register pursuant to the foregoing provisions of this Section
3.3(b).
(c) In the event that both Selling Investors taken as a whole on the
one hand and the Principal Third Parties on the other hand exercise registration
rights on the same day, the party (as between such two parties) who initially
requested registration of the larger number of shares shall be entitled to
select the lead underwriter for such registered offering. In all other cases,
the first Person to exercise registration rights with respect to any
registration demand shall be entitled to select the lead underwriter for such
registered offering.
ARTICLE IV
INCIDENTAL REGISTRATION.
4.1. Notice and Registration. If the Company proposes to register any
shares of Common Stock or other securities issued by it having terms
substantially similar to Eligible Securities ("Other Securities") for public
sale under the Securities Act (whether proposed to be offered for sale by the
Company or by any other Person) on a form and in a manner which would permit
registration of Eligible Securities for sale to the public under the Securities
Act, it will give prompt written notice to Investors of its intention to do so,
and upon the written request of Investors delivered to the Company within
fifteen (15) Business Days after the giving of any such notice (which request
shall specify the number of Eligible Securities intended to be disposed of by
Investors and the intended method of disposition thereof) the Company will use
all reasonable efforts to effect, in connection with the registration of the
Other Securities, the registration under the Securities Act of all Eligible
Securities which the Company has been so requested to register by the Selling
Investors, to the extent required to permit the disposition (in accordance with
the intended method or methods thereof as aforesaid) of Eligible Securities so
to be registered, provided that:
(a) if, at any time after giving such written notice of its intention
to register any Other Securities and prior to the effective date of the
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registration statement filed in connection with such registration, the
Company shall determine for any reason not to register the Other
Securities, the Company may, at its election, give written notice of such
determination to Investors and thereupon the Company shall be relieved of
its obligation to register such Eligible Securities in connection with the
registration of such Other Securities (but not from its obligation to pay
Registration Expenses to the extent incurred in connection therewith as
provided in Section 4.2), without prejudice, however, to the rights (if
any) of Investors immediately to request that such registration be effected
as a registration under Article 3;
(b) The Company will not be required to effect any registration
pursuant to this Article 4 if the Company shall have been advised in
writing (with a copy to the Selling Investors) by a nationally recognized
independent investment banking firm selected by the Company to act as lead
underwriter in connection with the public offering of securities by the
Company that, in such firm's opinion, a registration at that time would
materially and adversely affect the Company's own scheduled offering,
provided, however, that if an offering of some but not all of the shares
requested to be registered by Investor would not adversely affect the
Company's offering, the aggregate number of shares requested to be included
in such offering by the Selling Shareholders (other than the Incidental
Persons, whose requests shall not be reduced under this proviso) shall be
reduced pro rata according to the total number of shares of Common Stock
owned by the Investor on the one hand and the Principal Third Parties taken
as a whole on the other hand on the day the Company first delivered its
notice to the Investors of its proposed offering;
(c) The Company shall not be required to effect any registration of
Eligible Securities under this Article 4 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or stock options
or other employee benefit plans.
No registration of Eligible Securities effected under this Article 4 shall
relieve the Company of its obligation (if
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any) to effect registrations of Eligible Securities pursuant to Article 3.
4.2. Registration Expenses. The Company (as between the Company and
the Selling Investors) shall be responsible for the payment of all Registration
Expenses in connection with any registration pursuant to this Article 4.
ARTICLE V
REGISTRATION PROCEDURES.
5.1. Registration and Qualification. If and whenever the Company is
required to use all reasonable efforts to effect the registration of any
Eligible Securities under the Securities Act as provided in Articles 3 or 4, the
Company will as promptly as is practicable:
(a) prepare, file and use all reasonable efforts to cause to become
effective a registration statement under the Securities Act regarding the
Eligible Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all Eligible Securities until the earlier of such time as
all of such Eligible Securities have been disposed of in accordance with
the intended methods of disposition by the Selling Investors set forth in
such registration statement or the expiration of twelve months after such
Registration Statement becomes effective;
(c) furnish to the Selling Investors and to any underwriter of such
Eligible Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such
registration statement or prospectus, and such other documents as the
Selling Investors or such underwriter may reasonably request;
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(d) use all reasonable efforts to register or qualify all Eligible
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the Selling Investors
or any underwriter of such Eligible Securities shall reasonably request,
and do any and all other acts and things which may be reasonably requested
by the Selling Investors or any underwriter to consummate the disposition
in such jurisdictions of the Eligible Securities covered by such
registration statement, except the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in
any jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any jurisdiction where it is not then subject to taxation, or
to consent to general service of process in any jurisdiction where it is
not then subject to service of process;
(e) use all reasonable efforts to list the Eligible Securities on each
national securities exchange on which the Common Stock is then listed, if
the listing of such securities is then permitted under the rules of such
exchange;
(f) (i) furnish to the Selling Investors, an opinion of counsel for
the Company, addressed to them, dated the date of the closing under the
underwriting agreement, and (ii) use all reasonable efforts to furnish to
the Selling Investors, addressed to them, a "comfort letter" signed by
the independent public accountants who have certified the Company's
financial statements included in such registration statement, addressed to
them, each such document covering substantially the same matters with
respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other matters as the Selling Investors may reasonably
request; and
(g) immediately notify the Selling Investors at any time when a
prospectus relating to a registration pursuant to Article 3 or 4 hereof is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included
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in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and
at the request of the Selling investors prepare and furnish to the Selling
Investors as many copies of a supplement to or an amendment of such
prospectus as the Selling Investors reasonably request so that, as
thereafter delivered to the purchasers of such Eligible Securities, such
prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
The Company may require the Selling Investors to furnish the Company such
information regarding the Selling Investors and the distribution of such
securities as the Company may from time to time reasonably request in writing
and as shall be required by law or by the SEC in connection with any
registration.
5.2. Underwriting. (a) If requested by the underwriters for any
underwritten offering of Eligible Securities pursuant to a registration
requested hereunder, the Company will enter into and perform its obligations
under an underwriting agreement with such underwriters for such offering, such
agreement to contain such representations and warranties by the Company and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Article 7 hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 5.l(f).
The holders of Eligible Securities on whose behalf Eligible Securities are to be
distributed by such underwriters shall be parties to any such underwriting
agreement and the representations and warranties by, and the other agreements on
the part of, the company to and for the benefit of such underwriters shall also
be made to and for the benefit of such holders of Eligible Securities.
Notwithstanding the foregoing, any Selling Investor may elect, in writing prior
to the effective date of the registration statement filed in connection with
such registration, not to register such Eligible Securities in connection with
such registration.
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(b) In the event that any registration pursuant to Article 4 hereof
shall involve, in whole or in part, an underwritten offering, the Company may
require Eligible Securities requested to be registered pursuant to Article 4 to
be included in such underwriting on the same terms and conditions as shall be
applicable to the Other Securities being sold through underwriters under such
registration. In such case, the holders of Eligible Securities on whose behalf
Eligible Securities are to be distributed by such underwriters shall be parties
to any such underwriting agreement. Such agreement shall contain such
representations and warranties by the Selling Investors and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Article 7. The
representations and warranties in such underwriting agreement by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Eligible Securities.
5.3 Blackout Periods. (a) At any time when a registration statement
effected pursuant to Article 3 relating to Eligible Securities is effective,
upon written notice from the Company to Investors that the Company determines in
the good faith judgment of the Board of Directors of the Company, with the
advice of counsel, that Selling Investors' sale of Eligible Securities pursuant
to the registration statement would require disclosure of non-public material
information the disclosure of which would have a material adverse effect on the
Company (an "Information Blackout"), the Selling Investors shall suspend sales
of Eligible Securities pursuant to such registration statement until the earlier
of:
(X) (A) the date upon which such material information is
disclosed to the public or ceases to be material or (B) 60 days after
the Company makes such good faith determination, and
(Y) such time as the Company notifies the Selling Investors that
sales pursuant to such registration statement may be resumed (the
number of days from such suspension of sales by the Selling Investors
until the day when such sales may be resumed hereunder is hereinafter
called a "Sales Blackout Period").
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(b) Any delivery by the Company of notice of an Information Blackout
during the 90 days immediately following effectiveness of any registration
statement effected pursuant to Article 3 hereof shall give the Investors the
right, by written notice to the Company within 20 Business Days after the end of
such blackout period, to cancel such registration and obtain one additional
registration right during such calendar year (a "Blackout Termination Right")
under Section 3.1(d).
(c) If there is an Information Blackout and the Investors do not
exercise their cancellation right, if any, pursuant to (b) above, or, if such
cancellation right is not available, the time period set forth in Section 5.l(b)
shall be extended for a number of days equal to the number of days in the Sales
Blackout Period.
5.4. QUALIFICATION FOR RULE 144 SALES. The Company will take all
actions reasonably necessary to comply with the filing requirements described in
Rule 144(c)(l) so as to enable the Investors to sell Eligible Securities without
registration under the Securities Act and, upon the written request of any
Investor, the Company will deliver to such Investor a written statement as to
whether it has complied with such filing requirements.
ARTICLE VI
PREPARATION: REASONABLE INVESTIGATION.
6.1. PREPARATION: REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give the Selling Investors
and the underwriters, if any, and their respective counsel and accountants,
drafts of such registration statement for their review and comment prior to
filing and such reasonable and customary access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the opinion of the Selling Investors and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
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ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION.
7.1. INDEMNIFICATION AND CONTRIBUTION. (a) In the event of any
registration of any Eligible Securities hereunder, the Company will enter into
customary indemnification arrangements to indemnify and hold harmless each
Investor who exercises his registration rights hereunder and, to the extent
applicable, its directors and officers, its partners, its trustees and each
Person who controls any of such Persons, each Person who participates as an
underwriter in the offering or sale of such securities, and each Person, if any,
who controls such underwriter within the meaning of the Securities Act against
any losses, claims, damages, liabilities and expenses, joint or several, to
which such Person may be subject under the Securities Act or otherwise insofar
as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus or final prospectus included therein,
or any amendment or supplement thereto, or any document incorporated by
reference therein, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will promptly reimburse each such Person
for any legal or any other expenses reasonably incurred by such Person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expenses arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus or
final prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such Selling Investors or
such underwriter expressly for use in the registration statement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of Investors or any such Person and shall survive the transfer of such
securities by the Investors. The Company also shall agree to provide provision
for contribution as shall be reasonably
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requested by the investors or any underwriters in circumstances where such
indemnity is held unenforceable.
(b) The Selling Investors, by virtue of exercising their registration
rights hereunder, agree and undertake to enter into customary indemnification
arrangements to severally and not jointly indemnify and hold harmless (in the
same manner and to the same extent as set forth in clause (a) of this Article 7)
the Company, each director of the Company, each officer of the Company who shall
sign such registration statement, each Person who participates as an underwriter
in the offering or sale of such securities, each Person, if any, who controls
the Company or any such underwriter within the meaning of the Securities Act,
with respect to any statement in or omission from such registration statement,
any preliminary prospectus or final prospectus included therein, or any
amendment or supplement thereto, but only to the extent that such statement or
omission was made in reliance upon and in conformity with written information
furnished by such Selling Investors to the Company expressly for use in the
registration statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer of the
registered securities by the Selling Investors and the expiration of this
Agreement. The Selling Investors also shall agree to provide provision for
contribution as shall be reasonably requested by the Company or any underwriters
in circumstance where such indemnity if held unenforceable.
(c) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Article 7 (with appropriate modifications) shall
be given by the Company and the Selling Investors with respect to any required
registration or other qualification of such Eligible Securities under any
federal or state law or regulation of governmental authority other than the
Securities Act.
ARTICLE VIII
BENEFITS OF REGISTRATION RIGHTS.
8.1. BENEFITS OF REGISTRATION RIGHTS. Subject to the limitations of
Sections 3.1 and 4.1, Investors and any Permitted Transferees of Eligible
Securities may severally or jointly exercise the registration rights hereunder
in
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such manner and in such proportion as they shall agree among themselves.
ARTICLE IX
MISCELLANEOUS
9.1 CAPTIONS. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
9.2 SEVERABILITY. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
9.3 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Delaware, without reference to
its rules as to conflicts or choice of laws.
9.4 MODIFICATION aND AMENDMENT. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by all of the
parties hereto.
9.5 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
9.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding among the parties and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
herein.
9.7. NOTICES. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be not later
than the next Business Day if sent by overnight courier or after five
-16-
(5) Business Days if sent by mail. Notice to Investors shall be made to the
address listed on the stock transfer records of the Company.
-17-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
GENERAL GROWTH PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
APPELTON TRUST FALLBROOK TRUST
By: GENERAL TRUST COMPANY, By: GENERAL TRUST COMPANY,
Trustee Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: ▇▇
▇▇▇▇▇▇ INVESTMENT TRUST A ▇▇▇▇▇▇ INVESTMENT TRUST B
By: GENERAL TRUST COMPANY, By: GENERAL TRUST COMPANY,
Trustee Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: ▇▇
▇▇▇▇▇▇ INVESTMENT TRUST C ▇▇▇▇▇▇ INVESTMENT TRUST D
By: GENERAL TRUST COMPANY, By: GENERAL TRUST COMPANY,
Trustee Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: ▇▇
▇▇▇▇▇▇ INVESTMENT TRUST E ▇▇▇▇▇▇ INVESTMENT TRUST F
By: GENERAL TRUST COMPANY, By: GENERAL TRUST COMPANY,
Trustee Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: VP
▇▇▇▇▇▇▇ INVESTMENT TRUST A ▇▇▇▇▇▇▇ INVESTMENT TRUST B
By: GENERAL TRUST COMPANY, By: GENERAL TRUST COMPANY,
Trustee Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: VP
-18-
▇▇▇▇▇▇▇ INVESTMENT TRUST C ▇▇▇▇▇▇▇ INVESTMENT TRUST D
By: GENERAL TRUST COMPANY, By: GENERAL TRUST COMPANY,
Trustee Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: VP
▇▇▇▇▇▇▇ INVESTMENT TRUST E ▇▇▇▇▇▇▇ INVESTMENT TRUST F
By: GENERAL TRUST COMPANY, By: GENERAL TRUST COMPANY,
Trustee Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: VP
MBA TRUST MBB TRUST
By: GENERAL TRUST COMPANY, By: GENERAL TRUST COMPANY,
Trustee Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: VP
MBC TRUST FALLBROOK INVESTORS, a
California general
partnership
By: GENERAL TRUST COMPANY, By: ▇▇▇▇▇▇▇ FAMILY TRUST A,
Trustee a partner
By: GENERAL TRUST COMPANY,
Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: VP
-▇▇-
▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ CAPITAL PARTNERS, II,
a South Dakota general a South Dakota general
partnership partnership
By: MBA TRUST, a partner By: MBA TRUST, a partner
By: GENERAL TRUST COMPANY, By: GENERAL TRUST COMPANY,
Trustee Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Title: VP
GENERAL GROWTH VENTURE L.P.
By: M.B. VENTURE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President