<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GENERAL GROWTH PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 42-1283895
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
110 North Wacker Drive
Chicago, Illinois 60606
(Address of principal executive offices) (zip code)
General Growth Properties, Inc. 1998 Incentive Stock Plan
(Full title of the plan)
Mr. Matthew Bucksbaum
Chairman and Chief Executive Officer
General Growth Properties, Inc.
110 North Wacker Drive
Chicago, Illinois 60606
(312) 960-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------
with copies to:
Marshall E. Eisenberg, Esq.
Neal, Gerber & Eisenberg
Two North LaSalle Street - Suite 2200
Chicago, Illinois 60602
(312) 269-8000
-------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be Registered (1) to be Registered (2) Offering Price Per Unit Aggregate Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value 1,000,000 (3)$33.3125 (3)$33,312,500 $9,260.88
===========================================================================================================================
</TABLE>
(1) The common stock, $.10 par value (the "Common Stock") being registered
hereby includes associated preferred share purchase rights, which initially
are attached to and traded with the shares of the registrant's Common
Stock. Value attributable to such rights, if any, is reflected in the
market price of the Common Stock.
(2) The number of shares of Common Stock to be registered consists of the
aggregate number of shares which may be issued upon exercise of options
granted pursuant to the General Growth Properties, Inc. 1998 Incentive
Stock Plan (the "Plan"). The maximum number of shares which may be issued
upon the exercise of such options granted under the Plan is subject to
adjustment in accordance with certain anti-dilution and other provisions of
the Plan.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and 457(h) under the Securities Act of 1933,
as amended, on the basis of the average of the high and low prices of the
Common Stock as reported on The New York Stock Exchange on , 1999.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by General Growth
Properties, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated in this
Registration Statement by reference and are made a part hereof:
a. Annual Report on Form 10-K for the fiscal year ended December 31,
1997, dated March 31, 1998 (the "Company 10-K");
b. Quarterly Report on Form 10-Q for the quarter ended March 31, 1998,
dated May 14, 1998, as amended by Form 10-Q/A dated May 21, 1998;
c. Quarterly Report on Form 10-Q for the quarter ended June 30, 1998,
dated August 12, 1998;
d. Quarterly Report on Form 10-Q for the quarter ended September 30,
1998, dated November 12, 1998;
e. Current Report on Form 8-K dated May 26, 1998, as amended by Form
8-K/A dated June 2, 1998;
f. Current Report on Form 8-K dated June 4, 1998;
g. Current Report on Form 8-K dated June 17, 1998;
h. Current Report on Form 8-K dated August 5, 1998, as amended by Form
8-K/A dated September 29, 1998;
i. Current Report on Form 8-K dated August 7, 1998;
j. Current Report on Form 8-K dated September 30, 1998, as amended by
Form 8-K/A dated November 4, 1998;
k. Current Report on Form 8-K dated October 1, 1998;
l. Current Report on Form 8-K dated October 5, 1998, as amended by Form
8-K/A dated November 9, 1998;
m. Current Report on Form 8-K dated November 10, 1998;
n. Current Report on Form 8-K dated November 18, 1998;
o. The portions of the Company's Proxy Statement for its 1998 Annual
Meeting of Stockholders that have been incorporated by reference into
the Company's Annual Report on Form 10-K;
p. The description of the Company's 7.25% Preferred Income Equity
Redeemable Stock, Series A, par value $100 per share ("PIERS"), which
is contained in the Registration Statement on Form 8-A filed by the
Company with the Commission on June 5, 1998, pursuant to Section 12(b)
of the Exchange Act;
<PAGE> 3
q. The description of the Company's Common Stock which is contained in
the Registration Statement on Form 8-A filed by the Company with the
Commission on January 12, 1993, pursuant to Section 12(b) of the
Exchange Act; and
r. The description of the Company's Common Stock which is contained in
the Registration Statement on Form 8-A filed by the Company with the
Commission on November 18, 1998, pursuant to Section 12(b) of the
Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be made a part
hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain partners of, attorneys associated with and/or of counsel to
Neal, Gerber & Eisenberg, counsel to the Company, beneficially own shares of
Common Stock and preferred stock of the Company. In addition, Marshall E.
Eisenberg, a partner of Neal, Gerber & Eisenberg, is Secretary of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
In the Company's Amended and Restated Certificate of Incorporation, as
amended (the "Certificate"), the Company has adopted (a) the provisions of
Section 102(b)(7) of the DGCL, which enables a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for monetary damages for breach of the director's
fiduciary duty, except (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the DGCL (providing for liability of directors
for unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit and (b) the provisions of Section 145 of the DGCL, which provide that a
corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that such person was an officer, director,
employee or agent of the corporation, or is or was serving as the request of
such corporation as a director, officer, employee, or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such officer, director, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interest and, with respect to criminal proceedings, had no
reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify officers or directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against expenses (including attorneys' fees) that
such officer or director actually and reasonably incurred.
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The Company has entered into indemnification agreements with each of
its officers and directors. The indemnification agreements, among other things,
require the indemnification of the Company's officers and directors to the
fullest extent permitted by law, and require that the Company advance to the
officers and directors all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. Such
indemnification agreements also provide for the indemnification and advance of
all expenses incurred by officers and directors seeking to enforce their rights
under the indemnification agreements, and require the Company to cover officers
and directors under the Company's directors' and officers' liability insurance.
Although the indemnification agreements offer substantially the same scope of
coverage afforded by provisions in the Certificate and the Bylaws, such
agreements provide greater assurance to directors and officers that
indemnification will be available, because, as a contract, it cannot be modified
unilaterally in the future by the Board of Directors or by the stockholders to
eliminate the rights they provide.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
------ -----------
4.1 Specimen certificate representing Common Stock (incorporated by
reference to the Company's Registration Statement on Form S-11
(File No. 33-56640), filed on April 6, 1993).
4.2 General Growth Properties, Inc. 1998 Incentive Stock Plan.
5.1 Opinion of Neal, Gerber & Eisenberg, counsel for the Company.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of KPMG LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Arthur Andersen LLP
23.5 Consent of KPMG LLP
23.6 Consent of Ernst & Young LLP
23.7 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5.1).
24.1 Powers of Attorney of certain officers and directors of the
Company (included on signature page).
ITEM 9. UNDERTAKINGS
The Company hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement which includes any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act each post-effective amendment to this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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4. That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Sections 13(a) or
15(d) of the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, as of March 12, 1999.
GENERAL GROWTH PROPERTIES, INC.
(Registrant)
By: /s/ Matthew Bucksbaum
-------------------------------------------------
Matthew Bucksbaum
Chairman of the Board and Chief Executive Officer
We, the undersigned officers and directors of the Company, hereby
severally constitute Matthew Bucksbaum, Robert Michaels and Bernard Freibaum,
and each of them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names in the capacities
indicated below, any and all amendments, including post-effective amendments, to
this Registration Statement, and generally to do all such things in our name and
behalf in such capacities to enable the Company to comply with the applicable
provisions of the Securities Act and all requirements of the Commission, and we
hereby ratify and confirm our signatures as they may be signed by our said
attorneys above, or any of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below as of March 12, 1999, by the following persons
in the capacities indicated:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Matthew Bucksbaum Chairman of the Board, Chief Executive Officer
--------------------------------- and Director (Principal Executive Officer)
Matthew Bucksbaum
/s/ Robert Michaels President and Director
---------------------------------
Robert Michaels
/s/ John Bucksbaum Executive Vice President and Director
---------------------------------
John Bucksbaum
/s/ Bernard Freibaum Executive Vice President and Chief Financial Officer
--------------------------------- (Principal Financial and Accounting Officer)
Bernard Freibaum
Director
---------------------------------
Anthony Downs
Director
---------------------------------
Morris Mark
</TABLE>
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/s/ Beth Stewart Director
---------------------------------
Beth Stewart
/s/ A. Lorne Weil Director
---------------------------------
A. Lorne Weil
6
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EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
------- -----------
4.1 Specimen certificate representing Common Stock (incorporated by
reference to the Company's Registration Statement on Form S-11
(File No. 33-56640), filed on April 6, 1993).
4.2 General Growth Properties, Inc. 1998 Incentive Stock Plan.
5.1 Opinion of Neal, Gerber & Eisenberg, counsel for the Company.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of KPMG LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Arthur Andersen LLP
23.5 Consent of KPMG LLP
23.6 Consent of Ernst & Young LLP
23.7 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5.1).
24.1 Powers of Attorney of certain officers and directors of the
Company (included on signature page).
<PAGE> 1
EXHIBIT 4.2
GENERAL GROWTH PROPERTIES, INC.
1998 INCENTIVE STOCK PLAN
<PAGE> 2
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the Plan is to give the Company a significant advantage
in attracting, retaining and motivating employees (other than Matthew Bucksbaum
and John Bucksbaum) and to provide the Company, its Affiliates and Subsidiaries
with the ability to provide competitive incentives which are directly linked to
the profitability of the Company's business and increases in stockholder value.
For purposes of the Plan, the following terms are defined as set forth
below:
"Affiliate" means General Growth Management, Inc. and any other
corporation or other entity controlled by the Company and designated by the
Committee as such.
"Award" means a Threshold-Vesting Stock Option.
"Award Year" shall have the meaning set forth in the Cash
Incentive Plan.
"Board" means the Board of Directors of the Company.
"Cash Incentive Plan" means the General Growth Properties, Inc.
Cash Value Added Incentive Compensation Plan.
"Cause" has the meaning set forth in Section 5(i).
"Change in Control" and "Change in Control Price" have the
meanings set forth in Sections 6(b) and (c) respectively.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor thereto.
"Commission" means the Securities and Exchange Commission or any
successor agency.
"Committee" means the Committee referred to in Section 2.
"Common Stock" means common stock, par value $.10 per share, of
the Company.
"Company" means General Growth Properties, Inc., a
Delaware corporation, and its successors and assigns.
"Employer" means the Company and any Subsidiary or Affiliate whose
employees are participants in the Plan.
<PAGE> 3
"Estimated Annual Growth Rate" means such rate as shall be
established by the Committee on the date a Stock Option is granted.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor thereto.
"Fair Market Value" means, as of any given date, the mean between
the highest and lowest reported sales prices of the Common Stock on the New York
Stock Exchange Composite Tape or, if not then listed on such exchange, on any
other national securities exchange on which the Common Stock is then listed or
on NASDAQ. If there is then no regular public trading market for such Common
Stock, the Fair Market Value of the Common Stock shall be determined by the
Committee in good faith.
"Measurement Year" shall have the meaning set forth in the Cash
Incentive Plan.
"Non-Qualified Stock Option" means a Stock Option that is not an
incentive stock option as defined by Section 422 of the Code.
"Plan" means the General Growth Properties, Inc. 1998 Incentive
Stock Plan, as set forth herein and as hereinafter amended from time to time.
"Retirement" means retirement from active employment under a
pension plan of the Company, any Subsidiary or Affiliate, or under an employment
contract with any of them, or termination of employment at or after age 65 under
circumstances which the Committee, in its sole discretion, deems equivalent to
retirement.
"Rule 16b-3" means Rule 16b-3, as promulgated by the Commission
under Section 16(b) of the Exchange Act, as amended from time to time.
"Subsidiary" means any corporation, partnership or other entity of
which the Company or any Subsidiary owns, directly or indirectly, a majority of
the voting power of the voting equity securities or a majority of the equity
interest and shall not be deemed to be a "subsidiary" for any other purpose.
"Termination of Employment" means the termination of the
participant's employment with the Company or any Subsidiary or Affiliate. A
participant employed by a Subsidiary or an Affiliate shall also be deemed to
incur a Termination of Employment if the Subsidiary or Affiliate ceases to be
such a Subsidiary or Affiliate, as the case may be, and the participant does not
immediately thereafter become an employee of the Company or another Subsidiary
or Affiliate.
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"Total Disability" means complete and permanent inability by
reason of illness or accident to perform the duties of the occupation at which a
Participant was employed by an Employer when such total disability commenced,
all as determined by the Committee. All determinations as to the date and extent
of total disability of any Participant shall be made by the Committee, upon the
basis of such evidence, including independent medical reports and data, as the
Committee deems necessary and desirable, and all such determinations of the
Committee shall be final.
"Threshold Price" means the Fair Market Value of a share of Common
Stock multiplied by the Estimated Annual Growth Rate, compounded annually for a
five-year period.
"Threshold-Vesting Stock Option" or "Stock Option" means an option
granted under Section 5.
In addition, certain other terms used herein have definitions
given to them in the first place in which they are used.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Compensation Committee of the
Board or such other committee appointed by and serving at the pleasure of the
Board (the "Committee"). If at any time no Committee shall be in office, the
functions of the Committee specified in the Plan shall be exercised by the
Board.
The Committee shall have plenary authority to grant Awards pursuant to
the terms of the Plan to participants in the Cash Incentive Plan designated by
the Committee.
Among other things, the Committee shall have the authority, subject to
the terms of the Plan:
(a) to select the participants in the Cash Incentive Plan to whom
Awards under the Plan may from time to time be granted;
(b) to determine the number of shares of Common Stock to be
covered by each Award granted hereunder;
(c) to determine the terms and conditions of any Award granted
hereunder (including, but not limited to, subject to Section 5(a), the
option price, any vesting restriction or limitation and any vesting
acceleration or forfeiture waiver regarding any Award and the shares of
Common Stock relating thereto, based on such factors as the Committee shall
determine);
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(d) to modify, amend or adjust the terms and conditions of any
Award, at any time or from time to time;
(e) to determine to what extent and under what circumstances
Common Stock and other amounts payable with respect to an Award shall be
deferred; and
(f) to determine under what circumstances a Stock Option may be
settled in cash or Common Stock under Section 5(k).
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any Award issued under the Plan (and any agreement relating thereto)
and to otherwise supervise the administration of the Plan.
The Committee may act with respect to the Plan only by a majority of
its members then in office, except that the members thereof may (i) delegate to
an officer of the Company the authority to make decisions pursuant to paragraphs
(c), (f), (g), (h) and (i) of Section 5 (provided that no such delegation may be
made that would cause Awards or other transactions under the Plan to cease to be
exempt from Section 16(b) of the Exchange Act) and (ii) authorize any one or
more of their number or any officer of the Company to execute and deliver
documents on behalf of the Committee.
Any determination made by the Committee or pursuant to delegated
authority pursuant to the provisions of the Plan with respect to any Award shall
be made in the sole discretion of the Committee or such delegate at the time of
the grant of the Award or, unless in contravention of any express term of the
Plan, at any time thereafter. All decisions made by the Committee or any
appropriately delegated officer pursuant to the provisions of the Plan shall be
final and binding on all persons, including the Company and Plan participants.
SECTION 3. COMMON STOCK SUBJECT TO PLAN.
Subject to adjustment as provided herein, the total number of shares of
Common Stock available for distribution pursuant to Awards under the Plan shall
be 1,000,000 shares of Common Stock. Shares subject to an Award under the Plan
may be authorized and unissued shares or may be treasury shares. If a Stock
Option is forfeited, expires or becomes unexercisable without having been
exercised in full, the unpurchased Shares which were subject thereto shall
become available for future grant under the Plan (unless the Plan has
terminated).
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In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, extraordinary distribution with
respect to the Common Stock or other change in corporate structure affecting the
Common Stock, the Committee or Board may make such substitution or adjustments
in the aggregate number and kind of shares reserved for issuance under the Plan,
in the number, kind and option price of shares subject to outstanding Stock
Options and/or such other substitution or adjustments in the consideration
receivable upon exercise as it may determine to be appropriate in its sole
discretion; provided, however, that the number of shares subject to any Award
shall always be a whole number.
SECTION 4. ELIGIBILITY.
Employees of the Company, its Subsidiaries and Affiliates who are
responsible for or contribute to the management, growth and profitability of the
business of the Company, its Subsidiaries and Affiliates and who are designated
by the Committee are eligible to be granted Awards under the Plan.
SECTION 5. THRESHOLD-VESTING STOCK OPTIONS.
The Committee shall have the authority each Award Year to grant any
optionee Threshold-Vesting Stock Options after the Committee has determined the
Annual Bonus Awards under the Cash Incentive Plan based on the financial results
in the applicable Measurement Year. The number of Stock Options to be granted to
an optionee will be based on the optionee's Annual Bonus Award under the Cash
Incentive Plan in the current Award Year and shall be determined as follows:
Step One: the optionee's Annual Bonus Award under the Cash Incentive
Plan shall be multiplied by 25% if the optionee is a member of senior management
or by a lesser percentage designated by the Committee for all other optionees;
Step Two: the product obtained under Step One shall be divided by ten
percent (10%) of the Fair Market Value of a share of Common Stock on the date of
grant of the Stock Option.
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve and shall constitute a Non-Qualified
Stock Option. Stock Options shall be evidenced by option agreements, the terms
and provisions of which may differ, to the extent permitted by the Plan. An
option agreement shall indicate on its face that it is intended to be a
Non-Qualified Stock Option. The grant of a Stock Option shall occur on the date
the Committee by resolution selects an individual to be a participant in any
grant of a Stock Option, determines the number of shares of Common Stock to be
subject to such Stock Option to be granted to such individual and specifies the
terms and
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<PAGE> 7
provisions of the Stock Option. The Company shall notify a participant of any
grant of a Stock Option, and a written option agreement or agreements shall be
duly executed and delivered by the Company to the participant. Such agreement or
agreements shall become effective upon execution by the participant.
Stock Options granted under the Plan shall be subject to the following
terms and conditions and shall contain such additional terms and conditions as
the Committee shall deem desirable:
(a) Option Price. The option price per share of Common Stock
purchasable under a Stock Option shall be the Fair Market Value of the
Common Stock subject to the Stock Option on the date of grant.
(b) Option Term. The term of each Stock Option shall be
established by the Committee and shall not exceed 10 years from the date the
Stock Option is granted.
(c) Exercisability. Threshold-Vesting Stock Options shall be
exercisable only after the Stock Option has vested. Vesting in such Stock
Options shall occur after the Fair Market Value of the Common Stock has
achieved and sustained the Threshold Price for at least 20 consecutive
trading days at any time during the five-year period following the date of
grant of the Stock Option, or at such time and under such conditions as are
determined by the Committee.
(d) Method of Exercise. Subject to the provisions of this Section
5, Stock Options may be exercised, in whole or in part, at any time during
the option term by giving written notice of exercise to the Company
specifying the number of shares of Common Stock subject to the Stock Option
to be purchased.
The option price of Common Stock to be purchased upon exercise of any
Stock Option shall be paid in full in cash (by certified or bank check or
such other instrument as the Company may accept) or, if and to the extent
set forth in the option agreement, may also be paid by one or more of the
following: (i) in the form of unrestricted Common Stock already owned by the
optionee based in any such instance on the Fair Market Value of the Common
Stock on the date the Stock Option is exercised; or (ii) by a combination
thereof, in each case in the manner provided in the option agreement.
In the discretion of the Committee, payment for any shares subject to
a Stock Option may also be made by delivering a properly executed exercise
notice to the Company, together with a copy of irrevocable instructions to a
broker to deliver promptly to the Company the amount of sale or loan
6
<PAGE> 8
proceeds to pay the purchase price. To facilitate the foregoing, the Company
may enter into agreements for coordinated procedures with one or more
brokerage firms.
No shares of Common Stock shall be issued until full payment
therefor has been made. An optionee shall have all of the rights of a
stockholder of the Company holding the Common Stock that is subject to such
Stock Option (including, if applicable, the right to vote the shares and the
right to receive dividends), when the optionee has given written notice of
exercise, has paid in full for such shares and, if requested, has given the
representation described in Section 9(a).
(e) Non-transferability of Stock Options. No Stock Option shall
be transferable by the optionee other than (i) by will or by the laws of
descent and distribution or (ii) pursuant to a qualified domestic relations
order (as defined in the Code or Title I of the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder). All Stock
Options shall be exercisable, during the optionee's lifetime, only by the
optionee or by the guardian or legal representative of the optionee or by an
alternate payee pursuant to such qualified domestic relations order, it
being understood that the terms "holder" and "optionee" include the guardian
and legal representative of the optionee named in the option agreement and
any person to whom an option is transferred by will or the laws of descent
and distribution or pursuant to a qualified domestic relations order.
(f) Termination by Death. If an optionee's employment terminates
by reason of death, any Stock Option held by such optionee may thereafter be
exercised, to the extent then otherwise exercisable, for a period of one
year (or such other period as the Committee may specify in the option
agreement) from the date of such death or until the expiration of the stated
term of such Stock Option, whichever period is the shorter.
(g) Termination by Reason of Total Disability. If an optionee's
employment terminates by reason of Total Disability, any Stock Option held
by such optionee may thereafter be exercised by the optionee, to the extent
it was otherwise exercisable at the time of termination, for a period of
three years (or such shorter period as the Committee may specify in the
option agreement) from the date of such termination of employment or until
the expiration of the stated term of such Stock Option, whichever period is
the shorter; provided, however, that if the optionee dies within such
three-year period (or such shorter period), any unexercised Stock Option
held by such optionee shall,
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notwithstanding the expiration of such three-year (or such shorter) period,
continue to be exercisable to the extent to which it was exercisable at the
time of death for a period of one year from the date of such death or until
the expiration of the stated term of such Stock Option, whichever period is
the shorter.
(h) Termination by Reason of Retirement. If an optionee's
employment terminates by reason of Retirement, any Stock Option held by such
optionee may thereafter be exercised by the optionee, to the extent it was
exercisable at the time of such Retirement or on such accelerated basis as
the Committee may determine, for a period of three years (or such shorter
period as the Committee may specify in the option agreement) from the date
of such termination of employment or until the expiration of the stated term
of the Stock Option, whichever period is the shorter; provided, however,
that if the optionee dies within such three-year (or such shorter) period,
any unexercised Stock Option held by such optionee shall, notwithstanding
the expiration of such three-year (or such shorter) period, continue to be
exercisable to the extent to which it was exercisable at the time of death
for a period of one year from the date of such death or until the expiration
of the stated term of such Stock Option, whichever period is the shorter.
(i) Other Termination. Unless otherwise determined by the
Committee, if there occurs a Termination of Employment for any reason other
than death, Total Disability, Retirement or Cause, any Stock Option held by
such Optionee shall thereupon terminate, except that such Stock Option, to
the extent then exercisable, or on such accelerated basis as the Committee
may determine, may, if such Termination of Employment is without Cause, be
exercised for one year from the date of such Termination of Employment or
the balance of such Stock Option's term; provided, however, that if the
optionee dies within such one-year period, any unexercised Stock Option held
by such optionee shall notwithstanding the expiration of such one-year
period, continue to be exercisable to the extent to which it was exercisable
at the time of death for a period of one year from the date of such death or
until the expiration of the stated term of such Stock Option, whichever
period is the shorter. In the event of Termination of Employment for Cause,
any unexercised Stock Option held by such optionee shall expire immediately
upon the giving to the optionee of notice of such Termination of Employment.
Unless otherwise determined by the Committee, for the purposes of the Plan,
"Cause" shall mean (i) the conviction of the optionee for committing a
felony under Federal law or the law of the state in which such action
occurred, (ii) dishonesty in the course of fulfilling the optionee's
employment duties or (iii) willful and deliberate failure on the part of the
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<PAGE> 10
optionee to perform his employment duties in any material respect.
(j) Forfeitability and Termination. If a Threshold-Vesting Stock
Option does not vest during the five-year period following the date of grant
of the Stock Option, the Stock Option shall be forfeited and the Shares
covered by such Option shall revert to the Plan. If an optionee does not
exercise his Stock Option within the time period specified in the Plan, the
Stock Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(k) Cashing Out of Stock Option. On receipt of written notice of
exercise, the Committee may elect to cash out all or any part of the shares
of Common Stock for which a Stock Option is being exercised by paying the
optionee an amount, in cash or Common Stock, equal to the excess of the Fair
Market Value of the Common Stock over the option price times the number of
shares of Common Stock for which the Stock Option is being exercised on the
effective date of such cash out.
(l) Change in Control Cash Out. Notwithstanding any other
provision of the Plan, during the 60-day period from and after a Change in
Control (the "Exercise Period"), unless the Committee shall determine
otherwise at the time of grant, an optionee shall have the right, whether or
not the Stock Option is fully exercisable and in lieu of the payment of the
exercise price for the shares of Common Stock being purchased under the
Stock Option and by giving notice to the Company, to elect (within the
Exercise Period) to surrender all or part of the Stock Option to the Company
and to receive cash, within 30 days of such notice, in an amount equal to
the amount by which the Change in Control Price per share of Common Stock on
the date of such election shall exceed the exercise price per share of
Common Stock under the Stock Option (the "Spread") multiplied by the number
of shares of Common Stock granted under the Stock Option as to which the
right granted under this Section 5(l) shall have been exercised; provided,
however, that if the Change in Control is within six months of the date of
grant of a particular Stock Option held by an optionee who is an officer or
director of the Company and is subject to Section 16(b) of the Exchange Act
no such election shall be made by such optionee with respect to such Stock
Option prior to six months from the date of grant. Notwithstanding any other
provision hereof, if the end of such 60-day period from and after a Change
in Control is within six months of the date of grant of a Stock Option held
by an optionee who is an officer or director of the Company and is subject
to Section 16(b) of the Exchange Act, such Stock Option shall be cancelled
in exchange for a cash payment to the optionee, effected on the day which is
six months and one day after the date of grant of such Option, equal to the
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<PAGE> 11
Spread multiplied by the number of shares of Common Stock granted under the
Stock Option.
SECTION 6. CHANGE IN CONTROL PROVISIONS.
(a) Impact of Event. Notwithstanding any other provision of the Plan to
the contrary, in the event of a Change in Control any Stock Options
outstanding as of the date such Change in Control is determined to have
occurred and not then exercisable and vested shall become fully exercisable
and vested to the full extent of the original grant.
(b) Definition of Change in Control. For purposes of the Plan, a
"Change in Control" shall mean the happening of any of the following events:
(i) An acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either (1) the
then outstanding shares of common stock of the Company (the
"Outstanding Common Stock") or (2) the combined voting power of the
then outstanding voting securities of the Company entitled to vote
generall in the election of directors (the "Outstanding Voting
Securities"); excluding, however, the following: (1) any acquisition
directly from the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so
converted was itself acquired directly from the Company, (2) any
acquisition by the Company, or members of the Company's management, or
any combination thereof, (3) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (4) any acquisition by any
Person pursuant to a transaction which complies with clauses (1), (2)
and (3) of subsection (iii) of this Section 6(b); or
(ii) A change in the composition of the Board such that the
individuals who, as of the effective date of the Plan, constitute the
Board (such Board shall be hereinafter referred to as the "Incumbent
Board") cease for any reason to constitute at least a majority of the
Board; provided, however, for purposes of this Section 6(b), that any
individual who becomes a member of the Board subsequent to such
effective date whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority
of those individuals who are members of the Board and who were also
members of the Incumbent Board (or deemed to be such pursuant to this
proviso) shall be considered as though
10
<PAGE> 12
such individual were a member of the Incumbent Board; but, provided
further, that any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board
shall not be so considered as a member of the Incumbent Board; or
(iii) The approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of the Company ("Corporate
Transaction"); excluding, however, such a Corporate Transaction
pursuant to which (1) all or substantially all of the individuals and
entities who are the beneficial owners, respectively, of the
Outstanding Common Stock and Outstanding Voting Securities immediately
prior to such Corporate Transaction will beneficially own, directly or
indirectly, more than 60% of, respectively, the outstanding shares of
common stock, and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation
which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through
one or more Subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Corporate Transaction, of
the Outstanding Common Stock and Outstanding Voting Securities, as the
case may be, (2) no Person (other than the Company, any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company or such corporation
resulting from such Corporate Transaction) will beneficially own,
directly or indirectly, 20% or more of, respectively, the outstanding
shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding voting
securities of such corporation entitled to vote generally in the
election of directors except to the extent that such ownership existed
with respect to the Company prior to the Corporate Transaction and (3)
individuals who were members of the Incumbent Board will constitute at
least a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
11
<PAGE> 13
(iv) The approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(c) Change in Control Price. For purposes of the Plan, "Change in
Control Price" means the higher of (i) the highest reported sales price,
regular way, of a share of Common Stock in any transaction reported on the
New York Stock Exchange Composite Tape or other national securities exchange
on which such shares are listed or on NASDAQ, as applicable, during the
60-day period prior to and including the date of a Change in Control and
(ii) if the Change in Control is the result of a tender or exchange offer or
a Corporate Transaction, the highest price per share of Common Stock paid in
such tender or exchange offer or Corporate Transaction; provided, however,
that in the case of a Stock Option which (x) is held by an optionee who is
an officer or director of the Company and is subject to Section 16(b) of the
Exchange Act and (y) was granted within 240 days of the Change in Control,
then the Change in Control Price for such Stock Option shall be the Fair
Market Value of the Common Stock on the date such Stock Option is exercised
or cancelled. To the extent that the consideration paid in any such
transaction described above consists all or in part of securities or other
non-cash consideration, the value of such securities or other non-cash
consideration shall be determined in the sole discretion of the Board.
SECTION 7. TERM, AMENDMENT AND TERMINATION.
The Plan will terminate on December 31, 2008. Under the Plan, Awards
outstanding as of December 31, 2008 shall not be affected or impaired by the
termination of the Plan.
The Board may amend, alter, or discontinue the Plan, including, without
limitation, to provide for the transferability of any or all Stock Option(s) in
the event the instructions to Form S-8 promulgated pursuant to the Securities
Act of 1933, as amended, or any successor form, are hereafter amended to permit
registration of shares issuable upon the exercise of options such as the Stock
Options which are transferable, but no amendment, alteration or discontinuation
shall be made which would impair the rights of an optionee under a Stock Option
theretofore granted without the optionee's consent. In addition, no such
amendment shall be made without the approval of the Company's stockholders to
the extent such approval is required by law or agreement.
The Committee may amend the terms of any Stock Option theretofore
granted, prospectively or retroactively, including, without limitation, to
provide for the transferability of such Stock Option in the event the
instructions to Form S-8 promulgated pursuant to the Securities Act of 1933, as
amended, or any
12
<PAGE> 14
successor form, are hereafter amended to permit registration of shares issuable
upon the exercise of options such as the Stock Options which are transferable,
but no such amendment shall impair the rights of any holder without the holder's
consent except such an amendment made to cause the Option to qualify for the
exemption provided by Rule 16b-3(d).
Subject to the above provisions, the Board shall have authority to
amend the Plan to take into account changes in law and tax and accounting rules,
as well as other developments and to grant Awards which qualify for beneficial
treatment under such rules without stockholder approval.
SECTION 8. UNFUNDED STATUS OF PLAN.
It is presently intended that the Plan constitute an "unfunded" plan
for incentive and deferred compensation. The Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Common Stock or make payments; provided, however, that,
unless the Committee otherwise determines, the existence of such trusts or other
arrangements is consistent with the "unfunded" status of the Plan.
SECTION 9. GENERAL PROVISIONS.
(a) The Committee may require each person purchasing or receiving
shares pursuant to an Award to represent to and agree with the Company in
writing that such person is acquiring the shares without a view to the
distribution thereof. The certificates for such shares may include any
legend which the Committee deems appropriate to reflect any restrictions on
transfer.
All certificates for shares of Common Stock or other securities
delivered under the Plan shall be subject to such stock transfer orders and
other restrictions as the Committee may deem advisable under the rules,
regulations and other requirements of the Commission, any stock exchange
upon which the Common Stock is then listed and any applicable Federal or
state securities law, and the Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to such
restrictions.
(b) Nothing contained in the Plan shall prevent the Company or any
Subsidiary or Affiliate from adopting other or additional compensation
arrangements for its employees.
(c) The adoption of the Plan shall not confer upon any employee any
right to continued employment nor shall it interfere in any way with the
right of the Company or any
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<PAGE> 15
Subsidiary or Affiliate to terminate the employment of any employee at any
time.
(d) No later than the date as of which an amount first becomes
includible in the gross income of the participant for Federal income tax
purposes with respect to any Award under the Plan, the participant shall pay
to the Company, or make arrangements satisfactory to the Company regarding
the payment of, any Federal, state, local or foreign taxes of any kind
required by law to be withheld with respect to such amount. Unless otherwise
determined by the Committee, withholding obligations may be settled with
Common Stock, including Common Stock that is part of the Award that gives
rise to the withholding requirement. The obligations of the Company under
the Plan shall be conditional on such payment or arrangements, and the
Company, its Subsidiaries and its Affiliates shall, to the extent permitted
by law, have the right to deduct any such taxes from any payment otherwise
due to the participant. The Committee may establish such procedures as it
deems appropriate, including the making of irrevocable elections, for the
settlement of withholding obligations with Common Stock.
(e) At the time of grant, the Committee may provide in connection with
any grant made under the Plan that the shares of Common Stock received upon
exercise of such Option shall be subject to a right of first refusal
pursuant to which the participant shall be required to offer to the Company
any shares that the participant wishes to sell at the then Fair Market Value
of the Common Stock, subject to such other terms and conditions as the
Committee may specify at the time of grant.
(f) The Committee shall establish such procedures as it deems
appropriate for a participant to designate a beneficiary to whom any amounts
payable in the event of the participant's death are to be paid.
(g) The Plan and all Awards made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of
Delaware.
SECTION 10. EFFECTIVE DATE OF PLAN.
The Plan shall be effective on the later of (a) the date it is approved
by the stockholders of the Company and (b) the date, if any, specified by the
Board at the time it is approved by the Board.
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<PAGE> 1
EXHIBIT 5.1
NEAL, GERBER & EISENBERG
TWO NORTH LASALLE STREET
SUITE 2200
CHICAGO, IL 60602
(312) 269-8000
MARCH 16, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: General Growth Properties, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We are counsel to General Growth Properties, Inc., a Delaware
corporation (the "Company"), and in such capacity we have assisted in the
preparation and filing with the Securities and Exchange Commission under the
Securities Act of 1993, as amended, of the Company's Registration Statement on
Form S-8 (the "Registration Statement") relating to the issuance from time to
time by the Company of up to 1,000,000 shares of the Company's common stock,
$.10 par value per share (the "Common Stock") upon the exercise of options to be
granted pursuant to the General Growth Properties, Inc. 1998 Incentive Stock
Plan (the "Plan").
As such counsel, we have examined the Plan, the Company's Amended and
Restated Certificate of Incorporation, as amended, the Amended By-Laws of the
Company, the minute books of the Company and such other papers, documents and
certificates of public officials and certificates of officers of the Company as
we have deemed relevant and necessary as the basis for the opinions hereinafter
expressed. In such examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
conformed or photostatic copies.
Based on the foregoing, we are of the opinion that:
1. The issuance from time to time by the Company of up to
1,000,000 shares of Common Stock upon the exercise of options to be
granted pursuant to the Plan as described in the prospectus to be
delivered to participants in the Plan (the "Prospectus") has been duly
and validly authorized by all necessary corporate action on the part of
the Company.
2. When issued and paid for as described in the Prospectus
and in accordance with the Plan, the 1,000,000 shares available for
issuance upon the exercise of options to be granted pursuant to the
Plan will be duly and validly issued and outstanding, fully paid and
non-assessable shares of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Interests of Named Experts and Counsel" in Item 5 of Part II of the
Registration Statement.
Please be advised that certain partners of, attorneys associated with
and/or of counsel to our firm beneficially own shares of Common Stock and
preferred stock of the Company. In addition, please note that Marshall E.
Eisenberg, a partner of our firm, is the Secretary of the Company.
<PAGE> 2
March 16, 1999
Page 2
The opinions expressed above are limited to Delaware General
Corporation Law and the federal laws of the United States, and are limited to
the specific legal matters expressly addressed herein. No opinion is expressed
with respect to the laws of any other jurisdiction or any legal matter not
addressed herein. This opinion speaks only as of the date hereof and we
undertake no obligation to update this opinion.
Very truly yours,
/s/ NEAL, GERBER & EISENBERG
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
General Growth Properties, Inc. on Form S-8 of our report dated February 9,
1998, on our audits of the consolidated financial statements of General Growth
Properties, Inc. as of December 31, 1997 and 1996, and for each of the three
years in the period ended December 31, 1997, and the financial statement
schedule as of December 31, 1997, included in the Annual Report on Form 10-K for
the fiscal year ended December 31, 1997, and our report dated February 6, 1998,
except as to Note 1 of which the date is May 28, 1998, on our audit of the
statement of revenues and certain expenses of Northbrook Court for the year
ended December 31, 1997 which is included in Form 8-K/A of General Growth
Properties, Inc. dated June 2, 1998. We also consent to all references to our
firm in this Registration Statement.
/s/ PricewaterhouseCoopers LLP
-------------------------------
PricewaterhouseCoopers LLP
Chicago, Illinois
March 15, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
General Growth Properties, Inc.:
We consent to the incorporation by reference herein in the registration
statement on Form S-8 of General Growth Properties, Inc. related to the General
Growth Properties, Inc. Incentive Stock Plan of our report dated May 8, 1998,
with respect to the combined statement of revenues and certain expenses for
certain retail properties of MEPC American Holdings Inc., U.K.-American
Properties, Inc. and Caledonian Holding Company, Inc., wholly owned subsidiaries
of MEPC plc, a United Kingdom company (the MEPC American Group) for the year
ended September 30, 1997, which report appears in the Form 8-K/A dated June 2,
1998 of General Growth Properties, Inc. Our independent auditors' report
contains an explanatory paragraph indicating that the combined statement of
revenues and certain expenses was prepared for the purpose of complying with the
rules and regulations of the Securities and Exchange Commission as described in
Note B to the combined statement of revenues and certain expenses and is not
intended to be a complete presentation of MEPC American Group's revenues and
expenses.
/s/ KPMG LLP
------------
KPMG LLP
Dallas, Texas
March 15, 1999
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
General Growth Properties, Inc. on Form S-8 of our report dated May 14, 1998,
relating to our audit of the combined statement of revenues and certain expenses
of the Landmark Mall, Mayfair Complex, The Meadows, Northgate Mall, Oglethorpe
Mall and Park City Center for the year ended December 31, 1997, included in the
Form 8-K/A dated June 2, 1998 of General Growth Properties, Inc.
/s/ DELOITTE & TOUCHE LLP
Atlanta, Georgia
March 15, 1999
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated September 21, 1998
on the statement of excess of revenues over specific operating expenses for
Altamonte Mall for the year ended December 31, 1997 included in General Growth
Properties, Inc. Form 8-K/A dated September 29, 1998 and to all references to
our firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
New York, New York
March 15, 1999
<PAGE> 1
EXHIBIT 23.5
CONSENT OF INDEPENDENT AUDITORS
To Board of Directors
General Growth Properties, Inc.:
We consent to the incorporation by reference herein of our report dated October
22, 1998, with respect to the statement of revenues and certain expenses of
Spring Hill Mall for the year ended December 31, 1997, which report appears in
the Form 8-K/A dated November 4, 1998 of General Growth Properties, Inc.
Our independent auditors' report contains an explanatory paragraph indicating
that the statement of revenue and certain expenses was prepared for the purpose
of complying with the rules and regulations of the Securities and Exchange
Commission as described in note 1 to the statements of revenues and certain
expenses and is not intended to be a complete presentation of Spring Hill Mall's
revenues and expenses.
/s/ KPMG LLP
Los Angeles, California
March 15, 1999
<PAGE> 1
EXHIBIT 23.6
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to General Growth Properties, Inc. 1998 Incentive Stock
Plan of our report dated October 22, 1998 with respect to the Statement of
Revenue and Certain Expenses of Coastland Center for the year ended December 31,
1997, included in the Current Report on Form 8-K/A of General Growth Properties,
Inc. dated November 9, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
March 11, 1999
