Exhibit 10.11


 


EXECUTION COPY


 


AGREEMENT AND PLAN OF MERGER


 


THIS
AGREEMENT AND PLAN OF MERGER, dated as of November 9, 2010 (this “Agreement”),
by and among GGP, Inc., a Delaware corporation (“GGPI”), General
Growth Properties, Inc., a Delaware corporation (“Parent”), GGP
Real Estate Holding I, Inc., a Delaware corporation and a direct
substantially wholly owned subsidiary of Parent (“Holdco”), and GGP
Merger Sub, Inc., a Delaware corporation and a direct wholly owned
subsidiary of Holdco (“Merger Sub”).


 


RECITALS:


 


WHEREAS,
GGPI is a debtor in possession in that certain bankruptcy case under chapter 11
of title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as amended, filed
on April 16, 2009 in the United States Bankruptcy Court for the Southern District
of New York  (the “Court”) under Case No. 09-11977
(ALG);


 


WHEREAS,
GGPI and certain of its affiliates have proposed the Third Amended Joint Plan
of Reorganization (the “Plan of Reorganization”), which was confirmed by
the Court on October 21, 2010 and provides, among other things, for the
merger of Merger Sub with and into GGPI in accordance with Sections 251 and 303
of the General Corporation Law of the State of Delaware (the “DGCL”),
with GGPI as the surviving corporation in the Merger; and


 


WHEREAS,
this Agreement is intended to constitute a plan of reorganization within the
meaning of Section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended (the “Code”);


 


NOW,
THEREFORE, in consideration of the foregoing, the covenants and agreements set
forth in this Agreement, and other good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


ARTICLE I


 


THE MERGER


 


Section 1.1             The Merger.  Upon the
terms of this Agreement and in accordance with the DGCL, at the Effective Time
(as defined in Section 1.2) Merger Sub shall be merged with and
into GGPI (the “Merger”), and the separate corporate existence of Merger
Sub shall thereupon cease, and GGPI will be the surviving corporation in the
Merger (the “Surviving Corporation”). 
As a result of the Merger, GGPI shall become a wholly owned subsidiary
of Holdco.  The Merger shall be effected
in accordance with Sections 251 and 303 of the DGCL.


 


Section 1.2             Effective Time of the Merger.  Upon the terms of this Agreement, an
appropriate certificate of merger (the “Certificate of Merger”) shall be
duly prepared, executed by each of Merger Sub and GGPI and delivered to and
filed with the Secretary of State of the State of Delaware in accordance with,
and in such form as complies with, the relevant provisions of the DGCL.  The Merger shall become effective upon the
filing of the Certificate of Merger with the Secretary of State of the State of
Delaware or, subject to the DGCL, at such later time as is agreed upon by the
parties and specified in the Certificate of Merger.  The term 


 


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“Effective
Time” shall mean the time at which the Merger becomes effective.


 


Section 1.3             Effects of the Merger. 
From and after the Effective Time, the Merger shall have the effects set
forth in the Plan of Reorganization, this Agreement, the Certificate of Merger
and the applicable provisions of the DGCL.


 


Section 1.4             Certificate of Incorporation and By-Laws.  Pursuant to the Merger, at and as of the
Effective Time the certificate of incorporation and by-laws of GGPI immediately
prior to the Effective Time shall be amended in their entirety to read as set
forth in Exhibit A hereto and, as so amended, shall be the
certificate of incorporation and by-laws of the Surviving Corporation from and
after the Effective Time, until thereafter amended as provided therein or by
applicable law.


 


Section 1.5             Directors.  The
directors of Merger Sub immediately prior to the Effective Time shall be the
directors of the Surviving Corporation from and following the Effective Time,
each to hold office until his or her successor is duly elected and qualified or
his or her earlier death, resignation or removal in accordance with the certificate
of incorporation and by-laws of the Surviving Corporation.


 


Section 1.6             Officers.  The
officers of Merger Sub immediately prior to the Effective Time shall be the
officers of the Surviving Corporation from and following the Effective Time,
each to hold office until his or her successor is duly appointed and qualified
or his or her earlier death or resignation or removal in accordance with the
certificate of incorporation and by-laws of the Surviving Corporation.


 


ARTICLE II


 


EFFECT OF
THE MERGER ON CAPITAL STOCK


 


Section 2.1             Effect on Capital Stock of
GGPI and Merger Sub.  As of
the Effective Time, by virtue of the Merger and the Plan of Reorganization and
without any action on the part of any holder of any capital stock of GGPI or
Merger Sub:


 


(a)   Conversion of Common Stock of GGPI. 
Each share of common stock, par value $0.01 per share, of
GGPI (“GGPI Common Stock”) issued and outstanding immediately prior to
the Effective Time (other than shares to be canceled in accordance with Section 2.1(b))
shall be converted into and represent the right to receive from Holdco one
validly issued, fully paid and nonassessable share of common stock, par value
$0.01 per share, of Parent (“Parent Common Stock”) (the “Merger
Consideration”).  As of the Effective
Time, all such shares of GGPI Common Stock shall no longer be outstanding and
shall automatically be canceled and shall cease to exist, and each holder of a
certificate (or evidence of un-certificated shares in book-entry form) which
immediately prior to the Effective Time represented any such shares of GGPI
Common Stock shall thereafter cease to have any rights with respect thereto
except the right to receive the Merger Consideration in respect of such shares
in accordance with Section 2.2 and the Plan of Reorganization,
without interest.


 


(b)   Cancellation of Treasury Stock, Subsidiary-Owned Stock and Parent-Owned
Stock.  Notwithstanding the
foregoing, any shares of GGPI Common Stock that are owned by 


 


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GGPI as treasury stock, and any shares of GGPI Common
Stock owned by (or which would otherwise be owned by) Parent, Holdco, Merger
Sub or any other Subsidiary of Parent shall be automatically canceled and shall
cease to exist and no consideration shall be delivered in exchange therefor and
each holder of a certificate formerly representing any such shares shall
thereafter cease to have any rights with respect thereto.  As used in this Agreement, “Subsidiary”
means, with respect to any party, any corporation or other organization,
whether incorporated or unincorporated, of which such party, either directly or
indirectly, or any other Subsidiary of such party, either directly or
indirectly, beneficially owns at least a majority of the voting or economic
interests.


 


(c)   Common Stock of Merger Sub.  Each
issued and outstanding share of common stock, without par value, of Merger Sub
(“Merger Sub Common Stock”) shall be converted into and become one
validly issued, fully paid and nonassessable share of common stock, without par
value, of the Surviving Corporation. 
From and after the Effective Time, all shares of Merger Sub Common Stock
shall be deemed for all purposes to represent the number of shares of common
stock of the Surviving Corporation into which they were converted in accordance
with the immediately preceding sentence.


 


Section 2.2             Distribution of Merger
Consideration.  The Merger
Consideration shall be issued in accordance with the Plan of Reorganization.


 


Section 2.3             Closing of Transfer Book.  At the Effective Time, the stock transfer
books of GGPI shall be closed and thereafter there shall be no further
registration of any transfer of any shares of GGPI Common Stock that were
outstanding immediately prior to the Effective Time.


 


Section 2.4             No Appraisal Rights.  Pursuant to the DGCL, no holder of shares of
GGPI Common Stock shall have any statutory right of appraisal of such shares in
connection with the Merger.


 


Section 2.5             GGPI Options.  Each
option or right to acquire GGPI Common Stock under any incentive compensation
plan of GGPI that is outstanding immediately prior to the Effective Time shall
no longer be outstanding and shall automatically be converted in accordance
with the Plan of Reorganization.


 


ARTICLE III


 


MISCELLANEOUS


 


Section 3.1             Amendment. This
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.


 


Section 3.2             Entire Agreement; No Third
Party Beneficiaries.  This
Agreement (including the documents and the instruments referred to herein) (i) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties hereto with respect to the subject
matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.


 


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Section 3.3             Assignment.  Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties.


 


Section 3.4             Governing Law.  This Agreement shall be governed
and construed in accordance with the laws of the State of Delaware applicable
to contracts made, executed, delivered and performed wholly within the State of
Delaware, without regard to any conflict of laws principles thereof that may
require the application of the laws of another jurisdiction.


 


Section 3.5             Counterparts.  This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties, it being understood that all parties need not
sign the same counterpart.


 


Section 3.6             Tax Treatment.  This Agreement shall constitute a plan of
reorganization within the meaning of Section 368(a)(1)(B) of
the Code and each party hereto shall report the transactions contemplated by
this Agreement consistently with its treatment as a tax-free reorganization.


 


[SIGNATURE PAGE FOLLOWS]


 


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IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first written above.


 


 


	
   

  	
  GGP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda J. Wight

  
	
   

  	
   

  	
  Name: Linda J. Wight

  
	
   

  	
   

  	
  Title: Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL
  GROWTH PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda J. Wight

  
	
   

  	
   

  	
  Name: Linda J. Wight

  
	
   

  	
   

  	
  Title: Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GGP
  REAL ESTATE HOLDING I, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda J. Wight

  
	
   

  	
   

  	
  Name: Linda J. Wight

  
	
   

  	
   

  	
  Title: Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GGP MERGER SUB, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda J. Wight

  
	
   

  	
   

  	
  Name: Linda J. Wight

  
	
   

  	
   

  	
  Title: Assistant Secretary

  



 


[Signature
Page of Agreement and Plan of Merger]