EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of May 7, 1998, between Security Capital Group Incorporated, a
Maryland corporation ("Security Capital"), and Commerzbank Aktiengesellschaft,
Grand Cayman Branch (the "Investor").
Security Capital and the Investor have entered into an Exchange
Agreement of even date herewith (the "Exchange Agreement"). In order to induce
the Investor to enter into the transactions contemplated by the Exchange
Agreement, Security Capital has agreed to provide the rights set forth in this
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate": with regard to a Person, a Person that controls, is
controlled by, or is under common control with, such original Person. For
purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement": as defined in the preamble.
"Class B Shares": Security Capital's Class B Common Stock, par value
$.01 per share.
"Closing Price": the reported last sale price of a unit of a security
on a given day or, in case no such sale takes place on such day, the average of
the reported closing bid and asked prices, in each case on the New York Stock
Exchange Composite Tape, or, if the security is not listed or admitted to
trading on such exchange, on the American Stock Exchange Composite Tape, or, if
the security is not listed or admitted to trading on such exchange, the
principal national securities exchange on which the security is listed or
admitted to trading, or, if the security is not listed or admitted to trading on
any national securities exchange, the closing sales price, or, if there is no
closing sales price, the average of the closing bid and asked prices, in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System ("NASDAQ"), or, if not so reported, as
reported by the National Quotation Bureau, Incorporated, or any successor
thereof, or, if not so reported, the average of the closing bid and asked prices
as furnished by any member of the National Association of Securities Dealers,
Inc. selected from time to time by Security Capital for that purpose, or, if
no such prices are furnished, the fair market value of the security as
determined in good faith by the Board of Directors of Security Capital;
provided, however, that any determination of the "Closing Price"of any security
hereunder shall be based on the assumption that such security is freely
transferable without registration under the Securities Act.
"Commission": the Securities and Exchange Commission or any other
applicable Federal agency at the time administering the Securities Act.
"Demand Registration": an effective registration pursuant to a
request made by the Investor pursuant to Section 3.1.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Exchange Agreement": as defined in the preamble.
"First Effective Date": the effective date of the First Registration
Statement in the event of a Proration.
"First Registration Statement": in the event of a Proration, the
registration statement initially filed in which all securities sought to be
included were not so included.
"Forms": as defined in Section 4.3.
"Investor": as defined in the preamble.
"Overhang Risk": a substantial risk that the sale of some or all
securities sought to be sold will substantially reduce the proceeds or price
per unit to be derived from a registration by the Person on whose behalf a
registration statement shall be filed.
"Person": an individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Proration": any reduction pursuant to Section 2.1(d) in the number
of securities to be included in a Demand Registration.
"Registrable Security": Class B Shares or other securities issued to
the Investor upon conversion of Series B Preferred Stock acquired by the
Investor pursuant to the Exchange Agreement, including, (i) any securities which
may subsequently be issued with respect to such Class B Shares as a result of a
stock split or dividend and (ii) any securities resulting from any sale,
transfer, assignment or other transaction involving such Class B Shares
(including any securities into which such Class B Shares may thereafter be
changed as a result of merger, consolidation, recapitalization or otherwise);
provided that Class B Shares held by the Investor will cease to be Registrable
Securities in the event that the Investor is able to resell all Class B
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Shares owned by it pursuant to the Resale Rules without being subject to the
volume limitations thereof.
"Resale Rules": as defined in Section 4.3.
"Saleable Amount": the greatest number of securities which would not
create an Overhang Risk.
"Security Capital": as defined in the preamble.
"Securities Act": the Securities Act of 1933, as amended.
"Selling Period": for purposes of a Proration pursuant to a Demand
Registration, the period beginning on the First Effective Date and ending on the
earlier of: (i) 90 days after the First Effective Date or (ii) one day after any
date on which the Closing Price shall be at least 110% of the offering price
listed in the prospectus included in the First Registration Statement (or, if no
offering price is listed in the prospectus included in the First Registration
Statement, the Closing Price on the First Effective Date).
"Shelf Registration": an effective registration under Rule 415 of the
Securities Act pursuant to Rule 3.1.
"Unincluded Securities": any securities sought to be registered but
which are not registered due to a Proration.
"Violation": as defined in Section 4.2(a).
2. DEMAND REGISTRATION.
2.1. Demand Registration.
(a) Demand. Beginning on six months after the closing date of the
Exchange Agreement, the Investor may request one registration of all or any
portion of its Registrable Securities. The request shall state that the Investor
intends to dispose of such Class B Shares through a registered public offering
and shall state the price range per Class B Share at which the Investor proposes
to sell such shares in such offering, provided that the Registrable Securities
requested to be registered equal or exceed $100 million of Class B Shares (based
on the Closing Price), and Security Capital will effect the registration of such
Registrable Securities under the Securities Act in accordance with the following
provisions of this Article 2.
(b) Effecting Registration. Whenever Security Capital shall be
requested by the Investor pursuant to paragraph (a) of this Section 2.1 to
effect the registration of any of its Registrable Securities under the
Securities Act, Security Capital shall:
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(i) within 30 days of delivery of Investor's request, file a
registration statement under the Securities Act with respect to those
Registrable Securities which Security Capital has been requested to
register pursuant to paragraph (a) of this Section 2.1; and
(ii) use its reasonable efforts to effect such registration as
quickly as practicable.
(c) Security Capital's Ability to Postpone. Security Capital may
postpone the filing of a registration statement under this Section 2.1 for a
reasonable period of time (not exceeding 60 days) if Security Capital furnishes
the Investor with a certificate signed by the Chairman of the Board or a
Managing Director of Security Capital stating that, in its good faith judgment,
Security Capital's Board of Directors has determined that effecting the
registration at such time would require Security Capital to make public
disclosure of information not otherwise required to be publicly disclosed at
such time, the public disclosure of which would have a material adverse effect
upon Security Capital or would adversely affect the ability of Security Capital
to consummate a material financing, acquisition, disposition of assets or stock,
merger or other comparable transaction. Security Capital may also postpone for
up to 60 days the filing of a registration statement under this Section 2.1 if a
registration of Security Capital's securities is in progress or imminent (to be
evidenced by presentations or discussions with proposed underwriters in
connection with an offering of securities) and the distribution pursuant thereto
not yet completed. In the event of any postponement under this Section 2.1(c),
the Investor may withdraw the demand, in which event the Investor shall
thereafter have all rights under this Agreement (including Section 2.1(a)) as if
it had not made such demand.
(d) Overhang Risk. If the managing underwriter for the Demand
Registration advises that the amount of Class B Shares sought to be included in
such Demand Registration by the Investor would create an Overhang Risk, then the
amount of Class B Shares to be registered by the Investor may be reduced as
determined by the managing underwriter to the extent necessary to reduce the
amount of Class B Shares to be registered to the amount recommended by the
managing underwriter.
(e) Selection of Underwriters. In the case of an underwritten Demand
Registration, the Investor will have the right to select the investment
banker(s) and manager(s), subject to Security Capital's approval, which will not
be unreasonably withheld or delayed, to administer the offering.
(f) Agreement with Underwriters. The Investor shall (together with
Security Capital as provided in Section 2.2(f)) enter into an underwriting
agreement in customary and usual form with the underwriter or underwriters
selected for such underwriting as provided in Section 2.1(e).
(g) Number of Demand Registrations. The Investor shall be entitled to
one Demand Registration, subject to Section 2.1(c) and subject to the provisions
for one additional registration
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in the event of a Proration as provided in Section 4.6 (which additional
registration shall in all other respects be subject to this Article 2).
2.2. Registration Procedures. If and whenever Security Capital is
required by any of the provisions of this Article 2 to use its reasonable
efforts to effect the registration of any of the Registrable Securities under
the Securities Act, Security Capital will (except as otherwise provided in this
Agreement), as expeditiously as possible:
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use its reasonable efforts to cause
such registration statement to become effective and remain effective for as long
as shall be necessary (up to a maximum of 90 days) to complete the distribution
of the Registrable Securities so registered;
(b) prepare and file with the Commission such amendments and
supplements as soon as practicable to such registration statement and the
prospectus contained therein as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all securities covered by such
registration statement whenever the Investor shall desire to sell or otherwise
dispose of the same;
(c) furnish to the Investor such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus contained in
such registration statement, including any preliminary prospectus and any
amendment or supplement thereto, in conformity with the requirements of the
Securities Act, and such other documents, as the Investor may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Securities owned by the Investor;
(d) use its reasonable efforts to register and qualify, or perfect
exemptions for, the securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the Investor shall
reasonably request, and do any and all other acts and things reasonably
requested by the Investor to assist the Investor to consummate the public sale
or other disposition in such jurisdictions of the Registrable Securities owned
by the Investor, except that Security Capital shall not for any such purpose be
required to qualify to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified or to file therein any general consent to service
of process;
(e) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least twelve months, beginning with the first fiscal quarter
beginning after the effective date of the registration statement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act;
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(f) enter into and perform its obligations under an underwriting
agreement, if the offering is an underwritten offering, in usual and customary
form, with the managing underwriter or underwriters of such underwritten
offering, including, without limitation, to obtain an opinion of counsel to
Security Capital and a "comfort letter" from the independent public accountants
to Security Capital in the usual and customary form for such underwritten
offering;
(g) permit the Investor and the managing underwriters and their
representatives to perform customary due diligence;
(h) notify the Investor, at any time when a prospectus is required to
be delivered under the Securities Act, of the happening of any event of which
Security Capital has knowledge as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of
circumstances then existing; and
(i) upon the request of the Investor, take any and all other actions
which may be reasonably necessary to complete the registration and thereafter to
complete the distribution of the Registrable Securities so registered.
3. SHELF REGISTRATION.
3.1. Shelf Registration.
(a) Shelf Registration. Instead of requesting a Demand Registration
pursuant to Section 2, beginning on six months after closing date of Exchange
Agreement, the Investor may request that Security Capital file a Shelf
Registration sufficient to permit the Investor to sell all or any part of its
Registrable Securities pursuant to Rule 415 under the Securities Act by
delivering written notice to Security Capital specifying the number of Class B
Shares the Investor desires to sell.
(b) Effecting Registration. Whenever Security Capital shall be
requested by the Investor pursuant to paragraph (a) of this Section 3.1 to
effect the registration of any of its Registrable Securities under the
Securities Act, Security Capital shall:
(i) within 30 days of delivery of Investors' request, file a
registration statement under the Securities Act with respect to those
Registrable Securities which Security Capital has been requested to
register pursuant to paragraph (a) of this Section 3.1; and
(ii) use its reasonable efforts to effect such registration as
quickly as practicable.
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(c) Security Capital's Ability to Postpone. Security Capital may
postpone the filing of a registration statement under this Section 3.1 and each
proposed sale of Class B Shares by the Investor under an effective Shelf
Registration for a reasonable period of time (not exceeding 60 days) if Security
Capital furnishes the Investor with a certificate signed by the Chairman of the
Board or a Managing Director of Security Capital stating that, in its good faith
judgment, Security Capital's Board of Directors has determined that effecting
the registration at such time would require Security Capital to make public
disclosure of information not otherwise required to be publicly disclosed at
such time, the public disclosure of which would have a material adverse effect
upon Security Capital or would adversely affect the ability of Security Capital
to consummate a material financing, acquisition, disposition of assets or stock,
merger or other comparable transaction. Security Capital may also postpone for
up to 60 days the filing of a registration statement under this Section 3.1 if a
registration of Security Capital's securities is in progress or imminent (to be
evidenced by presentations or discussions with proposed underwriters in
connection with an offering of securities) and the distribution pursuant thereto
not yet completed.
(d) Selection of Underwriters. In the case of an underwritten offering
from a Shelf Registration, the Investor will have the right to select the
investment banker(s) and manager(s), subject to Security Capital's approval,
which will not be unreasonably withheld or delayed, to administer the offering.
(e) Agreement With Underwriters. The Investor shall (together with
Security Capital as provided in Section 3.2(f)) enter into an underwriting
agreement in customary and usual form with the underwriter or underwriters
selected for such underwriting as provided in Section 3.1(d).
(f) Number of Shelf Registrations. The Investor shall be entitled to
one Shelf Registration.
3.2. Registration Procedures. If and whenever Security Capital is
required by any of the provisions of this Article 3 to use its reasonable
efforts to effect the registration of any of the Registrable Securities pursuant
to Rule 415 under the Securities Act, Security Capital will (except as otherwise
provided in this Agreement), use its reasonable efforts to as expeditiously as
possible:
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use its reasonable efforts to cause
such registration statement to become effective and remain effective for as long
as shall be necessary to complete the distribution of the Class B Shares so
registered;
(b) prepare and file with the Commission such amendments and
supplements as soon as practicable to such registration statement and the
prospectus contained therein as may be necessary to keep such registration
statement effective for so long as shall be necessary to complete the
distribution of the Registrable Securities so registered and to comply with the
provisions of the Securities Act with respect to the sale or other disposition
of all securities
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covered by such registration statement whenever the Investor shall desire to
sell or otherwise dispose of the same;
(c) furnish to the Investor such numbers of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement, including any preliminary prospectus, and any
amendments or supplement thereto, in conformity with the requirements of the
Securities Act, and such other documents, as the Investor may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Securities owned by the Investor;
(d) use its reasonable efforts to register and qualify, or perfect
exemptions for, the securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as the Investor shall
reasonably request, and do any and all other acts and things reasonably
requested by the Investor to assist the Investor to consummate the sale or other
disposition in such jurisdictions of the Registrable Securities owned by the
Investor, except that Security Capital shall not for any such purpose be
required to qualify to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified or to file therein any general consent to service
of process;
(e) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least twelve months, beginning with the first fiscal quarter
beginning after the effective date of the registration statement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(f) enter into and perform its obligations under an underwriting
agreement, if the offering is an underwritten offering, in usual and customary
form, with the managing underwriter or underwriters of such underwritten
offering, including, without limitation, to obtain an opinion of counsel to
Security Capital and a "comfort letter" from the independent public accountants
to Security Capital in the usual and customary form for such underwritten
offering;
(g) permit the Investor and the managing underwriters and their
representatives to perform customary due diligence;
(h) notify the Investor, at any time when a prospectus relating to such
registration statement is required to be delivered under the Securities Act, of
the happening of any event of which it has knowledge as a result of which the
prospectus included in such registration statement, as then in effect, contains
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; and
(i) upon the request of the Investor, take any and all other actions
which may be reasonably necessary to complete the registration and thereafter to
complete the distribution of the Registrable Securities so registered.
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4. PROVISIONS APPLICABLE TO REGISTRATION RIGHTS.
4.1. Expenses.
(a) Except as set forth in Section 4.1(b), the expenses specified in
the following sentence incurred in a Shelf Registration or Demand Registration
(or any attempted Shelf Registration or Demand Registration that is not
consummated) of the Investor's Registrable Securities under this Agreement shall
be paid by the Investor. The expenses referred to in the preceding sentence
shall be limited to underwriters' discounts or commissions or fees, brokerage
discounts, commissions, fees of placement agents, other sales expenses and fees
and disbursements of counsel and other advisors for the Investor.
(b) All other expenses incurred in any Shelf Registration or Demand
Registration (or any attempted Shelf Registration or Demand Registration that is
not consummated) shall by paid by Security Capital, including, without
limitation, (i) registration and filing fees, (ii) the expenses of printing and
distributing the registration statement and prospectus used in connection
therewith and any amendment or supplement thereto, (iii) the expenses of its
internal counsel (and/or, if Security Capital chooses, its outside counsel),
including fees and expenses related to the preparation of the registration
statement and the prospectus used in connection therewith and any amendment or
supplement thereto, (iv) any necessary accounting expenses, including any
special audits which shall be necessary to comply with governmental requirements
in connection with any such registration, including the expense related to any
comfort letters and (v) expenses of complying with the securities or blue sky
laws of any jurisdiction.
4.2. Indemnification. In the event the Investor's Registrable
Securities are included in a Demand Registration under Section 2 or in a Shelf
Registration under Section 3:
(a) Indemnity by Security Capital. Without limitation of any other
indemnity provided to the Investor, to the extent permitted by law, Security
Capital will indemnify and hold harmless the Investor, the Affiliates, officers,
directors, employees, agents and partners of the Investor, any underwriter (as
defined in the Securities Act), and each Person, if any, who controls the
Investor or any such underwriter (within the meaning of the Securities Act or
Exchange Act), against any losses, claims, damages, liabilities and expenses
(joint or several) to which they may become subject under the Securities Act,
the Exchange Act or any other federal or state law, as and when incurred,
insofar as such losses, claims, damages, liabilities and expenses (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in a registration
statement (including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto), (ii) the omission or alleged
omission to state therein 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 or (iii) any other violation or alleged
violation by Security Capital of the Securities Act, the Exchange Act,
any state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law, and Security
Capital will reimburse the Investor and each such Affiliate, officer, director,
employee, agent, partner, underwriter or controlling person for any reasonable
legal or other expenses incurred
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by them in connection with investigating or defending any such loss, claim,
damage, liability, expense or action; provided, however, that Security Capital
shall not be liable to the Investor in any such case for any such loss, claim,
damage, liability, expense or action to the extent that it arises out of or is
based upon a Violation which occurs (A) in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by the Investor or any Affiliate, officer, director, partner or
controlling person thereof or (B) by the Investor's failure to deliver a copy of
the registration statement or prospectus or any amendments or supplements
thereto after Security Capital has furnished the Investor with a sufficient
number of copies of the same.
(b) Indemnity by Investor. In connection with any registration in which
the Investor is participating, the Investor will furnish to Security Capital in
writing such information and affidavits as Security Capital reasonably requests
for use in connection with any such registration statement or prospectus and, to
the extent permitted by law, will indemnify Security Capital, its directors,
officers, employees and agents and each Person who controls Security Capital
(within the meaning of the Securities Act or Exchange Act) against any losses,
claims, damages, liabilities and expenses resulting from any Violation, but only
to the extent that such Violation occurs solely in reliance upon and in
conformity with any information or affidavit so furnished in writing by the
Investor or through the Investor's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after Security
Capital has furnished the Investor with a sufficient number of copies of the
same; provided that the obligation to indemnify will be several and not joint
and several with any other Person and will be limited to the net amount received
by the Investor from the sale of Class B Shares pursuant to such registration
statement.
(c) Notice; Right to Defend. Promptly after receipt by an indemnified
party under this Section 4.2 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
4.2, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
if the indemnifying party agrees in writing that it will be responsible for any
costs, expenses, judgments, damages and losses incurred by the indemnified party
with respect to such claim, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if the indemnified party reasonably believes that
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding, provided that the indemnifying party shall not be
responsible for the fees and expenses of more than one counsel for the
indemnified parties; provided, further, that the indemnifying party shall not,
without the written consent of the indemnified party, settle, compromise or
consent to the entry of any judgment in or otherwise seek to terminate any
pending or threatened action in respect to which indemnification or contribution
may be sought hereunder, unless such settlement, compromise or consent includes
an unconditional release of such indemnified person from all liability on claims
that are the subject matter of the proceeding. The failure to deliver written
notice to the indemnifying party
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within a reasonable time of the commencement of any such action shall relieve
such indemnifying party of any liability to the indemnified party under this
Section 4.2 only if and to the extent that such failure is prejudicial to its
ability to defend such action, and the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability that it may have to
any indemnified party other than under this Section 4.2.
(d) Contribution. If the indemnification provided for in this Section
4.2 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
hand in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and the indemnified
party shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the foregoing, the amount the
Investor shall be obligated to contribute pursuant to this Section 4.2(d) shall
be limited to an amount equal to the proceeds to the Investor of the Registrable
Securities sold pursuant to the registration statement which gives rise to such
obligation to contribute (less the aggregate amount of any damages which the
Investor has otherwise been required to pay in respect of such loss, claim,
damage, liability or expense or any substantially similar loss, claim, damage,
liability or expense arising from the sale of such Registrable Securities).
(e) Survival of Indemnity and Contribution. The indemnification and
contribution provided by this Section 4.2 shall be a continuing right to
indemnification and contribution and shall survive the registration and sale of
any securities by any Person entitled to indemnification and contribution
hereunder and the expiration or termination of this Agreement.
4.3. Rule 144; Reports under Exchange Act. In order to permit the
Investor to sell the Class B Shares it holds, if it so desires, from time to
time pursuant to an effective shelf registration or pursuant to Rule 144
promulgated by the Commission or any successor to such rule or any other rule or
regulation of the Commission that may at any time permit the Investor to sell
Registrable Securities to the public without registration (the "Resale Rules")
or pursuant to a registration statement on Form S-3 at any time after Security
Capital so qualifies or any successor to such form or any other form permitting
incorporation by reference of documents filed with the Commission subsequent to
the filing of the registration statement (the "Forms"), Security Capital will:
(a) comply with all rules and regulations of the Commission applicable
in connection with use of the Resale Rules, Form S-3 (including the registrant
requirements thereof) and any other Forms;
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(b) make and keep adequate and current public information available, as
those terms are understood and defined in the Resale Rules, at all times;
(c) file with the Commission in a timely manner all reports and other
documents required of Security Capital under the Securities Act (including any
Forms) and the Exchange Act;
(d) furnish annually to the Investor material containing the
information required by Rule 14a-3(b) under the Exchange Act and Items 401, 402
and 403 of Regulation S-K of the Commission; and
(e) furnish to the Investor so long as the Investor owns any
Registrable Securities, forthwith upon request (i) a written statement by
Security Capital that it has complied with the reporting requirements of the
Resale Rules, the Securities Act and the Exchange Act, or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of Security Capital and any other reports and documents so filed by
Security Capital and (iii) such other information as may be reasonably requested
in availing the Investor of any rule or regulation of the Commission which
permits the selling of any such securities without registration or pursuant to a
Form.
4.4. Assignment of Rights. The rights of the Investor under this
Agreement, including the right to cause Security Capital to register Registrable
Securities, shall be deemed to be automatically assigned with a transfer of
Registrable Securities, but only for transfers made in accordance with the
Charter and Bylaws of Security Capital, this Agreement and any other agreement
governing such Registrable Securities.
4.5. Limitations on Other Registration Rights.
(a) Security Capital shall not, without the prior written consent of
the Investor, include in any registration in which the Investor has a right to
participate pursuant to this Agreement any securities of any Person other than
the Investor.
(b) Nothing contained in this Agreement shall confer upon the Investor
any right to include any or all of the Investor's Class B Shares in a
registration statement filed by Security Capital under the Securities Act for
the sale of such securities for Security Capital's own account; provided,
however, that if Security Capital includes in any such registration statement
for its own account Class B Shares owned by a stockholder other than the
Investor, it shall also allow Investor to include the same number of Class B
Shares to be registered for the benefit of all such other stockholders in that
registration statement.
4.6. Prorations. In the event of a Proration:
(a) upon the expiration of the Selling Period, Security Capital shall
be obligated to file an additional registration statement (which registration
statement shall contain a current prospectus) relating to the Unincluded
Securities;
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(b) Security Capital shall use its reasonable efforts to effect the
registration of the Unincluded Securities as quickly as possible thereafter; and
(c) the Investor may withdraw its Unincluded Securities from such
additional registration without cost or penalty at any time prior to the
effective date of such additional registration.
5. MISCELLANEOUS.
5.1. Notices.
(a) All communications under this Agreement shall be in writing and
shall be mailed by first class mail, postage prepaid, or telegraphed or telexed,
or given by facsimile or delivered by hand:
(i) if to Security Capital, at:
Security Capital Group Incorporated
000 Xxxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
(ii) if to the Investor, to the address of the Investor as it
appears in the stock ledger, or other appropriate register, of Security
Capital,
or to such other individual or address as a party hereto may designate for
itself by notice given as herein provided.
(b) Any notice so addressed, when mailed by registered or certified
mail shall be deemed to be given three days after so mailed, and when
telegraphed or telexed or delivered by hand shall be deemed to be given
immediately, and when given by facsimile, shall be deemed to be given when
confirmed electronically or telephonically, provided that the original is mailed
by first class mail, postage prepaid, at the same time in accordance with
Section 5.1(a).
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5.2. Successors and Assigns. Except as otherwise expressly provided
herein, this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of Security Capital and the Investor.
5.3. Amendment and Waiver. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, but only with the
written consent of Security Capital and the Investor. No delay on the part of
any party in the exercise of any right, power or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any party of any
right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy.
5.4. Counterparts. One or more counterparts of this Agreement may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument.
5.5. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of Maryland.
5.6. Invalidity of Provisions. If any provision of this Agreement is or
becomes invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected thereby.
5.7. Headings. The headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date and year first above written.
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ C. Xxxxxx Xxxxxxxxxxx
------------------------------------
Name: C. Xxxxxx Xxxxxxxxxxx
----------------------------------
Title: Managing Director
---------------------------------
COMMERZBANK AKTIENGESELLSCHAFT,
GRAND CAYMAN BRANCH
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Senior Vice President
---------------------------------
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
----------------------------------
Title: Vice President
---------------------------------
