Exhibit 2.13
THIRD AMENDMENT
TO
MERGER AND ISSUANCE AGREEMENT
THIS THIRD AMENDMENT TO MERGER AND ISSUANCE AGREEMENT (this
"Amendment") is made and entered into as of July 22, 1997, by and between
Security Capital Atlantic Incorporated, a Maryland corporation ("ATLANTIC"), and
Security Capital Group Incorporated, a Maryland corporation ("Security
Capital").
WHEREAS, ATLANTIC and Security Capital are parties to that certain
Merger and Issuance Agreement, dated as of March 24, 1997, as amended on April
21, 1997 and June 26, 1997 (as so amended, the "Merger Agreement"), pursuant to
which, among other matters, ATLANTIC and Security Capital agreed to merge
subsidiaries of Security Capital performing REIT management and property
management services with respect to ATLANTIC with and into a subsidiary of
ATLANTIC in exchange for shares of common stock of ATLANTIC; and
WHEREAS, the parties desire to amend the terms of the Merger Agreement
to clarify certain ambiguities and to clarify the rights and obligations of the
parties with respect to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. Section 2.3 of the Merger Agreement is hereby amended and
restated in its entirety as follows:
SECTION 2.3 THE RIGHTS OFFERING. ATLANTIC shall distribute as a
dividend to each holder of record of ATLANTIC Common Shares, as of the
close of business on the ATLANTIC Shareholders' Approval Record Date,
rights to purchase ATLANTIC Common Shares entitling such holder to
subscribe for and purchase ATLANTIC Common Shares during the period
commencing on the date the ATLANTIC Prospectus is mailed to such holders
and expiring on the close of business on the date of the Merger Closing
(the "Rights Offering Expiration Date"). The issuance of such rights and
the issuance of ATLANTIC Common Shares upon exercise of such rights shall
be registered under the ATLANTIC Registration Statement and ATLANTIC shall
use its best efforts to cause the rights to be tradeable on the Exchange on
which the ATLANTIC Common Shares are listed. Each holder of ATLANTIC
Common Shares shall receive one (1) right for every one (1) ATLANTIC Common
Share held of record by such holder as of the ATLANTIC Shareholders'
Approval Record Date. The exercise price per ATLANTIC Common Share for
such rights shall be equal to the amount determined by the ATLANTIC Board
(or a duly authorized committee thereof); provided, that in the event that
the Fair Market Value of an ATLANTIC
Common Share is more than $25.8633, then the exercise price per ATLANTIC
Common Share shall be $25.8633; and provided, further, that the exercise
price per ATLANTIC Common Share shall in no event (other than as described
in the preceding proviso) be less than 94% of the Fair Market Value of an
ATLANTIC Common Share. ATLANTIC shall make available for issuance in the
rights offering, up to a maximum number of ATLANTIC Common Shares equal to
the difference between (X) the amount determined by dividing (A) the number
of ATLANTIC Common Shares issuable pursuant to Section 2.1 by (B) the
percentage of all outstanding ATLANTIC Common Shares owned by SCG on the
ATLANTIC Shareholders' Approval Record Date (the amount determined pursuant
to this clause (X) being the "Rights Offering Amount") and (Y) the number
of ATLANTIC Common Shares issuable to SCG pursuant to Section 2.1. Each
holder shall be entitled to acquire one (1) ATLANTIC Common Share by paying
the exercise price as determined above and surrendering that number of
rights (rounded down to the nearest whole right) equal to the amount
determined by dividing the aggregate number of ATLANTIC Common Shares
outstanding on the ATLANTIC Shareholders' Approval Record Date by the
Rights Offering Amount. SCG agrees that it shall not exercise or sell or
otherwise transfer any rights issued to it pursuant to this Section 2.3 and
SCG shall not purchase or otherwise acquire any rights. Any ATLANTIC
Common Shares that are not subscribed for by shareholders may be offered to
other shareholders pursuant to an oversubscription privilege and, if not
fully subscribed for by shareholders, may be sold to third parties. The
REIT Manager shall, at its own expense, engage an affiliate of SCG to
assist ATLANTIC in selling ATLANTIC Common Shares to third parties.
Section 2. Capitalized terms used but not otherwise defined herein
shall have the respective meanings ascribed thereto in the Merger Agreement.
Section 3. Except as otherwise specifically modified hereby, the Merger
Agreement shall remain in full force and effect.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
SECURITY CAPITAL ATLANTIC INCORPORATED
By: /s/ XXXXXXXXX X. XXXXX
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Xxxxxxxxx X. Xxxxx
Co-Chairman
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Senior Vice President