Exhibit 2.12
SECOND AMENDMENT
TO
MERGER AND ISSUANCE AGREEMENT
THIS SECOND AMENDMENT TO MERGER AND ISSUANCE AGREEMENT (this
"Amendment") is made and entered into as of June 26, 1997, by and between
Security Capital Industrial Trust, a Maryland real estate investment trust
("SCI"), and Security Capital Group Incorporated, a Maryland corporation
("Security Capital").
WHEREAS, SCI and Security Capital are parties to that certain Merger
and Issuance Agreement, dated as of March 24, 1997, as amended on April 21, 1997
(as so amended, the "Merger Agreement"), pursuant to which, among other matters,
SCI and Security Capital agreed to merge subsidiaries of Security Capital
performing REIT management and property management services with respect to SCI
with and into a subsidiary of SCI in exchange for shares of common stock of SCI;
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. SCI shall distribute as a dividend
to each holder of record of SCI Common Shares, as of the close of business
on the SCI Shareholders' Approval Record Date, rights to purchase SCI
Common Shares entitling such holder to subscribe for and purchase SCI
Common Shares during the period commencing on the date the SCI 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 SCI Common Shares upon exercise of such
rights shall be registered under the SCI Registration Statement and SCI
shall use its best efforts to cause the rights to be tradeable on the
Exchange on which the SCI Common Shares are listed. Each holder of SCI
Common Shares shall receive one (1) right for every one (1) SCI Common
Share held of record by such holder as of the SCI Shareholders' Approval
Record Date. The exercise price per SCI Common Share for such rights shall
be equal to the amount determined by the SCI Board (or a duly authorized
committee thereof); provided, that in the event that the Fair Market Value
of an SCI Common Share is more than $24.75, then the exercise price per
SCI Common Share shall be $24.75; and provided, further, that the
exercise price per SCI 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 SCI Common Share. SCI shall make available for issuance in the
rights offering, up to a maximum number of SCI Common Shares equal to the
difference between (X) the amount determined by dividing (A) the number of
SCI Common Shares issuable pursuant to Section 2.1 by (B) the percentage of
all outstanding SCI Common Shares owned by SCG on the SCI Shareholders'
Approval Record Date (the amount determined pursuant to this clause (X)
being the "Rights Offering Amount") and (Y) the number of SCI Common Shares
issuable to SCG pursuant to Section 2.1. Each holder shall be entitled to
acquire one (1) SCI Common Share by paying the Fair Market Value and
surrendering that number of rights (rounded down to the nearest whole
right) equal to the amount determined by dividing the aggregate number of
SCI Common Shares outstanding on the SCI 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. SCI shall
not accept subscriptions pursuant to such rights unless and until all of
the conditions set forth in this Agreement have been satisfied or waived
and the mergers described in Section 2.1 have been consummated. Any SCI
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 SCI in selling SCI Common Shares to third parties.
Section 2. Exhibit I to the Merger Agreement is hereby amended and
restated in its entirety in the form attached hereto as Exhibit A.
Section 3. Capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed thereto in the Merger Agreement.
Section 4. 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 INDUSTRIAL TRUST
By: /s/ K. XXXX XXXXXXXXX
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K. Xxxx Xxxxxxxxx
Co-Chairman and Chief Operating Officer
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Senior Vice President
