Exhibit 10.47
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement"), dated as of December 13,
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2001, is by and between CarrAmerica Realty Corporation, a Maryland corporation
("Xxxx"), and Security Capital Group Incorporated, a Maryland corporation
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("Security Capital").
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WHEREAS, Security Capital had been the beneficial owner of 28,603,417
shares of Xxxx common stock, $.01 par value per share, and pursuant to that
certain Purchase and Sale Agreement dated as of November 15, 2001 Security
Capital sold to Xxxx 9,200,000 of such shares;
WHEREAS, Security Capital has requested that Xxxx file, and pursuant to
such request Xxxx has filed, a registration statement on Form S-3 with respect
to the Security Capital's remaining 19,403,417 shares of Xxxx;
WHEREAS, Xxxx has filed a prospectus supplement relating to the sale of
16,872,537 shares pursuant to an underwritten public offering (the "Offering"),
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which also includes the grant of an option to the underwriters to purchase up
to an additional 2,530,880 shares to cover overallotments (the "Overallotment
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Option")
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and warranties herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Termination of Agreements. Effective on the closing of the Offering,
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irrespective of whether the Overallotment Option is exercised, and without
further action by the parties hereto, all agreements and understandings
between Security Capital or any of its affiliates on the one hand and Xxxx
or any of its affiliates on the other hand, shall be immediately terminated
and be of no force and effect, provided however, that notwithstanding the
preceding, the following agreements shall remain in effect: (a) this
Agreement, (b) the Registration Rights Agreement, dated as of April 30,
1996, by and among Security Capital U. S. Realty ("US Realty"), Security
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Capital Holdings SA ("Holdings") and Xxxx, and to which Security Capital
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(both as to itself and as successor to all the rights of USRealty and
Holdings under the Strategic Alliance Agreement) has become party as a
result of the transactions between Security Capital, USRealty and Holdings
and the consent granted by Xxxx pursuant to that certain letter agreement
dated July 28, 2000 between Xxxx and Security Capital (the "Registration
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Rights Agreement") (including without limitation the provisions with respect
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to indemnification and allocation of registration expenses) and (c) that
certain Underwriting Agreement between Xxxxxxx, Xxxxx & Co., Security
Capital, Xxxx and the other underwriters listed on Schedule 1 thereto, dated
as of December 13, 2001 (the "Underwriting Agreement").
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2. Resignation of Directors. Effective on the closing of the Offering,
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irrespective of whether the Overallotment Option is exercised, Security
Capital shall cause the resignation of Xxxxxxx X. Xxxxxxx, C. Xxxxxx
Xxxxxxxxxxx, and Xxxxxxxx X. XxXxxxx (the "Security Capital Nominees")
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from the Board of Directors of Xxxx, such resignations to be effective on
the closing of the Offering.
3. Financial Statements/Cooperation. Xxxx agrees to deliver, and to cause its
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advisors, representatives and agents to deliver, to Security Capital, as
soon as reasonably practicable, after December 31, 2001, such financial and
other information with respect to 2001 as Security Capital may reasonably
request for Security Capital to comply with its reporting obligations under
applicable securities laws, including without limitation, causing its
auditors to provide their written consent to the inclusion of Xxxx financial
information in Security Capital securities filings.
4. Ownership Limit. Effective on the closing of the Offering, Security Capital
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agrees that (i) it waives any rights that it may have to be subject to the
Special Shareholder Limit (as that term is defined in Xxxx'x articles of
incorporation, as amended (the "Xxxx Charter")), and it shall be subject to
the Ownership Limit (as that term is defined in the Xxxx Charter) in effect
from time to time with respect to Xxxx'x capital stock, and (ii) Security
Capital consents to, and will vote any shares of common stock owned or
controlled by it in favor of, any amendment by Xxxx of the Xxxx Charter that
would (a) increase the Ownership Limit to 9.8% and/or (b) delete references
to the Special Shareholder Limit.
5. Confidentiality. Security Capital agrees that all information previously
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provided to it pursuant to the Stockholders Agreement, dated as of April 30,
1996, by and among US Realty, Holdings and Xxxx, and to which Security
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Capital (both as to itself and as successor to all the rights of USRealty
and Holdings under the Strategic Alliance Agreement) has become party as a
result of the transactions between Security Capital, USRealty and Holdings
and the consent granted by Xxxx pursuant to that certain letter agreement
dated July 28, 2000 between Xxxx and Security Capital, and all information
provided to Security Capital pursuant to Section 3 of this Agreement, shall
be kept confidential, and Security Capital shall not disclose such
information to any persons other than the directors, officers, employees,
financial advisors, legal advisors, accountants, consultants and affiliates
of Security Capital who reasonably need to have access to the information
and who are advised of the confidential nature of such information;
provided, however, the foregoing obligation of Security Capital shall not
(a) relate to any information that (i) is or becomes generally available
other than as a result of unauthorized disclosure by Security Capital or by
persons to whom Security Capital has made such information available, or
(ii) is or becomes available to Security Capital on a nonconfidential basis
from a third party that is not, to Security Capital's knowledge, bound by
any other confidentiality agreement with the Company, or (b) prohibit
disclosure of any information if required by law, rule, regulation, court
order or other legal or governmental process.
6. Indemnification Obligations. The parties agree that, with regard to the
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Underwriting Agreement, it is each their understanding and intent that
nothing contained in Section 6 (Indemnification) of the Underwriting
Agreement shall in anyway modify or amend the Registration Rights Agreement,
including without limitation, the respective rights and obligations of each
of Security Capital and Xxxx under Section 8 (Indemnification)
thereunder.
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7. Successors and Assigns. This Agreement shall be binding upon, and inure to
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the benefit of, the parties hereto and their respective heirs, personal
representatives, successors, assigns and affiliates
8. Notices. Any notice or other communication provided for herein or given
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hereunder to a party hereto shall be in writing and shall be given by
delivery, by telex, telecopier or by mail (registered or certified mail,
postage prepaid, return receipt requested) to the respective parties as
follows:
If to Xxxx:
CarrAmerica Realty Corporation
0000 X Xxxxxx, X. X.
Xxxxxxxxxx, District of Columbia 20006
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X. X.
Xxxxxxxxxx, D. C. 20004-1109
Attention: J. Xxxxxx Xxxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
If to Security Capital:
Security Capital Group Incorporated
000 Xxxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00(xx) Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address with respect to a party as such party shall notify
the other in writing.
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10. Entire Agreement. This Agreement constitutes the entire agreement with
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respect to the subject matter hereof, and supersedes all other prior
agreements and understandings, both written and oral, among the parties
hereto and their affiliates.
12. Captions. The Section and Paragraph captions herein are for convenience of
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reference only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions
hereof.
13. Counterparts. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed an original but all of which shall constitute
one and the same instrument.
14. Governing Law. This Agreement shall be governed by, and construed and
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enforced in accordance with, the laws of the State of Maryland.
15. No Presumption Against Drafter. Each of the parties hereto has jointly
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participated in the negotiation and drafting of this Agreement. In the event
of an ambiguity or a question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by each of the parties
hereto and no presumptions or burdens of proof shall arise favoring any
party by virtue of the authorship of any of the provisions of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first executed.
CARRAMERICA REALTY CORPORATION
By:/s/ Xxxxx Xxxxxx
Name:
Title:
SECURITY CAPITAL GROUP INCORPORATED
By:/s/ C. Xxxxxx Xxxxxxxxxxx
Name:
Title:
