FORM OF REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of September 10, 1997, between Security Capital Group Incorporated, a
Maryland corporation ("Security Capital"), and SCPG Holdings Pte. Ltd. (the
"Investor").
Security Capital and the Investor have entered into a Letter Agreement of
even date herewith (the "Letter Agreement") in connection with Security
Capital's initial public offering of its shares of Class B Common Stock. In
order to induce the Investor to enter into the Letter 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.
"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.
"LETTER AGREEMENT": as defined in the preamble.
"OFFER": as defined in Section 2.1(b).
"OFFERED INTEREST": as defined in Section 2.1(b).
"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(e) in the number of
securities to be included in a Demand Registration.
"REGISTRABLE SECURITY": Class B Shares purchased by the Investor
pursuant to the Letter Agreement and any Class B Shares which may
subsequently be purchased by SCPG, 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 the Class B Shares held by the Investor will cease
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to be Registrable Securities in the event that the Investor no longer holds
Class B Shares in an amount that exceeds the volume limitations set forth in
Rule 144(e)(1) under the Securities Act.
"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 twenty days before the expiration of the Lock-up
Period as defined in the Letter 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 $25
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. The Investor
shall not have the right to cause Security Capital to register its Registrable
Securities under this Section 2.1 if the number of Class B Shares requested to
be so registered may, based on an opinion of counsel to Security Capital, be
sold pursuant to the Resale Rules, provided such counsel and the form and
substance of its opinion is reasonably acceptable to the Investor.
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(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:
(i) within twenty 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 best 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.
(d) USE OF CAPITAL MARKETS GROUP. If SCPG desires to engage a
financial advisor to identify potential purchasers (including an underwriter)
in connection with a demand for an offering pursuant to Section 2.1(a), SCPG
will notify Security Capital Markets Group incorporated ("Capital Markets
Group") of such demand and will negotiate in good faith to engage, within
three days of such notification, Capital Markets Group as its agent in
connection with a placement of its Registrable Securities. The terms and
conditions of any such engagement, including the economic terms, will be
based upon mutual agreement of the parties at the time of entering into the
agency relationship. In the event that SCPG engages Capital Markets Group to
act as its agent in connection with the placement of its Registrable
Securities, Capital Markets Group will have 30 days from the date of such
demand to effect such placement on terms satisfactory to SCPG. In the event
that either (x) SCPG and Capital Markets Group are unable to reach an
agreement with respect to the engagement of Capital Markets Group as SCPG's
agent within three days of SCPG's notification or (y) Capital Markets Group
is unable to effect a placement of SCPG's Registrable Securities on terms
satisfactory to SCPG within 30 days of SCPG's demand, then SCPG may proceed
with a public offering otherwise provided in this Article 2.
(c) 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
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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.
(f) 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 the Security Capital's approval, which will
not be unreasonable withheld (it being agreed that those investment bankers
which had previously been used, at the time of demand, by Security Capital or
one of its Affiliates in a similar role in connection with an offering of their
securities are deemed approved), to administer the offering.
(g) AGREEMENT WITH UNDERWRITERS. The Investor shall (together with
Security Capital as provided in Section 2.2 (g)) 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(d).
(h) NUMBER OF DEMAND REGISTRATIONS. The Investor shall be entitled to one
Demand Registration, subject to the provisions for one additional registration
in the event of a Proration as provided in Section 4.5 (which additional
registration shall not be subject to the $25 million minimum requirement
contained in Section 2.1(a)).
2.2. REGISTRATION PROCEDURES. If and whenever Security Capital is required
by any of the provisions of this Article 2 to use its best 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), use its
best efforts to as expeditiously as possible:
(a) prepare and file with the Commission a registration statement with
respect to such Class B Shares and use its best 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;
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(d) use its best 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 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 best 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
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) 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;
(h) make Security Capital executive officers available for a total of up
to six business days (but no more than three business days in any week) to
participate in "road show" presentations in locations mutually agreed upon by
Security Capital and the Investor and to make such executive officers and all
appropriate information available at Security Capital's principal executive
offices to discuss the affairs of Security Capital with Investor and any
potential purchaser of the Class B Shares owned by Investor at times that may be
mutually agreed upon;
(i) undertake all customary preparations in advance of the scheduled
meetings for any agreed upon "road show," including preparing an appropriate
script, audio/visual materials and any other written materials reasonably
requested by SCPG; and
(j) 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 Class B Shares so registered.
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3. SHELF REGISTRATION.
3.1 SHELF REGISTRATION.
(a) SHELF REGISTRATION. Beginning on June 9, 1998, the Investor may,
from and after such date, 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. The Investor shall not have the right
to cause Security Capital to register its Registrable Securities under this
Section 3.1 if the number of Class B Shares requested to be so registered
may, based on an opinion of counsel to Security Capital, be sold pursuant to
the Resale Rules, provided such counsel and the form and substance of its
opinion is reasonably acceptable to the Investor.
(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 twenty 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 best 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 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) NUMBER OF SHELF REGISTRATIONS. The Investor shall be entitled to
one Shelf Registration.
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3.2. REGISTRATION PROCEDURES. If and whenever Security Capital is
required by any of the provisions of this Article 3 to use its best 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 best efforts to as expeditiously as
possible:
(a) prepare and file with the Commission a registration statement with
respect to such Class B Shares and use its best 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 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 best 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 securities owned by the Investor,
except that Security Capital shall not for any such purpose by 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 best 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 registration statement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(f) 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
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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
(g) 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 Class B Shares so registered.
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 Class B Shares 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 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 be 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 Class B Shares are
included in a Demand Registration under Article 2 or in a Shelf Registration
under Article 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
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(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 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 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 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 indemnifying 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
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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 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
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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;
(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. LIMITATIONS ON OTHER REGISTRATION RIGHTS.
(a) Except as otherwise set forth in this Agreement, 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
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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.
4.5. 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;
(b) Security Capital shall use its best 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
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(ii) if to the Investor, at:
SCPG Holdings Pte. Ltd.
c/o GSIC Realty Corporation
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Investment Manager and Attn: Controller
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx White & XxXxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx
(000) 000-0000
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 5.2(a).
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.
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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
-------------------------------------
C. Xxxxxx Xxxxxxxxxxx
Managing Director
SCPG HOLDINGS PTE. LTD.
By: /s/ Guy F. Tcheau
-------------------------------------
Name: GUY F. TCHEAU
-----------------------------------
Title: REGIONAL MANAGER
----------------------------------
By: /s/ X. Xxxxxxxx Child
-------------------------------------
Name: X. XXXXXXXX CHILD
-----------------------------------
Title: SENIOR INVESTMENT MANAGER
----------------------------------
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