<PAGE>
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
SECURITY CAPITAL GROUP INCORPORATED
-----------------------------------
(Name of Issuer)
CLASS B COMMON STOCK, PAR VALUE $0.01
-------------------------------------
(Title of Class of Securities)
81413P204
---------------
CUSIP Number
SCPG Holdings Pte. Ltd.
250 North Bridge Road #38-00
Raffles City Tower
Singapore 179101.
011-65-330-8806
with a copy to:
Timothy G. Hoxie, Esq.
Heller Ehrman White & McAuliffe
333 Bush Street
San Francisco, California 94104
(415) 772-6052
--------------------------------------------
(Name, address and telephone number
of person authorized to receive
notices and communications)
SEPTEMBER 23, 1997
--------------------------------
(Date of Event which requires
filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this statement, and is filing this
statement because of Rule 13d-1(b)(3) or (4), check the following:
/ /
(Page 1 of 9 pages)
<PAGE>
CUSIP No. 81413P204 13D
1) Name of Reporting Persons:
SCPG Holdings Pte. Ltd.
- -------------------------------------------------------------------------------
2) Check the Appropriate Box if a Member of a Group (See
Instructions)
(a) /XX/ -----------------------------------------------------------
(b) / / -----------------------------------------------------------
- -------------------------------------------------------------------------------
3) SEC Use Only
------------------------------------------------
- -------------------------------------------------------------------------------
4) Source of Funds (See Instructions): WC
- -------------------------------------------------------------------------------
5) / / Check if Disclosure of Legal proceedings
is Required Pursuant to Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
6) Citizenship or Place of Organization: Singapore
- -------------------------------------------------------------------------------
Number 7) Sole Voting Power: -0-
of ---------------------------------------------------------
Shares
Beneficially 8) Shared Voting Power: 3,819,709
Owned ---------------------------------------------------------
by
Each 9) Sole Dispositive Power: -0-
Reporting ---------------------------------------------------------
Person
With 10) Shared Dispositive Power: 3,819,709
- -------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each
Reporting Person: 3,819,709
- -------------------------------------------------------------------------------
12) / / Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions)
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13) Percent of Class Represented by amount in Row (11):
16.9%
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14) Type of Reporting Person (See Instructions): CO
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(Page 2 of 9 pages)
<PAGE>
CUSIP No. 81413P204 13D
1) Name of Reporting Persons:
Government of Singapore Investment Corporation (Realty) Pte.
Ltd.
- -------------------------------------------------------------------------------
2) Check the Appropriate Box if a Member of a Group (See
Instructions)
(a) /XX/ -----------------------------------------------------------
(b) / / -----------------------------------------------------------
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3) SEC Use Only
---------------------------------------------------
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4) Source of Funds (See Instructions): OO
- -------------------------------------------------------------------------------
5) / / Check if Disclosure of Legal proceedings
is Required Pursuant to Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
6) Citizenship or Place of Organization: Singapore
- -------------------------------------------------------------------------------
Number 7) Sole Voting Power: -0-
of ---------------------------------------------------------
Shares
Beneficially 8) Shared Voting Power: 3,819,709
Owned ---------------------------------------------------------
by
Each 9) Sole Dispositive Power: -0-
Reporting ---------------------------------------------------------
Person
With 10) Shared Dispositive Power: 3,819,709
- -------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each
Reporting Person: 3,819,709
- -------------------------------------------------------------------------------
12) / / Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions)
- -------------------------------------------------------------------------------
13) Percent of Class Represented by amount in Row (11):
16.9%
- -------------------------------------------------------------------------------
14) Type of Reporting Person (See Instructions): OO
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(Page 3 of 9 pages)
<PAGE>
CUSIP No. 81413P204 13D
Item 1. SECURITY AND ISSUER.
The class of equity securities to which this Statement relates is the Class
B Common Stock, $0.01 par value (the "Common Stock"), of Security Capital Group
Incorporated (the "Issuer"), a corporation incorporated under the laws of
Maryland, the principal executive offices of which are located at 125 Lincoln
Avenue, Santa Fe, New Mexico 87501.
Item 2. IDENTITY AND BACKGROUND.
I. (a) SCPG Holdings Pte. Ltd. ("SCPG") , a Singapore corporation.
(b) 250 North Bridge Road #38-00
Raffles City Tower
Singapore 179101.
(c) Investments.
(d) None.
(e) None
The names, business addresses, present principal occupations and
citizenships of the directors and officers of SCPG are set forth on Appendix 1
hereto.
II. (a) Government of Singapore Investment Corporation (Realty) Pte. Ltd.
("GSIC"), an agency of the Government of Singapore which controls
SCPG.
(b) 250 North Bridge Road #38-00
Raffles City Tower
Singapore 179101.
(c) Real estate investments for the Government of Singapore
(d) None
(e) None
GSIC is beneficially owned by the government of Singapore.
(Page 5 of 9 pages)
<PAGE>
CUSIP No. 81413P204 13D
During the last five years none of the Reporting Persons, nor any of the
directors or officers identified in Item 2, has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) nor has any of
such persons been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction as a result of which such person was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On September 23, 1997, SCPG acquired 3,819,709 shares of Class B Common
Stock of the Issuer (the "Shares") from the underwriters in the initial public
offering of the Shares (the "Offering") for an aggregate purchase price of
$99,999,982 or $26.18 per share. The funds used by SCPG to pay the purchase
price were capital contributions made by GSIC. The purchase price was paid in
cash.
Item 4. PURPOSE OF TRANSACTION.
The Reporting Persons have acquired and currently hold the Shares for
investment purposes. Depending on market and other conditions, all and/or any
of the Reporting Persons may continue to hold the Shares, acquire (subject to
the Issuer's ownership restrictions) additional shares of Common Stock, or
dispose of all or a portion of the Shares they now own or Common Stock they may
hereafter acquire. Except as set forth herein, the Reporting Persons have no
plans or proposals which relate to or would result in any of the transactions
described in subparagraphs (a) through (j) of Item 4 of Schedule 13D; it is
noted, however, that SCPG has acquired voting securities of Security Capital
Preferred Growth Incorporated, an entity which is a private real estate company
formed by the Issuer which is advised by a wholly-owned subsidiary of the
Issuer, in an amount of $10,000,000, and has committed to acquire an additional
$40,000,000 in the same company.
(Page 6 of 9 pages)
<PAGE>
CUSIP No. 81413P204 13D
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) and (b) The aggregate number of shares and percentage of Class B
Common Stock of the Issuer (based upon the number of shares of Class B Common
Stock offered to the public in the Issuer's Offering as shown in the Issuer's
Prospectus dated September 17, 1997) beneficially owned by each person named in
Item 2 is set forth in the following table:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
No. of Shares
Beneficially Percentage Power to Vote Power to Dispose
Person Owned of Class Sole Shared Sole Shared
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
SCPG 3,819,709 16.9% 0.00 3,819,709 0.00 3,819,709
- ---------------------------------------------------------------------------------------------------------
GSIC 3,819,709 16.9% 0.00 3,819,709 0.00 3,819,709
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
Each of SCPG and GSIC share power to vote and to dispose of the 3,819,709
Shares beneficially owned by them with each other.
The Reporting Persons note that, unless otherwise required by Maryland law,
the holders of Class A Common Stock of the Issuer and Class B Common Stock vote
together as a single class with respect to all matters submitted to the vote of
stockholders, including the election of directors. While holders of Class A are
entitled to one vote per share, holders of Class B Common Stock are entitled to
one two-hundredth (1/200th) of a vote for each Class B share held of record.
Consequently, the voting power that the Reporting Persons are entitled to
exercise voting together as a single class with the Class A Common Stock
corresponds to approximately 1.3% of the combined voting power of the Class A
and Class B Common Stock.
(c) To the best knowledge of the Reporting Persons, no person described in
paragraph (a) of this Item 5 has effected any transaction in the Common Stock of
the Issuer during the past 60 days other than as described in Item 3 and 4
above.
(d) To the best knowledge of the Reporting Persons, no person other than
the Reporting Persons has the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, Class B Common
Stock of the Issuer held by the Reporting Persons.
(e) Not applicable.
(Page 7 of 9 pages)
<PAGE>
CUSIP No. 81413P204 13D
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
On September 10, 1997 SCPG and the Issuer entered into a Letter Agreement
re: Expression of Interest to purchase shares of Class B Common Stock of
Security Capital Group Incorporated by SCPG Holdings Pte. Ltd. (the "Letter
Agreement".) The Letter Agreement provides for a 210 day lock-up period during
which SCPG cannot sell any of the Shares without the approval of the Issuer.
The Letter Agreement also provides for indemnification by each of the Issuer and
SCPG with respect of third party claims relating to the Offering. The Letter
Agreement also provides that if SCPG decides to sell any of the Shares, the
Issuer will make available Security Capital Markets Group Incorporated, a
wholly-owned subsidiary of the Issuer, to assist with such sale if requested by
the Reporting Persons.
On September 10, 1997 the Issuer and SCPG entered into a Registration
Rights Agreement giving SCPG the right to require the Issuer to register for
sale to the public, subject to certain conditions, shares of the Issuer's Series
B Common Stock acquired by SCPG.
Any descriptions of the Letter Agreement and Registration Rights Agreement
are qualified in their entirety by the complete texts of such documents, copies
of which are attached hereto as Exhibits 7(2) and 7(3).
Except as set forth in this Schedule 13D, none of the Reporting Persons,
nor, to the best knowledge of the Reporting Persons, any of the directors or
officers of the Reporting Persons identified in Item 2, has any contracts,
arrangements, understandings or relationships (legal or otherwise) with any
person with respect to transfer or voting of any securities of the Issuer,
finder's fees, joint ventures, loan or option arrangements, guarantees of
profits or the giving or withholding of proxies.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 7(1) Power of Attorney of GSIC dated October 2, 1997.
Exhibit 7(2) Letter Agreement dated as of September 10, 1997
Exhibit 7(3) Registration Rights Agreement dated as of September 10, 1997
(Page 8 of 9 pages)
<PAGE>
CUSIP No. 81413P204 13D
SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
SCPG HOLDINGS PTE. LTD.,
a Singapore Corporation
By: /s/ GUY TCHEAU
------------------------------
Title: DIRECTOR
---------------------------
GOVERNMENT OF SINGAPORE INVESTMENT
CORPORATION (REALTY) PTE. LTD.,
a Singapore corporation,
by SCPG HOLDINGS PTE. LTD.,
its attorney-in-fact
By: /s/ GUY TCHEAU
------------------------------
Title: DIRECTOR
---------------------------
Dated: October 3, 1997
(Page 9 of 9 pages)
<PAGE>
CUSIP No. 81413P204 13D
APPENDIX 1
SCPG HOLDINGS PTE. LTD.
DIRECTORS AND EXECUTIVE OFFICERS
Present Principal
Name and Business Address(1) Title Occupation or Employment
- ---------------------------- ----- ---------------------------
Kwok Wai Keong Director Regional Manager,
250 North Bridge Road #38-00 Government of Singapore Investment
Raffles City Tower Corporation Pte. Ltd
Singapore 179101
Seek Ngee Huat Director Director of Real Estate,
250 North Bridge Road #38-00 Government of Singapore
Raffles City Tower Investment Corporation Pte. Ltd
Singapore 179101
S. Bradford Child Director Senior Investment Manager, GSIC
c/o GSIC Realty Corporation
255 Shoreline Drive,
Suite 600
Redwood City,
California 94065
Guy Tcheau Director Regional Manager, GSIC
c/o GSIC Realty Corporation
255 Shoreline Drive,
Suite 600
Redwood City,
California 94065
Mok Yee Yin Secretary Manager, Government of
250 North Bridge Road 38-00 Singapore Investment Corporation
Raffles City Tower Pte. Ltd
Singapore 179101
Deanna Ong Secretary Senior accountant,
250 North Bridge Road 38-00 Government of Singapore Investment
Raffles City Tower Corporation Pte. Ltd
Singapore 179101
(1) Each of Messrs. Kwok Wai Keong, Seek Ngee Huat, Guy Tcheau and Ms. Deanna
Ong are Singapore citizens; Ms. Mok Yee Yin is a Malaysian citizen; Messrs
S. Bradford Child is a U.S. citizen.
<PAGE>
CUSIP No. 81413P204 13D
LIST OF EXHIBITS
Exhibit No Description Page
- ---------- ----------- ----
7(1) Power of Attorney of GSIC dated October 2, 1997.
7(2) Letter Agreement dated as of September 10, 1997
7(3) Registration Rights Agreement dated as of September 10, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned whose signature
appears below does hereby constitute and appoint SCPG Holdings Pte Ltd with full
power of substitution, the undersigned's true and lawful attorney-in-fact and
agent for the undersigned in the undersigned's name, place and stead, in any and
all capacities, to sign any Schedule 13D and any and all amendments thereto
pursuant to Rule 13d-1 of the Securities Exchange Act of 1934 (the "Exchange
Act"), to sign any documents pursuant to Section 16(a) of the Exchange Act and
to file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and to deliver copies
thereof as required by law, in connection with the acquisition or disposition by
SCPG Holdings Pte Ltd of any equity securities of an issuer having a class of
equity securities registered under Section 12(g) of the Exchange Act, and the
undersigned granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully,
to all intents and purposes, as the undersigned might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent may
lawfully do or cause to be done by virtue thereof.
/s/ VIVIEN CHEN, DIRECTOR /s/ DEANNA ONG, SECRETARY
- ------------------------- -------------------------
Government of Singapore
Investment Corporation (Realty) Pte. Ltd.
Dated: October 2, 1997
<PAGE>
LETTER AGREEMENT
September 10, 1997
SCPG Holdings Pte. Ltd.
c/o GSIC Realty Corporation
255 Shoreline Drive
Suite 600
Redwood City, California 94065
Re: Expression of Interest to purchase shares of Class B Common Stock of
Security Capital Incorporated by SCPG Holdings Pte. Ltd.
This letter (the "Agreement") will confirm our agreement as to the terms
upon which SCPG Holdings Pte. Ltd. or any of its affiliates ("SCPG") has
expressed an interest to purchase shares of Class B Common Stock, par value $.01
per share ("Class B Shares") of Security Capital Group Incorporated ("Security
Capital") as part of the initial public offering of Class B Shares of Security
Capital (the "Offering").
1. EXPRESSION OF INTEREST
We understand that SCPG has expressed its interest in purchasing $100
million of Class B Shares in the Offering assuming that (i) Security Capital
sells its Class B Shares in the Offering at a price to the public of between $25
and $28 per Class B Share, (ii) the total size of the Offering equals or exceeds
$400 million and (iii) the pricing of the Offering occurs on or before September
18, 1997. If SCPG elects to purchase such Class B Shares, and does so purchase,
the price per Class B Share to be paid by SCPG will be at the price per Class B
Share to the public in the Offering, net of the same percentage investment
banking fee paid to the underwriters in the Offering, and payment for such
Class B Shares shall be made at the same time, on the same terms and by the
same method as other investors in the Offering. In exchange for being
permitted to purchase the Class B Shares at such price, SCPG agrees that it
will not sell, transfer, pledge, assign, hypothecate or otherwise dispose of
any of the Class B Shares it elects to purchase in the Offering and any Class
B Shares it purchases subsequent to the Offering until, subject to the terms
of the Registration Rights Agreement attached hereto as Annex A, 210 days
after the closing of the Offering without the prior written consent of
Security Capital (the "Lock-up Period").
2. REGISTRATION RIGHTS
Although, as of the date of this Agreement, Security Capital does not
believe, based on the facts and circumstances available to it, that SCPG is, or
should be deemed to be, an
<PAGE>
Security Capital Group Incorporated
September 10, 1997
Page 2
affiliate of Security Capital, Security Capital agrees to register for resale
the Class B Shares owned by SCPG in accordance with the terms of the
Registration Rights Agreement attached hereto as Annex A.
3. LEGENDS ON CERTIFICATES
Except for a legend to reflect the existence of the Lock-up Period (which
shall be promptly removed after expiration of the Lock-up Period), any Class B
Shares purchased by SCPG in the Offering will not contain any special
restrictive transfer legends nor will Security Capital give any "stop order"
instructions to the transfer agent in connection with such Class B Shares. SCPG
acknowledges that all Class B Shares will contain legends reflecting the
existence of the Preferred Share Purchase Rights and the share ownership limits
contained in Security Capital's Charter.
4. SALES ASSISTANCE
In the event that SCPG decides to sell any Class B Shares it elects to
acquire in the Offering and any Class B Shares it purchases subsequent to the
Offering after the expiration of the Lock-up Period, at SCPG's request, Security
Capital will make available Security Capital Markets Group Incorporated
("Capital Markets Group") to assist SCPG in any such sale. Such assistance will
be available on customary terms and arrangements subject to agreement of the
parties.
SCPG acknowledges that Capital Markets Group is a restricted broker-dealer
and member of the National Association of Securities Dealers, Inc. that, among
other restrictions, cannot hold securities or funds for customers' accounts and
cannot participate in a firm underwritten offering.
Upon request of SCPG, Security Capital will make all appropriate
information available at such locations to be mutually agreed upon and, if
necessary in the reasonable judgment of SCPG, will make its executive officers
available at Security Capital's principal executive offices at times to be
mutually agreed upon to discuss the affairs of Security Capital with SCPG and
any potential purchasers of the Class B Shares owned by SCPG.
5. INDEMNIFICATION
In the event of third-party claims made against SCPG in connection with the
Offering:
<PAGE>
Security Capital Group Incorporated
September 10, 1997
Page 3
(1) INDEMNITY BY SECURITY CAPITAL. Without limitation of any other
indemnity provided to SCPG, to the extent permitted by law, Security Capital
will indemnify and hold harmless SCPG, its affiliates, officers, directors,
employees, agents and partners of SCPG, and each person, if any, who controls
SCPG (within the meaning of the Securities Act of 1933, as amended (the
"Securities Act") or the Securities Exchange Act of 1934, as amended (the
"Exchange Act)), against any losses, claims, damages, liabilities and
expenses (joint or several) to which they may become subject as a result of
any actions, suits, proceedings or claims brought by a third party, as and
when incurred, insofar as such actions, suits, proceedings or claims 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 SCPG and each such affiliate, officer, director,
employee, agent, partner 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 SCPG 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 in reliance
upon and in conformity with written information furnished expressly for use
in connection with such registration by SCPG or any officer, director,
partner or controlling person thereof.
(2) INDEMNITY BY SCPG. SCPG will furnish to Security Capital in writing
such information and affidavits as Security Capital reasonably requests for use
in connection with the registration statement or prospectus used in the Offering
relating to SCPG 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 SCPG; PROVIDED that the obligation to indemnify will be several
and not joint and several with any other person and will be limited to the
amount of the investment by SCPG in the Offering.
(3) NOTICE; RIGHT TO DEFEND. Promptly after receipt by an indemnified
party under this Section 5 of notice of the commencement of any action
(including any governmental
<PAGE>
Security Capital Group Incorporated
September 10, 1997
Page 4
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 5, 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 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 5 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 5.
(4) CONTRIBUTION. If the indemnification provided for in this Section 5
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
<PAGE>
Security Capital Group Incorporated
September 10, 1997
Page 5
opportunity to correct or prevent such statement or omission. Notwithstanding
the foregoing, the amount SCPG shall be obligated to contribute pursuant to this
Section 5 shall be limited to the amount of the investment by SCPG in the
Offering (less the aggregate amount of any damages which SCPG 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
such Violation).
(5) SURVIVAL OF INDEMNITY AND CONTRIBUTION. The indemnification and
contribution provided by this Section 5 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.
6. AMENDMENT
This Agreement may not be amended except by a written instrument signed by
all of the parties hereto.
7. MISCELLANEOUS
This Agreement constitutes the entire agreement among the parties
pertaining to the purchase of Class B Shares by SCPG in the Offering.
This Agreement may be executed in counterparts, all of which together shall
constitute one agreement binding on all the parties.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Maryland without regard to the principles of conflicts of
law.
<PAGE>
Security Capital Group Incorporated
September 10, 1997
Page 6
If this Agreement is satisfactory to you, please sign in the appropriate
place below.
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ C. Ronald Blankenship
-------------------------------------
Name:
Title:
Agreed to and acknowledged
as of the date set forth above:
SCPG HOLDINGS PTE. LTD.
By: /s/ Guy F. Tcheau
---------------------------
Name: GUY F. TCHEAU
Title: REGIONAL MANAGER
By: /s/ S. Bradford Child
---------------------------
Name: S. Bradford Child
Title: Senior Investment Manager
<PAGE>
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"
<PAGE>
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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<PAGE>
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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<PAGE>
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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<PAGE>
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
125 Lincoln Avenue
Santa Fe, New Mexico 87501
Attn: Jeffrey A. Klopf
Facsimile: (505) 988-8920
with a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Attn: Edward J. Schneidman
Facsimile: (312) 701-7711
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(ii) if to the Investor, at:
SCPG Holdings Pte. Ltd.
c/o GSIC Realty Corporation
255 Shoreline Drive
Suite 600
Redwood City, California 94065
Attn: Investment Manager and Attn: Controller
Facsimile: (650) 802-1212
with a copy to:
Heller Ehrman White & McAuliffe
601 South Figueroa Street
Los Angeles, California 90017-5758
Attn: Paul Greiner
(213) 689-0200
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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<PAGE>
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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<PAGE>
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. Ronald Blankenship
-------------------------------------
C. Ronald Blankenship
Managing Director
SCPG HOLDINGS PTE. LTD.
By: /s/ Guy F. Tcheau
-------------------------------------
Name: GUY F. TCHEAU
-----------------------------------
Title: REGIONAL MANAGER
----------------------------------
By: /s/ S. Bradford Child
-------------------------------------
Name: S. BRADFORD CHILD
-----------------------------------
Title: SENIOR INVESTMENT MANAGER
----------------------------------
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