Exhibit 2.8
SECOND AMENDMENT
TO
MERGER AND ISSUANCE AGREEMENT
THIS SECOND AMENDMENT TO MERGER AND ISSUANCE AGREEMENT (this "Amendment")
is made and entered into as of June 26, 1997, by and between Security Capital
Atlantic Incorporated, a Maryland corporation ("ATLANTIC"), and Security Capital
Group Incorporated, a Maryland corporation ("Security Capital").
WHEREAS, ATLANTIC and Security Capital are parties to that certain Merger
and Issuance Agreement, dated as of March 24, 1997, as amended on April 21, 1997
(as so amended, the "Merger Agreement"), pursuant to which, among other matters,
ATLANTIC and Security Capital agreed to merge subsidiaries of Security Capital
performing REIT management and property management services with respect to
ATLANTIC with and into a subsidiary of ATLANTIC in exchange for shares of common
stock of ATLANTIC; and
WHEREAS, the parties desire to amend the terms of the Merger Agreement to
clarify certain ambiguities and to clarify the rights and obligations of the
parties with respect to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. Section 2.3 of the Merger Agreement is hereby amended and
restated in its entirety as follows:
SECTION 2.3 THE RIGHTS OFFERING. ATLANTIC shall distribute as a
dividend to each holder of record of ATLANTIC Common Shares, as of the
close of business on the ATLANTIC Shareholders' Approval Record Date,
rights to purchase ATLANTIC Common Shares entitling such holder to
subscribe for and purchase ATLANTIC Common Shares during the period
commencing on the date the ATLANTIC Prospectus is mailed to such holders
and expiring on the close of business on the date of the Merger Closing
(the "Rights Offering Expiration Date). The issuance of such rights and
the issuance of ATLANTIC Common Shares upon exercise of such rights shall
be registered under the ATLANTIC Registration Statement and ATLANTIC shall
use its best efforts to cause the rights to be tradeable on the Exchange on
which the ATLANTIC Common Shares are listed. Each holder of ATLANTIC
Common Shares shall receive one (1) right for every one (1) ATLANTIC Common
Share held of record by such holder as of the ATLANTIC Shareholders'
Approval Record Date. The exercise price per ATLANTIC Common Share for
such rights shall be equal to the amount determined by the ATLANTIC Board
(or a duly authorized committee thereof); provided, that in the event that
the Fair Market Value of an ATLANTIC
Common Share is more than $25.8633, then the exercise price per ATLANTIC
Common Share shall be $25.8633; and provided, further, that the exercise
price per ATLANTIC Common Share shall in no event (other than as described
in the preceding proviso) be less than 94% of the Fair Market Value of an
ATLANTIC Common Share. ATLANTIC shall make available for issuance in the
rights offering, up to a maximum number of ATLANTIC Common Shares equal to
the difference between (X) the amount determined by dividing (A) the number
of ATLANTIC Common Shares issuable pursuant to Section 2.1 by (B) the
percentage of all outstanding ATLANTIC Common Shares owned by SCG on the
ATLANTIC Shareholders' Approval Record Date (the amount determined pursuant
to this clause (X) being the "Rights Offering Amount") and (Y) the number
of ATLANTIC Common Shares issuable to SCG pursuant to Section 2.1. Each
holder shall be entitled to acquire one (1) ATLANTIC Common Share by paying
the Fair Market Value and surrendering that number of rights (rounded down
to the nearest whole right) equal to the amount determined by dividing the
aggregate number of ATLANTIC Common Shares outstanding on the ATLANTIC
Shareholders' Approval Record Date by the Rights Offering Amount. SCG
agrees that it shall not exercise or sell or otherwise transfer any rights
issued to it pursuant to this Section 2.3 and SCG shall not purchase or
otherwise acquire any rights. ATLANTIC shall not accept subscriptions
pursuant to such rights unless and until all of the conditions set forth in
this Agreement have been satisfied or waived and the mergers described in
Section 2.1 have been consummated. Any ATLANTIC Common Shares that are not
subscribed for by shareholders may be offered to other shareholders
pursuant to an oversubscription privilege and, if not fully subscribed for
by shareholders, may be sold to third parties. The REIT Manager shall, at
its own expense, engage an affiliate of SCG to assist ATLANTIC in selling
ATLANTIC Common Shares to third parties.
Section 2. Exhibit I to the Merger Agreement is hereby amended and
restated in its entirety in the form attached hereto as Exhibit A.
Section 3. Capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed thereto in the Merger Agreement.
Section 4. Except as otherwise specifically modified hereby, the Merger
Agreement shall remain in full force and effect.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
SECURITY CAPITAL ATLANTIC INCORPORATED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Co-Chairman
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President