CONTROLLED EQUITY OFFERINGSM AMENDMENT NO. 1 TO SALES AGREEMENT
Exhibit 1.1
CONTROLLED EQUITY OFFERINGSM
AMENDMENT NO. 1 TO
SALES AGREEMENT
SALES AGREEMENT
March 31, 2006
CANTOR ▇▇▇▇▇▇▇▇▇▇ & CO.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs/Ladies:
ProLogis, a Maryland statutory real estate investment trust (the “Company”) and Cantor
▇▇▇▇▇▇▇▇▇▇ & Co. (“CF&Co”) are parties to a Sales Agreement dated July 23, 2004 (the
“Agreement”). The parties desire to amend the Agreement as follows:
1. Paragraph 1 of the Agreement is hereby deleted and replaced in its entirety with the
following:
“1. Issuance and Sale of Shares. The Company agrees that,
from time to time during the term of this Agreement, on the terms
and subject to the conditions set forth herein, it will issue and
sell through CF&Co, acting as agent and/or principal, 7,400,000
common shares of beneficial interest, par value $0.01 per share (the
“Shares”), of the Company. The Company and CF&Co
acknowledge that as of March 31, 2006, the Company has issued and
sold 1,655,800 Shares pursuant to this Agreement and that Company
may issue and sell an additional 5,744,200 Shares during the term of
this Agreement. Notwithstanding anything to the contrary contained
herein, the parties hereto agree that the Company shall have the
sole responsibility to monitor the number and aggregate sale price
of Shares issued and sold under this Agreement and to issue and sell
Shares within such limitations, and CF&Co shall have no
responsibility in connection therewith. The issuance and sale of
Shares through CF&Co will be effected pursuant to a registration
statement on Form S-3 (File No. 333-132616) (the “Registration
Statement”) filed by the Company and declared effective by the
Securities and Exchange Commission (the “Commission”).”
2. Paragraph 2 of the Agreement is hereby deleted and replaced in its entirety with the
following:
“2. Placements. Each time that the Company wishes to issue
and sell Shares hereunder (each, a “Placement”), it will
notify CF&Co by email notice (or other method mutually agreed to in
writing by the Parties) of the number of Shares (the “Placement
Shares”) to be issued, the type of Shares, the time period
during which sales are requested to be made, any minimum price below
which sales may not be made (a “Placement Notice”), the form
of which is attached hereto as Schedule 2. The Placement
Notice shall originate from any of the individuals from the Company
set forth on Schedule 3, and shall be addressed to each of
the individuals from CF&Co set forth on Schedule 3, as such
Schedule 3 may be amended from time to time. The Placement
Notice shall be effective unless and until (i) CF&Co declines to
accept the terms contained therein for any reason, in its sole
discretion, (ii) the entire amount of the Placement Shares have been
sold, or (iii) the Agreement has been terminated under the
provisions of Section 11. The amount of compensation to be
paid by the Company to CF&Co in connection with the sale of the
Placement Shares shall be two and one-quarter percent (2.25%) of
gross proceeds of the sale of such Placement Shares. It is
expressly acknowledged and agreed that neither the Company nor CF&Co
will have any obligation whatsoever with respect to a Placement or
any Placement Shares unless and until the Company delivers a
Placement Notice to CF&Co and CF&Co does not decline such Placement
Notice pursuant to the terms set forth above, and then only upon the
terms specified therein and herein (an “Acceptance”). In
the event of a conflict between the terms of this Agreement and the
terms of a Placement Notice, the terms of the Placement Notice will
control.”
3. Paragraph 6(g) of the Agreement is hereby deleted and replaced in its entirety with the
following:
“(g) KPMG LLP, who have expressed their opinion with respect to the
Company’s audited financial statements for the fiscal years ended
December 31, 2003, 2004 and 2005 incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the
Prospectus, are independent public or certified public accountants
within the meaning of Regulation S-X under the Securities Act and
the Exchange Act and a registered public accounting firm within the
meaning of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. PricewaterhouseCoopers
LLP, who have expressed their opinion with respect to the Catellus
Development Corporation’s (“Catellus”) audited financial
statements for the fiscal years ended
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December 31, 2003 and 2004 incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the
Prospectus, were, prior to September 15, 2005 and during the period
covered by the financial statements of Catellus for which they
reported, independent public or certified public accountants with
respect to Catellus within the meaning of Regulation S-X under the
Securities Act and the Exchange Act and a registered public
accounting firm within the meaning of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002.”
4. Paragraph 7(a) of the Agreement is hereby amended by adding “(including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)” immediately
following the word “Act” in the first sentence thereof.
5. Paragraph 7(c) of the Agreement is hereby amended by adding “(including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)” immediately
following the word “Act” in the first sentence thereof.
6. Paragraph 7 of the Agreement is hereby amended by adding a new subparagraph (s) as follows:
“(s) No Offer to Sell. Other than a free writing prospectus
(as defined in Rule 405 under the Act) approved in advance by the
Company and CF&Co in its capacity as principal or agent hereunder,
neither CF&Co nor the Company (including its agents and
representatives, other than CF&Co in its capacity as such) will
make, use, prepare, authorize, approve or refer to any written
communication (as defined in Rule 405 under the Act), required to be
filed with the Commission, that constitutes an offer to sell or
solicitation of an offer to buy Shares hereunder.”
7. Paragraph 7 of the Agreement is hereby amended by adding a new subparagraph (s) as follows:
“(t) No Fiduciary Duty. The Company also acknowledges and
agrees that CF&Co is acting solely in the capacity of an arm’s
length contractual counterparty to the Company with respect to the
offering of Shares contemplated by this Agreement (including in
connection with determining the terms of the offering) and not as a
financial advisor or a fiduciary to, or an agent of, the Company or
any other person. Additionally, CF&Co is not advising the Company
or any other person as to any legal, tax, accounting or regulatory
matters in any jurisdiction. The Company shall consult with its own
advisors concerning such matters and shall be responsible for making
its own independent investigation and appraisal of the transactions
contemplated hereby, and CF&Co shall have no responsibility or
liability to the Company with respect thereto. Any review by CF&Co
of the Company, the
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transactions contemplated by this Agreement and the Prospectus or
other matters relating to such transactions will be performed solely
for the benefit of CF&Co and shall not be on behalf of the Company.”
8. Paragraph 9(a)(ii) of the Agreement is hereby amended by adding the words “or any free
writing prospectus” immediately following the word “Prospectus” therein.
9. Paragraph 12 of the Agreement is hereby amended to provide that all notices or other
communications required or permitted to be given by CF&Co to ProLogis pursuant to the terms of the
Agreement shall be delivered to ProLogis, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ fax no. (▇▇▇)
▇▇▇-▇▇▇▇, attn: Chief Financial Officer, with a copy to Mayer, Brown, ▇▇▇▇ & Maw LLP, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
10. Schedule 1 to the Agreement is hereby deleted and replaced in its entirety by Schedule
1 attached hereto.
11. Schedule 2 to the Agreement is hereby deleted and replaced in its entirety by Schedule
2 attached hereto.
12. Schedule 3 to the Agreement is hereby deleted and replaced in its entirety by Schedule
3 attached hereto.
13. This Amendment together with the Agreement constitutes the entire agreement and supersedes
all other prior and contemporaneous agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof. Except as specifically amended hereby, the
Agreement remains in full force and effect.
14. This Amendment shall be governed by, and construed in accordance with, the internal laws
of the State of New York without regard to the principles of conflicts of laws.
15. This Amendment may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument. Delivery of an
executed Amendment by one party to the other may be made by facsimile transmission.
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If the foregoing correctly sets forth the understanding between the Company and CF&Co, please
so indicate in the space provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and CF&Co.
| Very truly yours, PROLOGIS |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| Senior Vice President, Investor Relations and Corporate Communications |
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| ACCEPTED as of the date first-above written: CANTOR ▇▇▇▇▇▇▇▇▇▇ & CO. |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Managing Director | ||||
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SCHEDULE 1
SIGNIFICANT SUBSIDIARIES
Palmtree Acquisition Corporation
PLD International Incorporated
ProLogis Japan Incorporated
TCL Holdings S.A.
PLD International Incorporated
ProLogis Japan Incorporated
TCL Holdings S.A.
SCHEDULE 2
FORM OF PLACEMENT NOTICE
From:
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Cc:
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To:
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Subject:
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Controlled Equity Offering—Placement Notice |
Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Controlled Equity
OfferingSM Sales Agreement between ProLogis, a Maryland statutory real estate investment
trust (the “Company”), and Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. (“CF&Co”) dated July 23, 2004,
as amended, I hereby request on behalf of the Company that CF&Co sell up to shares of
the Company’s common shares of beneficial interest, par value $0.01 per share, at a minimum market
price of $ per share.
SCHEDULE 3
Cantor ▇▇▇▇▇▇▇▇▇▇ & Co.
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