Exhibit 2
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SUPPORT AGREEMENT
by and among
GENERAL ELECTRIC CAPITAL CORPORATION,
EB ACQUISITION CORP.
And
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Dated as of December 14, 2001
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TABLE OF CONTENTS
PAGE
ARTICLE I VOTING OF SHARES....................................................................1
Section 1.01. Agreement to Vote...............................................1
Section 1.02. Grant of Irrevocable Proxy; Appointment of Proxy................2
Section 1.03. No Solicitation of Transactions.................................2
Section 1.04. Action in Stockholder Capacity Only.............................2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER...................................3
Section 2.01. Power; Binding Agreement........................................3
Section 2.02. Title to Shares.................................................3
Section 2.03. Valid Issuance..................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB...........................3
Section 3.01. Due Organization; Authority Relative to this Agreement..........3
Section 3.02. No Conflict; Required Filings and Consents......................4
ARTICLE IV ADDITIONAL AGREEMENTS...............................................................4
Section 4.01. No Disposition or Encumbrance of Shares.........................4
Section 4.02. Disclosure......................................................5
ARTICLE V TERMINATION.........................................................................5
Section 5.01. Termination.....................................................5
ARTICLE VI MISCELLANEOUS.......................................................................5
Section 6.01. Additional Shares...............................................5
Section 6.02. Expenses........................................................5
Section 6.03. Notices.........................................................5
Section 6.04. Severability....................................................6
Section 6.05. Assignment......................................................6
Section 6.06. Amendment; Waiver...............................................7
Section 6.07. Parties in Interest.............................................7
Section 6.08. Specific Performance............................................7
Section 6.09. Governing Law...................................................7
Section 6.10. Headings........................................................7
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Section 6.11. Counterparts....................................................7
Section 6.12. Entire Agreement................................................7
Section 6.13. Further Assurances..............................................7
ii
SUPPORT AGREEMENT, dated as of December 14, 2001 (this
"Agreement"), among GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
("Parent"), BLANKET ACQUISITION CORP., a Maryland corporation and an indirect
wholly owned subsidiary of Parent ("Merger Sub"), and ____________________ (the
"Stockholder").
WHEREAS, concurrently with the execution of this Agreement,
Parent, Merger Sub and Security Capital Group Incorporated, a Maryland
corporation (the "Company"), are entering into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"; capitalized terms used and
not otherwise defined herein shall have the respective meanings assigned to them
in the Merger Agreement), pursuant to which, upon the terms and subject to the
conditions thereof, Merger Sub will be merged with and into the Company (the
"Merger");
WHEREAS, as of the date hereof, the Stockholder is the
record and beneficial owner of and has the power to vote or to direct the vote
of ______________ shares of Class A common stock, par value $0.01 per share (the
"Class A Common Stock"), and _____________ shares of Class B common stock, par
value $0.01 per share (the "Class B Common Stock" and, together with the Class A
Common Stock and the associated Rights, the "Company Common Stock"), of the
Company (such shares of Company Common Stock and any securities into which such
shares may be converted or exchanged and any securities issued in replacement
of, or as a dividend or distribution on or otherwise in respect of, such shares,
being referred to herein as the "Shares");
WHEREAS, as a condition to entering into the Merger
Agreement and incurring the obligations set forth therein, Parent and Merger Sub
have required that the Stockholder enter into this Agreement; and
WHEREAS, in order to induce Parent and Merger Sub to enter
into the Merger Agreement the Stockholder is willing to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereby agree, severally and not jointly, as follows:
ARTICLE I
VOTING OF SHARES
SECTION 1.01. Agreement to Vote. From the date hereof until
the termination of this Agreement in accordance with the terms hereof, the
Stockholder hereby agrees to vote the Shares at every annual, special or
adjourned meeting of the stockholders of the Company (or pursuant to any
consent, certificate or other document relating to the Company that the law of
the State of Maryland may permit or require): (a) in favor of the approval and
adoption of the Merger Agreement and approval of the Merger and all other
transactions contemplated by the Merger Agreement and this Agreement; (b)
against any action, agreement, transaction (other than the Merger Agreement or
the transactions contemplated thereby) or proposal (including, without
limitation, any Acquisition Proposal) that would result in either Parent's or
the Company's unilateral right to terminate the Merger Agreement; and (c) in
favor of any other matter necessary to the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon by the
stockholders of the Company. The Stockholder acknowledges receipt of a copy of
the Merger Agreement and the review thereof.
SECTION 1.02. Grant of Irrevocable Proxy; Appointment of
Proxy. (a) Subject to Section 5.01, the Stockholder hereby irrevocably grants
to, and appoints, Xxxx Xxxxxx and Xxxxx Xxxxx, or any one of them, in their
respective capacities as employees of Parent, and any individual who shall
hereafter succeed to any such office of Parent, and each of them individually,
as such Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of the Stockholder, to vote
the Shares held at the time of the relevant stockholder vote in the manner set
forth in Section 1.01 hereof. The Stockholder will use his reasonable efforts to
cause any record holder of Shares beneficially owned by the Stockholder to grant
substantially similar proxies as Parent may reasonably request in connection
with the Stockholder's obligations under this Agreement.
(b) The Stockholder represents that any proxies heretofore
given with respect to matters contained herein in respect of the Stockholder's
Shares are not irrevocable, and that any such proxies are hereby revoked.
(c) The Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement. The Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 1.02 is given in connection with
the execution of the Merger Agreement, and that such irrevocable proxy is given
to secure the performance of the duties of the Stockholder under this Agreement.
The Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and, subject to Section 5.01 and the following sentence, may
under no circumstances be revoked. Notwithstanding the foregoing, the proxy
granted hereunder shall automatically terminate, and the interest with which it
is coupled shall for all purposes be deemed to be immediately and forever
extinguished, upon the termination of this Agreement, or upon any sale,
assignment, transfer, pledge, encumberance or disposition permitted hereunder,
as to any Shares so sold, assigned, transferred, pledged, encumbered or disposed
of.
SECTION 1.03. No Solicitation of Transactions. Neither the
Stockholder nor any of its affiliates shall, directly or indirectly, (a) solicit
or encourage the initiation of (including by way of furnishing information) any
inquiries or proposals regarding any Acquisition Proposal or (b) have any
discussions with or provide any confidential information or data to any third
party that would encourage, facilitate or further an Acquisition Proposal, or
engage in any negotiations concerning an Acquisition Proposal, or knowingly
facilitate any effort or attempt to make or implement an Acquisition Proposal.
The Stockholder and each of its affiliates shall immediately cease and cause to
be terminated any existing discussions or negotiations with any persons (other
than Parent) conducted heretofore with respect to any of the foregoing. The
Stockholder shall promptly advise Parent orally and in writing of (a) any
Acquisition Proposal or any request for information with respect to any
Acquisition Proposal received by the Stockholder or any of its affiliates, the
material terms and conditions of such Acquisition Proposal or request and the
identity of the person making such Acquisition Proposal or request (and provide
Parent with copies of any written Acquisition Proposals or amendments or
supplements thereto) and (b) any changes in any such Acquisition Proposal or
request.
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SECTION 1.04. Action in Stockholder Capacity Only. The
Stockholder acknowledges that this Agreement is entered into by it in its
capacity as a stockholder of the Company and that nothing in this Agreement
shall in any way restrict or limit any director, officer or employee of the
Stockholder or its affiliates from taking any action in his capacity as such in
order to comply with his or her fiduciary obligations.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent
and Merger Sub as follows:
SECTION 2.01. Power; Binding Agreement. The Stockholder if
a natural person and has full legal right, power and authority to enter into and
perform all of his or her obligations under this Agreement and if a corporation,
partnership, trust, limited liability company or other legal entity is duly
organized validly existing and is in good standing under the applicable laws of
its jurisdiction of formation and has all requisite corporate, partnership or
similar power and authority to perform its obligations under this agreement. The
execution and delivery of this Agreement by the Stockholder will not violate any
other agreement to which he is a party including, without limitation, any voting
agreement, stockholders agreement or voting trust. This Agreement has been duly
and validly executed and delivered by the Stockholder and, assuming its due
authorization, execution and delivery by Parent and Merger Sub, constitutes a
legal, valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws,
now or hereafter in effect, affecting creditors' rights generally and subject to
the effect of general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
SECTION 2.02. Title to Shares. The Stockholder is the
record and beneficial owner of, and has good and marketable title to, the Shares
free and clear of any lien, pledge, security interest, encumbrance, charge or
other claim of third parties of any kind or nature, proxy, voting restriction,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind, other than pursuant to this Agreement and the Merger Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGER SUB
Parent and Merger Sub each represents and warrants to the
Stockholder as follows:
SECTION 3.01. Due Organization; Authority Relative to this
Agreement. Parent and Merger Sub are corporations duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of incorporation. Parent and Merger Sub have all necessary power and authority
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to execute and deliver this Agreement, to perform their obligations hereunder
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation by Parent and Merger Sub of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of
Parent or Merger Sub or any affiliate thereof are necessary to authorize this
Agreement or to consummate such transactions. This Agreement has been duly and
validly executed and delivered by Parent and Merger Sub and, assuming its due
authorization, execution and delivery by the Stockholder, constitutes a legal,
valid and binding obligation of Parent and Merger Sub, enforceable against
Parent and Merger Sub in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws,
now or hereafter in effect, affecting creditors' rights generally and subject to
the effect of general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
SECTION 3.02. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Parent and Merger Sub do
not, and the performance of this Agreement by Parent and Merger Sub will not,
(i) conflict with or violate the Certificate of Incorporation or By-laws of
Parent or Merger Sub, (ii) assuming that all consents, approvals, authorizations
and permits described in subsection (b) have been obtained and all filings and
obligations described in subsection (b) have been made, conflict with or violate
any law applicable to Parent or Merger Sub or by which any property or asset of
Parent or Merger Sub is bound or affected or (iii) result in any breach of or
constitute a default (or an event which, with notice or lapse of time or both
would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance on any property or asset of Parent or Merger Sub pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Parent or Merger
Sub is a party or by which Parent or Merger Sub or any property or asset of
either of them is bound or affected, except, with respect to clauses (ii) and
(iii), for any such conflicts, violations, breaches, defaults or other
occurrences which would neither, individually or in the aggregate, prevent or
materially delay the performance by Parent and Merger Sub of any of their
obligations pursuant to this Agreement.
(b) The execution and delivery of this Agreement by Parent
and Merger Sub do not, and the performance of this Agreement by Parent and
Merger Sub will not, require any consent, approval, authorization or permit of,
or filing with, or notification to, any Governmental Authority, except (i) for
applicable requirements, if any, of the Securities Act, the Exchange Act, state
securities laws, the HSR Act, any Antitrust Law and the Environmental Laws, (ii)
for the Regulatory Approvals, and (iii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not, individually or in the aggregate, prevent or
materially delay the performance by Parent and Merger Sub of any of their
obligations pursuant to this Agreement.
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ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01. No Disposition or Encumbrance of Shares. The
Stockholder agrees that, prior to the termination of this Agreement in
accordance with the terms hereof, he shall not, directly or indirectly, (a)
sell, assign, transfer (including by operation of law), pledge, encumber or
otherwise dispose of any of the Shares (but excluding any such to or for the
benefit of a charitable, philanthropic, eleemosynary, educational, religious or
other similar entity, organization, trust, association or similar body; it being
specifically understood and agreed that in the event of any such sale,
assignment, transfer, pledge or other disposition the subject Shares shall no
longer be in any way or manner subject to this Agreement), (b) deposit any of
the Shares into a voting trust or enter into a voting agreement or arrangement
or grant any proxy or power of attorney with respect thereto which is
inconsistent with this Agreement, (c) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect sale,
assignment, transfer (including by operation of law) or other disposition of any
Shares, except as would ay otherwise be permitted by the foregoing clause (a),
or (d) take any action that would make any representation or warranty of the
Stockholder herein untrue or incorrect in any material respect or have the
effect of preventing or disabling the Stockholder from performing its
obligations hereunder.
SECTION 4.02. Disclosure. The Stockholder agrees to permit
Parent and Merger Sub to publish and disclose in filings under the securities
laws in connection with the Merger the Stockholder's identity and ownership of
Shares and the nature of its commitments, arrangements and understandings under
this Agreement and other information to the extent required by applicable law.
ARTICLE V
TERMINATION
SECTION 5.01. Termination. The covenants and agreements
contained herein shall terminate upon the earlier of (a) the date the Merger
Agreement is terminated or modified in any manner adverse to the Stockholder (it
being understood and agreed that without limitation of the generality of the
foregoing, any modification or amendment to the Merger Agreement that in any way
modifies or changes the form, amount or timing of consideration to be received
by the Stockholder pursuant to the Merger or imposes any obligation or liability
on the Stockholder, provided however that modifications to the form, amount or
timing of consideration to be received by the Stockholder specifically
contemplated by the Merger Agreement shall not be deemed to be adverse to the
Stockholder); (b) the date Parent terminates this Agreement ; and (c) the day
after the Stockholders Meeting (as defined in the Merger Agreement). Nothing in
this Section 5.01 shall relieve any party of liability for any breach of this
Agreement.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Additional Shares. In the event the
Stockholder becomes the beneficial owner of any additional Shares or other
securities of the Company and any securities into which such shares or
securities may be converted or exchanged and any securities issued in
replacement of, or as a dividend or distribution on, or otherwise in respect of,
such shares or securities, then the terms of this Agreement, including the term
"Shares" as defined herein, shall apply to such additional securities.
SECTION 6.02. Expenses. Except as otherwise provided
herein, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
and expenses.
SECTION 6.03. Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly given upon receipt) by delivery in
person, by an overnight or expedited courier service, by telecopy (provided that
any notice received by telecopy at the addressee's location on any business day
after 5:00 p.m. (addressee's local time) shall be deemed to have been received
at 9:00 a.m. (addressee's local time) on the next business day), or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
6.03):
(a) If to Parent or Merger Sub:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: General Counsel
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
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(b) If to the Stockholder:
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
SECTION 6.04. Severability. If any term or other provision
of this Agreement is invalid, illegal or incapable of being enforced by any rule
of law, or public policy, the application of such term or provision to other
persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction, and all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
SECTION 6.05. Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether pursuant to a merger, by operation of law or otherwise),
without the prior written consent of the other parties except that Parent and
Merger Sub may assign all or any of their rights and obligations hereunder to
Parent's ultimate parent company or any direct or indirect subsidiary of Parent
or Parent's ultimate parent company, provided that no such assignment shall
relieve the assigning party of its obligations hereunder if such assignee does
not perform such obligations.
SECTION 6.06. Amendment; Waiver. This Agreement may not be
amended except by an instrument in writing signed by all the parties hereto. Any
party to this Agreement may (a) extend the time for the performance of any of
the obligations or other acts of any other party, (b) waive any inaccuracies in
the representations and warranties of any other party contained herein or in any
document delivered by any other party pursuant hereto or (c) waive compliance
with any of the agreements or conditions of any other party contained herein.
Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Agreement. The failure of any party to assert any of its
rights hereunder shall not constitute a waiver of any of such rights.
SECTION 6.07. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
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SECTION 6.08. Specific Performance. The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement were not performed in accordance with the terms hereof for which money
damages would not be an adequate remedy and that the parties shall be entitled
to specific performance of the terms hereof, in addition to any other remedy at
law or in equity. Each of the parties further agrees that in any proceeding
seeking specific performance such party will waive (a) the defense of adequacy
of a remedy at law and (b) any requirement for the securing or posting of any
bond.
SECTION 6.09. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed in that State.
SECTION 6.10. Headings. The descriptive headings contained
in this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 6.11. Counterparts. This Agreement may be executed
and delivered (including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 6.12. Entire Agreement. This Agreement and the
Merger Agreement constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof.
SECTION 6.13. Further Assurances. From time to time, at the
request of Parent, in the case of the Stockholder, or at the request of the
Stockholder, in the case of Parent and Merger Sub, and without further
consideration, each party shall execute and deliver or cause to be executed and
delivered such additional documents and instruments and take all such further
action as may be reasonably necessary or desirable to effect the matters
contemplated by this Agreement.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by the undersigned as of the date first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
Title:
EB ACQUISITION CORP.
By:
---------------------------------------------
Name:
Title:
STOCKHOLDER:
By:
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Name:
Title:
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